Howard L' Sollins

1
NURSE PRACTITIONERS in LTC FACILITIESAmerican
Health Care Association2008

• Howard L. Sollins
• OberKaler
• 410-347-7369
• hlsollins_at_ober.com
• www.ober.com

Barbara Resnick, PhD,CRNP University of
Maryland resnick_at_son.umaryland.edu
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Examples of NPPs

• Nurse Practitioners
• Physician Assistants
• Clinical Psychologists
• Clinical Social Workers
• Physical Therapists
• Occupational Therapists

• Speech Language Pathologists
• Audiologists
• Clinical Nurse Specialists
• Certified Nurse Midwives
• Certified Registered Nurse Anesthetists

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Different Models of NP/MD Practice

• MD group may hire the NP
• Facility may hire the NP
• NP may hire the MD
• Regardless of model a collaborative agreement may
  be needed per state / billing

4
Key Concepts and Distinctions

• Survey and Certification Distinctions between SNF
  and NFs
• Distinction between SNF/NF Certification
  Requirements and Part B Payment Rules for NPs
• Interplay between federal law governing NP
  payment and state laws governing the licensure of
  nursing homes and Nurse Practice Acts

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Definitions and Distinctions

• Distinction between physician services vs.
  services that must be personally performed by a
  physician.
• NPs that are or are not employed by a Medicaid NF
• Supervision vs. Collaboration
• Collaboration vs. Collaboration Agreements

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Collaboration Versus Supervision

• Supervision implies some on site or direct
  oversight, and conveys a more hierarchical
  relationship.
• Collaboration is a joint and cooperative
  enterprise that integrates the individual
  perspectives and expertise of various team
  members.
• Some commonly identified themes of collaborative
  relationships include collegiality, teamwork,
  open communication, recognition of the other
  persons expertise, and a strong level of trust
  and respect.

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Definitions

• Physician collaboration is a requirement of
  participation in Medicare in order to bill for
  nurse practitioner services.
• Collaboration must adhere to state law and is
  generally defined as providing medical management
  of care with physician direction or supervision.
  
• There are no clear guidelines as to how this
  collaboration needs to be documented to meet
  Medicare guidelines.
• a formal written document or verbal agreement
• attempts should be made to optimize the skills of
  each party and to allow each participant to
  provide care within his or her scope of practice.

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Federal Survey and Certification of SNFs and NFs
Physician Services

• Statutory Source of the distinction between SNFs
  and NFs under 42 C.F.R., Section 483.40(e) and
  (f).
• Medicare SNFs SSA, Section 1819(b)(6)- carried
  forward older requirement that all SNF care must
  be under the supervision of a physician.

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• Medicaid NFs Section 1919(b) (amended by Section
  4801(d) of OBRA of 1990- NFs must require that
  the health care of every resident be provided
  under the supervision of a physician (or, at the
  option of a State, under the supervision of a
  nurse practitioner, clinical nurse specialist, or
  physician assistant who is not an employee of the
  facility but who is working in collaboration with
  a physician)

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Source of Section 483.40

• Adopted via 56 Fed. Reg. 48856 et seq (September
  26, 1991)
• HCFA intent to increase flexibility concerning
  physician services with increased delegation of
  tasks to physician extenders.
• Based on the statutory distinction physician
  supervision is required in SNFs but collaboration
  is permitted in NFS
• Even in SNFs regulations on alternating visits
  should allow for the effective utilization of
  what it called physician extenders in the
  nursing home setting.

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• Section 483.40(e)(1)(iii) requires SNFs to ensure
  care is under physician supervision
• Section 483.40(f) permits, at the states option,
  physician tasks (including those required to be
  personally performed by a physician) to be
  provided by an NP who is not an employee of the
  NF but who is working in collaboration

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• Collaboration to be defined in the same manner as
  the RHC/FQHC definition that was incorporated by
  reference for Part B billing purposes.
• Same cross reference is used with respect to the
  Medicare provisions permitting Part B billing by
  NPs.
• So Under the preamble to Section 483.40 and the
  Part B NP regs, the same collaboration concept is
  used.

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• Section 1861(aa)(6) of the SSA provides The term
  collaboration means a process in which a nurse
  practitioner works with a physician to deliver
  health care services within the scope of the
  practitioner's professional expertise, with
  medical direction and appropriate supervision as
  provided for in jointly developed guidelines or
  other mechanisms as defined by the law of the
  State in which the services are performed.
• Regulations further illuminate what this means.

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• For Part B Purposes under 42 C.F.R., Section
  410.75(c) collaboration means
•  (i) Collaboration is a process in which a nurse
  practitioner works with one or more physicians to
  deliver health care services within the scope of
  the practitioner's expertise, with medical
  direction and appropriate supervision as provided
  for in jointly developed guidelines or other
  mechanisms as provided by the law of the State in
  which the services are performed. 

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• (ii) In the absence of State law governing
  collaboration, collaboration is a process in
  which a nurse practitioner has a relationship
  with one or more physicians to deliver health
  care services. Such collaboration is to be
  evidenced by nurse practitioners documenting the
  nurse practitioners' scope of practice and
  indicating the relationships that they have with
  physicians to deal with issues outside their
  scope of practice. Nurse practitioners must
  document this collaborative process with
  physicians.

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•  (iii) The collaborating physician does not need
  to be present with the nurse practitioner when
  the services are furnished or to make an
  independent evaluation of each patient who is
  seen by the nurse practitioner.

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Supervision in SNFs vs. Collaboration in
NFsPhysician Services vs. Personally Performed
Physician Services

• Regulations
• Medlearn SE 0418 (Revised several times)
• Transmittal 808 (January, 2006)
• Key Point CMS links NP Part B Payment policy
  with SNF/NF Survey Requirements

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In SNFs Part A Stay

• Physician must perform the initial visit.
• NP may provide medically necessary interventions
  before the initial visit.
• Physician and NP may alternate mandatory
  visits
• Every 30 days during first 90 days
• Every 60 days thereafter
• Does not matter who employs the NP

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In NFs(Where permitted by State law at the
option of the State)

• An NP not employed by the NF
• May perform the initial visit
• May alternate mandatory visits with the
  physician
• If the NP is employed by the NP
• May not perform the initial visit
• May not do the mandatory visits
• In either case, the NP may provide medically
  necessary interventions and bill Part B

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MEDICARE

• BBA OF 1997
• Direct payment
• NP services in all clinical areas
• So long as permitted by applicable state
  licensure laws

• . . . but only if no facility or other provider
  charges or is paid any amounts with respect to
  the furnishing of such professional services.

OBER, KALER, GRIMES, SHRIVER
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NP Provisions

•         SSA 1861(s)(2)(K)(ii)
•         42 CFR 410.75 Nurse practitioners
  services
•         42 CFR 414.56 Payment for nurse
  practitioners and clinical nurse specialists
  services
•         Medicare Benefit Policy Manual Chapter
  15 200 Nurse Practitioner Services
• Medicare Claims Processing Manual Chapter 12 120
  Nurse Practitioner and Clinical Nurse Specialist
  Services

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Coverage Rules

• Transmittal 1734- Medicare Coverage Requirements,
  December 31, 2001.
• NPs may furnish include services that
  traditionally have been reserved to physicians,
  such as physical examinations, minor surgery,
  setting casts for simple fractures, interpreting
  X-rays, and other activities that involve an
  independent evaluation or treatment of the
  patient's condition.
• if authorized under the scope of their State
  license, NPs may furnish services billed under
  all levels of evaluation and management codes and
  diagnostic tests if furnished in collaboration
  with a physician.

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MEDICARE

• In addition to service provision NP may
• Order medically necessary therapy services
• Initial certifications and recertifications
• Order DME and certify medical necessity
• Bill for services and supplies provided incident
  to the NPs services under similar criteria as
  previously outlined Caution-ensure compliance
  with state law
• Prescribe medications

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Medicare Coverage Rules

• NPs who are not enrolled as Medicare providers on
  or after January 1, 2003, must
• Be a registered professional nurse who is
  authorized by the State in which these services
  are furnished to practice as a nurse practitioner
  in accordance with State law
• Be certified as a nurse practitioner by a
  recognized national certifying body that has
  established standards for nurse practitioners
  and
• Possess a masters degree in nursing.

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MEDICARE

• Collaboration with physician 42 C.F.R.
  410.75
• Physician to provide medical direction and
  appropriate supervision
• Physician does not have to be present when
  services furnished or make an independent
  evaluation of each patient

OBER, KALER, GRIMES, SHRIVER
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MEDICARE

• Amount
• 80 of the lower of
• Actual charge
• 85 of physician fee schedule

OBER, KALER, GRIMES, SHRIVER
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Medlearn Clarification

• SNF Part A payment does not include reimbursement
  for NP services of a kind otherwise performed by
  a physician.
• Not the same as nursing or administrative
  services for which the SNF is responsible, such
  as quality assurance, clinical teaching and
  services in support of a medical director.

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Medlearn Matters SE0418

• SNFs v. NFs Medicare v. Medicaid Different
  requirements under 42 CFR, Section 483.40
• NPs may bill for medically necessary services
  prior to the initial comprehensive visit.
• No physician payment for countersigning NP orders

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Medlearn Matters SE0418

• Where the NP is employed by the NF, the NP may
  not perform and bill for the initial
  comprehensive visit or the required visits
  monthly for 90 days, every 60 days thereafter.
• Can provide other visits as medically necessary.
• In a SNF, the NP may not perform the initial
  visit.
• In a NF, where the NP is not employed by the NF,
  the NP may be able to perform the initial visit
  depending on state law. E.g., Maryland does not
  allow it.

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Medlearn Matters SE0418

• Countersignature requirements determined by state
  law.
• Under federal law, an NP directly or indirectly
  employed by the SNF may not sign Part A
  certifications and recertifications. CMS
  clarification of indirect employment to exclude
  certain relationships, including independent
  contractor relationship. Be cautious about this
  rule where employed by an affiliated company.

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Medlearn Matters SE 0418

• NPs may certify Part B necessity.

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Key Medicare Transmittal 808 January 6, 2006
January 23, 2006 Implementation

• Revises the Claims Processing Manual, Section
  36.6.13
• Includes revised CPT codes for evaluation and
  management visits in skilled nursing facilities
  and nursing facilities.
• Links Part B coverage with Medicare and Medicaid
  Requirements of Participation pertaining to SNF
  and NF physician visits I.e. re medical
  necessity determinations.

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E/M Visits Based on Need

• May occur before or after Initial Visit
• So long as State Law permits it, may be performed
  by the NPP
• No limit on frequency so long as medically
  necessary

34
Visits Per Administrative Policy or State Law

• Insufficient justification for medical necessity

35
Carrier Review of Physician Visits

• Question What is the impact of the legislative
  directive to HCFA to develop methodology for
  presumption of medical necessity for physician/NP
  team visits on average 1.5 visits per month?
• See, Section 1842(b)(2)(C) of the Social Security
  Act, requiring the Secretary to develop this
  methodology in applying Section 1861(s)(2)(K) to
  reimburse teams on this basis.

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Other types of visits

• Initial Nursing Facility Care Codes 99304-99306
• Subsequent Nursing Facility Care Codes
  99307-99310 pertains even for medically complex
  care
• Other Nursing Facility Services Codes 99318 for
  annual assessment
• Effective January 1, 2006 Initial Visit Codes
  99301-99303, and Subsequent Nursing Facility Care
  codes 99311-99313, are deleted.

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Initial Visits

• Initial visit includes Comprehensive assessment
  visit during which the physician completes a
  thorough assessment, develops a plan of care and
  writes or verifies admitting orders.

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Billing Rules

• Codes are per day codes, I.e only one
  practitioner per day may bill for that days
  visit, including both the physician and NPP.
• Visits mandated by federal law, I.e. Requirements
  (Initial visit, monthly visits for first 90 days,
  every 60 days thereafter) are covered.
• Other visits covered when medically necessary.

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Billing Rules

• SNF or NF discharge codes are reported on the
  actual date of the E/M visit, even if the
  resident is discharged from the facility on a
  different date.
• Codes 99315-99316 may only be used to report a
  death pronouncement if the physician or NPP
  performed the pronouncement (the latter depending
  on whether state law permits it)

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Billing Rules Prolonged Services

• Prolonged Services, codes 99354-99357 may not be
  billed along with Nursing Facility Services
  Codes, commencing January 1, 2006
• (AMA has not determined typical/average times for
  Nursing Facility visits to permit prolonged visit
  codes)
• Until this is done, E/M visits for
  counseling/coordination of care for Nursing
  Facility Services that are time-based are based
  on key components history, exam and medical
  decision making.

41
Annual Nursing Facility Visit

• No longer an initial visit each year.
• Annual assessment is an Other Nursing Facility
  visit.
• Must be done on one of the mandated visits, I.e.
  it is not an additional, annual covered visit.

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Who submits the Claim?

• For a NP (or CNS), the NP (or CNS) may bill
  directly or reassign payment.
• PAs are prohibited from direct billing. Employer
  must always submit the claim.

43
Split Billing

• Not permitted in either a SNF or NF, with NPs and
  Physicians.
• Permitted in hospitals.

44
Place of Service Modifiers

• Use POS 31 if the resident is in a Part A stay,
  receiving covered services in a SNF
• Use POS 32 if Part A benefits are exhausted or
  the stay is not covered and the resident is in a
  NF.

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Billing in an Assisted Living Setting

• Assisted Living, Domiciliary Care is subject to
  separate codes 99321-99356
• POS Code 33
• See CMS Transmittal 1690 (2001) revised by
  Transmittal 1709 (2001)

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Place of Service Incident To Billing

• In a LTC facility must be in a discrete part of
  the facility designated by the physician as an
  office.
• Place of Service 11
• Codes that apply pertain to Office or Other
  Outpatient Codes 99201-99215

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Developing a Collaborative Agreement

• Thirty-four states actually require a
  collaborative practice agreement, and the
  specific content required within these agreements
  is based on state regulations
• The requirements describe what a nurse
  practitioner can do in a particular practice
  setting (1) the diagnosis, treatment, and
  management of acute and chronic health problems
  (2) ordering, interpreting and performing lab and
  radiology tests (3) prescribing medications,
  including controlled substances (4) receiving
  and dispensing stock and sample medications and
  (5) performing other therapeutic or corrective
  measures as indicated.

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Developing a Collaborative Agreement

• The relationship between the physician and the
  nurse practitioner should be well delineated
  within the collaborative agreement.
• The collaborating team must establish what their
  relationship will be-for example, how often the
  nurse practitioner and physician will interact,
  how that interaction will take place (i.e. face
  to face or via the telephone, email, etc.), and
  how the interaction will be documented (i.e.
  charts signed, log book kept).
• Make this realistic

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• Recommendations for Development and Use of
  Collaborative Agreements
• 1. Keep guidelines general avoid specifics
  except for procedures
• 2. Avoid setting specific time frames
• 3. Make it realistic
• 4. Read, sign, and know what the agreement states
  and adhere to it
• 5. Document evidence of adherence (i.e. keep
  record of consultations and narcotic prescribing)

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• 6. Provide a general list of treatable health
  problems, prescriptive abilities, and types of
  tests and procedures either ordered for patients
  or independently performed (or refer to scope of
  practice as outlined in other documents)
• 7. Know the scope of practice for the nurse
  practitioner within the state and make sure the
  agreement is in alignment with the current scope
  of practice
• 8. Provide documentation of nurse practitioner
  skills with regard to specific procedures
• 9. Add new providers to the collaborative
  agreement when they join the practice and update
  the appropriate agency (e.g. the State Board of
  Nursing, Department of Public Health)

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Prescriptive Privileges

• The collaborative agreement should outline the
  nurse practitioners prescriptive privileges.
• Done by listing drug categories (e.g.,
  antihypertensives, antipsychotics, schedules
  II-IV drugs) rather than specific names of
  medications.
• Follow/adhere to state regulations.

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Tricks of the Trade for Successful MD/NP
Collaboration Practice

• Communication
• Signing and discussion of the collaborative
  agreement should ideally be done face to face.
• Set up the communication lines-how often, what
  method (pager, phone, email), for what and when.
• Differences of opinion on the plan of care should
  never be aired in front of other staff, patients,
  or families. This should, however, be addressed
  privately as soon as possible between the
  collaborating physician and nurse practitioner.

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Make it Clear What the NP/MD Roles will Be

• NP Practice Options
• Takes calls from facilities or office practices
  and contacts physicians only as necessary
• Assesses patients with change in condition or
  inter-current illness
• Provides detailed assessment of the patient for
  physician review
• Maintains ongoing and up to date patient
  information
• Provides current updates on patients general
  health status
• Coordinates and facilitates specialty referrals
  and communication between specialists and primary
  care providers

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• Addresses pharmacy recommendations and
  rehabilitation referrals
• Speaks or meets with patients and families to
  address any health concerns and answer any
  questions about the care of the patient
• May participate in ongoing education of nursing
  staff to enhance quality of care delivered to
  patients
• May perform routine procedures as delineated by
  the collaborative practice agreement
• Can provide alternate (every other) regulatory
  visits in long term care settings, as
  appropriate.

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Who Will DO..

• Monthly visits?
• Family meetings?
• Health promotion activities?
• Pre op evaluations?
• Post fall evaluations?
• Quality assurance activities?

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Advantages to NP/MD Practice

• The true purpose of collaborative practice is to
  deliver comprehensive care, in any setting, that
  best meets the needs of a particular practice
  population.
• Better early detection/assessment and management
  of nursing relevant problems (e.g. bowel
  bladder).
• More comprehensive family communication.
• Physicians can see more complicated patients,
  perform additional services, or engage in medical
  direction activities/QA

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Barriers to Use of MD/NP Models

• Loss of income?
• Medicare reimbursement for visits is 15 less
  when provided by the nurse practitioner compared
  to a physician.
• This loss of income can frequently be offset by
  the combined ability of both parties to provide
  additional services and care for a larger number
  of patients.
• NP tends to do more case finding and
  prevention/early identification

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Barriers to Use of the NP/MD Model

• MD/Medical director worries about malpractice
• the actual number of lawsuits filed against nurse
  practitioners compared to physicians has been
  small.
• To prove a claim of malpractice against a health
  care provider, the patient (plaintiff) must prove
  four elements duty, breach of duty, proximate
  cause, and harm.
• To establish duty, the plaintiff must prove that
  the patient and the nurse practitioner
  (defendant) had an appropriate provider-patient
  relationship.
• There must be proof that the care provided by the
  nurse practitioner fell below the acceptable
  standard of care, i.e. that there was a breach of
  duty.
• The breach of duty must have been shown to be the
  predominate cause for harm to the patient.
• The physician, however, is not liable for any
  actions of the nurse practitioner that he/she did
  not specify.

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Government investigations of practices using NPs

• Indictment U.S. v. Ellegood, et. al, Case No.
  08CR00496CEJ, U.S.D.C. Missouri, filed August 21,
  2008 (allegations concerning physician billing
  for services rendered by NPs who lacked Medicare
  provider numbers and for which claims for home
  visits where the physician did not accompany the
  NP were submitted under the physicians name.
  Also allegations concerning claims submitted for
  services of an excluded provider, claims for
  services rendered in homes by nurses and claims
  for services rendered when the physician was out
  of the country)

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• Settlement U.S. Dept of Justice and Office of
  Inspector, U.S. Dept of Health and Human
  Services and Tricare and Caritas Carney Medical
  Group (June, 2008)
• Medical Group in Dorchester, MA, associated with
  Caritas Carney Hospital
• Allegations pertained to claims submitted under
  physician provider numbers versus NP provider
  numbers between 2000 and 2006.
• False Claims Act penalty 347,456 OIG
  Certification of Compliance Agreement

61

• Guilty Plea Health Essentials Solutions, Inc.,
  USDC, Western Dist. of KY (June, 2008). False
  Statements to Medicare
• Pertains to NP services in assisted living
  facilities billed as home care visits allegation
  is that the company did not advise its board of
  directors of legal advice concerning the proper
  site of service codes
• 3,105,931 in criminal restitution but recovery
  is doubtful due to the companys financial
  condition. Sentencing scheduled for September 15,
  2008

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Protective Actions

• Physicians NPs should each maintain their own
  liability insurance.
• Rigorously comply with the guidelines established
  in the collaborative agreement if required by the
  state.
• Document, document, document
• Encourage and facilitate communication

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Three ModelsAdvantages and Disadvantages

• Facility/Company Employed NPs
• Advantages
• More control over the selection of the NPs
• Greater ability to use NPs for medical services
  and other roles
• Potentially greater acceptance by nurses and
  medical staff
• Training and flexibility enhanced

64

• Facility/Company Employed NPs
• Company has to bear the cost
• Requires the facility to understand medical
  services billing and coding
• Requires enhancement of corporate compliance to
  include this dimension
• Limitation under federal requirements related to
  NF mandatory visits depending on company
  employment
• Medical staff may see this as competitive

65

• Physician Employed NPs
• Advantages
• Greater integration into medical practice
  support for medical director where this is the
  hiring practice
• Financial responsibility does not rest with the
  facility
• Existing knowledge of medical coding,
  documentation and compliance in medical group

66

• Physician employed NPs
• Disadvantages
• Less facility control may be other demands on NP
  time
• NP may have more limited role in non-medical
  services unless a separate contract for those
  services is signed
• Additional cost
• Stark and Anti-kickback compliance
• May be more difficult for the NP to provide
  additional support and back up for residents
  under care of other medical groups

67

• NP Practices
• Advantages
• More focused on NP services as a main function
  rather than incidental to medical services
• Physicians contracted to support the practice
  more likely to be supportive and integrated
• If mainly focused on facility based care, no
  conflict with office based practice
• May be seen as less threatening to medical
  practices otherwise supporting the facilitys
  residents

68

• NP Practices
• Disadvantages
• May more difficult to gain acceptance within the
  medical community
• Depending on situation with hospital privileges
  may be more difficult to follow residents into
  the hospital
• Depending on scope of practice may not be able to
  provide certain support such as employee health
  support
• Cannot act as medical directors

69
Conclusion

• What is needed to use NPs effectively in LTC
  facilities, in a time where there is increasing
  focus on quality of care, higher levels of NP
  training, greater need for collaborative,
  interdisciplinary teams and a decreasing number
  of geriatric practitioners?