The cornerstone of the Affordable Care Act of 2010 is the integral role physicians are required to play to coordinate the care of patients with the goal of achieving high quality of care and efficiencies. The call for strong and active physician involvement is even more pronounced in nursing homes.
On the healthcare front, nursing homes are one of the most highly regulated of industries with the Center for Medicare and Medicaid Services imposing significant monetary penalties and even closing facilities for substandard care. With this backdrop, the nursing home population of today does not simply resemble that of the traditional long-term stays.
The mainstays vary from subacutes and clinically complex residents discharged “quicker and sicker” from the hospitals to younger short-term rehabilitation-driven residents. The vagaries in the population present their own unique challenges. To meet this test, physicians are required to be highly skilled and experienced in geriatric care and chronic care conditions in order to manage the complex clinical care needs. This is particularly so in an environment of intense regulatory and public scrutiny.
Active physician involvement is critical to the quality of care provided to nursing home residents. Every aspect of a physician’s role in a nursing home—including the development and oversight of medical staff bylaws and policies, the review of physician privileges, the direct care and management of a resident’s care, and the compensation paid to physicians—is governed by federal and state regulations and guidelines.
With the shift in the focus of government investigations from fraud and abuse to quality of care issues and the proliferation of nursing home negligence cases, there is a call in the industry for strong on-site physician engagement.
The medical director
The clinical administrator required in nursing homes is the medical director, who is, professionally, responsible for the implementation, coordination and management of clinical care delivered at the facility. The nursing home compensates medical directors for the services based on a pre-determined, fixed fee, set in advance that reflects the fair market value of the hours and scope of services to be performed. In accordance with the federal regulatory scheme, the compensation cannot be tied to the value or volume of referrals to the nursing home.
The medical director’s position does not require direct patient care. An active director serves as the clinical leader who monitors, identifies, and manages clinical deficiencies. A strong clinical leader ensures attending physicians actively supervise and manage their residents’ conditions so a referral to a hospital emergency room can be prevented. In today’s environment, hospitals frown upon nursing home readmissions given that hospitals are being penalized. Active physician involvement brings about a symbiotic partnership between nursing homes and hospitals.
Physicians caring for residents
Federal and state regulations require physician involvement from the outset of a resident’s admission, which is typically precipitated by a physician’s admitting order. A physician is assigned to manage and make clinical decisions concerning the resident’s care.
Residents do have the right to select a physician of their choosing. A non-staff physician would require privileges to be granted in accordance with the facility’s medical staff by-laws. In the absence of such an election, a resident may be assigned to a physician who covers that particular floor.
The federal regulations dictate the frequency of the physician visits and so, too, does a significant change in the resident’s condition. During the first 90 days the resident is required to be seen every 30 days and, thereafter, once every 60 days, unless sooner is required. Regardless of the regulated timeframes, there is an expectation that the resident is being regularly monitored and that necessary medical services are available 24 hours a day.
Based on the initial assessment performed by the attending physician, the physician becomes integrally involved in developing an individualized comprehensive plan of care. Essentially, the care plan is tantamount to a roadmap that encompasses the panoply of ancillary services and treatment modalities ordered by the physician and other members of the interdisciplinary care team to address the resident’s care needs.
In accordance with the regulatory authority, the care plan must be periodically updated to reflect a significant change in condition. The physician is required to conduct periodic reviews of the medication administration and when necessary, taper, alter, or discontinue the medication in order to avoid adverse clinical reactions. The physician also reviews lab results and orders tests, as necessitated by the condition. Active involvement requires physicians to engage in discussions with their residents involving discharge/transfer to alternate levels of care.
Physicians typically bill third-party payers directly for the professional services rendered to the residents. In the case where the nursing home is paid by a third-party payer, an all-inclusive payment rate that includes the physician’s services, and the physician has ordered ancillary services, such as physical, speech, or occupational therapy, a physician services agreement is required with the nursing home that is compliant with the federal and state Physician Self Referral Laws and the federal and state Anti-Kickback Laws.
It is clear that active medical direction leads to greater medical staff engagement with residents with the result being better clinical outcomes. Engaging physicians to manage their residents in nursing homes will bring us one step closer to achieving the goals of the Affordable Care Act of 2010.
Howard Fensterman, Esq., is the managing partner at Abrams Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP, which services clients throughout the New York metropolitan area from offices in Lake Success, Long Island, New York City, Rochester, and Brooklyn. He is involved in all facets of the law firm’s practice and represents healthcare professionals and facilities in a variety of matters, including professional misconduct and enforcement actions by state and federal regulators.
Betsy Malik, Esq., is a partner at Abrams Fensterman. She focuses her practice on representing a variety of healthcare providers on regulatory, compliance, and transactional matters. Her clients include nursing homes, dialysis facilities, diagnostic and treatment centers, ambulatory surgical centers, pharmacies, home care agencies, adult care facilities, physician groups, management companies, and other ancillary providers.