May 22, 2018

Colorado Supreme Court: Governor’s Attestation Regarding Nurse Anesthetists Purely Administrative

The Colorado Supreme Court issued its opinion in Colorado Medical Society v. Hickenlooper on Monday, June 1, 2015.

Executive Powers and Functions—Standing.

To receive Medicare reimbursement, hospitals and other medical service providers must require certified registered nurse anesthetists (CRNAs) who administer anesthesia to do so under physician supervision. However, states may opt out of this requirement if the Governor submits a letter to the relevant federal agencies attesting that the opt-out is in the best interest of the state’s citizens and is consistent with state law. In 2010, Governor Bill Ritter, Jr. sent such an opt-out letter, which attested that Colorado law permits CRNAs to administer anesthesia unsupervised.

Here, the Supreme Court held that the Governor’s attestation to the federal agencies that Colorado law permits CRNAs to administer anesthesia without supervision is not a generally binding interpretation of Colorado law subject to de novo review. Instead, the attestation’s sole effect is to exempt certain Colorado hospitals from the federal physician supervision requirement. This decision, if reviewable at all, is reviewable only for a gross abuse of discretion. Because petitioners do not allege that such a gross abuse occurred in this case, the Court affirmed the court of appeals’ dismissal of petitioners’ claims.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Substantial Evidence Existed to Affirm Imposition of Penalties on Medicare Nursing Facility for Noncompliance with Regulations

The Tenth Circuit Court of Appeals published its opinion in Sunshine Haven Nursing Operations v. United States Department of Heath and Human Services on Friday, February 14, 2014.

Medicare is a federally funded health insurance program for the elderly and disabled. The Secretary of Health and Human Services is charged by Congress with administering the Medicare statute. The Secretary administers Medicare through CMS. Medicare Part A provides coverage to eligible persons for hospital services, including those provided by skilled nursing facilities (SNFs), such as Sunshine Haven Nursing Operations.

An SNF is eligible to enter into a “provider agreement” with CMS to participate in the Medicare program and receive reimbursements for providing covered services. Federal law requires that a skilled nursing facility must operate and provide services in compliance with all applicable federal, state, and local laws and regulations and with accepted professional standards and principles that apply to professionals providing services in such a facility.  “Substantial compliance” is a level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm. Noncompliance means any deficiency that causes a facility to not be in substantial compliance. A “deficiency” is a violation of a statutory or regulatory participation requirement.

CMS is charged with overseeing compliance with Medicare’s conditions of participation. Compliance is verified through unannounced inspections, called “surveys,” conducted on behalf of CMS by state survey agencies (SAs). If a participating provider is found to be out of substantial compliance, the SA presents a “Statement of Deficiencies” (SOD) to the facility. To the extent CMS concurs with the identified deficiencies, CMS may impose remedies against the provider. Remedies may include suspension of payment for new services, termination of a facility’s provider agreement, and disapproval for two years of a facility’s nurse aide training and competency evaluation program (NATCEP). If CMS imposes remedies, a provider may request a hearing before an ALJ and administrative review of the ALJ’s decision by the Departmental Appeals Board (DAB).

Sunshine contracted with CMS to provide Medicare services. In 2008, CMS received a complaint from a family member of a resident that Sunshine was not bathing her often enough. In response, CMS arranged for the New Mexico Department of Health to conduct a survey of Sunshine. The SA conducted surveys, found instances of noncompliance, and concluded that Sunshine was not in substantial compliance with conditions of participation. As a result, CMS issued Sunshine a denial of payment for new admissions, terminated Sunshine’s Medicare provider agreement, imposed four per-instance civil monetary penalties (CMPs) totaling $14,000, and withdrew its approval for Sunshine’s NATCEP for two years.

Sunshine sought administrative review. The ALJ found that Sunshine was not in continuous substantial compliance. Sunshine sought review by the DAB, which determined that the ALJ’s findings were supported by substantial evidence. The DAB’s decision is subject to judicial review.

The Tenth Circuit concluded that it had jurisdiction to decide Sunshine’s challenges to the four per-instance CMPs, but did not have jurisdiction over its challenges to the other remedies imposed on Sunshine.

Addressing the CMPs, in February 2009, it was found that one resident’s actions, (“R50’s”) actions toward Resident 6 (R6) constituted sexual abuse and Sunshine took immediate steps to investigate and rectify the situation. This included (but was not limited to) calling the police, who came to Sunshine and warned R50 that he could be arrested for felony assault and to leave the women alone. Sunshine also updated R50’s care plan to specify 30-minute whereabouts checks. Sunshine transferred R50 to another facility on February 5. Between January 4 and February 5, however, Sunshine saw R50 in the hall with R18 five times and the SA saw them together on two other occasions during a survey. On some of these occasions, R50 was holding R18’s hand or kissing her. Each time Sunshine found the two residents together, it separated them.

The regulations specify that each resident has the right to be free from verbal, sexual, physical, and mental abuse. SNFs must take reasonable and effective steps to prevent abusive acts, regardless of their source. CMS found that R50’s assault on R18 constituted physical abuse in violation of the regulations. CMS imposed two $5,000 fines (CMPs). The ALJ found that Sunshine’s interventions were ineffective to prevent Resident 50 from abusing Resident 6 and to prevent several subsequent instances of Resident 50 having contact with Resident 18. The DAB upheld this finding.

The Tenth Circuit concluded that substantial evidence supported the Secretary’s findings of noncompliance underlying the two $5,000 CMPs arising from the February 5, 2009 survey. Because the court affirmed the two $5,000 fines, the Secretary’s disapproval of Sunshine’s nurse aide training and competency evaluation program (NATCEP) was proper because the disapproval of a facility’s NATCEP is mandatory when a CMP is $5,000 or greater.

CMS further determined that Sunshine failed to respond properly to ankle injuries that a 95-year-old resident, R4, which was surveyed on April 2.  Sunshine argued that the deadline to correct the February 5, 2009 deficiency had not yet expired as of the April 2 survey. Accordingly, Sunshine contended, CMS should not have relied on the additional deficiencies cited under the same regulation in the April 2 survey to impose additional CMPs. However, the April 2 surveys were based upon different facts, and the regulations were not designed to insulate facilities that fail to properly care for residents during a period of correction from findings of noncompliance. The Tenth Circuit therefore concluded that the findings and conclusion of noncompliance underlying the CMPs imposed based on the April 2, 2009 survey were supported by substantial evidence.

The court transferred the issues over which it lacked jurisdiction under 42 U.S.C. § 1395cc(h)(1)(A) to the United States District Court for the District of New Mexico.

Tenth Circuit: District Court Lacked Subject Matter Jurisdiction Because Hospice Provider Failed to File Timely Administrative Appeal

The Tenth Circuit published its opinion in Full Life Hospice, LLC v. Sebelius on Friday, February 26, 2013.

Full Life Hospice is a hospice care provider participating in the federal Medicare program. Over a number of years, it provided hospice care services to terminally ill Medicare beneficiaries and sought reimbursement for these services from the Department of Health and Human Services (HHS). A fiscal intermediary, acting on behalf of HHS, contested some of the reimbursements and demanded repayment of funds that it claimed were distributed in excess of a spending cap. Full Life then unsuccessfully challenged the intermediary’s determination through an administrative appeal, which was denied as untimely. On appeal to the district court, the court found no basis to excuse Full Life’s untimely appeal. Full Life appealed.

If a provider such as Full Life “is dissatisfied with a final determination” made by a fiscal intermediary and the amount in controversy exceeds $10,000, the provider can request a hearing on the matter with the Provider Reimbursement Review Board (the Board). 42 U.S.C. § 1395oo(a)(1)(A)(i), (a)(2). A provider is required to file a request for such a hearing with the Board “within 180 days after notice of the intermediary’s final determination.” Id. § 1395oo(a)(3). Under limited circumstances, the Board can extend the 180-day time period upon a “good cause showing by the provider.” 42 C.F.R. § 405.1836(a).

In this case, Full Life conceded it filed an administrative challenge to the notices more than 180 days after Full Life received the notices from the fiscal intermediary. Accordingly, the Tenth Circuit agreed that the district court lacked subject matter jurisdiction because of Full Life’s failure to file a timely administrative appeal.

Full Life also appealed the district court’s denial of the motion to amend its complaint. However, granting the amendment would have been futile because the amended complaint would have also been subject to dismissal as time-barred under the 180-day rule.


Colorado Court of Appeals: Governor Had Right to Opt-Out of Physician Supervision Requirement for Certified Registered Nurse Anesthetists

The Colorado Court of Appeals issued its opinion in Colorado Medical Society v. Hickenlooper, Governor of Colorado on July 19, 2012.

Dismissal for Failure to State a Claim—Social Security Act.

The Colorado Medical Society and Colorado Society of Anesthesiologists (collectively, Doctors) appealed the district court’s order dismissing their complaint for failure to state a claim against the Colorado Governor John Hickenlooper. The Colorado Association of Nurse Anesthetists, Colorado Nurses Association, and Colorado Hospital Association (collectively, Nurses) joined the Governor’s motion to dismiss. The order was affirmed.

Under the Social Security Act (Act), ambulatory surgical centers, hospitals, and critical access hospitals must fulfill certain conditions of participation to receive Medicare reimbursement. One condition is that certified registered nurse anesthetists (CRNAs) administering anesthesia must be supervised by a physician. However, states may opt out of the physician supervision requirement if “the State in which the [facility] is located submits a letter to [the Centers for Medicare and Medicaid Services] signed by the Governor, following consultation with the State’s Boards of Medicine and Nursing, requesting exemption from physician supervision of CRNAs.” The letter must attest that the Governor consulted the Boards and concluded the opt-out “is in the best interests of the State’s citizens” and “consistent with State law.”

Fifteen other states have opted out of physician supervision of nurses administering anesthesia. On July 19, 2010, former Governor Bill Ritter, Jr. requested advice from the Colorado Medical Board and the Colorado Board of Nursing about whether the opt-out was consistent with the law and in the best interests of Colorado’s citizens. In August, both recommended the opt-out. On September 27, 2010, Governor Ritter notified the Centers for Medicare and Medicaid Services about his consultation with the Boards and exercised the opt-out as to all critical access hospitals and thirteen rural general hospitals (later adding a fourteenth).

On September 28, 2010, the Doctors filed this action for declaratory relief, arguing the opt-out was inconsistent with Colorado law. The Nurses intervened and joined Governor Hickenlooper in a motion to dismiss. The district court granted the motion to dismiss, and the Doctors appealed.

The Court of Appeals first rejected an argument raised only by the Colorado Hospital Association: that the decision to opt out is “a decision committed to political branches and is not subject to judicial review.” The Court found no “textually demonstrable constitutional commitment” that expressly or impliedly vests the Governor with the sole discretion to determine whether CRNAs may administer anesthesia without physician supervision.

The Court rejected the Governor’s argument that the Doctors lacked standing to challenge the opt-out decision. The Court found the Doctors’ alleged injuries to their medical licenses and reputations sufficient to establish both tangible and intangible injuries concerning a legally protected interest (their medical licenses).

The Doctors argued it was error to dismiss their complaint, contending the Act requires physician supervision of CRNAs because (1) anesthesia is a medication; (2) medication is part of a medical plan; and (3) the administration of anesthesia is a “delegated medical function” subject to physician supervision. The Court disagreed, noting that the Act defines professional nursing as, in part, the performance of “delegated medical functions.” Such a function is defined, in part, as “an aspect of care that implements and is consistent with the medical plan as prescribed by a licensed or otherwise legally authorized physician.” Physician supervision is required when a nurse performs a delegated medical function. A CRNA, however, is an “advanced practice nurse,” which means a professional nurse “who obtains specialized education or training.”

The Court agreed with the district court that the Doctors’ argument cuts too broadly, because a CRNA never would administer any treatment unless implementing a medical plan. In addition, the Act’s definition of “practice of professional nursing” clearly recognizes many independent functions that are different from delegated medical functions. The Court concluded that CRNAs who administer anesthesia are conducting independent nursing functions within the scope, role, and population focus that the Nursing Board has approved for them. They are not conducting delegated medical functions and therefore do not require physician supervision. The order of dismissal was affirmed.

Summary and full case available here.

Consumer Fraud Alert: Fraudulent Medicare Callers Are Robbing Bank Accounts

According to the Denver DA, there has been a rash of phone calls from solicitors claiming to be from the “Senior Medicare Card Office” who are manipulating Medicare beneficiaries into revealing their bank account numbers. Once they have obtained this information, the solicitor then goes on to steal money from the beneficiary’s bank account.

The caller initially explains that the beneficiary will be receiving updated Medicare cards within the “next three to five days,” but first, the beneficiary must verify personal information over the phone, such as name, address, and other information. As a lure to get the banking account number, the caller then reads the root number of the person’s bank (the first series of numbers on a check), then asks the beneficiary to complete the sequence by providing the numbers of their actual banking account. The caller’s tone is particularly authoritative, and if the beneficiary does not readily comply, an alleged “supervisor” is put on the line to exert additional pressure.

Remember that Medicare will never, ever call on the phone or knock at a door. New Medicare cards will only be issued when a beneficiary initiates the request for a lost or stolen card. And, aside from setting up a direct deposit account to receive a Medicare check, Medicare does not need personal bank account numbers. This is only true if the bank account in which the Medicare check is to be deposited has changed, but the change must be initiated by the beneficiary.

 Other tips:

  • Never give out personal or financial information, regardless of who calls.  If in doubt, call the number of a legitimate business using information obtained from a legitimate source – In this case: 1-800-MEDICARE (1-800-633-4223)
  • If you have caller ID, write down the number.
  • Be assertive and hang up the phone! It’s shrewd to be rude.
  • Contact the Senior Medicare Patrol investigators at 1-800-503-5190.  Be sure to document the event.

Denver DA’s Fraud Line: 720-913-9179

13th Annual Senior Law Day a Resounding Success

On Saturday, July 23, nearly 900 seniors, adult children, and caregivers attended the Thirteenth Annual Senior Law Day at the Merchandise Mart in Denver. Senior Law Day offers the public the opportunity to hear from experienced elder law attorneys and other professionals involved in elder care issues.  This year, there were twenty-eight different short, informative workshops to choose from that helped seniors learn how to better manage family and financial issues and prepare for retirement.

The tremendous number of resources and educational workshops available not only benefit seniors in our community, but also adult children and caregivers who are helping aging parents, relatives, and friends.

New workshops this year included “DNR Orders, Advance Directives and End of Life Issues,” “Planning for Your Pets,” “Dealing with Trusts & Trustees,” and “Nontraditional Domestic Relationships.”

Attorney Carl Glatstein, the program chair for the event, described the event as way for attorneys and other professionals to provide “relevant and important information to seniors and present it in a way that is easy for people to understand.”

In addition the informative seminars, there were nearly 50 organizations and companies in the Exhibitor area that provided information and resources relevant to seniors.

Much of the content presented at Senior Law Day also can be found in the comprehensive 2011 Senior Law Handbook, distributed to all who attend the event.  The handbook is written by Colorado attorneys and professionals who donate their time to provide this valuable resource, published by the Colorado Bar Association Continuing Legal Education (CBA-CLE).

Senior Law Day couldn’t happen without the incredible number of volunteers who not only helped during the day of the event, but also with organizing, planning, setup, and clean up. There were more than 70 volunteers from the legal community who dedicated their time to the event – thanks so much for helping to make the day so successful!

The event continues to grow each year and Boulder County and Larimer County are each holding a Senior Law Day in their communities on August 13.  Jefferson County held their event in June and other counties around the state will be holding events in the fall. Click here to view information about the upcoming Senior Law Day events around the state.

Senior Law Day is co-sponsored by the Elder Law Section and the Trust & Estate Section of the Colorado Bar Association, and CBA-CLE. A $10 contribution is suggested but not required to attend the event.

We look forward to seeing you in Denver again next year!

Click here to view more pictures from the event.

Resource: 2010 Medicaid, Medicare Updates Available

If you own CBA-CLE’s Elder Law Handbook, you may be interested in how recent changes to Medicaid and Medicare affect your clientele. The forthcoming 2010 Senior Law Handbook contains important updates to these topics, which we are making available for download here and here.