Nursing Homes’ Medical Directors Should Prepare for New Expectations
By Paula G. Sanders, Esq. and Mark L. Mattioli, Esq., Health Care Practice Group, Post & Schell, P.C.
Nursing homes should be preparing their Medical Directors to participate in the survey process if they are not already doing so. In its most recent revisions to the nursing home survey Entrance Conference Worksheet, the Centers for Medicare and Medicaid Services (CMS) added the Medical Director to the list of key personnel for whom the surveyors must obtain locations and phone numbers immediately upon entrance. In growing recognition of the important role of the Medical Director, CMS has also instructed surveyors to include a discussion of the Medical Director during the Entrance Conference:
- Ask the Administrator to make the Medical Director aware that the survey team is conducting a survey. Offer an opportunity to the Medical Director to provide feedback to the survey team during the survey period if needed.
CMS, Entrance Conference Worksheet, Task 8, (Oct. 2022).
This is a marked improvement from the days when some surveyors did not want to talk to Medical Directors during surveys and is indicative of the government’s heightened focus on quality of care.
In amending its Long-Term Care regulations regarding the qualifications and duties of physician Medical Directors, the Pennsylvania Department of Health (Department) signaled its increased expectations for medical directors and their involvement with the nursing homes they serve. The revised regulations substantially expand the Medical Director’s responsibilities beyond those already required by 42 C.F.R. § 483.70(h) to include:
- Ensuring the appropriateness and quality of medical care and medically related care.
- Assisting in the development of educational programs for facility staff and other professionals.
- Working with the facility’s clinical team to provide surveillance and develop policies to prevent the potential infection of residents in accordance with the infection control requirement under 42 CFR § 483.80 (relating to infection control).
- Cooperating with facility staff to establish policies for assuring that the rights of individuals are respected.
- Supporting and promoting person-directed care such as the formation of advance directives, end-of-life care, and provisions that enhance resident decision making, including choice regarding medical care options.
- Identifying performance expectations and facilitating feedback to physicians and other health care practitioners regarding their performance and practices.
- Discussing and intervening, as appropriate, with a health care practitioner regarding medical care that is inconsistent with current standards of care.
- Assisting in developing systems to monitor the performance of health care practitioners, including mechanisms for communicating and resolving issues related to medical care and ensuring that other licensed practitioners who may perform physician-delegated tasks act within their scope of practice.
28 Pa. Code § 211.2 (d)(3)-(10)(eff. 7/1/2023).
Additionally, a Medical Director must hold a Pennsylvania physician license and complete four (4) hours annually of continuing medical education (CME) pertinent to the field of medical direction or post-acute and long-term care medicine. 28 Pa. Code § 211.2(c). Surveyors will be looking to the nursing home for acceptable proof that its Medical Director has completed this annual training. Such proof may include copies of the CME certificate or a registration/attendance confirmation form.
Questions have been raised about whether a facility is required to pay for this CME, and the short answer is no. Pennsylvania already requires physicians to complete 100 credit hours of CME every biannual cycle in a variety of different areas. Long-term care can simply be one of them.
Nevertheless, to attract high quality Medical Directors, some facilities may wish to offer CME credit as part of their Medical Director compensation package. When offering to pay or reimburse a Medical Director for CME credits, several issues need to be considered. Specifically, any payment must comply with both the Anti-kickback Statute (AKS) and the Ethics in Patient Referral Law (Stark) which applies to Part B services provided by nursing homes.
Moreover, a facility must evaluate the total compensation package to ensure it is within parameters so as to comply with the AKS Safe Harbors and Stark Exceptions. Basically, the overall compensation, including any stipend for CME, must be set at fair market value (FMV). The Health and Human Services Office of Inspector General (OIG) declined to create a general safe harbor for the provision of free CME by facilities and instead takes the position that any free CME offered by a facility must be evaluated on a case-by-case basis. Likewise, there is no general CME exception under Stark and the Medical Director agreement must otherwise fall within the personal services exception.
Facilities and their Medical Directors should review and revise their written agreements to ensure compliance with these new requirements and expectations.
Disclaimer: This article does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this article without first seeking the advice of counsel. Any views or opinions presented in this article are solely those of the authors and do not necessarily represent any policy or position of PAMED, PMDA, AMDA, its affiliates, and members.
