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FHCA 2012 Annual Conference
Hilton Hotel • Orlando, FL
Tuesday, July 31, 2012 - 2:30 pm - 4:30 pm
LEARNER OBJECTIVES
CE Session #15
What Will They Think of Next – Legal Issues Currently on the Front Burner with the Federal Government
Upon completion of this presentation, the learner will be able to:
Review changes in the federal law and its interpretation relative to long term care providers; Understand what appears to be conflicts in state and federal law relative to long term care providers; and Gain the tools to analyze pertinent legal issues that arise in nursing homes and assisted living facilties.
PRESENTER(S):
Karen Goldsmith is a partner in Goldsmith & Grout, PA, and has been Florida Health Care Association’s Legal Consultant since 1980. She is actively involved on the American Health Care Association Legal Subcommittee, and served as its chair for three years. She is a member of the American Health Lawyers Association, and served as chair of its Long Term Care Division for two terms. Karen has also served as editor-in-chief of the American Health Lawyers Long Term Care Handbook and is a principal in Health care Case Law.com.
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Presented by:KAREN L. GOLDSMITH, ESQ
Goldsmith & Grout, P.A.P.O. Box 875
Cape Canaveral, Florida 32920Direct line: (321) 613-2979Cell Phone: (312) 312-4938
FLORIDA HEALTH CARE ASSOCIATION ANNUAL CONFERENCE
JULY 30, 2012Hilton Orlando
INDEPENDENT INFORMAL DISPUTE RESOLUTION
IIDR
When provider has escrowed CMP
January 1, 2012 - CMS may require all CMP’s to be escrowed
Currently only requiring when IJ level
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Must request within 10 days of CMS letter giving right
May only request one – IIDR or IDR
Must supply exhibits with request
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Organize, highlight and index
Include narrative
Transmit electronically to State
State ends to IIDR reviewer
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Conducted by Michigan PRO
Single reviewer
Facility makes presentation
By telephone
State Office and Area Field Office may listen in but not involved
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Reviewer may ask questions
Limited to one hour regardless of number of issues – prioritize
Attorney can be present but cannot comment
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MPRO has 28 days to make recommendation to State
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State may accept recommendation, reject or modify
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If accepted Pat Hall sends letter to Facility
CMS may override
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If rejected, AHCA must send written objections to CMS who makes final decision
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Process can take 60 days which gets Facility into time for deciding if hearing will be requested
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IIDR IDR
Only permitted when CMP escrowed
For any citation
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IIDR IDR
Documents submitted with request
Documents submitted before conference
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IIDR IDR
By conf call with single reviewer
Usually by conference call with panel of 3-4May be in person
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IIDR IDR
Area Office may be on call – does not participate
Area Office participates on call and person on panel
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IIDR IDR
Reviewer makes written recommendation to supervisor
Panel makes decision
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IIDR IDR
Supervisor makes recommendation to AHCA
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IIDR IDR
If AHCA agrees Pat Hall sends letter
Pat Hall sends letter
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IIDR IDR
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If disagree, AHCA sends written comments to CMS
CMS “breaks tie” or can make independent decision
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CMS CAN ALWAYS OVERRIDE AHCA
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II ELOPEMENT
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Federal definition: …occurs when a resident leaves the premises or a safe area without authorization…and/or any necessary supervision to do so…”
MS Care Case:Foreseeability a necessary factor – do you know or should you know that the resident may elope
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Exit doors – do you have coded doors
Must know everyone who has codeNeed policy and procedure
for giving code out, changing code – implement themMust limit who has code
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If sign-in sheet consistently signMust be at all doors if oneEducate visitors not to let anyone outDoor alarms augment supervision – not replace it
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Cameras◦If you have them they must be operational◦Must be monitored◦If you think you need them must properly use them
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Condition of resident determines extent of dangerLocation and geography of facility is criticalGetting person back in the building may not be enoughFacility may choose methods of protecting resident
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III CALL BELL SYSTEMS
Must have audible and visual systemMust be between nursing station and rooms and bathrooms
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No room for interpretation
System must work – isn’t this strict liability
Can be in substantial compliance so long as procedures in place to prevent harm
CMS need not establish that you were negligent or system intentionally broken
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Bells must be:
In working order
Distributed to all residents involved who are capable of using them
If refused by resident have an alternative
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Communication:
Must be 2-wayWalkie talkies good ideaStaff must be able to be notified instantly if problem occursMay be made by anyone
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IV REPORTING ALLEGATIONS OF ABUSE
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Keyword here is allegation
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Case example 1
New resident – came in late in day
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Next day told staff she had seen someone climb into roommate’s (R2) bed during the night
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R2 said that was absurd and no such thing happened
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No statement R2 called out, that the alleged perpetrator touched the resident
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Could have been staff member straightening bed
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Investigated but not immediately reported
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No male aide in the building who fit the description resident gave
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Could this have been an observation?
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A deficiency – perhaps – but IMMEDIATE JEOPARDY?!?!?
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Resident had male visitor
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Case example 2
CNA observed visitor patting her in her clavicle area
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Asked him what he was doing
He said he was a distant cousin
Said resident was trying to speak and he was helping her
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Not observed touching any private body parts
Resident could not speak
CNA told visitor speech therapy was working with her and he stopped
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Second incident:
Same visitor
2 weeks later
Observed rubbing resident’s thigh and stomach
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Housekeeper asked what he was doing and he said she was complaining of pain and he was massaging the area involved
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Housekeeper observed him until he left and reported incident
Investigation ensued
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Facility did investigative reports and used the word “chest” for the first incident
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Surveyor apparently liked the word “breast” better and put that in 2567
No allegation anywhere visitor touched her breast
CNA marked area on body chart – in clavicle area
IIDR held – left without change
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Case example 3:
Resident in room next to nurses’ station
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Shouted out that she was raped
Nurse went immediately to her room
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Middle of the night
Nurse observed nothing out of the ordinary
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Nurse stayed with her for the rest of the night
No male staff on duty
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Doors locked
Resident said she had had a bad dream
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No signs bedclothes or resident’s nightgown disturbed
Facility got 4 IJ’s which were upheld
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MORAL OF THE STORY –REPORT ANY ALLEGATION OF
ABUSE
V Neglect/Negligence
Negligence and neglect are 2 different things
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Negligence has 4 elements:
Duty
Breach of duty
Harm
Nexus between the harm and the breach
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Neglect does not require harm – only potential for serious harm
Harm may be:PhysicalMental
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reasonable man standard applied
condition of resident will be considered
Resident needs are foremost
VI Preparing for discharge or transfer
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Documentation is the keyEspecially true if resident no
longer needs care of your facilityThink about reason you useCan your records support itThink about where you are
discharging or transferring to
Can you send resident to a shelter
MAYBEDocument appropriateness of placementDischarge planning must be detailed
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Liability for residents who leave premises
Document attempts to get resident to follow rulesIf not there for medication pass, be sure you care planCan you make concessions? If so, need order
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If wheelchair bound does he know how to use wheelchair and have you counseled
If uses public transportation – is it safe?
How are you dealing with a restricted diet
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physician not
Care plan team is critical part of this
If violating policies and procedures cannot ignore this
Need social services involvement
Family involvement where appropriate
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NoticeMake sure you check the reason you can prove
Make sure documentation is complete
Make sure you have appropriate placement
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VII UP TO THE MINUTE NEWS
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You can get a CMP going back to the first day of noncompliance (up to a year)
Providers rarely beat CMS
Credibility is an issue
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IIDR is turning out to be not all it was cracked up to be but it beats IDR
State standards for review are less stringent than CMS
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VIII MEDICAL DIRECTORA. Being forced to take a more
significant role in facility operationsB. Contract must be for a
minimum of one year – or if cancelled cannot be renegotiated in that one year period – Anti Kickback Statutes (state and federal)
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C. Cannot base fee on referralsD. Responsible for overall medical
and nursing careE. Must know and understand
policiesF. Must play a role in developing
and implementing policiesG. Coordinates physicians in the
building
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H. Some typical responsibilitiesa. Serves on various committees
which are medically relatedb. Reviews grievancesc. Integral part of grievance
proceduresd. Reviews incident and accident
reportse. Emergency management
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f. Medical auditsg. Quality assuranceh. Oversees work of consultants
such as therapy and pharmacy
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i. Last medical director contract we prepared had 30 responsibilities
I. May be cited under medical director tag
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VII ROOT CAUSE ANALYSISA. Often required by CMS in
problematic surveysB. First identify the issue:
a. It may not be the obvious
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b. You may only have limited knowledge of what surveyors thought was the problem
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C. Gather the data you need to analyze:
a. Put it in logical orderb. Highlightc. Annotate d. Keep clean copy
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D. Gather a team together to analyze the information
a. Could be ethics committee
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b. Need multiple disciplines so have a broad overview
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E. Brainstorma. No idea is a dumb idea
or said another wayb. NO idea is a dumb idea
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c. Encourage participationd. Prioritize ideas
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F. Vote on what the root cause really is
a. In one case company vpsaid it was lack of support from home office
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b. Would that really be the root causec. Could it just as easily be
facility failure to adequately use resources
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THANKS TO ROBIN BLEIER FOR HER ASSISTANCE IN PREPARING THE ABOVE ROOT CAUSE ANALYSIS SECTION
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VIII ADULT PROTECTIVE SERVICES
A. Investigates allegationsB. If find some evidence of abuse
or neglect but cannot identify alleged
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perpetrator may initiate investigation of administrator, director of nursing or nurses in general with respective boards
C. May even include medical director
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IX WHAT ELSE IS NEW
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California Class Action Law Suit
