In 2013, according to the Department of Health and Human Services, 44.7 million people in the United States, one in 7 people, were over the age of 65. Seniors comprised 14.1% of the population, up 24.7% since 2003. By 2040, 21.7% of the population will be over the age of 65, and they will total 98 million by 2060. By 2050, the World Health Organization reports that the global population of seniors is projected to total 1.5 billion. By approximately 2018, the population above 65 will exceed the population below age 5 for the first time in the history of census data collection. That gap is expected to widen with fewer and fewer younger members of society to support and care for their senior family members. Combine these statistics with the medical issues related to living longer and the increasing work and family demands on caregivers and the formula is compelling when considering the demands that will be placed on the long term care industry. We are facing an enormous growth in services for the aging sector of our society.
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Title VII of the Civil Rights Act of 1964 prohibits employers of 15 or more employees and engaged in interstate commerce from discriminating against employees on the basis of sex, in addition to other categories. Sex discrimination prohibited by Title VII includes pregnancy discrimination. This blog post addresses how the Equal Employment Opportunity Commission (“EEOC”) may have misapplied Title VII in the context of lifting restrictions at a nursing facility.
On January 11, 2018, Judge Steven Merryday, United States District Court judge for the Middle District of Florida, vacated a False Claims Act (“FCA”) judgment for $350 million against 53 nursing facilities.1 The purported FCA violation was for failure to maintain comprehensive care plans and other documentation as required by Centers for Medicare and Medicaid Services (“CMS”) regulations. The whistleblower’s claim relied on the implied false certification theory endorsed by the U.S. Supreme Court in Escobar.2 What the whistleblower did not contemplate was Judge Merryday’s astute materiality and scienter analysis. Importantly, Judge Merryday’s analysis illustrates a workaround for long term care facilities (“LTC”) facing FCA claims.
Multi-million dollar settlements in False Claims Act (FCA) cases against long term care (LTC) facilities made headlines several times in 2017. I have blogged several times on the FCA and could not allow this trend to go without comment.
Long term care (“LTC”) facilities across the country are fortunate if they have not either received family requests to place cameras in their family member’s room or been presented with the results of video recordings. Currently, Texas, New Mexico, Washington, Oklahoma, Utah and Illinois are states with legislation on video cameras in resident rooms. The Departments of Health for Virginia and Maryland promulgated guidelines on camera use in resident rooms at the direction of their legislatures. In the past few months, two more states have joined the chorus.
Have you ever read a brochure for a resort, college, or apartment complex and expected everything it said to be completely and totally accurate without any caveats? In the Commonwealth of Pennsylvania, a chain skilled nursing facility is under attack for representations it made in its marketing materials.
On June 28, 2017, the U.S. House of Representatives passed the Protecting Access to Care Act of 2017 (“Act”). The purpose is essentially to engage in federal tort reform to lower recoveries against health care providers. The Act applies to liability claims about diagnosis, assessment, prevention or treatments for disease or impairment rendered by health care providers and provided, in whole or in part, through federal programs, subsidies or tax benefits.
Anyone who follows this blog knows that I am an advocate for arbitration agreements because of the benefits they offer parties to a dispute. They can streamline dispute resolution, reduce costs of resolution, make the process more predictable because the parties control the terms, and allow for confidentiality, all while allowing the complainant to have his or her day in court.
This third blog on the False Claims Act is a wakeup call to long term care facilities and management companies (“LTCs”) in their training and employment practices. It is well-known that LTCs have high employee turnover and difficulty finding applicants, especially for certified nursing assistants (“CNAs”). In response, many LTCs operate in-house training programs to cultivate a pool of qualified CNAs for hiring. Here’s the rub: LTCs can be sued under the False Claims Act (“FCA”) for providing services through unqualified or underqualified employees and seeking reimbursement for those services.
The long term care industry is known for high staff turnover, which can affect care. Often, staff separation can burden the available employees with extra duties or shifts. Residents bond with employees and mourn their separation. In response to this phenomenon, facilities and management companies have been encouraged to implement employee satisfaction surveys, which raise numerous red flags with employment law defense attorneys.