Author Archives: Nancy Reynolds

Nancy Reynolds

About: Nancy Reynolds

Nancy Reynolds practices primarily in the area of medical malpractice defense with a particular focus on long term care facility defense. She has litigated cases as a first chair trial attorney in insurance tort defense over 15 years. In pretrial litigation, Ms. Reynolds handles all phases of discovery, discovery disputes and summary dismissal.

The EEOC’s Application of Title VII to a North Carolina Nursing Center’s Work Restrictions Policy

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 March 7, 2018, the Equal Employment Opportunity Commission filed a complaint asserting sex discrimination against a North Carolina rehabilitation and nursing center on behalf of two nursing assistants.  The …

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A Golden Ticket: The Effects of Long Term Care Regulations on False Claims Act Cases

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 …

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A Trend in 2017: Use of the False Claims Act for Malpractice Cases in Long Term Care

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. We all know that the purpose of the FCA is to penalize government contractors that submit false claims for reimbursement to government programs.  The penalty is triggered when anyone “knowingly presents or causes to be presented a false or fraudulent claim for payment or approval” or “knowingly makes, uses or causes to be made or used a false record or statement …

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Long Term Care Employment Issues Arising in Med Mal Litigation

The patient care and employee/employer behavior crossroads can be a perilous journey when a medical malpractice claim is filed. Now, the facility’s HR practices are placed under the microscope to determine if and what was known about the offending employee from the time of hire to the reported incident and steps taken by the employer to correct and more.  Brian Inamine and Nancy Reynolds explored the interplay of employment issues for long term care facilities in a recent webinar – including abuse, medical diversion, med mal and more.  Click here to view the recording of the complimentary one-hour webinar on …

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An Update on Granny Cams

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. Over the summer of 2017, New Jersey’s Division of Consumer Affairs expanded …

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H.R. 1215: National Tort Reform For Skilled Care

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. The Act places no limits on the economic recovery (monetary losses) and limits noneconomic damages (pain, suffering, anguish, disfigurement, etc.) to $250,000, regardless of the number of parties or …

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Posted in Litigation Issues, Regulatory Issues, Statutory Updates \ Comments Off on H.R. 1215: National Tort Reform For Skilled Care

Arbitration Agreements are Alive and Well

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. The availability of arbitration was initially jeopardized by the November 28, 2016 regulations from the Centers for Medicare and Medicaid Services (“CMS”), with its eleventh hour attempt to pass regulations prohibiting pre-dispute arbitration agreements in the skilled care setting. …

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False Claims Act: Employment Claims

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. In the U.S. Supreme Court’s Universal Health Services, Inc. v. …

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Fourth Circuit Punts the Statistical Sampling Issue Back to the Trial Court

The January 17, 2017 blog identified how the False Claims Act (FCA) can be used to secure significant recoveries by a statistical sampling method.   Statistical sampling is applied when a whistleblower claims that Medicare and Medicaid reimbursement requests are fraudulent.  The statistical sampling feature occurs when a few cases of reimbursements for either care not provided or care outside of the resident’s medical needs (the sampling) are applied to an entire skilled care chain.  This method allows plaintiffs to avoid proving whether each case of fraudulent reimbursement is indeed fraudulent.  Typically, the cases serving as the sample are the best …

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How a Justice Neil Gorsuch May Benefit Long Term Care Facilities

As the world knows, Tenth Circuit Court of Appeals Judge Neil Gorsuch is being considered for the vacancy on the United States Supreme Court created by the death of Justice Antonin Scalia.  Judge Gorsuch is a conservative jurist who has opined on federal agencies overstepping their mandates.  That perspective may be very helpful to an over-regulated industry, such as long term care.  In October 2016, the long term care industry saw the Centers for Medicare and Medicaid Services (“CMS”) squeeze in a re-write of its regulations just before a change in administration.  Some of those new regulations can be considered …

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