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.

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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Posted in Dispute Resolution, Employment Advice, Litigation Issues, Management Advice \ Comments Off on Arbitration Agreements are Alive and Well

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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Posted in Employment Advice, Employment Practices, False Claims Act, Litigation Issues, Management Advice \ Comments Off on False Claims Act: Employment Claims

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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False Claims Act: How it is Being Applied and Misapplied in Long Term Care Cases

The False Claims Act (FCA) allows a whistleblower, called a relator, to sue for false statements made in connection with requests for payment to the government. For long term care facilities (LTCs), this typically arises in the Medicare and Medicaid reimbursement context.  The false claims could be submitting reimbursement requests for care not provided or care not required.  A claim may also arise when valid reimbursement requests are made, but the facility certifies, when submitting the paperwork, that it has complied with all regulatory requirements and, in fact, it has not.  Intent to defraud is not required, but the facility …

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Corporate Representatives Depositions: How to Defend Against Them

In the December 5, 2016 blog, we discussed what corporate representative depositions (“CRD”) are and why they are used.  This blog addresses defense tactics and the conduct of CRDs. As previously noted, the party requesting the CRD is required to identify with reasonable particularity each of the subject areas for questioning.  The corporation can object to the deposition notice when the subjects are so broad or vague that it is impossible to identify a witness.  Language such as “including, but not limited to” can be struck from a deposition notice for noncompliance with the reasonable particularity requirement.  Notices can also be …

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Corporate Representative Depositions: What They Are and Why They Are Used

Corporate representative depositions (“CRD”) are creatures of federal and state rules permitting parties to lawsuits to take depositions of corporations, associations, organizations and government agencies.  They have been used for decades in products liability cases, but are relative newcomers in long term care litigation. In this section of a two-part blog, I will address the technical aspects of CRDs.  The second blog will cover defending against and conduct of CRDs. When a party to a lawsuit wants to take a CRD, it sends a deposition notice to the corporation stating that it wants to take the corporation’s deposition.  The notice …

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CMS’ Prohibition of Pre-Dispute Arbitration Agreements for Skilled Nursing Facilities Leaves No Gaps in Its Mandate

The Centers for Medicare and Medicaid Services (CMS) regulations that become effective on November 28, 2016 include prohibiting skilled nursing facilities from including arbitration agreements in the resident admission process. The new regulation prohibits pre-dispute arbitration agreements in the skilled nursing setting. However, this regulation permits entering into such agreements once a dispute exists, implying that the parties may already be adversarial and potentially unwilling to arbitrate. This regulation does not include assisted or independent living facilities, which CMS does not regulate. The lingering question is whether it covers disputes with residents who are not Medicare or Medicaid beneficiaries. This …

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Posted in Litigation Issues, Management Advice, Policies & Procedures \ Comments Off on CMS’ Prohibition of Pre-Dispute Arbitration Agreements for Skilled Nursing Facilities Leaves No Gaps in Its Mandate

Be Careful What You Print in Your Newsletters and Include on Your Websites

Infringements of the Copyright Act (“Act”) related to playing music was covered in a May 17 LTC Counsel blog post, and this post will cover infringements of the Act through written materials.  Many long term care (“LTC”) facilities use websites and newsletters to inform on activities and perspectives of residents and staff.  These vehicles are often used to reproduce poems or stories intended to inspire and console residents and their families.  LTC facilities can run into problems with the Act when the content of their websites and newsletters contain original literary works. The Act protects original works of authorship, including …

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Posted in Intellectual Property, Litigation Issues, Management Advice \ Comments Off on Be Careful What You Print in Your Newsletters and Include on Your Websites