Category Archives: Management Advice

A Troubling Trend of Malpractice Claims Litigated Under State Consumer Protection Acts

A troubling trend has developed across the country in long term care malpractice litigation.  Plaintiffs have been using state consumer protection statutes to lodge skilled care malpractice claims.  This practice most recently reared its head in Pennsylvania.  The Supreme Court of Pennsylvania decided, in Commonwealth of Pennsylvania v. Golden Gate National Senior Care, LLC,1 that failure to provide the services documented in a care plan can be alleged as a form of consumer fraud.  This is bad law for all long term care providers and should be a call to action.

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Video Surveillance Can No Longer Be Ignored

The State of Louisiana has joined seven other states- Texas, New Mexico, Washington, Oklahoma, Utah, Illinois and Florida- in passing legislation on use of surveillance cameras in rooms of long term care facility residents.  Long term care facilities (“LTCs”) can no longer hide their heads in the sand over in-room surveillance.  Active engagement with residents and their responsible parties is essential to quell concealed surveillance cameras. Louisiana’s Nursing Home Virtual Visitation Act (“ACT”) was passed on May 31, 2018 and has the following standard features:

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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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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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Risky Business – Skilled Nursing Facilities Under Attack

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. In July of 2015, the Commonwealth of Pennsylvania, by its Office of Attorney General (“OAG”), filed a Petition for Injunctive Relief against Golden Gate National Senior Care, LLC’s Pennsylvania facilities (“Golden Gate”).  The OAG asserted a claim under the Pennsylvania Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), 73 Pa C.S.A. § …

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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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Employee Surveys: Survey Its Risks First

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. Employers can use employee satisfaction surveys for a multitude of well-intentioned reasons:  to make employees feel heard, to identify areas that need improvement, and to simply improve communication.  A younger workforce that values their voice being heard, …

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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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