Category Archives: Management Advice

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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NLRB Sacks Long Term Care Facility’s Attempt to Avoid Class Actions

In Service Employees International Union v. Montecito Heights Healthcare & Wellness Centre, LP, Case No. 31-CA-129747, the NLRB ruled that a skilled nursing facility’s arbitration provision in its alternative dispute resolution (“ADR”) policy requiring its unionized employees to waive their right to bring class actions or to act concertedly violated federal labor law.  If you are non-unionized, do not stop reading here because this ruling has the potential of being applied to non-union workplaces. The nursing facility’s ADR policy expressly prohibited “employees from joining a class action or representative action.” Relying on precedent promulgated by the NLRB in Murphy Oil …

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Posted in Dispute Resolution, Employment Advice, Employment Practices, Labor Law, Litigation Issues, Management Advice, Policies & Procedures \ Comments Off on NLRB Sacks Long Term Care Facility’s Attempt to Avoid Class Actions

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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Getting in the Crosshairs of the Fair Housing Act

The dining room has been the cornerstone of family life in America for generations. It was Ronald Reagan who once noted, “All great change in America begins at the dinner table.”  Many continuing care retirement communities (CCRC) are finding that the balance between maintaining the quintessential dining room experience for their residents and following the Fair Housing Act (FHA) obligations imposed on assisted and independent living facilities to be a daunting task.  In this article, I review the importance of FHA compliance in dining room policies at CCRC facilities. Common area dining rooms are often the most popular gathering locations …

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You Snooze, You Lose: What an Employer Should First Do When Notified of a Legal Action

It is never pleasant to receive notice of a legal proceeding against you, and employers often wait until the last minute to deal with it, or do worse by trying to eliminate relevant evidence.  Employers are reluctant to hire lawyers early because they believe it will be expensive and complicated. So, what should an employer do after it receives notice of a legal action?  Do the three Ps:  hire a Professional, Preserve evidence, and conduct a Preliminary Investigation. Hire a Professional Should an employer hire an attorney if it receives a lawsuit complaint or other notice of a claim? Absolutely, …

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Posted in Employment Advice, Employment Practices, Litigation Issues, Management Advice, Policies & Procedures \ Comments Off on You Snooze, You Lose: What an Employer Should First Do When Notified of a Legal Action

Reducing The Risks of Employment Claims Relating to Long-Term Care Facilities: Part 1 – Preventing Lawsuits

Employers often believe there is no way to avoid employee claims and lawsuits, so they do nothing at all to prevent them. Or, employers, especially small employers, try to avoid any conflicts with employees and take a hands-off approach to managing employees for fear of causing a claim or lawsuit.  Unfortunately, these passive approaches are not stemming claims, especially in California.   As reported by the California Chamber of Commerce, employment claims and suits are on the rise, with wage and hour class action suits and retaliation claims leading the charge. Understanding the ever changing federal, state, and local laws affecting …

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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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Guardianship Petitions by Long Term Care Facilities

This blog post explains how long term care facilities (LTCFs) can consider utilizing guardianship and conservatorship petitions for problematic situations where a resident has named an agent under a power of attorney (POA), and the agent fails to pay the resident’s bills, thus jeopardizing the resident’s wellbeing. Independent living facilities, assisted living facilities, and nursing homes traditionally take steps to ensure that residents have enacted financial POAs, as well as healthcare POAs, upon admittance. What happens when an agent named under a POA fails to make payments for the resident’s stay at the LTCF? The LTCF can sue the resident, …

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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