Category Archives: Policies & Procedures

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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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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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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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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Incident Reports: Proceed With Caution

Long term care facilities often question whether documentation of falls or other resident accidents at their facilities is necessary.  The answer really depends on the type of facility and the state of licensure. Federal public health regulations require skilled nursing facilities to notify family and the responsible party if there is an accident involving the resident that requires physician intervention.  42 C.F.R. §483.10(11)(i)(A).  These regulations also require skilled nursing facilities and intermediate care facilities serving intellectually disabled individuals to report any instances of mistreatment, neglect or abuse, including injuries of an unknown source, to the proper agencies in accord with …

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Policies, Procedures And Protocols: Best Friend Or Worst Enemy

Long term care (“LTC”) facilities are obligated by regulation to implement policies, procedures and protocols (“PPPs”) on methods of practice and modes of providing care.  PPPs in the hands of adverse counsel can prove problematic for facilities.  Thus, certain measures can be taken to prevent use of PPPs against facilities. LTC regulations of many states require that facilities promulgate policies on all aspects of their business, including record maintenance; personnel matters; physician, nursing, pharmaceutical, dietary, activities, social, and rehabilitation services; resident rights; quality assurance; and security.  Most regulations require periodic review and update of these PPPs. PPPs have been used …

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Video Cameras In Resident Rooms

Many residents and their families lack the requisite level of trust important to providing care in the long term care setting. This sentiment can be evidenced by family members’ requests for video cameras in resident rooms. Facilities are now learning how to respond to these requests. Texas, New Mexico, Washington, Oklahoma, Illinois and Virginia are the only states to date that have passed legislation on video cameras in resident rooms. In Virginia, the legislature left the particulars to the Department of Health, which is charged with promulgating regulations by July 1, 2017. For the remaining five states, their laws prohibit …

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