Getting in the Crosshairs of the Fair Housing Act

Senioren essen Lunch im PflegeheimThe 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 in a CCRC and also the most common areas where policies, enacted with the best intentions, are likely to give rise to claims of discrimination arising under the FHA.  The Civil Rights Act of 1968 includes the FHA, which prohibits discrimination in housing-related practices based on race, color, religion, national origin, sex, familial status and disability.  The FHA’s broad definition of disability includes mental and physical impairments common to CCRC facility residents.  Discrimination based on a disability includes the refusal by the facility to make reasonable accommodations to policies, programs, or services that would allow residents to use and enjoy the facility, including the common areas. 

CONTINUE READING . . .

Posted in Litigation Issues, Management Advice, Policies & Procedures, Resident Rights \ Comments Off on Getting in the Crosshairs of the Fair Housing Act

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

woman uses magnifying glass to check contractIt 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, and right away (though, if an employer has applicable liability insurance, then it should place its insurer on notice of the claim and work with the appointed defense lawyer; this article focuses on self-insured employers and employers with high deductibles or self-insured retentions) .  In California, corporate employers must hire lawyers to defend lawsuits, so there is no choice.  Individuals who are employers (e.g., sole proprietorships) may defend themselves in court, but this strategy won’t likely end well. Many employers usually don’t know whether or what information is harmful or helpful and sometimes don’t know what information should be confidential. Your innocent phone call with the opposing attorney (without your lawyer) could result in unnecessary or inadvertent disclosure of harmful information to the other side. Hiring an experienced employment lawyer will reduce or eliminate these risks.

CONTINUE READING . . .

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 the employment relationship is critical to avoiding and reducing these costly suits. While nothing can prevent an employee from suing, the “do nothing approach” typically increases the probability, difficulty, and expense of employee lawsuits. But, employers can take some simple steps to reduce the risks of employment claims.

First, employers need to document the employment relationship. This means having clear and written discrimination, harassment, and retaliation policies that are not simply posted in a break room.  Documenting that the employer is telling its employees about these policies and that employees are hearing them is essential. Documentation could be as simple as content-specific sign-in sheets at mandatory training meetings and keeping copies of the training materials. It also means writing up accurate employee evaluations, documenting warnings and disciplinary events, and memorializing review of the evaluations and disciplinary measures with the employee. And, obtain the employees signature on evaluation and warnings/discipline documents.

CONTINUE READING . . .

Posted in Employment Advice, Employment Practices, Litigation Issues, Management Advice, Policies & Procedures \ Comments Off on Reducing The Risks of Employment Claims Relating to Long-Term Care Facilities: Part 1 – Preventing Lawsuits

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

business partnersThe 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 new regulation was challenged during the comment period based on the Federal Arbitration Act’s pre-emption of laws that target and nullify arbitration clauses for reasons unrelated to contractual validity.  The FAA provides that arbitration clauses shall be “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” The United States Supreme Court has upheld the FAA pre-emption for decades, including in the context of long term care facilities. In Marmet Health Care Center, Inc. v. Brown, 132 S. Ct.1201(2012), the Court held that a West Virginia public policy against pre-dispute arbitration agreements was in violation of the FAA and could not be enforced.

CONTINUE READING . . .

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

Guardianship Petitions by Long Term Care Facilities

Power of attorneyThis 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, a personal guarantor, and/or the agent under the POA, to collect the delinquent sums. Or, it could be more proactive by filing a petition with the court to either revoke the POA or the authority of the agent under the POA, and to appoint a guardian and/or conservator to make decisions about the resident’s finances, place of residence, etc.

CONTINUE READING . . .

Posted in Litigation Issues, Management Advice, Responsible Parties \ Comments Off on Guardianship Petitions by Long Term Care Facilities

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

newspaperInfringements 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 literary works.  17 U.S. Code §102.  Literary works are defined as works “expressed in words,” such as books, periodicals, and manuscripts.  17 U.S. Code §101.  The owners of copyrights in literary works have the exclusive right to reproduce, distribute copies by sale or other ownership transfer, perform or display copyrighted work publicly and create derivative works of the literary work.  17 U.S. Code §106.  For LTC facilities, this may mean that including an inspirational poem or story in a newsletter is a violation of the original author’s copyright.

Authors of original literary works employ agencies to search the Internet and other publication sources for any reference to or use of their original literary works.  When they find a use in violation of their rights under the Act, they send cease and desist letters demanding, with a threat of litigation, that the reproduction of the literary work be removed from the Internet or from a newsletter.  They may also demand payment of a license fee to use the literary work.  To avoid this scenario, facilities may contact authors or their agents in advance and seek permission to reprint the original work in a newsletter or on the facility’s website with proper recognition of the author.  If permission is granted, the facility should memorialize that permission in a written document.  Further, permission for use may still come with a demand for payment of a license fee.  If the facility engages in a license arrangement, that agreement should be memorialized in a contract.

The author cannot sue for copyright infringement when the original work was not pre-registered or registered with the Copyright Office of the Library of Congress.  However, when the Copyright Office rejects the literary work as not copyrightable, the author can maintain a claim for copyright infringement and the issue of whether the work is copyrightable will be litigated.  17 U.S.C. §411.  The recovery for an infringement includes either the copyright owner’s actual sales losses plus profits of the infringer or statutory damages from $750.00 to $30,000, per literary work.  Willful violations include additional awards up to $150,000.  If the court finds the infringer was unaware and had no reason to believe the Act was violated, the court may reduce an award to no less than $200.  17 U.S.C. §§504, 505.

The Act specifically prohibits monetary awards in lawsuits where the literary work was preregistered with the Copyright Office before the copyright infringement and the effective date of registration is the shorter of 3 months after publication of the work or one month after the author learns of the infringement.  This limitation on recovery applies only to unpublished works for which the infringement occurred prior to copyright registration and to published works where infringement occurred after the first publication and before a registration occurring over three months after publication.  17 U.S.C. §412.

In the event a LTC facility wishes to include in its newsletters or website original works of authorship that are protected under the Copyright Act, the facility must comply with the Act and obtain permission for the use.  It makes sense to obtain advance approval before investing in a publication that must be destroyed after contact from an author or an author’s agent.  Additionally, facilities should be very careful about website content and the origin of the information posted.

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

Risky Business In California: Drug Testing Of Long-Term Care Workers

Drug test blank form with test kit and urine,focus on paperThere may be no more vulnerable segment in our society than residents in long-term care (“LTC”) facilities – the aged, the physically disabled, the mentally and emotionally hurting. Not coincidentally, there may be no more powerful a group with the capacity to harm than those who care for LTC patients. Statistics don’t lie. According to the Office of Inspector General of the U.S. Department of Health and Human Services, 25% of Medicare patients in nursing homes suffered preventable injuries from 2008 to 2012. And, as reported by USA Today, “more than 100,000 doctors, nurses, medical technicians and healthcare aids are abusing or dependent on prescriptions drugs in a given year, putting patients at risk.” Makes sense then to drug test LTC workers and to have a comprehensive statutory or regulatory testing scheme, especially in California where about 350,000 patients reside in LTC facilities each year, as counted by the California Association of Health Facilities.

CONTINUE READING . . .

Posted in Employment Advice, Employment Practices, Management Advice \ Comments Off on Risky Business In California: Drug Testing Of Long-Term Care Workers

Incident Reports: Proceed With Caution

Incident injury report formLong 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 State law. 42 C.F.R. §§483.13 (c)(2), 483.420(d). Psychiatric residential treatment centers are required to report physical injuries, including death, to the State Medicaid and adult protective agencies.  42 C.F.R. §483.374.

CONTINUE READING . . .

Posted in Litigation Issues, Management Advice, Policies & Procedures \ Comments Off on Incident Reports: Proceed With Caution

Tactics Skilled Nursing Facilities Can Use to Prevail in Discharge Appeal Hearings Before the New York Department of Health

Federal Law and the laws of most states, including New York, provide that facilities are permitted to discharge residents in the following circumstances: when the discharge is necessary for the resident’s welfare; the discharge is appropriate because the resident’s health improved such that facility services are not required; the health and safety of other individuals is threatened if the resident remains at the facility; the resident has failed to pay for the stay at the facility; and the facility discontinues its operation.  This article focuses on the discharge procedure for residents no longer requiring services of the facility due to their improved health, as this tends to be the area most frequently challenged.

In New York, residents believing discharge is improper can appeal to the Department of Health for an evidentiary hearing.  During the hearing, an administrative law judge will examine and weigh two factors: whether the resident’s health sufficiently improved and whether the discharge plan allows for safe and suitable accommodations on which the resident has had an opportunity to provide input.

CONTINUE READING . . .

Posted in Litigation Issues, Management Advice, Resident Rights \ Comments Off on Tactics Skilled Nursing Facilities Can Use to Prevail in Discharge Appeal Hearings Before the New York Department of Health

Check, One-Two. Check, One-Two: Sounding Off In Favor of Employee Background Checks

Employee background checks can provide an abundance of useful information and a world of legal risk. Properly informed employers, however, can wield this double-edged sword with precision to find the best person for the job while avoiding liability for poor hiring decisions. In this post, we’ll discuss the benefits of background checks; certain “barrier crimes” with unique application within the LTC industry; and general legal principles to keep in mind in order to avoid claims for employment discrimination.

While background checks serve as the ultimate gatekeeper for employee trustworthiness, they also reduce litigation exposure; mitigate the risk of employee misconduct; and identify individuals with propensities for resident abuse and neglect.

Studies have shown a sharp rise in résumé fraud since the 2008 recession, with nearly 63% of résumés submitted to health care employers containing outright lies rather than the expected “creative writing.” Now, more than ever, background checks are an important first step for LTC employers seeking to avoid liability for the actions of employees.

CONTINUE READING . . .

Posted in Employment Advice, Employment Practices, Litigation Issues, Management Advice \ Comments Off on Check, One-Two. Check, One-Two: Sounding Off In Favor of Employee Background Checks