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 of questionable relevance to the mission of CMS, particularly the prohibition on pre-dispute arbitration.

In the 1935 Social Security Act (“Act”), the Social Security Administration (“SSA”) was established to administer the old-age, survivors and disability insurance program.  Under the Social Security and the Administrative Procedures Acts, the Secretary of the Department of Health and Human Services has the authority to promulgate regulations for the purpose of administering the Act.  That charge includes enforcement of standards for services provided by long term care facilities receiving Medicare or Medicaid funding, or both. The only provisions of the Act that address remedies for noncompliance involve agency-administered remedial programs, fines paid to the agencies and denial of federal funding.  No lawsuit option or private right of action is included in the remedial measures. Facility residents can file complaints with their facilities or an agency ombudsperson. So how does this framework permit CMS to regulate arbitration agreements entered into at admission?  It does not.  

CONTINUE READING . . .

Posted in Dispute Resolution, Litigation Issues, Regulatory Issues \ Comments Off on How a Justice Neil Gorsuch May Benefit Long Term Care Facilities

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

heap of dollars with stethoscopeThe 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 must have actual knowledge of the false claim or must have acted with deliberate ignorance of or reckless disregard for the truth or falsity.

In June 2016, the U.S. Supreme Court broadly interpreted the FCA to apply when a patient was provided psychiatric services and the medical facility sought Medicaid reimbursement.1  The care providers were not properly licensed.  The Court noted that false claims occurred when reimbursement requests were made because the medical facility impliedly certified that the conditions for reimbursement (services by qualified professionals) were satisfied.  The Court stated that the facility was required to disclose its noncompliance when making the reimbursement request and that the noncompliance did not have to deal with specific terms of payment.  The undisclosed information did have to be a material fact upon which the government would rely when deciding whether to reimburse.

CONTINUE READING . . .

Posted in False Claims Act, Litigation Issues, Management Advice, Regulatory Issues \ Comments Off on False Claims Act: How it is Being Applied and Misapplied in Long Term Care Cases

Corporate Representatives Depositions: How to Defend Against Them

Witness swearing on the bible telling the truthIn 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 objected to because the information requested is irrelevant, privileged, confidential or a trade secret.  Most courts expect the attorneys to confer before filing motions objecting to the deposition notice.

Some CRDs include deposition dates that are immediately after the lawsuit is filed.  The goal is to obtain testimony before the corporation has had time to obtain all of the responsive information.  An early deposition places the corporation in the position of using the “information is not available” response, followed by attempts by plaintiff’s counsel to obtain sanctions against an unprepared corporation.  If consulting with plaintiff’s counsel over the date is unsuccessful, obtaining a protective order should be requested.

CONTINUE READING . . .

Posted in Discovery Practices, Litigation Issues, Management Advice \ Comments Off on Corporate Representatives Depositions: How to Defend Against Them

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

Class Action conceptIn 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 USA, Inc., 361 NLRB No. 72 (2014), enf. denied, 808 F.3d 2013 (5th Cir. Oct. 26, 2015), Judge Raymond P. Green held that the nursing facility violated Section 8(a)(1) of the National Labor Relations Act (“Act”) by maintaining a policy intended to require its employees to waive their right to bring or join a class action regarding their wages, hours, and terms and conditions of employment.  Judge Green explained that he was “bound to follow Board precedent irrespective of contrary opinions by circuit courts, unless and until the Supreme Court makes a definitive ruling on the subject matter in dispute.”  In other words, Judge Green did not want to run afoul of NLRB precedent.

CONTINUE READING . . .

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

Witness swearing on the bible telling the truthCorporate 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 must set forth, with particularity, the subject areas for questioning.  The corporation is required to identify people who it will offer to testify on each subject area.  The individuals testifying can be anyone who consents to testify on behalf of the corporation.  The person does not have to be the most knowledgeable on the subject, but the corporation must prepare the person to answer the questions.  The witness must testify on all matters known or reasonably available to the corporation.

CONTINUE READING . . .

Posted in Discovery Practices, Litigation Issues, Management Advice \ Comments Off on Corporate Representative Depositions: What They Are and Why They Are Used

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