NEW YEAR’S RESOLUTIONS AND NEWS FOR 2018!

Happy holidays and best wishes for a happy new year from the Hagwood Adelman Tipton team! For the past seven years, the Nursing & Assisted Living Facility Professional has brought you valuable industry insights and information, and we look forward to sharing 2018 with you! Each year, I turn back to see where I’ve been and look ahead to envision where I’m going. I want to thank my strategic partner, Chip Kessler, and Extended Care Products, the leader in educational risk management programs for long-term care professionals. Chip has been a fearless leader, motivator and friend these many years and it is a privilege to contribute to the NAL Professional and Chip’s other programs.

I am also sincerely grateful to those who receive the NAL Professional and support our efforts to educate and share information about all aspects of the long-term care industry. Our conversations over the years have been so valuable. I look forward to 2018 together.

Looking back in the NAL Professional 2017, here are some ideas for resolutions to support our senior housing communities through risk mitigation and other legal initiatives.

1. Roll out an arbitration program or revise your current program.
The Reform of Requirements for Long-Term Care Facilities Final Rule, published Oct. 4, 2016, listed the requirements facilities need to follow if they choose to ask residents to sign agreements for binding arbitration. The final rule also prohibited pre-dispute agreements for binding arbitration. The American Health Care Association and a group of nursing homes sued for a preliminary and permanent injunction to stop CMS from enforcing that requirement. The court granted a preliminary injunction Nov. 7, 2016. After that decision, CMS reviewed and reconsidered the arbitration requirements in the 2016 Final Rule.

Proposed revisions to arbitration requirements
The proposed rule focuses on the transparency surrounding the arbitration process and includes the following proposals:

  • The prohibition on pre-dispute binding arbitration agreements is removed.
  • All agreements for binding arbitration must be in plain language.
  • If signing the agreement for binding arbitration is a condition of admission into the facility, the language of the agreement must be in plain writing and in the admissions contract.
  • The agreement must be explained to the resident and his or her representative in a form and manner they understand, including that it must be in a language they understand. 
  • The resident must acknowledge that he or she understands the agreement. 
  • The agreement must not contain any language that prohibits or discourages the resident or anyone else from communicating with federal, state or local officials, including federal and state surveyors, other federal or state health department employees, or representatives of the State Long-Term Care Ombudsman.
  • If a facility resolves a dispute with a resident through arbitration, it must retain a copy of the signed agreement for binding arbitration and the arbitrator’s final decision so that CMS or its designee can inspect it.
  • The facility must post a notice regarding its use of binding arbitration in an area that is visible to both residents and visitors.

2. Attend the 6th Annual LITIGATION RISK AND DEFENSE STRATEGIES FOR LONG-TERM CARE & ASSISTED LIVING PROVIDERS, INSURERS AND BROKERS conference hosted by Cowan & Lemon, Hagwood Adelman Tipton, PC, Horne Rota Moos and Kaufman Borgeest & Ryan, LLP. The conference is set for April 4-5, 2018, in Houston, Texas, home of the World Champion Astros and Pinkertson’s – the essential Houston Barbecue Destination! For more information, email Kevin Barr at kbarr@hrmlawsyers.com.

3. Implement comprehensive litigation hold protocols.
A litigation hold is a written directive advising custodians of certain documents and electronically stored information (“ESI”) to preserve potentially relevant evidence in anticipation of future litigation. Also called “preservation letters” or “stop destruction requests,” these communications basically advise of the possibility of future litigation and identify relevant documents and ESI that should be preserved. The terms “Litigation Hold Letter” and “Litigation Hold Notice” are used interchangeably to describe written requests from adversaries designed to trigger the duty to preserve relevant evidence.

We cannot over-emphasize the importance of implementing a defensible litigation hold policy, procedure and process. In Judge Scheindlin’s words in the Zubulake case “Just do it. Just do it.” Generally, the policy should 1) Reduce risk and increase defensibility; 2) Guarantee that holds are issued in a timely fashion and contain all necessary information; 3) Create an efficient method for ascertaining and notifying both custodians and other key personnel; 4) Outline a standard set of data/content types (both print and electronic) to be preserved, which should be reviewed and updated periodically as new types of data (e.g. social media) emerge.

4. Mentor.
With the Final Rule by CMS including Training Requirements (§483.95), incorporating a mentoring program will be even more effective. Such a program will also enhance compliance with the many changes to the requirements for participation, including staff sufficiency, staff training, submission of staffing data, person-centered care planning and quality of care compliance. The new regulation requires facilities to develop, implement and maintain an effective training program for all new and existing staff, individuals providing services under a contractual arrangement, and volunteers. The implementation deadline is Nov. 18, 2019, except for the following Phase 1/Nov. 28, 2016 requirements: (c) Abuse, Neglect and Exploitation Training (g)(2) Dementia Management & Abuse Prevention Training (g)(4) Care of the Cognitively Impaired Training (h) Training for Feeding Assistants.

With the increasing demand for workers in the direct care field, health and long-term care employers already experiencing extremely high turnover rates, and a growing number of people need care, support, and services. It is essential to develop and maintain a more stable direct care workforce. A well-designed peer-mentoring program for direct care providers is an appropriate component of any culture change movement in long-term care.

I refer to the peer-mentoring program developed by the Foundation for Long-Term Care and how peer mentoring may affect culture, with or without a formal cultural change movement within the facility. The program suggests that peer mentoring is likely to (a) improve CNA retention rates; (b) improve orientation processes so that they reflect the values of the facility; (c) reinforce critical skills and behaviors; (d) teach the value of caring; (e) use exemplary aides to role model exemplary care; (f) support new staff as they make the transition to being part of the facility team; and (g) provide recognition and a career ladder for experienced nurse aides.

5.  Develop best practices regarding EMR documentation and educate yourself about metadata (see July 2017 NAL Professional).
In my world of medical malpractice litigation, the resident/patient medical record is Exhibit 1. I cannot overstate the importance that health care records play in defending long-term care lawsuits. From the completeness of the record to each chart entry, plaintiff and defense attorneys, provider witnesses and all experts scrutinize the health care record. In every case, the integrity of the health care record is a central issue, presenting many challenges to face and obstacles to overcome as to the liability of the care provider, causation and damages.

Understanding substantive metadata, system metadata and embedded metadata and how metadata is produced in litigation is key to a comprehensive best practice model for EMR documentation. The reason we care about metadata is that plaintiff’s attorneys are requesting “audit trails” and other metadata related to a resident’s EMR. Oftentimes, the court will compel production of this information, and understanding the risks is key to risk mitigation best practices.

There are duties imposed on nursing homes by state and federal legislation, and there are rules to implement technical safeguards for electronic information systems, including EMR. Plaintiff’s attorneys are aware of these duties and are investigating compliance at all levels through the discovery process.

In response to requests for metadata and audit trails in particular, several grounds for objections exist. Objections may include that the information is not relevant; the request is outside the scope of allowable discovery; peer review and quality assurance privileges are applicable; and attorney/client and work product are included in the request.

With electronic recordkeeping growing more complex, it is critical that providers understand electronic discovery issues. There is no easy risk mitigation strategy or practice regarding the EMR and safeguarding it. Be aware that every action related to the chart is recorded. I recommend reviewing audit trails with your team and understanding how your EMR record is retrieved. I work with our provider clients to evaluate the EMR and develop best practices for documentation.

The evidence developed related to the audit trail will be central to the development of the lawsuit and themes that will emerge. Increasing awareness and best practices regarding EMR documentation will enhance the defense of the chart and the lawsuit.

6. Continue training and community team education of the long-term care survey process procedure.
CMS provided surveyor guidance through Interpretive Guidelines in the State Operations Manual. The Interpretive Guidelines for Long-Term Care include guidance primarily for the surveyors. However, these guidelines are frequently used by facilities to ensure they understand the health and safety expectations that will be evaluated through the survey process. Many standards have remained unchanged since the early 1990s. For these areas, CMS reviewed the existing Interpretive Guidelines and updated them where necessary to ensure that the standards and examples were clear. It also added a section in some areas to the Interpretive Guidance titled “Key Elements of Noncompliance.” This is intended to guide surveyors and nursing facilities about the key behaviors and practices identified in the regulation. This Interpretive Guidance was effective Nov. 28, 2017. The Interpretive Guidance includes clarifications to existing requirements, guidance for new Phase 2 requirements and references to the revised survey process and protocols.

Continuing education using the LTCSP Procedure Guide provides instruction on the procedural and software steps necessary for completing the LTCSP. Use the Procedure Guide for all standard surveys of SNFs and NFs, whether freestanding, distinct parts or dually participating. The LTCSP steps are organized into seven parts: 1) offsite preparation; 2) facility entrance; 3) initial pool process; 4) sample selection; 5) investigation; 6) ongoing and other survey activities; and 7) potential citations.

While CMS has provided a one-year restriction of enforcement remedies for specific Phase 2 requirements, CMS holds the facility accountable and should a facility be found out of compliance with these new requirements beginning in November 2017, CMS would use this yearlong period to educate facilities about certain new Phase 2 quality standards by requiring a directed plan of correction or additional directed in-service training. Enforcement for other existing standards (including Phase 1 requirements) would follow the standard process.

The listing of specific Phase 2 requirements associated with enforcement delays are to be shared at a later date. In general, CMS will identify those requirements that are associated with a unique and separate tag and where specialized efforts and technical assistance may be needed (e.g., antibiotic stewardship, facility assessment, Quality Assurance and Performance Improvement plan).

7. Be prepared for an emergency.
As we know, Phase 2 implementation of the Final Rule that was effective Nov. 16, 2017, includes emergency preparedness requirements that establish a comprehensive, consistent, flexible and dynamic regulatory approach to emergency preparedness and response that incorporates the lessons learned from the past combined with the proven best practices of the present. As CMS states, “…central to this approach is to develop and guide emergency preparedness and response within the framework of our national health care system. To this end, these requirements also encourage providers and suppliers to coordinate their preparedness.”

An overview of training resources and a focus on emergency communication are included in the September 2017 NAL Professional. The four provisions for 17 provider and supplier types are:

  • Risk assessment and planning
  • Policies and procedures
  • Communication plan
  • Training and testing

CMS released an advanced copy of the interpretive guidelines and survey procedures that will be incorporated into the SOM under Appendix Z, which applies to all 17 provider and supplier types. Since the Conditions of Participation, Conditions for Coverage and requirements apply across providers and suppliers and only vary slightly, CMS has compiled the requirements under one appendix. Check it out here.

CMS also recently issued information on training and testing requirements for Emergency Preparedness. Check that out here.

8. Develop and implement a well-developed communication plan.
Communication plans are another element of the comprehensive Emergency Preparedness plan and design and implementation that can be challenging. Following are best practices considerations for transparent and accurate communications with stakeholders, especially the media both during and after. A well-developed communication plan contributes to a successful resolution of the problem, including a positive evaluation by stakeholders and the public. AHCA/NCAL offer a six-point outline to guide the process and these points can be incorporated into existing risk management and crisis communication plans.

1. Form a team.
2. Plan ahead.
3. Know the stakeholders.
4. Know how to contact stakeholders.
5. Establish communication channels.
6. Honor confidentiality.

A crisis communications plan should be a key component of an organization’s overall risk management and disaster response plan. A risk management plan, including crisis communications, reflects an organization’s commitment to quality and will influence the way the public develops opinions about an event. There may be quality assurance protections and attorney-client privileges that protect the crisis communications plan. If you’d like a copy of my “Crisis Communications and the Law: A Guide for Providers,” please email me and I’d be happy to send one to you.

9. Improve staff satisfaction (climbing Mount Everest!).
What actions can we take to meet the challenges of the day and help others in their endeavors?

In considering this question in the health care industry, and especially in nursing and long-term care, one of our “Mount Everests” is how to continually improve the quality of care and the role of nursing home leaders in an ever-changing industry. Improving staff satisfaction is one “Mount Everest” challenge that will translate into higher levels of performance and service excellence. The AHCA Quality Improvement Committee assessed several key areas to improve staff satisfaction, and investing in the various ways to enhance staff perception and build a committed and motivated workforce are goals we can set and achieve one step at a time. Notably, most of these objectives require little financial investment, although they may require some changes in leadership and management actions.

Here are the key areas for nursing home leaders to focus on to improve staff satisfaction.

What Matters Most to Nursing Home Employees?
1. Management cares about employees.
2. Management listens to employees.
3. Management helps to reduce job stress.
4. Fair evaluations
5. Staff respect for residents
6. Workplace is safe
7. Supervisor cares about you as a person

Recognizing the challenges encountered by leaders and managers in long-term care, including staff satisfaction, is the first step to enhancing quality of care, especially as the acuity level of our elders continues to rise and funding decreases. With each step we take, the summit gets closer and the satisfaction is undeniable!

10. Make time for yourself.
“People look for retreats for themselves, in the country, by the coast, or in the hills...there is nowhere that a person can find a more peaceful and trouble-free retreat than in his own mind. So constantly give yourself this retreat and renew yourself. ”  — Marcus Aurelius

Commit to self-care. Our industry has one of the highest levels of burnout. Why just survive? Thrive. (Visit www.thriveglobal.com). I hope these self-care ideas help you in the new year!

  • Take time to reflect. Reflection is key for personal growth. Take time out of your day to think about what moments grew you, made you happy or even made you sad. It’s important to recognize these things. Reflection helps to give you perspective, learn from your mistakes and get fresh ideas.
  • Let go. Letting go of any kind of negativity or circumstance that’s out of your control is huge. Learning to let go of these things is not always easy, but when you do, you’ll experience less stress and more contentment. Let go of the haters. Let go of others’ doubts in you. Let go of the things you cannot control.
  • Get enough sleep. Sleep. Sleep. Sleep. You need to allow your body to have a regular sleep cycle so you can rest easy and well. It takes time to build up a regular cycle, but your body will thank you for it. You’ll feel more rejuvenated when it’s time to wake up, instead of wishing you could sleep all day. 
  • Positive self talk. Speak truth and positivity to yourself and into your life. It’s okay if you have areas to grow, acknowledge them and come up with a plan to better them. But don’t tear yourself down. Choose to reach for a better feeling and then walk in that. Be kind to yourself. Build yourself up!
  • Have an accountability partner. I am a huge believer in accountability, as it helps you to always have a friend and someone who will help you stay on track with your goals. Reach out to a close friend and offer the opportunity to be accountability partners. You can have an accountability partner for anything, but definitely have one who will check in with you to see how you’re doing with self-care and whatever goals you’re working on. It’s always nice to have someone to lean on! 
  • Celebrate every victory. Life is too short to not celebrate every victory you have – big or small. Friend, you need to celebrate yourself! Celebrating your accomplishments and taking the time to acknowledge who you are and how far you’ve come is immensely important for happy and healthy self-care. Remember that celebrating yourself does not mean comparing your journey to someone else’s. Own your journey and celebrate it! 
  • De-clutter regularly. It’s hard to function when your life is cluttered, both literally and situationally. If you’re like me and can’t work when your desk is a mess, make it a priority to clear it off every single day. This is a simple task that takes just a few minutes, but it’ll help you stay focused and motivated. If there’s negativity in your life or a relationship you need to cut out of your life, do it. Do what’s best for yourself in these situations. You can’t thrive in a cluttered life.
  • Intentionally schedule alone time. Be sure to schedule some alone time or some “me time.” Having time alone from everyone helps you to reflect more intentionally and it allows you to truly rest and recharge. Take a bubble bath or do a creative activity that gets your creative juices flowing. Have an outlet you can turn to when you just need to get away and have some alone time. 
  • Say “no” without an explanation. When you choose what your priorities are, you should also take note of the things you don’t want to focus on during that time. Learn to say “no” without an explanation to the things that aren’t a priority in your life. You don’t have to justify your priorities to anyone.
  • Choose grace. Choose to have grace for yourself when you’ve failed. Choose to have grace for others when they’ve failed you. Choose to have grace all the time, no matter what. Life is messy because people are messy, and that’s what helps bring the beauty of grace to light. Grace doesn’t make sense, but it brings connection and understanding. Live a life that’s full of grace.

As the holiday season unfolds and the end of the year draws nigh, let’s remember those who continue to experience pain and suffering and are in need of healing in our communities and around the world. Here’s to 2018. May it be filled with limitless joy and hope.

Rebecca Adelman, PLLC, Esq. - Ms. Adelman is an entrepreneur and founding shareholder of Hagwood Adelman Tipton, PC and practices in the firm’s Memphis, Tennessee, office. For nearly 30 years, Rebecca has concentrated her practice in insurance defense litigation representing national insurance carriers and self-insureds with a concentration in health care law. She also has an active business and employment practice. Please feel free to contact her at radelman@hatlawfirm.com or visit her website: www.rebeccaadelman.com and Instagram @rebecca_adelman.