Nursing & Assisted Living Facility Professional

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1 Nursing & Assisted Living Facility Professional FEBRUARY 2017 NEWS AND VIEWS YOU CAN REALLY USE ISSUE 2, VOLUME 7 Sent Each Month to You as a Member of The Healthcare Heroes The HAT Advantage by Rebecca Adelman ARBITRATION OR NO ARBITRATION? THAT IS THE QUESTION Recall that we have been closely monitoring and reporting on the November 7, 2016, injunction enjoined the Centers for Medicare and Medicaid Services (CMS) from enforcement of its recentlyannounced ban on arbitration clauses in the contracts of long-term care facilities that participate in Medicare or Medicaid. Judge Michael P. Mills of the U.S. District Court for the Northern District of Mississippi granted a request by the American Health Care Association (AHCA) to bar CMS from implementing a rule that bans arbitration agreements in skillednursing facilities included on the Final Rule which would have taken effect on November 28, The AHCA argued that the rule exceeds the CMS statutory authority and is wholly unnecessary to protect the health and safety of residents. However, on January 5, 2017, CMS filed a Notice of Appeal with the District Court that granted the injunction preventing the CMS rule from taking effect. The case is now pending in federal Fifth Circuit Court of Appeals for a decision. The implications are far-reaching The District Court proceedings are stayed pending an appeal by CMS. The record from the District Court has been filed and CMS s brief is due on March 6, CMS, in a memo dated December 9, 2016 (and inserted below) put a stop on enforcing its arbitration ban. Notably the memo also states that facilities will not be audited by Medicare surveyors. Center for Clinical Standards and Quality/Survey & Certification Group Ref: S&C: NH DATE: December 09, 2016 TO: State Survey Agency Directors FROM: Director Survey and Certification Group SUBJECT: Long-Term Care (LTC) Regulation: Enforcement of Rule Prohibiting Use of PreDispute Binding Arbitration Agreements is Suspended so Long as Court Ordered Injunction Remains in Effect. Memorandum Summary Enforcement Suspended Until and Unless Injunction is Lifted: The Centers for Medicare & Medicaid Services (CMS) will not enforce the new rule prohibiting skilled nursing facilities, nursing facilities and dually-certified facilities from using pre-dispute binding arbitration agreements while there is a court-ordered injunction in place prohibiting enforcement of this provision. Page 2 State Survey Agency Directors Background On September 28, 2016, the Federal Register posted the notice of the CMS final rule Reform of Requirements for Long-Term Care Facilities. The rule was published in the Federal Register on October 4, 2016, and became effective on November 28, The published final rule revises the requirements that LTC facilities must meet to participate in the Medicare and Medicaid programs. One of the new requirements at 42 C.F.R (n) (1) prohibits nursing homes receiving Medicare or Medicaid funds from entering into pre-dispute binding arbitration agreements with any resident or resident s representative nor require that a resident sign an arbitration agreement as a condition of admission to the nursing home. On November 7, 2016, the United States District Court for the Northern District of Mississippi,, Oxford Division (Civil Action No. 3:16-CV-00233), issued an order preliminarily enjoining CMS from enforcing section (n)(1). At this time, CMS will not enforce (n)(1) until and unless the injunction is lifted. As such, surveyors must not survey facilities for compliance with this new provision until further notified. Contact: For questions about the program please contact the CMS mailbox at NHSurveyDevelopment@cms.hhs.gov. Effective Date: Immediately. This policy should be communicated with all survey and certification staff, their managers and the State/Regional Office training coordinators within 30 days of this memorandum. /s/ David R. Wright cc: Survey and Certification Regional Office Management At the same time, on October 28, 2016, the United States Continued on page 4

2 Pathway to Rehabilitation Excellence By Kaleb Roudabush, NSCA-CPT Wellness Coordinator Tips For Winter Wellness With winter here, cold weather and shorter daylight hours can have negative effects on our bodies and make wellness difficult. In many parts of the country, the air becomes dry, making it hard to keep skin from cracking; our sinuses can become irritated and increase mucus production; and shorter daylight hours reduce vitamin D production, which can cause a lot of people to become more prone to feeling depressed because of the dreary weather. Produce also becomes limited; therefore, we may not eat as many fresh fruits and vegetables. There are many things you can do to keep wellness at the forefront during this cold, dry, and dreary season, though! If you follow these tips, you ll find yourself feeling better. 1. If fresh produce is harder to come by during this time of year for you, check with your doctor to see if supplements are right for you! 2. Keep your hands clean, use soap and water. Cool water can reduce drying and cracking of the hands compared to hot water, cool water is just as effective as using hot water to wash hands. 3. Use gentle lotions or oils to keep skin from drying and cracking. Dry and cracking skin exposes you to bacteria or viruses because of open entry through the skin. 4. Drink plenty of water. This keeps your skin healthy along with cellular health. 5. Try to keep sugary foods in check. Too much sugar not only promotes risk for diabetes and weight gain, but also may throw your healthy gut bacteria out of balance. Your gut bacteria make up 80 percent of your immune system. If you cannot resist, try to eat a lesser portion of the sugary items. 6. Remember that being healthy is a journey. Along the way, we hit bumps in the road, we get sick, we fall off our diet or make poor choices. However let s encourage and support one another. We all come from different walks of life and we all can benefit from encouragement. We become better when we feel better about ourselves and helping those around us. Kaleb Roudabush is Wellness Coordinator for Functional Pathways. For more information, please contact him at kroudabush@fprehab. com or call You can also discover more at www. FunctionalPathways.com 2 CORE VA LUES RELATIONSHIPS RESPONSIBILITY SELF-IMPROVEMENT INNOVATION COMMITMENT PASSION Take a Good Look at This Man s Photo He May Someday Save Your Life If a Gunman Enters Your Nursing or Assisted Living Facility Our Nations #1 Long-Term Care Security Consultant Joe Murray Presents The Active Shooter Discover More at ExtendedCareProducts.com or at

3 Getting on the Same Page by Paige Hector, LMSW Resident s Right and Poor Choices: What is a Facility to DO? Individuals living in nursing facilities have rights just like people who reside in community settings. Staff in the home are obligated to uphold resident rights yet at the same time protect residents from poor outcomes and the facility from liability. Managing all three can be tough! Sometimes situations arise in which it can be challenging to uphold residents rights and to keep residents safe when they make choices that may result in negative outcomes or harm. When a resident wishes to make a choice to engage in a practice or behavior that may result in harm, it is imperative that the facility engage in discussion (verbal and written) with the resident to ensure adequate understanding of the risks involved. The interdisciplinary team and other staff as appropriate, needs to work together to explore the reasons why the resident is making the choice and if there are acceptable alternatives that would be less risky. The team must determine the resident s cognitive status since that greatly impacts the facility actions actions that would likely be different for someone who is cognitively impaired. The team must also discuss the impact of the resident s choice on the facility and perhaps other residents. Consider the challenging issue of electric wheelchairs. For an individual with limited mobility, the freedom provided by an electric chair can be liberating and increase the person s sense of well-being. Those are wonderful outcomes and should be supported. However, the use of an electric wheelchair should be considered a privilege, one that comes with requisite responsibility that ensures the safety of the wheelchair operator as well as others in the facility. This responsibility extends into the community if the resident goes on leaves of absence. First and foremost, the facility must ensure there is a policy that addresses the use of electric wheelchairs. And, that staff follow it exactly with appropriate documentation in the medical record. Part of that policy may include a requirement that the resident sign an agreement that outlines the expectations to ensure safety and consequences if that is not upheld. Some facilities bring an element of fun to the process and create a driving school that the resident must attend, and pass, in order to earn their license. Remember that regular reassessment of driving ability is necessary, especially if the resident has had a change of condition. In terms of resident rights, the resident does have the right to use the electric wheelchair but NOT to operate it unsafely. Perhaps the best discussion of this complex issue was written by a committee with The Society for Post-Acute and Long Term-Care Medicine called The Younger Adult in the Long Term Care Setting here s a link to the resource org/product-store/younger-adult-long-term-care-setting. The authors make an important point that the facility has more right to restrict wheelchair use when the resident is dependent on staff to get into the chair. Another important consideration, for any resident who accesses the community, is that the facility is responsible for assessing the resident s safety to go on a leave of absence. Various assessment tools are 3 available to help staff address all aspects of a comprehensive assessment such as navigating streets, what to do in case of an emergency, knowledge of potential dangers and following facility policies for signing out, etc. If the facility does not engage in regular assessment and documentation of the resident safety on an LOA, not only is it possible that a resident could sustain injury, it is also possible that the facility could be cited for deficient practice, perhaps even at an Immediate Jeopardy (IJ) level. A tool that may be helpful as staff negotiate discussions of choice and risk with residents or surrogates is called a shared risk agreement. Guide One Risk Resources for Healthcare has a free online document that provides a good outline for this discussion and documentation - com/docs/shared/doc_sharedrisk.pdf. The concept is that the resident or surrogate assumes certain risks in exchange for accommodation of preference. Whether it s driving an electric wheelchair, food choices, or declining treatment our job is to treat residents with respect, to honor their choices and to protect our facilities. ***** I m pleased to be partnering with Extended Care Products to present a 60-minute webinar titled Developing Care Plans: Resident-Centered & On Target on Thursday, March 23 rd. I ll be doing two presentations at 10:00AM (EST) and 2:00 PM (EST) so just select the time that works best for you. Discover more at or at Developing person-centered care plans is not just good resident care, it s required. Empower your staff to be successful with their care planning process and minimize risks of getting cited for common deficiencies like comprehensive care planning, quality of care and qualified individuals. In this webinar you ll discover how to utilize a strengths perspective in every care plan, how to simplify goals that are truly resident-centered, avoid common errors with care plans and addressing the challenges of mood and behavior issues. Learn strategies for facilitating great care conferences and getting residents and staff engaged. Presents... THE PAIGE HECTOR WEBINAR NURSING FACILITY PROFESSIONALS DON T WANT TO MISS! Developing Care Plans: Resident Centered & On Target Thursday March 23 Complete Details and Register at or

4 The HAT Advantage continued from page 1 Supreme Court granted a review petition in a case in which the Kentucky Supreme Court refused to enforce arbitration agreements in nursing home agreements. Oral argument before the Supremes is set February 22, In Kindred Nursing Centers Limited Partnership v. Clark, three wrongful death cases were consolidated. In each of them, someone with power of attorney for the decedent had signed admission documents that included an arbitration clause. However, Kentucky requires that a powerof-attorney document specifically authorize the agent to waive a jury or court trial in order to validly form an arbitration agreement, and these three POAs did not have that language. The Kentucky court refused to infer the agent s authority to waive his principal s constitutional right to access the courts and to trial by jury unless that power is unambiguously expressed in the power-of -attorney document. LITIGATION RISK DEFENSE STRATEGIES LONG-TERM CARE & ASSISTED LIVING PROVIDERS, INSURERS, BROKERS FOR laissez les bon temps rouler SAVE DATE THE AND AND MARCH 29 & 30, 2017 NEW ORLEANS, LA ROYAL SONESTA HOTEL BOURBON STREET HOSTED BY: COWAN & LEMMON, LLP HORNE ROTA MOOS, LLP HAGWOOD ADELMAN TIPTON, PC KAUFMAN BORGEEST & RYAN, LLP free webinar. Please join us for the Litigation Risk and Defense Strategies for Long-Term Care & Assisted Living Providers, Insurers, and Brokers Conference. The 5th annual event, co-hosted by Hagwood Adelman Tipton, PC; Cowan & Lemmon, L.L.P.; Horne Rota Moos LLP; and Kaufman Borgeest & Ryan, LLP, will be held March 29 and 30, 2017 in New Orleans at the Royal Sonesta Hotel. I am looking forward to speaking at the conference. We host the conference complimentary to our clients with a variety of clinical, legal and risk management educational offerings and plenty of fun! me at radelman@hatlawfirm. com with questions. Please also join us for two special events. Healthcare Risk Professionals of Tennessee (HRPT) would like to invite you to join us March 1, 2017 at 2:30 CST for a webinar presented by Joyce Benton and Janna Bennett, Risk Control Consultants with CNA HealthPro. We hope you can join us for this The question before the Supremes is Whether the FAA preempts a state-law contract rule that singles out arbitration by requiring a power of attorney to expressly refer to arbitration agreements before the attorney-in-fact can bind her principal to an arbitration agreement. While public policy pursuant to the FAA favors contractual arbitration provisions, we know that courts are more reluctant to enforce them in the healthcare lawsuit. The Supremes decision may be an indicator of how it may decide the challenge to the CMS prohibition on mandatory arbitration. For our industry, pre-dispute arbitration agreements are not necessarily invalid. Be very diligent in obtaining the powers of attorney for each resident and assessing the resident s mental capacity to waive the rights to a jury trial. Despite the stated federal public policy in favor of arbitration, we continue to fight against the prohibitions and limitations on arbitration in nursing homes. We will continue to keep you closely posted. Review your ADR program and contract materials filed for accuracy and completeness. 4 That same day, we invite you to an open house reception in Memphis at our offices to celebrate the new HRPT. Our inaugural event in Nashville on January 11, 2017 was a great success! Learn about HRPT, learning opportunities and networking as well as membership options! Visit the HRPT website at for more information. I am very proud of the commitment and contributions HAT makes to long term care and nursing professionals. Please learn more about the firm at our website and reach out with any industry questions, comments or requests for more information. Rebecca Adelman, PLLC, Esq. - Ms. Adelman is a founding shareholder of Hagwood Adelman Tipton, PC and practices in the firm s Memphis, TN office. She is the chair of the firm s Strategic Planning Committee and Women s Rainmaker Mentoring Program. For over 25 years, Rebecca has concentrated her practice in insurance defense litigation representing national insurance carriers and self-insureds with a concentration in healthcare law. Please feel free to contact her at radelman@hatlawfirm.com or visit her website:

5 Kessler s Corner by Chip Kessler Are You Doing All that You Can to Build Census? I m not in these pages as much as I used to be because as the publisher and editor I m always of the mindset to give my wonderful columnists first opportunity to share with you what they have to say. I m back this time around however because something s come to my attention that I thought was very important. There s the nursing and assisted living facility administrator/ executive director or marketing director who does enough to get by, and then there s the census building professional that wants to go the extra mile and use all avenues to get every potential new resident out there. Which one are you? Case in point: the family knows their loved one needs the kind of care your facility provides, and wants them to reside in your building. There s a stumbling block however, namely the person-inquestion still lives in their home. As it so happens in this particular situation, the house needs to be sold before the individual can become your new resident. Perhaps this is a scenario you ve faced before. What have you done about it? For some long-term care professionals, the response might be let me know when you have the house sold, and we ll be happy to have your mother come stay with us. These words are said in a sincere manner, but things are left hanging here. What if a buyer can t be found for the home? What if the home does sell in the future, what guarantee do you have that the family is still going to use your facility? These are questions, and a challenge that has recently been brought to my attention. And because I work with facilities like yours nationwide, consulting in their marketing and census building process, I wanted to do some research myself into the senior home selling arena. Was there a way that assisted living and nursing facility professionals could somehow facilitate the potential sale, and get that new resident sooner than later (again keeping in mind that later may mean not at all)? In doing some checking into the entire home selling/home buying process I uncovered a really interesting scenario that seems to be gaining in popularity. When you think of selling a house (and many of us have done it at least once in our lives) we tend to gravitate to the more traditional track of doing this. Here, we contact a real estate agent who lists the home for us. The realtor may ask us to do some fix-ups and repairs (i.e. spend money) in order to get the house what s called show ready. Then it s on to things like open houses and having to leave the premises while the home s being shown. With any luck, the house may sell in a few weeks, more than likely a few or several months, but maybe not at all. Again for you, looking to bring in more new residents you re leaving things open to a host of variables that you have no control over. I m sure you ll agree that the more you can keep a small hand in the process, the better your chances of eventually getting the new admission. That s why I set about learning more about the house selling/ buying process, and discovered something I wanted to share with assisted living and nursing facility professionals that may be of 5 interest. Quite frankly what I discovered was a fast, easy way to potentially get a house sold. Perhaps you re aware that there is a group of individuals who directly buy houses. I m not talking about the so-called flippers you see on HGTV or the DIY television networks who buy homes and want to quickly sell them for a fast buck. Rather I m referring to those who invest in houses because this is their business. In doing some further checking on this type of businessperson, interestingly I kept hearing one name pop up. Best of all, the more I heard about this person, the more I liked. Former Navy Chief Petty Officer; family man; known for his honesty and integrity. And because I m such an advocate of any business (especially those in the nursing and assisted living facility sector) acquiring a glowing list of testimonials from happy and satisfied folks who ve used your services, I really liked the fact that this gentleman had a substantial list of testimonials from those he s bought homes from. I read with interest how these satisfied home sellers spoke so highly of this man, and that he was a real pleasure to do business with because he was so above-board and straightforward. I don t know about you, but in this day and age of not knowing who to trust and what to think, this particular individual came across as someone worth knowing. So I called him, just to hear for myself if he was the real deal. I ll be honest, I was at least a little skeptical at the outset because usually no one completely lives up to their advanced billing. However this man proved to be a sparkling exception. Not satisfied with just hearing his voice over the telephone, I then arranged to meet him. After all, if I was serious about providing my readers an additional path towards helping to build their census, I needed to be 100% satisfied that this was a strategy worth pursuing. He did not disappoint, in both his demeanor plus what he can do. I m going to leave things here for now. If I ve sparked your interest, fair enough. Now if you are presently getting all the new residents you can handle, then maybe playing a small role to help families sell a house isn t for you. However if you re like most I hear from in the nursing and assisted living ranks, then you can t leave any stone unturned when it comes to a census building avenue. I ll leave that decision up to you. I m not going to mention the gentleman s name here, nor his business name because this column isn t about giving him free publicity just for the sake of putting something in print. However if you re serious about discovering more I m happy to give you his contact information to pass along to any prospective families and responsible parties that may be in a house selling situation before the new resident can come to your building. me at chip@ecpnews.net if you want this information and you ll get it. Use the subject line house. My suggestion is to get in touch with me because the more you can do to get your building filled up, the better your chances of accomplishing this goal. Chip Kessler is the author of two books on marketing. His latest The No B.S. Guide to Marketing to Boomers and Leading-Edge Seniors (Entrepreneur Press) co-written with marketing legend Dan S. Kennedy is available at leading book sellers nationwide, plus is available as a free bonus gifts as part of his Marketing Magic DVD System at for nursing facilities and for assisted living communities.

6 NAL Professional Not Coming Addressed to You Personally? We want to make sure you are personally getting this newsletter each month, not just have it forwarded to you because you re now holding down the position of a predecessor! Let us know you now are on the job. your name, facility/company name and address to chip@ecpnews.net & we ll update our records. Just put NAL Professional on the subject line and we ll take care of the rest. NAL Professional P.O. Box 4852 Johnson City, TN PRSRT STD US POSTAGE PAID MWI