Meet NAHCA – The Elevated Care Force

I am so excited and grateful to co-author this month’s article with Lori Porter, one of the founders of the National Association of Health Care Assistants (NAHCA). The mission of NAHCA is to elevate the professional standing and performance of caregivers through recognition, advocacy, education and empowerment while building a strong alliance with health care providers to maximize success and quality patient care. NAHCA offers needed support that is welcome more now than ever. 

In the many years and on the many levels I’ve been involved in long-term care, one of the most frequent topics of discussions is “staffing.” In fact, several presentations were focused on staffing issues at the ARI ALF/Nursing Home Seminar just last week. Most recently, I reported on the regulatory and operational reform hearings held before the Senate Finance Committee in March and July. Between Five-Star staffing measures, Payroll-Based Journal and the Final Rule related to staff education, the standing and performance of caregivers is receiving greater attention and change. 

For example, the Final Rule took steps to improve staffing by (1) requiring staff to have “appropriate competencies and skill sets” to care for the residents living in the facility; (2) required training around issues such as abuse prevention and dementia care; and (3) required an annual Facility Assessment which mandated nursing homes to assess necessary staffing needs for their facility by taking into consideration the number, acuity and diagnoses of its resident population.

Meet NAHCA – the voice of Certified Nursing Assistants (CNAs), the “Care Force” and provider of educational resources for CNAs. CNAs provide over 90% of the direct patient care and make up the largest group of employees working in health care facilities today. 

Lori’s here to share with us how NAHCA can help support your Care Force community.

It has been a great honor to serve CNAs for the past 25 years;  working with them to build a strong professional community. NAHCA also works directly with senior housing providers on CNA professional development, career lattices and resources to support their efforts in building a strong stable CNA team.

Very few understand what motivates a CNA, what drives them to achieve excellence.  They do not have jobs, they have passion. When passion turns to burnout without any relief, we lose great people who must be transformed not terminated. The relationship between CNAs and residents/patients is one that can only be felt not understood. 

Senior housing does not have a recruitment problem but rather a retention problem.  Passion in action takes a great deal of support not present in most health care workspaces today. NAHCA not only speaks of it but has developed a host of proven solutions for both employers and their CNAs.

We look forward to collaborating with Adelman Law Firm in developing and delivering new and innovative education on managing expectations with families and residents, incident reporting and investigation, communication and documentation. 

Lori and I will be offering a webinar this Fall on CNA education, so please reach out to us if you’re interested in a complimentary registration. 

The following is a list of educational resources that NHACA has developed to meet the diverse needs of its members and to provide the best possible learning experience:

The NAHCA Virtual Campus of Care (NVCC):

NVCC is a distance-learning platform that allows members to drive their own learning experiences. It enables them to learn at their convenience, anywhere, anytime and on any device. NVCC content is organized into five major categories: Clinical, General, Required, Exclusive and Elective Education.

The purpose of Clinical Education is to build on the fundamentals that each CNA received from their initial certification or licensure. The content within the category of General Education is intended to help in the development of skills such as communication, team building and problem solving. Required Education is NAHCA’s effort to help our members better understand the Federal Regulations that impact their scope of practice, as well as the requirements for education that help them stay in good standing for their recertification. Exclusive Education houses some of our most prestigious course content. Members who have demonstrated genuine commitment to their growth are assigned these courses. The Elective Education category is available for members who wish to take an active role in course selection. NAHCA’s leadership carefully considered NAHCA’s members as they developed each course and current feedback says NAHCA has succeeded in creating relevant and meaningful education.

Professional Development Coaching:

This is a unique feature of membership. Some members of the NAHCA team serve as Professional Development Coaches (PDCs). They are selected based upon their depth of experience within the long-term care system and service as CNAs. As PDCs, they work to guide our members toward desired outcomes like helping to decrease turnover. They also coach individual members on matters of personal and professional growth.

The Geriatric Care Specialist (GCS) Course:

This ten module course of study is dynamic and enhances the clinical knowledge and competency of those who complete it. The GCS course starts with an in-depth look at anatomy and physiology and concludes with the survey and regulatory process. The comprehensive exam at the end of the course reinforces how well the member understood the content and that they attained a level of mastery.

The Certified Preceptor Course:

One of the most challenging issues in long term care is the high rate of turnover. The majority of turnover occurs in the first 90 days of employment. CNAs have a great potential to help decrease turnover by serving as a teacher, mentor and coach for the newest members of our profession. This eight module course is designed to equip our members with the tools necessary to serve as a bridge to help get the new staff through that critical phase of initial employment.

NAHCA’s Annual Conference:

Each year, the Association hosts the nation’s premier gathering of CNAs, STLNAs, PCAs and other caregivers with similar scopes of practice. The Annual Conference provides 12 to 16 hours of education for all attendees, fantastic networking opportunities that allow folks to share best practices and culminates with the prestigious Key to Quality Awards Banquet where members are recognized for the noble and humanitarian service they render to those they care for on a daily basis.

The CNA Code of Ethics and Federal Regulations Handbook:

This handbook was created to educate our members related to NAHCA’s strongly held belief in a code of ethics that drives conduct and performance. A section on regulations was added because NAHCA members were being held responsible for complying with regulations that they had not necessarily been educated on during their certification course. This section is accompanied by examples of how the F-Tag might be observed.

The Edge E-Newsletter:

News you can use that comes right into your email inbox. This monthly periodical covers both the immediate and emerging issue within the profession. NAHCA’s Steering Commission, staff and guest contributors strive to provide the news you need to be your very best. The Edge also highlights caregivers who are doing exceptional work.

“Ask Lori Anything”:

Lori presents 10- to 20-minute video segments based upon questions she receives from members. These videos are intended to educate and entertain the viewer. Lori is one of the most sought-after speakers in long term care. Watch one segment and see why. You are definitely going to want to watch each new segment. “Ask Lori Anything” is released every month.

Please explore how the NAHCA can partner with your organization and provide education and training to your CNA staff for best practice and quality of care learning and professional development. 

Also, please save the dates of April 21-22, 2020 for the 8th Annual National Long-Term Care Defense Summit! 2019 was amazing. Look forward to education, networking and fun in New York City in 2020! You’ll love the Parker Hotel and the penthouse Estrela conference room with 360 degree views of the city and Central Park. Please plan to join us! For more information, please contact me at rebecca@adelmanfirm.com.

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Rebecca Adelman is an entrepreneur, influencer, thought leader and founder of Adelman Law Firm, a Women’s Business Enterprise National Council (WBENC) certified Women Business Enterprise (WBE), established in 2001. For nearly 30 years, Rebecca has concentrated her practice in insurance defense and business litigation. The firm’s practice extends through the tri-states of Arkansas, Mississippi and Tennessee. Rebecca’s insurance defense practice includes representation of insurance companies and long term care providers and their insurers, both regionally and nationally. She also provides consulting services and educational programming to health care professionals and business associates. She has active practices in the areas of general liability, professional liability, premises and employment law. She is a listed mediator serving all areas of business and health care litigation. Contact Rebecca at rebecca@adelmanfirm.com, and visit www.adelmanfirm.com and www.rebeccaadelman.com.

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Lori Porter started her career in long-term care more than 35 years ago. She began as a dietary aide, moved on to be a CNA for 7 years, a nursing home administrator for nearly seven years and operations director of 10 skilled facilities in the Midwest. In 1995, she followed a dream and created the National Association of Health Care Assistants to honor and recognize CNAs and other frontline care providers who serve our nations frail, elderly and disabled as well as elevate the profession of nursing assistant through professional development, advocacy and empowerment. 

She and her staff have grown NAHCA to a membership of more than 30,000 members nationwide and a partnership with more than 800 nursing facilities across the country.

Lori is a nationally sought-after speaker and author of her book, Everything I Learned in Life I Learned in Long Term Care. She can be contacted at lporter@nahcacna.org.

Cannabis in Senior Housing - What You Need to Know (At Least For Now!)

Do you know how to approach the complex subject of marijuana use in your senior living center? This article will provide an overview of the legalization movement and address policy considerations, resident risk management issues and employment issues.

Adelman Law Firm has expanded to include a Cannabis Law Industry Practice Group to advise and provide legal support to health care providers on legal and operational challenges raised by recreational and medical marijuana use by residents and employees. Please contact me for more information on the issues navigated in this article.

Overview of the Legalization Movement

The legal history of cannabis in the United States began with state-level prohibition in the early 20th century, with the first major federal limitations occurring in 1937. Starting with Oregon in 1973, individual states began to liberalize cannabis laws through decriminalization. In 1996, California became the first state to legalize medical cannabis, sparking a trend that spread to a majority of states by 2016. In 2012, Colorado and Washington became the first states to legalize cannabis for recreational use.

As of 2019, eleven states, two U.S. territories and the District of Columbia have legalized recreational use of cannabis. 35 states, four U.S. territories and D.C. have medical conditions that allow for treatment varying from state to state.

Some Legal Risks for Senior Housing Operators

The Controlled Substances Act (CSA) classifies marijuana as a Schedule I drug, claiming that it has a high potential for abuse and has no acceptable medical use. This means that the cultivation, manufacture, sale, distribution and use of medical cannabis violates the CSA and constitutes a federal felony. This conflict between state and federal law raises many legal questions for residents and health care providers. Without diving too deep into the legal weeds (so to speak), it’s important to understand that pursuant to the Supremacy Clause of the United States Constitution, federal law preempts state law in the occurrence of a conflict. This means that legality under state law cannot impact marijuana’s illegal status under federal law.

The conflicting messages from the Department of Justice (DOJ) on the topic of marijuana enforcement are beyond the scope of this article. I will, however, highlight that in 2014, the Rohrabacher-Farr Amendment was passed and prohibits the DOJ from using funds made available through the federal budget to interfere with any state’s implementation of their own medical marijuana laws that authorize the use, possession or cultivation of medical marijuana. This has not stopped the DOJ from prosecuting marijuana industry companies, yet none of the cases involve senior housing. Case law applying, this amendment suggests that it may offer protection for state-sanctioned programs.

Providers certified by the Centers of Medicare and Medicaid Services (CMS) are subject to Requirements of Participation that require providers to operate and provide services in accordance with all applicable federal and state laws. Because marijuana is classified as a Schedule I controlled substance, that classification renders the manufacture, distribution or possession of marijuana a criminal offense. Therefore, it is CMS’s standpoint that federal law prohibits certified providers from dispensing medical marijuana. CMS has issues no guidance on the medical marijuana.

Some Policy Considerations

The range of policy considerations for senior housing covers complete prohibition to sanctioned self-administration. Also, keep in that each state’s law differs regarding medical and recreational marijuana uses as does the regulations governing assisted living. If your state has legalized medical marijuana use, consider the following when developing your community’s policies and procedures:

  • Does the community treat a population or particular demographic with a higher rate of medical marijuana use?

  • Does the community specialize in treating one or more “serious medical conditions” that qualify a patient for medical marijuana in some states (i.e. Alzheimer’s disease, Parkinson’s disease, terminal illness requiring end of life care, severe pain, neuropathy, PTSD and many others)?

  • Does the institution receive federal funding that could be impacted by permitting the use of medical marijuana? (“Yes” for Medicare-funded skilled nursing.)

  • What is the facility’s existing human resources policy on a drug free workplace, and does this policy address use of medical marijuana by employees?

Also, I encourage you to review the article in Medical Cannabis in the Skilled Nursing Facility: A Novel Approach to Improving Symptom Management and Quality of Life published in the Society for Post-Acute and Long-Term Care Medicine (AMDA) by Zachary J. Palace, MD, CMD and Daniel A. Reingold, MSW, JD for information about demonstrated significant decreases in prescription medication use, most notably a reduction in opioid analgesic usage in older adults utilizing medical cannabis legally.

About Medical Use Policy and Procedures

If your state has a medical marijuana program, you will need to understand the law. We can assist with advising on the state regulations and strategizing about what’s best for your community. If you choose to implement a medical marijuana policy and procedure, here are some points:

  • The Hebrew Home at Riverdale, a 735 bed skilled nursing facility located outside of New York City (New York legalized medical cannabis in 2014), developed a program that enables residents to access medical cannabis under New York State law, while the institution itself remains compliant with federal law.
    To remain compliant with federal law, the institution cannot purchase or store medical cannabis, although the home provides residents with individual lock boxes to store their cannabis medicine. Residents must purchases their cannabis medicine on their own from a state certified dispensary. For those who cannot travel, the New York certified Vireo dispensary offers Skype consultations and free delivery.
    Residents must also self administer their medicine or have it administered by a caregiver who is not on the Hebrew Home staff. Because the Hebrew Home is a nonsmoking facility, only orally administered medications (capsules or tinctures) are permitted.

  • The Washington Health Care Association has also published a sample medical marijuana policy that requires each patient to designate a “provider” who will bring medical marijuana product into the facility, administer the medication and then remove the unused product. The policy also states that staff will not assist residents in obtaining or using medical marijuana, store medical marijuana or ensure that medical marijuana is being used appropriately. Staff involvement is to be limited to confirming a resident’s status as a qualified medical marijuana user and ensuring that the use of medical marijuana does not impact any other resident. Should a designated provider or resident fail to follow the policy, the facility reserves the right to enforce appropriate consequences, including discharge from the facility.

  • The Minnesota Hospital Association has published three different policy templates for medical marijuana use, which offer health care providers a range of options for handling medical marijuana use.

Each organizations’ policies will be different and custom designed for compliance with federal and state laws and regulations and best practices.

Derived from our work with health care clients and the various senior housing communities that have created and implemented marijuana use policies and procedures (note that there will be different policies for each senior housing setting), here are a few takeaways:

  1. Complete an initial assessment of all existing policies and procedures (including employment/HR policies) and determine what impact implementation of a marijuana policy may have on other policies for possible revisions.

  2. Provide education materials, state and federal guideline information to residents, families those who will be administering/delivering to the resident and expectations management.

  3. Prohibit smoking marijuana at the community, and create a policy that allows the use of marijuana in other forms.

  4. Include the policy in the admissions process with an acknowledgement that the resident/personal representation has reviewed and understands the policy.

  5. The Resident Assessment and Comprehensive Person-Centered Care Planning are keys to the success of a marijuana policy. Establishing the Baseline Care Plan implemented in Phase 2 of the Final Rule and proper interventions for clinical risks identified (falls, wandering, dysphagia, etc.) will mitigate risks.

  6. Incorporate policies related to wheelchair, scooter or other motorized devices into the marijuana policy (no driving while under the influence – similar to an alcohol policy).

  7. Specifically create policies to include the administration and storage of marijuana.

  8. Consider Negotiated Risk Agreements if they are enforceable in your state.

  9. Carefully evaluate management laws in your state and the federal laws as they relate to the use of marijuana in the workplace. The Americans with Disabilities Act (ADA), the Drug Free Workplace Act the Federal Employees’ Compensation Act (FECA) (Worker’s Compensation) and the Family and Medical Leave Act (FMLA), among other federal laws, state statutes and regulations, have a direct impact on employment decisions.

Now What?

The probability is that there is some cannabis product being used in senior housing communities in states that have legalized medical marijuana. The risk to long term care providers who receive federal funding is real, and there are many unanswered questions. Patient rights, compliance with conflicting state and federal law, your company’s mission, vision and operational strategies, treatment options for medical conditions and many more areas should be explored by your organization to determine if and how cannabis policies will be created and implemented.

Also, please save the dates of April 21-22, 2020 for the 8th Annual National Long-Term Care Defense Summit! 2019 was amazing. Look forward to education, networking and fun in New York City in 2020! You’ll love the Parker Hotel and the penthouse Estrela conference room with 360 degree views of the city and Central Park. Please plan to join us! For more information, please contact me at rebecca@adelmanfirm.com.

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Rebecca Adelman is an entrepreneur, influencer, thought leader and founder of Adelman Law Firm, a Women’s Business Enterprise National Council (WBENC) certified Women Business Enterprise (WBE), established in 2001. For nearly 30 years, Rebecca has concentrated her practice in insurance defense and business litigation. The firm’s practice extends through the tri-states of Arkansas, Mississippi and Tennessee. Rebecca’s insurance defense practice includes representation of insurance companies and long term care providers and their insurers, both regionally and nationally. She also provides consulting services and educational programming to health care professionals and business associates. She has active practices in the areas of general liability, professional liability, premises and employment law. She is a listed mediator serving all areas of business and health care litigation. Contact Rebecca at rebecca@adelmanfirm.com, and visit www.adelmanfirm.com and www.rebeccaadelman.com.

Emergency Preparedness - Stay Proactive: The Critical Elements and Proactivity

Emergency Preparedness - Stay Proactive: The Critical Elements and Proactivity

Over the past few months, numerous hurricanes have caused catastrophic damage. In the senior-housing community, this can lead to trauma and displacement among residents and loss among families and employees. In collaboration with Robert Young, International Goodwill Ambassador for Blue Team Restoration, Rebecca takes a look at the actions needed to accurate prepare for emergency situations.

Assisted Living Lawsuits: An Ounce of Prevention is Worth a Pound of Care

Assisted Living Lawsuits: An Ounce of Prevention is Worth a Pound of Care

As the population across the country ages, assisted living continues to grow in popularity. Resident care litigation risk has been emerging with more frequency as the mission and vision of assisted living communities evolve. Aging in place is a central philosophical aim of the assisted living movement, and the acuity levels of residents are higher and needs are increasing through the residency.

Overview of the Report to the National Advisory Council on Alzheimer's Research, Care and Services

Overview of the Report to the National Advisory Council on Alzheimer's Research, Care and Services

In Oct. 2018, the U.S. Department of Health and Human Services and the Foundation for the National Institutes of Health (through private sector support) held its first National Research Summit on Care, Services and Supports for Persons with Dementia and their Caregivers (the Summit). The report to the Advisory Council on Alzheimer’s Research, Care and Services presents the results of the Summit.

Legal Update: Evidence Preservation and ESI

Legal Update: Evidence Preservation and ESI

The recent case of EPAC Technologies, Inc. v. HarperCollins Christian Publishing, Inc., 2018 WL 1542040 (M.D. Tenn. March 29, 2018) provides a detailed example of the pitfalls of an inadequate litigation hold and the complexities of preserving ESI. The case revolves around a contractual dispute between a book publisher and a printing company, and it provides an interesting case study in the application of the changes to the Federal Rules of Civil Procedure governing spoliation of Electronically Stored Information (ESI).

Legal Update: Health Care Liability vs. Assault and Battery

Image courtesy of Huebi | Wikimedia Commons

In C.D. et. al. v. Keystone Continuum, LLC d/b/a Mountain Youth Academy, plaintiff, a minor, was a resident of Mountain Youth Academy, a trauma-focused residential treatment facility. The plaintiff got into a physical altercation with an employee of the defendant, Mountain Youth Academy. The complaint alleged, among other things, that the employee pulled the minor plaintiff to the ground and stomped on his foot, causing him injury.

The defendant moved to dismiss and/or for summary judgment, arguing that the complaint in this case alleges health care liability claims. The defendant argued that because of plaintiff's (1) failure to provide pre-suit notice under the Tennessee Health Care Liability Act (THCLA), Tenn. Code Ann. § 29-26-121 (Supp. 2017), and (2) the plaintiff's failure to file a certificate of good faith with the complaint, id. § 29-26-122, the lawsuit should be dismissed with prejudice. The trial court held that the plaintiff's claims sounded in health care liability. It dismissed the mother’s action with prejudice. The court also dismissed the minor’s action, but it did so without prejudice. The defendant appealed, arguing that the minor’s action should have been dismissed with prejudice. The plaintiffs also present issues. They argue that the trial court erred in ruling that their claims are based upon health care liability. Additionally and alternatively, the plaintiffs argue that their claims fall within the “common knowledge” exception to the general requirement of expert testimony in a health care liability action.

The Court of Appeals held that the plaintiff's claims for assault and battery were unrelated to the provision of, or failure to provide, health care services. Therefore, the plaintiff's assault and battery claims did not fall within the ambit of a “health care liability action” as defined by the statute and that the plaintiff's direct claims against the defendant, for negligent supervision and/or training of its employees, are health care liability claims but ones involving matters that ordinary laypersons will be able to assess by their common knowledge. Hence, expert medical testimony was not required and the plaintiff's claims were not required to file a good faith certificate with the complaint as to that claim. Therefore, the Court of Appeals held that mother’s failure to provide the defendant with pre-suit notice mandated a dismissal of her claim for negligent supervision and/or training, but that dismissal should have been without prejudice rather than with prejudice.

The court’s decision in C.D. v. Keystone provides further evaluation and assessment of whether a claim falls under the Tennessee Health Care Liability Act and when a good faith certificate is required for certain claims. Moving forward, the court’s decision will likely be used by plaintiffs to show that additional claims can be brought in a case involving a THCLA claim and that all claims against a health care provider do not necessarily fall under the THCLA. The court’s opinion also attempted to clarify the issue of whether a negligent supervision claim should fall under the THCLA. However, the court’s opinion is still vague as to whether the negligent supervision claim should be brought as a separate claim in the complaint or a theory underlying a claim for violation of the THCLA.