Happy Fall! September always delivers on its promise of change (including me gaining another year!) September is also the month when providers, insurers and attorneys join together for a summit meeting on the not-so-easy critical issues affecting risk management and litigating aging services claims across the country. The Defense Research Institute (DRI) hosts an annual Nursing Home and Assisted Living Litigation conference and this year, we met in New Orleans from Sept. 13-14. Adelman Law Firm proudly sponsored the event, and I’ve participated now for more than a dozen years. This year was another exceptional event, and it included the inaugural Women in the Law Luncheon.
Here are the some of the takeaways from the DRI Long-Term Care/AL Litigation conference.
1. QUALITY DEFENSE COUNSEL
The nature of long-term care litigation – including aggressive plaintiff’s attorneys and advancing theories (corporate liability, fraud, assault and wrongful death) – requires effective, quality defense counsel to proactively defend claims and lawsuits. Knowledge of the clinical issues is critical, along with an understanding of corporate law, technology and risk mitigation. Defense counsel must master all of these to provide the highest caliber legal and advisory services to a long-term care client.
2. WELL-PREPARED CAREGIVER WITNESSES
Although caregivers deliver quality care to residents and develop positive relationships with family members, plaintiff’s attorneys often scrutinize their credibility in long-term care litigation. Thoroughly preparing caregiver witnesses will increase their confidence so they can tell the defense’s story of a safe, supportive culture and environment and the quality care delivered to residents. There are several legal ways the defense attorney can be proactive and protect the witness and the provider’s story, including objections to deposition questions and efforts by plaintiff’s attorneys to solicit expert testimony from a fact witness. Also, defense counsel can object to theories used by plaintiff’s attorneys related to a greater standard of care than the law requires. Preparing the witness for objectionable questions and theories will also create the proper record for a court determination on an objection or even an appeal. Making a witness comfortable discussing clinical judgments and treatment decisions will advance the defense strategy of focusing the jury on the resident’s care and away from the irrelevant corporate matters a plaintiff spotlights.
3. ASSISTED LIVING RISK MANAGEMENT
Emerging enterprise risks in assisted living include:
Reimbursement reduction risk
Cyber/social media risk
Community and workplace violence risk
Health care reform-related risk
The key elements to a comprehensive risk management program include underwriting assessment of risk, corporate in-house risk management, management of common assisted living risks and incident management.
4. HOME AND COMMUNITY-BASED PROVIDERS
Self-determination and care-setting choices are being realized through delivery of care by home- and community-based providers (HCBS). Many risk factors exist for HCBS providers, including client profiles (a multitude of medical and co-morbid conditions), provider profiles (residential vs. outside providers) and client acuity, as well as staff skill level. HCBS claims are similar to those seen in skilled and assisted living lawsuits for negligence, medical negligence and negligence per se (violation of regulations). Liability defense of the HCBS claim will most often require expert testimony, and creative defenses can be used to respond to challenging claims. Because incident reporting and record retention are less formalized for HCBS providers, litigation discovery and production of information are somewhat different than in skilled nursing cases. Damages in HCBS claims are often significant, as claimants and descendants may be younger and have longer life expectancies. Special damages and future care costs can also be significant and difficult to calculate due to existing disabilities and assistive services. Non-economic damages (pain and suffering, loss of companionship) can also be difficult to determine when coupled with emotionally impacted family members who have little to lose if a case proceeds to trial.
5. EFFECTIVELY MANAGING WORKPLACE VIOLENCE
In considering the increased risk for senior living facilities with workplace violence, it is critical to proactively mitigate against the risks. A comprehensive risk management solution will increase the defensibility of a lawsuit. Proactive risk strategies include awareness of active shooter/workplace violence risk, preparation for active shooter/workplace violence incidents and response after an active shooter/workplace violence event.
6. PAYROLL BASED JOURNAL DATA (PBJD)
In 2017, the Centers for Medicare & Medicaid Services (CMS) began releasing downloadable data sets containing the PBJD files for every skilled nursing facility in the United States. The PBJ provides daily data on staffing levels, with each facility receiving one record for each day in the quarter. That data, which is available to the public, has significant effects on nursing homes’ legal and regulatory risks. In litigation, we defend against claims of under-staffing and corporate under-budgeting, and plaintiff’s attorneys rely on the PBJD to support these claims. For the Five-Star Nursing Home Compare staffing data, the PBJD files were limited to specific types of staff. Yet in July 2018, the PBJD includes a variety of other staffing data that is not included in the Five-Star rating system, creating inconsistencies and recognizing the positive effects on residents reflected in the data. Also, the PBJD underestimates the number of staff providing care to residents, and it overestimates the number of residents, resulting in staffing level miscalculations. This inaccurate data is being used by plaintiff’s attorneys to support the claims of under-staffing. For the providers and the defense counsel, PBJD can be used for risk and litigation management to offer data-driven, positive and factual data about staffing, including the types and numbers.
7. THE NEW CMS REGULATIONS
In litigation, plaintiff’s attorneys often argue the CMS regulations to establish the “standard of care.” Yet they are intended to promote safety and quality of care. However, a violation of the regulations can result in liability against a provider, so understanding the recent changes and defense strategies are important. I’ve written about the rule changes in CMS in 2016 and the Phase 1 and 2 changes. They include changes in CFR 483.10 Resident Rights; CFR 483.12 Freedom from Abuse, Neglect and Exploitation; CFR 483.15 Admission, Transfer and Discharge; CFR 483.20 Resident Assessments; CFR 483.24 Quality of Life; and CFR 483.25 Quality of Care.
8. CORPORATE LIABILITY
Corporate liability claims and exposure of multi-entity owners and operations are based on separate entities, often providing support through operations, staffing, administrative and clinical support. Theories of liability include vicarious liability, alter ego and direct liability. In defending these claims, counsel develops evidence and strategies focused on the scope of the duty owed by a corporation, the lack of a breach of duty, and causation. Changes to the Facility Assessment (42 C.F.R. §483.70(e): Facility Assessment), shifting the Facility Assessment focus back to the federal regulations, and basing the sufficiency of staffing on acuity and individual patient needs also presents increased risks for corporations and the decision-making expectations and budgetary considerations made by the managing entities.
The conference was filled with abundant learning opportunities, and this article provides only an overview of the main topics covered. For more in-depth information on any of these areas, please contact me, and we can further our discussions.