In This Issue - Click here to view a PDF
of the newsletter.
A Glimmer of Hope -
CMS Proposed Regulation May Ease Impact
The
News from Nicaragua - An Update on The Hogares de Ancionas
HR
Corner - Answers from the Top: EEOC Issues Guidance for Health Care
Workers Under the Americans with Disabilities Act
A Glimmer of
Hope - CMS Proposed Regulation May Ease Impact
by
Ken Burgess
In late November 2007, CMS
published a proposed regulation in the Federal Register (Vol. 72, p.
65692) designed to offer some relief to providers that lose their Nurse
Aide Training and Competency Evaluation Program (“NATCEP”) for two years
because civil money penalties (“CMPs”) of $5,000 or greater have been
imposed as a result of survey deficiency citations. The final rule is
not expected until sometime in 2008. However, if the final rule
substantially mirrors the proposed rule, it should help providers avoid
the loss of their NATCEP, at least in some cases.
Under both the federal
Omnibus Budget Reconciliation Act statute and implementing regulations,
states may not approve a NATCEP in a nursing facility that:
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has operated under a
nurse staffing waiver;
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has been subject to an
extended or partial extended survey that resulted in deficiencies;
or
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has had a denial of
payment, temporary manager or termination imposed as a result of
survey deficiencies or had a CMP of not less than $5,000 imposed.
Federal law makes the
disapproval of a NATCEP program and the two-year disapproval period
under these circumstances mandatory, meaning that CMS is required to
impose the NATCEP disapproval unless the facility at issue qualifies for
one of several limited waivers of the NATCEP loss.
The Social Security Act
authorizes CMS to waive NATCEP disapproval, notwithstanding the
imposition of one of these sanctions, if the state determines that there
is no other NATCEP program within a reasonable distance of the facility,
assures that an adequate environment exists for operating the program in
the facility at issue, and notifies the state’s Long Term Care Ombudsman
of the waiver. In 2003, Congress enacted the Medicare Modernization Act
(“MMA”), which authorized an additional waiver of the NATCEP automatic
disapproval if the disapproval resulted from the imposition of a CMP of
$5,000 or greater based on a deficiency that is not related to quality
of care provided to residents.
To date, CMS has never
issued regulations implementing the waiver created by the MMA in 2003.
As such, there has never been any basis in regulation to distinguish
between those deficiencies that are “related to quality of care” and
those that are not, with the result that all providers sanctioned with
CMPs of $5,000 or greater have lost their NATCEPs for two years. The
purpose of the proposed rule is to implement the MMA waiver.
The draft rule provides
simply that a facility may request that CMS waive the loss of its NATCEP
when the facility has been assessed a CMP of not less than $5,000 if
that penalty is not based on a deficiency or deficiencies that are
related to quality of care furnished to residents. The draft regulation
defines “quality of care furnished to residents” as “direct hands-on
care and treatment that a health care professional or direct care staff
furnish to a resident.” The rule also clarifies that waiver of the
NATCEP loss does not waive the facility’s obligation to pay the CMP that
was imposed.
In its discussion of the
proposed regulation in the Federal Register, CMS explained several key
aspects of the waiver process that are not contained in the text of the
draft regulation itself, including the following.
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CMS does not intend to
define in the final rule those regulations or corresponding F-Tags
it views as “relating to quality of care” delivered to residents.
Instead, that decision will be made on a case-by-case basis.
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CMS does include in its
discussion several examples of regulations that it views as quality
issues, including 42 CFR § 483.13(a) precluding the use of
restraints except in certain defined situations, and § 482.25(c)
dealing with the development of avoidable pressure sores. It also
gives examples of regulations that do not relate to quality of care,
including § 483.10(b)(2) giving residents the right to have copies
of their medical records upon request, and § 483.12 requiring that
facilities provide residents and their families notice of discharge
at least 30 days before transfer or discharge. CMS also indicates
that it plans to provide additional guidance on this issue in the
State Operations Manual.
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A facility is not
guaranteed that the loss of its NATCEP will be waived, even where
the deficiency resulting in a disqualifying CMP does not relate to
quality of care issues. Instead, the facility will have to formally
request waiver of the NATCEP loss from the state survey agency. The
decision will be made on a case-by-case basis after considering the
recommendation of the state survey agency and the facts of each
case.
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For purposes of
determining whether a CMP that has been assessed amounts to $5,000
or more, and thus results in loss of a NATCEP, CMS will define the
term “assessed” as the final amount owed after a hearing, waiver of
right to a hearing, or settlement. This means a facility that waives
its right to a hearing, and thus receives the automatic 35% CMP
reduction, would not be subject to loss of its NATCEP if the amount
then owed is less than $5,000. The same would be true in cases where
a settlement or Administrative Law Judge’s decision lowers the CMP
below $5,000.
-
In cases where a CMP of
$5,000 or more is based upon a single deficiency, CMS believes that
determining whether the underlying deficiency relates to quality of
care will be relatively simple. By contrast, in cases where the CMP
results from multiple deficiencies, some of which relate to quality
of care and some of which do not, that determination will be more
complex. CMS has indicated that in these cases, all of the
facility’s deficiencies will need to be reviewed to determine if
individually, or in total, they are indicative of a facility’s
failure or inability to provide quality care to its residents. The
ultimate test CMS will apply is whether the facility is likely,
notwithstanding any deficiencies, to still provide a positive nurse
aide training model. CMS has promised to provide more guidance on
this issue in the State Operations Manual.
We always advise our clients
who are appealing survey deficiencies to list individually in their
appeal petitions every aspect of the survey and resulting sanctions they
wish to challenge. This includes the regulatory citations being
challenged, the scope and severity of each if that is an issue, and all
resulting sanctions, including the loss of NATCEP. Once this rule is
finalized, providers should also consider listing as an appeal issue
whether any cited deficiency relates to quality of care as contemplated
in this final rule and thus whether the deficiency, even if upheld on
appeal, should result in the loss of NATCEP.
Other Provisions of the
Regulation - Opportunity for CNA to Petition for Removal of Single
Instance of Neglect from Nurse Aide Registry
The draft regulation also
includes a provision the industry has been advocating for years - the
opportunity for a CNA with a single finding of resident neglect on the
nurse aide registry to petition for removal of the finding. In its
discussion of this provision in the Federal Register, CMS notes that one
of the state survey agencies raised the case of a nurse aide who had a
single instance of neglect entered on the nurse aide registry and, based
on federal law, was thereafter permanently excluded from working in a
nursing home ever again. The CNA at issue had an exemplary work history,
but was attending a resident when her attention was momentarily
distracted, resulting in a fall and injury to the resident. The CNA was
found guilty of neglect and a finding was placed on the registry.
CMS acknowledges that this
sort of outcome was not contemplated by the original federal legislation
creating the nurse aide registry requirement. As such, Congress enacted
as part of the Balanced Budget Act a provision allowing for removal of
neglect findings entered on the registry for CNAs in certain limited
situations.
The draft regulation
implements this legislative provision by requiring all states to
establish a procedure by which a CNA can petition the state survey
agency for removal of a finding of neglect from the registry if the
state determines that: 1) the employment and personal history of the CNA
do not reflect a pattern of abusive behavior or neglect; and 2) the
neglect involved in the original finding was a single occurrence. In
addition, the petition may not be filed before the expiration of one
year after the neglect finding was first entered on the registry.
CMS notes in its comments to
the proposed rule that states may accomplish this either formally, by
adopting legislation, or informally by simply adopting a procedure that
meets the regulation and advising CNAs of the process by letter. This
rule, once finalized, should help remedy some of the inequities inherent
in the lifetime ban that has previously resulted from any finding of
neglect being entered on the nurse aide registry. Notably, the draft
regulation does not address single instances of abuse by a CNA, but is
limited to isolated instances of neglect only. We do not expect the
opportunity for CNAs to petition for removal of findings from the nurse
aide registry to apply to instances of abuse, for obvious reasons. We
will continue to track both parts of this proposed regulation and report
to you on their progress and/or any substantial changes to the draft
regulation in future issues of Shorts on Long Term Care.
Ken
Burgess is a long term care attorney advising clients on a wide
variety of legal planning issues arising in the skilled nursing facility
setting, assisted living setting, and other aspects of long term care.
He is a frequent national lecturer and author of industry manuals,
national trade journal magazine articles and similar training tools. He
serves Poyner & Spruill clients by focusing on legal issues impacting
the long term care and health services sector. He may be reached at
919.783.2917 or
kburgess@poynerspruill.com.
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The News From
Nicaragua - An Update on The Hogares de Ancionas
by
Ken Burgess
So, Ken, what’s happening in
Nicaragua?” Since Poyner & Spruill and the Jessie F. Richardson
Foundation hosted our art auction and benefit last September to raise
money for the renovation and expansion of the Hogares de Ancionos (Home
of the Ancients) in Jinotepe, Nicaragua, many of our regular readers
have asked me what’s happening with the project. So, I thought we’d give
you a little update.
For those who aren’t
familiar with the project, Poyner & Spruill has been helping the Jessie
F. Richardson Foundation in Portland, Oregon renovate and expand a
center for homeless seniors in Jinotepe, Nicaragua. The center is the
first of its kind in Nicaragua, and one of the few in Central America,
but likely to become a model for similar programs in that part of the
world. In addition to renovating and expanding the center itself, the
money we’ve raised is helping with a number of related projects designed
to ensure the center’s long-term financial stability, bring medical care
to the residents, and help train some of the 500,000 abandoned street
children of Nicaragua in services they can provide to seniors at the
center or elsewhere, to help them learn trades that also keep them off
the streets and away from lives of sexual abuse, drug addition and
poverty. Since the fundraiser in September, more water tanks have been
installed at the Hogares’, providing residents with clean, potable water
for the first time. Renovations on the existing building have been
completed, so the wiring is now encased, the roof attached to weather
Nicaragua’s frequent natural disasters, and other badly needed repairs
have been completed.
The Hogares sits on land
that was seized from a private owner during the Sandinista regime of the
1980s. We’ve always worried that some day, we’d have to give it back.
But, on one of Keren’s recent trips, the Mayor of Jinotepe, where the
Hogares is located, presented Keren with the deed to the land and the
deed to an acre of land next door where the Center’s expansion will sit.
What a miracle!
Construction on the
expansion is under way, but progress was slowed by Hurricane Felix which
devastated the eastern coast of Nicaragua. While the Hogares de Ancionas
is not in that part of the country, the urgent demand for building
supplies to help victims of the hurricane who were without food and
shelter made it difficult to secure supplies for the expansion of the
Hogares. But, work is under way again.
On a sad note, my favorite
resident of the Hogares, who I met on my trip last February and who was
featured so prominently in our music video, died last month at the happy
age of 104. I was always amazed how this woman who had lived so long and
had so little could smile so much. I hope her rest is eternal and sweet.
My memories of her certainly are.
Keren says we hope to
complete construction on the Hogores expansion in early summer 2008
(assuming no more natural catastrophes). Keren will return to Nicaragua
in February (the one year anniversary of our trip there together and I’m
feeling the call of the road to go with her), taking a group of students
from Pacific University. They will begin laying the groundwork to
develop a rehabilitation center at the Hogares. She’s also busy raising
money to hire Dr. Milton Lopez, a delightful young doctor we met on our
trip last year who volunteers at the Hogares, as the first full-time
medical director for the Hogares.
The Foundation hopes to
bring him to the U.S. for some focused training in geriatrics. He will
then return to Nicaragua and become the first doctor in Nicaragua
working with indigent elders. The Foundation has set up a beauty school
for some of the girls who’ve been rescued from the streets and are now
in school. Once their training is completed, the Foundation will help
them set up small businesses for the future. In the meantime, they’re
practicing their manicure and pedicure skills on the seniors at the
Hogares de Ancionas. The government has asked us to help train hospital
nurses in the region in the special health care needs of the elderly.
The pharmacy and clothing store we contributed to last year are in full
swing, providing medicine and clothing to poor seniors and providing
some steady income to the Hogares from local citizens who purchase items
at discounted prices, based on their income.
Sometimes I wonder if those
delightful old folks I met a year ago at the Hogares wonder what in the
world has happening to them. They’ve gone from living 6 people to a
room, sleeping in the hallways, eating when food was available, dodging
exposed electric wires and living in wind and the elements, to a place
that’s safe, sleeping in dry rooms protected from the elements, with
young folks running around wanting to cut their hair, paint their nails
and strengthen their limbs. Soon, they’ll have brand new living
quarters, only 2 to a room, a brand new resident terrace with benches
and plants, a rehab program and, God willing, a doctor. We will continue
to keep you updated.
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HR Corner - Answers From the Top: EEOC Issues
Guidance for Health Care Workers Under the Americans with Disability Act
by
Kevin Ceglowski
Employers now have more help in determining how to comply with the Americans
with Disabilities Act ("ADA"). In 2007, the Equal Employment Opportunity
Commission ("EEOC") published a new question and answer guide to the ADA
entitled “Questions and Answers about Health Care Workers and the
American with Disabilities Act.” (“Q&A”) Health care employers should
review the Q&A, which can be found on the EEOC’s website:
www.eeoc.gov/facts/health_care_workers.html.
This publication by the EEOC
signifies future increased scrutiny of employment decisions by health
care employers and a probable increase in the number of direct
enforcement actions. To explain its focus on health care employers, the
EEOC prefaces its Questions and Answers with the following description
of the health care workplace:
Health
care is the largest industry in the American economy, and has a high
incidence of occupational injury and illness. Though they are
committed to promoting health through treatment and care for the
risk and injured, health care workers, ironically, confront perhaps
a greater range of significant workplace hazards that workers in any
other sector. Health care jobs often involve potential exposure to
airborne and blood borne infectious disease, sharps injuries, and
other dangers; many health care jobs can also be physically
demanding and mentally stressful. Moreover, health care workers with
occupational or non-occupational illness or injury may face unique
challenges because of societal misperception that qualified health
care providers must themselves be free from any physical or mental
impairment.
The Q&A addresses the basic
questions an employer might face under the ADA, such as who is an
employee, what constitutes a substantial impairment, what is a
disability, what accommodations are reasonable, what is an undue
hardship, and how to determine what constitutes a direct threat to the
safety of self or others. The Q&A includes hypothetical factual
situations used to demonstrate the EEOC’s enforcement positions on these
issues.
The new Q&A suggests an
increased focus by the EEOC on disability issues in the health care
arena. Employers should not be surprised, therefore, by increased
enforcement activity under the ADA. Accordingly, employers are advised
to re-familiarize themselves with the requirements of the ADA, to review
their employment practices and policies to make sure they are compliant
with the ADA, and to educate supervisors on how to recognize and respond
to requests for accommodation.
For questions regarding this article or
other employment matters, please contact
Kevin Ceglowski at
kceglowski@poynerspruill.com or 919.783.2853 or
Susie
Gibbons at
sgibbons@poynerspruill.com or 919.783.2813.
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