In This Issue
Proposed
Regulation Would Give Secretary of HHS Authority to Review and Reverse
DAB Decisions in Nursing Facility Survey Appeals
The News from Nicaragua An Update on the Hogar de
Ancianos
HR Corner -
Answers from the Top: EEOC Issues Guidance for
Health Care Workers under the Americans with Disabilities Act
Proposed
Regulation Would Give Secretary of HHS Authority to Review and Reverse
DAB Decisions in Nursing Facility Survey Appeals Act
by
Ken Burgess
A December 28, 2007,
proposed regulation published in the Federal Register would drastically
alter the current system of nursing facility survey appeals by allowing
the Secretary of the U.S. Department of Health and Human Services (HHS)
to review and reverse decisions issued by the federal Departmental
Appeals Board (DAB). The impact of the proposed rule, if adopted, could
be enormous for nursing facility providers unhappy with the results of a
recertification or complaint survey by removing one of the few due
process safeguards available to providers who want to challenge
decisions of the state survey agency and the Centers for Medicaid &
Medicare Services (CMS).
Under the current system,
nursing facility providers who wish to challenge survey findings may
file an appeal with the DAB, a division of HSS. The DAB consists of both
the individual administrative law judges (ALJs) who initially hear
provider appeals and appeals panels of three DAB members who sit as an
appeals court of sorts to review ALJ decisions with which either the
provider or CMS is unhappy. Following an initial decision by an ALJ,
either the provider or CMS may appeal that decision to the DAB appellate
panel. Currently, providers unhappy with a decision of the appeals panel
may further appeal the decision to the U.S. District Court in their
jurisdiction. CMS, however, does not have the power to appeal decisions
of the DAB with which it disagrees.
As such, a decision of an
ALJ that is not appealed to the DAB by either CMS or the provider
becomes the final agency decision of HHS on the survey. If either the
provider or CMS appeals the ALJ’s decision to the DAB, then the DAB
decision becomes the final agency decision of HHS unless the provider
further appeals to federal court. While the DAB is far from perfect, it
is generally viewed as an unbiased quasi-judicial body that sometimes
rules in favor of HHS and sometimes in favor of providers. Appeals
before the DAB are difficult to win, but with the right set of facts and
a well-prepared case, providers at least have a fighting chance to
correct errors in surveys by the state survey agency and CMS.
In the proposed regulation,
the Secretary of HHS complains about two problems that the regulation
would address: 1) under existing regulations, the ALJs and DAB must
follow applicable federal statutes and regulations governing survey
appeals, but are not expressly required to follow the Secretary’s
published interpretations of those authorities or other “informal
guidance” published by the Secretary; and 2) the Secretary currently has
no authority to review decisions of the DAB with which it disagrees. The
proposed regulation would address those issues by 1) requiring the ALJs
and DAB to follow both applicable statutes and regulations and published
interpretations of those authorities and other informal guidance
published by the Secretary; and 2) allowing the Secretary to review and
affirm, reverse or remand decisions of the ALJs or DAB with which it
disagrees.
According to statements in
the proposed regulation, the new rule would provide sufficient
safeguards to ensure that final agency decisions reflect the considered
views of the Secretary on the proper interpretation and application of
statutes and regulations governing nursing facility surveys. The rule is
not limited to nursing facility surveys, but affects the majority of
disputes arising under nearly 60 separate statutory provisions. These
include all decisions about provider and supplier enrollment and
certification, sanctions imposed by the Office of Inspector General in
fraud and abuse matters, sanctions issued under the Clinical Laboratory
Improvement Act, certain sanctions imposed under HIPAA, and nursing
facility survey decisions, among others.
One of the more troubling
aspects of the proposed regulation is the requirement that the DAB
follow the “published guidance” of the Secretary on the interpretation
of survey statutes and regulations, to the extent such guidance is not
in conflict with the Department’s governing statutes and regulations.
The proposed rule identifies “published guidance” as including any
guidance that has been “publicly disseminated” by the Secretary, such as
manual provisions, State Medicaid Agency Director Letters, or
information posted on the CMS website. Published guidance would not
include statements contained in briefs filed by CMS in survey
litigation, but the Secretary would require in the rule that the ALJs
and DAB defer to arguments about the meaning of applicable statutes and
regulations by giving weight to statements made by CMS counsel in survey
appeal briefs unless those statements conflict with published guidance
of the Secretary or other agency statements of position. In essence,
this would give CMS counsel defending state survey agency decisions an
enormous advantage in survey appeals with providers by equating their
litigation arguments with HHS policy, unless the provider could persuade
the ALJ or DAB that such arguments conflict with guidance already issued
by the Secretary.
Most provider counsel who
have carefully reviewed the proposed regulation strenuously oppose it
because it would tip the scales in survey appeals heavily toward CMS by
allowing the Secretary to simply overrule ALJ or DAB decisions with
which the Department disagrees by claiming those decisions are contrary
to the Secretary’s interpretation of governing statutes and regulations.
Survey appeals are already difficult to win given the paucity of due
process protections for providers in the current system. This proposed
regulation would essentially turn ALJ and DAB decisions from final
agency decisions to “recommended” or “proposed” decisions subject to
being overturned by the Secretary. The rule proposes no limits to the
Secretary’s discretion in choosing when and how often to review and
reverse or remand ALJ or DAB decisions. If the Secretary remands a
decision to the ALJ or DAB, then the ALJ or DAB would be required to
follow the Secretary’s statement of policy or interpretation of the law
and would simply be limited to applying the facts of the case according
to the Secretary’s interpretation. It is not difficult to imagine the
Secretary issuing ad hoc policy through his ability to reverse ALJ or
DAB decisions with which he or his subordinate agency, CMS, simply
disagree.
The proposed regulation
stresses that providers unhappy with the Secretary’s decision on a
survey appeal could still appeal to federal court. Providers can already
appeal to federal court, so that reassurance is little comfort to
providers, particularly given that the vast majority of survey appeals
in federal court are decided in favor of the Secretary. This is largely
due to the lack of understanding of the complex world of long term care
by federal judges and a policy inherent in federal law that gives great
deference to the Secretary in complex technical matters, such as the
interpretation of the federal survey and certification process.
Under the proposed
regulation, the Secretary would have authority to decide which survey
decisions to review, and neither CMS nor the provider would have the
right to request such review by the Secretary. Neither party would have
the right to offer additional evidence or file briefs supporting its
position with the Secretary, although the Secretary would have the
authority to request additional briefing at his discretion. The
Secretary would have 30 days following an ALJ or DAB decision to decide
whether to review a decision and an additional 45 days to render the
Department’s final decision. However, that latter time period could be
extended without limitation at the discretion of the Secretary, creating
the potential for long delays in final decisions on survey appeals.
The regulation, if adopted,
would not affect final decisions issued by the DAB but would apply to
any “pending litigation.” Thus, provider appeals that are not fully
decided, with all applicable appeal periods having expired, would fall
under the regulation and would be subject to review by the Secretary.
The Secretary suggests in
the proposed regulation that his review authority would be used
sparingly, but few providers or their attorneys take much comfort in
this assertion. Most provider counsel believe that to the extent the
Secretary feels the need for some review of ALJ or DAB decisions, the
Secretary should be afforded the same opportunity providers have had
since adoption of appeals regulations for providers – the chance to
appeal to federal court. We anticipate that providers commenting on the
proposed rule will argue this point strenuously. The public was allowed
to submit comments to the proposed regulation until 5:00 p.m. on January
28, 2008. Many observers have complained that the rule, which is
expected to have far-reaching implications if adopted, was issued on
December 28, 2007, during the holiday season, with a very short public
comment period given the potential impact of the regulation.
The American Health Care
Association and other national and state provider organizations are
expected to oppose the draft regulation. Ken Burgess of Poyner & Spruill
currently represents the North Carolina provider community on AHCA’s
Legal Committee.
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 Hogar de Ancianos
by
Ken Burgess
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
Hogar de Ancianos (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 brief 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 it’s 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 helping them learn trades that
also keep them off the streets and away from lives of sexual abuse, drug
addiction and poverty.
Since the fundraiser in
September, more water tanks have been installed at the Hogar, 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 is attached and can weather Nicaragua’s frequent natural
disasters. Other badly needed repairs have been completed.
The Hogar 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 a recent trip of Keren Wilson, CEO of the Jessie F. Richardson
Foundation, the mayor of Jinotepe 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 Hogar de
Ancianos 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 Hogar. But work is under way again.
On a sad note, my favorite
resident of the Hogar, 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 Hogar 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 Hogar. 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 Hogar, as its first
full-time medical director.
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 that country to
work with indigent elders. The Foundation has set up a beauty school for
some of the girls who’ve been rescued from the streets. 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 Hogar de Ancianos.
The government has asked us to help train hospital nurses in the region
in 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
Hogar from local citizens who purchase items at discounted prices, based
on their income.
Sometimes I wonder if the
delightful old folks I met a year ago at the Hogar wonder what in the
world is happening to them. They’ve gone from living with 6 people to a
room, sleeping in the hallways, eating when food was available, dodging
exposed electrical wires, and battling the elements to living in a place
that’s safe, sleeping in dry rooms protected from the elements, and
having young folks running around wanting to cut their hair, paint their
nails, and strengthen their limbs. Soon, they’ll have brand-new living
quarters with 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.
Top
HR Corner - Answers from the Top: EEOC Issues
Guidance for Health Care Workers under the Americans with Disabilities
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 for the ADA entitled
“Questions and Answers about Health Care Workers and the Americans 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 Q&A 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 and 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 refamiliarize themselves with the requirements of the ADA, review
their employment practices and policies to make sure they are compliant
with the ADA, and educate supervisors on how to recognize and respond to
requests for accommodation.
For more information on the
EEOC or other employment law related issues,
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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