Shorts on Long Term Care Newsletter for the North Carolina LTC Community

March 2008

In This Issue

The OIG’s Spotlight Shines Again on Nursing Home Providers

Advance Directives Update – “MOST” Is Here!

Private Benjamin Step Aside – We’ve Got Captain Jessica Lewis!

HR Corner - Honoring Military Service: FMLA Expansion Provides New Protections for the Families of Servicemembers

The OIG’s Spotlight Shines Again on Nursing Home Providers

by Ken Burgess

Nursing facility corporate compliance programs will again take center stage in 2008 as the U.S. Department of Health and Human Services’ Office of Inspector General (OIG) plans to revise the corporate compliance guidance it published in March 2000. On January 24, 2008, the OIG published a notice in the Federal Register regarding plans to revise the nursing facility compliance guidance in 2008. The notice calls for input from affected parties. Consistent with the Department’s recent history, the OIG gave providers only 30 days to file comments about the proposed revisions, with the comment period ending on February 25, 2008.

Although the Federal Register notice is short on details in terms of what the OIG’s revisions would address, it does seem clear that the primary focus will be on new “risk areas” the OIG has seen since it published the original nursing facility guidance. That original guidance described both the mechanical components of an “effective” corporate compliance program, such as having a compliance officer, a compliance committee, and a hotline for complaints, and also identified “risk areas,” such as billing, vendor contracts, etc., which providers should address as part of their internal compliance audits and controls.

The only substantive issues addressed in the January 24, 2008, notice by the OIG were these risk areas. Specifically, the OIG said that “the subsequent years of enforcement and compliance activity (i.e., since 2000) in the nursing home industry has allowed the OIG to address more fully the various risk areas in nursing home compliance.” The notice also said that “specifically, OIG seeks comments addressing any changes to existing risk areas and introducing any new risk areas.” In the years since the OIG first published its nursing facility compliance guidance, its compliance activities have focused largely on billing issues and, more recently, the role of facility management in corporate compliance. In particular, it has published numerous documents focusing on the role of Boards of Directors for both non profit and for-profit providers in the facility’s compliance history and activities. The OIG has stressed repeatedly in the past year or so that an effective compliance program must include hands-on involvement by the Board on a regular basis, particularly in understanding and assessing a facility’s quality of care. Given this history, it’s reasonable to assume that the OIG will focus in part on quality of care as a compliance issue and on the role of management and the Board of Directors in compliance oversight and quality of care.

The OIG’s notice did not indicate when the provider community might expect to see a revised compliance program guidance document, but presumably it will appear in the Federal Register sometime in 2008.

The OIG first indicated its intent to publish nursing facility compliance guidance in 1999. In response to that, the American Health Care Association (AHCA) published a manual entitled Corporate Compliance: Designing a Comprehensive Process, often known among providers as the “corporate compliance redbook.” The manual was published in 1999, several months before the OIG released its official nursing facility compliance guidance. The industry’s purpose in publishing its own compliance guidance before the OIG released its official version was to impact the content of the OIG’s guidance. Based on conversations with the OIG, AHCA achieved that goal. 

AHCA’s manual was revised in June 2002 to reflect ongoing compliance issues that had arisen since publication of the OIG’s formal compliance guidance in March 2000. I served as primary author for AHCA’s 1999 manual and the 2002 update. The manual still serves today as a primary tool used by nursing facility providers nationwide to design and/or evaluate and update their corporate compliance programs. Once we see the OIG’s revised nursing facility compliance guidance, we will decide how best to inform North Carolina’s nursing facility providers of changes and of ways to evaluate and update their corporate compliance programs. We will continue to track this issue and report on it 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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Advance Directives Update – “MOST” Is Here!

by Ken Burgess

In recent issues of Shorts on Long Term Care, we have updated you on efforts to implement North Carolina’s revised advance directives laws and, specifically, the new Medical Order for Scope of Treatment, or MOST form. The form is now available on the Office of Emergency Medical Services (OEMS) website. Both the MOST form and the portable DNR form can be ordered at www.ncdhhs.gov/dhsr/EMS/dnrmost.html.

Only health care providers can order the MOST form, since it is designed to be completed by health care professionals and physicians, based on discussions with patients. The forms cannot be accessed or ordered directly by patients or their families. The N.C. Medical Society is spearheading a statewide task force that is creating a publicly accessible website with information on the state’s revised advance directives laws, copies of the updated living will and health care power of attorney forms, and information on the new MOST form. That address is www.ncmedsoc.org. Once there, on the right side of the home page find a large square box entitled “End-of-Life Resources.” If you click there, you will be taken to the page containing the information described above. You can also obtain sample copies of the new MOST form, instructions for completion, and an array of other information helpful in understanding and training your staff about the new advance directives laws and the MOST form.

Since these laws were enacted in August 2007, I have conducted training sessions across the state. These sessions have been presented to the N.C. Healthcare Facilities Association, the N.C. Association of Home Care and Hospice, and the N.C. Certified Public Accountants Association, along with several large providers of hospital, home care and hospice, and long term care services. We also have a training program scheduled in March for the N.C. Hospital Association. Based on the training we have conducted to date, we are seeing a lot of questions about both the revised living will and health care power of attorney forms, and even more about the new MOST form.

One issue in particular that has caused some confusion is how some of the state’s hospitals view and treat the MOST form. The MOST form was designed to be “portable” and “universal,” like the portable DNR form. That is, it was designed to travel with patients from health care setting to health care setting and to be accepted by all providers and by EMS personnel as a valid physician order. To a large extent, that is how providers of varying types view the MOST form, with one notable exception.

Many hospitals in North Carolina do not view the MOST as a valid order that can be implemented in their facility without further orders being issued by a physician who is formally a part of the hospital medical staff. This is because most hospitals, unlike many other types of health care providers, have formal medical staffs, credentialing processes, and medical staff bylaws. Those bylaws often state that only physicians who are part of the hospital’s medical staff may issue valid, binding orders honored by the hospital. This is, in essence, a quality assurance measure, since physicians who are part of the hospital medical staff have been “credentialed” by the hospital. As such, many hospitals view the MOST order as an indication of a patient’s wishes concerning care, but not as a valid physician order per se. They will use the MOST accordingly, but will require that a physician who is part of the hospital medical staff issue either a new MOST form or other orders consistent with the MOST, following consultations with a patient or a patient’s representative.

We mention this issue here because as we advise residents and patients about the new MOST form, it is important for them to understand that while the MOST is generally “portable” and will be honored in most health care settings, this may not be technically true in some hospitals. The decision whether a hospital will honor a MOST may vary from hospital to hospital, although it is our understanding that most of the state’s larger hospitals, at least, will not honor the MOST without further orders being issued by one of their own doctors. It’s important to explain this to residents completing a MOST so there is no confusion or frustration later on their part if they are admitted to a hospital for treatment.

As part of Poyner & Spruill’s ongoing commitment to helping North Carolina providers understand and implement the revised advance directives laws and the new MOST form, we will continue to report on implementation issues as they arise, in future issues of Shorts on Long Term Care. I encourage our readers to e-mail questions and issues to me at kburgess@poynerspruill.com. I am part of the statewide task force working on implementation of these laws for all health care providers in North Carolina. This provides us with the opportunity to address issues raised by our readers with the entire task force, and to help develop answers that will be uniform statewide. We will address questions raised by our readers on an ongoing basis in future issues of this newsletter.

Goldie Hawn may win the day in terms of box-office glitz and fame for her role as Private Benjamin, but Hollywood’s got nothing on Poyner & Spruill as we welcome the newest member of our Health Care Section, Jessica M. Lewis. Oh, by the way, Jessica is a lawyer, a registered nurse, and a former captain in the U.S. Army, hence the title of this article.

Jessica joins us from the law firm of Young Moore and Henderson, where she concentrated her practice on medical malpractice defense litigation and health law. At Poyner & Spruill, she will work on a broad array of cases and issues for our health care clients, including long term care issues. Many of our readers met Jessica at the N.C. Healthcare Facilities Association Convention in Greensboro.

Jessica earned her Bachelor of Science Degree in Nursing from the University of North Carolina at Chapel Hill in May 1998 (Go Tar Heels!). Upon graduation, she received a commission in the United States Army. From 1998 to 2002, she served on active duty as a medical-surgical and surgical critical care nurse in the Army Nurse Corps, rising to the rank of captain. As a clinical charge nurse in a 300-bed Army Medical Center in Augusta, Georgia, she coordinated the care of critically ill patients, supervised eight other professionals and paraprofessionals, and developed and implemented a formal program for continuing education and for training newly assigned critical care nurses.

Prior to that, Jessica served as a clinical staff nurse in a 450-bed Army Medical Center in San Antonio, Texas, where she provided specialized care to postoperative cardiothoracic surgery patients; served as a senior mentor for newly assigned nurses, organized a critical care seminar, and delivered a presentation to 100 health care professionals. She also served as officer council representative to senior leadership of the medical center. Jessica attended a U.S. Army Medical Command Critical Care Nursing Course, where she prepared a program on post-resuscitative care, which was approved for continuing education credit.

Jessica received her law degree from the University of North Carolina at Chapel Hill in 2005 (a double Tar Heel). While in law school, she was selected as a member of the Holderness Moot Court Invitational Team, receiving awards for the best overall competitor and best oralist. She also received a Gressman-Pollitt Award for excellence in oral advocacy. She served as publication editor of the North Carolina Banking Institute Journal and published an article entitled “HIPAA: Demystifying the Implications for Financial Institutions.” Jessica worked for the law school as an honors writing scholar, assisting first-year law students with legal writing projects. As a part-time research assistant in the Research Division of the North Carolina General Assembly, she worked with attorneys, representatives, and senators on tort reform and health policy issues. Oh yes, you’ll be seeing her writing talents firsthand in future issues of Shorts on Long Term Care.

Jessica enjoys traveling, having grown up in a number of different places, including Izmir, Turkey, as a self-described “army brat.” According to Jessica, she also attempts to enjoy running. We are extremely excited to have this bright and accomplished young attorney join our growing health care practice, and we know you’ll enjoy working with Jessica (especially all you nurses who’ve been laughing at my clinical incompetence all these years). Jessica may be reached at jlewis@poynerspruill.com or 919.783.2941.

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On January 28, 2008, President Bush signed the 2008 Defense Authorization Act (H.R. 4986), which became effective immediately. This new law expands the Family and Medical Leave Act (FMLA). The expansion allows eligible employees to take FMLA leave for exigencies related to active duty military service, or to care for family members injured while serving in the Armed Forces.

Servicemember Family Leave

The FMLA expansion provides new protections for employees in two areas. First, eligible employees may take up to 26 weeks of leave in a single 12-month period to care for a family member injured during military service. A “spouse, son, daughter, parent, or next of kin” may take this leave to care for a member of the Armed Forces, including the National Guard or Reserves, suffering from a serious injury or illness. “Serious injury or illness” means an injury or illness incurred on active duty in the Armed Forces that may render the servicemember medically unfit to perform the duties of his or her office, grade, rank, or rating. Under the new law, when Servicemember Family Leave is used, the total amount of FMLA leave taken in any 12-month period may not exceed 26 weeks.

Active Duty Leave

The FMLA expansion also provides a new basis for an employee to take 12 weeks of FMLA leave. An employee may take FMLA leave for “any qualifying exigency” arising out of the fact that the spouse, son, daughter, or parent of the employee is on active duty or has been notified of an impending call to active duty in the Armed Forces. The Department of Labor (DOL) has not yet issued regulations defining these qualifying exigencies. When the need for Active Duty Leave is foreseeable, the employee is required to provide the employer with reasonable and practicable notice.

Many provisions of the existing FMLA laws also apply to these new areas. Both Servicemember Family Leave and Active Duty Leave may be taken intermittently or on a reduced leave schedule. As with other types of FMLA leave, an employer may require its employees to use available paid time off concurrently with FMLA leave. Employers may require a certification of need for Active Duty FMLA leave. The DOL has not yet defined the consistency of a certification. An employer may also require a certification from a health care provider for Servicemember Family Leave.

Although the new FMLA law is effective immediately, the specific requirements for employers will not be clear until the DOL issues new regulations. In the meantime, employers should be aware of leave requests that might qualify as Active Duty Leave or Servicemember Family Leave. If you have questions about whether a particular request qualifies, you should contact counsel for additional advice.

If you have any questions about the new FMLA law and your company’s compliance with its provisions, or about the FMLA or employment law generally, please contact Kevin Ceglowski at kceglowski@poynerspruill.com or 919.783.2853 or Susie Gibbons at sgibbons@poynerspruill.com or 919.783.2813.