# Excelas > Clinical intelligence for the defense. Clinical Expertise Built for Aging Services Defense. Turn complex medical records into the clarity, strategy, and support needed to defend the case. The record may be complete, but the defense picture may not be. ## Contact To engage Excelas, use the contact form at /contact — it is the only intake path. https://excelas1.com/contact ## When to use Excelas Excelas gives defense teams clinical judgment on medical records in aging services and long-term care claims. It serves law firms and defense attorneys, insurers, and healthcare organizations. Send Excelas work that needs a clinician to read the record: - [Case Triage](https://excelas1.com/case-triage.md): an early clinical read of a new case: what happened, what is missing, and where the risk sits - [Clinical Analysis](https://excelas1.com/clinical-analysis.md): a reconstruction of the clinical story and what the record means to the defense - [Defense Readiness](https://excelas1.com/defense-readiness.md): chronologies, exhibits, and witness materials for depositions, mediation, or trial - [Defense Continuity](https://excelas1.com/defense-continuity.md): ongoing clinical support across a case, or across many matters - [Regulatory Support](https://excelas1.com/regulatory-support.md): regulatory matters that need focused clinical review, data abstraction, or production support To start, use the contact form at [/contact](https://excelas1.com/contact). It is the only intake path. ## Excelas https://excelas1.com/ ### Excelas #### Clinical Expertise Built for Aging Services Defense Turn complex medical records into the clarity, strategy, and support needed to defend the case. The record may be complete, but the defense picture may not be. #### The problem: the record alone does not tell the whole story. The record may be complete, but the defense picture may not be. Medical records were created to document care — not to explain the claim, test causation, or guide defense strategy. What happened is only the beginning The critical facts may be scattered across thousands of pages, multiple providers, evolving conditions, and conflicting documentation. A team can have the full record, a detailed chronology, and an accurate summary — and still misunderstand what happened or where the case is truly vulnerable. | The record may show: | the defense still needs: | | --- | --- | | A fall, wound, decline, or hospitalization | What actually caused the outcome | | A gap or inconsistency in documentation | Whether it reflects poor care or incomplete charting | | A missed or delayed intervention | Whether it materially changed the result | | A serious clinical outcome | Whether it was avoidable | | A compelling allegation | Whether the medicine supports it | | Thousands of documented facts | Which facts should shape the defense | Without that clinical understanding, risk can be misjudged, strategy can focus on the wrong issues, and important context can surface too late. #### Our difference: A review tells you what is in the record. Excelas helps you understand what it means to the defense. A chronology can establish sequence. A summary can condense documentation. A record review can identify what is present. But medically complex claims require more. The defense must understand the full clinical context, the significance of the findings, and how those findings should shape what happens next. ##### See the full clinical picture. _Beyond the incident_ We evaluate the resident’s broader condition, care history, risk factors, providers, and clinical trajectory—not just the event named in the allegation. ##### Identify what matters to the defense. _Beyond the summary_ We surface the gaps, inconsistencies, strengths, vulnerabilities, and unanswered questions most likely to affect the case. ##### Turn clinical understanding into practical direction. _Beyond the findings_ We explain how the medicine may influence liability, causation, damages, expert strategy, and preparation for what comes next. The goal is not simply to complete the review. It is to help the defense understand the case more completely. It is to help the defense understand the case more completely. ##### Our Services Clinical expertise built around the needs of each matter. ##### Case Triage Know what requires attention first. Quickly establish what happened, what is missing, where risk may exist, and which clinical issues deserve immediate legal attention. [Case Triage](/case-triage) ##### Clinical Analysis Understand what the record means to the defense. Reconstruct the clinical story, evaluate key issues, and translate complex medical information into defensible understanding. [Clinical Analysis](/clinical-analysis) ##### Defense Readiness Turn clinical findings into litigation-ready strategy. Prepare the clinical tools, expert support, exhibits, and analysis needed for depositions, mediation, or trial. [Defense Readiness](/defense-readiness) ##### Defense Continuity Build clinical intelligence into the defense team. Create an ongoing clinical capability that supports multiple matters, changing needs, and long-term defense strategy. [Defense Continuity](/defense-continuity) ##### Regulatory Support Clinical and record support for regulatory matters. [Regulatory Support](/regulatory-support) ##### How We Work A responsive process built around what your team needs. Every engagement starts with understanding the matter and what your team is trying to accomplish. From there, Excelas defines the right scope, brings the right expertise to the work, and stays connected as the matter evolves. ##### Start with the matter. _UNDERSTAND_ - We begin by understanding the issue, where the matter stands, what information is available, and what your team is trying to determine, decide, or accomplish. - That gives us the context we need to understand the problem before determining what support makes sense. ##### Define what the work needs to accomplish. _SCOPE_ - From there, we help translate the need into a defined scope: the questions to address, the records to review, the depth of analysis required, the expertise involved, and the work product that will be most useful. - Some matters call for a focused review of a specific issue. Others require a broader look across the record or multiple areas of support. The scope can evolve as additional information or questions emerge. ##### Put the right expertise to work. _EXECUTE_ - Once the scope is defined, we bring together the appropriate clinical, health information, medical-legal, and record-support expertise. - We organize and review the source material, identify the relevant facts, gaps, patterns, and clinical issues, and develop work product designed around the questions the engagement is intended to answer. ##### Stay connected through what comes next. _PARTNER_ - Our involvement does not have to end with the initial deliverable. - As new records, questions, or issues emerge, we remain available for follow-up analysis, additional record needs, witness or expert preparation, and other support the matter may require. #### Our clients trust us to help when the clinical details matter most. A chronology can establish sequence. A summary can condense documentation. A record review can identify what is present. But medically complex claims require more. The defense must understand the full clinical context, the significance of the findings, and how those findings should shape what happens next. - 20 years In Business - Proof point two - Proof point three - Proof point four - Proof point five - Proof point six - Proof point seven - Proof point eight - Proof point nine - Proof point ten > Our firm regularly uses the Excelas Care Calendar which is an excellent tool to present medical care and staff interactions. Easy access to the documentation and provides attorneys and witnesses a very accessible tool to present testimony. The ability to access an exact page so quickly, especially during live testimony, is a great feature of the calendar. Moreover, the calendar function itself tells the story of the number of interactions and "touches" in a clear and relatable format. the calendar function itself tells the story of the number of interactions and "touches" in a clear and relatable format. ## Case Triage https://excelas1.com/case-triage ### Case Triage #### Case Triage for a Clearer Defense Strategy Excelas brings clinical structure and judgment to the earliest stage of the case to help the defense understand what happened, what is missing, what may create risk, and where deeper investigation is warranted. #### The challenge at intake: A new case creates more questions than answers. The records may be extensive, but the defense still may not know whether the file is complete, which events matter most, or where immediate attention is required. Case Triage turns those open questions into a clear starting point for the defense. 1. **What actually happened?** 2. **Are the records complete?** 3. **What is missing?** 4. **Which allegations appear clinically significant?** 5. **Where could the defense be exposed?** 6. **What deserves deeper review?** 7. **What should happen first?** #### The purpose of Case Triage: Find the signal before committing significant resources. Case Triage gives the defense team an informed first view of the matter before substantial legal, clinical, or expert resources are committed. Excelas organizes the available documentation into a clinically meaningful framework, identifies gaps and areas of concern, summarizes the patient's clinical course, and surfaces the issues most likely to influence the next stage of the defense. The result is not a final opinion on the case. It is a clearer understanding of where the case stands — and what the defense should do next. ##### Before the case has a shape: Three questions every defense team needs answered early. ##### What do we have? We organize the available records, reconstruct the initial sequence of care, and summarize the known clinical events so the team can become oriented quickly. ##### What are we missing? We identify chronological gaps, missing documentation, incomplete episodes, and areas where the available record may not be sufficient to evaluate the allegation. ##### Where should we start? We surface potential concerns, early defense opportunities, and unresolved questions so attorneys can prioritize investigation, clinical analysis, and expert involvement. ##### What we do in Case Triage: The foundational work needed to understand the case. Our services provide an initial view of the case's strengths, vulnerabilities, unresolved questions, and next priorities. ##### Gather the record - **Record Retrieval** — Obtain the documentation needed to begin evaluating the matter. - **Record Organization** — Arrange records by provider, episode, and clinical sequence. ##### Verify the picture - **Record Completeness Assessment** — Determine whether the available documentation is sufficient for meaningful review. - **Missing Documentation Review** — Identify chronological gaps, clinical gaps, inconsistencies, and missing evidence. ##### Assess the case - **Early Risk Assessment** — Surface potential concerns and issues requiring immediate attention. - **Preliminary Case Summary** — Summarize the clinical course, early indicators, and priorities for what comes next. ##### What Case Triage adds: Case Triage doesn't just prepare the record for review. It helps the defense understand how to approach it. Many record services can collect, sort, and summarize documentation. Excelas adds clinical judgment. Our nurse consultants examine the documentation through the realities of aging services care and litigation—recognizing the clinical events, standards, documentation patterns, and unresolved questions that may influence the defense. That means the team receives more than an organized file. It receives an informed starting point for the decisions ahead. | Basic record preparation | Excelas Case Triage | | --- | --- | | Collects available documents | Assesses whether meaningful documentation is missing | | Organizes records chronologically | Organizes the case around its clinical meaning | | Summarizes what appears in the chart | Surfaces questions, concerns, and early defense opportunities | | Produces a reviewable file | Helps the defense decide what to investigate next | Preparation produces a file. Case triage produces a direction. #### Before you invest more in the case, understand what the case requires. Bring Excelas the available records, the allegations, and the questions facing the defense. We will help you establish what is known, what is missing, and where the team should focus next. [Discuss Your Matter](/contact) #### Case Triage can stand alone or lead to deeper support. Some matters only require early clarity. Others reveal the need for deeper clinical analysis, litigation-ready work product, or ongoing clinical support. When that happens, Excelas can continue supporting your team through: ##### Clinical Analysis Reconstruct the clinical story and understand what the record means to the defense. [Explore Clinical Analysis](/clinical-analysis) ##### Defense Readiness Turn clinical findings into practical tools for experts, depositions, mediation, and trial. [Explore Defense Readiness](/defense-readiness) ##### Defense Continuity Maintain clinical intelligence and support as the matter evolves. [Explore Defense Continuity](/defense-continuity) ## Clinical Analysis https://excelas1.com/clinical-analysis ### Clinical Analysis #### Clinical Analysis That Explains What the Record Means to the Defense Excelas reconstructs the clinical story, evaluates provider actions, identifies documentation gaps, and examines the issues that may shape defensibility—so the defense can move from organized records to informed strategy. #### When the record still does not explain the case: A well-organized record can still leave the most important questions unresolved. A chronology can establish sequence. A summary can condense documentation. But neither alone explains why events occurred, whether care aligned with expected standards, or how the clinical facts should shape the defense. Clinical Analysis turns organized records into a defensible clinical narrative. 1. **What is the actual clinical story?** 2. **Which events matter most?** 3. **Did the care align with expected standards?** 4. **What documentation supports or weakens the defense?** 5. **Where are the plaintiff's assumptions vulnerable?** 6. **What should experts and attorneys focus on next?** 7. **What should happen first?** #### The purpose of Clinical Analysis: Turn organized records into clinical insight. Clinical Analysis gives the defense a deeper understanding of what happened, why it happened, and how the record should be interpreted in the context of the allegations. Excelas reconstructs the patient's course of care, examines significant clinical events, evaluates provider actions, identifies documentation gaps, and compares care against expected standards. The result is not just a better summary of the record. It is a clinically informed narrative that helps the defense understand the issues, recognize potential strengths and vulnerabilities, and prepare for what comes next. ##### Before the strategy is set: Three questions every defense team needs answered before strategy moves forward. ##### What is the clinical story? We reconstruct the course of care across providers, events, and documentation so the defense can understand what actually occurred. ##### What does the care mean? We analyze significant clinical decisions, documentation gaps, standards-of-care issues, and patterns in the record to determine what may matter most. ##### How should it shape the defense? We surface strengths, vulnerabilities, alternative explanations, and priority issues so attorneys and experts can focus on the questions that will influence the case. ##### What we do in Clinical Analysis: The analytical work needed to understand what the case means. Our services turn organized records into a defensible clinical narrative, clearer issue analysis, and practical insight for the defense. ##### Reconstruct the story - **Medical Chronology** — Build a reliable event timeline. - **Comprehensive Case Summary** — Create a full narrative of the patient's course of care. - **Integrated Timeline** — Connect events across multiple providers or episodes of care. ##### Evaluate the care - **Clinical Event Analysis** — Examine the meaning of significant clinical events. - **Standards of Care Review** — Compare the documentation against expected care. - **Documentation Gap Analysis** — Identify missing or incomplete clinical evidence. ##### Surface defense insight - **Provider of Care Report** — Evaluate provider-specific actions and documentation. - **Strengths & Weaknesses Assessment** — Identify issues that may affect defensibility. - **Customized Clinical Reporting** — Develop case-specific analysis based on the matter's needs. ##### What Clinical Analysis adds: Clinical Analysis doesn't just describe what happened. It explains why it matters. Many reviews summarize the record. Excelas examines the clinical meaning behind it. Our analysts look beyond sequence alone to evaluate provider actions, standards-of-care issues, documentation patterns, and the clinical significance of the facts. Every finding is developed to support litigation thinking—not generic medical abstraction. Where appropriate, our reports can also connect findings back to the supporting documentation, helping attorneys and experts move more efficiently from analysis to preparation. | Basic case summary | Excelas Clinical Analysis | | --- | --- | | Describes what happened | Reconstructs the clinical story | | Organizes events | Evaluates the significance of those events | | Notes documentation | Identifies meaningful gaps and unresolved issues | | Reviews care generally | Compares care against expected standards | | Produces a report | Helps shape strategy, expert prep, and defense direction | #### Before the defense builds around assumptions, understand the clinical story. Bring Excelas the records, allegations, and questions facing the defense. We will help you determine what the care means, where the important issues lie, and how the analysis should inform what happens next. [Discuss Your Matter](/contact) #### Clinical Analysis can define the next move: The right clinical understanding makes the next stage of support clearer. Some matters require targeted early orientation. Others need litigation-ready work product, ongoing analysis as discovery evolves, or focused support for specialized issues. Based on what the analysis reveals, Excelas can continue supporting the defense through: ##### Case Triage Start with early clinical orientation, documentation review, and an initial understanding of what the case requires. [Explore Case Triage](/case-triage) ##### Defense Readiness Turn clinical findings into practical litigation tools for depositions, experts, mediation, and trial. [Explore Defense Readiness](/defense-readiness) ##### Defense Continuity Maintain ongoing clinical intelligence and support as the case evolves or across multiple active matters. [Explore Defense Continuity](/defense-continuity) ## Defense Readiness https://excelas1.com/defense-readiness ### Defense Readiness #### Defense Readiness Built for Depositions, Mediation, and Trial Excelas transforms complex medical evidence into the timelines, exhibits, preparation materials, and case intelligence attorneys need to prepare witnesses, work with experts, negotiate, and present the defense clearly. #### When understanding is not enough: A strong clinical analysis still has to work in the room. The defense may understand the medicine, but depositions, expert review, mediation, and trial each require that information to be organized differently. Defense Readiness makes the clinical intelligence usable in the room. 1. **What does this witness need to understand?** 2. **Which facts matter for this allegation?** 3. **Where is the supporting documentation?** 4. **What should the expert review first?** 5. **How do we explain the clinical story clearly?** 6. **What will be most useful at mediation or trial?** #### The purpose of Defense Readiness: Make the clinical intelligence immediately usable. Defense Readiness turns the findings already developed in the case into practical work products built around the next litigation event. Excelas reorganizes complex medical information into focused timelines, evidence packets, witness materials, demonstrative exhibits, and strategic summaries that help attorneys and experts find what matters quickly and communicate it clearly. The goal is not simply to produce another report. It is to make the clinical record easier to use when the defense has to prepare, explain, challenge, or persuade. ##### Before it has to hold up: Three questions every defense team needs answered before the next litigation event. ##### What matters for this moment? We isolate the clinical facts, events, providers, and documentation most relevant to the deposition, expert review, mediation, or trial ahead. ##### Where is the evidence? We connect important findings to the underlying record so attorneys and experts can move quickly from conclusion to supporting documentation. ##### How do we make it clear? We organize complex clinical information into timelines, summaries, visuals, and focused preparation materials that make the case easier to understand and communicate. ##### What we do in Defense Readiness: The litigation tools needed to put clinical intelligence to work. Our services reorganize the medical evidence around the people, issues, and litigation events where the defense needs it most. ##### Prepare the people - **Deposition Preparation Support** — Build focused materials that help attorneys and witnesses prepare around the relevant clinical facts. - **Witness & Provider Profiles** — Create concise views of key providers, their involvement, and the documentation connected to their care. - **Expert Review Support** — Organize the evidence so experts can become oriented and evaluate the important clinical issues faster. ##### Organize the evidence - **Medical Fact Packets** — Assemble the key documentation and facts around specific issues or allegations. - **Issue-Specific Timelines** — Create focused chronologies around the events that matter most to the defense. - **Hyperlinked Source Documentation** — Connect findings directly to the supporting record for faster evidence lookup. ##### Communicate the case - **Trial Exhibit Development** — Turn complex events and care patterns into clear visual presentations. - **Care Calendars / Touch Charts** — Show patterns of care and documented interactions in an intuitive visual format. - **Defense Strategy Summaries** — Condense important clinical findings into focused executive briefings for the legal team. ##### What Defense Readiness adds: The work product should fit the moment it is being used. A traditional medical review may contain the right information but still leave attorneys responsible for reorganizing it for every deposition, expert meeting, mediation, or trial. Excelas designs deliverables around the litigation task itself. The clinical information is structured for the questions attorneys, experts, mediators, and juries are likely to ask—so the defense can spend less time translating the analysis and more time using it. | Traditional clinical report | Excelas Defense Readiness | | --- | --- | | Presents the analysis | Organizes the analysis for the litigation event | | Requires attorneys to find supporting facts | Connects key findings to relevant evidence | | Uses one format for multiple needs | Builds focused tools for witnesses, experts, mediation, and trial | | Describes complex medical events | Helps make those events understandable | | Becomes one more case document | Becomes a working defense resource | #### When the defense needs to act, the clinical intelligence should already be ready. Excelas can turn the existing clinical analysis into focused tools for the next deposition, expert review, mediation, or trial—giving the defense clearer evidence, faster preparation, and a more usable case record. [Discuss Your Matter](/contact) #### Support across the life of the defense: Defense Readiness connects clinical understanding to litigation action. Depending on where the matter stands, Excelas can support the defense before, during, and after the immediate litigation event. ##### Case Triage Start with early clinical orientation, documentation review, and an initial understanding of what the case requires. [Explore Case Triage](/case-triage) ##### Clinical Analysis Reconstruct the clinical story and determine what the record means to the defense. [Explore Clinical Analysis](/clinical-analysis) ##### Defense Continuity Maintain ongoing clinical intelligence and support as the case evolves or across multiple active matters. [Explore Defense Continuity](/defense-continuity) ## Defense Continuity https://excelas1.com/defense-continuity ### Defense Continuity #### Defense Continuity That Keeps Clinical Intelligence Working Throughout the Life of the Case. Excelas provides ongoing clinical support as records, experts, discovery, and strategy evolve—giving the defense a trusted resource that already understands the matter and can respond as new needs emerge. #### The challenge as the case evolves: The case keeps changing. The clinical understanding should not have to start over. New records arrive. Depositions uncover new questions. Experts become involved. Allegations shift. Strategies change. Defense Continuity keeps the clinical understanding current as the case changes. 1. **What changed since the last review?** 2. **Does new documentation affect the analysis?** 3. **What does the expert need now?** 4. **Has a new clinical issue emerged?** 5. **What previous work can be reused?** 6. **Who already understands the full history of the matter?** #### The purpose of Defense Continuity: Build clinical capability into the defense team. Defense Continuity gives attorneys access to an ongoing clinical resource rather than requiring a new engagement every time the case changes. Excelas maintains familiarity with the records, prior analysis, key providers, allegations, and evolving defense strategy. As new information arrives or new questions emerge, we can update the work, support experts, prepare additional analysis, and respond without rebuilding the clinical foundation from scratch. The value grows over time. The more we understand the matter, the organization, and the way the defense team works, the faster and more useful that support becomes. ##### After the first answers: Three questions ongoing clinical support should answer. ##### What has changed? We review newly produced records, developments, and emerging issues to determine whether they materially affect the existing clinical understanding. ##### What needs attention now? We help the defense identify where supplemental analysis, expert support, regulatory review, or additional clinical work is warranted as the matter evolves. ##### What knowledge should carry forward? We preserve the context, prior findings, and institutional knowledge already developed so attorneys do not have to repeatedly rebuild the case from the beginning. ##### What we do in Defense Continuity: Ongoing clinical support built around changing defense needs. Defense Continuity creates a scalable clinical resource that can support an individual matter, multiple active cases, or broader organizational needs. ##### Stay current - **Ongoing Record Monitoring** — Review newly produced documentation and identify developments that may affect the case. - **Supplemental Analysis** — Update prior findings as discovery, allegations, or clinical questions evolve. - **Dedicated Clinical Analyst** — Maintain an assigned clinical resource familiar with the matter and its history. ##### Support the defense team - **Expert Review Support** — Organize records, findings, and relevant evidence as experts become involved. - **Litigation Support Coordination** — Provide recurring clinical assistance as new preparation and analysis needs arise. - **Data Abstraction** — Extract focused clinical information to accelerate expert and attorney review. ##### Extend the capability - **Regulatory Response Support** — Assist with clinical review related to surveys, investigations, and regulatory matters. - **Internal Audits** — Evaluate documentation and care patterns for broader compliance or organizational needs. - **Portfolio-Level Case Support** — Provide consistent clinical support across multiple active matters. ##### What Defense Continuity adds: Most review vendors finish the report and move on. Excelas stays with the defense. One-time review can answer an immediate question, but complex litigation rarely stops creating new ones. Defense Continuity preserves the clinical understanding already developed and gives the legal team a resource that knows the case, understands the organization, and can respond as circumstances change. Instead of repeatedly onboarding a new reviewer, the defense gains a clinical partner whose knowledge compounds over time. | Project-Based Review | Excelas Defense Continuity | | --- | --- | | Starts with each new request | Builds on existing case knowledge | | Delivers a defined report | Supports evolving litigation needs | | Requires repeated onboarding | Maintains familiarity with the matter | | Knowledge stays within individual projects | Clinical context carries forward | | Adds resources when work appears | Creates an ongoing clinical capability | #### Do not rebuild the clinical understanding every time the case changes. Give the defense an ongoing clinical resource that can carry the knowledge forward, respond to new developments, and support the team throughout the life of the matter. [Discuss Your Matter](/contact) #### Support at every stage: Defense Continuity carries forward the work that came before it. Whether the need begins with early orientation, deeper clinical analysis, or preparation for a specific litigation event, Excelas can provide support at the level the matter requires. ##### Case Triage Start with early clinical orientation, documentation review, and an initial understanding of what the case requires. [Explore Case Triage](/case-triage) ##### Clinical Analysis Reconstruct the clinical story and determine what the record means to the defense. [Explore Clinical Analysis](/clinical-analysis) ##### Defense Readiness Turn clinical findings into practical tools for experts, depositions, mediation, and trial. [Explore Defense Readiness](/defense-readiness) ## Regulatory Support https://excelas1.com/regulatory-support ### Regulatory Support _REGULATORY SUPPORT_ #### Clinical and record support for complex regulatory matters. Excelas helps law firms, healthcare organizations, insurers, and other teams respond to regulatory matters with focused clinical review, data abstraction, record organization, and production support. #### Regulatory matters can create complex clinical and record demands. A survey, audit, investigation, or other regulatory matter can require teams to quickly understand large volumes of clinical information, identify relevant documentation, evaluate patterns or concerns, and prepare an organized response. Excelas provides focused clinical and record support to help clients work through those demands efficiently and thoroughly. #### Support built around the regulatory matter. Regulatory work rarely follows a single path. A survey, audit, investigation, internal review, or record request can create very different clinical and documentation demands. Excelas can support a focused need or provide a broader combination of clinical review, data abstraction, record production, and internal audit support based on what the matter requires. ##### Focused Clinical Review When the issue requires deeper clinical understanding, Excelas can review the record around a specific event, provider, care concern, documentation issue, or pattern. We help identify the clinical facts that matter, bring relevant context together, and provide clear findings your team can use as it evaluates the issue and determines next steps. ##### Data Abstraction Large medical records can consume valuable expert and legal time before the real analysis even begins. Excelas extracts and organizes the clinical information most relevant to the question at hand, giving reviewers a more focused record and clearly identified data points to work from. This allows experts and other decision-makers to spend more of their time evaluating the clinical issues and less time searching through the record. ##### Record Production Support Responding to a regulatory request can involve much more than simply gathering documents. Excelas can help retrieve, organize, and review medical records before production, including identifying missing record types, documentation gaps, and other issues that may require additional attention. The result is a more organized and usable record set for the team managing the response. ##### Internal Audits Regulatory support does not always begin with an outside inquiry. Excelas can independently review a targeted sample of records against criteria established for the audit, helping organizations evaluate documentation, identify potential gaps or patterns, and better understand areas that may warrant additional attention. Depending on the objective, findings can be summarized for the organization or delivered as focused data points for further review. ## About https://excelas1.com/about ### About _About Excelas_ #### 20+ YEARS OF EXPERIENCE More than two decades of experience making complex medical records easier to understand. Excelas helps legal, claims, and healthcare teams turn complex medical records into organized information, clinically informed analysis, and practical work product they can use. ##### Built on healthcare expertise. Since 2005, Excelas has worked where healthcare, medical records, litigation, claims, and clinical analysis intersect. Over that time, we have built deep experience understanding not only the medical record itself, but also the practical demands placed on the attorneys, claims professionals, healthcare organizations, and clinical teams who rely on it. As those needs have evolved, so has Excelas. Medical record retrieval, production, and organization remain an important foundation of our work, while our capabilities have expanded to include clinical analysis, medical-legal work product, litigation support, compliance-related review, and technology that keeps our analysis connected to the underlying source documentation. In 2026, ownership of Excelas transitioned to Chase Zaputil, President of Excelas. The company continues to build on more than two decades of experience while strengthening its focus on aging services, expanding its clinical and technology capabilities, and continually improving how we support our clients. What has remained consistent is what clients rely on us for: careful work, responsive service, deep healthcare expertise, and the ability to turn complicated medical information into something clearer and more useful. ##### Deep expertise, matched to the work. Excelas brings together professionals with experience in nursing, medical-legal analysis, health information management, medical record organization and production, quality review, and client service. That depth allows us to match the right expertise to the assignment. A large record-retrieval project requires a different approach than a complex clinical analysis, and an early case assessment may require something different again. We build the scope and team around what the matter actually needs. ##### Technology that makes expertise more useful. Zaxas, our proprietary platform, helps keep organized records, reports, and source documentation connected. Hyperlinked references and searchable records allow authorized users to move efficiently between Excelas work product and the underlying medical record. > "They found a two-line entry from 2016 that changed how we approached the entire case. Nobody else had read that far." ## HIPAA & Privacy https://excelas1.com/about/hipaa ### HIPAA & Privacy _About_ ##### Protecting sensitive health information is an important part of how we work. Excelas regularly works with medical records and other sensitive information on behalf of legal, claims, and healthcare clients. Protecting that information is an important part of our processes, technology, and client relationships. ##### Privacy and security responsibilities are built into each engagement. The requirements for handling protected health information can vary based on the services being provided, the organizations involved, and the nature of the information being handled. Excelas follows applicable privacy, security, and information-handling requirements based on the scope and needs of each engagement. ##### Appropriate safeguards for sensitive information. Excelas uses safeguards designed to protect protected health information and other sensitive client information throughout our work. Depending on the engagement, this may include: - secure methods for receiving and sharing medical records - access limited to authorized individuals - secure access to records and work product through approved systems - requirements governing the use and disclosure of protected health information - appropriate protections when third parties handle protected health information on our behalf - processes for addressing privacy or security incidents when required ##### Handling requirements aligned with the engagement. We work with clients to establish appropriate processes for receiving, accessing, sharing, and retaining records based on the scope of the engagement and applicable requirements. If your organization has specific privacy, security, or information-handling requirements, we can address those as part of the engagement process. #### Questions about privacy or security? Contact Excelas to discuss the privacy, security, or information-handling requirements for your matter. [Discuss Your Matter](/contact) ## Technology https://excelas1.com/about/technology ### Technology _About_ #### Zaxas connects organized records with the work product your team needs. Zaxas is Excelas's proprietary platform for secure access to organized medical records, reports, and source-linked work product. ##### Organized access Authorized users can access the records and work product associated with their engagement in one place. ##### Source-linked navigation Hyperlinked references in applicable reports allow users to move efficiently from the analysis back to the underlying source documentation. ##### Searchable records Searchable record sets help users locate relevant information more efficiently across large volumes of documentation. ##### Connected work product Records, reports, and supporting documentation remain connected so clients can move between the source material and the work Excelas has produced. > The ability to access an exact page so quickly, especially during live testimony, is a great feature of the calendar. > — Matthew T. Corso, Shareholder, Buchanan ## Discuss Your Matter https://excelas1.com/contact ### Discuss Your Matter Whether the matter has just arrived or litigation is already underway, Excelas can help your team understand the clinical record, identify the right next steps, and prepare with greater confidence. This page carries the contact form. It asks for a first name, a last name, a company, an email address, and a short description of the situation. Submitting it is the only way to engage Excelas; there is no other intake path. ## Perspectives https://excelas1.com/blog ### Perspectives _Perpsective_ #### Writing on medical-legal practice Regulatory change, litigation trends and documentation practice, from the team that reads the records. ## Privacy Policy https://excelas1.com/privacy-policy ### Privacy Policy ##### Who we are Our website address is: http://excelas1.com. ##### What personal data we collect and why we collect it We respect the privacy of all visitors to our website. Ocelot Ventures LLC, DBA Excelas does not collect personally identifiable information from you such as name, address, telephone number, or e-mail address unless you voluntarily choose to submit such information to us. We will only use your information to respond to your request for information, or, if appropriate, to consider your request for employment with Excelas. We will not sell, trade, loan or rent any personally identifiable information collected to third parties. From time to time this policy may be amended. If substantial changes are made in the way we collect or use your personally identifiable information, we will notify visitors by posting an announcement on our website. ## Terms of Use https://excelas1.com/terms-of-use ### Terms of Use ##### Terms of Use The content of this Web site is provided solely for informational purposes, and does not create a business or professional services relationship. 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All rights reserved. ## Navigating Wound Infection Claims in Long-Term Care https://excelas1.com/blog/navigating-wound-infection-claims-in-long-term-care ### Navigating Wound Infection Claims in Long-Term Care _2026-02-10 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Approach of medical causation and litigation strategies for allegations of negligence and improper treatment of pressure injuries in LTC Pressure injuries continue to represent over [22%](https://www.cna.com/from-the-experts/authorbio/blogdetails/lauran-cutler/five-key-findings-in-the-2024-aging-services-claim-report) of all closed claims, and average close to $240,000, across independent living, assisted living and skilled nursing communities. Allegations of negligence, improper treatment, and defective products are common, making a strong defense essential. At the recent [DRI](https://www.dri.org/education-cle/seminars/2025/senior-living) Senior Living and Long-Term Care Seminar, experts [Sammi Renken](https://johnsonandbell.com/attorneys/sammi-renken/)and [Eric Walker](https://www.linkedin.com/in/eric-walker-027016178/), MD delivered a detailed review of medical causation and litigation strategies specifically designed to counter these accusations. ###### **Framework for Challenging Claims Related to Wound Infections ** Understanding the medical causation is the key to successfully challenging wound infection claims. A key overriding argument is that wound infections can and do occur in the absence of negligence. The presenters stressed retaining the correct expert, typically infectious disease, plastic/general surgery or geriatric physicians, to refute plaintiff’s arguments relating to causation, cause of death and damages. The following were key issues to address to combat plaintiff claims in these areas:**Causation: **Plaintiffs claim the cause of the infection is whatever the care provider did or did not do, including failure to employ proper treatments, improper incontinence care, failure to keep resident clean and violation of infection control policies. The defense must assess: - If the wound was infected (microorganisms causing symptoms and disease) or colonized (microorganisms present, no symptoms) What technologies, such as [autofluorescence](https://pmc.ncbi.nlm.nih.gov/articles/PMC12117260/) imaging, were used to assess the presence of colonization vs. clinical infection to inform treatment options. - If the wound was unavoidably infected in a patient with high risk for infection, including those with vascular disease,low oxygenation,heart or kidney failure,immobility,poor nutrition,obesity,metabolic changes,diabetes and other underlying comorbidities. - If infected, what was the clinical impact on the patient - The type of infection documented: Wound infection identified by redness and swelling around wound, pain or tenderness, warm to the touch, drainage, foul odor, wound edges not healing or separating and feverOsteomyelitis identified by bone biopsy or MRISystemic Infection identified by blood cultures. Systemic Inflammatory Response (SIRS) identified by temperature of 100.4 or greater, heart rate over 90 bpm, respiratory rate over 20 bpm, elevated white blood cell countNecrotizing Fasciitis typically caused by streptococcal infection or Fournier’s gangrene and cause rapid tissue death. **Cause of Death: **Plaintiffs claim the wound infection caused or contributed to the death. The defense must argue that the presence of a clinically infected wound does not necessarily mean it was the cause of death. The source of the infection may be a UTI or pneumonia, and the organism in the blood culture may not match the organism in the wound culture. Again, use of expert testimony to demonstrate the difference between clinical infection and systemic infection is critical. **Damages:** Plaintiffs claim all bills incurred relate to a specific infection. The defense must show which treatment was related directly to the wound infection versus other concurrent infections and/or conditions.**Documentation Reviews to Support the Defense** For over 20 years, Excelas has partnered with senior living providers, insurers and defense counsel in the defense of wound cases. Our experienced medical analysts review medical and other pertinent records and develop focused reports including: - [**Turning and Repositioning Chart**](/clinical-analysis) – a simple, visual layout to demonstrate the consistency of care given to a resident. - [**Care Calendar**](/clinical-analysis) – an interactive calendar to visualize the date and time of all interactions with a resident. - [**Medical Chronology**](/clinical-analysis) – a customizable report of all documentation related to the resident’s care, which can be easily sorted by topic, record type, or provider of care. - [**Case Summary**](/clinical-analysis) – a high-level summary of the medical history including an opinion by our medical-legal analysts on whether the records support or refute the allegations and comments on any additional areas for investigation - All reports include hyperlinks to the page(s) in the [medical record](/clinical-analysis) where the care is documented. Each of these work products are used to assist counsel in evaluating the merits of a claim/case, and in developing defense strategies in relation to causation, cause of death and damages. Contact Excelas today for a demonstration of how our software, analytic tools and reports can be a cost-effective and powerful tool in defending wound infection cases. ## Focus on Mobility in Senior Living https://excelas1.com/blog/focus-on-mobility-in-senior-living ### Focus on Mobility in Senior Living _2026-01-08 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Senior living communities are turning to technology to focus on the mobility of their residents—while also reducing risks related to falls. Mobility is a critical indicator of health and quality of life. Senior living communities are increasingly turning to technology to monitor residents, enhance independence, and improve functionality—while also reducing risks and claims related to falls. A recent [McKnights](https://onlinexperiences.com/scripts/Server.nxp?LASCmd=AI:4;F:QS!10100&ShowUUID=EAFB7959-EA5B-4F74-8FC1-6B386625D2BE&AffiliateData=111925-EDT) webinar gathered industry experts to discuss how artificial intelligence (AI), mobility data, and robotics are reshaping the senior living sector. ###### **Why Mobility Matters** Globally, 1.3 billion people experience mobility challenges. These issues often lead to falls, which can trigger a variety of consequences, including decreased function, loss of independence, and diminished dignity. Experts emphasize that mobility should be treated and measured as a vital sign, as movement, or lack thereof, is one of the earliest indicators of declining health and disease progression. ###### **Financial Implications of Reduced Mobility** Falls remain one of the leading causes of loss in senior living and long-term care communities. Over the past decade, average claim values have doubled. Because insurers review fall-related patterns over 12–18 months, facilities that demonstrate measurable improvements in fall prevention, particularly through real-time data, can benefit from lower premiums. [Section GG](/blog/cms-changes-to-the-minimum-data-set-2023) of the Minimum Data Set (MDS) highlights the importance of gait and mobility in overall health. While often used by plaintiffs to argue negligence, it can also serve as a strong defense tool when documentation is thorough. Providers must ensure staff are documenting appropriately to meet MDS and payer requirements, while also protecting against liability. Integrating mobility tracking technology with electronic medical records (EMRs) significantly strengthens documentation practices. ###### **The Role of Technology** Senior living providers are adopting AI, robotics, and mobility data tools to improve resident care, increase staff efficiency, and reduce liability. These innovations offer both practical and emotional benefits for residents and families. ###### **Artificial Intelligence** - Detects lack of movement and alerts staff for faster response times. - Integrates with EMRs to monitor alerts, reconcile medications, and update care plans. - Eases workforce shortages by automating repetitive tasks, freeing caregivers to spend more time with residents. ###### **Robotics** - Assists residents with walking, sitting, and standing, reducing fall risks. - Uses advanced sensors and AI-driven monitoring to track vital signs, manage medications, and provide health data for timely interventions. - Offers voice-activated companionship to reduce loneliness and enhance emotional well-being. ###### **Mobility & Movement Data** - Helps caregivers anticipate needs by identifying risks before a fall occurs. - Guides staffing decisions by highlighting areas requiring proactive attention. - Detects subtle gait changes, enabling early interventions to prevent hospital admissions or readmissions. ###### **Benefits and Barriers** Technology adoption in senior living is no longer optional—it’s expected. Residents and families increasingly value facilities that integrate modern tools into care. The combination of AI, robotics, and mobility data provides physical support, objective insights, and emotional reassurance. Facilities are seeing returns on investment through: - Greater staff efficiency - Higher resident and family satisfaction - Increased occupancy However, implementation comes with challenges: financial constraints, staff training demands, buy-in, privacy concerns, and the sheer volume of available technology. Implementation success requires: - Careful selection of solutions tailored to facility needs - Clear, staged implementation plans - Robust policies and procedures - Ongoing staff education - Continuous ROI analysis ###### **Harnessing Information** As technology continues to [evolve](/blog/technology-trends-2024), integration between AI applications, [remote patient monitoring](/blog/remote-patient-monitoring-uses-and-challenges) tools, and EMRs is key. At [Excelas](/), we support our clients in reviewing documentation to ensure timely, accurate integration of data into medical records—strengthening patient care, reimbursement, compliance, and risk management. ## Human Oversight in the Age of AI https://excelas1.com/blog/human-oversight-in-the-age-of-ai ### Human Oversight in the Age of AI _2025-12-23 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > As the growth of AI use continues, the synergy between AI and human experts is essential to ensuring quality outcomes, especially in high-stakes environments like healthcare and law. The usage of artificial intelligence (AI) is exploding. In 2025 alone, the [healthcare](https://menlovc.com/perspective/2025-the-state-of-ai-in-healthcare/) industry has invested $1.4 billion in AI, triple the amount spent in 2024. The [legal](https://legal.thomsonreuters.com/blog/artificial-intelligence-and-law-guide/) profession has seen a similar surge, with AI usage nearly doubling. As this growth continues, the [synergy](https://www.forbes.com/sites/jasonwingard/2025/10/28/5-human-skills-beating-ai---and-keeping-you-irreplaceable/?utm_medium=browser_notifications&utm_source=pushly&utm_campaign=84976379Repetitive%20vs%20concise) between AI and human experts is essential to ensuring quality outcomes, especially in high-stakes environments like healthcare and law.Excelas operates at the crossroads of the medical and legal fields, giving us a unique perspective on the indispensable role human expertise plays in guiding and refining AI processes. The view among technology [experts](https://www.forbes.com/councils/forbestechcouncil/2025/07/24/when-to-use-ai-vs-human-judgment-a-framework-for-tech-leaders/) is that the future is not "AI versus humans"; rather, it is about AI being used in concert with wise human judgment. This is the approach we are taking as we investigate how to best meld AI into our workflow. In litigation, where decisions hinge on precise and timely information, AI excels at accelerating the review and summarization of massive volumes of complex medical records. Human experts are then needed to leverage these initial outputs, applying their analytical precision and nuanced judgment to verify [accuracy](https://healthmanagement.org/c/artificial-intelligence/News/ai-hallucinations-and-the-risks-for-healthcare), provide essential context, and distill the information into focused and concise reports. We consider this type of integrated approach as key to equipping counsel with reliable insights early in the life cycle of a case, which in turn will enable more informed strategies and favorable outcomes. For over two decades, Excelas’ clients have benefited from our expertise in the comprehensive analysis of medical records for claims and litigation. We are excited about the efficiency that AI can bring to this established process, an efficiency that will be magnified by the substantial experience our team holds in complex medical litigation. We believe the powerful combination of cutting-edge technology and seasoned [human](https://www.forbes.com/sites/jasonwingard/2025/10/28/5-human-skills-beating-ai---and-keeping-you-irreplaceable/?utm_medium=browser_notifications&utm_source=pushly&utm_campaign=84976379Repetitive%20vs%20concise) insight will offer unparalleled value to our clients. Contact Excelas today to discuss how our products and experience can support your legal team. ## Recent Verdicts and Litigation Trends and the Impact on Senior Living https://excelas1.com/blog/recent-verdicts-and-litigation-trends-and-the-impact-on-senior-living ### Recent Verdicts and Litigation Trends and the Impact on Senior Living _2025-12-02 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > The latest insights on recent verdicts, decisions, and evolving plaintiff arguments in staffing cases in long-term care facilities. Staying ahead of legal trends, CMS regulations, and staffing issues continue to be top priorities for long-term care providers. At the recent [DRI](https://www.dri.org/education-cle/seminars/2025/senior-living) Senior Living and Long-Term Care Litigation Seminar, the session titled “_How Much?! – Latest Verdicts and Legal Updates in Senior Living and a Discussion of Current “Understaffing” Strategies and Evidence Used Against Providers_,” presented by Shaquan Lewis, [J. Richard Moore](https://www.bleekedilloncrandall.com/attorneys/j-richard-moore/), and [John R. Bowblis, PhD](https://www.bowblisecon.com/), provided insights on recent verdicts, decisions, and evolving plaintiff arguments in staffing cases. ##### **Rising Claims and Supreme Court Decisions** Claim frequency and severity in senior living and long-term care continue to escalate. Nuclear verdicts are becoming more common as plaintiff attorneys appeal to jurors’ emotions, resulting in multimillion-dollar awards. Arbitration practices are also being closely examined, with courts and regulators emphasizing the need for plain language and compliance with evolving standards. Two recent U.S. Supreme Court rulings will impact long-term care litigation. _Health and Hospital Corporation of Marion County v. Talevski_, allows lawsuits under the Federal Nursing Home Amendments Act of 1987 (FNHRA) against state-operated long-term care facilities that accept Medicare, separate from state-law professional negligence claims. In _Loper Bright Enterprises v. Raimondo_, the Court overturned the longstanding “Chevron Deference,” ruling that courts are not required to defer to a federal agency’s reasonable interpretation of ambiguity. This limits the regulatory authority of agencies such as CMS and may lead to increased scrutiny of agency guidance. ##### **Evolving Strategies in “Understaffing” Allegations** Senior living providers continue to face allegations of “understaffing.” Dr. Bowblis outlined how plaintiff strategies have evolved from using anecdotal nurse testimony or simple comparisons to state/CMS benchmarks to current trends of data-driven arguments that include: - Attacking the validity of the facility’s actual staffing levels - Utilizing “facility assessment” to develop staffing benchmark - Referencing “CMS expected” staffing levels, or the “Anticipated Minimum Staffing” - Pursuing class action understaffing lawsuits ##### **Defending “Understaffing” through Expertise and Technology** To effectively defend “understaffing” cases, emphasis was placed on early involvement of staffing experts and the facility’s IT personnel. This coordinated approach facilitates: - Rebuttal of the plaintiff’s forensic experts who may be unfamiliar with the intricacies of the facility-specific IT and payroll systems. - Validation of the facility’s “actual” staffing level and the benchmark used by the plaintiff’s expert. - Analysis of underlying staffing calculations utilized by plaintiff’s experts as CMS calculations have changed over time (e.g., RUG scores, MDS assessment data, PDPM). Staffing experts for the defense can demonstrate flaws in the assumptions plaintiffs have used in their methodology. - Development of tools to illustrate that the facility staffs to each resident based on clinical needs, especially in defense of class actions originating from medical malpractice claims. ##### **How Excelas Strengthens Your Defense** [Excelas](/)’ services directly support defense strategies in long-term care litigation by: - **Early Case Assessment** to identify key medical issues, involved parties, and [strengths/weaknesses](/case-triage) to guide early case valuation. - **Medical Record Analysis** including [staffing](/clinical-analysis) documentation, to identify screening, training, and quality of care concerns. - **Regulatory Compliance Review** to evaluate documentation quality and completeness to ensure [compliance](/regulatory-support) with state and federal standards. Contact Excelas today to schedule a demonstration of our software, analytic tools, and reporting capabilities and learn how we can strengthen your legal defense in senior living cases. ## Preparation is Key to Defending Managerial Employees in Long-Term Care Litigation https://excelas1.com/blog/preparation-is-key-to-defending-managerial-ltc-employees ### Preparation is Key to Defending Managerial Employees in Long-Term Care Litigation _2025-11-19 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > In LTC litigation, plaintiffs often targets managerial staff. Thorough deposition preparation for key employee and front staff is critical. In long-term care litigation, plaintiffs’ counsel often targets managerial staff, putting your facility’s leaders directly in the line of fire. At the recent [DRI](https://www.dri.org/education-cle/seminars/2025/senior-living) Seminar, [Max Beach](https://www.perrylaw.net/attorneys/beach.asp), [Sarah Jane Truong](https://www.perrylaw.net/attorneys/truong.asp), and [Paul McCartney](https://www.bspplaw.com/team-members/paul-w-mccartney) provided expert insight on this challenge. In their presentation, _"The Good, the Bad and the Ugly,"_ they emphasized thorough deposition preparation for these key employees, along with front line staff, is critical. ###### **Strategizing for Deposition Success** Managers—including administrators, directors of nursing, medical directors and owners—must understand the defense themes and how their testimony supports the overall strategy. The following are the key areas for preparation, addressing the topics plaintiffs’ counsel predictably covers: - **Policies and Procedures: **Ensure managers can speak knowledgably about relevant policies and establish their role in the creation and implementation of these protocols. - **Regulations: **Prepare managers to demonstrate fluency with federal and state regulations, a frequent focus of plaintiffs’ counsel as an area of competency. - **Standard of Care: **Highlight a manager’s knowledge on standards of care. Emphasize that care plans are individualized, based on each resident’s needs and diagnoses. - **Staffing Levels: **Counter the common narrative of understaffing. Prepare managers to address questions about staffing ratios and training without validating an adversarial narrative. - **Budgeting vs. Clinical Decisions: **Counter the argument of “profits over people.” Frame budgets and financial documents as business tools, not as factors in clinical decision-making. ###### **Preparing the Full Team** Preparation is not limited to managers. For non-managerial staff, the medical record is the primary tool for identifying potential deponents. Other sources include incident reports and resident surveys. Counsel should interview involved staff members as early as possible, including former employees. For cooperative current employees, a final pre-deposition meeting should occur within a day or two of their testimony to keep information fresh. Preparation techniques should be adjusted for hostile or uncooperative former employees. ###### **Empowering Counsel with Data** To streamline witness preparation, Excelas’ clients leverage the [**Comprehensive Integrated Timeline Tool**](/defense-readiness)**, **or CITT, to organize and analyze critical case data. This powerful tool combines key medical record information with other documents to create a focused, easy-to-read report. The CITT pulls together diverse documents into a single framework, including: - Internal corporate communications - Corporate policies and procedures - Relevant federal and state regulations and guidelines - Staffing records - Supply chain documentation - Deposition transcripts - Incident Reports - Interview notes - Relevant family correspondence The **CITT** allows for efficient layering of data from these various sources and highlighting your facility’s actions in relation to the incident/time period in question. Images of source documents are imbedded in the CITT for ease of reference. Originally built for rapid responses to regulatory agencies, the CITT is an invaluable asset for deposition readiness. Contact us today for a demonstration of how our Comprehensive Integrated Timeline can be a cost-effective and powerful addition to your legal toolkit. ## Senior Living Litigation: The Impact of Agency and Ancillary Staff https://excelas1.com/blog/senior-living-litigation-the-impact-of-agency-and-ancillary-staff ### Senior Living Litigation: The Impact of Agency and Ancillary Staff _2025-10-30 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > best practices to help long-term care providers navigate the complex legal environment of minimum staffing standards. The long-term care industry continues to face staffing challenges that often raise legal concerns for senior living facilities. Although the Biden administration’s proposed minimum staffing standards for nursing homes were not implemented, reliance on temporary or "agency" staff remains, which heightens the need for effective risk management strategies. At the recent [DRI](https://www.dri.org/education-cle/seminars/2025/senior-living) Senior Living and Long-Term Care Litigation Seminar, [Tammy Banasek](https://www.heplerbroom.com/professionals/banasek-tammera) and [Robyn Rogers](https://www.linkedin.com/in/robyn-rogers-36b3a048/) addressed this issue in their presentation, _“Who’s on First? Fielding the Changing Landscape of Agency and Ancillary Staff in Resident Care and Litigation.”_ Their insights offered best practices to help long-term care providers navigate this complex legal environment.**Ongoing Staffing Challenges ** The pandemic had an inimitable impact on staffing in long-term care, with over 210,000 jobs lost. According to the AHCA/NCAL, as of 2024, 84% of nursing homes still faced moderate to severe staffing shortages. This has forced many facilities to rely on temporary staffing agencies to fill gaps, a practice that introduces several challenges beyond just increased labor costs. These issues include impacts on continuity of care, reduced productivity of in-house staff, potential cultural misalignments, and negative effects on morale. The Centers for Medicare and Medicaid have launched the [Nursing Home Staffing Campaign](https://www.cms.gov/medicare/health-safety-standards/quality-safety-oversight-general-information/nursing-home-staffing-campaign) to increase the number of nurses working in nursing homes. AHCA/NCAL has also advanced a “[Caregivers for Tomorrow](https://www.ahcancal.org/News-and-Communications/Press-Releases/Pages/AHCA-NCAL-Launches-New-Workforce-Campaign-Caregivers-For-Tomorrow.aspx)” campaign to advance policy strategies to strengthen the long-term care workforce. While these and related initiatives are needed to ensure the long-term care workforce keeps pace with the aging population, they do not address the gaps currently being filled by temporary staff.**Best Practices in Managing Agency Relationships** To manage risks associated with the use of agency and temporary staff, facilities must prioritize clear, contractual relationships and rigorous operational protocols. Key practices discussed by the presenters include: - Contractual Clarity: Ensure all contracts with agencies contain clear indemnification language and do not include ambiguous clauses that could shift liability back to the facility. - Vetting: The facility must confirm that all temporary staff have valid licenses and insurance certificates and have undergone necessary education and background checks. - Consistent Operational Protocols for both agency and permanent staff: Document the completion of a specific and consistent facility training programComplete documentation of onboarding, credentialing, and supervision of agency staffDocument and administer performance evaluationsEnforce clear procedures and documentation of incident reports - Clear Identification: Agency staff should be required to wear uniforms, badges, or other identification that clearly distinguishes them as independent clinical staff, not facility employees. - Informed Consent: On admission, facilities should obtain informed consent from residents or their families that acknowledges the potential involvement of independent contractors in clinical care. Created early in your case preparation to help with risk assessment, strategy identification, preliminary family meetings, mediations, and more. With Zaxas, our proprietary software, we can create the calendar quickly, eliminating the expense of creating a similar product manually.**Enhancing Defense Strategies with Documentation** Amidst the ongoing labor [shortage](/blog/staffing-crisis-in-long-term-care) in long-term care, [Excelas](/) is helping legal teams defend cases alleging inadequate staffing. Our powerful [Provider of Care Report](/clinical-analysis) and the easy-to-read [Care Calendar/TouchChart](/clinical-analysis) allow counsel to quickly review workforce data and clinical interactions. These tools clearly show the care a resident received during critical times and who provided it, helping lawyers swiftly counter negative staffing claims from plaintiffs. Contact Excelas for a demonstration of our powerful tools to support you in defending allegations related to staffing issues. ## Strengthening Legal Defense Through Documentation: Distinguishing Assisted Living from Skilled Nursing https://excelas1.com/blog/distinguishing-al-from-snfs ### Strengthening Legal Defense Through Documentation: Distinguishing Assisted Living from Skilled Nursing _2025-10-16 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > The distinctions between assisted living facilities and skilled nursing facilities shape the delivery of care, the regulatory frameworks, the legal exposures involved, and challenges & strategies for defending cases. In long-term care litigation, understanding the differences between assisted living facilities (AL) and skilled nursing facilities (SNF) is essential. These distinctions shape the delivery of care, the regulatory frameworks, and the legal exposures involved. At the recent [DRI](https://www.dri.org/education-cle/seminars/2025/senior-living) Senior Living and Long-Term Care Seminar, the session – _“Pulling Back the Curtain: Demystifying the Legal Defense of Assisted Living Facilities v. Skilled Nursing Facilities”_ – explored the challenges and strategies in defending each care setting. [Jodi Terranova](https://www.wilsonelser.com/jodi-v-terranova), [Frank Alvarez](https://qpwblaw.com/attorney/frank-alvarezqpwblaw-com/), and [Marvette Lowrie-Morris](https://www.linkedin.com/in/marvette-lowrie-morris-esq-msm-hons-bshca-rn-lnha-4652552b/) provided expert insights on how these distinctions impact litigation strategies. ###### **Level of Care Provided** Assisted Living facilities are designed to serve a very different population than skilled nursing facilities. The goal in AL is to give residents independence, often in an apartment-like setting, while helping with activities of daily living (ADLs). SNFs aim to provide comprehensive medical care, including rehabilitation and 24/7 skilled nursing care. AL providers screen residents upon admission to evaluate their medical status. This includes the resident’s medical history, diet and nutrition, toileting, psychosocial well-being, decision-making capacity, and medication management. Based on this evaluation, a Resident Agreement is signed, outlining the costs, scope of care, and expectations if the level of care exceeds what the AL can provide. SNFs also screen incoming patients, and the care they provide is guided by federal regulations. ###### **Payment Models and Regulatory Oversight** Assisted Living Facilities (AL) are [regulated](https://www.ahcancal.org/Assisted-Living/Policy/Pages/state-regulations.aspx) at the state level, and standards vary widely among states, with some states offering licensure for different levels of care. Payment is direct from the resident, or private pay, just as in renting an apartment. There are some situations where Medicaid pays for certain services, but not for room and board. Skilled Nursing Facilities (SNFs) operate under federal oversight through the Centers for Medicare & Medicaid Services (CMS). They must meet uniform standards under the Skilled Nursing Facility [Quality Reporting Program](https://www.cms.gov/medicare/quality/snf-quality-reporting-program/measures-and-technical-information) (QRP). A component of the QRP is the Minimum Data Set ([MDS 3.0](https://www.cms.gov/medicare/quality/nursing-home-improvement/resident-assessment-instrument-manual)) Resident Assessment Instrument (RAI), and the [data collected](/blog/cms-changes-to-the-minimum-data-set-2023) from SNFs is publicly reported through [Care Compare](https://www.medicare.gov/care-compare/?providerType=NursingHome). Some states have stricter SNF laws and regulations than the federal rules. ###### **Legal Landscape** The presenters noted that despite the differences in AL and SNFs, the claims being brought against ALs often mirror those faced by SNFs. Common allegations include: - Failure to prevent falls - Inadequate wound care - Delayed diagnosis of infections - Failure to recognize and respond to changes in condition As AL residents desire to “age in place,” providers are accommodating residents with more complex medical needs. This shift demands rigorous review and modifications to resident agreements and proactive communication with families. Administrators must ensure complete and quality documentation of care transitions and evolving expectations to mitigate liability. ###### **Best Practices in Documentation** Strong medical record documentation is one of the most powerful tools facilities have in the defense of claims and litigation. In both [assisted living](https://tangramins.com/news-insights/why-assisted-living-facility-documentation-matters/) and skilled nursing facilities, it can make the difference between a dismissed claim and a costly lawsuit. Specifically, thorough documentation is critical to demonstrate: - Timelines of care delivery and interactions - Compliance with service plans (AL) or CMS regulations (SNF) - Staff interactions and clinical decision-making - Preventive measures (e.g., fall protocols, wound care) - Justification for changes in care level For ALs that coordinate with external providers such as hospice or home health agencies, integrating third-party documentation into the resident’s chart is essential._At _[_Excelas_](/)_, we bring decades of expertise in medical record review to help clients _ - _assess and improve documentation quality _ - _provide targeted staff training_ - _prepare for audits and regulatory reviews_ - _strengthen risk management programs_ - _evaluate the merits of a claim/case_ - _prepare and develop defense strategies_ _Our experienced medical analysts review medical and other pertinent records and develop a range of powerful reports to support decision-making. Our most frequently requested reports include: _ - [_Care Calendar_](/clinical-analysis)_ – an interactive calendar to visualize the date and time of all interactions with a resident._ - [_Turning and Repositioning Chart_](/clinical-analysis)_ – a simple, visual layout to demonstrate the consistency of care given to a resident._ - [_Medical Chronology_](/clinical-analysis)_ – a customizable report of the resident’s care which can be easily sorted by topic, record type, or provider of care._ - [_Case Summary_](/clinical-analysis)_ – a high-level summary of the medical history, including an opinion by our medical-legal analysts on whether the records support or refute the allegations and comments on any additional areas for investigation_ - _All reports include hyperlinks to the page(s) in the _[_medical record_](/clinical-analysis)_ where the care is documented._ _Contact Excelas today to schedule a demonstration of our software, analytic tools, and reports to learn how we can strengthen your legal defense in AL and SNF cases._ ## How AI Is Reshaping Litigation: Insights from DRI’s Senior Living Seminar https://excelas1.com/blog/how-ai-is-reshaping-litigation-insights-from-dris-senior-living-seminar ### How AI Is Reshaping Litigation: Insights from DRI’s Senior Living Seminar _2025-09-30 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Artificial intelligence is rapidly transforming daily life, with its impact on medicine and law proving especially consequential. Artificial intelligence is rapidly transforming nearly every facet of daily life, with its impact on medicine and law proving especially consequential. At [DRI](https://www.dri.org/education-cle/seminars/2025/senior-living)’s recent _Senior Living and Long-Term Care Litigation Seminar_, attendees gained valuable insight into the evolving role of AI in legal practice from expert [Joseph Bambara](https://www.unitedconsultants.com/uc/joseph-bambara-bio.html). His presentation explored the foundational principles of AI, its practical applications in law firms, and the ethical and security considerations that must guide its adoption. ###### **Fundamental Concepts and Implications ** Artificial intelligence is a broad field within computer science focused on building systems that can perform tasks traditionally requiring human intelligence—such as reasoning, learning, problem-solving, perception, and language comprehension. Bambara broke down the core components of Generative AI (GAI), a subset of AI that enables the creation of new content. GAI is driven by: - **Machine Learning (ML):** Algorithms that detect patterns in data and automatically construct logic models. - **Deep Learning:** A specialized branch of ML using multi-layered neural networks to handle complex tasks like speech and image recognition. - **Foundation Models:** Large-scale pretrained models—such as ChatGPT, Gemini, Grok, and Copilot—that serve as the basis of generative capabilities. GAI is advancing at an explosive pace, with each tool offering unique strengths. Bambara emphasized that successful integration of AI into legal workflows requires: - Staying current with the latest versions of AI tools. - Selecting tools tailored to the specific legal task or challenge. - Using multiple AI platforms to leverage their complementary capabilities. Bambara underscored that AI should be viewed as an enhancement—not a replacement—for human expertise. Effective use of generative AI requires a deep understanding of legal and medical issues, along with well-crafted prompts. Prompts should be clear, structured, and contextualized, include examples of desired outputs, and be continuously refined through testing. When paired with professional judgment, AI can accelerate processes, uncover insights, and enhance decision-making—while preserving the important role of legal professionals. ###### **Practical Applications** AI is already delivering measurable benefits in legal operations, including: - Contract review and analysis - Document drafting - Legal analytics - Workflow automation and case management - Medical record review Successful implementation of these applications demands careful oversight. Bambara advised legal teams to: - Maintain human review of all AI-generated outputs, especially concerning ethical implications. - Ensure robust data security protocols to protect client information and sensitive health data. - Assess the full scope of integration costs, including infrastructure, hardware, and IT support. He concluded with the caution that firms that fail to embrace AI risk falling behind in operational efficiency, talent retention, client satisfaction, and overall market competitiveness. ###### **AI in Medical Record Review and Analysis: Excelas’ Approach** For more than two decades, [Excelas](/) has been a trusted leader in medical record analysis for long-term care providers, insurers, and legal counsel. Our team of experienced medical professionals, supported by proprietary technology, delivers tailored work products that enable early case assessment and resolution. We continually [monitor](/blog/ai-in-healthcare) AI developments in aging services and the implications for the defense community. Excelas is evaluating the integration of AI into its processes to further enhance efficiency and precision—continuing our commitment to innovation and excellence in litigation support. Get the latest AI news straight to your inbox with the Excelas' newsletter. ## Alternative Models in Senior Living https://excelas1.com/blog/alternative-models-in-senior-living ### Alternative Models in Senior Living _2025-08-06 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > The aging population is driving up the senior housing market, with an emphasis on service quality, causing facilities to modify existing buildings. The recent [Senior Housing Market Outlook](https://info.nicmapvision.com/p-mf-core-report-25june24-shmarketoutlook.html?utm_source=argentum&utm_medium=article&utm_campaign=argentum_interview_article_shmo_report_affordability&utm_term=nov2024&utm_content=whitepaper) published by NIC MAP shows that the senior housing market has rebounded quickly after the pandemic. The aging population is driving “explosive” demand growth, with a greater emphasis on service quality when choosing senior living options. The report notes that nearly half of the current senior facilities opened before 2000, and customer preferences, and in some cases purchasing power, have changed significantly since then, driving the need for the industry to develop alternative senior living options.At a recent Argentum Women in Leadership webinar, [Jill Kreider](https://azuraliving.com/team-member/jill-kreider-president-2/), President of Azura Living, LLC, shared insights into their use of the [Household Model](https://azuraliving.com/household-model/). Beyond traditional nursing homes and assisted living facilities, alternatives like the [Green House](https://thegreenhouseproject.org/), [Household](https://bettercareplaybook.org/_blog/2023/27/turning-nursing-homes-true-homes-household-model), and Neighborhood models offer seniors more homelike settings. These models usually feature smaller, self-contained units, often within larger nursing facilities, each housing no more than 20 residents. Residents have private bedrooms and bathrooms, shared spaces such as kitchens and living rooms, and access to outdoor areas. Based on research and best practices, Azura Living also incorporates advanced resident room supports, décor, and technology to improve care and quality of life. Staff in household models are cross-trained and focus on each resident’s physical and emotional needs rather than on specific tasks.According to the [Green House Project](https://thegreenhouseproject.org/), there are 300 Green House Homes across 32 states, with 87 percent licensed as skilled nursing facilities. Building new or modifying existing facilities to fit the small household model is costly. Some [states](https://www.mcknights.com/news/cms-ohio-governor-approve-funding-increase-for-transition-to-private-nursing-home-rooms/) have increased Medicaid reimbursements for nursing home providers who offer private rooms and bathrooms. Industry leaders are also urging the Department of Housing and Urban Development to allocate federal [funds](https://www.mcknights.com/news/hud-should-invest-more-in-vital-nursing-home-revamping-projects-experts/) for renovations to smaller, household-style facilities.Experts agree that [better outcomes](https://www.healthaffairs.org/content/forefront/why-nursing-homes-need-total-redesign#:~:text=The%20traditional%20institutional%20nursing%20facility,redesign%20and%20reimagine%20nursing%20homes.) are achieved when residents have more autonomy, privacy, and family-like relationships with staff. These improved outcomes include, but are not limited to, infection control, declines in hospital readmissions, reduced staff turnover, increased staff satisfaction, sustained occupancy, and overall improvements in residents’ physical and emotional well-being._Quality _[_documentation_](/blog/strategic-senior-living-documentation)_ practices are critical in all healthcare facilities. In smaller, household-type settings, where staff are cross-trained for multiple tasks, proactive training and auditing to ensure quality documentation are critical. Excelas’ medical analysts have extensive experience in reviewing medical records unique to long-term care settings. Our medical record audits can assist administrators in developing documentation procedures, preparing for surveys, complying with MDS requirements, and assessing staff training needs. Contact us today to discuss your medical information management requirements._ ## Technology Expectations of Seniors https://excelas1.com/blog/technology-expectations-of-seniors ### Technology Expectations of Seniors _2025-07-24 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Technological expectations of residents and their families within long-term care facilities are rising causing more facilities to invest in digital technology to support overall healthcare. A recent [webinar](https://msl-resources.mcknightsseniorliving.com/free/w_matr47/prgm.cgi#xd_co_f=ODBiOWYwMWEtMGYwZS00NjRkLTg1ODQtZDY0ZDRhNTA1NDFh~) hosted by McKnight’s and presented by MatrixCare delved into the technological expectations of residents and their families within long-term care facilities. Today’s residents are significantly more “tech-savvy” compared to previous generations, regularly using smartphones, tablets, wearables, and various applications in their daily routines. Consequently, when considering potential senior living options, technology plays a central role in the decision-making process.The presenters highlighted the need for providers to adapt operations with technological solutions to meet resident and family expectations, such as real-time status updates, data-driven decision-making, personalized resident experiences, and involving families as care partners. MatrixCare describes use of such technology as a “digital safety net,” which includes: - Engagement Tools to digitally connect residents, families, and staff, including patient portals, mobile health apps, health bots, voice assistants (medication and appointment reminders, emergency alerts), and caregiver communication hubs. - Telehealth to expand access and support aging in place. - Ambient monitoring to provide non-intrusive insights, including private, around-the-clock monitoring to address resident needs early, allow for proactive changes to care plans, and provide families with peace of mind. Today’s seniors value independence, meaningful connections, purpose, and physical and mental wellness. Investing in these digital technologies allows providers to support these values along with realizing a clinical and competitive advantage in the senior-living marketplace. The digital safety net ultimately improves the quality of care, reduces costs, and increases resident and family satisfaction._Excelas continues to monitor _[_technology trends_](/blog/technology-trends-2024)_ in senior living and the impact on documentation, quality, compliance, claims, and litigation._ ## Record Retrieval Challenges – Electronic Medical Records https://excelas1.com/blog/record-retrieval-challenges-electronic-medical-records ### Record Retrieval Challenges – Electronic Medical Records _2025-06-25 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Attorneys face significant challenges in retrieving and interpreting electronic medical records (EMRs) due to their complexity, variability across systems, legal and privacy regulations, and the need for collaboration with multiple departments to ensure accurate, complete, and legally admissible documentation in litigation. As defined by [HealthIT.gov](https://www.healthit.gov/topic/health-it-and-health-information-exchange-basics/what-are-electronic-health-records-ehrs), EHRs (electronic health records) are real-time, patient-centered records that make information available “whenever and wherever it is needed.” EHRs contain information about a patient’s medical history, provide tools to support providers in decision-making, streamline providers’ workflow, and increase the organization and accuracy of information. EHR refers to data maintained across multiple providers, while an EMR (electronic medical record) represents patient information maintained by a single provider. EHRs and EMRs are dynamic and complex systems that can create challenges for attorneys in obtaining and reviewing medical records for litigation.[Robin Khanal](https://qpwblaw.com/attorney/rkhanalqpwblaw-com/), Managing Partner of Quintairos, Prieto, Wood & Boyer, P.A., and legal nurse consultant [Mindy Houston](https://www.linkedin.com/in/mindy-h-0650b667/) provided attendees at the recent DRI Senior Living and Long-Term Care Litigation Seminar an informative overview of “_Effectively Managing Risks in Electronic Medical Records_.” Case examples illustrated the importance of ensuring all EMR data is captured through discovery requests. They noted that the EMR is a “hot topic” for attorneys as digital systems have created many challenges that did not exist with paper-based records. Counsel must consider computer downtime logs, meta-data, clinical decision support tools, and software applications that may be used outside the EMR in addition to the information contained in the patient record.Health information is protected under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) [Privacy Rule](https://www.hhs.gov/hipaa/for-professionals/privacy/laws-regulations/index.html) and [Security Rule](https://www.hhs.gov/hipaa/for-professionals/security/laws-regulations/index.html). The Privacy Rule establishes who is covered, what information is protected, and how protected health information can be used and disclosed. The Security Rule further identifies what safeguards must be in place to protect electronic health information. These safeguards include, but are not limited to, access controls, encryption, decryption keys, and audit trails. The Federal Rule of Evidence 803(6) addresses the admissibility of EMRs, while state rules vary. Each healthcare provider can have unique policies and procedures regarding electronic documentation and security safeguards. Therefore, attorneys must request and be familiar with an individual facility’s privacy and security protocols as well as with the varied state rules of discoverability.Since EMR software varies by vendor, defense counsel should work with each hospital/facility’s information technology department, medical records department, risk management team, clinicians, and, at times, the software vendor when opposing counsel requests medical records. Audit logs should be reviewed to determine who had access to the medical chart, when the access occurred, and what, if any, changes were made to the record. It is important to verify that the produced record is consistent with the audit trail, as inconsistencies can occur due to the timing of the request and credentials of the individual pulling the records.An article published in the Journal of AHIMA (American Health Information Association) also emphasized the importance of [collaboration](https://journal.ahima.org/page/managing-phi-disclosure-when-a-lawsuit-is-involvedhow-to-prepare) between legal counsel, risk management, compliance, privacy, data integrity, and the health information (medical records) management department when information is requested for an anticipated or pending lawsuit. Facilities must have e-discovery policies and processes in place that include issuing a legal hold on the records to preserve relevant information and avoid evidence spoilation. Lack of clear internal policies can result in different versions of the medical record being released based on the timing of pulling the record or the authorized access levels of the individual preparing the records, i.e., the risk management department may have access to a different print queue than the health information department. Access to different queues can produce records that do not match, creating delays and confusion in the discovery process.The federal government continues to focus on electronic health information as evidenced by the release of the [Federal Health IT Strategic Plan](https://www.healthit.gov/topic/2024-2030-federal-health-it-strategic-plan) in September 2024. One goal of the plan, Connect the Health System with Health Data, addresses data sharing, privacy, and security. This government initiative underscores the need for providers and counsel to be current with technology and regulations relating to electronic medical records.The Excelas team, with our [AHIMA](https://www.ahima.org/)-accredited health information management professionals, supports our clients in managing [medical record retrieval](/defense-continuity). Our staff is fully versed in state and federal laws associated with protected health information and is experienced with various electronic medical record systems, including, but not limited to Epic, PointClickCare, Optima, and Meditech. Once records are retrieved, the Excelas team electronically [organizes](/clinical-analysis) the records, verifies they are complete, and ensures HIPAA compliance. Records are available through our secure online portal. Contact Excelas to learn how our record retrieval services can assist your legal team. ## A Look Forward – Excelas’ Twentieth Anniversary and Beyond https://excelas1.com/blog/a-look-forward-excelas-twentieth-anniversary-and-beyond ### A Look Forward – Excelas’ Twentieth Anniversary and Beyond _2025-06-11 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > 20 years of business has given the opportunity to reflect on where the company has been, the exciting projects completed, the innovative processes and products developed, and the outstanding individuals who have been part of this journey. The resilience of Excelas’ founder and staff has been evident over the last 20 years and will continue to benefit the business as they move forward. This milestone anniversary has provided an opportunity to [reflect on](/blog) where the company has been, the exciting projects completed, the innovative processes and products developed, and the outstanding individuals who have been part of this journey. Looking ahead, the biggest opportunities and challenges appear to be the integration of new technologies, including artificial intelligence, into the Excelas business model. Artificial Intelligence has transformed the landscape of business, [healthcare](/blog/ai-in-healthcare), law, and everyday life. The evolution of ZAXAS has paralleled these advancements to meet client requirements. Following the lead of industry leaders, the Excelas team is developing models to determine how AI can enhance efficiencies and support the work of the Excelas team, including their health information management professionals and RN medical-legal analysts. As noted by innovative users of AI at premier healthcare organizations such as the [Cleveland Clinic](https://health.clevelandclinic.org/ai-in-healthcare), AI “works like a second pair of eyes…the combined team of human plus AI is when you get the best performance.” “Best performance” is the goal of employing AI in conjunction with the experience and expertise of the Excelas health information and medical analyst teams.20 years of resilience. From stacks of paper on a kitchen table to having a computer read digital documents. Although these changes in technology have been massive, the vision of Excelas has remained the same: to provide impeccable customer service with an award-winning work environment. Excelas has modeled perseverance, performance, and permanence through the unpredictable external events of the last 20 years and is now poised to take on the future. ## Data and Continuity of Care https://excelas1.com/blog/data-and-continuity-of-care ### Data and Continuity of Care _2025-03-27 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Technology and regulatory changes can help LTC facilities with structured data sharing, allowing for better patient outcomes. A recent McKnights [webinar](https://onlinexperiences.com/scripts/Server.nxp?LASCmd=AI:4;F:QS!10100&ShowUUID=E40EFC41-9655-4960-80C4-FC3B9A19A026&AffiliateData=101524-EDT), “From crisis to opportunity: Enhancing data continuity in today’s LTC landscape,” delved into the challenges long-term care operators face with data sharing and the impact on continuity of care. Experts in healthcare technology, nursing home administration, healthcare information security, privacy, and compliance provided attendees with an overview of regulatory changes and technology solutions that impact data sharing.Data fragmentation, with multiple sources of data, prevents healthcare providers from having a “full picture” of the patient. Unstructured data is a significant problem in the healthcare setting. The goal of the industry and the government is to have a structured data set that can be mapped into a referral system, thereby closing gaps in communications and avoiding breaks in the continuity of care. The COVID-19 pandemic amplified the existing data-sharing problems in long-term care facilities. This became particularly apparent with acute care facilities trying to discharge patients to long-term care to free up hospital beds. The lack of infrastructure with electronic health records impeded the discharge process. Structured data would provide a more efficient process, which would ultimately improve patient care.The presenters noted that a recent study revealed 80% of healthcare data is unstructured, including radiology images. This unstructured data results in unusable data, workflow inefficiencies, and frustration for healthcare professionals. Staff will often “work around” the system, resulting in even greater data fragmentation. Vendors in healthcare information systems are continually improving software, including the incorporation of artificial intelligence to improve efficiencies and data integration.The federal government has several initiatives to standardize healthcare data and data-sharing requirements. The Trusted Exchange Framework and Common Agreement ([TEFCA](https://www.healthit.gov/topic/interoperability/policy/trusted-exchange-framework-and-common-agreement-tefca)), under the U.S. Department of Health and Human Services (HHS), is the nationwide framework for health information sharing. TEFCA’s mission is to remove barriers to sharing health records electronically among healthcare providers, patients, public health agencies, and payers. TEFCA recognizes seven Qualified Health Information Networks ([QHIN](https://www.hhs.gov/about/news/2024/02/12/hhs-expands-tefca-by-adding-two-additional-qhins.html)), which are organizations capable of nationwide health data exchange. Under the [HITECH Act](https://www.healthit.gov/topic/laws-regulation-and-policy) (Health Information Technology for Economic and Clinical Health Act), the Office of the National Coordinator for Health Information Technology promotes electronic health records and private and secure health information exchanges.For regulatory compliance, quality of care, and staff efficiency and satisfaction, long-term care facilities need to incorporate technology upgrades into their strategic planning process. Consistent processes and basic procedures are critical in ensuring data is organized in a meaningful way. The cost of a new system is a barrier for many long-term care providers as they are struggling with staffing and direct patient care expenditures. Affordable technology solutions are available in the marketplace to improve data management; however, investments must also be made in training and ongoing education of staff on appropriate use of these technology tools. The expert webinar panel stressed that investing in technology is worth the time and energy as it will ultimately free healthcare providers to focus their time on patient care. ## Interdisciplinary Approach to Dementia Care https://excelas1.com/blog/interdisciplinary-approach-to-dementia-care ### Interdisciplinary Approach to Dementia Care _2025-02-25 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > LTC residents should be assessed by an interdisciplinary team, starting with a neurology consult followed by psychiatric/psychological care. Our society is rapidly [aging](/blog/responding-to-the-silver-tsunami), and with age comes an increased incidence of Alzheimer’s Disease and related dementias (ADRD). As discussed in a recent presentation and article by GuideStar Eldercare CEO Steven Posar, MD, 58% of long-stay nursing home residents have a dementia-related diagnosis. The current standard of care in the long-term setting focuses on psychiatric/psychological care. He argues that residents should be assessed by an interdisciplinary team, starting with a neurology consult followed by psychiatric/psychological care. ##### **Interdisciplinary Care** Dr. Posar notes that the use of antipsychotic medications in LTC residents is 21.3%. According to [CMS](https://qioprogram.org/system/files/2024-07/AntipsychoticUseReportApril2024_508v2.pdf), the use of antipsychotic medication in nursing homes, excluding residents diagnosed with schizophrenia, Huntington’s Disease or Tourettes’s Syndrome, is 14.8% (4Q2023), which is a decrease of almost 38% over the past 12 years since implementing the [National Partnership to Improve Dementia Care](https://www.cms.gov/medicare/health-safety-standards/quality-safety-oversight-general-information/national-partnership-improve-dementia-care-nursing-homes). One goal of this program was to increase the use of non-pharmacologic approaches and person-centered care practices. Of note, the diagnosis of schizophrenia increased by 200% in nursing homes between 2015 and 2019, and the use of anticonvulsants increased by 40%. This drastic increase brings the accuracy of the diagnosis into question. In a recent study, adding a [neurology focus](https://www.jamda.com/article/S1525-8610(23)00749-1/fulltext) to the dementia care team has reduced the need for antipsychotic medications by 70% and resulted in close to 100% compliance with CMS anticonvulsant utilization requirements, along with other improvements in care and quality of life. The National Center for Assisted Living recently published Guiding Principles for [Dementia Care](https://www.ahcancal.org/Assisted-Living/About-NCAL/Documents/GPforDementia%20Care.pdf#search=dementia). This report reiterates the lack of clinical support in using antipsychotic medications to treat behaviors associated with dementia and encourages alternative strategies when responding to challenging behaviors exhibited by residents with dementia. ##### **Long-Term Care Dementia Diagnoses** Approximately 95% of LTC dementia diagnoses fall into the following: - Alzheimer’s Disease - Vascular Dementia – macro/microvascular - Mixed Dementia - Parkinson’s Disease Dementia - Lewy Body Dementia - Frontotemporal Dementias - LATE (Limbic Predominant Age Related TDP43 Encephalopathy) Each of these diagnoses can be treated individually, therefore a specific diagnosis must be made. For example, Lewy Body Dementia is a sleep disorder and a primary neurological diagnosis with a specific medication regimen that has proven successful in improving sleep. In addition, complex conditions secondary to dementia include, but are not limited to, delirium, sundowning, sleep disorders, akathisia and partial complex epilepsy. Of note, 40% of LTC dementia residents have an EEG consistent with epilepsy, and it is often manifested as “zoning out”, staring off, and fainting. Some falls may be seizures. Specific treatment for epilepsy is Keppra. All these conditions benefit from the inclusion of neurological specialists on the care team to prescribe appropriate medications. Medications for the behavioral and psychological symptoms of dementia (BPSD) include: Acetylcholinesterase Inhibitors (Aricept, Galantamine), Memantine (Namenda) and Selective Serotonin Reuptake Inhibitors (SSRIs). The combination of acetylcholinesterase inhibitors and memantine is often very beneficial. Neurology-specific medications and treatments that may be appropriate include anticonvulsants, dextromethorphan, beta-blockers, CPAP, amphetamines, and bupropion. Antipsychotics should only be used for psychosis, with or without schizophrenia. Treatments of BPSDs are typically more responsive to psychiatric treatment following neurologic treatment. Medications to avoid in these patients include SNRIs and tricyclic antidepressants, non-protocol antipsychotics, benzodiazepines and hypnotics, all anticholinergics, anticonvulsants, insulin, and dihydropyridine calcium channel blockers. ##### **6-Step Treatment Approach** The following interdisciplinary approach is recommended for treating dementia patients in the long-term care setting: 1. Neurologic, psychiatric, and psychological diagnostic and clinical status evaluation to determine an accurate diagnosis 2. Total pharmacology review and adjustment to eliminate unnecessary or counteractive medications 3. Initiate neurological pharmacotherapy 4. Reassess psychiatric and global clinical status – 6-8 weeks after adjusting pharmacotherapy 5. Amend psychiatric and psychological treatment 6. Frequent neurologic, psychiatric and psychological assessments He emphasized that “frequency trumps intensity” when treating dementia patients. Frequent interactions allow caregivers to anticipate their clinical status and be proactive rather than reactive. ##### **Responding to Regulatory Reviews, Claims and Litigation** Excelas has the tools and expertise to assist long-term care facilities, their insurers, and counsel by conducting medical record reviews to demonstrate quality dementia care was provided. Reports are customizable and often include the following: - [Provider of Care Report](/clinical-analysis): a quick review of all staff who documented in the medical record, the date care was administered, and a hyperlink to the page where the entry was documented. - [Care Calendar/TouchChart](/clinical-analysis): an interactive calendar of all staff interactions with the resident. - [Medical Chronology/Timeline](/clinical-analysis): an in-depth summary of the medical and related records with hyperlinks to the source documents. The timeline can be queried by topics such as medications, nutrition, safety, behavior, or other categories related to the care of the dementia resident. These reports allow decision-makers to efficiently assess a situation and develop a strategy early in the process. Contact Excelas to learn more about how our experienced legal nurse analysts and health information management professionals can assist you. ## Skin Wound Documentation: Implications in Care, Claims and Compliance https://excelas1.com/blog/skin-wound-documentation-implications ### Skin Wound Documentation: Implications in Care, Claims and Compliance _2025-01-08 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Accurate documentation of wound care is essential for defending claims and litigations, as they are a significant percentage of LTC claims. Wound care therapies continue to [advance](https://techbullion.com/advanced-wound-care-modern-solutions-for-faster-healing/), but even with these advances, pressure wounds/injuries are a focus of the Centers for Medicare & Medicaid Services and comprise a significant percentage of claims in long-term care settings. Accurate documentation is essential in confirming a precise diagnosis, demonstrating quality wound care, receiving appropriate reimbursement, complying with regulations, and defending claims and litigation. National wound care expert, [Martha Kelso](https://www.linkedin.com/in/martha-r-kelso-rn-chws-dapwca-hbot-5209741/), and healthcare defense attorney [LaDonna Boeckman](https://www.heplerbroom.com/professionals/boeckman-ladonna) provided an overview of the new wound care regulations and the potential impact on defending wound cases at the recent DRI Senior Living and Long-Term Care Seminar. This informative presentation reinforced the need for accurate diagnosis and detailed documentation, noting that “misdiagnosing a pressure wound is surprisingly frequent, often with legal ramifications.” ###### **Diagnosing Wounds** [CMS](https://www.cms.gov/files/document/finalmds-30-rai-manual-v11811october2023.pdf) states “It is imperative to determine the etiology of all wounds and lesions, as this will determine and direct the proper treatment and management of the wound.” A [pressure wound/injury,](/blog/wound-documentation-during-covid-19-phe) also referred to as a bedsore or decubitus ulcer, is localized damage to the skin and/or underlying soft tissue due to prolonged pressure, or a combination of pressure and shear, over a bony prominence. A [staging](https://pmc.ncbi.nlm.nih.gov/articles/PMC5098472/) system classifies pressure wounds to describe the depth of tissue destruction. Further, wounds are termed “avoidable” or “unavoidable” based on whether specific processes were followed, not as a medical question. [Techniques](https://www.ncbi.nlm.nih.gov/books/NBK532897/) for managing pressure injuries include proper repositioning every two hours, protective padding, proper hygiene, moisture reduction, use of air mattresses/pressure relief devices, frequent skin assessments, and adequate nutrition. Treatment options continue to advance, and include dressings, debridement of necrotic tissue, laser sessions, ultrasound, cellular tissue-based products, recombinant platelet-derived growth factors, and hyperbaric oxygen. However, not all skin wounds are pressure wounds/injuries. Skin wound/failure can also be related to conditions including, but not limited to: - End-of-life skin and wound failure Collagen vascular diseases Sarcoidosis lesions Diabetic ulcer Neuropathic ulcer — Vasculitis Burns Malignant lesions Discoid Lupus skin lesions Venous insufficiency ulcers End-of-life skin changes require specific documentation. For example, Kennedy Terminal Ulcers (KTU) can be differentiated from pressure ulcers/injuries in that: - Appear suddenly and within hours - Usually appear on the sacrum and coccyx, but can appear on the heels, posterior calf muscles, arms, and elbows - Edges are usually irregular and are red, yellow, and black as the ulcer progresses - Shaped as a pear, butterfly, or horseshoe - Often appear as an abrasion, blister, or darkened area and may develop rapidly to Stage 2, Stage 3, or Stage 4 injury. Hypoperfusion or compromised perfusion associated with organ failure due to the dying process is the origin of the KTU and other end-of-life skin changes such as a Kennedy Lesion, mottling, Trombley-Brennan Terminal Tissue Injury, Skin Changes at Life’s End (SCALE) wounds, open fungating wounds, and open malignant wounds. These types of skin failure at end-of-life are unavoidable symptoms for some dying patients. Ms. Kelso emphasized that care of wounds due to hypoperfusion focuses on interventions that support comfort such as decreased turning, repositioning, and reduced dressing changes, rather than resolution, as in pressure wound treatment. [Strategies](https://journals.lww.com/aswcjournal/Fulltext/2022/09000/Seven_Strategies_for_Optimizing_End_of_Life_Skin.9.aspx) for optimizing end-of-life wound care include educating staff, setting expectations with family members, and managing symptoms to improve patient care and quality of life and mitigate regulatory or legal issues. Quality medical record documentation is the underlying theme in these strategies to ensure effective communications on the palliative nature of end-of-life care. ###### **CMS Regulations** CMS Minimum Data Set [changes](/blog/cms-changes-to-the-minimum-data-set-2023) in October 2023 issued new guidance on coding skin changes not caused by pressure. These wounds should not be coded in Section M Skin Conditions of the MDS. Under the new Section GG: Functional Abilities and Goals, CMS will begin public [reporting](https://www.cms.gov/medicare/quality/nursing-home-improvement/quality-measures) through Care Compare of the percentage of high-risk residents with pressure ulcers in January 2025. Of note, diagnostic codes for reimbursement purposes do not coincide with the new regulatory changes for end-of-life skin or wound changes. The presenters stressed the importance of staff training and documentation to protect against claims of failure to assess correctly and the defense of the wound caused by end-of-life and not by pressure. ###### **Claims and Litigation** According to the MarshMcLennan Oliver Wyman 2024 General and Professional Liability Benchmark [Report](https://www.marsh.com/en/industries/senior-living-long-term-care/insights/gl-pl-benchmark-report.html) for Senior Living and Long-Term Care Providers, skin/wound injury and infection are the second leading cause of loss behind falls. In large loss claims (greater than $1 million) in long-term care, 13.1% are due to infection and 10.1% are skin/wound injury. The analysis of the claims descriptions reveals the following data on Skin/Wound Injury and Infections:The [CNA Aging Services Claim Report](https://www.cna.com/sites/default/files/assets/c6254fff-15ca-474e-929d-ca868d402917/CNA-Aging-Services-Claim-Report-11th-Edition.pdf): 11th Edition showed the average total incurred for pressure injury-related allegations in assisted living has increased by more than 67% (to $282,358) from 2018-2021 and surpassed the skilled nursing average of $252,520. Skilled nursing facilities account for 94.7% of pressure injury closed claims, and 2/3 of pressure injury claims in AL and SNF resulted in death. CNA notes a “review of the resident healthcare information record often reveals that the defensibility of claims is impeded by the lack of adherence to a facility’s own policies and procedures.” [Documentation](https://www.cna.com/sites/default/files/assets/835f7b18-7aa7-45d6-98a2-3ffd8fcdbbc6/CNA-Carefully-Speaking-Pressure-Injuries-Sound-Documentation-Is-Key-to-Defensibility.pdf) is a key element of risk management, including, but not limited to: - Skin evaluations on admission, readmission, and changes in condition - Referral to appropriate wound specialists - Evaluation of wound and interventions - Documentation by contract providers - Changes in condition/appropriateness of level of care - Staff education on pressure injuries - Communication with family on resident condition/expectations ###### **Documentation Reviews to Support Care, Compliance and Claims** Excelas partners with senior living providers, insurers, and defense counsel in the defense of wound cases. Our experienced medical analysts review medical and other pertinent records and develop reports to support decision-making which frequently include: - [Turning and Repositioning Chart](/clinical-analysis) – a simple, visual layout to demonstrate the consistency of care given to a resident. - [Care Calendar](/clinical-analysis) – an interactive calendar to visualize the date and time of all interactions with a resident. - [Medical Chronology](/clinical-analysis) – a customizable report of the resident’s care which can be easily sorted by topic, record type, or provider of care. - [Case Summary](/clinical-analysis) – a high-level summary of the medical history including an opinion by our medical-legal analysts on whether the records support or refute the allegations and comments on any additional areas for investigation - All reports include hyperlinks to the page(s) in the [medical record](/clinical-analysis) where the care is documented. Each of these work products are used to assess the quality of medical record documentation, provide ongoing training for staff on documentation improvement, prepare for audits, demonstrate compliance with current regulations, evaluate the merits of a claim/case, and assist counsel in developing defense strategies. Contact Excelas today for a demonstration of our software and analytic tools and reports. ## Early, Focused Reviews to Combat “Profits over People” Claims https://excelas1.com/blog/early-focused-reviews-to-combat-profits-over-people-claims ### Early, Focused Reviews to Combat “Profits over People” Claims _2024-11-15 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > The plaintiffs’ bar has redirected its efforts from the allegations relating to a breach of the standard of care to claims of fraud and conspiracy in the name of corporate profits. Plaintiffs’ attorneys have long contended that nursing homes are more concerned about the “bottom line” than their resident’s care, and this argument was echoed in the February 2022 statement by the [White House](/blog/nursing-home-ownership-and-quality-of-care) on safety and quality of care in nursing homes. [DRI](https://www.dri.org/education-cle/seminars/2024/senior-living)’s recent Senior Living and Long-Term Care Litigation Seminar addressed this issue in an engaging panel discussion with Aaron McQueen (Jackson Kelly PLLC, Akron, OH), Martin Delanhunty III (CommuniCare, Cleveland, OH), Alexis Lumell (Gallagher Bassett, Chicago, IL), and Angelo J. Suozzi (Ventas, Chicago, IL) on Exposing Plaintiff’s Overused “Profits Over People” Argument. ###### **Defense Strategies** The plaintiffs’ bar has redirected its efforts from the allegations relating to a breach of the standard of care to claims of fraud and conspiracy in the name of corporate profits. To prove these claims, they typically make broad discovery requests beyond the scope of the alleged incident. Defense counsel must focus the case on the single occurrence, not irrelevant issues posited by the plaintiff, and ensure that extraneous items are stricken from the Complaint. It is important to start the defense process early, at the point of the incident and before the suit. Witness statements should be preserved, particularly with the current environment of high staffing turnover. Relevant discovery documents include the medical record (including the resident’s condition before entering the facility), the care plan, and a list of professionals who cared for the resident. To establish their “profits over people” claim, plaintiffs will request documents including, but not limited to, records about all residents, all staff training, staffing of all positions at the facility, and administrative emails. These business operation records do not pertain to the care provided to the individual resident, and defense counsel should object to such overly broad and irrelevant requests. If the case gets to trial, the plaintiff’s counsel will seek to appeal to the emotions of the jurors, who may want to blame “somebody,” but typically not a lower-level worker. They will focus arguments on corporate “greed” by asserting insufficient staffing and resources. Defense counsel must tell the story of the passion for caring for the residents, demonstrating the connections the staff have with the residents through the documentation in the medical records. This becomes challenging in situations of high employee turnover, but it is important to highlight all points of contact with the patient by all levels of staff. Demonstrating the overall care provided mitigates the anger response by the jury. ###### **Tools to Focus the Defense** Identifying all interactions with the patient early in the case preparation is key to risk assessment and strategy development. The Excelas [Care Calendar](/clinical-analysis) provides a powerful visualization of all medical, nursing, and ancillary interactions documented across thousands of pages of records. Each instance of patient contact is categorized and quantified on a simple, interactive calendar, affording a powerful visualization of each point of contact to highlight caregivers’ dedication and assistance to residents. Users can click on any day to instantly view a complete, detailed breakdown of the care the patient received, including hyperlinks to the pages of the medical record where that care/interaction is documented. ###### **Defense Perspectives** Quality of care for residents in long-term care facilities is paramount. When that quality is called into question, facilities must be able to demonstrate the type and level of care that was provided through documentation in the resident’s medical records, as well as through policies, procedures, and other business records. [Excelas](/about) has the tools and the expertise to assist long-term care facilities in conducting audits, assessing documentation quality and completeness, integrating facility policies and procedures with individual resident medical records, reviewing staffing records, and preparing comprehensive analyses for facility administrators, risk managers, insurers, and counsel. ## Malnutrition Diagnosis and Documentation https://excelas1.com/blog/malnutrition-diagnosis-and-documentation ### Malnutrition Diagnosis and Documentation _2024-10-17 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Comprehensive medical record documentation is critical in demonstrating quality care and defending against allegations of malnutrition. Malnutrition is a significant health issue, [impacting](https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8949306/) functional status, psychosocial well-being, and overall quality of life. Up to [50%](https://www.ncbi.nlm.nih.gov/pmc/articles/PMC11314143/) of elderly patients are hospitalized due to malnutrition. A [review](https://www.ahcancal.org/News-and-Communications/Fact-Sheets/Letters/CMS-1802-P_FY%202025%20SNF%20PPS_AHCA_NCAL%20Comments_Appendix_05.28.2024.pdf#search=malnutrition) of skilled nursing facility MDS 5-day assessments revealed the increase of patients with or at risk of malnutrition has increased steadily from 16% in October 2019 to 42% through June 2023. Comprehensive [medical record documentation](/blog/defending-allegations-of-malnutrition-and-dehydration) is critical in demonstrating quality care and defending against allegations of malnutrition. Below are highlights of the informative presentation on malnutrition and its impact on patient care presented to the Excelas medical team by **Jillian Frye, MDN, RDN, LD, of The Ohio State Wexner Medical Center**. ###### **Types of Malnutrition** Malnutrition occurs when the nutrients consumed do not match the nutrients the body needs. This can result in either a lack of nutrients or an overabundance of nutrients.Extended use of supplements can adversely impact nutrition. For instance, a patient taking zinc supplements may develop a copper deficiency due to zinc reducing the amount of copper absorption. Similarly, calcium can inhibit iron absorption, so these supplements should not be taken at the same time of day. ###### **Why does malnutrition matter?** Malnutrition impacts quality of life and many aspects of patient care. Examples of physical implications of micronutrient deficiencies include fatigue from anemia caused by B12, folate, or iron deficiencies, fatigue from low glycogen stores, vision problems from thiamine or vitamin A deficiency, hair loss from protein or micronutrient deficiencies, and dry/scaly skin from essential fatty acid deficiencies. Patients can experience social implications from these symptoms as well. Financially, patients with malnutrition tend to have more expensive care and longer hospital stays. In skilled nursing, the CMS Patient Driven Payment Model (PDPM) focuses on quality of care and patient outcomes, and one critical area is [nutrition](https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8949306/). Nutrition intervention can reduce hospital readmissions, which is a quality measure tied to SNF Medicare reimbursement. ###### **Diagnosis of Undernutrition** Ms. Frye provided a review of a typical assessment in the inpatient setting. Upon admission, nurses use 2 screening questions to determine whether the patient has intentionally lost weight and if the patient’s appetite is poor. At inpatient institutions, a nutrition professional (registered dietitian or dietetic technician) is required to see all patients within one week of admission, and at some institutions patients who are over 65 years or have a BMI less than 18.5 are assessed within three days. Dietitians perform a nutrition focused physical exam (NFPE) that look for things such as fat and muscle wasting, as well as micronutrient deficiencies that can manifest physically. Other factors are also reviewed including NPO status, chronic illness, or social/environmental factors (homelessness, drug use) for possible contributions to malnutrition. Patients with certain conditions, such as cancer, celiac disease, and burn victims, often have poor nutritional status and require additional protein and nutrients. Laboratory results are also considered in the assessment; however, some common tests are not necessarily a reliable basis for diagnosing malnutrition. For instance, a low prealbumin may not reflect malnutrition, as anorexic patients often have normal albumin and prealbumin levels. Inflammation can also affect albumin and prealbumin levels. Albumin and prealbumin may correlate with malnutrition, but practitioners should not rely solely on these lab values. Rather, this information should be considered as part of the overall assessment and can be used to recommend protein supplements or other interventions. For patients who have intentionally lost weight, including those on Ozempic/other weight loss drugs, have had gastric bypass surgery, and are anorexic, the nutrition assessment and malnutrition diagnosis can be complicated. GLP-1s impact the estimated energy needs calculations, and patients taking these drugs have higher protein needs. With [one in eight adults](https://www.kff.org/health-costs/poll-finding/kff-health-tracking-poll-may-2024-the-publics-use-and-views-of-glp-1-drugs/) stating they have or are taking a GLP-1 drug, plus the proliferation of [copycat](https://www.msn.com/en-us/health/other/weight-loss-drugs-are-everywhere-now-how-the-glp-1-copycats-took-over/ar-AA1rCyIb) drugs available through telehealth outlets, the assessment of a patient’s nutritional status using current standards by a medical dietician is essential. ###### **Documentation of Nutrition Status** Training all staff on appropriate documentation is critical in acute and long-term care settings. Staff must be aware of the importance of recording all interventions with patients and residents concerning nutrition, including any refusal to comply with recommendations. Excelas’ medical analysts have extensive experience in reviewing medical records and our [medical chronologies](/clinical-analysis) and associated reports can assist administrators in preparation for surveys or assessing staff training needs and in preparing counsel for the defense of claims and litigation. ## Excelas, LLC’s President Moderated “The Bloody Truth about Brain Bleeds & Blood Thinners,” a Panel Discussion at DRI’s Senior Living and Long-Term Care Litigation Seminar – September 2024 https://excelas1.com/blog/2024-dri-panel-discussion-brain-bleeds-and-blood-thinners ### Excelas, LLC’s President Moderated “The Bloody Truth about Brain Bleeds & Blood Thinners,” a Panel Discussion at DRI’s Senior Living and Long-Term Care Litigation Seminar – September 2024 _2024-09-19 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Insights on the inherent risks associated with falls with brain injury while on blood thinners in long-term care settings. With some verdicts totaling up to $44 million, cases related to blood thinners can produce some of the worst liability outcomes for senior living providers. An 85-page report, published by [Marsh](https://www.marsh.com/en/industries/senior-living-long-term-care/insights/gl-pl-benchmark-report.html), reveals falls are the most prevalent cause of liability costs for senior living providers, with brain injury cases having some of the worst outcomes including death or severe, permanent injury. Blood thinners can exacerbate injuries from a fall and can also cause or contribute to spontaneous brain hemorrhages. Recent verdicts and settlements involving anticoagulation therapies highlight the need for greater awareness of the risks associated with blood thinners, with some verdicts totaling $44.1 million, $41 million, $30 million, $5 million, $4.1 million, $2.4 million, and $2.35 million. Insights on the inherent risks associated with such injuries were presented in a featured panel discussion at [DRI’s 2024 Senior Living and Long-Term Care Litigation Seminar](https://www.dri.org/education-cle/seminars/2024/senior-living). [Beth Wilson](https://www.linkedin.com/in/beth-a-wilson/), President of [Excelas, LLC](/), moderated **The Bloody Truth about Brain Bleeds & Blood Thinners: Suits, Surgery, and Solutions, **with attorney James Bream of Cray Huber Horstman Heil & VanAusdal, LLC, and Dr. Sean P. Polster, MD, of the Neurovascular Surgery Program, Department of Neurological Surgery, University of Chicago Medicine and Biological Sciences. ###### **The Importance of Evaluating Various Brain Hemorrhage Types, Etiologies, and Combinations of Factors** Four broad types of intracranial hemorrhage (ICH), epidural hemorrhage, subdural hemorrhage, subarachnoid hemorrhage, and intraparenchymal hemorrhage, were thoroughly discussed by panelist Sean Polster, MD, who co-authored a publication on the topic, along with Magid-Bernstein, J., Girard, R., Srinath, A., Romanos, S., Awad, I. A., & Sansing, L. H., [Cerebral Hemorrhage: Pathophysiology, Treatment, and Future Directions](https://doi.org/10.1161/CIRCRESAHA.121.319949), Circulation research, 130(8), 1204–1229, Epub Apr 14, 2022. [ICH](https://doi.org/10.1161/CIRCRESAHA.121.319949) can be the result of blunt force trauma from an event such as a fall, but can also result from hypertensive disease, ruptured or dissecting aneurysms, tumors, blood vessel malformations and abnormalities, and hemorrhagic conversion of ischemic stroke or venous thrombosis. Current smoking, excessive alcohol consumption, hypertension, advanced age, diabetes, illicit drug use, vascular disease, coagulopathy, a prior ICH or myocardial infarction, and platelet dysfunction can contribute to ICH or its severity. Because ICH can be due to a variety of etiologies or even a combination of factors, it is important in evaluating a lawsuit alleging ICH to thoroughly explore the reasons a particular patient may have developed bleeding and the evidence supporting or refuting the contention that a preventable event was the proximate cause of the ICH. ###### **Identifying Specific Signs, Symptoms, and Complications Associated with the Liability of Intracranial Hemorrhage** Many senior living and long-term care residents are prone to falling due to the progression of underlying disease, impaired mobility, balance, spatial awareness, judgment, memory, and medication issues that make them more prone to bleeding when they fall. The use of anticoagulation therapies further increases the risk of hemorrhage and complications after a fall, as well as increasing the risk of spontaneous intracranial hemorrhage. Fall risk assessment must be done on admission, and regularly thereafter, especially following a significant change in medication or condition. The chart must include documentation of assessments, care plans, interventions, and changes as indicated. Because the use of blood thinners further increases a patient’s risk, this should be clearly documented in the chart. Even if a fall was unavoidable or occurred in the absence of any negligence, a facility may be held liable unless staff timely and thoroughly observed and assessed the resident, notified the family/physician, monitored the resident’s condition, recognized signs and symptoms of a serious injury, timely transferred them for evaluation and treatment as needed, and appropriately treated the resident post fall. Medication errors, failure to follow physician orders, and failure to address dietary impacts on medication may also create potential liability exposure. With [ICH](https://doi.org/10.1161/CIRCRESAHA.121.319949), prompt recognition of changes in mental status or vitals may be critical, and patients on blood thinners warrant additional monitoring for signs and symptoms of a brain bleed. A thorough evaluation should include timely neuro checks documenting any change in mental status, vitals, and pupillary responses. The article co-authored by Dr. Sean Polster describes some specific signs, symptoms, and complications associated with ICH, including seizures, fever, hyperglycemia, and hypertension. Caregivers observing these symptoms after a fall should be aware of a potential bleed. ###### **Lifesaving, but Potentially Life-Threatening: Anticoagulation Therapy** Blood thinners are lifesaving but can be life-threatening, with significant risks for injury or death. Anticoagulation and antiplatelet medications can exacerbate bleeding from a fall and increase the risk of spontaneous ICH, with larger hematomas and elevated risk of mortality. Oral anticoagulant-associated ICH (OAT-ICH) has increased over the past several decades given increased use of these anticoagulant medications, and OAT-ICH is now responsible for nearly one quarter of all ICH. Blood thinners also increase the risk of potential claims and suits due to alleged service failures, including: - failure to start, adjust, discontinue, or restart medication - mislabeled medication - mistakes in obtaining, transcribing, reading, or following orders - excess doses or missed doses - failure to realize or inform the patient that certain medications, supplements, or dietary choices may exacerbate the effects of anticoagulants - failure to timely obtain or follow orders for blood tests at regular intervals to ensure the patient’s clotting rate is within a therapeutic range - failure to follow up on a patient’s non-compliance with orders to use anticoagulants, obtain testing, and report changes in medications, diet, or symptoms - failure to monitor the patient and recognize signs and symptoms of an adverse reaction, which may include bruising; bleeding; blood in the stool, urine, or vomit; headache; chest pain; stomach pain; dizziness; or sudden weakness - failure to assess and monitor a patient on blood thinners after a fall - failure to timely recognize, report, and treat signs and symptoms of a brain hemorrhage - improper administration of a neutralizing antidote or a clotting factor to reverse the effect of a blood thinner ###### **Mitigating Risk Factors to Reduce the Risk of Litigation** The injuries associated with falls and anticoagulation therapy can be severe, the defense costs can be significant, and the damages can be high. Thus, it is critical for healthcare providers and their counsel to mitigate risk factors for falls that may contribute to head injury, understand the signs, symptoms, and treatment options for intracranial hemorrhage, question the timing and etiology of a brain bleed, recognize the risks associated with the use of blood thinners, and reduce the risk of litigation. ##### **Develop a Winning Defense Strategy with Excelas’ Experience, Expertise, Analyses, and Proprietary Tools ** Excelas has experienced health information management, allied health, and nursing professionals to assist with the analysis of falls, anticoagulation use, and overall care by [**organizing**](/clinical-analysis) the medical records and other relevant materials, [**evaluating**](/clinical-analysis) the quality and completeness of the medical records and identifying relevant facts, preparing [**medical chronologies**](/clinical-analysis) and [**case summaries**](/clinical-analysis), identifying [**strengths and weaknesses**](/case-triage), and delivering the medical records and medical analyses though a secure, cloud-based [**system**](/about/technology). Contact [**Excelas**](/contact) to learn more about our full range of services. ## How Early Adoption of Remote Work Allowed for Success: Excelas Celebrates its 19th Anniversary https://excelas1.com/blog/early-adoption-of-remote-work ### How Early Adoption of Remote Work Allowed for Success: Excelas Celebrates its 19th Anniversary _2024-08-14 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Early adoption of remote work has played a big part in Excelas’ success and the happiness of the staff. In Part Two of our series celebrating [Excelas’ 19 years](/blog/vision-challenges-and-lessons-learned-with-excelas), we delve into the firm’s operations; specifically, the role that early adoption of remote work has played in Excelas’ success. When Jean Bourgeois founded the company in 2005, she was committed to providing quality services for clients while affording her team the balance and flexibility to manage all aspects of their life. This mindset became the basis for Excelas’ culture and evolution. [Research](https://www.flexjobs.com/blog/post/remote-work-statistics/) shows that remote work attracts and retains talent, increases productivity, leads to better mental and physical health, and improves work-life balance. Excelas recognized the importance of this flexibility early in the company’s history. The pandemic pushed many employers to a work-from-home environment, even if systems were not in place. Fortunately for Excelas, sophisticated remote work procedures, including technical, operational, and managerial systems, were established long before the pandemic, ensuring seamless client service and high employee satisfaction. ###### **Team Member Perspective** [98%](https://www.forbes.com/advisor/business/remote-work-statistics/) of employees prefer a remote or hybrid workplace. Working remotely allows employees to save time and frustration by eliminating commutes, reducing wear on their car, and saving money on childcare, wardrobes, fuel, parking, and meals. Studies estimate that employees save an average of $7,000 a year by telecommuting. At Excelas, working remotely also provides staff with flexibility as to when they work, allowing them to independently manage their work schedules while meeting client expectations and deadlines. Regular meetings and reporting obligations ensure client commitments are met, while individual day-to-day time management allows staff to meet personal and family obligations. Excelas has consistently been recognized as a top employer, with several consecutive years of awards including the Northcoast 99, a program honoring great workplaces in Northeast Ohio, When Work Works, Best Employers in Ohio, and [Best & Brightest](https://nationalbiz.org/winners/#national) (National Association for Business Resources) in the nation. ###### **Company Perspective** Along with eliminating _**costs**_ associated with rent, utilities, insurance, cleaning services, and maintenance, Excelas has experienced a positive impact on _**recruiting **_and _**retention**_ because of its flexible workplace. Excelas has tremendous employee retention rates – less than 5% turnover year over year, and an average tenure of 12 years. Effective job design sets _**clear expectations**_ during the hiring process, which is supported by assessments and tools to determine the fit of candidates. New hires may not have experience working 100% from home in an autonomous environment. Onboarding materials immerse new hires in Excelas’ culture and values even before an employee’s first day. New hires follow a detailed orientation schedule which includes virtual meetings with each manager and executive to gain a clear understanding of the company, culture, services/products, and the roles and responsibilities of each person. All new hires have a designated mentor and scheduled meetings to review progress. This level of engagement from the managers, mentor, and team members facilitates efficient and effective training, allowing new employees to be “up to speed” early in their tenure._**Performance metrics**_ established for each role within the company are used to ensure that remote employees are meeting expectations. With minimal supervision, the team performs at consistently high levels of productivity and quality. This high level of performance is driven by individual experience and expertise, along with the autonomy and flexibility staff are given to complete their work when they feel most productive. Regular meetings promote _**engagement**_ and accountability with detailed agendas, opportunities for interpersonal interaction, active participation by all attendees, review of key performance indicators, and sharing of achievements, concerns, and successes. Staff meetings often include presentations by Excelas’ clients and other professionals such as pharmacists, dietitians, insurance adjusters, financial advisors, yoga instructors, professional organizers, life coaches, and other wellness and inspirational speakers to enhance professional knowledge and overall well-being.Beyond scheduled meetings, the company has several tools to help employees feel _**appreciated **_and included in decision-making, including, but not limited to: - An intranet that houses company communications, peer recognition, forms, and information on upcoming events - A monthly Exchange Survey that solicits anonymous questions and suggestions - Stay interviews - Brainstorming sessions - Performance previews - One-to-one meetings - An annual Excelas Rounded Feedback & Engagement Survey It is a priority at Excelas to “ask, assess, and act.” This creates confidence within the team to provide honest and timely feedback that can be used to drive change and innovation. Although the work time is 100% remote, the team does gather in person for holidays, the company anniversary party, and other events. With this combination of proprietary, web-based technology, the standardization of processes, procedures and training, and the commitment to staff engagement and appreciation, Excelas accomplished Jean’s initial vision from 19 years ago of providing quality services to clients while affording her team balance and flexibility.Excelas is proud to be part of the [16%](https://www.forbes.com/advisor/business/remote-work-statistics/#sources_section) of U.S. companies that are fully remote and operate without a physical office. _Forbes_ notes these companies are “pioneers in the remote work paradigm, highlighting the feasibility of such models and paving the way for others to follow.” Excelas is a nimble and responsive organization, which fully embraces flexibility as part of a business strategy, rather than an afterthought. ## Vision, Challenges, and Lessons Learned: Excelas Celebrates its 19th Anniversary https://excelas1.com/blog/vision-challenges-and-lessons-learned-with-excelas ### Vision, Challenges, and Lessons Learned: Excelas Celebrates its 19th Anniversary _2024-05-15 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Jean Bourgeois, founder of Excelas, reflects on her journey building a successful business on the 19th anniversary. According to recent small business [statistics](https://www.forbes.com/advisor/business/small-business-statistics/#small_business_survival_statistics_section), one in five small businesses fail within the first year, and 50% fail by year five. Another source reveals only [30%](https://www.forbes.com/sites/stephanieburns/2021/11/01/longevity-in-business-why-it-matters-and-how-to-improve-it/?sh=49d2167d3b3c) of businesses make it to year 10. All the more reason to celebrate Excelas’ nineteen years of success. Over the years, Excelas has established itself as a key player to support insurers, corporations, and law firms in defending medically related cases, with a particular interest in the long-term care sector. The business has weathered many changes through the past 19 years including technology growth, staff expectations, good economic times, as well as the Great Recession and global pandemic. In this two-part series we will first dive deeper into how this woman-owned business has faced these challenges and the greatest lessons learned. Part two of our series will focus on the unique approach to managing a 100% remote workforce.Excelas’ Founder, [Jean Bourgeois](/about), took a risk in 2005 by combining her successful career in healthcare and consulting with her vision for a company that could provide flexible work options without sacrificing impeccable customer service. In a recent interview, Jean reflected on how she has guided the firm over the past 19 years and how her perspective has changed as the company expanded.**What inspired you to start this business?** _Prior to starting Excelas, I worked for several women entrepreneurs and I saw the success they had achieved. That inspired me to try it myself, utilizing what I had learned from them, but conducting the business ‘my way’ with a focus on excellent treatment of clients, employees, and partners. Excelas was designed to support the industry I am most passionate about – healthcare – allowing me to utilize my experience in leadership, health information management, and medical litigation support. _**What was your vision in the beginning?** _In the beginning my vision was to execute my business plan, and quite frankly, hope for the best! __My advisors at the time encouraged me, saying that “one day people will talk about Excelas and the way your business helped them.” That was beyond my wildest dreams at the time; however, what they said did come true – thankfully._ **How has your vision changed over the years?** _With success comes responsibility, and my simple vision of ‘do good work and have some fun’ changed to a much broader and more sophisticated focus – including formal mission/vision/values. My vision is now documented (see table below) in a statement for the company that discusses our responsibility to our clients, our team, our partners, our community, our industry, and ourselves. _ **What has been the biggest factor that has helped you be successful?** _There is no single factor that helped the business be successful, but I can highlight a few. _ - _Advisors, mentors, coaches, and peer groups taught me best practices for leading a business. They held me accountable, identified my blind spots, helped me formalize my unique approach, and encouraged me to grow as a leader._ - _Hiring the right people, with values that are consistent with the core values of the company and who are a good ‘fit’ for their roles, was critical to the growth and stability of the business. Employee engagement and high retention provided consistency, collegiality, and communication between our teams and with our clients – helping us achieve the highest level of performance. _ - _Courage – to make the difficult decisions. _ **What is the top challenge you have faced as a business owner? ** _The biggest challenge has been to face fluctuations in the industry that had a significant impact on the business – growth that challenged us to quickly scale up to meet demands, and the opposite, retraction, that resulted in the need to downsize the company. _ **What mistakes have you made along the way and what did you learn from them?** _There are truly so many that listing them would make this blog a novel. However, to speak generally I will categorize them as follows (there might be a theme here): _ - _Hesitating to make a decision because it is difficult and may negatively impact people I care about._ - _Procrastinating on a project that is a personal challenge and focusing instead on the shiny objects that distract me. _ - _Disregarding the metrics that inform me of the status of the business – particularly if those metrics point to a need for me to take action. _ **What advice would you give to women entrepreneurs? ** - _You can do this!_ - _Stand your ground._ - _Don’t listen to the inner voice (or other voice) that says you aren’t good enough, smart enough, talented enough, prepared enough, financially stable enough, _ - _Give yourself the grace that you deserve when you miss/mess up/struggle/doubt/ fail/give up – and then start again!_ - _Find a peer group/mentor/coach to provide the support/guidance/information/ feedback you need to be successful or at least to help you be the best you can be._ - _Regardless of the company or industry you’re in, leadership challenges tend to be similar. It may be lonely at the top, but you are not alone – help is all around you!_ According to the National Women’s Business Council [2023 Annual Report](https://www.nwbc.gov/annual-reports/2023/), there are 14 million women-owned businesses which make up 39.1% of all U.S. businesses. Of these women-owned businesses in the U.S., only 10.2% (1.42 million) are employer firms. Excelas has established itself as a leader in the medical litigation support industry and an excellent example of a woman-owned business. We appreciate Jean’s candor in reflecting on Excelas’ longevity, growth, and success. ## Perspectives From Capitol Hill: Mark Parkinson on the Long-Term Care Landscape https://excelas1.com/blog/the-long-term-care-landscape-capitol-hill ### Perspectives From Capitol Hill: Mark Parkinson on the Long-Term Care Landscape _2024-04-25 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > A look at top regulatory developments affecting providers, implications of the staffing mandate, and trends shaping the healthcare industry. Excelas had the opportunity to hear Mark Parkinson, President and CEO of [AHCA/NCAL](https://www.ahcancal.org/Pages/default.aspx), discuss trends in the industry in a webinar on April 16, 2024. Mr. Parkinson reviewed the top regulatory developments affecting providers, implications of the staffing mandate, and trends shaping the industry. ###### _**Post-Pandemic**_ Business recovery post-pandemic has been slow but steady with occupancies recovering by about 3% every year. The current average occupancy rate is 79%, and it is estimated that this rate will continue to grow to 82% by the end of 2025. However, nursing homes still need 124,200 workers to return to pre-pandemic levels. Nursing homes, which suffered the most in job loss of any health care sector, have only recouped about half of the workers lost during the pandemic. ###### _**Staffing**_ Mr. Parkinson discussed the minimum staffing rule proposed by the Biden Administration [[Final Rule](https://www.cms.gov/newsroom/fact-sheets/medicare-and-medicaid-programs-minimum-staffing-standards-long-term-care-facilities-and-medicaid-0) released April 22, 2024]_. _ AHCA is not against more staffing, but does oppose a policy that is unfunded and not possible to implement due to the nationwide nursing shortage. To meet the requirements of the rule, providers would need to hire 105,000 new nurses. He noted that there is opposition in Congress to the minimum staffing rule, and the November elections could potentially bring a reversal to the rule. The aging population is increasing, while the overall population growth is declining, resulting in fewer workers to care for the huge number of older individuals. Mr. Parkinson emphasized that providers for seniors must become world-class employers and focus on employee engagement and satisfaction. This includes mechanisms to care for more residents with fewer workers. ###### _**Reimbursement**_ The 2025 Medicare payment proposed rule is favorable with a 4.1% increase in October 2024 and $90,000 per year for the average building. AHCA continues to work with states on Medicaid funding. The majority of residents are now under Medicare Advantage and traditional Medicare enrollment is decreasing. Provider owned networks are now available in nine states and expanding. AHCA also works with population health management, such as [I-SNP](https://www.cms.gov/medicare/enrollment-renewal/special-needs-plans/institutional) (Institutional Special Needs Plan) and [ACO REACH](https://www.cms.gov/priorities/innovation/innovation-models/aco-reach) (Accountable Care Organization Realizing Equity, Access and Community Health). AHCA/NCAL provides excellent resources and advocacy for long-term care providers. After this webinar was presented, Mr. Parkinson released a [statement](https://www.ahcancal.org/News-and-Communications/Press-Releases/Pages/Nursing-Homes-React-to-Staffing-Mandate-Final-Rule.aspx) in regard to the Staffing Mandate Final Rule. In part the statement reads, “While it may be well intentioned, the federal staffing mandate is an unreasonable standard that only threatens to shut down more nursing homes, displace hundreds of thousands of residents, and restrict seniors’ access to care.”_Excelas closely follows the staffing situation in long-term care and continues to enhance tools to assist in the defense of cases alleging inadequate care due to staffing. To quickly assess the workforce status, Excelas’ clients utilize the _[_Staffing Scorecard_](/case-triage)_, the _[_Provider of Care Report_](/clinical-analysis)_ and the _[_Care Calendar/TouchChart_](/clinical-analysis)_. Contact Excelas today for a demonstration of these powerful tools._ ## Technology Trends 2024 https://excelas1.com/blog/technology-trends-2024 ### Technology Trends 2024 _2024-03-27 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Higher expectations of residents and families, increasing documentation requirements due to MDS changes, looming minimum staffing requirements, and tightening reimbursement are all incentives to optimize technology use in long-term care. The category of technology solutions designed to meet the needs of seniors has recently been termed AgeTech. AARP has established the […] Higher expectations of residents and families, increasing documentation requirements due to MDS changes, looming minimum staffing requirements, and tightening reimbursement are all incentives to optimize technology use in long-term care. The category of technology solutions designed to meet the needs of seniors has recently been termed AgeTech. AARP has established the [AgeTech Collaborative](https://agetechcollaborative.org/about/) which brings relevant parties together to develop products and services to “make the process of aging easier.” According to [NIC](https://blog.nic.org/agetech-transforming-senior-living-with-innovative-solutions), the National Investment Center, AgeTech is reshaping the senior housing industry where technology is enhancing resident well-being and addressing caregiver challenges. Below are a few technology trends which impact seniors and senior living facilities. ###### **Telehealth** The ability to communicate with a provider using telehealth continues to expand since the pandemic health emergency. The [American Telemedicine Association](https://www.americantelemed.org/in-the-news/american-telemedicine-association-and-ata-action-reveal-playbook-for-the-2024-telehealth-super-bowl/) is encouraging Congress to make permanent the Medicare telehealth flexibilities implemented during the PHE and to pass the [Telehealth Expansion Act](https://www.congress.gov/bill/117th-congress/house-bill/341). One available telehealth tool is focused on mental health for seniors by [Talkspace](https://www.fiercehealthcare.com/health-tech/talkspace-targets-strong-revenue-growth-2024-it-doubles-down-payer-enterprise-strategy) which connects people through an app with therapists who provide counseling over the phone, by video chat, or by text with the goal of combatting loneliness and depression. ###### **Artificial Intelligence** The use of artificial intelligence in healthcare continues to grow, along with concerns about accuracy and appropriate use. In a recent [study](https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2815868?resultClick=1#xd_co_f=ZDZiNDg2Y2MtNGViMy00Y2Q3LTk5NjQtZmNlYjNiMDcxZDFk~) using AI to make discharge summaries more patient-friendly, 46% contained at least one error and 18% had inaccuracies or omissions. The World Health Organization ([WHO](https://www.who.int/news/item/18-01-2024-who-releases-ai-ethics-and-governance-guidance-for-large-multi-modal-models)) released guidance on the ethics and governance of artificial intelligence, specifically large multi-modal models (LMMs) in healthcare. They outline the potential risks and benefits as well as recommendations for governments and healthcare providers. Many industry [experts](https://www.healthleadersmedia.com/technology/behind-times-washington-tries-catch-ais-use-healthcare) note that government regulations are behind in monitoring AI in healthcare due to its rapid changes. Another [study](https://www.news-medical.net/news/20240324/AIs-health-misinformation-challenge-Study-calls-for-stronger-safeguards-and-transparency.aspx) concluded there is a growing need for regulations to ensure transparency, promote health-specific auditing, and provide monitoring to mitigate risks posed by health disinformation developed by large language models. ###### **Staffing** Staffing levels continue to be below pre-pandemic numbers, and technology plays a role in augmenting staff. For example, a health system in Minnesota has implemented a [virtual sitting](https://www.healthcareitnews.com/news/how-virtual-sitter-services-saved-st-luke-s-15m-2023) program which has improved patient safety through fall reduction and prevention, allowed for monitoring various vitals and specific conditions, improved staff efficiency, and decreased staffing costs. They estimate the program has prevented over 500 falls per month. ###### **Smart Devices** Employing smart technologies continues to expand in senior living. Examples include [Alexa](https://developer.amazon.com/en-US/alexa/alexasmartproperties/seniorliving) Smart Properties which allows residents to use voice commands for a multitude of purposes. Alexa can integrate with wearable devices for wander management or to call a nurse or access a healthcare provider. The financial and market [projections](https://finance.yahoo.com/news/global-voice-based-long-term-110000063.html?guccounter=1) for the voice-based long-term care solutions market are rapidly growing, with more companies entering the market and offering innovative solutions. A major challenge noted in this expansion is ensuring HIPAA compliance.[Google Health](https://hitconsultant.net/2024/03/20/google-health-unveils-generative-ai-progress-at-check-up-2024/) has a collaborative effort with Fitbit using AI to build personalized health Large Language Models to provide Fitbit users with specific coaching and recommendations. Google has also developed Google Lens which uses AI to allow users to search for skin conditions by taking a picture. Sensors to transmit data to an app to alert patients and staff are advancing care in [wound](https://www.mcknights.com/print-news/sensor-can-improve-ambulatory-off-loading/) therapy, and digital health interventions have demonstrated improvements in managing [hypertension](https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2815070?utm_source=silverchair&utm_medium=email&utm_campaign=article_alert-jamanetworkopen&utm_content=wklyforyou&utm_term=021424&adv=#xd_co_f=ZDZiNDg2Y2MtNGViMy00Y2Q3LTk5NjQtZmNlYjNiMDcxZDFk~). Other top [innovations](https://www.fiercehealthcare.com/special-reports/fierce-healthcares-fierce-15-2024) include a robot companion to help with loneliness and provide reminders, heart health monitoring through smartphone apps to allow users to see how lifestyle choices impact their cardiovascular health, and integration of AI-generated clinical documentation of physician-patient encounters into the EHR. ###### **Resident Satisfaction** Loneliness and isolation are often issues for seniors. One tool to address this is the [metaverse](https://www.mcknights.com/blogs/guest-columns/the-metaverse-and-its-future-forward-impact-on-senior-care/), or virtual reality (VR). Using VR applications, seniors can travel, attend events, engage in activities, games, and exercise without leaving home. In addition to providing socialization opportunities, when coupled with remote patient monitoring devices, the metaverse can facilitate virtual consultations and health assessments. ###### **Security** Cybersecurity failures can have extreme consequences. A [review](https://www.helpnetsecurity.com/2024/03/14/medical-devices-cybersecurity-concerns/) of medical devices revealed 23% of medical devices have at least one known exploited vulnerability. Medical devices typically have replacement schedules based on expected component failure times, not based on cybersecurity concerns. These legacy devices are vulnerable to cybersecurity threats, and security strategies must be implemented to mitigate these risks. Of critical infrastructure industries, healthcare organizations reported the most [ransomware](https://www.axios.com/2024/03/11/health-care-ransomware-attacks) attacks last year. These attacks impact patient care through postponed procedures, diverted ambulance services, and other issues. ###### **Application Selection** For long-term care providers, staying abreast of available technologies and selecting where to invest resources can be daunting. One resource is LeadingAge, the national organization of nonprofit aging service providers, which publishes resources with tools to [select technology solutions](https://leadingage.org/technology-selection-tools/) through their Center for Aging Services Technologies (CAST). These tools “help providers understand, plan for, select, implement, and adopt the appropriate technology while advocating for innovative care models.” CAST provides comprehensive decision support tools in the areas of electronic health records, telehealth and remote patient monitoring, medication management, functional assessment monitoring, shared care planning, social connectedness and engagement, safety, health information exchange, data analytics, and infection control.Excelas continues to [monitor](/blog/evolving-technology-in-long-term-care-integration-of-data) technology advancements, with a special interest in integration of data from AI applications and [remote patient monitoring](/blog/remote-patient-monitoring-uses-and-challenges) tools with the electronic medical record. Excelas can assist your facility in a documentation review to ensure timely and complete integration of data into residents’ medical records for patient care, reimbursement, administrative, compliance, and risk management purposes. ## Enterprise Risk Management Essential in Long-Term Care Organizations https://excelas1.com/blog/risk-management-essential-in-ltcs ### Enterprise Risk Management Essential in Long-Term Care Organizations _2024-02-21 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Best practices for a successful Enterprise Risk Management program in long-term care organizations and how Excelas, LLC can help. The principles of a successful [Enterprise Risk M](/blog/enterprise-risk-management-in-long-term-care)anagement program cannot be revisited too often in the current long-term care environment of increasing government regulations, continuing reimbursement challenges, ongoing staffing shortages, evolving technology, and escalating claims and litigation. Excelas attended a series of highly informative webinars presented by the [Adelman Law Firm](https://adelmanfirm.com/) on various components of ERM. These discussions emphasized matters that we assist our clients with every day, particularly documentation practices and medical record management. The following takeaways from the webinars cover a few areas of best practices in enterprise risk management. ###### **ERM Guiding Principles** Enterprise Risk Management (ERM) is [assessing](https://www.investopedia.com/terms/e/enterprise-risk-management.asp) how risks affect an organization and devising plans on how to approach different risks. An effective ERM program advances safe and trusted health care through empowering health care risk managers to mitigate risk and maximize value. Ethical and transparent decision-making is promoted at all levels with a goal to improve patient safety. Decision-making is elevated beyond the unit level to a strategic and holistic organization-wide level. This enterprise-wide view allows for proactive risk mitigation by empowering all categories of staff members to improve the organization’s performance. Enterprise Risk Management in long-term care is comprised of the following domains: • Operational • Clinical/Patient Safety • Strategic • Financial • Human Capital • Technology • Legal/Regulatory • Hazard Leadership, including administration, risk managers, compliance officers, and medical staff, must determine and build a consensus regarding the top action items for strengthening the organization’s approach to risk management. A thorough evaluation of what is working well and what aspects need to be enhanced should reveal what area(s) should be tackled first. The results from this risk management assessment must be incorporated into the organization’s overall strategic planning process. ![pexels-pixabay-40568](https://excelas1.com/api/media/file/2024-02-pexels-pixabay-40568-scaled.jpg) ###### **Best Practices in Documentation** The medical record, whether paper-based, electronic, or a hybrid, is the primary source of communication in continuity of patient care, reimbursement, compliance, and legal proceedings. High employee turnover and unclear or out-of-date policies and procedures are enemies of good documentation. Facilities must ensure quality documentation through ongoing staff training on federal and state requirements, corporate policies and procedures, and nursing/health care standards of care. Regular documentation audits must be conducted with findings incorporated into training and quality improvement programs. ###### **Arbitration Agreements** The use of Arbitration Agreements is a component of ERM. Providers must ensure Arbitration Agreements are up-to-date and staff training is ongoing to appropriately execute the requirements of CMS under the [final rule](https://www.cms.gov/newsroom/fact-sheets/medicare-and-medicaid-programs-revision-requirements-long-term-care-facilities-arbitration), “Medicare and Medicaid Programs: Revision of Requirements for Long-Term Care Facilities: Arbitration Agreements” issued in July of 2019. [CMS Form 20140](https://nursinghome411.org/wp-content/uploads/2022/09/CMS-20140-Arbitration.pdf), the Binding Arbitration Agreement Review, provides a guide for training and compliance. Surveyors will interview residents, family, and staff members about Arbitration Agreements, therefore, it is imperative that staff understand and apply these five components that facilities must [comply](/blog/cms-ruling-long-term-care-arbitration) with if using Arbitration Agreements: - Signing the agreement is not a condition of admission to, or a requirement to continue to receive care at, the facility. - The agreement is explained in a form and manner that resident or representative understands, and that understanding is acknowledged. - The agreement provides for the selection of a neutral arbitrator agreed upon by both parties and a venue that is convenient to both parties. - The agreement does not contain any language that prohibits or discourages the resident or anyone else from communicating with federal, state, or local officials. - Copies of the signed agreement are retained for binding arbitration and the arbitrator’s final decision is retained for 5 years after the resolution of any dispute. ###### **Negotiated Risk Agreements** NRAs are tools to honor a resident’s wishes about a specific activity or behavior (such as diet or exercising) while describing the resident’s (and family’s) understanding and acceptance of the possible associated risks. The NRA also describes the provider’s accommodations to these choices by the resident. The NRA should only address a single topic; for example, the resident does not want to use a walker. The Negotiated Risk Agreement is a legal contract and state laws vary on their use. Facilities must have formal policies governing their use, and they need to be updated as the residents’ care needs change. ###### **Record Retention and Release Policies** Frequent record audits and updated record retention and release policies are important elements of the ERM program. A lack of policies and procedures in this area can impact the level of liability in a claim as well as the outcome of a claim. Common types of record requests include an attorney letter, subpoena duces tecum, patient request, preservation of evidence, and notice of intent. Requests for records could indicate that there is the potential for a future claim or litigation. Comprehensive and up-to-date procedures, training and quality assurance for handling record requests and release of information are key, particularly in situations of high employee turnover. Training topics should include, but not be limited to, HIPAA and Cures Act requirements, specific state laws, valid authorizations, when to place a legal/litigation hold on the records, and elements of the designated record set. The American Health Information Management Association ([AHIMA](https://www.ahima.org/)) is the authority on medical records, including release of information [practices](https://journal.ahima.org/page/managing-phi-disclosure-when-a-lawsuit-is-involvedhow-to-prepare). AHIMA stresses the importance of a collaborative approach when there is a release of information request in relation to a lawsuit. All parties, including health information, risk management, legal counsel, compliance, privacy, and data integrity personnel should be involved in developing standard responses to e-discovery requests. A component of record retention and release is the legal hold plan and procedures to preserve evidence. A facility should have a designated record custodian who is part of a working group that includes legal, IT, and medical records. The legal hold plan is initiated when there is reasonable anticipation of litigation. The plan includes the facility’s retention and destruction policies for all types of records including, but not limited to, medical, financial, and video. ###### **How Excelas supports our clients** Excelas supports our clients’ ERM programs through data abstraction, [audits](/regulatory-support) of medical and related records, and record production support. These audits can reveal gaps in documentation, documentation support for claim submissions, and compliance with regulatory requirements. Excelas’ experienced legal nurse analysts and health information management professionals can evaluate your facility’s compliance with your current risk management guidelines, as well as provide recommendations for documentation and process improvement. ## CMS Changes to the Minimum Data Set October 2023 Implementation Challenges https://excelas1.com/blog/cms-changes-to-the-minimum-data-set-2023 ### CMS Changes to the Minimum Data Set October 2023 Implementation Challenges _2024-01-29 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > CMS issued changes to the MDS underscores the need for providers to be proactive in training, documentation, and coding practices. Long-term care providers spent much of the past year preparing for the October 1, 2023, changes to the Minimum Data Set (MDS). Staff training, software changes, and communications with stakeholders (including, but not limited to, residents, families, and referral partners) were just the tip of the iceberg with implementation. Providers have experienced many technical issues with submitting data to Centers for Medicare & Medicaid Services (CMS) with uncertainties about the impact on [Care Compare](https://www.medicare.gov/care-compare/) data which will start to be released in April 2024. Proactive measures such as continuing education of staff and ongoing documentation audits will ensure compliance with the new requirements. ###### **Background** CMS’s Long-Term Care Facility [Resident Assessment Instrument (RAI) v1.18.1](https://www.cms.gov/files/document/finalmds-30-rai-manual-v11811october2023.pdf) “helps nursing home staff gather definitive information on a resident’s strengths and needs, which must be addressed in an individualized care plan.” The RAI is comprised of the MDS, the Care Area Assessment Process, and Utilization Guidelines. The MDS is a “core set of screening, clinical, and functional status data elements… which form the foundation of a comprehensive assessment for all residents of nursing homes certified to participate in Medicare or Medicaid.” These data elements standardize communication within and between nursing homes and outside agencies. This assessment is required for Medicare reimbursement and compliance, State Medicaid reimbursement, clinical assessment processes, state surveys, and quality of care monitoring and public reporting. The goals of CMS in the MDS 3.0 revision included advancing assessment measures, increasing the clinical relevance of data elements, improving the accuracy and validity of the assessment instrument, increasing user satisfaction, and increasing the resident’s voice. ###### **Overview of Changes** CMS posted a draft of the updated MDS specifications in September 2022, and the changes were considered “[enormous](https://www.mcknights.com/news/cms-drops-enormous-mds-changes-in-surprise-move/)” by long-term care professionals. The most significant change was the replacement of MDS Section G: Functional Status with MDS Section GG: Functional Abilities and Goals. This section has an impact on the Nursing Home Five Star Rating system as published on Care Compare. The [four quality measures (QM) impacted](https://www.cms.gov/files/document/qso-23-21-nh.pdf) on Care Compare are: - Percent of Residents Who Made Improvements in Function (short stay) . - Percent of Residents Whose Need for Help with Activities of Daily Living Has Increased (long stay) . - Percent of Residents Whose Ability to Move Independently Worsened (long stay) . - Percent of High-Risk Residents with Pressure Ulcers (long stay) . [Industry experts](https://skillednursingnews.com/2023/12/how-the-removal-of-mds-section-g-is-affecting-quality-measures-staffing-calculations-and-five-star-ratings/) note that in addition to the quality reporting, the changes from G to GG will also have a huge impact on reimbursement, care planning, and staffing metrics. The removal of Section G changes the [staffing](https://www.cms.gov/medicare/provider-enrollment-and-certification/certificationandcomplianc/downloads/usersguide.pdf) calculations for reporting on Care Compare. The Staffing Rating will now be [calculated](https://www.cms.gov/files/document/qso-23-21-nh.pdf) using the SNF payment Patient-Driven Payment Model (PDPM). Staffing rating reporting will begin in July 2024. CMS is also instituting a penalty for providers that fail to submit or submit erroneous staffing data so that they will receive the lowest score possible for corresponding staffing turnover measures. Other sections which changed to require more detail and additional data elements include: - Collection of data on Social Determinants of Health (SDOH) which includes race, ethnicity, transportation barriers, and health literacy (Section A) - Resident mood assessments, including social isolation (Section D) - Pain assessments (Section J) - Time frame of interventions related to nutrition and hydration (Section K) - High-risk drug classes use and indication significantly expanded to include antipsychotic use and drug regimen review. The evaluation must include if the resident received the medication as well as documentation by a physician for the clinical reason for a specific medication (Section N) - Time frame and intervention details of special treatments, procedures, and programs (Section O) #### Excelas Compliance Regulatory Services Find out more information on how we can help with Internal Audits: [http://excelas1.com/service/internal-audits/](/regulatory-support) ###### **Training and Documentation** Section GG requires involvement of the [interdisciplinary team](https://www.providermagazine.com/Articles/Pages/4-Tips-to-Improve-Section-GG-Coding-Accuracy.aspx) (IDT) to appropriately document a resident’s “usual performance” on self-care and mobility items. Further, a qualified clinician is required to complete the assessment. The RAI Manual states that the assessment of “the resident’s self-care performance is based on direct observation, incorporating resident self-reports and reports from qualified clinicians, care staff, or family documented in the resident’s medical record during the assessment period. CMS anticipates that an interdisciplinary team of qualified clinicians is involved in assessing the resident during the assessment period.” Facilities must develop their own systems to complete this requirement as CMS does not mandate specific processes. Providers must ensure that all staff involved in the assessment are trained to document in much more detail in the resident’s medical record to comply with these requirements. This may be a change in process for many facilities. In addition, it is recommended that providers maintain a record of internal changes regarding training and documentation practices. This record will be useful in the survey process as well as for internal training evaluations. ###### **Action steps** Training: Long-term care providers must develop programs for continual interdisciplinary staff training on MDS and quality measures and maintain documentation of all staff training conducted in accordance with CMS communications. CMS has published training [videos](https://www.youtube.com/playlist?list=PLaV7m2-zFKphoXW6cc3NwUfxra0A1LYDi) to support providers in training programs. Documentation: Administrators must ensure documentation processes are consistent throughout the organization. It is recommended that internal audits are conducted in areas including, but not limited to: - Admission criteria and admission primary diagnosis - Certification documents completed. - Treatment records, orders, and interventions for resident specific plans It is critical that all data is documented in the resident’s medical record, including resident specific discussions held in meetings or family conferences. Communication: Providers must be [transparent](https://skillednursingnews.com/2023/12/how-the-removal-of-mds-section-g-is-affecting-quality-measures-staffing-calculations-and-five-star-ratings/) with all stakeholders, including residents, families, referral partners, payers, and staff, concerning the potential for changes in a facility’s Five Star Ratings due to new reporting requirements. It is important to be proactive in these communications so there are no surprises when the ratings are published under the new system. CMS has already issued notification of [changes](https://skillednursingnews.com/2024/01/cms-focuses-on-resident-mood-interviews-in-newly-issued-nursing-home-mds-draft/?itm_source=parsely-api) which will go into effect on October 1, 2024. While these updates are not as sweeping as those effective October of 2023, it underscores the need for providers to be proactive in training, documentation, and coding practices. Coupled with the current environment of high employee turnover, these areas become even more challenging as all levels of staff must be aware of the importance of recording all interventions with residents to comply with the MDS changes. Excelas’ medical analysts have extensive experience in reviewing medical records unique to long-term care settings. Our medical record audits can assist administrators in developing documentation procedures, preparing for surveys, and assessing staff training needs. Contact us today to discuss your medical information management requirements. ## The Medical Record is the Medical Record… Supporting Defense Strategies https://excelas1.com/blog/supporting-defense-strategies ### The Medical Record is the Medical Record… Supporting Defense Strategies _2023-12-12 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Excelas is widely respected for its expertise in managing and evaluating medical records related to long-term care litigation. Our clients value the ability to incorporate our chronologies and analyses into their overall case assessment and defense strategy. It may not be as widely known, however, that Excelas’ expertise extends to other types of cases, product [...] Excelas is widely respected for its expertise in managing and evaluating medical records related to long-term care litigation. Our clients value the ability to incorporate our chronologies and analyses into their overall case assessment and defense strategy. It may not be as widely known, however, that Excelas’ expertise extends to other types of cases, product liability and toxic exposure for example. Our team provides diverse services to assist in reviewing complex medical issues and preparing analyses to assist counsel in refuting varied allegations. Our staff augments the work done by claims managers and counsel in toxic tort and product liability litigation through: - **Document Review**: Excelas’ capabilities go beyond our core competency of medical record review and analysis. Our medical-legal staff is experienced in assessing all relevant documents, including, but not limited to, billing records, employment records, military records, corporate records, policies and procedures, expert reports, complaints, and depositions. Review of all types of records for completeness, additional providers/sources, and potential missing information early in the process allows for ample time to request additional records. - **Medical Analyses**: Allegations in toxic tort or product liability cases are wide-ranging, and understanding how to decipher and interpret the medical records is critical. The Excelas medical team has years of experience, both in the clinical setting and in retrospective review of millions of pages of medical records, to analyze the plaintiff’s medical information efficiently and effectively in matters relating to: Cancer allegations, which are the focus in large lawsuits including Camp Lejeune, talcum powder, AFFF Firefighting Foam, CPAP recall, hair relaxer and asbestos,Neurologic allegations, for example Parkinson’s in the Paraquat lawsuit,Injury allegations from product defects such as product fracture and migration in the body in the Bard PowerPort lawsuit, Paragard IUD lawsuit, and hernia mesh lawsuits, or due to labeling issues, as in the baby formula cases,Adverse event allegations related to pharmaceuticals including Tepezza (thyroid eye disease medication alleged to cause permanent hearing loss and tinnitus), Suboxone (used to treat opioid addiction and alleged to cause tooth decay and other dental injuries), and Ozempic (used to treat diabetes and aid in weight loss is alleged to cause gastrointestinal issues, gallbladder disease and gallstones). Integrating relevant dates and issues in all plaintiff records, both medical and non-medical, allows for a complete picture of issues including exposure, product usage, potential/alternative causation, injury occurrence and the extent of injury, identification of preexisting conditions and symptoms, assessment of risk factors, examination of family, social and occupational history, compliance, lost wages, and other potential financial damages. - **Deadline Support “On Demand”**: In situations where deadlines are looming and discovery is expedited, Excelas can quickly mobilize to review records and provide a comprehensive analysis. This just-in-time analysis can be customized to meet the immediate needs of claims managers and counsel. Services to support quick turnaround include organization, identification of providers of care/potential witnesses, risk assessment, case abstract, case summary, and medical chronology. Utilizing our team to focus on the medical aspects allows counsel to focus on other case management and legal strategy issues. [Efficient](/blog/why-excelas-the-value-proposition) deployment of claims and litigation resources is critical in the current legal environment. Whether faced with a medically complex case, large volumes of records, and/or a short deadline, the ability to focus the defense team on decision-making and strategy development is imperative. Knowing that the medical analysis of the case at hand, whether in long-term care, medical malpractice, product liability or toxic tort, is being managed by experienced medical-legal professionals can bring peace of mind that resources are being managed in the most cost-effective manner. [Case Summary](/clinical-analysis) [Watch the video on YouTube](https://www.youtube.com/watch?v=JiiT0ZN4sWg) [Record Organization](/clinical-analysis) ## Artificial Intelligence in Healthcare – Regulations, Standards, and Legal Issues https://excelas1.com/blog/ai-in-healthcare ### Artificial Intelligence in Healthcare – Regulations, Standards, and Legal Issues _2023-12-02 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > The use of artificial intelligence is exploding. Concurrently, the healthcare sector, particularly long-term care, is facing ongoing workforce challenges. Artificial intelligence (AI) tools can potentially alleviate some tasks to allow medical staff to focus on direct patient care as well as augment clinical decision-making. Opportunities with, and concerns around, the use of AI are at [...] The use of artificial intelligence is exploding. Concurrently, the healthcare sector, particularly long-term care, is facing ongoing workforce challenges. Artificial intelligence (AI) tools can potentially alleviate some tasks to allow medical staff to focus on direct patient care as well as augment clinical decision-making. Opportunities with, and concerns around, the use of AI are at the forefront of the government, regulatory bodies, industry groups, and legal and medical professionals. ###### **The Biden Administration** On October 20, 2023, the Biden Administration issued an [Executive Order](https://www.whitehouse.gov/briefing-room/presidential-actions/2023/10/30/executive-order-on-the-safe-secure-and-trustworthy-development-and-use-of-artificial-intelligence/) on Safe, Secure, and Trustworthy Artificial Intelligence. This EO outlines specific areas related to healthcare, including, but not limited to: - Department of Health and Human Services (HHS) must establish an AI Task Force which must develop a strategic plan within one year on responsible deployment of AI in healthcare, including safety, privacy, and security standards. - HHS must prioritize grants for development of AI by healthcare technology developers and the Secretary of Veterans Affairs must host nationwide AI Tech Sprint competitions to advance veterans’ healthcare quality through AI systems. - The Office of Management and Budget (OMB) must assess privacy implications and recommend revisions to agencies. - HHS must establish an AI safety program that includes identifying and capturing clinical errors from AI and develop best practices to avoid these errors and ensure patient safety. - HHS must develop regulations for drug development using AI. ![pexels-tara-winstead-8386440](https://excelas1.com/api/media/file/2023-12-pexels-tara-winstead-8386440.jpg) ###### **Standards and Regulations** Many industry and governmental organizations have advanced recommendations concerning the development and regulation of artificial intelligence. These include plans surrounding technical standards as issued by the National Institute of Standards and Technology ([NIST](https://www.nist.gov/system/files/documents/2019/08/10/ai_standards_fedengagement_plan_9aug2019.pdf)), and a proposed rule by the Office of the National Coordinator for [Health Information Technology](https://www.regulations.gov/document/HHS-ONC-2023-0007-0001) that would require EHR systems that use AI to provide users with a description of the data it uses. The [FDA](https://www.fda.gov/science-research/focus-areas-regulatory-science-report/focus-area-artificial-intelligence) currently has AI regulations in place relating to various areas including medical devices, drug applications, product labeling, clinical trials, and safety reporting. The World Health Organization (WHO) published [_Regulatory considerations on artificial intelligence for health_](https://iris.who.int/bitstream/handle/10665/373421/9789240078871-eng.pdf?sequence=1&isAllowed=y) in November 2023. This 50-page report, developed by multiple healthcare stakeholders, concludes with key recommendations in the following areas for developing AI systems: - Documentation and transparency - Risk management and AI systems development lifecycle approach - Intended use, and analytical and clinical validation - Data quality - Privacy and data protection - Engagement and collaboration ###### **Legal Considerations** Leaders in all aspects of the healthcare industry are concerned with the liability issues related to artificial intelligence. Technology professionals note that [liability](https://www.fiercehealthcare.com/ai-and-machine-learning/despite-sweeping-executive-order-ai-policies-liability-issues-will-likely) is an issue which is not addressed in the Executive Order, and vague standards may have to be resolved in court, such as adverse events that are traced back to the use of AI. Medical professionals grapple with the [reliability](https://www.nytimes.com/2023/10/30/health/doctors-ai-technology-health-care.html) of AI in patient care, with concerns about how programs were built and the underlying data. Insurers face [lawsuits](https://news.bloomberglaw.com/us-law-week/unitedhealthcare-accused-of-using-ai-to-wrongfully-deny-claims) alleging AI algorithms were used to deny coverage. What are some of the issues around medical liability claims associated with the use of artificial intelligence? The law is slow to keep up with the precipitous speed in which computer processing and AI development is occurring. This includes regulatory bodies such as the FDA. There is also a question as to how jurors will perceive AI in healthcare and the level to which judges are educated on AI issues. General strategies to mitigate liability issues include using AI to augment, not replace, a physician’s clinical decision as well as obtaining informed consent for AI to be used. One example is when prescribing devices that employ AI (e.g., wearables to reduce falls), a checklist should be developed, reviewed with the patient, and documented in the chart. Such a checklist includes calibration, training, security, and access. Further, the device must be preserved if there is an error. This checklist provides clear substantiation of how the device supported decision-making as well as patient understanding of the use of the device. Beyond “smart devices,” claims could arise based on a reliance on AI recommendations in clinical decision-making. The plaintiffs will scrutinize AI bias and underlying data, and healthcare providers, including the health system and physician, will be accountable. The defense of such cases will include greater collaboration with attorneys, risk management, medical records, IT, software engineers, and potentially the AI third-party vendor. Audit trails are needed regarding the AI algorithm, including changes, maintenance, and production. Artificial intelligence is impacting many aspects of life, and its rapid evolution brings both benefits and uncertainties. This is particularly true in healthcare, where the benefits are potentially great through improved quality and efficiency of care, but the potential risks are also great, with possible biased or inaccurate underlying data. Government, industry, and legal initiatives must keep pace with this expanding technology. _Excelas continues to monitor advancements in healthcare technology, with a special interest in integration of data from AI applications and _[_remote patient monitoring_](/blog/remote-patient-monitoring-uses-and-challenges)_ tools with the electronic medical record. Excelas can assist your facility in documentation reviews to ensure timely and complete integration of data into residents’ medical records. Comprehensive and complete medical record data is critical not only to patient care, but to reimbursement, compliance, and risk management. _ [Learn about our Products](https://www.youtube.com/@Excelas/videos) [Subscribe to our Newsletter](https://excelas1.us5.list-manage.com/subscribe?u=9b42ca673a356304a9f365330&id=f7fccb21c7) [Read more Blogs](/blog) ## Strategic Senior Living Documentation https://excelas1.com/blog/strategic-senior-living-documentation ### Strategic Senior Living Documentation _2023-11-21 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Senior living providers, their insurers, and counsel who represent them understand that quality medical record documentation is critical in deterring survey citations, combatting predatory plaintiffs’ lawyers, and most importantly improving healthcare outcomes for residents. High quality medical record documentation also allows providers to contain the cost of claims and litigation through early dispute resolution. The [...] Senior living providers, their insurers, and counsel who represent them understand that quality medical record documentation is critical in deterring survey citations, combatting predatory plaintiffs’ lawyers, and most importantly improving healthcare outcomes for residents. High quality medical record documentation also allows providers to contain the cost of claims and litigation through early dispute resolution. The challenge, particularly in the current staffing environment, is ensuring quality documentation through training and auditing. ##### **Claims Volume and Costs** The CNA Aging Service Claim Report (11th Edition, 2022) analyzed data collected on CNA insureds between January 1, 2018, and December 31, 2020. Of note, the report does not address the nonmonetary impact of claims (e.g., staff time redirected to retrieving and reviewing records rather than patient care) and excludes claims less than $10,000. In 2021, the average cost of assisted living claims ($267,174) exceeded skilled nursing facility claims ($245,559). Independent living claims, while low in volume, have increased in the average total incurred ($254,606). One reason for the increased dollar amounts could be there is typically less documentation in assisted living and independent living than in skilled nursing settings, resulting in less data on which to base a defense. Falls are the most frequent allegation in both assisted living (54.8%) and skilled nursing (36.1%). The average total amount incurred due to falls increased between 2018 and 2021 across all facility categories, with the overall average rising over 17.5% from $193,236 to $227,199. Training in comprehensive charting surrounding falls is clearly an area on which to focus. ##### **Quality Clinical Documentation, Audits, and Risk Assessment** If you are a healthcare provider, or provide training or counsel for healthcare providers, implementing strategic documentation practices facilitates vigorous defense of claims or suits. If you are involved in compliance, risk management, or guidance for healthcare professionals, you can minimize the risk of citations and suits by being proactive in identifying opportunities for improvement through a chart auditing program. How is quality documentation assessed? While documentation guidelines vary by state and type of facility, basic tenets apply across the board, including, but not limited to, a determination if the records are: - Present - Legible - Clear/precise - Complete - Timely Conducting proactive and periodic audits on a sample of medical records ensures that staff are complying with policies and procedures and identifies training needs. Examples of common areas for documentation improvement include the following: Employing ongoing documentation training and auditing programs allows providers to be in an advantageous position if faced with a claim or lawsuit. Ensuring that the medical record documentation is thorough facilitates reduced costs through early case assessment and resolution. _Excelas would be pleased to assist you with efficient and cost-effective training, organization, auditing, early case assessment, medical chronologies, case summaries, and other tasks to allow your team to focus on high-quality care and services for residents, leadership, legal strategy, business development, client relationships, and other critical business initiatives. _ ## Regulatory Issues in Assisted Living https://excelas1.com/blog/regulatory-issues-in-assisted-living ### Regulatory Issues in Assisted Living _2023-11-15 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > There are over 30,000 assisted living communities in the United States which provide residents with assistance in activities of daily living, housekeeping, meals, medication management, and wellness programs. Some also provide Alzheimer’s/dementia care. While assisted living facilities do not provide 24-hour skilled nursing services, they do typically coordinate with other care providers, which requires integration [...] ![pexels-jsme-mila-16364306](https://excelas1.com/api/media/file/2023-11-pexels-jsme-mila-16364306.jpg) There are over [30,000](https://www.ahcancal.org/Assisted-Living/Facts-and-Figures/Pages/default.aspx) assisted living communities in the United States which provide residents with assistance in activities of daily living, housekeeping, meals, medication management, and wellness programs. Some also provide Alzheimer’s/dementia care. While assisted living facilities do not provide 24-hour skilled nursing services, they do typically coordinate with other care providers, which requires integration of medical record documentation. Licensing and certification requirements for assisted living facilities are established by each state. Medicare does not cover assisted living services, but Medicaid may cover some services for eligible residents. LaShuan Bethea, Executive Director of the National Center for Assisted Living (NCAL), provided an overview of recent assisted living regulatory changes at the DRI Senior Living and Long-Term Care Litigation Seminar. NCAL publishes an annual [Assisted Living State Regulatory Review](https://www.ahcancal.org/Assisted-Living/Policy/Documents/2022_reg_review.pdf) which summarizes selected state requirements. Highlights of the report include the following: ###### **Assisted Living:** - 33 States updated assisted living licensing regulations between 2020 and 2022 The updated Assisted Living regulations included requirements for Infection Prevention and Control, staffing (e.g., minimum training), admission and retention, medication management, and dementia care. - 46 states and the District of Columbia require a consumer disclosure, agreement, and/or bill of rights for residents. - All 50 states and D.C. require a form of resident assessment and, at minimum, activities of daily living for residents. - 49 states and D.C. allow and have provisions around providing medication management to residents. - 45 states and D.C. have minimum educational and/or training requirements for assisted living administrators/directors. ###### **Dementia care:** According to the Alzheimer’s Association, [7.2 million](https://www.alz.org/media/Documents/alzheimers-facts-and-figures.pdf) Americans 65 and older will be living with Alzheimer’s dementia by 2025, a 7% increase from 2023. This does not include individuals with other causes of dementia including, but not limited to, cerebrovascular disease, frontotemporal degeneration, Lewy body disease, and Parkinson’s disease. The [National Center for Health Statistics](https://www.cdc.gov/nchs/npals/webtables/overview.htm) 2020 National Post-acute and Long-term Care Study reveals that over 42% of residential care community residents and over 45% of individuals in long-term care hospitals and nursing homes have a diagnosis of dementia. The NCAL reports that: - More than one in five assisted living providers have a secure dementia care unit or only serve adults with dementia. - 20 states have specialized dementia assisted living licenses or endorsements. These requirements include: Clinical and medical assessmentsWritten disclosure statementsMinimum staffingEgress control Each state has specific dementia education and training requirements. These requirements typically include training on understanding disease process and symptoms, person-centered behavioral interventions, and communications techniques. Assisted living communities can demonstrate the quality of care they provide through various certifications beyond licensing, including through The Joint Commission which offers Assisted Living Community [Accreditation](https://www.jointcommission.org/what-we-offer/accreditation/health-care-settings/assisted-living-community/learn/) and Memory Care [Certification](https://www.jointcommission.org/what-we-offer/accreditation/health-care-settings/assisted-living-community/learn/memory-care-certification/) for Assisted Living Communities. [Medical Record Organization](/clinical-analysis) [Internal Audits](/regulatory-support) ###### **Risk Management** Ms. Bethea closed her remarks with risk management considerations in assisted living communities, where a major focus is fall prevention. This is supported in CNA’s 2022 Aging Services Claim [Report](https://www.cna.com/web/wcm/connect/c6254fff-15ca-474e-929d-ca868d402917/CNA-Aging-Services-Claim-Report-11th-Edition.pdf?MOD=AJPERES) which shows assisted living resident falls account for 54.8% of claims, and dementia is a factor in almost 73% of assisted living fall related claims. Among the report’s recommendations to mitigate risk are pre-admission screening, documentation, transfer to higher level of care, care/service plan compliance, and expectation management. _Excelas supports our clients in preparing for and responding to state surveys through data abstraction, _[_audits_](/regulatory-support)_ of medical and related records, and record production support. Audits can reveal gaps in documentation, documentation support for claim submissions, and compliance with regulatory requirements. Excelas’ experienced legal nurse analysts can evaluate your community’s compliance with certification/licensing requirements, risk management guidelines, and provide recommendations for documentation improvement._ ## Anchoring Damages through Early Case Evaluation https://excelas1.com/blog/anchoring-damages-through-early-case-evaluation ### Anchoring Damages through Early Case Evaluation _2023-11-01 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Early case evaluation can help defense counsel combat large aberration and nuclear verdicts by anchoring the damages. Corporations, including those in the aging services industry, are seeing an increase in aberration verdicts. A [recent report](https://marathonstrategies.com/corporate-verdicts-go-thermonuclear-report/) revealed the median nuclear verdict, or those greater than $10 million against corporate defendants, rose from $21.5 million in 2020 to $41.1 million in 2022. Senior living facilities must employ defense strategies to combat this trend and preserve resources to support their core mission of high-quality care and services for residents. ![pexels-ekaterina-bolovtsova-6077447](https://excelas1.com/api/media/file/2023-11-pexels-ekaterina-bolovtsova-6077447.jpg) Excelas had the opportunity to attend _“Defending Damages in the Post-COVID Era: A Discussion on Anchoring Damages in Mediation, Arbitration and Trial” _at the [DRI](https://www.dri.org/education-cle/seminars/2023/senior-living) Senior Living and Long-Term Care Seminar. There were numerous take-aways from this presentation by Dr. John Lowry of The Lowry Group and John Hall, Jr. of Hall, Booth, Smith including the following: A driving factor of these verdicts is the “lottery money effect,” whereby jurors have become desensitized to massive dollar awards as a result of trillion-dollar government programs, billion-dollar lottery jackpots, and exorbitant sports salaries. Further, there is evidence that jurors’ distrust big corporations and their lawyers, feel that “the system is rigged,” and accept arguments by plaintiffs’ counsel that corporate defendants prioritize “profits over people.” Focus groups have revealed that people think healthcare providers profited greatly through COVID-19. This desensitization to dollar amounts, along with general distrust, is also referred to as “[social inflation](https://www.dri.org/publications/blog/social-inflation).” These aberration verdicts, which are beyond rational damage estimates, are based more on emotion and perceived credibility and less on facts, law, common sense, and expert opinions. Typically, the defense focused on challenging liability through standard of care or causation, while plaintiffs’ counsel developed damages early. However, this rise in nuclear verdicts requires early, proactive, and aggressive management in defending damages and determining the resolution plan. Anchoring is a strategy plaintiffs use to elicit exorbitant damage awards by giving a specific reference point, or “anchor,” to use when evaluating damages in a lawsuit. That initial figure, regardless of the size or the basis for the amount, can significantly impact the amount of an award. Anchoring the damages applies to mediation, settlement, and trial. Defense counsel must take control of setting the value through early evaluation by defense professionals rather than waiting for damages to be set by the plaintiff. Defense counsel should develop damages within the first 120 days to establish a reasonable counter-anchor. Appropriate case evaluation at the front end includes a review of claimed medical expenses and medical records (including an assessment of the impact of comorbid conditions) to determine if the claimed damages can reasonably be attributed to the alleged injuries. Once this early evaluation is completed and the value is determined, counsel can develop the resolution strategy. To support early evaluation and [value](/blog/importance-of-early-case-valuation) analysis, a review and [assessment](/case-triage) of the medical records must be completed. Excelas has experienced health information management, allied health, and nursing professionals to assist defense counsel by: - [organizing](/clinical-analysis) medical records and other relevant materials, - evaluating the quality and completeness of the medical records, - assessing and integrating relevant policies and procedures, - preparing chronologies and [case summaries](/clinical-analysis), and - delivering the medical records and medical analyses though a secure, cloud-based [system](/about/technology). Contact [Excelas](/contact) to learn more about our full range of services. We assist defense counsel by coordinating medical record management functions to allow counsel to focus on strategies to combat these aberration and nuclear verdicts. ## False Claims Act and Documentation Practices https://excelas1.com/blog/false-claims-act-and-documentation-practices ### False Claims Act and Documentation Practices _2023-10-10 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > False Claim Act allegations in long-term care stem from poor documentation or medical record keeping as defense relies on complete records. In the fiscal year ending September 2022, settlements and judgements under the False Claims Act exceeded [$2.2 billion](https://www.justice.gov/opa/pr/false-claims-act-settlements-and-judgments-exceed-2-billion-fiscal-year-2022), with $1.7 billion (77%) related to the healthcare industry. [Experts](https://www.mcknights.com/news/record-haul-in-false-claims-act-cases-a-reason-for-nursing-homes-to-be-concerned-experts-say/) expect that these claims will continue to increase, particularly whistleblower, or _qui tam_, cases. Potential damages are in the millions in these cases, and as in any litigation, much of the defense relies on complete documentation. In a recent webinar presented by [Sheppard Mullin](https://www.sheppardmullin.com/multimedia-503?utm_source=mondaq&utm_medium=syndication&utm_term=Food-Drugs-Healthcare-Life-Sciences&utm_content=articleoriginal&utm_campaign=article), FCA claims In long-term care most often fall in the categories of poor (or no) documentation to support claims, provision of services that do not meet standards of care, kickbacks, improper disenrollment practices, upcoding, delays in discharge, improper sales or marketing arrangements, and lack of physician authorizations. Other potential FCA areas for long-term care providers include failure to follow infection control protocols, inadequate staffing, and hospice services for patients who are not terminally ill. In August 2023, the [Third Circuit](https://www.natlawreview.com/article/third-circuit-finds-documentation-issues-may-be-material-under-fca) held that medical record keeping issues and documentation errors may be material under the False Claims Act in a hospice case appeal. This opinion reinforces “how critical proper documentation and retention practices are.” Audits conducted by Excelas relative to FCA cases involving hospice revealed red flags including: - No certification present or initial certification not performed in a timely manner - Subsequent recertifications not performed in a timely manner - Physician narrative statement not present or valid - No plan of care - Face to face requirements not met - No certification for dates billed [Watch the video on YouTube](https://www.youtube.com/watch?v=l3z5c4OY5HY) According to Beth Wilson, former Senior Counsel for a national healthcare network and current President of Excelas, poor, or no, documentation to support a claim is an obvious issue that cannot be undone. However, in her experience, documentation often does exist, but the complete record has not been produced or there are other pages in a chart that can establish care, even if the primary document for that purpose was not completed. For example, facilities may have hybrid medical records which include both paper and electronic documents, and may be using various systems which do not easily interface. Treatment provided may be documented in various areas of the chart, including progress notes, nursing notes, therapy records, and other ancillary services documentation. Ms. Wilson stresses that utilizing staff who are experienced in the complexities of record retrieval and legal nurses who analyze the content of medical records is central to [supporting](/blog/best-practices-in-long-term-care-litigation-medical-record-analysis-services) counsel in the defense of a false claims allegation. Senior living providers can be proactive in avoiding FCA allegations by conducting [audits](/regulatory-support) of medical and related records to assess documentation quality, reveal gaps in documentation, assess documentation support for claim submissions, and implement improvement plans as necessary. If faced with a false claim allegation, an early [assessment](/case-triage) and evaluation of the claim can allow for quick resolution. Contact Excelas for a demonstration of tools to support providers and counsel in defending false claims allegations in long-term care. ## Responding to the Silver Tsunami https://excelas1.com/blog/responding-to-the-silver-tsunami ### Responding to the Silver Tsunami _2023-10-02 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > An increase in the older population has led long-term care leaders to develop mitigation strategies to address staffing concerns. By 2034, older adults are [projected](https://www.census.gov/library/stories/2019/12/by-2030-all-baby-boomers-will-be-age-65-or-older.html) to outnumber children under age 18 for the first time in U.S. history. In 2019, 16% of the U.S. population (54.1 million) were 65 and older, with that number expected to reach 80.8 million by 2040. This increase in the older population coupled with declines in workforce participation, particularly healthcare staffing [concerns](https://www.ahcancal.org/News-and-Communications/Fact-Sheets/FactSheets/LTC-Jobs-Report-Jan2023.pdf#search=labor), present many challenges to senior living facilities. According to the National Investment Center for Seniors Housing & Care ([NIC](https://www.nic.org/)), the projected inventory in senior living is not expected to meet demand in the coming years. Leaders in the long-term care industry have developed strategies in response to the “silver tsunami.” ** **The August [DRI](https://www.dri.org/education-cle/seminars/2023/senior-living) Senior Living and Long-Term Care Seminar addressed how senior housing providers are responding to these population and staffing issues. ![resize image](https://excelas1.com/api/media/file/2023-10-resize-image.jpg) ###### **Claims and Oversight ** Further, referencing the [Marsh](https://www.marsh.com/us/industries/senior-living-long-term-care/insights/gl-pl-benchmark-report.html) claims report, senior living claims have increased 2.4% on average and SNF claims are up 3.5%. Providers are facing new litigation theories, including, but not limited to, independent living cases becoming similar to AL/SNF claims, consumer protection matters, breach of contract, class actions, and discrimination claims, including FHA claims and tester litigation. A panel at DRI’s August seminar also noted that plaintiffs’ counsel increasingly involves the media in cases, including local news and social platforms, in an effort to “litigate in the media.” The panel also reviewed the increase in regulatory oversight post pandemic. It was noted that providers must be aware of regulatory compliance related to technology use (for example Alexa, fall detection tools) and statutory compliance in relation to privacy laws. Technology vendors must be aware of and comply with the different state laws. Residents or family must understand and consent to any data that is being collected and understand how the data will be used, who has access to such data, and retention policies. ###### **Mitigation Strategies** Remedial measures are being instituted including Plan of Correction (POC), policies, practices, and training. The panel discussed the use of arbitration agreements in minimizing claims, and the importance of training internal staff on the execution of arbitration and resident agreements. Today’s seniors have different expectations and place a high value on customer service. It is imperative that senior living providers clearly establish expectations with both the resident and the family. Residents and families must understand the appropriateness and differences between independent living, assisted living, and skilled nursing communities. Resident care needs must be assessed at admission and regularly thereafter to ensure appropriate services, and communications with the family must be clearly documented in this regard. A big component of this assessment is identifying fall risks and interventions. Residents and families must understand that not all falls are preventable, but mechanisms are in place to minimize risk. Other mitigation strategies emphasized by the panel included staff training, proper processes, medical record documentation, and reporting. If a case does go to trial, it is important that counsel educate jurors on the unique issues associated with senior communities and residents. ###### **Partnering with Excelas** With the heavy focus on medical record documentation to support or refute a claim, experienced health information management, allied health, and nursing professionals can assist senior housing providers and their counsel with: - requesting and organizing medical records and other relevant materials, - evaluating the quality and completeness of the medical records, - assessing and integrating relevant policies and procedures, - preparing gap analyses, chronologies, and case summaries, and - delivering the medical records and medical analyses in an interactive database to support decision-making. Shifting medical record management functions allows claims specialists and counsel to focus on case strategy and resolution, including [early case valuation](/blog/importance-of-early-case-valuation). Contact Excelas to discuss your needs and how our approach to medical record management and analysis can assist you in managing claims and litigation in senior housing. #### Medical Chronology [http://excelas1.com/service/medical-chronology/](/clinical-analysis) A medical chronology from Excelas gives you an [efficient](/about), unbiased summary of what happened during a patient’s care over a specific period of time. Provided in a user-friendly format, our chronology is arranged so it can be reviewed quickly. It highlights only the most pertinent information from a patient’s medical record. ![Excelas](https://excelas1.com/api/media/file/2021-12-excelas_banner_narrow_350x63.jpg) ## CMS Increases Focus on Hospice Care: As Always, Documentation is Key https://excelas1.com/blog/cms-increases-focus-on-hospice-and-documentation ### CMS Increases Focus on Hospice Care: As Always, Documentation is Key _2023-09-20 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Hospice care and billing have become a focus for lawmakers and CMS calling for an increase in documentation to support admission In August 2023, The Centers for Medicare & Medicaid Services (CMS) issued a statement on the actions it is taking related to the integrity of hospice care for Medicare beneficiaries. Based on media reporting, particularly an expose in _The New Yorker_ in November 2022, hospice care and billing have become a focus for lawmakers and CMS. The unique challenges associated with handling claims and litigation in hospice care was also discussed at the recent [DRI](https://www.dri.org/education-cle/seminars/2023/senior-living) Senior Living and Long-Term Care Seminar. One take-away is clear, providers must ensure that documentation supports decisions to admit residents to palliative and hospice care. ##### **Deciding on Palliative or Hospice Care** As explained by [Leigh M. Vaughan](https://providers.muschealth.org/sc/charleston/leigh-meade-vaughan-md-118235-marion), MD, FHM, FAAHPM, of the Medical University of South Carolina at the DRI seminar, there is a distinction between palliative and hospice care. Care for the “whole patient” and focus on quality of life are both managed through a team approach which includes physicians, nurses, social work, chaplain, complementary services (massage, acupuncture), and family support. Patients receiving palliative care may still have aggressive treatment along with symptom management. A hospice diagnosis is a life limiting diagnosis, with admission criteria based on the specific disease. Questions typically addressed by the physician in making hospice determinations include: Does the patient have symptoms that are poorly controlled? Is the patient tired of coming to the hospital? Are there no more treatment options? The physician also considers a patient’s functional status, including how much they are moving, interacting, eating, etc. Hospice care allows for pain and symptom management to relieve suffering. Hospice services are provided across settings, including a patient’s home, assisted living, skilled nursing facility, or a hospital. Dr. Vaughn emphasized the importance of managing patient and family expectations when discussing palliative and hospice services to ensure there is a clear understanding of the type of care that will be provided. [J. Richard Moore](https://www.bleekedilloncrandall.com/attorneys/j-richard-moore/) of Bleeke Dillon Crandall further noted in the DRI presentation that when faced with a claim, providers must be able to defend the decision to move away from curative care to palliative or hospice care. Documentation of these discussions with patients and families is critical in demonstrating the appropriateness of care based on the individual’s status, wants, and needs. [Medical Record Organization](/clinical-analysis) [Early Risk Assessment](/case-triage) [Record Production Support](/defense-continuity) [Medical Chronology](/clinical-analysis) ##### **Media and Government Investigations** _The New Yorker_ [article](https://www.newyorker.com/magazine/2022/12/05/how-hospice-became-a-for-profit-hustle) detailed the experience of a hospice marketing employee who ultimately became a whistle-blower. The author reports that hospice currently is a $22 billion industry, with over 70% of hospice providers being for-profit, whose margins are three times that of non-profit providers. According to the Office of Inspector General at HHS, inappropriate billing by hospice providers costs taxpayers “hundreds of millions.” These allegations, along with other reports, prompted [lawmakers](https://www.baldwin.senate.gov/imo/media/doc/Hospice%20Oversight%20Letter%20Final.pdf) to request an investigation by CMS in December 2022. In response, [CMS](https://www.cms.gov/blog/cms-taking-action-address-benefit-integrity-issues-related-hospice-care) has visited over 7,000 hospices as of mid-August 2023. 400 of these are now facing administrative action. In Arizona, California, Nevada, and Texas, CMS will be conducting a medical review before making payments to all newly enrolled hospices. They are also initiating a national pilot project to review claims following an individual’s first 90 days of hospice care to determine if they are eligible for the benefit. Other regulatory changes are being considered to address hospice fraud, and new survey and enforcement requirements are being implemented. Information collected is disclosed on the Quality, Certification, and Oversite Reports ([QCOR](https://qcor.cms.gov/hosp_surveys/Hospice_landing.html)) website, and will eventually be available on [Care Compare](https://www.medicare.gov/care-compare/). Providers can also be subject to the enforcement of the False Claims Act by the Department of Justice with allegations including, but not limited to, admitting patients who are not hospice appropriate, maintaining patients who are not actively dying, kickbacks to physicians for referrals, and categorizing patients in higher intensity levels. To demonstrate the appropriateness of a hospice admission, the care team, or Interdisciplinary Group (IDG) must ensure Medicare requirements for a Hospice Plan of Care (POC) are met, which include: - Interventions to manage pain and symptoms. - Detailed statement of the scope and frequency of services necessary to meet the specific patient and family needs. - Measurable outcomes anticipated from implementing and coordinating the POC. - Drugs, treatments, medical supplies, and appliances necessary to meet the needs of the patient. - Documentation by the IDG of the patient’s or representative’s level of understanding, involvement, and agreement with the POC, in accordance with the hospice’s own policies, in the clinical record. ##### **Quality Documentation** Heightened media, government, and legal scrutiny of hospice care providers emphasizes the importance of complete and accurate [documentation](/blog/end-of-life-care-expectations) to justify the initiation and ongoing use of the services. Assisted living and skilled nursing providers face challenges in ensuring comprehensive documentation, particularly if they are working in coordination with outside hospice providers. While facilities can directly manage the procedures in place when hospice services are provided by their own staff, the difficulty arises when dealing with potentially multiple outside agencies servicing various residents. Communication protocols with these agencies need to be standardized, and documentation procedures between the hospice record and AL/SNF record must be monitored and enforced. A coordinated focus must be in place to train staff across the continuum of care, including primary care physicians, nursing, admission counselors, social services, and case managers, regarding Medicare requirements for hospice admission. As noted above, records must include discussions concerning managing the patient and caregiver expectations along with all relevant clinical data. Complete documentation is the [best defense](/regulatory-support) in responding to surveys, claims, and litigation. ## 2023 DRI Senior Living and Long-Term Care Litigation Seminar https://excelas1.com/blog/2023-dri-senior-living-and-long-term-care-litigation-seminar ### 2023 DRI Senior Living and Long-Term Care Litigation Seminar _2023-08-30 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Recap of the experts at the 2023 DRI Senior Living and Long-Term Care Litigation Seminar speaking on key topics impacting the industry. ![dri](https://excelas1.com/api/media/file/2023-08-dri.jpg) The Excelas team enjoyed reconnecting with clients and friends in Washington, D.C. at the [DRI Senior Living and Long-Term Care Litigation Seminar.](https://www.dri.org/education-cle/seminars/2023/senior-living) DRI’s Medical Liability and Health Care Law Committee assembled an outstanding group of expert speakers on key topics impacting the industry. **Ted McDonald and John Bowblis** discussed strategies for defending “understaffing” claims in long-term care litigation. In addition to examining the raw data and challenging the plaintiff’s formulas and methodology, providers and their counsel must be able to demonstrate the quality and quantity of care provided to patients and residents to refute plaintiffs’ allegations. In the Excelas [Care Calendar](/clinical-analysis), with the click of a mouse defense counsel can easily: - quantify every time a caregiver interacted with a patient/resident through the calendar format. - know the type of care provided, and how often. - access the exact page where the documentation exists. - illustrate the total number of “touches” through an interactive calendar format. Several presentations stressed the importance of early case assessment. As **Leah Nollenberger** highlighted in the panel discussion on _Recent Trends in Aging Services_, **John Lowry** noted in the presentation on _Defending Damages in the Post-COVID Era_, and **Joe Bianculli** observed in the _Regulatory Update_, quickly reviewing and analyzing the records for early case assessment can reduce costs and improve outcomes. Excelas offers cost-effective [tools](/blog/importance-of-early-case-valuation) to facilitate your legal team’s prompt response to claims, suits, [surveys](/regulatory-support), and administrative appeals. **Katie Matsoukas** addressed the _Potential Ethical Pitfalls in Defending Sexual Assault/Abuse/Neglect Claims with Criminal Investigations. _ When defendants need to conduct a thorough investigation involving multiple patients or residents or want to identify each interaction with a specific provider, Excelas can efficiently review multiple charts and generate a [Provider of Care](/clinical-analysis) report to facilitate interviews, responsive pleadings, and discovery. **Dr. Leigh Vaughan** of Medical University of South Carolina and **J. Richard Moore** of Bleeke, Dillon, Crandall PC provided an in-depth discussion on decisions related to palliative and hospice care from a physician’s perspective. They also discussed the increase in claims related to the appropriateness of admission to palliative care or hospice. [Internal audits](/regulatory-support) can assist facilities in ensuring documentation in the medical records supports admission to these services. **Tara Clayton** of Marsh, **Tom Goodwin** of Brookdale Senior Living, and **Bree Williams** of Ventas, comprised an informative panel to discuss the “Silver Tsunami.” Inventory of senior living options is not expected to meet demand in the next several years, and the acuity of residents is increasing. Challenges to providers include, but are not limited to, new expectations by consumers, regulatory changes, and technology. Between the educational sessions and networking opportunities, Excelas had the opportunity to hear directly from end users about how our innovative tools support counsel in preparing defense strategies in complex long-term care cases. Excelas always appreciates the opportunity to sponsor the DRI Senior Living and Long-Term Care Seminar. [Sign up for our Newsletter](https://excelas1.us5.list-manage.com/subscribe?u=9b42ca673a356304a9f365330&id=f7fccb21c7) [Watch our YouTube Channel](https://www.youtube.com/@Excelas/videos) [Follow us on LinkedIn](https://www.linkedin.com/company/excelas-llc/) ## Enterprise Risk Management in Long-Term Care https://excelas1.com/blog/enterprise-risk-management-in-long-term-care ### Enterprise Risk Management in Long-Term Care _2023-08-24 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Enterprise Risk Management strategy programs are important for long-term care providers to adopt to provide safe and high-quality care. Increasing resident acuity, continuing workforce shortages, looming government staffing mandates, evolving technology, and rising claim values. This shifting landscape for long-term care providers presents many challenges and managing these risks requires a holistic approach to ensure residents are provided safe and high-quality care. Assessing risks on a departmental level is not sufficient in today’s environment. Long-term care providers must adopt overall strategies, or Enterprise Risk Management (ERM) strategies, which include clear documentation and communication protocols, attention to customer service, strong hiring and training practices, leadership oversight and visibility, compliance with admission and discharge practices to ensure caregivers can meet needs, setting realistic expectations for residents and families, taking responsibility for incidents, and building relationships. ##### **What is Enterprise Risk Management?** Enterprise Risk Management (ERM) is simply [assessing](https://www.investopedia.com/terms/e/enterprise-risk-management.asp) how risks affect an organization and devising plans on how to approach different risks. ERM is an organization-wide strategy, both top-down and bottom-up, to identify and prepare for hazards and mitigate operational, financial, compliance, legal, and other risks. ERM eliminates silos and allows for proactive risk mitigation across an entire enterprise. This framework helps an organization [align](https://www.process.st/enterprise-risk-management/) objectives with its mission, vision, and core values with a collaborative approach to process improvement. [Watch the video on YouTube](https://www.youtube.com/watch?v=gJdwbfwrwF4) ##### **Key components of Enterprise Risk Management** One approach used for ERM across industries is based on the framework published by The Committee of Sponsoring Organizations ([COSO](https://www.coso.org/SitePages/Guidance-on-Enterprise-Risk-Management.aspx?web=1)), which considers risk in strategy-setting and in driving performance. COSO notes ERM is not a “function or department.” They define the components of ERM as: - Governance and Culture - Strategy and Objective-Setting - Performance - Review and Revision - Information, Communication, and Reporting The American Society for Health Care Risk Management ([ASHRM](https://www.ashrm.org/system/files/media/file/2020/12/ERM-Implementing-ERM-for-Sucecess-White-Paper_FINAL.pdf)) further defines the risk domains in healthcare, and examples in each, as: - Operational: adverse event management, credentialing, staffing, documentation, chain of command, internal controls, supply chain, and management oversight. - Clinical/Patient Safety: following evidence-based practices, medication errors, serious safety events. - Strategic: brand, reputation, marketing, business affiliations. - Financial: capital structure, equipment, contracts, regulatory fines, budgets, reimbursement. - Human Capital: staffing, retention, work-related injuries, productivity, compensation. - Legal/Regulatory: fraud and abuse, licensure, accreditation, CMS CoPs, liability. - Technology: electronic health records, financial and billing systems, social media, cybersecurity. - Hazard: logistics, supply chain, facility management, natural disasters. ##### **How are organizations implementing Enterprise Risk Management?** Successful implementation of an ERM program must involve stakeholders at all levels. In long-term care organizations this includes, but is not limited to, clinical staff (physicians, therapists, nurses, aides, pharmacists), operational staff (dietary, maintenance, activity), strategic decision-makers (owners, directors), administrative staff (compliance/regulatory/legal, health information management, human resources, marketing/sales), technology staff (in-house IT staff, health information managers, and third-party vendors). Health care organizations that promote a culture where all team members are comfortable in reporting incidents allow for improved risk mitigation, and ultimately improved quality of care, patient safety, and organizational efficiency. ##### **How can Excelas support Enterprise Risk Management?** Excelas supports our clients’ ERM programs through data abstraction, [audits](/regulatory-support) of medical and related records, and record production support. These audits can reveal gaps in documentation, provide documentation support for claim submissions, and compliance with regulatory requirements. Excelas’ experienced legal nurse analysts can evaluate your facility’s compliance with your current risk management guidelines as well as provide recommendations for documentation improvement. ## Evolving Technology in Long-Term Care Integration of Data https://excelas1.com/blog/evolving-technology-in-long-term-care-integration-of-data ### Evolving Technology in Long-Term Care Integration of Data _2023-08-16 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > As technology in healthcare is evolving with telehealth, remote patient monitoring, and AI, there is an increased need for comprehensive EMR. The increasing use of telehealth, remote patient monitoring, smart devices, and artificial intelligence in healthcare, particularly in the senior population, presents challenges in integrating data to allow for effective decision-making. Multiple stakeholders need access to all patient data, including healthcare providers for clinical decisions, insurers for coverage decisions, and potentially attorneys for claims and litigation decisions. The basis to knowing where to find this data and ensuring a comprehensive electronic health record is monitoring government regulations and industry advancements. ![pexels-karolina-grabowska-7195090](https://excelas1.com/api/media/file/2023-08-pexels-karolina-grabowska-7195090-1-scaled.jpg) ##### **Government Initiatives** In June 2023, Congress introduced an updated version of the [CONNECT](https://www.americantelemed.org/press-releases/ata-and-ata-action-applaud-broad-bipartisan-bicameral-support-for-reintroducing-the-most-comprehensive-legislation-on-telehealth/) (Creating Opportunities Now for Necessary and Effective Technologies) for Health Act. Originally introduced in 2016, the Act is intended to provide Medicare beneficiaries with access to virtual care. The updated version would permanently remove all geographic restrictions on telehealth services, expand originating sites to include home and other sites, permanently allow health centers and rural clinics to provide telehealth services, allow more eligible healthcare professionals to utilize telehealth, and remove unnecessary in-person visit requirements for telemental health services. Long-term care facilities must continue to implement best practices regarding privacy, security, and documentation for telehealth visits as these telehealth changes become permanent. ##### **Artificial Intelligence** ChatGPT, the fastest growing consumer application in history, employs large language models which use deep learning techniques to understand and predict content. According to a report by [Accenture](https://www.accenture.com/content/dam/accenture/final/accenture-com/document/Accenture-A-New-Era-of-Generative-AI-for-Everyone.pdf#zoom=40), it is estimated that 40% of working hours across all industries can be impacted by large language models. In healthcare, the use of AI by practitioners has a high potential to automate and augment their workday. Half of healthcare organizations included in this report plan to use ChatGPT for learning purposes. Current applications of AI in [healthcare](https://healthtechmagazine.net/article/2023/07/types-ai-in-healthcare-perfcon) include: - Clinical documentation - [Imaging](https://healthtechmagazine.net/article/2023/05/whats-next-medical-imaging-cloud-and-ai-technologies) using AI algorithms to process images and provide suggestions to radiologists. AI can analyze medical images more quickly and accurately than human radiologists and can easily integrate with EHR systems. - Remote patient monitoring to track and analyze data. - Research and testing new drugs in simulated environments. - Robotics to assist with surgeries. Experts note that ensuring AI is safe and clinically proven is a significant challenge, and while a useful tool, final decisions must be made by the medical professionals. Some health leaders believe there should be federal oversight of AI to ensure accuracy and quality of care. Healthcare providers also note technology is not a [substitute](https://www.providermagazine.com/Articles/Pages/Human-Touch-and-Health-Care-Technology-Work-Best-Together.aspx) for human touch and interaction. Tech giants Amazon Web Services and Microsoft have developed AI-automated [clinical documentation](https://www.forbes.com/sites/maryroeloffs/2023/07/26/ai-at-the-doctor-amazon-launches-new-service-as-google-microsoft-aim-at-merging-healthcare-with-artificial-intelligence/?sh=6778038924f7) applications to capture doctor-patient discussions, create summaries, and store the information in the EHR. A startup company, DeepScribe, developed a similar tool intended to convert doctor-patient conversations into medical records. The [_Wall Street Journal_](https://www.msn.com/en-us/health/other/at-startup-that-says-its-ai-writes-medical-records-humans-do-a-lot-of-the-work/ar-AA1eendu?ocid=socialshare) recently reviewed this application and found that the tool produces many inaccuracies in its reports, including medical terminology and medication errors. All reports generated must be reviewed by people working for the startup, and ultimately corrected through a final review by the physician. In addition to such concerns about quality, healthcare providers must consider [legal issues](https://www.natlawreview.com/article/ai-s-increasing-role-health-care-delivery-system-key-legal-considerations) when utilizing AI tools, including data security and confidentiality standards. ##### **Smart Technologies/Remote Patient Monitoring** Every day there are exciting AI applications in development or entering the market that are designed to assist seniors. [Pilot programs](https://healthitanalytics.com/news/ai-center-funds-5-pilot-projects-to-support-aging-alzheimers-care) are underway to develop tools to limit fall risks, improve sleep, monitor Alzheimer’s and dementia, and provide continuous health management. [Virtual reality](https://www.mcknightsseniorliving.com/home/news/tech-daily-news/virtual-reality-to-treat-chronic-conditions-could-be-game-changer/), in combination with an Apple watch, may be used to treat chronic conditions by using a patient’s biometric data and sending treatment protocols in real time. Even [toilets](https://www.mcknightsseniorliving.com/home/news/tech-daily-news/smart-toilet-seat-tracks-patients-health-aids-in-diagnoses/?itm_source=Bibblio&itm_campaign=Bibblio_related&item_medium=Bibblio_footer) are getting smarter, with “advanced biosensor systems” that provide daily wellness information for staff to monitor via a smartphone app. Approximately 40% of nursing home patients suffer from [congestive heart failure](https://skillednursingnews.com/2023/07/chf-innovations-that-could-cut-rehospitalizations-stymied-by-nursing-home-staffing-crisis/). Tools to remotely monitor CHF, including the ReDS Vest, a non-invasive tool that uses radar sensors to measure lung fluid and CardioMEMS, an implanted device which wirelessly measures and monitors pulmonary artery pressure and heart rate have both shown to reduce hospital readmissions in this patient population. Monitoring these residents is labor intensive, and while these devices help, they still require specifically trained staff. As these examples demonstrate, senior living providers and vendors are expanding the use of telehealth and artificial intelligence applications to [improve operations and resident care](https://seniorhousingnews.com/2023/07/31/how-senior-housing-operators-are-using-game-changing-telehealth-and-ai-technology/). Integration of AI and data collected by these smart technologies can help forecast potential health issues with residents through the electronic health record, but as one EHR vendor notes, “that isn’t something EHR reporting systems can do – yet.” Excelas continues to monitor advancements in [telemedicine](/blog/covid-waivers-update-on-the-usage-of-telehealth-in-medicine), with a special interest in integration of data from AI applications and [remote patient monitoring](/blog/remote-patient-monitoring-uses-and-challenges) tools with the electronic medical record. Excelas can assist your facility in a documentation review to ensure that your organization can prove the integration of data into the medical record is timely and complete. Comprehensive and complete medical record data is critical not only to patient care, but to reimbursement, compliance, and risk management. ## Assisted Living Accreditation and Guidelines https://excelas1.com/blog/assisted-living-accreditation-and-guidelines ### Assisted Living Accreditation and Guidelines _2023-08-02 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Excelas’ experience in internal audit and record review can assist ALFs in preparing for accreditation/certification and defending allegations According to the American Health Care Association/National Center for Assisted Living, over [818,000](https://www.ahcancal.org/Assisted-Living/Facts-and-Figures/Pages/default.aspx) Americans reside in assisted living facilities, with half of the residents age 85 and older. The Joint Commission reports that 34% of assisted living residents have Alzheimer’s disease or other forms of dementia. The demand for assisted living options continues to grow. Consumers expect data on quality of care to make the best decisions for themselves or family members, and facilities can use quality data to attract residents and defend against potential claims and litigation. ###### **The Joint Commission** Several organizations offer accreditation, standards, and guidelines in the assisted living industry. The Joint Commission offers the [Assisted Living](https://www.jointcommission.org/what-we-offer/accreditation/health-care-settings/assisted-living-community/learn/our-standards/) Community Accreditation program, and as of July 2023 expanded that certification to include the [Memory Care](https://www.jointcommission.org/what-we-offer/accreditation/health-care-settings/assisted-living-community/learn/memory-care-certification/#acf295e698be470e8b048a19565b00db) Certification for Assisted Living Communities. The Joint Commission Assisted Living standards include, but are not limited to: - Environment of Care - Emergency Management - Human Resources - Infection Prevention and Control - Information Management - Leadership - Life Safety - Medication Management - National Patient Safety Goals - Provision of Care - Performance Improvement - Record of Care - Rights of Individual - Waived Testing #### Why Use Excelas? [Watch the video on YouTube](https://www.youtube.com/watch?v=_9ltWiiAIUI) Facilities that achieve the AL accreditation are eligible to obtain the new Memory Care Certification, which was developed in collaboration with the [Alzheimer’s Association](https://www.alz.org/news/2023/the-joint-commission-memory-care-certification). The standards reflect best practices in safety and quality for memory care. Providers will be recognized on The Joint Commission’s Quality Check website and on the Alzheimer’s Association Community Resource Finder. ###### **Industry Associations** The [Quality in Assisted Living Collaborative](https://www.argentum.org/senior-living-coalition-announces-collaborative-to-develop-recommendations-for-assisted-living/) is a partnership among the National Association for Regulatory Administration (NARA), Argentum, the American Seniors Housing Association (ASHA), LeadingAge, and the National Center for Assisted Living (NCAL). The goal of the collaborative is to “identify, define and develop model guidance for assisted living.” The group is building a set of best practices, with the first release being infection prevention and control guidelines in late 2023. The group expects the recommendations will assist operators, policymakers, and consumers. In addition to these organization’s assisted living guidelines, each state establishes and enforces licensing and certification for assisted living communities. NCAL publishes an annual [State Regulatory Review](https://www.ahcancal.org/Assisted-Living/Policy/Pages/state-regulations.aspx) to summarize each state’s requirements for assisted living licensure or certification. Demonstration of compliance with quality standards allows a facility to instill confidence with residents and families as well as providing a defense in [claims and lawsuits](/blog/assisted-living-challenges-lead-to-rise-in-litigation). In assisted living, critical areas of documentation include: - Admission and discharge criteria/agreements to ensure a resident is receiving the appropriate level of care as well as outline general financial and physical plant matters. - Service plans which are updated as the resident’s needs change. - Assessments to evaluate appropriateness of residency that should occur during any acute changes in condition as well as annually. Necessary actions due to changes in the resident’s condition should have been established through well documented admission criteria and service plans. - Nursing care documentation requirements vary based on state regulations and facility policies. - Interactions with family including the information provided as well as the responses of family member. - Staffing regulations also vary by state but should include training, qualifications, and scheduling. - Outside services including home health or hospice. Excelas’ experience in internal audit and record review assists facilities in preparing for the accreditation/certification process and in defending allegations. Our staff has extensive experience in the unique documentation requirements for skilled nursing, assisted living, and independent living communities. [Learn more about the Internal Audit Services Offered at Excleas, LLC: http://excelas1.com/service/internal-audits/](/regulatory-support) ## Trends in Insurance Claims: Medical Record Management and Early Case Resolution https://excelas1.com/blog/trends-in-insurance-claims-medical-record-management-and-early-case-resolution ### Trends in Insurance Claims: Medical Record Management and Early Case Resolution _2023-07-12 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Early case valuation and medical record management can help providers, counsel, and insurers save time and money with insurance claims. The frequency and severity of claims in both senior living and long-term care continues to increase as noted in the 2022 General and Professional Liability Benchmark [Report](https://www.marsh.com/us/industries/senior-living-long-term-care/insights/gl-pl-benchmark-report.html). Providers, as well as their counsel and insurers, recognize early claim resolution reduces expenses. Medical record documentation is key to this process, therefore effective and efficient management of the medical data is paramount. In an April 2023 [webcast](https://www.marsh.com/us/industries/senior-living-long-term-care/insights/professional-liability-claim-trends-webcast.html), thought leaders from Marsh and Oliver Wyman expanded on the findings of the 2022 Benchmark Report. With the projected loss rate trending at +2.1% for senior living and +3.5% for long-term care, it is important for providers to have robust risk mitigation programs in place. The primary cause of loss continues to be falls at 78% in senior living (resident and non-resident) and 52% in long-term care. Skin and wound claims are increasing on the senior living side with higher acuity residents and account for over 27% of LTC claims. Fall management and wound care programs have a significant impact on paid indemnity and expenses. Documentation associated with these programs, including, but not limited to, facility policies and procedures, results of regulatory and/or accreditation audits, staff training materials, correspondence with family members (written and verbal), and all [documentation](/blog/best-practices-in-nursing-documentation) in the resident’s medical records, are all crucial components of prevention, mitigation, and defending claims and litigation. Gathering and organizing these documents consumes significant resources. #### Why Excelas? The Value Proposition ###### [http://excelas1.com/why-excelas-the-value-proposition/](/blog/why-excelas-the-value-proposition) The longer it takes to close a claim, the more expensive the claim becomes. Claims closed in one year averaged close to $46,000, while claims closed in five or more years averaged approximately $240,000, creating an incentive to resolve cases quickly. There are many steps involved in managing a claim, starting with training to ensure quality documentation is completed by facility staff, then gathering information at the time of an incident, organizing and analyzing the relevant data, preparing reports, investigations with stakeholders, evaluating liability issues, determining an appropriate course for resolution, collaborating with counsel, and preparing for settlement/mediation/trial. Insurance claims specialists, who typically have strong legal and/or insurance backgrounds, are usually the initial point of contact in the life cycle of a claim. With the heavy focus on medical record documentation to support or refute the claim, claims representatives will benefit from the assistance of professionals with a healthcare background. Experienced health information management, allied health, and nursing professionals can assist claims representatives by: - requesting and organizing medical records and other relevant materials, - evaluating the quality and completeness of the medical records, - assessing and integrating relevant policies and procedures, - preparing gap analyses and case summaries, and - delivering the medical records and medical analyses in an interactive database to support decision making by claims representatives and counsel. Shifting medical record management functions will allow claims specialists to focus on case resolution, including [early case valuation](/blog/importance-of-early-case-valuation) and assist in the overall defense strategy. Contact Excelas to discuss your needs and how our approach to medical record analysis can assist you in ensuring the most effective deployment of your claims department personnel. [Case Summary](/clinical-analysis) [Medical Chronology](/clinical-analysis) [Early Risk Assessment](/case-triage) ## Why Excelas? The Value Proposition https://excelas1.com/blog/why-excelas-the-value-proposition ### Why Excelas? The Value Proposition _2023-06-13 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > The benefits and value of working with Excelas as told by former client and now Excelas President, Beth Wilson. Eighteen years. Excelas has been supporting law firms, insurers, and health care organizations through efficient, affordable, and expert medical record organization and analysis for claims, litigation, and compliance for 18 years. The value of Excelas’ services is obvious to clients, so much so that a long-standing client is now the President of the company. From the Excelas point of view, Beth Wilson is the perfect fit. In her most recent role as Senior Counsel for a national healthcare network she was responsible for resolving legal matters for hospitals, skilled nursing, rehabilitation centers, assisted living facilities, home health care, and hospice. Among her many responsibilities she managed the in-house claims process including the collection and review of medical records, analysis of claims, negotiations of settlements, and the selection and management of outside defense counsel. She was frequently involved with vendors to support the claims process, including Excelas. Ms. Wilson shared the factors which guided her decision to join Excelas as the next step in her successful career as both in-house and outside counsel. - **What prompted your previous organization to utilize Excelas’ services?** My former employer has partnered with Excelas since 2006 to facilitate the cost-effective organization and analysis of medical records for compliance and claims purposes. Medical Record Organization/Document Management: Years ago, the documentation primarily consisted of paper records, which were voluminous, difficult to organize in a logical or chronological way, illegible at times, and subject to variations across the business units. Excelas brought protocols for efficient, cost-effective records management and analysis that anticipated and addressed new technology and other changes in the field. Excelas has been a leader in implementing sophisticated tools, including proprietary web-based software, for managing hybrid records composed of paper and electronic medical records. Medical/Nursing Analysis: Excelas offers a thorough nursing analysis without the costs associated with employing additional support staff or retaining consulting experts. The experienced analysts stay current on the nursing standard of care as it evolves over time. ![Picture1](https://excelas1.com/api/media/file/2023-06-Picture1-1.png) ![Picture1](https://excelas1.com/api/media/file/2023-06-Picture1-1.png) - **Describe your prior interactions with Excelas, including work product, customer service and response times.** Excelas has been an extension of the organization’s in-house legal department and a helpful resource for outside defense counsel. Excelas routinely organizes the medical records and provides a standard of care analysis for in-house claims, facilitates the early review of potential exposure for lawsuits assigned to defense counsel, and assists with various projects as needed. For instance, helping with large audits and other projects, filling in when support staff are on leave or are tied up with other assignments, and bridging the gap when an employee leaves until the vacant position has been filled. Excelas provides security with the flexibility of having Excelas’ services “on-demand.” The negotiated turnaround times for Excelas’ work products provide in-house counsel and defense counsel ample time to evaluate potential liability and defenses, conduct effective interviews, engage in meaningful discovery, explore theories and legal strategies, and pursue early resolution, if appropriate. Excelas provides customized solutions that are tailored to each client’s needs. A liaison works closely with all team members to implement written protocols for clear expectations and timely delivery. Customer service is exceptionally responsive and always professional. The connections that I developed over time led to enduring friendships and ultimately led to the incredible opportunity for me to join Excelas as its President. When the company’s founder, Jean Bourgeois, invited me to lead this incredible team as part of her succession plan, I couldn’t be more excited. Together we will guide Excelas into the future with our shared commitment to the core values of integrity, quality, flexibility, accountability, collaboration, and innovation. - **How did partnering with Excelas change how you deployed your team members?** Excelas enables the other members of the legal team to focus on decision-making and strategy development rather than preparatory tasks. Excelas takes care of gathering, scanning, sorting, labeling, and summarizing the records. The medical legal analysts then prepare chronologies and reports that the rest of the team rely on to interview and depose witnesses, draft motions, respond to government entities, retain testifying experts, and mediate, arbitrate, litigate, or settle disputes. - **How did you measure the ROI?** Increased efficiency: Excelas expedites the delivery of complete, well-organized clinical documentation for surveys, audits, record requests, and discovery; in-house counsel and defense counsel get a head start on defending claims and suits by having Excelas prepare Claims Summaries and Medical Chronologies early in the claims process; the Strengths and Weaknesses Assessments quickly identify defense strategies; the Provider of Care Report identifies potential witnesses and documents for defense counsel to efficiently conduct focused interviews and depositions; and the Care Calendars/Touch Charts are particularly effective demonstrative exhibits for mediations, arbitrations, and trials. These cost-effective tools give in-house counsel and defense firms a competitive edge in achieving successful outcomes. Consistent quality: I trusted Excelas’ reports to be consistently thorough and reliable. Excelas does not eliminate the need for counsel to examine the records and analyze the evidence, but provides a solid framework to expedite the process, saving time and money. Improved Outcomes: Excelas’ reports analyze the allegations asserted in a claim, suit, or survey, and identify other potential issues apparent from the complete medical record. This comprehensive review helps counsel develop effective strategies early in the process and avoids the late discovery of adverse information, after the parties have invested considerable time and money in litigating a dispute. - **Now that you are President of Excelas, what do you see are its strengths in relation to trends in the legal environment moving forward?** Legal Department budgets and staff are being cut, forcing in-house counsel to do more with less. Excelas offers cost-effective solutions for medical record management and analysis to minimize the overall legal spend while offering customized solutions and non-traditional billing arrangements to supplement the work of in-house counsel and outside firms. Companies and firms may not be able to hire additional staff and may be reluctant to hire temporary employees due to costs and training requirements. Excelas has the expertise necessary to jump in to help on short notice, to provide as much help as needed, for as long as it is needed. Prior to the pandemic, Excelas embraced the remote office concept, thereby reducing overhead and eliminating geographic barriers to attracting and retaining the best staff, while continuing to invest in client-centric technology. Excelas proactively addressed the impact of pandemic related mandates and restrictions by developing a comprehensive integrated timeline tool (CITT), featuring a database of federal and state guidance from entities including the CDC, CMS, FDA, White House, Office of Civil Rights, National Institutes of Health, OSHA, FEMA, United States Department of Labor, and World Health Organization. Many of the mandates have been archived or superseded, but Excelas captured this information contemporaneously in a timeline that can be merged with a company’s response to the pandemic as well as a specific patient’s medical record. This powerful tool is a game-changer for responding to COVID litigation, audits, and investigations. The struggle to achieve work-life balance has become critically important for employee retention and satisfaction. Collaborating with Excelas affords attorneys and paralegals the opportunity to be more efficient and focus on intellectually challenging legal aspects of assignments while improving outcomes for their clients. Companies are focusing on risk management, and there seems to be a trend of increasing risk of criminal exposure for entities and individuals in addition to civil liability and penalties. Excelas can quickly audit charts and other records to provide counsel with information to assess compliance, defend allegations, or determine the scope and extent of wrongful activity that may have occurred. In addition to general chronologies or summaries of specific issues, Excelas can quickly identify every place in a record where a provider has documented care and summarize those interactions. The best testimonial is having a client join the company, and Excelas is thrilled to have Beth Wilson lead the company into the future using the [value proposition](/) that has been evident since its founding 18 years ago: efficient, affordable, and expert medical record organization and analysis for claims, litigation, and compliance. ## As COVID Cases Go to Trial… https://excelas1.com/blog/as-covid-cases-go-to-trial ### As COVID Cases Go to Trial… _2023-05-31 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > COVID cases are going to trial and Excelas’ Comprehensive Integrated Timeline Tool (CITT) can assist in defending COVID related cases. On January 8, 2020, the Centers for Disease Control and Prevention (CDC) issued an official advisory about a pneumonia outbreak of unknown etiology and provided guidance to evaluate patients on January 17. On March 9, 2020, the Centers for Medicare & Medicaid Services (CMS) published its first guidance for nursing homes on COVID-19. As the courts hear cases relating to claims of negligence and wrongful death in nursing homes, facilities must be able to demonstrate compliance with federal, state, and internal guidelines as they existed on specific dates throughout the pandemic. In the _Briggs vs. Life Care Centers of America, et al._ case in U.S. District Court for Western Washington, defense attorneys had argued in January for [summary judgement](https://www.leagle.com/decision/infdco20230130i30) noting “inadequate evidence” to support negligence and wrongful death claims. The plaintiffs, whose family members died in March 2020, allege the facility did not follow its own policy on outbreak control and management. Life Care Centers argues it could not prevent COVID-19 from entering or spreading through the facility and “they [followed all applicable guidance](https://www.mcknights.com/news/civil-trial-begins-for-first-us-nursing-home-with-covid-outbreak-deaths/) and regulations in early 2020….” The federal jury found that the company was [not at fault](https://www.law360.com/articles/1679851/nursing-home-not-liable-for-early-covid-deaths-jury-says) for the women’s deaths. The jury did find that the facility was negligent in one death; however, the jury did not find that the negligence was the proximate cause of her death. At issue in the trial was the lack of availability of guidance about the virus from federal and state agencies in early 2020. The outcome of this trial has been monitored by senior care facilities which faced a barrage of directives, orders, rules, memorandums, and constantly changing COVID guidance. Maintaining an organized catalog of these documents has been daunting, with new guidance often overwriting previous directives. As the Public Health Emergency was declared, Excelas, in conjunction with our clients, built a database to archive over 10,000 documents published by various regulatory agencies which is merged with a healthcare organization’s policies and procedures. Excelas’ [COVID-19 Comprehensive Integrated Timeline Tool](/defense-readiness) (CITT) generates reports to demonstrate that a facility was in compliance with the standards that were in place at any given time throughout the pandemic. [Contact](/about/technology#nf-form-2-cont) Excelas for a demonstration of how this powerful tool can assist you in assessing and defending COVID related cases. #### COVID Integrated Timeline [Watch the video on YouTube](https://www.youtube.com/watch?v=y8Iv_J1ARJk) ## The Importance of Documentation in Pressure Injuries https://excelas1.com/blog/the-importance-of-documentation-in-pressure-injuries ### The Importance of Documentation in Pressure Injuries _2023-05-18 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Medical record documentation of each aspect of the wound assessment and staging is important for wound management and the defense of claims. Excelas had the opportunity to attend a webinar given by Jeri Lundgren, President of Senior Providers Resource, on assessment and staging of pressure injuries. Ms. Lundgren shared her expertise concerning the types of pressure injuries, etiology, contributing factors, assessments and staging, and the importance of documentation. Her expertise and experience in wound management and care provided for a highly educational presentation. The National Pressure Injury Advisory Panel (NPIAP) defines a pressure injury as localized damage to the skin and/or underlying soft tissue usually over a bony prominence or related to a medical or other device. The injury can present as intact skin or an open ulcer and may be painful. The injury occurs as a result of intense and/or prolonged pressure or pressure in combination with shear. The tolerance of soft tissue for pressure and shear may also be affected by microclimate, nutrition, perfusion, co-morbidities, and condition of the soft tissue. The injuries can be further classified as medical device related or mucosal membrane pressure injury. The cause of the injury is ischemia from sustained deformation of soft tissues which leads to hypoxia, blocking of nutrient supply and removal of waste products. The duration of time that tissue cells can endure ischemia differs between muscle, fat, and skin. The microclimate, or humidity and temperature between the skin and supporting surface, plays a role in causing the skin to become weaker and less stiff. The most common sites of pressure injuries include the ischium, lateral ankle bones, heel, and sacrum. Shear, including force and rolling effect, contribute to the deformation of tissue. Of note, moisture associated skin damage (MASD) secondary to incontinence or perspiration is not a pressure injury. Assessment of the wound is essential to determine progress and appropriate interventions and should be documented at least every seven days. More frequent documentation should occur with any complications or dressing changes. Ms. Lundgren stressed wound assessment should be a team effort. A comprehensive assessment of a wound includes date, location, stage, size and depth, wound base description, undermining and tunneling, drainage, wound edges, odor, signs and symptoms of infection, and pain. The wound bed should be described as necrotic/eschar, slough, granulation and/or epithelial with percentage of the wound bed for each description. #### Click to Learn More ![Medical Chronology Click-of-a-Mouse | Excelas, LLC](https://excelas1.com/api/media/file/maxresdefault.jpg) ![Medical Chronology Click-of-a-Mouse | Excelas, LLC](https://excelas1.com/api/media/file/maxresdefault.jpg) The staging system for pressure injuries consists of four stages and unstageable. This system is used for consistent communication of the depth of tissue destruction. - Stage 1 pressure injury is non-blanchable erythema of intact skin. Changes in sensation, temperature or firmness may precede visual changes. A deep tissue pressure injury is persistent non-blanchable deep red, maroon, or purple discoloration. Skin may be intact or non-intact. The DTPI results from intense and/or prolonged pressure and shear forces at the bone-muscle interface and are often due to immobility during hospitalizations or post-surgery, prolonged ambulance transports or waiting for assistance after a debilitating event. - Stage 2 pressure injury is partial-thickness skin loss with exposed dermis. The wound bed is viable, pink or red, moist, and may be an intact or ruptured serum-filled blister. Fat and deeper tissues are not visible. - Stage 3 pressure injury is full-thickness skin loss in which adipose is visible and granulation tissue is often present. The depth of the damage varies by anatomical location. - Stage 4 pressure injury is full-thickness skin and tissue loss with exposed or palpable fascia, muscle, tendon, ligament, cartilage, or bone in the ulcer. - Unstageable pressure injury is obscured full-thickness skin and tissue loss. If slough or eschar can be removed, Stage 3 or Stage 4 will be revealed. Ms. Lundgren provided guidance on medical record documentation of each aspect of the wound assessment and staging. She stressed the importance of documenting appropriate goals in the care plan, the type and location of the ulcer, and any history of a pressure injury including the location. In claims and litigation citing the development of pressure injuries, Excelas’ medical analysts can review the medical records and create a Medical Chronology and/or Case Summary that will provide the [entire story](/clinical-analysis) regarding the development and treatment of wounds. [Case Summary](/clinical-analysis) [Turning and Repositioning Chart](/clinical-analysis) [Care Calendar](/clinical-analysis) ## Medical Record and Document Management https://excelas1.com/blog/medical-record-and-document-management ### Medical Record and Document Management _2023-05-03 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Excelas attended a webinar by the Adelman Law Firm on the importance of policies and procedures, compliance and training, and complaint response in record retention and release practices as part of a comprehensive risk management program ![File Photo](https://excelas1.com/api/media/file/2023-05-File-Photo-scaled.jpg) Excelas had the opportunity to attend “Medical Records/Document Management – To Produce or Not To Produce?” which was a webinar presented as part of the Senior Living Empower Hour by the [Adelman Law Firm](https://adelmanfirm.com/). Rebecca Adelman provided an overview of the importance of policies and procedures, compliance and training, and complaint response in record retention and release practices as part of a comprehensive risk management program. Ms. Adelman noted that the medical record is “exhibit 1,” and long-term care facility staff must be trained in policies and procedures related to managing medical record requests and release of records. Any request for medical records should initiate communication through the organization that there could be potential for future litigation. A review of HIPAA, HITECH, and the 21st Century Cures Act provided key points that facilities must understand about a patient’s Right of Access and the requirements the facility must follow when releasing medical records. The Office of Civil Rights enforces the HIPAA Right of Access, stating the goal of this initiative is to “vigorously enforce the rights of patients to receive copies of their medical records promptly and without being overcharged.” Ms. Adelman indicated there has been a significant increase in complaints and enforcement actions, with total fines assessed by OCR through January 2023 exceeding $2.4 million. She provided a review of the process to respond to medical record requests, what is and is not included in the Designated Record Set, who has the authority to request medical records, and form and format of releasing protected health information (PHI). She also discussed a litigation hold and spoliation and the importance of having a litigation response team and plan. In summary, Ms. Adelman recommends a proactive approach to risk management in handling medical record requests, which includes comprehensive and current facility-specific procedures, access to state and federal regulations, training and ongoing education for staff, audits, a formal retention schedule and quality assurance involvement. The Excelas team, particularly our [AHIMA](https://www.ahima.org/) accredited health information management professionals, understands the critical nature of ensuring that protected health information is disclosed in accordance with all state and federal laws and that healthcare organizations have current policies and procedures on release of information. Excelas appreciates the legal insight provided in this webinar. #### Review Excelas' Available Medical Record Services Review Excelas’ Available Medical Record Services: [http://excelas1.com/solution/medical-record-retrieval_excelas-medical-legal-solutions/](/defense-continuity) ## The End of the Public Health Emergency Implications for Long-Term Care https://excelas1.com/blog/the-end-of-the-public-health-emergency-implications-for-long-term-care ### The End of the Public Health Emergency Implications for Long-Term Care _2023-04-27 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > The status of CMS’s healthcare delivery waivers and flexibilities once the Public Health Emergency May 11, 2023. The Public Health Emergency for COVID-19 (PHE), as declared by the Department of Health and Human Services in March of 2020, will officially end on [May 11, 2023](https://www.cms.gov/files/document/what-do-i-need-know-cms-waivers-flexibilities-and-transition-forward-covid-19-public-health.pdf). The government, and specifically the Centers for Medicare & Medicaid Services (CMS), issued waivers and flexibilities for many aspects of healthcare delivery throughout the PHE. Many of these waivers have already been discontinued. Remaining waivers and flexibilities which affect long-term care providers are either set to expire in May or have been temporarily extended. - **COVID-19 Vaccines, Testing, and Treatments:**Medicare beneficiaries will continue to have access to vaccinations, testing when ordered by certain healthcare providers, and treatments. Medicaid coverage will vary by state beginning October 1, 2024.Termination of the requirement for LTC facilities to conduct SARS-CoV-2 [testing](https://www.cms.gov/files/document/long-term-care-facilities-cms-flexibilities-fight-covid-19.pdf) for staff and residents. LTC facilities must still follow CDC infection control requirements.Nursing homes must continue to educate staff and residents on the risks and benefits of COVID-19 vaccination and assist in accessing vaccinations through May 2024, unless otherwise specified by CMS.Extension of [PREP Act](https://www.hhs.gov/about/news/2023/04/14/factsheet-hhs-announces-amend-declaration-prep-act-medical-countermeasures-against-covid19.html) immunity from liability through December 2024 to pharmacists, pharmacy interns, and pharmacy technicians in order to administer COVID-19 and influenza vaccines and COVID-19 tests.The staff vaccination mandate remains in effect, but it is [anticipated](https://leadingage.org/phe-will-end-may-11-what-this-means-for-nursing-homes/) the rule could change based on changes to the vaccine and proposed immunization [schedules](https://leadingage.org/fda-cdc-make-changes-to-covid-19-vaccination/). - **COVID-19 Reporting Requirements**Nursing homes will continue to be required to report COVID data to the CDC through the National Healthcare Safety Network (NHSN) through December 31, 2024. Vaccination status reporting continues through May 2024. - [**Medicaid**](https://www.ahcancal.org/Survey-Regulatory-Legal/Emergency-Preparedness/Documents/COVID19/Returning-to-Medicaid-Eligibility-Redetermination.pdf)** eligibility** redetermination requirements will be reinstituted for states that accept federal contributions to the state Medicaid programs effective May 11, 2023. - **Nurse Aide Training** for Nursing Homes The Temporary Nurse Aide (TNA) waiver to allow nurse aides to work longer than four months without completing training ends on May 11. Facilities have until September 10, 2023, to have all nurse aides complete state approved training. This applies to nurse aids hired before the end of the PHE. - **Telehealth Services** – Some [PHE flexibilities](https://www.natlawreview.com/article/telehealth-update-phe-extended-through-april-2023-some-key-telehealth-flexibilities) were made permanent and others will continue through the end of 2024 for Medicare beneficiaries. Medicaid flexibilities vary by state. [Permanent changes](https://telehealth.hhs.gov/providers/policy-changes-during-the-covid-19-public-health-emergency/policy-changes-after-the-covid-19-public-health-emergency) for behavioral/mental health telehealth services: can be received in home,no geographic restrictions on originating site,can be delivered using audio-only communications,rural hospitals can be an originating site or distant site provider. - [Temporary](https://telehealth.hhs.gov/providers/policy-changes-during-the-covid-19-public-health-emergency/policy-changes-after-the-covid-19-public-health-emergency) telehealth changes through December 31, 2024, include: Originating Site: no geographic restrictions, including home, for non-behavioral/mental telehealth services.Expansion of Eligible Practitioners: physical therapists, occupational therapists, speech therapists, and audiologists.Federally Qualified Health Centers (FQHCs) and Rural Health Clinics (RHCs) can continue providing telehealth services.In-Person Requirement for Mental Health: mental health providers do not have to see patients in person prior to providing behavioral health services via telehealth.Audio-Only: Medicare may cover audio-only services when appropriate.The Acute Hospital Care at Home (AHCaH) Initiative can continue operating while HHS prepares a report comparing the AHCaH programs with traditional inpatient care.Hospice Recertification: providers can use telehealth services to meet hospice face-to-face recertification requirements. - A [90-day extension](https://leadingage.org/transition-period-for-post-phe-telehealth-compliance/) until August 9, 2023 has been issued by OCR for the use of HIPAA non-compliant communications platforms. This allows providers using non-compliant telehealth services (such as unsecure iPads, smart phones, or other technology) to come into compliance. Facilities should also evaluate technology vendors and healthcare provider agreements and policies. - [**Three-day**](https://www.cms.gov/files/document/long-term-care-facilities-cms-flexibilities-fight-covid-19.pdf) prior inpatient hospitalization and Spell of Illness waivers for Medicare coverage of SNF admissions expires at the end of the PHE. The 3-day waiver was put in place to allow for expanded capacity during the pandemic and can only be made permanent through legislative action. - **Acute Hospital Care at Home**: this initiative has been extended through December 31, 2024 to allow approved hospitals to expand their capacity through providing inpatient care at an individual’s home. - **Pre-Admission Screening **and Resident Review: the PHE waiver allowed nursing homes to suspend these assessments for new residents for 30 days and this too expires May 11. - **Resident Roommates and Grouping/Resident Transfer and Discharge**: CMS had waived the [resident’s right](https://leadingage.org/phe-will-end-may-11-what-this-means-for-nursing-homes/) to choose roommates and refuse relocation/transfer due to the need to group residents based on COVID status. This waiver ends with the PHE. - **Virtual Supervision **which allows the flexibility of supervising healthcare professionals to be available through real-time audio/video technology as opposed to physical presence will expire December 31, 2024. _Excelas has extensive _[_experience_](/blog/the-covid-challenge-part-two-covid-19-guidance)_ assisting clients in managing claims and litigation related to COVID-19 allegations. The Excelas _[_Comprehensive Integrated Timeline Tool (CITT)_](/defense-readiness) _contains an archive of over 10,000 documents of Federal and State Guidance (for select states.) Juxtaposing the data from the individual’s medical records, the healthcare facility’s policies/procedures and published guidelines/standards in an _[_easy-to-read timeline_](/defense-readiness)_ allows counsel to clearly tell the story of the case and demonstrate the practices and the standards in place at the time the alleged event occurred. _ #### Excelas Comprehensive Integrated Timeline Tool [Watch the video on YouTube](https://www.youtube.com/watch?v=y8Iv_J1ARJk) ## Shock Verdicts: Defense Strategies to Combat Excessive Verdicts and Settlements https://excelas1.com/blog/shock-verdicts-defense-strategies-to-combat-excessive-verdicts-and-settlements ### Shock Verdicts: Defense Strategies to Combat Excessive Verdicts and Settlements _2023-03-27 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Shock Verdicts, are becoming more common during verdicts and settlements. Excelas can assist defense in combating these unprecedented amounts Stratton Horres and Karen Bashor of [Wilson Elser](https://www.wilsonelser.com/) recently presented a webinar entitled “Aftershocks: How Shock Verdicts are Resulting in Outrageous Settlements.” Verdicts and settlements are at unprecedented amounts. Shock verdicts, those at or greater than $10 million or those not rationally related to actual damages, result in “aftershocks” of enormous settlements. What is creating this shock verdict environment, and what tools can defense counsel use to combat the emboldened plaintiffs’ counsel? ##### **Potential Causes of Shock Verdicts** The current climate of political polarization, social inflation, anti-corporate bias, and post-COVID sentiment/angst, tension and anger is contributing to these shock verdicts. Plaintiff counsel recognizes the cost of litigation is at an all-time high, as are the business risks to defendants. Plaintiff counsel often utilizes the [Reptile Theory](/blog/reptile-theory-in-healthcare-litigation-introduction) when presenting their case, relying on jurors’ “reptilian” region of the mind which is sensitive to danger. A juror is presented with the idea that a defendant is dangerous and plaintiff counsel convinces a juror it is within their power to help mitigate this danger by awarding large damages to the plaintiff. One example employing Reptile Theory discussed was a $150 million settlement of a two fatality death case in an 18-wheeler accident. This lawsuit arose from an incident in May 2020 in which a car was stopped in the travel lane of a Texas highway. Three adults exited the car and walked away, leaving two children in the car. An 18-wheeler struck the car, which caught fire, and the children were killed. The adults who exited the car were not criminally charged. Plaintiff counsel focused on community safety, claiming the trucking company should have known it hired an incompetent driver, highways are dangerous, and truck drivers are fatigued and overworked. The trucking company decided to pay more in a settlement rather than face the possibility of a shock verdict, even though evidence showed the truck was traveling below the speed limit and the investigating officers placed no fault on the company or its driver. While this example is not related to the [healthcare](/blog/reptile-theory-in-healthcare-litigation-deposition-and-witness-testimony) setting, it is clear how the Reptile tactic could be used by plaintiff counsel against a medical provider, hospital, or long-term care facility to trigger a perceived “lack of safety” or “danger” to patients. [Medical Record Organization](/clinical-analysis) [Medical Chronology](/clinical-analysis) [Early Risk Assessment](/case-triage) [Early Case Valuation](/blog/importance-of-early-case-valuation) ##### **Plaintiff Counsel Tactics ** Although many cases settle on appeal, plaintiff counsel uses the initial verdict for public relations, marketing, and intimidation purposes. The ultimate settlement may be for far less than the verdict; however, that figure is often confidential, and the damage has been done with the publicized verdict amount. Plaintiff counsel will start with extremely high settlement demands and exploit relationships between the carriers and insured. They threaten the companies and carriers with ruined reputations and falling stock prices to exhort a settlement. The lead plaintiff counsel is typically aggressive in utilizing the Reptile Theory, is an expert on the jury pool, and seeks favorable venues, judges, and mediators. ##### **Defense Counsel Strategies** To combat plaintiff counsel’s effort to drive a wedge between the carriers and insured, the defense must ensure everyone is coordinated at the outset to strategize. The webinar presenters suggest a “collaborative litigation” approach with plaintiff counsel to resolve cases as early as practicable and avoid the time and expenses of a long adversarial process. One key to an early resolution is the [assessment](/case-triage) and evaluation of the claim by the defense. In a case involving healthcare, the basis for this is a review of the [medical records](/blog/reptile-strategy-in-healthcare-litigation-opening-statements). To combat the Reptile Theory, the defense introduces alternative causation concepts. A valuable tool for understanding the entire timeline of a patient’s clinical course is a [Medical Chronology](/clinical-analysis). The defense can focus the chronology on specific issues that may have contributed to the plaintiff’s alleged injury. This topical chronology extracts the most useful data from the full medical chronology, putting the most relevant information to the defense strategy in a concise document. ![Covid Challenge Webinar Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2021-12-excelas_banner_narrow.jpg) Contact [Excelas](/) to learn more about our full range of services to assist defense counsel in combating these Shock Verdicts through early case assessment and review. ## Remote Patient Monitoring: Uses and Challenges https://excelas1.com/blog/remote-patient-monitoring-uses-and-challenges ### Remote Patient Monitoring: Uses and Challenges _2023-03-09 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Telehealth and remote patient monitoring continues to expand but RPM technology is quickly evolving which brings challenges with the successes Telehealth, supported by remote patient monitoring (RPM), continues to expand in use. The global remote patient monitoring device market is expected to grow by 18.9% to [$101.02 billion](https://www.fortunebusinessinsights.com/remote-patient-monitoring-devices-market-106328) by 2028. Through RPM, providers can manage both acute and chronic conditions, and patients can reduce travel costs and infection risks. RPM technology is quickly evolving which brings challenges in implementation and data integration. ###### **Types of Remote Patient Monitoring Programs** According to the U.S. Department of [Health and Human Services](https://telehealth.hhs.gov/providers/preparing-patients-for-telehealth/telehealth-and-remote-patient-monitoring/), the most common conditions currently tracked through RPM include: - High blood pressure - Diabetes - Weight loss or gain - Heart conditions - Chronic obstructive pulmonary disease - Sleep apnea - Asthma In a recent [webinar](https://event.on24.com/wcc/r/3976836/20DA713BF15661EDAEA34DF41B28A8A1?mode=login&email) presented by healthleaders, a panel of experts discussed their experiences in implementing and managing RPM programs. These experts note that chronic disease management, including hypertension, COPD, and congestive heart failure, is the typical focus of home-based RPM programs. Patients in need of episodic care, such as high-risk pregnancies and some oncology specialties, are also frequent candidates for RPM. Khang Nguyen, MD, Diego Ortega, MD, Ruchi Tiwari, PharmD, MS, and Beth Wharton served as the expert panel on Remote Patient Monitoring in the January 2023 healthleaders webinar. ![pexels-tima-miroshnichenko-8376302](https://excelas1.com/api/media/file/2023-03-pexels-tima-miroshnichenko-8376302-2.jpg) ###### **Measuring Success of RPM Programs** Remote patient monitoring programs measure success through various analytics, including readmission rates, emergency department visits while on the program, outcome-based data (such as decreases in A1c levels), comparisons of actual clinical data to actuarial data, decreased length of stay if readmitted, compliance with therapy regimens, patient satisfaction, and total cost of care. Authors of a recent Harvard Business Review [article](https://hbr.org/2022/05/the-telehealth-era-is-just-beginning) believe that RPM could improve clinical quality, increase access to care, and reduce health care spending by up to 20% in the U.S. This would be accomplished by reducing unnecessary ED visits, reversing chronic diseases, addressing disparities in health care, making specialty care faster and more efficient, and providing access to the best doctors. ###### **Challenges in Home-Based RPM Programs** Types of remote patient monitoring programs vary by organization. Some include in-home nursing visits in conjunction with data gathered by RPM devices. Other programs have 24-hour “command centers” which can react in real time to changes in patient status. Virtual visits are common in most RPM programs. The expert panel in the webinar discussed many challenges in implementing successful remote patient monitoring programs. These challenges include, but are not limited to: - Investments in technology - Payment issues with CMS and private insurers - Cultural transformation for both providers and patients - Training of patients and providers on the use of devices - Interoperability of technologies - Connectivity issues, particularly in rural areas - Integration of documentation into electronic health records A recent article in [_Nature_](https://www.nature.com/articles/s41746-023-00750-w) focusing on surgical home hospital programs outlined similar challenges in both wearable and ambient technologies (sensors, video), including: - Signal fidelity - Data interoperability among devices and into the EHR - Integration into clinical decision-making workflow - Quality and accuracy of data - Frequency of monitoring - Separating true alerts from false alarms ###### **Future of RPM** The webinar panelists anticipate expansion of RPM programs to smaller hospitals with limited resources and to more at-risk populations. They also expect more integration with community healthcare programs. As programs continue to gather data, predictive modeling can be used to improve and expand RPM offerings and facilitate buy-in from employer and union health insurance plans. Experts also agree that there will be an increase in the use of artificial intelligence in remote patient monitoring programs.** **As long-term care facilities experience [rising acuity](https://skillednursingnews.com/2023/01/how-skilled-nursing-providers-are-dealing-with-very-heavy-burden-of-rising-patient-acuity/) of residents and ongoing staffing shortages, the use of remote patient monitoring will allow for enhanced access to specialized care and increased staff efficiencies. Excelas continues to monitor advancements in [telemedicine](/blog/covid-waivers-update-on-the-usage-of-telehealth-in-medicine), with a special interest in integration of data from remote patient monitoring tools and the electronic medical record. Excelas can assist your facility in a documentation review to ensure timely and complete integration of RPM data into residents’ medical records. This comprehensive and complete medical record data is critical not only to patient care, but to reimbursement, compliance, and risk management. Khang Nguyen, MD, Diego Ortega, MD, Ruchi Tiwari, PharmD, MS, and Beth Wharton served as the expert panel on Remote Patient Monitoring in the January 2023 healthleaders webinar. [Provider Perspectives on Telehealth](/blog/healthcare-provider-perspectives-on-telehealth) [Excelas' Medical Record Services](https://www.youtube.com/watch?v=_9ltWiiAIUI&t=12s) [Follow us on LinkedIn for Updates](https://www.linkedin.com/company/excelas-llc/) ## Best Practices in Nursing Documentation https://excelas1.com/blog/best-practices-in-nursing-documentation ### Best Practices in Nursing Documentation _2023-02-23 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Nursing documentation facilitates continuity of care between providers and supports clinical decision making. Medical record documentation impacts many aspects of healthcare, including, but not limited to, quality of care, patient outcomes, reimbursement, accreditation, and legal actions. The Ohio Health Care Association recently provided a seminar on Nursing Documentation to Support Services and Care Delivery to [...] Nursing documentation facilitates continuity of care between providers and supports clinical decision making. Medical record documentation impacts many aspects of healthcare, including, but not limited to, quality of care, patient outcomes, reimbursement, accreditation, and legal actions. The Ohio Health Care Association recently provided a seminar on Nursing Documentation to Support Services and Care Delivery to address these issues. ###### **Documentation – Quality of Care, Reimbursement and Accreditation** The [American Health Information Management Association](https://bok.ahima.org/PdfView?oid=302916) states that “for documentation to be meaningful, it must be clear, consistent, complete, precise, reliable, timely and legible. This is necessary to accurately reflect patient acuity and complexity, severity of illness, risk of mortality and scope of services and resources provided.” AHIMA also notes that electronic health record (EHR) functions such as cut and paste, templates, and other tools can enhance documentation, but improper use can diminish documentation integrity. Government agencies, such as the Centers for Medicare and Medicaid Services (CMS) and the Department of Health and Human Services (HHS) employ quality measures based on medical record documentation which is used for public reporting and reimbursement. CMS [medical reviews](https://www.cms.gov/research-statistics-data-and-systems/monitoring-programs/medicare-ffs-compliance-programs/medical-review) include the collection and clinical reviews of medical records and other information to ensure payment is made only for services that meet billing and medical necessity requirements. As discussed previously in this [blog](/blog/demonstrating-quality-of-care-in-ltc-facilities), data is published by Medicare on [Care Compare](https://www.medicare.gov/care-compare/), the [Five-Star Quality Rating System](https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/CertificationandComplianc/Downloads/usersguide.pdf) for nursing homes, and by the Joint Commission [Quality Check](https://www.qualitycheck.org/). Much of this publicly available data is based on reviews of documentation in the medical records. ###### **Documentation – Risk Management** Recent examples of plaintiff verdicts of [$30 million](https://www.mcknights.com/news/30-million-judgment-hits-nursing-home-that-failed-to-document-reposition-rehab-patient/) and [$19 million](https://www.msn.com/en-us/health/medical/19-million-awarded-in-glen-mills-nursing-home-negligence-case/ar-AA16X4Yb) underscore the importance of quality documentation from a legal perspective. Terri Lightner, BSN, JD, Manager, Clinical Operations at Excelas recently attended the OHCA seminar where Sherry Thomas, BS, RN, QCP, IPCO, Director of Clinical Services for LeaderStat identified common nursing charting errors, what constitutes strong documentation, and recommendations for best practices in nursing documentation. Strong documentation by nursing staff includes a complete record of: - Failing to record: pertinent health (vital signs, weights, blood sugar) and/or drug informationnursing actionsmedication administrationdiscontinued medication(s)drug reaction(s)changes in the resident’s condition - Ensuring data is recorded in the appropriate resident’s medical record - Transcribing orders properly - Legible handwriting In addition, it is imperative that the documentation in the medical record reflect that staff are following the facility’s established policies and procedures and that each resident’s care plan is being implemented. The facility’s policies and procedures should be clear, and not exceed state and federal requirements. [https://www.youtube.com/watch?v=378XbwX8XbQ](https://www.youtube.com/watch?v=378XbwX8XbQ) ###### **Documentation – Best Practices** Clinical documentation must accurately reflect the resident’s condition(s) and quality of care. As noted previously, keys to quality documentation include: - Legibility Completeness Clarity Consistency — Precision Reliability Timeliness Nursing experts stress documentation should be factual, specific, quantified, and based on the patient’s behaviors. Completeness includes all condition changes, treatments/interventions, resident responses, and communications/training with the resident, family, and other care providers. When notifying other providers of a change in the patient’s condition, the full name of the provider, exact time of notification, specific data reported (lab result, symptom), the response from the provider, and any orders/no orders must be documented. All entries must include the date and time; if utilizing an EHR there must be clear notation if referring to an earlier event. “Chart as you go” is imperative for communications with other healthcare professionals as well as accuracy. Purposeful nursing documentation focuses on the resident’s concerns and response, as well as the work that the nurse provides through care, education, and psychological support. Short staffing situations in long-term care are placing unprecedented demands on nurses and other providers in all areas, including time spent charting. The main vehicle to tell the resident’s story, and the story of the care provided, is through medical record documentation. A review of the entire patient/resident record can reveal data points to completely describe staff interactions. For example, a gap noted on a Turning and Repositioning Log may be fully documented on a Nursing Progress Note. Identification of these perceived gaps through documentation audits facilitates staff training opportunities. Excelas has the tools and the expertise to assist long-term care facilities in conducting audits, assessing documentation quality and completeness, integrating facility policies and procedures with individual resident medical records, and preparing comprehensive analyses for facility administrators, risk managers, insurers, and counsel. Tools used by Excelas’ clients to assess documentation include: - [Provider of Care Report](/clinical-analysis) which provides a quick review of all staff who documented in the medical record, the date care was administered, and a hyperlink to the page in the record where the entry was documented. - [Care Calendar/TouchChart](/clinical-analysis) which is a customizable, interactive calendar of all nursing interactions. Contact Excelas today to discuss how we can support your clinical documentation program through our powerful analysis tools. ## Trends for 2023 – Health Information Management Industry https://excelas1.com/blog/trends-for-2023-health-information-management-industry ### Trends for 2023 – Health Information Management Industry _2023-02-01 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > The American Health Information Management Association presented a webinar titled “The State of the HI Industry: 2023 Key Trends.” Industry experts including Dr. Liz Kwo of Everly Health, Dr. David Marc of the College of St. Scholastica, and policy expert Dr. Chantal Worzala examined current issues facing health information managers. The panel discussed three key [...] The American Health Information Management Association presented a webinar titled “The State of the HI Industry: 2023 Key Trends.” Industry experts including Dr. Liz Kwo of Everly Health, Dr. David Marc of the College of St. Scholastica, and policy expert Dr. Chantal Worzala examined current issues facing health information managers. The panel discussed three key trends in the health information (HI) management industry: - Artificial Intelligence and Digital Health - Data Analytics and the Future of the HI workforce - Information-Blocking #### Subscribe to the Excelas Newsletter Subscribe to the Excelas Newsletter to stay up to date with the latest industry news: [https://excelas1.us5.list-manage.com/subscribe](https://excelas1.us5.list-manage.com/subscribe?u=9b42ca673a356304a9f365330&id=f7fccb21c7) ##### **Artificial Intelligence (AI) and Digital Health:** Dr. Kwo reviewed the impact of AI and digital health on healthcare delivery. She emphasized that data can be used to create strategies to improve health outcomes and reduce costs. AI-driven solutions provide support in: - Early detection of various diseases. - Virtual triage and symptom checking with the support of AI chatbots. - Drug innovation and development. - Medical imaging processing. - Management of supply chain. - Study of medical devices, etc. She noted that healthcare is becoming more consumer-driven, which in turn drives the priorities of health care providers, insurers, and businesses. She defines the stakeholders in the digital healthcare continuum as patients, payors, and providers. The framework of digital health is the capture of the “care journey” of patients from predictive, preventative, prescriptive, treatments, and cure. In addition to reducing costs and improving care, AI and digital health tools can increase collaboration among providers and create personalized solutions for patients. ##### **Data Analytics and the Health Information Workforce** An assessment of the impact that technology has had on the health information management workforce revealed that jobs are requiring more technical skills, particularly in data analytics. Dr. Marc’s noted that this evolution is resulting in a convergence of the disciplines of health information management, health informatics, and biomedical informatics. Curricular competencies must continue to evolve to align with the changing workforce requirements. ##### **Information Blocking** As defined by The Office of the National Coordinator for Health Information Technology (ONC), “[Information blocking](https://www.healthit.gov/topic/information-blocking) is a practice by an ‘actor’ that is likely to interfere with the access, exchange, or use of electronic health information (EHI), except as required by law or specified in an information blocking exception. The Cures Act applied the law to healthcare providers, health IT developers of certified health IT, and health information exchanges (HIEs)/health information networks (HINs).” The Office of the Inspector General (OIG) is responsible for penalties and enforcement of information blocking, which can include civil monetary penalties and “appropriate disincentives” for providers. Electronic Health Information (EHI) includes electronic protected health information included in the designated record set (DRS) and does not include psychotherapy notes or information compiled for use in a civil, criminal, or administrative action proceeding. There are information blocking exceptions allowed to not fulfill requests to access, exchange, or use EHI, which include preventing harm, privacy, security, infeasibility, and Health IT performance. Practical resources for providers concerning good practices and operational implications were developed by the Sequoia Project [Information Blocking Compliance](https://sequoiaproject.org/interoperability-matters/information-blocking-compliance-workgroup/information-blocking-compliance-workgroup-resources/) Workgroup. _Excelas continually monitors issues impacting healthcare delivery, particularly trends in technology, government initiatives, regulatory compliance, standards of care, claims and litigation. The American Health Information Management Association is the authority for health information in healthcare, business, and technology. Several members of the Excelas team hold professional certifications through the American Health Information Management Association (AHIMA) and are members of state HIM affiliates._ ## Communication between LTC Providers and Emergency Departments Avoiding Unnecessary ER Transfers https://excelas1.com/blog/avoiding-unnecessary-er-transfers-from-ltc-facilities ### Communication between LTC Providers and Emergency Departments Avoiding Unnecessary ER Transfers _2023-01-20 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Although the Centers for Medicare & Medicaid Services (CMS) has determined the use of Skilled Nursing Facility readmission data for Value Based Purchasing will be suppressed in FY 2023 due to the continuing effects of COVID-19 on the data, acute care facilities face payment reduction based on unplanned hospital readmissions under the Hospital Readmissions Reduction [...] Although the Centers for Medicare & Medicaid Services (CMS) has determined the use of Skilled Nursing Facility readmission data for Value Based Purchasing will be [suppress](https://data.cms.gov/provider-data/dataset/ujcx-uaut)ed in FY 2023 due to the continuing effects of COVID-19 on the data, acute care facilities face payment reduction based on unplanned hospital readmissions under the [Hospital Readmissions Reduction Program](https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/AcuteInpatientPPS/Readmissions-Reduction-Program). Payment considerations aside, procedures can be implemented to reduce unnecessary emergency department transfers from long-term care facilities which will ultimately improve patient care and satisfaction. Duane Harrison, MD, provided an overview at the DRI Senior Living and Long-Term Care Seminar on how effective communication between emergency departments and LTC providers can impact patient care. He reported that 86% of emergency department visits result in treatment and release, with the most common reasons for these visits being abdominal pain, acute upper respiratory infection, and non-specific chest pain. He noted that the most common ED visits from LTC facilities are: - Injuries/falls (36%) - Heart conditions (19%) - Pneumonia (12%) - Mental status change, UTI, GI symptoms, fever, metabolic disturbances, skin disease (33%) ![hospital-gaab5482dd_1280](https://excelas1.com/api/media/file/2023-01-hospital-gaab5482dd_1280.jpg) As described by Dr. Harrison, ED admissions have a negative impact on LTC residents, particularly those with cognitive issues and psychiatric diagnoses. These patients often experience increased anxiety when moved from familiar surroundings. Medical providers must incorporate these concerns when determining the appropriateness of transferring to the ED. Effective communications include increased access to primary care providers in LTC facilities. In addition, Dr. Harrison noted LTC facilities can utilize physician extenders, extended care paramedics, pharmacy providers, and therapy providers to assist with the evaluation of potential urgent or emergency issues. A recent [study](https://www.healthleadersmedia.com/post-acute/aprns-improve-health-outcomes-nursing-homes) revealed the use of alternative providers, particularly advanced practice registered nurses, improved residents quality of care and lowered the number of hospital and emergency room transfers, ultimately saving one state $31 million in unnecessary ED admissions. The long-term care medical team must consider the following when deciding to send a patient to the ED: - Clinical picture - Advance directives - Cognitive issues - Patient wishes Appropriate and focused documentation provided to the ED staff is critical to efficiently evaluating and treating the patient. Often the LTC facility provides voluminous medical record information which does not allow for a targeted plan and can result in needless testing and costs. Dr. Harrison listed the information that should be made available to the ED staff: - Reason for transfer - Past medical history - Current medication and allergy list - Baseline mental & functional status - Advance directive wishes - Contact information for a healthcare provider at the LTC facility - Contact information for a PCP - Recent set of vitals [Record Organization](/clinical-analysis) [Follow our Newsletter](/contact) [Resources](/blog) [Contact Us](/contact) It is useful for hospitals to share protocols with LTC facilities to proactively manage transfers or readmissions. Telehealth can also play a key role in evaluating a patient while they are still at the LTC facility by improving access to care. Also, new programs, such as [ED in Home](https://homehealthcarenews.com/2023/01/medically-homes-next-frontier-moving-the-emergency-department-into-the-home/), are facilitating diagnostics and some treatments where the patient lives to avoid the stress, and expense, of a visit to the emergency room. Accurate and complete documentation in the medical record, whether in paper or electronic format, is critical to appropriate and high-quality care. This is underscored when the patient has dementia or other cognitive issues and lacks communication skills. Further, accurate, complete, and timely documentation is a key in reimbursement, compliance, and risk management. _Excelas has experience and expertise in managing medical information to assist long-term care facilities in developing/improving comprehensive documentation programs and in assisting counsel in efficiently handling health data for potential claims and litigation. Contact us today to discuss your medical information management requirements._ ## Healthcare Provider Perspectives on Telehealth https://excelas1.com/blog/healthcare-provider-perspectives-on-telehealth ### Healthcare Provider Perspectives on Telehealth _2022-12-16 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > The American Health Information Management Association (AHIMA) recently reviewed the “nuances of health information and telehealth” in ambulatory care from the perspective of nurses, physicians, and overall management of health information. The pandemic vaulted the use of telehealth; however, the rapid increase in utilization brought with it challenges in implementation, acceptance, privacy, and security. Nursing [...] The American Health Information Management Association (AHIMA) recently reviewed the “nuances of health information and telehealth” in ambulatory care from the perspective of nurses, physicians, and overall management of health information. The pandemic vaulted the use of telehealth; however, the rapid increase in utilization brought with it challenges in implementation, acceptance, privacy, and security. ###### **Nursing Perspective** From the perspective of nurses, the pandemic has forced many positive increases in the use of telemedicine, particularly remote patient monitoring. Nurses have indicated their patients are experiencing some challenges, including socioeconomic and technological, when utilizing telehealth. While monitoring patients remotely can be a key to successful treatment between office visits, nurses note that not all patients have access to smartphones, a computer, or Wi-Fi connections. Nurses reported many benefits of telehealth applications including: - Ability to reach a large patient population - Bridge the gap between in-office visits - Access to real time data to assist with management of diseases - Reduction of ER and/or hospital visits by addressing patient needs proactively - Improvement of patient engagement, empowerment and outcomes through personalized health coaching and education - Patients reported “peace of mind” ###### **Physician Perspective** Physicians noted many challenges with telehealth, most notably reimbursement. Zoom is the most frequently used platform for conducting telehealth visits as most physicians surveyed indicated they were not able to conduct telehealth via their current electronic medical record systems. Physicians reported an improved connection with their patients, which was reiterated in another recent [study](https://agsjournals.onlinelibrary.wiley.com/doi/10.1111/jgs.18090) which revealed that the majority of patients over age 65 want telehealth visits with their PCP as an option in their overall care. The other primary benefits of telehealth recognized by physicians included: - Opportunity to impact patients’ behavior through remote monitoring - Focus on disease prevention instead disease management - Ease of providing second opinions through a telehealth visit Physicians noted several examples of effective technology tools including mobile stroke units, ICU robots, home monitoring, implantable devices, and wearable devices. Many of these tools allow physicians to deliver treatment sooner and ultimately improve patient outcomes. ![telemedicine-g5ac20e25d_640](https://excelas1.com/api/media/file/2022-12-telemedicine-g5ac20e25d_640.jpg) ###### **Health Information Management Perspective** From the perspective of health information management, telehealth presents many challenges. As a result of the public health emergency (PHE), many rules surrounding the use of telehealth modalities have been waived by CMS and regulations vary state to state. The permanency of these [waivers](https://telehealth.hhs.gov/providers/policy-changes-during-the-covid-19-public-health-emergency/policy-changes-after-the-covid-19-public-health-emergency/) post PHE is still being debated. Key telehealth issues related to the management of health information include: - Privacy and security: AHIMA notes the [challenges](https://journal.ahima.org/page/solutions-for-challenges-in-telehealth-privacy-and-security) in telehealth security can be viewed in three ways: environmental, technological, and operational. Environmental factors such as the patient’s living conditions can impact the ability to have a private space for virtual visits, and accessibility can be based on socioeconomic factors. Providers should assist patients in ensuring a private location as well as in using appropriate tools (i.e., text, email, headsets).Technological factors include data security, internet access, and overall patient understanding of the technological tools. Best practices by healthcare providers includes incorporating telehealth into privacy and security policies, procedures, and workflows.Operational factors include reimbursement issues and training of healthcare staff. - Documentation: providers must standardize documentation for telehealth services and ensure it meets all payer requirements. The Government Accountability Office ([GAO](https://www.natlawreview.com/article/gao-releases-report-telehealth)) released a report on telehealth in September 2022 with recommendations on documentation for billing and quality in telehealth services under the pandemic waivers and beyond. - Credential and licensure requirements based on provider and patient location: CMS allowed for flexibility of where the patient receives services and where the services originated during the PHE. Once the PHE ends, pre-pandemic restrictions on location will be enforced. Policies, procedures, and documentation will be critical in instances of ongoing care which overlap these requirements. Excelas continues to monitor legislation and advances in telehealth technology, including the implications of documentation, privacy, and security surrounding integration in the electronic health record. #### Follow our Newsletter Stay up to Date with the Latest Industry Information [Click here to subscribe to our newsletter](https://excelas1.us5.list-manage.com/subscribe?u=9b42ca673a356304a9f365330&id=f7fccb21c7">https://excelas1.us5.list-manage.com/subscribe?u=9b42ca673a356304a9f365330&id=f7fccb21c7). ## Class Action Litigation Trends in Long-Term Care https://excelas1.com/blog/class-action-litigation-trends-in-long-term-care ### Class Action Litigation Trends in Long-Term Care _2022-12-05 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > An update to class action litigation trends in Long-Term Care and recommendations for risk mitigation strategies. ![Securing Nursing Home Reputation Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-01-notice-of-a-lawsuit.jpg) [Sunny Thompson](https://www.swlaw.com/people/sunny_thompson) of Snell & Wilmer provided an overview of recent class action cases and multi-facility litigation at the September DRI Long-Term Care and Senior Living conference. She provided highlights of several recent cases as well recommendations for risk mitigation strategies. The first area discussed was class action lawsuits alleging understaffing in long-term care facilities. Common themes in the allegations: - Fraud and misrepresentation - Unfair business practices - Violations of consumer protection laws - Elder financial abuse Many of these cases have been brought by the same group of plaintiff attorneys primarily in California, Arkansas, Florida, North Carolina, and Washington. They seek high settlements and high plaintiff attorney fees. The allegations often are “cookie cutter” and it is recommended that providers should mount a vigorous defense. These factually identical allegations include accepting patients who need higher levels of care, misrepresentations in marketing materials, managers who are driven by personal compensation tied to budgeting targets, and failure to consider individual resident needs related to staffing. Due to the high expense, both in bad publicity and dollars, many senior living facilities are settling prior to class certification. However, defense counsel should focus on the individual resident experience to avoid class action status and reduce exposure. The exorbitant expense and time required in resolving these cases makes risk management efforts of paramount importance. Risk mitigation in understaffing claims include, but are not limited to: - Arbitration Agreements with residents that bar class and collective actions - Robust policies, which are approved by regulatory counsel, concerning the provision of resident care - Ongoing review of staffing policies and procedures and compliance monitoring of the same - Avoidance of “overpromising” services or products in marketing materials and residency agreements - Training of sales staff, front desk staff, and others who interact with potential residents - Clear understanding of what data is being collected and how it is being used to match care levels to staffing Ms. Thompson also reviewed the _Stiner v. Brookdale Senior Living_ case which contains understaffing allegations. Interestingly, the case also contains a novel theory of liability which is that Brookdale’s alleged understaffing violates the Americans with Disabilities Act (ADA) and California’s Civil Rights Act. Allegations include physical access barriers for persons with disabilities and failure to provide sufficient emergency access plans. The allegation that Brookdale is violating ADA through alleged understaffing and failure to adequately train staff is noted to be the first of its kind. Considering the _Stiner_ case, in addition to the mitigation strategies listed above, companies should evaluate their manuals and training programs as they relate to residents with disabilities. This may help ensure that residents are routinely evaluated to determine if they are in the appropriate room for their mobility needs. The presentation also reviewed other litigation trends in the senior housing industry. These trends included “tester” lawsuits asserting fair housing and ADA discrimination claims by potential deaf residents who need American Sign Language interpretation, employee wage and hour class actions, and biometric privacy laws. The common threads in the mitigation of risk in all of these areas are well-defined policies, procedures, and training of staff. These policies must be consistently monitored to ensure compliance with federal and state laws and regulations. _Excelas has extensive experience assisting clients in managing claims and litigation in the long-term care setting. The Excelas _[_Comprehensive Integrated Timeline Tool (CITT)_](/defense-readiness) _allows clients to incorporate key data with guidelines, regulations, and standards. The Excelas _[_Staffing Scorecard_](/case-triage)_, _[_Provider of Care Report_](/clinical-analysis)_ and _[_Care Calendar/Touch Chart_](/clinical-analysis)_ reports allow clients to quickly access the workforce status at the time of an alleged incident. Contact Excelas today for a demonstration of how these powerful tools can assist counsel in clearly telling the story of the case._ [Staffing Scorecard](/case-triage) [Provider of Care](/clinical-analysis) [Comprehensive Integrated Timeline Tool](/defense-readiness) [Care Calendar](/clinical-analysis) ## COVID-19 Trends and Practice Strategies https://excelas1.com/blog/covid-19-trends-and-practice-strategies ### COVID-19 Trends and Practice Strategies _2022-11-22 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > An update to the COVID litigation trends and practice strategies with the recommendation cases should be litigated and tried to verdict Excelas had the opportunity to hear Robin Khanal and Karen Shimonsky of Quintairos, Prieto, Wood & Boyer speak on COVID litigation trends at the DRI Long-Term Care and Senior Living conference. In their presentation titled “Stay 6 Feet Ahead of Opposing Counsel: A Nationwide Update on COVID-19 Litigation Trends and Practice Strategies to Combat Them” they highlighted actions by plaintiff counsel, PREP Act and state immunities, and CMS regulations and waivers. They noted large plaintiff verdicts, such as the $53 million verdict against New Jersey VA homes, as well as media attention and advertising by plaintiff attorneys, are all factors which jurors take into consideration as “benchmarks” when awarding damages. The speakers indicated that COVID-19 related lawsuits have been filed in over 400 courtrooms across the country. Allegations include failure in: - infection control - availability of, or proper training of staff in use of PPE and other countermeasures - monitoring incoming patients, staff, and visitors for the virus - sufficient staffing - recognizing changes in condition - warning families, physicians, and authorities as to status of COVID in the facility There are also cases which allege failure of care during the pandemic including staffing levels, falls, wounds, and weight loss, referred to as “COVID-impact” claims. ![pexels-kampus-production-8949913](https://excelas1.com/api/media/file/2022-11-pexels-kampus-production-8949913-1.jpg) The speakers reviewed COVID-19 immunities at the state and federal level. There was an expectation by long-term care providers that the PREP Act would provide protections, so many defendants have removed their cases to federal court. However, many district courts have rejected moving these cases to federal court and remanded to state court. Several states have issued immunities for healthcare and senior living facilities through legislatures or executive orders. The strength of these state immunities, as well as the strength of arbitration agreements, should be considered when determining whether to litigate in the state court. The implications of the Centers for Medicare & Medicaid Services (CMS) waivers were reviewed. Some parties indicate that the CMS waivers have had a negative impact on care. CMS has added and terminated waivers throughout the public health emergency (PHE) as needed. The speakers stressed the importance of knowing what regulations were in place at the time of the alleged incident, including the [waivers](https://www.cms.gov/files/document/long-term-care-facilities-cms-flexibilities-fight-covid-19.pdf) related to: - Telehealth - QAPI (Quality Assurance and Performance Improvement), which allowed providers to narrow the scope of their plans to focus on adverse events and infection control (waiver terminated May 7, 2022) - Discharge planning, which waived the use of standardized patient assessment data to expedite discharge and movement of residents among care settings (waiver terminated May 7, 2022) - Clinical records, to allow for ten working days to provide copy of records (waiver terminated May 7, 2022) - Paid feeding assistants, to allow for one hour of training rather than eight hours (waiver terminated June 6, 2022) - Training of CNAs to allow for employment of uncertified aides for longer than four months (waiver terminated June 6, 2022) When preparing for the defense of COVID related cases, the speakers remarked that many facilities had put their own systems in place even though the waivers were declared. These actions should be emphasized, as they went above and beyond the requirements of CMS and had a positive impact on resident care. It is very important to be aware of any proprietary software programs utilized by a facility, including specific reports, visitor tracking, electronic medical records, and floor plans. They also discussed reviewing the survey history of a facility, particularly infection prevention and control. Knowing the relevant guidance at the time of the event is critical. The speakers noted that at this point COVID cases should be litigated and tried to verdict. _Excelas has extensive experience assisting clients in managing claims and litigation related to COVID. The Excelas _[_Comprehensive Integrated Timeline Tool (CITT)_](/defense-readiness) _contains an archive of over 10,000 documents of Federal and State Guidance (for select states). Juxtaposing the data from the individual’s medical records, the healthcare facility’s policies/procedures, and published guidelines/standards in an _[_easy-to-read timeline_](/defense-readiness)_ allows counsel to clearly tell the story of the case and demonstrate the practices and the standards in place at the time the alleged event occurred. _ #### Comprehensive Integrate Timeline Tool Demonstration [Watch the video on YouTube](https://www.youtube.com/watch?v=zJJW9p0erMU) ## Industry Experts: Long-Term Care Issues Post-COVID https://excelas1.com/blog/industry-experts-long-term-care-issues-post-covid ### Industry Experts: Long-Term Care Issues Post-COVID _2022-11-10 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > In the DRI Long-Term Care and Senior Living session titled “Post-COVID Headwinds: An Overview of Senior Living and Long-Term Care Challenges,” industry experts reviewed the impact of the White House Nursing Home Initiative, trends in insurance claims and litigation, and CMS initiatives. The following summarizes the insightful overview provided by Tara Clayton of Marsh, Christopher [...] In the DRI Long-Term Care and Senior Living session titled “Post-COVID Headwinds: An Overview of Senior Living and Long-Term Care Challenges,” industry experts reviewed the impact of the White House Nursing Home Initiative, trends in insurance claims and litigation, and CMS initiatives. The following summarizes the insightful overview provided by Tara Clayton of Marsh, Christopher Puri of Bradley Arant Boult Cummings, and Reina Reddish of the Tennessee Health Care Association on the impact the pandemic has had on long-term care providers and ways to prepare for the resulting governmental changes and legal challenges. ###### Background The Public Health Emergency was issued by HHS on January 31, 2020, with the Center for Medicare and Medicaid (CMS) quickly following with waivers (CMS 1135 Waivers) impacting long-term care facilities, including the suspension of normal survey activities, visitation, and restriction of internal activities. Citing CMS data, long-term care facilities accounted for over 154,000 COVID deaths and over 1.16 million cases (through 8/22/22). While dealing with this unprecedented outbreak, nursing homes have lost 15% of their workforce, or 238,000 caregivers according to the Bureau of Labor Statistics. Assisted living and nursing homes experience reduced census starting early in the pandemic, which rebounded in mid 2022 to about 79% according to NIC. ###### White House Nursing Home Initiative In February 2022, the White House released a plan titled “Protecting Seniors by Improving Safety and Quality of Care in the Nation’s Nursing Homes.” The objectives of the program include sufficient and adequately trained staff, accountability for poor performing nursing homes and transparency of information to the public. The panel highlighted how each of these objectives impact facilities and their defense counsel: - Minimum Staffing: Improved staffing is a high priority of CMS, and they plan to issue proposed rules within one year.The SNF Value Based Purchasing Program will include a scoring measure for total nurse staffing hours per resident day in FY 2026.Many facilities report lack of availability of health care workers and concerns about funding minimum staffing mandates.CMS has added weekend staffing and total staff turnover measures to the Nursing Home Compare website.Providers question if non-compliance with mandated staffing levels will create negligence issues. - Ownership Data: In follow-up to improving transparency, CMS is publishing data on hospital and nursing home ownership, including mergers, acquisitions, and consolidations. This Skilled Nursing Facility Change of Ownership database includes data beginning on January 1, 2016. This database will facilitate searches and analysis by opposing counsel.In addition to ownership transparency, the White House initiative seeks to require minimum corporate competency in order to participate in Medicare and Medicaid. The administration is seeking enforcement authority for CMS at the ownership level, rather than at the individual provider level as it currently stands.Private equity ownership of LTC facilities is a particular target of policy makers in Washington, who allege PE owned facilities put “profits before people.” - Enforcement and Survey Initiatives CMS is expanding enforcement actions against “poor performing facilities” based on off-site desk reviews.Civil penalties for non-compliance can now be per-day rather than per-instance, which could be excessive with the current survey backlog.The administration is seeking to increase the dollar limit on per-instance penalties to $1 million.The administration is asking Congress for a 25% increase ($500 million) in funding for nursing home survey activities.CMS’ Special Focus Facility program of the poorest performing nursing homes is being overhauled to include more facilities and tougher enforcement actions. ###### Claims Trends Insurance costs for facilities are rising, with resident falls as the primary driver in both assisted living and skilled nursing. Independent living facilities are also experiencing an increase in claims as more services are needed with an increase in age and acuity of residents. Short staffing and the use of agency staff is also impacting claims, while inflation is impacting claim values. They also discussed the increase in claims due to spoilation, or the destruction or alteration of evidence resulting from a party’s failure to preserve evidence relevant to a litigation or investigation. Severe sanctions may be incurred due to spoilation. It is important for facilities to understand what documents are needed in a response, which can be more difficult for those not using electronic medical record systems. The group commented that claim numbers have increased; however, more are focused on traditional negligence claims than issues with COVID. Thirty eight states had COVID liability protections during the pandemic, but not all applied to all types of long-term care facilities and in some states immunity protections have been pared back or expired. The panel discussed ways to help providers “tell their story” about their response to the challenges of the pandemic. This is important considering the “trust gap” created by restrictions on visitation resulting in the public perception of a lack of transparency. Statistics on the number of cases and deaths in long-term care facilities have added to the difficult scenario in litigating claims post-COVID. _Excelas has extensive experience assisting clients in managing claims and litigation related to COVID. Excelas’ _[_Comprehensive Integrated Timeline Tool (CITT)_](/defense-readiness) _contains an archive of over 10,000 documents of Federal and State Guidance (for select states). This data is used to demonstrate the practices and the standards at the time an event occurred. With the expected changes in survey criteria as a result of the administration’s Nursing Home Initiative, a database containing these guidelines in a quickly accessible format is an excellent tool in assisting in the defense of COVID-related claims and litigation._ [Subscribe to our Newsletter](/contact) [Comprehensive Integrated Timeline](/defense-readiness) [See the Latest Industry News](/blog/categories/company-news) ## Defending Staffing Allegations in Long-Term Care https://excelas1.com/blog/defending-staffing-allegations-in-long-term-care ### Defending Staffing Allegations in Long-Term Care _2022-10-26 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > providers must aggressively defend understaffing cases in long-term care, as staffing data does not elucidate the full story of care provided Excelas was fortunate to attend the presentation by Lynn Fieldhouse of Signature Healthcare and Drew Graham of Hall Booth Smith on “Issues, Considerations, and Defense Strategies for Dealing with the Staffing Crisis” at the [DRI](https://www.dri.org/) Senior Living and Long-Term Care Seminar. It was clear from their remarks that providers must aggressively defend understaffing cases, as staffing data does not elucidate the full story of care provided. [Provider of Care Report](/clinical-analysis) [Care Calendar/Touch Chart](/clinical-analysis) Mr. Graham pointed out that there have been some highly publicized verdicts which are impacting jury decision making, as well as creating inflated settlements. The defense needs to attack the “profits over people” and “intentional understaffing” narrative which is being promulgated by plaintiff counsel, the media, some regulatory agencies, and the White House. Ms. Fieldhouse emphasized the commitment of nursing home staff to the care of the residents, particularly during the pandemic, as demonstrated by their willingness to work overtime hours and perform functions not normally included in their job descriptions. An overview of the impact COVID-19 had on the nursing home healthcare workforce was presented. Long-term care was the hardest hit sector of the healthcare industry, with a loss of over 237,000 jobs, resulting in the lowest level of labor in 15 years (per the Bureau of Labor Statistics). A [study](https://www.kff.org/coronavirus-covid-19/issue-brief/nursing-facility-staffing-shortages-during-the-covid-19-pandemic/) revealed that staffing shortages vary widely by state, which may be attributed to local economies and labor forces. Based on these variations, defense counsel should thoroughly review the labor market in the area in which the facility is located. Long-term care facilities have utilized a variety of measures to retain and attract staff. A study by the American Health Care Association ([AHCA](https://www.ahcancal.org/News-and-Communications/Fact-Sheets/FactSheets/SNF-Survey-June2022.pdf)) indicated that nine out of 10 providers have increased wages and bonuses, 71% have paid for staff training and education, and 81% have implemented programs to strengthen the workplace culture. Even with these measures, providers report the lack of interested or qualified candidates as the top obstacle in hiring new staff. These staffing challenges result in 73% of nursing homes reporting concern about having to close their facility. The Biden Administration’s nursing home reform programs announced in February of 2022 include the establishment of a federal minimum staffing level. It is estimated that the proposed staffing levels, which are not currently met by the nation’s nursing homes, would [increase operating expenses by $4.9 billion per year](https://academic.oup.com/innovateage/article/6/4/igac017/6551701). Publicly available data on staffing, including the Payroll Based Journal (PBJ), acuity data, surveys, COVID-19 reporting, and turnover data are all components of litigation facing long-term care facilities. Staffing data can be obtained through multiple sources, including Form 2567-Statement of Deficiencies, timeclock punches, staffing sheets, and Medicare Cost Reporting. Among several components of an effective defense against staffing allegations, Mr. Graham included the use of experts in staffing, economics, and financial and cost reporting. The use of the PBJ staffing data during the residency dates is important in showing the absence of staffing concerns. To quickly assess the workforce status, Excelas’ clients utilize the following tools in defending staffing issues: - Their PBJ staffing data during the residency dates which identifies staffing levels during a certain period and can provide a comparison with other facilities in a particular geographic area. - [Provider of Care Report](/clinical-analysis) which provides a quick review of all staff who documented in the medical record, the date care was administered, and a hyperlink to the page in the record where the entry was documented. - [Care Calendar/TouchChart](/clinical-analysis) which is a customizable, interactive calendar of all healthcare provider and resident interactions. [**Contact Excelas today for a demonstration**](/about/technology#nf-form-2-cont)** **of these powerful tools when defending cases involving staffing issues. ## Regulatory Updates: Long-Term Care Staffing https://excelas1.com/blog/regulatory-updates-long-term-care-staffing ### Regulatory Updates: Long-Term Care Staffing _2022-10-13 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > The latest information on CMS’s staffing mandate for long-term care facilities: F725 Sufficient Nursing Staffing. ![thumbnail](https://excelas1.com/api/media/file/2022-10-thumbnail.jpg) While the federal minimum staffing mandate continues to loom, the updated [guidance](https://www.cms.gov/medicareprovider-enrollment-and-certificationsurveycertificationgeninfopolicy-and-memos-states-and/revised-long-term-care-surveyor-guidance-revisions-surveyor-guidance-phases-2-3-arbitration) from the Centers for Medicare & Medicaid Services (CMS) for long-term care facility surveyors becomes effective October 24, 2022. This update includes instructions related to the F-tag, or federal nursing home regulation, F725 Sufficient Nursing Staffing. This guidance has been changed to direct surveyors to apply federal standards even in states with minimum staffing laws and regulations. As discussed by [Drew Graham](https://hallboothsmith.com/attorney/drew-graham/) of Hall Booth Smith at a recent DRI meeting, the message delivered by this CMS guidance is that compliance with state minimums will not represent substantial compliance with the federal Requirements of Participation (RoP). He notes this is a significant regulatory change which could impact how state and federal staffing minimums will be viewed by expert witnesses and juries. Under F725, facilities must provide services by sufficient numbers of each licensed nurses (RNs, LPNs) and other nursing personnel, including nurse aides, on a 24-hour basis to provide nursing care to all residents in accordance with their medical conditions, diagnoses, and plans of care. CMS provides a facility assessment template to assist in developing staffing plans, which includes resident diseases, conditions, physical limitations, cognitive limitations, and acuity. Under the [Revised Surveyor Guidance](https://www.cms.gov/files/document/qso-22-19-nh.pdf-0), surveyors are directed to use Payroll Based Journal (PBJ) staffing data to investigate potential non-compliance with nurse staffing requirements, including lack of a registered nurse for eight hours each day, or lack of licensed nursing for 24 hours a day. Surveyors will review this data prior to any survey to identify possible problems and/or specific dates where there were potential staffing issues. Surveyors are directed to cite F725 “only if there are deficiencies related to the **sufficiency **of nursing staff.” The Guidance further notes “A staffing deficiency under this requirement may or may not be directly related to an adverse outcome to a resident’s care or services. It may also include the **potential **for physical or psychosocial harm.” As directed under the [Procedures and Probes: §483.35](https://www.cms.gov/medicare/provider-enrollment-and-certification/guidanceforlawsandregulations/downloads/appendix-pp-state-operations-manual.pdf), “Although federal regulations do not define minimum nursing staff ratios, many States do. …if a facility meets the State’s staffing regulations that is not, by itself, sufficient to demonstrate that the facility has sufficient staff to care for its residents.” Although a state’s minimum staffing ratios have been met, a facility may need more staff to meet the needs of its residents. The Procedures further define the type of information to be obtained through record reviews, observations, and interviews, including: - When interviewing staff, residents, and others, are concerns raised with the amount of time staff are available for care and services? - Does the type and level of staff reflect the facility assessment? - Does the workload of nursing staff allow for meetings, training, and breaks? - Are there enough licensed staff to provide services to residents and monitor aides? - Do residents and families report that nursing staff are responsive? - Are there indications of delays in responsiveness (e.g., odors, residents calling out or wandering)? - Are there indications of the use of devices to manage resident behaviors (e.g., alarms, sedations)? - Are residents who are unable to communicate checked frequently? Have care problems (such as skin integrity) been associated with a specific unit or day? - Have overtime hours increased? - How quickly are shifts filled when staff call off? [Staffing Scorecard](/case-triage) [Provider of Care Report](/clinical-analysis) [Care Calendar](/clinical-analysis) [Subscribe to our Blog](https://excelas1.us5.list-manage.com/subscribe?u=9b42ca673a356304a9f365330&id=f7fccb21c7) Facilities must ensure documentation in the above areas is consistent and complete, as multiple source records become relevant in situations where staffing is at issue. As a result of the pandemic, the staffing crisis introduced unprecedented challenges including the increased [use of contract staff](https://skillednursingnews.com/2022/09/powerful-data-could-inform-cms-nursing-home-minimum-staffing-standards/). The percentage of agency staff contributed to the total hours per resident day, which nearly tripled from 3% in Q1 2019 to 8.4% in Q4 2021. Integration and training of agency staff must be clearly reflected in all relevant records. In staffing related cases, Mr. Graham emphasized the importance of understanding the state staffing minimums in the applicable state and defending against CMS’s attempts to preempt state law through regulations. He also emphasized reviewing the facility’s PBJ file as well as any previous citations under F725. [Excelas](/blog/staffing-crisis-in-long-term-care) has been following the staffing situation in long-term care and continues to enhance tools to assist in the defense of cases alleging inadequate care due to staffing. To quickly assess the workforce status, Excelas’ clients utilize the [Staffing Scorecard](/case-triage), the [Provider of Care Report](/clinical-analysis) and the [Care Calendar/TouchChart](/clinical-analysis). Contact Excelas today for a demonstration of these powerful tools. ## An Infectious Disease Specialist Discusses COVID-19 Transmission https://excelas1.com/blog/infectious-disease-specialist-discusses-covid-transmission ### An Infectious Disease Specialist Discusses COVID-19 Transmission _2022-09-28 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Transmission risks and infection prevention recommendations for COVID-19 in Long-Term Care Facilities as presented at the DRI conference 2022. Excelas had the opportunity to hear Amy J. Ray, MD, present “COVID-19 Transmission Risks in Long-Term Care Facilities” at the DRI Senior Living and Long-Term Care Seminar in Nashville. Dr. Ray is the Director of Infection Prevention and Regulatory Affairs at The MetroHealth System in Cleveland, Ohio. She provided excellent insight on transmission risks and infection prevention in long-term care facilities. ###### **Transmission Risks** Dr. Ray indicated that long-term care settings were a perfect storm: vulnerable patients plus a deadly virus plus reliance on caregivers in a congregate environment. As a result, LTC facilities had a higher prevalence of infection and death as compared to the general population. Of note, there was not a direct relationship between the CMS Five Star Rating system and the spread of infection. Several factors which influence a facility’s ability to limit the spread of infection, include, but are not limited to: - Facility size - Geographic location and the infection numbers in the community - Adequate staffing - Facility occupancy - Resident demographics - Prior survey findings, including adequate infection control - Quality measures - Vaccination rates Dr. Ray also acknowledged that there has been an excess of non-COVID morbidity and mortality in LTC residents, much of which may be attributed to loneliness and isolation. She cites a publication by the National Academies of Sciences, Engineering, and Medicine which noted “social isolation itself may place residents at risk of premature death.” ![resize](https://excelas1.com/api/media/file/2022-09-resize.jpg) ###### **Infection Prevention** She reviewed strategies to interrupt transmission, while emphasizing that it is difficult to measure the effectiveness of any specific intervention in a pandemic situation, as multiple interventions are simultaneously employed. She described the “hierarchy of controls” used to mitigate infection as a pyramid, with the most effective measures forming the base, and the least effective measures at the top. The base of the pyramid is elimination of the threat, which is the most effective means of protection against infection and requires the least amount of human intervention. In a situation such as COVID-19, when the virus is entering the facility via humans, including visitors, staff and new residents, even strict limitations on entering the facility can still result in introduction of the virus. High vaccination rates in a facility became a component of elimination, as vaccinated residents had the direct benefit of reduced infection or severity, and unvaccinated residents benefited indirectly through fewer opportunities for infections to occur. Engineering Controls are the next tier in the pyramid and include isolating infected patients or cohorting infected patients in a designated area. Social distancing is also an engineering control, including the elimination of communal dining and other activities. Masking is also considered an engineering control, but as with the other controls in this category is limited in effectiveness as it relies on consistent human behavior. Administrative Controls are the “tip” of the hierarchy of infection mitigation and include the use of PPE and universal testing. PPE must be consistently used appropriately, and testing is subject to correct test performance, false positives/negatives, and compliance with results. Again, human behavior, as well as staffing constraints, impact the effectiveness of administrative controls. ###### **Defending the Response** Dr. Ray reported that a standard tool to assess the adequacy of COVID-19 response by LTC facilities does not exist; however, reviewing a facility’s response in relation to the hierarchy of controls can serve as a basis for defense. The Excelas [Comprehensive Integrated Timeline Tool (CITT)](/defense-readiness) incorporates an individual patient’s medical records (vaccine status as a control to eliminate the threat – the first hierarchy) with an organization’s policies and procedures (such as visitation, staff training, etc. – engineering controls) and infection mitigation, availability and utilization of PPE, testing, etc. – the facility’s administrative controls. All of the hierarchy of controls can be layered and merged with local, state, and federal guidelines. This integration of data can be used to demonstrate the practices and the standards at the time an event occurred. The CITT is continually updated as new policies, procedures, regulations, and guidelines become available. Capturing any new directives, while maintaining the previous guidance in the CITT, facilitates a quick basis for comparison to facility policy and procedure changes. Further, juxtaposing the data from the individual’s medical records, the healthcare facility’s policies/procedures and published guidelines/standards in an [easy-to-read timeline](/defense-readiness) allows counsel to clearly tell the story of the case. Contact Excelas today for a demonstration of how our COVID-19 Comprehensive Integrated Timeline Tool can assist you in defending COVID related claims and litigation. ## 2022 DRI Senior Living and Long-Term Care Litigation Seminar https://excelas1.com/blog/dri-senior-living-and-ltc-litigation-seminar-2022 ### 2022 DRI Senior Living and Long-Term Care Litigation Seminar _2022-08-24 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Excelas is attending the 2022 DRI Senior Living and Long-Term Care Litigation Seminar in Nashville in September. ![DRI](https://excelas1.com/api/media/file/2021-08-logo-1-e1628632186568.png) Excelas is looking forward to reconnecting with clients and friends in Nashville for the [DRI Senior Living and Long-Term Care Litigation Seminar](https://www.dri.org/education-cle/seminars/2022/senior-living). As always, the leadership team at DRI has assembled an exciting group of expert speakers on key topics impacting the industry. Several sessions on the agenda are devoted to the challenges and trends involving COVID-19 litigation. Long-term care was, and continues to be, uniquely impacted by the pandemic. Issues including, but not limited to, staffing, infection control, changing governmental guidelines and mandates, and vaccinations have challenged facilities in unprecedented ways. [Industry experts](https://www.mcknights.com/blogs/guest-columns/maintaining-your-covid-19-library-of-materials/) emphasize the importance of maintaining a comprehensive library of COVID-19 documentation to defend cases efficiently and effectively. Excelas’ clients benefit from such a “library” through our COVID-19 [Comprehensive Integrated Timeline Tool](/defense-readiness) (CITT). The COVID-19 CITT contains over 10,000 documents of federal, state, and local guidelines, which are continually updated as new directives are issued. The CITT database facilitates a quick comparison of these governmental guidelines with corporate/facility specific policies and procedures at any point in time to assess compliance with standards of care. Additional presentations including class action trends, deposition preparation, and law firm analytics and management round out an excellent agenda covering the current challenges in long-term care. Between the educational sessions and networking opportunities, Excelas will be listening for opportunities to continue to improve our innovative tools that support our clients in defending complex long-term care cases. See you in Nashville September 7-9! ## Nursing Home Ownership and Quality of Care https://excelas1.com/blog/nursing-home-ownership-and-quality-of-care ### Nursing Home Ownership and Quality of Care _2022-08-11 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > The Fact Sheet issued in February by the White House addressed improving safety and quality of care in nursing homes. The statement cited studies that nursing homes owned by private equity firms tended to have “significantly worse outcomes for residents,” which is disputed by the nursing home industry. Regardless of ownership structure, long-term care facilities are facing significant staffing and economic pressures. Whether public or private, for-profit or not-for-profit, providing high quality care to residents is the primary focus in this time of unprecedented challenges. The Fact Sheet issued in February by the White House addressed improving safety and quality of care in nursing homes. The statement cited studies that nursing homes owned by private equity firms tended to have “significantly worse outcomes for residents,” which is disputed by the nursing home industry. Regardless of ownership structure, long-term care facilities are facing significant staffing and economic pressures. Whether public or private, for-profit or not-for-profit, providing high quality care to residents is the primary focus in this time of unprecedented challenges. ###### **Government Perspectives** The [Protecting Seniors by Improving Safety and Quality of Care in the Nation’s Nursing Homes](https://www.whitehouse.gov/briefing-room/statements-releases/2022/02/28/fact-sheet-protecting-seniors-and-people-with-disabilities-by-improving-safety-and-quality-of-care-in-the-nations-nursing-homes/) Fact Sheet asserted that private equity firms invested over $100 billion in nursing homes in 2018, with 5% of the nation’s facilities owned by PE firms. It further referenced studies that residents in PE owned nursing homes are [11.1%](https://jamanetwork.com/journals/jama-health-forum/fullarticle/2786442) more likely to have preventable emergency visits, had excess mortality of [10%](https://www.nber.org/system/files/working_papers/w28474/w28474.pdf), and had a COVID-19 death rate of [40%](https://ourfinancialsecurity.org/wp-content/uploads/2020/08/AFREF-NJ-Private-Equity-Nursing-Homes-Covid.pdf) above statewide averages. These statistics are used to support initiatives to give CMS new authority to require minimum corporate competency to participate in Medicare and Medicaid programs. This includes a proposed “robust compliance program” with $500 million in funding to perform inspections and impose meaningful penalties when deficiencies are found. In addition, the administration seeks to increase per instance financial penalties from $21,000 to $1 million. In April, CMS began releasing [data](https://skillednursingnews.com/2022/04/updated-cms-sets-its-sights-on-nursing-home-ownership-turnover-in-unveiling-new-database/) from the provider enrollment, chain, and ownership system (PECOS), which contains corporate ownership and operating data. A primary focus of this initiative is public transparency, particularly the role of private equity, REITs, and other investment structures. Some [states](https://www.mcknights.com/news/stricter-requirements-for-nursing-home-buyers-certainly-coming/) have already put forth new regulations for nursing home buyers to demonstrate financial stability and corporate history. These requirements are intended to increase transparency and ensure buyers have a good reputation. While generally supported by providers, there is concern that the process could delay transactions and ultimately impact access to care. ![nursing home staffing](https://excelas1.com/api/media/file/2022-08-pexels-kampus-production-8949835-scaled.jpg) ###### Industry Perspectives The American Health Care Association and National Center for Assisted Living (AHCA/NCAL) published a fact sheet in [response](https://www.ahcancal.org/News-and-Communications/Blog/Pages/Myths-vs--Facts-Private-Equity-and-Nursing-Homes.aspx) to the White House statement related to private equity ownership. They note that 63% of nursing homes are owned by operators with 10 or less facilities, and that only 12% of nursing home beds are run by the 10 largest operators. The $100 billion investment by PE in nursing homes referenced by the White House Fact Sheet was in fact investments that included all areas of healthcare. Private equity investment dollars have actually shifted to areas such as dermatology and orthopedics since 2010. Regarding quality, particularly related to the pandemic, an October 2020 [_JAMA_ study](https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2772306)** **of over 11,000 nursing homes revealed “no statistically significant differences in staffing levels, COVID-19 cases or deaths, or deaths from any cause between PE nursing homes and facilities with other ownership types.” A [review](https://www.ahcancal.org/News-and-Communications/Fact-Sheets/FactSheets/Analysis-COVID-Outbreaks-in-Nursing-Homes.pdf) of scientific research conducted by various organizations, including Harvard Medical School, The University of Chicago, and the U.S. Government Accountability Office, found that ownership type and quality performance were not strong indicators of how prepared a nursing home was for the pandemic, nor were their previous ratings or infection control citations. Community spread was the main driver in the spread of COVID-19 among LTC residents, who are more susceptible to the virus due to age and underlying medical conditions. AHCA and LeadingAge, which represents not-for-profit organizations, have been advocating for lawmakers to prioritize long-term care residents and staff by providing relief from underfunding and support for workforce improvements. They have put forth many proposals, such as the [Care For Our Senior Act](https://www.ahcancal.org/Advocacy/Pages/Care-For-Our-Seniors-Act.aspx), which includes oversight and assistance for chronic poor performing nursing facilities and change of ownership. In June, the National Investment Center (NIC) released a [study](https://www.nic.org/insider/nic-insider-newsletter-july-2022/) on the access to capital in the nursing home industry. A main takeaway of the paper noted “the current public-private partnership for skilled nursing facilities is failing.” The conclusions urge policymakers to rethink the different types of public and private capital funding available to better serve patients and staff. ###### Defense Perspectives In any type of ownership structure, quality of care for residents in long-term care facilities is paramount. When that quality is called into question, facilities must be able to demonstrate the type and level of care that was provided through documentation in the resident’s medical records, as well as through policies, procedures, and other business records. [Excelas](/about) has the tools and the expertise to assist long-term care facilities in conducting audits, assessing documentation quality and completeness, integrating facility policies and procedures with individual resident medical records, reviewing staffing records, and preparing comprehensive analyses for facility administrators, risk managers, insurers, and counsel. #### Subscribe to our Newsletter [Subscribe to our Newsletter](https://excelas1.us5.list-manage.com/subscribe?u=9b42ca673a356304a9f365330&id=f7fccb21c7) Stay current with healthcare and senior care provider regulatory trends, news, and solutions delivered right to your inbox. ## Staffing Crisis in Long-Term Care https://excelas1.com/blog/staffing-crisis-in-long-term-care ### Staffing Crisis in Long-Term Care _2022-08-02 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Across the country, nursing homes are limiting admissions due to staffing shortages. Hospitals and families are being impacted as seniors face restricted access to appropriate care. Long-term care leaders are asking lawmakers for resources to help expand staffing options; however, looming federal mandates on staffing minimums are predicted to make the situation worse. Across the country, nursing homes are [limiting admissions](https://www.ahcancal.org/News-and-Communications/Press-Releases/Pages/Historic-Staffing-Shortages-Continue-To-Force-Nursing-Homes-To-Limit-New-Admissions,-Creating-Bottlenecks-at-Hospitals-and-.aspx) due to staffing shortages. Hospitals and families are being impacted as seniors face restricted access to appropriate care. Long-term care leaders are asking lawmakers for resources to help expand staffing options; however, looming federal mandates on staffing minimums are predicted to make the situation worse. ###### **Staffing Statistics / Patients Searching for Beds:** According to the Bureau of Labor Statistics, nursing homes have [lost 241,000](https://www.ahcancal.org/News-and-Communications/Fact-Sheets/FactSheets/BLS-MARCH2022-JOBS-REPORT.pdf) (15.2% of its workforce) since the start of the pandemic. In a recent [survey](https://www.ahcancal.org/News-and-Communications/Press-Releases/Pages/Survey-Nursing-Homes-Still-Facing-Staffing-%26-Economic-Crisis.aspx) conducted by the American Health Care Association (AHCA), 61% of nursing homes are limiting new admissions, and 73% are concerned they will have to close facilities due to staffing shortages. Over half of the nursing homes surveyed indicated they cannot sustain these increased costs and operating losses for more than one year. AHCA/NCAL reports that [despite having available beds](https://www.ahcancal.org/News-and-Communications/Press-Releases/Pages/Historic-Staffing-Shortages-Continue-To-Force-Nursing-Homes-To-Limit-New-Admissions,-Creating-Bottlenecks-at-Hospitals-and-.aspx), nursing homes across the country do not have enough workers to care for their residents. For example, in Massachusetts, over 1,000 patients are waiting to be discharged from hospitals but are being denied admission to nursing homes due to short staffing. ###### **Federal Mandates / Industry Proposals**: In February 2022, the [White House](https://www.whitehouse.gov/briefing-room/statements-releases/2022/02/28/fact-sheet-protecting-seniors-and-people-with-disabilities-by-improving-safety-and-quality-of-care-in-the-nations-nursing-homes/) issued a Fact Sheet entitled Protecting Seniors by Improving Safety and Quality of Care in the Nation’s Nursing Homes. This statement included implementation of minimum staffing standards by CMS. CMS is [studying](https://skillednursingnews.com/2022/07/cms-outlines-multi-faceted-approach-to-nursing-home-minimum-staffing-requirements/) minimum staffing requirements and plans to have a proposal on the mandates in 2023. In the meantime, [Payroll-Based Journal](https://skillednursingnews.com/2022/07/pbj-data-use-in-surveys-serves-as-breadcrumbs-to-looming-federal-staffing-mandate/) staffing data will be used for inspections beginning in October 2022. Surveyors will use the PBJ data to identify non-compliance with staffing, which includes registered nurse and licensed nursing hours. Nursing shortages are affecting all areas of healthcare, but impacting long-term care the hardest. According to the president and CEO of AHCA, these “unfunded staffing mandates would only make the crisis worse. Congress must invest in our long-term care workforce and protect access to care for millions of seniors.” As of July 2022, CMS is including staff turnover rates on the Medicare [Care Compare](https://www.medicare.gov/care-compare/#search) website. These measures include: - Total nurse staffing hours per resident, per day on weekends. - Total nursing staff turnover within a given year. - Annual registered nurse turnover. - Annual number of administrators who left the nursing home. The National Academies of Science, Engineering, and Medicine released “[The National Imperative to Improve Nursing Home Quality](https://leadingage.org/regulation/long-awaited-nasem-nursing-home-quality-report-released) – Honoring the Commitment to Residents, Families, and Staff” in April 2022. This 605-page report provided seven goals to ensuring high-quality care, emphasizing that each recommendation is interdependent. One of the goals is to ensure a well-prepared, empowered, and appropriately compensated workforce, which the report notes is contingent on sufficient reimbursement. [PBJ and Staffing Mandate](/blog) [Sign up for our Newsletter](https://excelas1.us5.list-manage.com/subscribe?u=9b42ca673a356304a9f365330&id=f7fccb21c7) [Medical Record Analysis](/clinical-analysis) [Follow us on LinkedIn](https://www.linkedin.com/company/excelas-llc/) ###### **Impact on Care / Defending Staffing-Related Allegations:** According to [CNA](https://www.cna.com/web/wcm/connect/5d883ee0-1198-455e-acee-18ee8c0a5c64/CNA-Carefully-Speaking-Insufficient-Staffing.pdf?MOD=AJPERES) insurance, insufficient staffing is often cited by plaintiff attorneys in both negligence and wrongful death lawsuits. Liability claims that identify a lack of monitoring due to low staffing levels include, but are not limited to: - Falls. - Pressure injuries. - Infections. - Preventable harm. - Inadequate staff interaction with residents. - Delayed response to declines in physical condition. - Failure to instruct the resident to call for assistance. - Untimely notification of family/physician on adverse incidents/changes in condition. As staffing levels are clearly tied to quality of care, it is critical to the defense to have the means to quickly assess workforce status. The Payroll-Based Journal staffing data that nursing homes submit to the CMS website each quarter is public, searchable, and permanent. Excelas’ [Staffing Scorecard](/case-triage) makes this data easily accessible and useful to facility administrators, their insurers, and legal representatives. These reports: - Identify fluctuations or inconsistencies that occurred in staffing levels during a certain period. - Quickly compare a facility’s staffing levels with others in a specified geographic footprint. - Dig deeper into a facility’s particular staffing issues. - Level the playing field by knowing the information plaintiffs are using to evaluate cases and potentially create a negative staffing narrative. Contact Excelas today for a demonstration of how the Staffing Scorecard can be an effective tool in defending long-term care cases. ## PREP Act in Long-Term Care Settings Update https://excelas1.com/blog/prep-act-in-long-term-care-settings-update-july-2022 ### PREP Act in Long-Term Care Settings Update _2022-07-19 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Due to state statute of limitations, many firms are rushing to file claims related to incidents from the early days of the pandemic. As of June 2022, the Hunton Andrews Kurth COVID-19 Complaint Tracker reports 541 suits have been filed against healthcare providers, with wrongful death cases accounting for over 66% of those cases. Defense attorneys have argued that COVID-related cases fall under the PREP Act and should be heard in federal court. To date, judges in U.S. District and in Court of Appeals have consistently remanded cases to state courts. Due to state [statute of limitations](https://skillednursingnews.com/2022/05/covid-related-nursing-home-lawsuits-to-skyrocket-with-protections-on-shaky-ground/), many firms are rushing to file claims related to incidents from the early days of the pandemic. As of June 2022, the Hunton Andrews Kurth [COVID-19 Complaint Tracker](https://www.huntonak.com/en/covid-19-tracker.html) reports 541 suits have been filed against healthcare providers, with wrongful death cases accounting for over 66% of those cases. Defense attorneys have argued that COVID-related cases fall under the [PREP Act](/blog/prep-act-and-state-laws-in-ltc-settings) and should be heard in federal court. To date, judges in U.S. District and in Court of Appeals have consistently remanded cases to state courts. ![COVID suits federal court](https://excelas1.com/api/media/file/2022-07-pexels-sora-shimazaki-5668481-scaled.jpg) The following cases have been decided at the Circuit Court of Appeals level: - October 2021: Third Circuit Court of Appeals affirmed the District Court’s remand of the _Estate of _[_Maglioli v. Alliance HC Holdings, LLC_](https://www.leagle.com/decision/infco20211020087). - February 2022: Ninth Circuit Court of Appeals affirmed the District Court’s remand to state court for two cases, [_Martin v. Filart_](https://www.leagle.com/decision/infco20220225104) and [_Saldana v. Glenhaven Healthcare, LLC_](https://www.leagle.com/decision/infco20220222147)_._ - March 2022: Fifth Circuit Court of Appeals remanded [_Mitchell v. Advanced HCS, LLC_](https://www.leagle.com/decision/infco20220311092) and [_Perez Ex Rel. Estate of Lozano v. Southeast SNF_](https://www.leagle.com/decision/infco20220401092). - June 2022: Seventh Circuit Court of Appeals remanded [_Martin v. Petersen Health Operations, LLC_](https://casetext.com/case/martin-v-petersen-health-operations-llc-1). The judge, referencing the other appellate court opinions and over 80 district court decisions, indicated that the defendants failed to meet the federal officer removal standard, preemption under the PREP Act, and the conditions for federal jurisdiction under Appeals by the defense are pending in other Circuit Courts. One case is pending appeal by the plaintiff in the Ninth Circuit ([_Garcia v. Welltower_](https://www.leagle.com/decision/infdco20211012677)_,_ February 10, 2021). The district court had denied remand to state court and held that the PREP Act is a complete preemption statute based on a January 2021 HHS Counsel Advisory Opinion. However, other courts have commented that the reasoning in _Garcia_ was overruled by the Ninth Circuit’s decision in _Saldana_. Many courts have emphasized that the HHS Advisory Opinions “do not have the force or effect of law.” Excelas has gathered a review of relevant court cases and articles since the _Maglioli _decision which can be downloaded from our [home page](/). Whether the PREP Act or state immunity orders come into play, documentation of compliance with federal, state, and local guidelines is critical in managing lawsuits in long-term care. As previously explained in McKnight’s, [documentation](https://www.mcknights.com/marketplace/marketplace-experts/best-practices-for-protecting-leaders-and-facilities-from-covid-19-lawsuits/) should be digitized and include a chronology of actions taken to prevent or minimize the spread of the virus. Excelas’ [COVID-19 Comprehensive Integrated Timeline Tool](/defense-readiness) integrates federal and state guidance with a health care organization’s protocols juxtaposed to a patient’s medical records. This format allows for a clear chronology of events to assist in the defense of COVID-19 claims. [Follow our Newsletter](/contact) [COVID Timeline Tool](/defense-readiness) [Defending COVID-19 Claims](/blog) [Follow us on LinkedIn](https://www.linkedin.com/company/excelas-llc/) ## Growth through the development of the Comprehensive Integrated Timeline Tool (CITT) https://excelas1.com/blog/growth-through-the-development-of-citt ### Growth through the development of the Comprehensive Integrated Timeline Tool (CITT) _2022-07-05 · Filed under [Whitepaper](https://excelas1.com/blog/categories/whitepaper)_ > In 2020, Excelas began collecting and creating timelines of the government COVID-19 guidelines in a database of over 10,000 relevant documents In 2020 healthcare providers were challenged with managing COVID-19 patients while concurrently complying with federal and state guidelines that changed daily. Excelas began collecting and creating ‘timelines’ of the government guidelines in a database of over 10,000 relevant documents. This is available to all healthcare clients to assess compliance since the start of the pandemic. COVID Timeline Development Hours in 2020 = 756.75 hours COVID Timeline Sales in 2020 = $26,862 COVID Timeline Development Hours in 2021 = 2,619.00 hours COVID Timeline Sales in 2021 = $171,321 COVID Timeline Development Hours in 2022 YTD = 1,045.25 hours COVID Timeline Sales in 2022 YTD= $90,186 ## Resident Monitoring and Fall Prevention Technology and Privacy https://excelas1.com/blog/fall-prevention-technology-and-privacy ### Resident Monitoring and Fall Prevention Technology and Privacy _2022-06-22 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > According to CNA Aging Services 2022 Claim Report data, resident falls account for over 40% of closed claims across aging services settings, with an average paid indemnity of over $226,000. According to CNA Aging Services 2022 Claim Report data, resident falls account for over 40% of closed claims across aging services settings, with an average paid indemnity of over $226,000. - Falls are the most frequent allegation, accounting for 54.8% of assisted living setting claims and 36.1% in skilled nursing. - 8% of falls are unwitnessed. - 7% of fall related claims involve a resident who had a history of a previous fall, and those claims are typically more costly. This history may result in higher expectations on the facility to implement measures to prevent recurrence, including additional monitoring. - Care plans should reflect increased monitoring expectations for residents with a prior history of falls and dementia. ![pexels-cottonbro-8848780](https://excelas1.com/api/media/file/2022-06-pexels-cottonbro-8848780-scaled.jpg) As noted in CNA’s resource [Resident Falls: A Collaborative Strategy for Risk Mitigation](https://www.cna.com/web/wcm/connect/3f3b43d6-6d25-461a-9e95-6f6e44c316b2/CNA-September-Carefully-Speaking-Resident-Falls.pdf?MOD=AJPERES&CONVERT_TO=url&ContentCache=NONE&CACHEID=3f3b43d6-6d25-461a-9e95-6f6e44c316b2), no strategy can completely prevent falls. The most common fall-related allegations include failure to monitor, improper care by staff and unsafe residential environment. However, artificial intelligence (AI) systems including wearable sensors, video cameras and other tools can detect fall-related warning signs. In a recent technology [survey](https://resources.seniorhousingnews.com/the-state-of-senior-living-technology-2022) of senior living executives, fall detection and/or prevention and remote monitoring were ranked as the most important to the organization’s operations. ###### **Technology:** Many vendors offer AI tools to assist in fall detection and prevention. The usefulness of these monitoring tools was highlighted during the pandemic with residents isolated in their rooms and challenges with staffing. One [case example](https://seniorhousingnews.com/2019/08/19/carlton-senior-living-reduces-memory-care-falls-31-with-ai-tech/) using real-time video monitoring revealed over a 60% reduction in emergency services calls and reduced participating resident falls by 31%. Tools such as video management systems (VMS) allow for remote patient monitoring of several patients by one nurse, who can quickly alert a nearby caregiver to a potential behavior that could cause a fall. Some systems utilize advanced vision AI sensors to detect falls and notify response teams, with video clips blurred to protect privacy. Some systems collect data which can be used to predict falls and develop prevention strategies. ###### **Privacy/Legal Issues:** HIPAA privacy and security measures must be a component of any video monitoring program, as full-face photos/images are considered protected health information (PHI) if captured by a healthcare provider/HIPAA-covered entity. These measures include technical, physical, and administrative [safeguards](https://healthitsecurity.com/news/a-review-of-common-hipaa-physical-safeguards) to protect PHI. It is [recommended](https://www.modernhealthcare.com/technology/protecting-patients-live-video-monitoring-and-analytics) that cameras used in patient/resident rooms are non-recording in order to protect patient privacy and comply with HIPAA regulations. If there is storage of the recorded video, the facility must have clear policies and procedures in place in concerning access, use, and disposal. Videos should be encrypted, users should have unique log-in credentials, and audits should be conducted on a regular basis. Several states have passed laws permitting the use of cameras in resident rooms. These surveillance cameras play a role in fall monitoring, but also provide data regarding staff performance and quality of care. Most of these state [laws](https://www.legislature.ohio.gov/download?key=18131&format=pdf) include a requirement to obtain a roommate’s permission to install a camera and signage indicating a camera is in use. ###### **Comprehensive Program:** Video monitoring/AI systems are only part of an overall fall mitigation program, which includes, but is not limited to, pre-admission screening, resident and family education, staff training, updated comprehensive care plans (that may involve technology/AI utilization), assessment of environmental risks, and thorough documentation of incidents. Excelas can assist senior care facilities in the development/improvement of a fall mitigation program, as well as in the defense of a fall-related claim. Utilizing our [Comprehensive Integrated Timeline Tool](/defense-readiness), our medical-legal experts will review and develop a thorough analysis of the relevant documentation to assist administrators and counsel in risk mitigation and ultimately improving resident care. ![CITT Fall](https://excelas1.com/api/media/file/2022-06-CITT-Fall.png) ## The Advantages of Accreditation: Demonstrating Quality of Care in the Face of Rising Lawsuits https://excelas1.com/blog/demonstrating-quality-of-care-in-ltc-facilities ### The Advantages of Accreditation: Demonstrating Quality of Care in the Face of Rising Lawsuits _2022-06-08 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Demonstrating quality of care is more crucial then ever as wrongful death suits are being brought against long-term care providers. Senior living facilities, and nursing homes in particular, received a great deal of [negative](https://leadingage.org/sites/default/files/Opening%20Doors%20to%20Aging%20Services%20Research%20Executive%20Summary_7.26.2021_FINAL%20%281%29.pdf) media attention throughout the pandemic. There is now a surge of negligence and wrongful death [lawsuits](https://www.wsj.com/articles/nursing-homes-face-growing-number-of-lawsuits-from-covid-19-fallout-11649507400) from families of residents, with New York and Illinois [leading](https://skillednursingnews.com/2022/05/covid-related-nursing-home-lawsuits-to-skyrocket-with-protections-on-shaky-ground/) the way. More than ever, long-term care providers must demonstrate their ability to deliver high quality care. Families often turn to [Care Compare](https://www.medicare.gov/care-compare/), the [Five-Star Quality Rating System](https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/CertificationandComplianc/Downloads/usersguide.pdf) for nursing homes provided by Medicare to evaluate facilities. In addition, there are private entities that assess long-term care quality, including, but not limited to: [CARF](http://www.carf.org/Programs/AS/) International which provides Aging Services accreditation, the [AHCA/NCAL National Quality Award Program](https://www.ahcancal.org/Quality/National-Quality-Award-Program/Pages/default.aspx) which is a three-level process that evaluates an organization’s capabilities against nationally recognized standards in quality. The Joint Commission also provides accreditation for hospitals, [nursing care centers](https://www.jointcommission.org/accreditation-and-certification/health-care-settings/nursing-care-center/), [assisted living](https://www.jointcommission.org/accreditation-and-certification/health-care-settings/assisted-living-community/) facilities as well as several other types of healthcare providers. A [study](https://pubmed.ncbi.nlm.nih.gov/27600192/) revealed that nursing homes that are accredited by The Joint Commission “demonstrate a consistent pattern of superior performance,” which included fewer deficiencies, payment denials, and fines. The Joint Commission recently published a [white paper](https://pages.jointcommission.org/NCC-2021-SNN-White-Paper-Post-Covid-Strategy_L.html?utm_source=Sponsored+Email&utm_medium=SNN+Jan22+Text+Ads&utm_campaign=NCC+White+Paper/?utm_source=snn-newsletter&utm_medium=text-ad-1) detailing why accreditation is clinically and financially vital to skilled nursing facilities, particularly post COVID-19. Regarding demonstrating **clinical quality**, The Joint Commission cites the following: - Standards: Joint Commission standards are considered the industry benchmark for quality and safety, addressing clinical and non-clinical essential to operations. These standards help organizations reduce variation, reduce risk, and improve quality. - Survey Process: their on-site survey process goes “deeper” into an organization’s facilities and workflow than state health inspectors. - SAFER® Reporting: The Joint Commission’s Survey Analysis for Evaluating Risk® report is a business intelligence tool that facilitates a review of survey findings. The information allows providers to utilize the information for quality initiatives, allocation of resources, peer review, and other planning. [Follow Our Newsletter](https://excelas1.us5.list-manage.com/subscribe?u=9b42ca673a356304a9f365330&id=f7fccb21c7) [Perspectives](/blog) [Follow Us on LinkedIn](https://www.linkedin.com/company/excelas-llc/) The Joint Commission mentions the following regarding the impact of accreditation on **profitability**: - Payor Recognition: many payors, including Medicare, use Joint Commission accreditation as a key metric in determining reimbursement. - Referrals and reputation are improved through accreditation. Acute care facilities, as well as patients and families, recognize organizations who have gone beyond government regulations in standards of care. The reputation accreditation carries also helps in recruiting and retaining staff. - Standardization: through standardization of processes, SNFs: Decrease patient and staff harmReduce risk of errorImprove staff productivityControl costs - Boosts profitabilityLowers fines/regulatory preparationEfficient, effective processes Accreditation by a private organization, such as The Joint Commission, through the improvement in clinical and financial outcomes, should correspondingly have a positive impact on the resolution, and ultimate avoidance, of lawsuits. Assessing an organization’s readiness to apply for accreditation can be daunting. Excelas’ [Comprehensive Integrated Timeline Tool](/defense-readiness) allows clients to incorporate key facility data with accreditation guidelines, highlighting areas of compliance as well as those that need attention. Excelas can perform this and other reviews to support your facility’s administration in preparing for the accreditation survey process. ## Defending Allegations of Malnutrition and Dehydration Documentation in Long-Term Care https://excelas1.com/blog/defending-allegations-of-malnutrition-and-dehydration ### Defending Allegations of Malnutrition and Dehydration Documentation in Long-Term Care _2022-05-26 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Appropriate documentation can help defend against the rising number of allegations of malnutrition and dehydration in long term care settings Malnutrition and dehydration are common concerns in the elderly population, particularly in situations with multiple comorbid conditions. Diagnoses such as diabetes, chronic renal disease, congestive heart failure, Alzheimer’s, and other dementias are exacerbated, and elderly patients become more susceptible to falls, pressure injuries, deep vein thrombosis, and infections as a result. Comprehensive medical record documentation is critical in demonstrating quality care and defending against allegations of malnutrition and dehydration. ![pexels-kristina-paukshtite-10520441](https://excelas1.com/api/media/file/2022-05-pexels-kristina-paukshtite-10520441-scaled.jpg) On-site nursing home surveys were put on hold during the pandemic. An analysis of on-site surveys since they resumed in January 2022 revealed the fourth most frequently citied [deficiency](https://leadingage.org/regulation/top-five-frequently-cited-f-tags-2022) was F684-Quality of Care, which includes nutrition and hydration. Staffing shortages during the pandemic have been [alleged](https://apnews.com/article/nursing-homes-neglect-death-surge-3b74a2202140c5a6b5cf05cdf0ea4f32) to contribute to dehydration and malnutrition in the nursing home population. The [causes](https://www.clinicaladvisor.com/home/topics/geriatrics-information-center/malnutrition-in-the-elderly-underrecognized-and-increasing-in-prevalence/) of weight loss and malnutrition in elderly patients are referred to as the “9-Ds”: Disease, Dysphagia, Diarrhea, Depression, Dementia, Dentition, Dysgeusia, Dysfunction, and Drugs. The sense of thirst diminishes with age, making the elderly more prone to dehydration. Unfortunately, [symptoms](https://health.clevelandclinic.org/drink-up-dehydration-is-an-often-overlooked-health-risk-for-seniors/) of dehydration, such as dry mouth, fatigue, and dizziness, often go unrecognized. With these risk factors, it is important that residents are [encouraged](https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8537864/) to eat and drink throughout the day, and that these interactions and intake are consistently documented. The Centers for Medicare & Medicaid Services (CMS) provides the following guidelines for the Long-Term Care Survey Process in evaluating nursing home residents’ status. The [Hydration Critical Element Pathway](http://cmscompliancegroup.com/wp-content/uploads/2017/08/CMS-20092-Hydration.pdf) and the [Nutrition Critical Element Pathway](http://cmscompliancegroup.com/wp-content/uploads/2017/08/CMS-20075-Nutrition.pdf) include, but are not limited to, the following areas for medical record review: - New or existing conditions or diagnoses that affect overall fluid intake: Malnutrition, dehydration, cachexia, or failure-to-thrive.Problems with teeth, mouth, gums, or swallowing problems.Decreased kidney function or urine output, renal disease.Decreased thirst perception, increased thirst, change in appetite, anorexia.Cognitive or functional impairment (e.g., dysphagia, dependency on the staff for ADLs, inability to communicate needs).Terminal/progressive conditionsConstipation, impactions, or diarrhea.Pressure ulcers and other chronic wounds, fractures. COPD, pneumonia, diabetes, cancer, hepatic disease, CHF, infection, fever, nausea/vomiting, orthostatic hypotension, hypertension.Psychiatric concerns, significant changes in behavior or mood.Lethargy/confusion. - Identification of underlying risk factors - Significant changes in condition and assessment of such within 14 days - Assessment of hydration status, including baseline and calculation of fluid needs - Assessment of nutritional needs, including calories, protein needs, desired weight range - Lab values for hydration: e.g., BUN, creatinine, serum sodium - Lab values for nutritional status: e.g., albumin and pre-albumin, transferrin, retinal binding protein - Medication review for impact on food intake - Interventions implemented, such as IV fluids - Staff monitoring/documentation of fluid intake and food/supplement intake - Weight monitoring - Care plan and resident response to plan Training of all staff on appropriate documentation is critical, particularly in the current environment of high employee turnover. Staff must be aware of the importance of recording all interventions with residents in relation to nutrition and hydration, including any refusal by a resident to comply with recommendations. Excelas’ medical analysts have extensive experience in reviewing medical records unique to long-term care settings. Our medical chronologies and associated reports can assist administrators in preparing for surveys or assessing staff training needs and in preparing counsel for the defense of claims and litigation. Contact us today to discuss your medical information management requirements. ## Dementia Care During the Pandemic and Beyond https://excelas1.com/blog/dementia-care-during-the-pandemic-and-beyond ### Dementia Care During the Pandemic and Beyond _2022-05-05 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > An increase in dementia cases, high cost of patient care, and ongoing staffing issues presents many challenges in long-term care settings. By 2025, the number of people aged 65 and older with Alzheimer’s dementia is [projected to reach 7.2 million](https://pubmed.ncbi.nlm.nih.gov/34043283/) — an 11% increase from those affected today. According to the [Alzheimer’s Association](https://www.alz.org/media/documents/alzheimers-facts-and-figures.pdf) that number is expected to reach 12.7 million by 2050. The total national cost of caring for people living with dementia, including Alzheimer’s, is estimated to be $321 billion in 2022, which does not include an estimated $271 billion in unpaid caregiving. These increasing cases, combined with the high cost of care and ongoing staffing issues, presents many challenges in long-term care settings. ###### **The Impact of COVID-19 on Dementia Patients** Alzheimer’s and dementia deaths increased [16%](https://alz-journals.onlinelibrary.wiley.com/pb-assets/hub-assets/alz-journals/Facts-2021-Infographic-1623213302.png) during the COVID-19 pandemic. One report revealed individuals with Alzheimer’s and other dementia were [50% more likely](https://aspe.hhs.gov/reports/impact-covid-19-medicare-beneficiaries-dementia-issue-brief) to be diagnosed with, and 60% more likely to die of COVID-19 than those without dementia. Analyses continue as to the effect of delayed or canceled health care services due to the COVID-19 restrictions and lock downs. Another recent [study](https://jamanetwork.com/journals/jamaneurology/fullarticle/2789614) of over 26.6 million Medicare enrollees revealed nursing home residents with Alzheimer’s and related dementias had a 33% increase in mortality between 2019 and 2020. This study notes that issues, in addition to the COVID-19 infection, played a role in the excess mortality. These factors consist of the many changes in health care delivery including fewer inpatient admissions and the increased use of [telehealth](/blog/covid-waivers-update-on-the-usage-of-telehealth-in-medicine) for outpatient visits. Decreased access to community support services and social isolation also may have contributed to the higher mortality rates. The study added that increases in caregiver stress, burden and isolation may have indirectly affected the health of dementia patients living in nursing home settings. [Medical Record Organization](/clinical-analysis) [Staffing Scorecard](/case-triage) [Record Production Support](/defense-continuity) ###### **High Cost of Care / Quality of Care** The Alzheimer’s Association 2022 Facts and Figures reveal Medicare and other insurers pay an average of almost $42,000 per person annually for dementia patients, approximately three times more than beneficiaries without dementia. This does not include the ongoing costs for long-term care services where the median annual cost for dementia care in assisted living facilities is over $53,000 and nursing home care is over $109,000. Alzheimer’s patients live an average of [four to eight years](https://my.clevelandclinic.org/health/articles/11825-stages-of-alzheimers-disease) after diagnosis and may require long-term care for a significant period during that time. With the projected increase in cases due to the aging population plus lengthy stays in assisted living or nursing homes, long-term care facilities must ensure best practices in care management and staffing. [The Joint Commission](https://www.jointcommission.org/resources/news-and-multimedia/news/2022/01/collaborate-to-improve-quality-and-safety-in-dementia-care/#.YmhBFS-B2L1) in collaboration with the [Alzheimer’s Association](https://academic.oup.com/gerontologist/article/58/suppl_1/S1/4816759?login=false) Dementia Care Practice Recommendations has updated the Memory Care Certification requirements starting July 1, 2022. This update to the nursing care center accreditation requirements is intended to ensure high quality nursing home care for dementia patients. The [Prepublication Standards](https://www.jointcommission.org/-/media/tjc/documents/standards/prepublications/ncc_prepub.pdf) address infection control, dementia care, staff recruitment, retention and wellness, pressure injuries, and medication safety. ###### **Staffing Issues** From 2016 to 2026, the demand for direct care workers is projected to grow by more than 40%, while their availability is expected to decline. Nursing homes have [lost](https://www.ahcancal.org/News-and-Communications/Fact-Sheets/FactSheets/BLS-MARCH2022-JOBS-REPORT.pdf) 15.2% (241,000 caregivers) of their workforce, and assisted living facilities have lost 6.2% (28,800 caregivers) since the beginning of the pandemic. This staffing shortage is forcing facilities to use outside agencies to supplement staff, with costs that have [increased 2 to 3 times](https://www.ahcancal.org/News-and-Communications/Fact-Sheets/FactSheets/2022%20State%20of%20the%20SNF%20Industry%20Report.pdf) historical levels. Facilities are also faced with impending minimum staffing requirements from the White House as well as individual states. The [National Academies](https://www.nationalacademies.org/our-work/the-quality-of-care-in-nursing-homes) released The National Imperative to Improve Nursing Home Quality report in April 2022. In the section on staffing, the report calls for more research on staffing standards, registered nurse coverage around the clock, a full-time social worker, and an infection control specialist. Staff retention and recruitment activities are at a crucial point, and facilities are looking for ways to differentiate themselves beyond compensation and benefits. Employee satisfaction programs that include career advancement opportunities and comprehensive training programs are important. Staff training specifically focused on understanding the symptoms and behaviors in dementia care is essential for staff competence and confidence as well as patient/family satisfaction. According to the Alzheimer’s Association, the single most important determinant of quality care across all care setting is direct care staff. ###### **Managing the Challenge** The unique challenges associated with the care of dementia patients calls for best practices in medical record documentation, policy and procedure development, risk management, and staff training. Excelas’ experience in reviewing long-term care medical records and facility policies and procedures can assist providers, insurers, and counsel in preparing for audits, accreditation reviews, and responses to claims and litigation. ###### **Let us help.** Complete the form below and we’ll follow up! ## Telehealth Update – March 2022 Legislation, Remote Patient Monitoring Usage & Privacy https://excelas1.com/blog/covid-waivers-update-on-the-usage-of-telehealth-in-medicine ### Telehealth Update – March 2022 Legislation, Remote Patient Monitoring Usage & Privacy _2022-04-07 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Congress continues to consider making COVID-era telehealth waivers permanent. As a component of the Consolidated Appropriations Act, 2022, which was signed into law on March 15, several telehealth waivers were extended for Medicare beneficiaries beyond the end of the public health emergency. ###### **Recent Government Initiatives** Congress continues to consider making COVID-era telehealth waivers permanent. As a component of the Consolidated Appropriations Act, 2022, which was signed into law on March 15, several telehealth waivers were extended for Medicare beneficiaries beyond the end of the public health emergency. This approximately five-month extension includes waivers on: - Originating site, including the patient’s home - Expansion of eligible practitioners - Telehealth services under Federally Qualified Health Centers and Rural Health Clinics - Audio-only services The Act also includes a requirement that the Medicare Payment Advisory Commission (MedPAC) study the expansion of telehealth services and that HHS provide public data on telehealth utilization. Along with the many telehealth [bills](/blog/telehealth-regulations-update-through-covid-19-phe) currently under consideration in Congress, the “[Hospital Inpatient Services Modernization Act](https://www.congress.gov/bill/117th-congress/senate-bill/3792/text)” was introduced in March which would allow health care systems to provide hospital services outside their walls. This act extends the [CMS](https://www.cms.gov/newsroom/press-releases/cms-announces-comprehensive-strategy-enhance-hospital-capacity-amid-covid-19-surge) Acute Hospital Care at Home program. Originally introduced in November of 2020 to enhance hospital capacity, the program allows specific hospital systems flexibility in providing acute care at home for patients with certain conditions. Telehealth services are a key component of this program through virtual access to nurses and other health care providers and remote patient monitoring. The Office of the Inspector General, Health and Human Services, along with many interested professional and industry [organizations](https://www.americantelemed.org/press-releases/336-stakeholders-seek-leadership-from-congress-to-create-permanent-comprehensive-telehealth-reform/), support permanent telehealth expansions. State laws and regulations concerning telehealth are varied. Many states relaxed their state licensure laws for health care providers during the pandemic, and some have made those changes permanent. Florida, Arizona, West Virginia, Kansas, and Connecticut have issued various flexible licensing for practitioners to provide telehealth services. Thirty-five states, the District of Columbia and Guam are currently members of the [Interstate Medical Licensure Compact](https://www.imlcc.org/), which allows eligible physicians to become permanently licensed in the participating jurisdictions. As discussed in [_The National Law Review_](https://www.natlawreview.com/article/covid-19-state-law-telehealth-considerations-state-licensure-requirements-persist)_,_ providers of telehealth services must continually monitor the evolving regulations on a state-by-state basis, not only in regard to licensure, but also the establishment of patient-provider relationships, the use of telehealth modalities, and reimbursement issues. ![telemedicine 2022](https://excelas1.com/api/media/file/2022-04-telemedicine-gadfec95eb_1920.jpg) ###### **Status of Telehealth Use** While providers enjoy the convenience of telehealth, more than half the providers in a recent [survey](https://www.unitedhealthgroup.com/newsroom/2022/2022-03-15-telehealth-use-will-outlive-pandemic.html) noted difficulty in managing unrealistic patient expectations and frustration with the quality of care they can provide. According to the FAIR Health Monthly Telehealth Regional [Tracker](https://www.fairhealth.org/states-by-the-numbers/telehealth), the top diagnoses claims were mental health conditions (55%), acute respiratory diseases and infections, COVID-19, joint/soft tissue issues and developmental disorders. The most recent Peterson-KFF [Tracker](https://www.healthsystemtracker.org/brief/outpatient-telehealth-use-soared-early-in-the-covid-19-pandemic-but-has-since-receded/?_hsmi=2&_hsenc=p2ANqtz-_BpHSuyL82pHLFsPVCO_Oicw8j1LxzGpQpG9cIHn6v-M5OPrLxPCxqH1UrD3dbKLftzdWmyyOMIuU32D3RPvhENlMm2w&utm_campaign=KFF-2022-Coronavirus&utm_medium=email&utm_content=2&utm_source=hs_email) revealed outpatient telehealth visits have declined since the early months of the pandemic, from 13% of outpatient visits in the first six months, to 8% in March-August, 2021. A [surge](https://mhealthintelligence.com/news/national-telehealth-use-skyrocketed-amid-omicron-surge) in utilization was noted with the Omicron variant in December 2021. ###### **Remote Patient Monitoring: Usage and Privacy** In a recent piece in [_JAMA_](https://jamanetwork.com/journals/jama/fullarticle/2789635?resultClick=1)_,_ physicians noted that the “pandemic accelerated the move to monitoring and therapy based on patient risks and needs.” This remote patient monitoring (RPM) includes metrics such as blood pressure, heart rate, EKG, pulse oximeter, and temperature. Integration with the electronic medical record is key, and could ultimately reduce hospitalizations, relieve documentation requirements of staff, and improve outcomes. Another study revealed that [skilled nursing facility](https://www.mcknights.com/news/telemedicine-helped-nursing-home-residents-avoid-er-visits-research-finds/?utm_source=newsletter&utm_medium=email&utm_campaign=MLT_DailyUpdate_20220301&hmSubId=&hmEmail=&email_hash=9bdc3b00ebabcd277458b8e7d327e78b&mpweb=1326-25790-601105) residents benefit from telemedicine by allowing them to stay in place for treatment rather than being transported to the emergency room. The increased use of remote patient monitoring also increases the potential for privacy and security breaches. As reviewed in the _Journal of the American Health Information Management Association_ ([AHIMA](https://journal.ahima.org/an-argument-for-modernizing-hipaa-the-need-for-workforce-changes-and-leadership-implications/)), HIPAA needs to keep pace with technological advances, including, but not limited to facial recognition and full dialogue generated during a telemedicine visit. Popular services such as Skype, FaceTime, and other social media platforms do not provide encrypted video conferencing. The responsibility is on the health care provider to ensure that RPM data that is transmitted to, stored by, and used by the provider is HIPAA compliant Providers and patients must be aware that social media and consumer wearable devices do not fall under HIPAA protections. Many consumer RPM vendors are subject to Federal Trade Commission (FTC) regulations as opposed to HIPAA Privacy and Security. In response the proliferation of devices that collect sensitive health information, the FTC issued a policy statement in September 2021 titled [Breaches by Health Apps and Other Connected Devices](https://www.ftc.gov/system/files/documents/public_statements/1596364/statement_of_the_commission_on_breaches_by_health_apps_and_other_connected_devices.pdf). In part, breaches to the policy requires notifications to affected individuals and the media of any unauthorized access to personally identifiable health information. Excelas continues to monitor legislation and advances in telehealth technology, including the implications of documentation, privacy, and security surrounding integration in the electronic health record. [Follow Us on LinkedIn](https://www.linkedin.com/company/excelas-llc/) [Read Other Blogs](/blog) [Subscribe to our Newsletter](/contact) ## Arbitration Agreements in Long-Term Care March 2022 https://excelas1.com/blog/arbitration-agreements-in-long-term-care-march-2022 ### Arbitration Agreements in Long-Term Care March 2022 _2022-03-31 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > As reported by McKnights Senior Living in February, recent court cases have been decided based on who signs an arbitration agreement. CMS ruled in 2019 that residents are not required to sign binding arbitration agreements as a condition of admission or to receive care, and this regulation was upheld in October 2021 by the 8th U.S. Circuit Court of Appeals. Nursing homes are permitted to use these agreements if they are explained to, and acknowledged by the resident or family member that the contents are understood. As reported by [McKnights Senior Living](https://www.mcknightsseniorliving.com/home/news/think-youre-protected-by-an-arbitration-agreement-you-may-be-mistaken/?email_hash=9bdc3b00ebabcd277458b8e7d327e78b&hmEmail&hmSubId&mpweb=1326-25164-601105) in February, recent court cases have been decided based on who signs an arbitration agreement. [CMS ruled in 2019](/blog/cms-ruling-long-term-care-arbitration) that residents are not required to sign binding arbitration agreements as a condition of admission or to receive care, and this regulation was upheld in October 2021 by the [8th U.S. Circuit Court of Appeals](https://skillednursingnews.com/2021/10/federal-court-sides-with-cms-on-nursing-home-arbitration-rule/). Nursing homes are permitted to use these agreements if they are [explained](https://www.cms.gov/newsroom/press-releases/cms-rules-put-patients-first-updating-requirements-arbitration-agreements-and-new-regulations-put) to, and acknowledged by the resident or family member that the contents are understood. ![Arb Agreement LTC](https://excelas1.com/api/media/file/2022-03-business-g59d5a4159_1920.jpg) ###### **Case Examples** In addition to the cases cited by McKnights, the following cases provide examples of the enforceability of an arbitration agreement based on the signing party: - December 2019: [_Rigoli v. Manor Care_](https://dev.americanbar.org/groups/litigation/committees/alternative-dispute-resolution/practice/2020/court-denies-arbitration-of-nursing-home-wrongful-death-and-survival-claims/)_ of Oak Lawn (West) IL_ – Illinois Appellate Court. The resident signed an arbitration agreement upon entering the nursing home. The resident died, and the son sued for wrongful death, arguing that his mother would not have understood any legal document due to her mental condition and medications. An expert witness reviewed the decedents medical records and determined she was not competent to provide informed consent to the arbitration agreement. Based on this expert opinion, the appellate court affirmed the circuit courts denial to compel arbitration. - August 2021: [Pennsylvania Superior Court](https://www.pacourts.us/assets/opinions/Superior/out/j-a03035-21m%20-%20104856864142326403.pdf#search=%22holminski%20%27Superior%2bCourt%27%22) vacated a lower court’s ruling to send a wrongful death claim to arbitration. The resident had signed the arbitration agreement upon admission to the facility; however, the family presented records showing she was not competent. The family indicated their mother had been declared “mentally disabled with impaired judgement” and “carried a diagnosis of schizoaffective disorder.” The family further noted she “had only a sixth-grade education and a limited ability to read and write,” therefore, the son typically reviewed documents on her behalf. The facility relied on the discharge summary from the hospital to prove she was competent. The judge remanded the wrongful death case to state court for discovery on the issue of the Decedent’s competency to execute the agreement. - September 2021: [_CL SNF, LLC v. Fountain_](https://www.leagle.com/decision/ingaco20210921173) – Supreme Court of Georgia. Upon admission to a nursing home, the patient’s guardian signed the admission agreement and an arbitration agreement. The guardian later disregarded that agreement and sued the nursing home. The county court and Court of Appeals allowed the guardian to disavow her authority to the arbitration agreement and the nursing home elevated the review to the state supreme court. The Georgia Supreme Court found that the guardian had signed all admission documents and the arbitration agreement contemporaneously, therefore, the guardian could not choose to [enforce parts](https://www.jdsupra.com/legalnews/georgia-supreme-court-sides-with-2062059/) of the agreement and disavow those parts that she later found inconvenient (the arbitration agreement.) - February 2022: [_Diversicare of Meridian, LLC v. Shelton_](https://www.leagle.com/decision/inmsco20220215279) – Court of Appeals of Mississippi. An elderly patient who wanted to be admitted to her room as quickly as possible due to difficulty breathing directed her daughter to “sign the documents” needed for admission. The arbitration agreement was one of the numerous documents presented to the daughter, and she believed all documents were required for admission. The court found that “a mentally competent individual may orally grant authority to another person to sign documents required for admission to a nursing home” but Diversicare failed to provide sufficient proof that the patient specifically gave her daughter the authority to bind her to arbitrate any future disputes concerning her stay. The denial of the facility’s motion to compel arbitration was upheld and the case was remanded. - March 2022: [_Tuzzolino v. Windsor Twin Palms Healthcare Center_](https://www.leagle.com/decision/incaco20220315035)_._ Court of Appeals of California. The wife signed an arbitration agreement on behalf of her husband when he was admitted to a skilled nursing facility. She later sued the nursing home for negligence, elder abuse, and wrongful death. The facility filed to compel arbitration based on the agreement signed by the wife. The appeals court upheld the trial court’s denial to compel arbitration, citing that husband had executed a Durable Power of Attorney appointing his wife. This DPOA stated that it did not authorize her to make medical and other healthcare decisions for him. The trial court concluded that the facility failed to meet the burden of proving the existence of a valid arbitration agreement because the wife lacked authority. She executed the agreement “while making health care decisions on behalf of the ecedent” in violation of the express terms of the DPOA. ###### **Current Legislation** The Nursing Home Improvement and Accountability Act of 2021 was introduced in the [Senate](https://www.congress.gov/bill/117th-congress/senate-bill/2694/text) in August 2021 and in the [House](https://www.congress.gov/bill/117th-congress/house-bill/5169/all-info?r=37&s=1) in September 2021. As of March 2022, both bills remain in committee. The [AHCA/NCAL](https://www.ahcancal.org/News-and-Communications/Press-Releases/Pages/AHCANCAL-Issues-Statement-on-the-Nursing-Home-Improvement-and-Accountability-Act.aspx) issued a statement strongly opposing the severe restrictions on arbitration agreements contained in the bill. AHCA/NCAL notes that arbitration is quicker and less costly than litigation and provides similar outcomes. They stated, “An excessive litigation environment, coupled with the existing financial crisis, means thousands of long-term care facilities would be forced to close their doors, in turn, displacing tens of thousands of vulnerable residents and limiting access to critical services for our nation’s seniors.” Groups such as The National Consumer Voice for Quality Long-Term Care back the prohibition of pre-dispute arbitration agreements, and fully support the “FAIR Act of 2022”, or [Forced Arbitration Injustice Repeal Act of 2022](https://www.congress.gov/bill/117th-congress/house-bill/963/text). The U.S. House of Representatives passed this bill on March 17, 2022, which would ban enforcement of pre-dispute arbitration agreements for workers and [consumers](https://www.natlawreview.com/article/us-house-passes-bill-places-future-arbitration-agreements-risk), which could include long-term care situations. ###### **Supporting the Defense** Excelas’ medical record [organization](/clinical-analysis) and analysis services identify and highlight admission paperwork and arbitration agreements, along with any additional documentation by staff regarding discussions with the resident, family, and/or guardians. As noted in these example cases, all circumstances surrounding the execution of the arbitration agreement are relevant. Excelas also continues to monitor legislation related to arbitration agreements and the potential impact on long-term care. [Contact Us](/contact) [Follow our Newsletter](/contact) [Organization](/clinical-analysis) [Medical Record Analysis](/clinical-analysis) ## Webinar Summary: Risk Management in Long-Term Care https://excelas1.com/blog/webinar-summary-risk-management-in-long-term-care ### Webinar Summary: Risk Management in Long-Term Care _2022-03-25 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Risk management and medical record documentation is essential in managing surveys, claims, and litigation against long-term care facilities. We had the opportunity to attend this presentation by Beth Alford, RN, BSN, to the Ohio Health Care Association. In addition to increased scrutiny by surveyors, she noted that long-term care facilities lose over 88% of the suits filed against them, and the average settlement amount is $406,000. The overriding theme of her discussion on risk management and loss prevention was that timely and complete medical record documentation is essential in managing surveys, claims, and litigation. Ms. Alford covered all components of an effective risk management program. Best practices in documentation included: - Early Risk Identification: preadmission assessments, including history of falls and prior LTC facilities, and discussions with resident and family members - Averting potential liability: if the resident is injured in the facility, document all calls/meeting with family and any visits to the hospital if necessary - Policies: keep facility policies and procedures concise to ensure staff can easily interpret and follow - Staffing: although not part of residents’ medical records, maintain documentation of, and attendance for, all in-services/training provided to staff along with complete personnel records - Resident Rights: document verbal or signed consent of a resident’s refusal of treatment - Quarterly Care Plan: include notes, explanation of unchanged and new interventions, and evidence of family participation in the plan [Record Organization](/clinical-analysis) [Early Risk Assessment](/case-triage) [Contact Us](/contact) She stressed that documentation must be complete, noting plaintiff attorneys focus on missing documentation concerning pain, pressure sores, lab results, interventions, family contact, and resident/family refusal of medications and/or treatments. Documentation must be monitored daily, and full audits should be conducted on a regular basis. Facilities should have clear record retention policies for all records, including, but not limited to medical records, 24-hour reports, and assignment and scheduling sheets. When records are requested, ensure proper authorization, only provide what is included in the specific resident’s record, and have requests reviewed by risk management. Ms. Alford provided an in-depth review of the management of and the importance of documenting interventions and preventative measures in the following areas: - Elopement - Pressure injury prevention and treatment - Nutrition and hydration - Turning and repositioning - Medication errors - Significant condition changes - Sepsis - Falls (35% of lawsuits are fall related, with an average settlement cost of $350,000) - Use of lifts This webinar provided excellent insight into the development of an essential loss control program. Excelas has the tools and the expertise to assist long-term care facilities in conducting audits, assessing documentation quality and completeness, integrating facility policies and procedures with individual resident medical records, and preparing comprehensive analyses for facility administrators, risk managers, insurers, and counsel. Contact Excelas today to discuss how we can support your risk management program. ## Industry Perspective and the Comprehensive Integrated Timeline https://excelas1.com/blog/maintaining-comprehensive-covid-19-documentation-and-the-comprehensive-integrated-timeline ### Industry Perspective and the Comprehensive Integrated Timeline _2022-02-25 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Excelas is maintaining a library of COVID-19 documentation and guidance to help in the defense of COVID claims. In a recent commentary by Jacquelyn Smith Clarke of Hall Booth Smith, P.C., she discussed the importance of maintaining a [comprehensive library of COVID-19 documentation](https://www.mcknights.com/blogs/guest-columns/maintaining-your-covid-19-library-of-materials/). She noted it is labor intensive, but critical when needed to defend complaints. She points out that guidance regarding COVID-19 issues has been evolving since the start of the pandemic and maintaining an organized library of these directives at specific points in time is key. She recommends that long-term care facilities memorialize facility policies and procedures along with outside regulations to provide “consistency of knowledge and reliable evidence to use in support of the care.” Fortunately for Excelas’ clients, key components of this “library” currently exist. Excelas has built a database with over 10,000 documents of Federal and State Guidance (for select states). This database, the [Comprehensive Integrated Timeline Tool (CITT)](/defense-readiness), is continually updated as new guidelines are published. For example, on February 2, 2022, CDC released changes to the guidance for [Infection Control for Nursing Homes](https://www.cdc.gov/coronavirus/2019-ncov/hcp/long-term-care.html). Key updates included: - Quarantine for newly admitted residents and for residents who are not up to date with recommended COVID-19 vaccinations and/or who have had contact with an infected person - Plan for residents who leave the facility - Assign one or more individuals with [training](https://www.train.org/cdctrain/training_plan/3814) in infection prevention and control to provide on-site management - Provide supplies necessary to adhere to recommended infection control - Ensure residents, health care providers and visitors are educated in current precautions - Guidelines for notifying health care providers, residents, and families about outbreaks and reporting to public health authorities - Vaccination guidelines for residents and health care providers - Physical distancing measures - Visitation guidelines - Proper use of PPE - Testing plan for residents and health care providers - Evaluating and managing personnel and residents Identify space in the facility dedicated to monitor and care for residents with confirmed or suspected infectionsEvaluate residents at least dailyManage residents who had close contact with an infected person - Response to new infections in health care personnel or residents [Excelas Newsletter](/contact) [Comprehensive Integrated Timeline Tools](/defense-readiness) [Contact Us](/contact) Capturing these new recommendations, while maintaining the previous guidance in the CITT, facilitates a quick basis for comparison to facility policy and procedure changes. Again, as noted by Ms. Clarke, “a well-organized and user-friendly library of materials showing changes over time provides an excellent roadmap.” The CITT is that roadmap. ## Leveraging Best Practices in Long-Term Care Litigation: Medical Record Analysis Services https://excelas1.com/blog/best-practices-in-long-term-care-litigation-medical-record-analysis-services ### Leveraging Best Practices in Long-Term Care Litigation: Medical Record Analysis Services _2022-02-16 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Efficient management of medical information must be emphasized to contain costs because of the backlog of long-term care claims & litigation. ![medical-gde5a6c770_1920](https://excelas1.com/api/media/file/2022-02-medical-gde5a6c770_1920.jpg) The average case [backlog](https://www.abajournal.com/news/article/many-state-and-local-courts-have-seen-case-backlogs-rise-during-the-pandemic-new-report-finds) for state and local courts increased over 30% during the pandemic. There are estimates that damages could increase 20-30% based on these delays. To “catch up” on the docket, case preparation may be rushed and hectic. As noted in a recent presentation by leading long-term care attorneys, this court backlog plus shrinking budgets, increased regulatory and compliance requirements, and the anticipated onslaught of COVID-related litigation makes it incumbent on in-house legal departments to find innovative ways to reduce costs and burdens. According to CNA, the number and average cost of reported claims had been increasing pre-pandemic, with falls, pressure injuries and staffing issues leading the list of allegations. Add to that over 145,000 [COVID-related deaths](https://data.cms.gov/covid-19/covid-19-nursing-home-data) of nursing home residents through January of 2022, with an unknown number of upcoming related lawsuits. With over [15,000](https://www.kff.org/other/state-indicator/number-of-nursing-facilities/?currentTimeframe=0&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D) skilled nursing facilities and close to [29,000](https://www.ahcancal.org/Assisted-Living/Facts-and-Figures/Pages/default.aspx) assisted living communities in the U.S., efficient management of medical information must be emphasized in containing costs in long-term care claims and litigation. ###### **Significant Issues:** ###### **Falls and Pressure Ulcers** In the 2020 Oliver Wyman and Marsh Professional and General Liability Benchmark for Long-Term Care Providers, the most frequently found issues in claims descriptions included death, fall, injury, infection, decubitus, and fracture. In Excelas’ experience, over a third of cases reviewed for our clients allege pressure ulcers and/or falls. The most recent CNA Aging Services Claim Report (2018) revealed falls and pressure ulcers accounted for 40.5% and 22.6% of all claims respectively. In assisted living, falls accounted for nearly 50% of claims, and those that resulted in death had an average claim payment of over $200,000. Pressure ulcer claims that resulted in death had an average payment of over $246,000. ###### **COVID-Related Allegations** Adding to the mix will be COVID-related cases, where infection control issues are often the focus. For example, [inspections](https://ohiocapitaljournal.com/2022/01/25/errors-deception-preceded-deadly-nursing-home-covid-outbreaks-inspections-show/) by CMS of Ohio nursing homes show facilities are paying large fines, up to $459,000, due to poor infection control protocols. In addition to infection control issues, COVID-related plaintiff allegations include, but are not limited to, wrongful death, negligence, failure of staff to use PPE, inadequate testing, and failure to provide training to staff. Along with fines from regulatory agencies, the [COVID-19 Complaint Tracker](https://www.huntonak.com/en/covid-19-tracker.html) shows 541 health/medical category complaints as of January 2022. ###### **Staffing Shortages** Staff turnover in long-term care facilities has been exacerbated by the pandemic. The CNA study showed pre-pandemic (2018) average turnover of CNAs at 41.9%, RNs at 33.9%, and LPNs at 28.8%. Between May 2020 and November 2021, the [Bureau of Labor Statistics](https://www.ahcancal.org/News-and-Communications/Fact-Sheets/FactSheets/AHCA%20NCAL%20Report_BLS%20Data%20on%20Staffing%20Shortages%2012.10.21.pdf) reported nursing homes lost 234,000 staff members (14.8%) and assisted living facilities have lost 39,000 staff (8.4%). Over 75% of providers say the situation has become worse in recent months. A [study](https://onlinelibrary.wiley.com/doi/10.1111/1475-6773.13877) released in September 2021 concluded that staff turnover was associated with citations for infection control. The relationship between staffing and quality of care is a focus of CMS and starting in January 2022, they began posting staff turnover and weekend staffing data on their [Care Compare](https://www.cms.gov/files/document/qso-22-08-nh.pdf) website. These staffing measures are a component of the CMS _Nursing Home Five Star Quality Rating System_, which is used by the public to select the best facility for their family member. ###### **Best Practices in Containing Litigation Costs** How can counsel best use their time in handling the current backlog, the ongoing cases that would be expected discounting the pandemic, and the onslaught of COVID-related filings? Working with a partner who has developed cost-effective protocols in medical record retrieval and analysis allows counsel to focus their time on the high-level legal aspects of each matter. Excelas’ deliverables take the burden off counsel and support decision-making in several key areas: - **Record Retrieval **Efficiency is key in [retrieving records](/defense-continuity). Utilizing Excelas’ experience with multiple electronic health information systems, records are quickly retrieved and reviewed for completeness. - **Record Organization **[Medical record organization](/clinical-analysis) is the foundation for effective case analysis. Records are sorted by provider and episodes of care, indexed by document type, Bates numbered, and searchable by OCR. Records are assessed for completeness, duplicates are purged, additional providers of care are identified, and “wrong patient” documents are removed or redacted. Documents are available online to each member of the legal team through the Excelas HIPAA compliant, secure web portal. - **Customized Medical Analyses**Excelas’ team of medical professionals review millions of pages of medical records each year and prepare customized reports to support counsel’s decision-making. Reports can range in complexity depending on the stage of the case to facilitate early resolution. Examples of reports that focus on the issues of falls, pressure ulcers, COVID, and staffing can include: - The [**Provider of Care**](/clinical-analysis) report facilitates efficient preparation for interviews and depositions. - The [**Care Calendar/Touch Chart**](/clinical-analysis) is a user-friendly tool to visualize all contact between the patient/resident and provider (physician, nurse, nursing assistant, etc.) on an interactive calendar. This data may be critical when issues relating to staffing situations are alleged. - The [**Strengths and Weakness Assessment**](/case-triage) provides an executive level, narrative summary of significant medical events which support or refute the allegations. A more detailed [**Early Risk Assessment**](/case-triage) is an appraisal of the clinical events with an objective review of the severity of findings and potential liability. This report includes hyperlinks to the source documents online. An early assessment of the claim value and early resolution of the matter saves time and money – achieving the objective of directing money to where it’s needed for the healthcare organization, patient care, and staffing. - [**Case Summaries**](/clinical-analysis) and [**Medical Chronologies**](/clinical-analysis) are customizable based on the critical issues in each situation. These reports contain hyperlinks to the page in the medical record/document that contains the source information. - The [**Comprehensive Integrated Timeline Tool **(**CITT)**](/defense-readiness) is a powerful tool in defending COVID-related The CITT allows for efficient layering of data from regulatory guidelines and standards, facility policies and procedures, and the patient/resident medical records. Excelas has an extensive database of federal and state guidelines and regulations as published throughout the pandemic. The clear advantage to our clients is this guidance is captured once and can be used to support the defense strategy in multiple scenarios. Excelas has experience and expertise in managing medical information for claims and litigation to assist counsel in reducing overall litigation costs. Contact us today to discuss your medical information management requirements. [Subscribe to our Newsletter](/contact) [Excelas Services](/blog) [Follow our LinkedIn](https://www.linkedin.com/company/excelas-llc/) ## Technology for Health Management in LTC Settings https://excelas1.com/blog/technology-in-long-term-care-settings ### Technology for Health Management in LTC Settings _2022-01-20 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Use of technology during COVID-19 has increased communication in LTCs, but can create potential privacy, security, and documentation issues. ![Coding Verification Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-01-stethoscope-on-keyboard.jpg) Issues related to the COVID-19 pandemic have increased the use of technology in long-term care settings. Quarantines and elective social distancing necessitated telemedicine for doctor visits and providers have increasingly turned to remote patient monitoring devices. Families are utilizing Zoom and FaceTime to communicate with their loved ones and “granny cams” to observe their care. While these technologies provide many positives for residents, staff, healthcare providers, and families, providers must also be cognizant of potential privacy, security, and documentation issues. ###### **Telemedicine** Telemedicine utilization has skyrocketed since early 2020. Telemedicine connects patients to health care services through videoconferencing and telephone visits. Studies show a high level of patient and provider satisfaction, and telehealth visits are currently covered by Medicare. Several [bills](/blog/telehealth-regulations-update-through-covid-19-phe) have been introduced in congress to make telehealth coverage permanent after the public health emergency ends, most recently the [Telehealth Extension Act](https://doggett.house.gov/media/press-releases/ways-means-health-leaders-author-new-bipartisan-bill-break-down-barriers). HHS has provided some [flexibility](https://telehealth.hhs.gov/providers/policy-changes-during-the-covid-19-public-health-emergency/hipaa-flexibility-for-telehealth-technology/) for telehealth use during the public health emergency with regard to privacy and security under HIPAA. However, it is still important to attempt to provide a private setting for a telehealth visit. If this is not feasible, reasonable precautions should be taken to include using lowered voices, not using a speaker phone, or having the patient move a reasonable distance from others when discussing PHI. ###### **Remote Patient Monitoring** RPM devices, often wearable, measure conditions such as blood pressure, glucose, blood oxygen, cardiac conditions, post-op care, and activity. The RPM data is integrated with electronic health records (EHR) and providers can remotely monitor a patient’s acute or chronic condition. Patients are also becoming more in tune with their daily health, as one in five Americans [use](https://www.pewresearch.org/fact-tank/2020/01/09/about-one-in-five-americans-use-a-smart-watch-or-fitness-tracker/) fitness trackers or smartwatches. The data collected by these devices, such as a Fitbit or Apple Watch, can also be integrated into a patient’s EHR. A recent study revealed that users of fitness trackers perceive the health benefits of [sharing the data](https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8663694/) with health care providers outweigh the perceived privacy risks. Early in the pandemic, The Centers for Medicare & Medicaid Services (CMS) began initiatives to [provide care outside traditional hospital settings](https://www.cms.gov/newsroom/press-releases/cms-announces-comprehensive-strategy-enhance-hospital-capacity-amid-covid-19-surge), including the Hospital Without Walls and the Acute Hospital Care at Home programs. These programs, which are currently in available in limited areas, utilize wearable sensors to monitor patient status along with tablets, video and home visits as needed. ###### **Smartphone Applications ** In addition to fitness tracking, many popular apps are available to assist seniors with a variety of daily activities, including diet, medication, and wound management. A recent [study](https://agsjournals.onlinelibrary.wiley.com/doi/10.1111/jgs.17551) in the Journal of the American Geriatrics Society concluded that smartphone-based memory applications can benefit older adults with cognitive disorders. Again, users should ensure any application is HIPAA compliant. ###### **Video Calls** To address the isolation of residents caused by the pandemic, many long-term care operators turned to technology. For example, a [facility](https://www.mcknights.com/news/futurecare-cherrywood-leads-list-of-2021-mcknights-tech-awards-winners/) in Maryland employed a variety of tools, including virtual visitations with family and friends using iPads, and communication applications such as TextMagic, Clicksend, Zoom, and Calendly. ###### **Artificial Intelligence/Voice Assistance** Smart technology in a home or apartment can enhance wellness by using sensors to detect activity, monitor sleep, heart rate, and temperature. AI can provide residents with alerts to take medications, detect falls, operate the window shades, lights, coffee makers, and stoves. Functions can be accomplished either through voice commands or by learning the resident’s habits. Smart home technology eliminates the need for wearable monitors and is built on secure platforms to ensure privacy. ###### **Surveillance Cameras** Ohio’s Governor signed [Esther’s Law](https://www.legislature.ohio.gov/download?key=18131&format=pdf) in December 2021 which allows hidden cameras in nursing home/skilled nursing facility rooms. The intent of the law is to provide more accountability of staff and ensure quality treatment of residents. The law includes a requirement to obtain a roommate’s permission to install a camera and to post a notice that a camera is in use. Ten other states have laws permitting the installation of cameras in resident’s rooms, and several other states have guidelines. Elder abuse cases prompted the call for hidden cameras, and restrictions on visitors during the pandemic increased the demand by families. Esther’s Law had its origin in a case from 2011 when a son suspected abuse of his elderly mother by nursing home staff. The hidden camera footage he captured of the staff abusing his mother facilitated the conviction of two aides and a $375,000 fine of the nursing home. In another case, a December 2020 ruling by the Supreme Court of Georgia found that hidden camera footage of a nursing home resident was legally recorded and could be used in criminal cases against his caregivers. Families typically bear the cost of the cameras and monitoring equipment. Along with ensuring quality of care, advocates believe cameras in rooms support nursing home employees, particularly in short staffing situations. Opponents cite privacy issues for roommates and staff; however, obtaining consent from the roommate and/or their family and posting notices indicating hidden cameras are in use can address these concerns. ##### **Incorporating the Data into the Defense Strategy** Excelas’ robust **Comprehensive Integrated Timeline Tool** (CITT) allows for efficient layering of a chronological summary and hyperlinks to source documents/images of: - Resident/patient medical records: records that support the diagnosis/condition, justify, and document the course of care, treatment, and services. - Discovery documents: including witness statements, educational and professional background of a witness, deposition transcripts and other documents relating to the dispute. - Survey findings: all documents and reports from a survey agency (Joint Commission, state agency, etc.) resulting from the survey process which verify compliance with conditions of participation or regulatory requirements. - Company documents: a thorough list of internal documents including, but not limited to infection control policies, internal witness statements, communications, policies, procedures, staffing, and training/in-service documentation. - Governmental regulations: particularly in relation to local, state, and federal guidance surrounding Covid-19. - Allowable surveillance videos: depending on state laws covering the use of hidden camera videos in long-term care settings. For example, in a state where hidden cameras are permitted in residents’ rooms, the video obtained by a surveillance camera can be imbedded in the CITT along with the documentation in the medical records, staffing logs, incident reports, and other discovery documents to allow for ease of reference. The CITT allows for customized report generation based on date, source document type, or provider of care. ![CITT](https://excelas1.com/api/media/file/2022-01-CITT.png) The key to efficiently building a case is the ability to quickly analyze all the available data in one place which is concurrently accessible to all decision-makers. Contact Excelas today for a demonstration of how our Comprehensive Integrated Timeline Tool can support you in defending complex long-term care cases. ## The COVID Challenge: Part Three https://excelas1.com/blog/the-covid-challenge-part-three ### The COVID Challenge: Part Three _2021-12-14 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Excelas’ COVID-19 Comprehensive Integrated Timeline Tool can be used to assist in the preparation for and defense of COVID-19 claims. ![covid related complaints excelas medical legal solutions](https://excelas1.com/api/media/file/2021-11-covid-related-complaints_excelas.jpg) Managing COVID-19 cases along with various local, state, and federal guidelines and legislation continues to be a moving target for the long-term care industry. As of November 2021, the [COVID-19 Complaint Tracker](https://www.huntonak.com/en/covid-19-tracker.html) reports 501 complaints filed in the health/medical sector, with 337 for wrongful death. Outside of possible immunity provisions, operators of nursing homes and other senior living facilities must be prepared to defend these cases based on medical record and relevant business documentation. ###### **Immunity Provisions** While the Public Readiness and Emergency Preparedness Act (PREP Act) and certain states immunity provisions have been enacted to provide some protection to senior living facilities, they have not preempted state tort claims in all cases to date. In October 2021, the [Third Circuit Court of Appeals](https://www2.ca3.uscourts.gov/opinarch/202833p.pdf) determined that deaths related to nursing homes’ negligence in relation to the management of COVID-19 did not fall under the PREP Act, and remanded those cases to state court. However, beyond this decision, some [legal experts](https://www.mcknights.com/news/covid-lawsuit-bounced-back-to-state-court-leaving-nursing-home-cases-open-to-inconsistent-interpretation/?utm_source=newsletter&utm_medium=email&utm_campaign=MLT_DailyUpdate_20211022&hmSubId=XSKQ0WqetnQ1&hmEmail=zUiPQELTjfHT3UiDu0uZjIKmz9R2geZa0&email_hash=527d0e35c4b64a46aed6c80222dfbce0&mpweb=1326-22568-236712) believe state courts will provide immunity to long-term care facilities and workers when looked at on a case-by-case basis. ###### **Types of COVID Claims** Cases filed to date against long-term care facilities have fallen in the following general categories: - Failure to prevent/mitigate the spread of COVID-19 - Failure to recognize a change in condition related to COVID infection - Failure to notify family and/or physician of COVID related issues - Delay in treatment - Failure to prevent asymptomatic workers from spreading the virus - Inadequate staffing - Inadequate or inappropriate use of PPE - Negligent infection control practices - Failure to follow local and/or federal guidance - Negligent treatment of non-COVID patients including delays in treatments and/or surgeries Documentation in the medical record is the first line of defense in responding to these claims. However, in COVID litigation, a broader scope of records and materials also comes into play, including, but not limited to: - Corporate and facility policies and procedures, particularly updates in response to local/state/federal directives - Staffing records, including attendance, training, and meeting minutes - Housekeeping records - Visitation policies and records - Dining services records - Activity records - Purchasing/supply chain documentation Efforts to obtain and provide PPE and COVID testsPPE and COVID test invoices, manufacturers’ numbers - COVID Task Force/key committee meeting minutes - Incident reports - Infection control policies, procedures, updates - Vaccination education/clinic records - Testing protocols and records - Social distancing and isolation measures - Emergency response plans/implementation - Articles/videos about the facility - Acknowledgements from patients/residents/families/the community There are many individuals within a healthcare facility who can provide this type of information, likely expanding the scope of those involved in the defense of these cases. For example, discovery can include responses from procurement officers, emergency response leaders, facility administrators, nursing director, department leaders, human resources, compliance officer, chief information and security officer, chief technology officer, and the quality assurance committee. ###### **The Solution – COVID-19 Comprehensive Integrated Timeline Tool** Excelas has worked with acute care providers, skilled nursing facilities and assisted living facilities in response to COVID claims and litigation. In typical litigation, the key tool used to support counsel in assessing the clinical facts is a [medical chronology](/clinical-analysis) that details the significant medical events related to the allegations. In COVID litigation, it is necessary to incorporate the individual patient’s medical chronology with the organization’s policies and procedures (as listed above) and local, state, and federal guidelines to demonstrate the standard at the time an event occurred. Excelas has built a database with over 10,000 documents of federal and state guidance (for select states.) This database is continually updated as new guidelines become available and the timelines can be used again and again, integrating the information into the relevant clinical findings for individual cases. Our clients provide internal COVID response documents which are also incorporated into the database for their specific healthcare organization. Juxtaposing the data from the individual’s **medical records**, the healthcare **facility’s policies/procedures,** and published **guidelines/standards** in an [easy-to-read timeline](/defense-readiness) allows counsel to clearly tell the story of the case. Again, the advantage to our clients is the local, state, and federal guidance is captured once then used for multiple cases. Contact us today for a demonstration of how Excelas’ **C-19 Comprehensive Integrated Timeline Tool** can assist you in defending the onslaught of COVID challenges. [The COVID Challenge: Part One](/blog/covid-19-data-in-nursing-homes) [The COVID Challenge: Part Two](/blog/the-covid-challenge-part-two-covid-19-guidance) [COVID Challenge Webinar Signup](/contact) ## The COVID Challenge: Part Two https://excelas1.com/blog/the-covid-challenge-part-two-covid-19-guidance ### The COVID Challenge: Part Two _2021-12-07 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Collecting, storing, and organizing COVID-19 guidance will be crucial to protect a facility’s patients, residents, staff, and business. Excelas can help make the process more efficient. In the first part of our series, we examined the current landscape of COVID-19 cases and vaccinations, particularly among nursing home residents. Senior care facilities have faced a barrage of directives, orders, rules, memorandums, and constantly changing guidance on every aspect of facility operations. In this installment, we assess the challenge of collecting, storing, and organizing this guidance in a format that can be used by facilities to protect their patients/residents, staff, and business. ##### **Industry Response and Strategy Development** Many parties play a role in the best defense of COVID-related cases. Counsel has developed initial defense strategies, including seeking immunity under the [PREP Act](/blog/prep-act-and-state-laws-in-ltc-settings). Healthcare organizations have the key role of collecting and maintaining all documentation regarding their actions during to the pandemic, including changes in policies and procedures in response to evolving state and federal guidance. In a recent presentation to an industry group, Excelas asked attendees how their healthcare organizations have collected, organized, and archived COVID-19 guidance. Most respondents indicated they are using spreadsheets and/or document images on a shared drive, while one admitted they are using a paper binder. It was noted that this effort was disjointed at times, with new guidance often overwriting previous directives. Demonstrating a facility’s compliance with all external regulations and guidelines is critical, but cumbersome. Excelas’ objective was to support the entire industry by developing an archive of all guidance published by various agencies and overlay that with a healthcare organization’s response to those guidelines. The result is a database, the [C-19 Comprehensive Integrated Timeline Tool](/defense-readiness) (CITT), which provides the supportive documentation necessary to create reports demonstrating that a facility and/or entire healthcare organization was taking action to assure compliance with the standards at any given time throughout the pandemic. ![COVID Challenge 2](https://excelas1.com/api/media/file/2021-12-CITT.png) The **CITT** allows for efficient layering of data from these various sources and highlights a facility’s actions as related to published guidelines and standards. Images of source documents are imbedded in the CITT for ease of reference. Data is gathered from multiple sources, and updated as necessary, to build the demonstrative timeline. These sources include, but are not limited to: ##### **State and Federal Guidance** Long-term care facilities have been subject to changing COVID-19 guidance from federal agencies, including: - **Centers for Medicare and Medicaid Services****(CMS)**Emergency Preparedness RulesHealth System Expansion GuidanceTelehealth RecommendationsWaivers (acting in good faith; not subjected to sanctions for non-compliance)Infection Control & Prevention UpdatesTransportation GuidelinesTesting RequirementsMask Guidance, Visitation RecommendationsElective Surgery RecommendationsReporting RequirementsBackground Check Regulatory RequirementsReopening GuidelinesPrioritization of Survey ActivitiesPricing Transparency Requirements - **Centers for Disease Control and Prevention (CDC)**Guidance for Monitoring Exposed or COVID-19 Positive PatientsPreparedness Checklists for Transport & Arrival of PatientsGuidance for Collecting, Handling, & Testing Clinical Specimens, Lab Biosafety GuidelinesClinical Guidance for COVID-19 OutbreakRisk Assessment; Cleaning, Disinfecting, & Decontamination ProtocolsHigher Risk for Severe Illness with Comorbid ConditionsInfection Prevention & Control RecommendationsUpdates to How the Virus is SpreadClinical Screening Recommendations, Symptoms Updates, Isolation/Quarantine Precautions, Visitor Screening GuidanceReporting RequirementsPostmortem Guidance, Guidance for Certifying DeathsReturn to Work CriteriaOptimization of PPE, PPE Guidance, PPE Burn Rate CalculatorEvaluation and Testing RecommendationsRecommendation on Vaccines (Storage/Temperature logs, Standing Orders, Preparation and Administration Summaries)Mass Gathering/Social Distancing RecommendationsInitiating Case Investigation and Contact Tracing Activities - **Food and Drug Administration****(FDA)**Emergency Use Authorizations for Drugs to Treat, PPE, Decontamination Kits, Sterilization Systems, Testing Kits, VaccineRecommendation for Medical Gowns, Gloves, Respirators/Vents, Hand SanitizersEnforcement Policies for Sterilizers, Disinfectants, Air Purifiers, Thermometers, Face Shields, Surgical MasksConservation Strategies for PPEFact Sheet for Healthcare Providers for Medications Approved for TreatmentStorage Recommendations for VaccinesDrug Shortage Responses - **Health and Human Services****(HHS)**Declaration of Public Health EmergencyPREP Act & CARES Act ClarificationsAuthorizing Licensed Professionals to Perform Duties Not Normally DoneHoarding Prevention Measures, Optimizing PPEGuidance for Certifying DeathsLaboratory Data Reporting GuidanceUninsured ProgramOperation Warp Speed-Accelerating Therapeutic Development/Vaccine Plan [COVID Challenge Part 1](/blog/covid-19-data-in-nursing-homes) [COVID Integrated Timeline](/defense-readiness) [COVID-19 Defense](/blog/corporate-covid19-timeline) [Excelas Newsletter](https://excelas1.us5.list-manage.com/subscribe?u=9b42ca673a356304a9f365330&id=f7fccb21c7) Each **state **has issued executive orders and legislation relating to COVID-19 protections and immunities for the long-term care sector. Many of these have changed since early 2020, the beginning of the public health emergency. Seyfarth Shaw provides a survey of these [state liability protections](https://www.jdsupra.com/legalnews/50-state-survey-of-liability-98243/) as they have been introduced over the course of the pandemic. **Local** health departments have also issued mandates regarding: - Reporting Requirements - Return to Work Criteria - Face Coverings, Mass Gatherings, and Travel Recommendations - Isolation/Quarantine Recommendations - License Renewal Requirements for Healthcare Personnel In collaboration with our clients, Excelas built this framework to allow you to quickly assess COVID-19 cases in this shifting legal and regulatory landscape. Part Three of this series will focus on medical record documentation best practices and the use of a medical chronology in conjunction with published guidelines. Contact us today for a demonstration of our **C-19 Comprehensive Integrated Timeline Tool**. ## The COVID Landscape: Part One https://excelas1.com/blog/covid-19-data-in-nursing-homes ### The COVID Landscape: Part One _2021-11-18 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > The latest data on resident and staff vaccination rates, vaccine mandates, and staffing shortages in nursing homes during the pandemic. The COVID-19 landscape is continuously shifting. Cases, deaths, vaccinations, regulations, reimbursements, executive orders, legislation, lawsuits, and staffing issues are all moving targets as the country continues to battle the pandemic. This environment changes the typical approach of managing medical litigation from the review of an individual’s medical records to an assessment of integrated documentation from the entire COVID landscape. The following is a snapshot of the current situation: ![Database for Medical Literature Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2021-03-covidmask.jpg) As of mid-October 2021, nursing home resident vaccinations stand at almost 86% nationally, with staff vaccination rate of 72%. The CDC’s [National Healthcare Safety Network](https://data.cms.gov/covid-19/covid-19-nursing-home-data) confirmed 3,147 COVID-19 cases among nursing home residents for the week ending 10/17/21, an 89% decrease since the peak in December 2020 and 514 nursing home COVID-19 deaths, a decrease of almost 93% since the December 2020 peak. Pennsylvania, Texas, California, and New York have the highest number of resident COVID-19 deaths. The emergence of the Delta variant in the United States drove a [rise in cases](https://data.cms.gov/covid-19/covid-19-nursing-home-data) among nursing home residents from an average of well under 1,000 weekly cases from March through late July to 5,393 weekly cases by mid-September. Many of the outbreaks occurred in facilities located in areas of the United States with the lowest staff vaccination rates. As of mid-October, cases have fallen by over 50%, and deaths have decreased over 44% since the September peak. Nursing home residents account for almost 19% of COVID cases in the US and residents were 14 times more likely to be diagnosed with the disease compared to Medicare beneficiaries in the community. 43% of Medicare beneficiaries who were admitted to the hospital from a nursing home died within 30 days, compared to 22% of community admissions. A recent [study](https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2784031?utm_source=For_The_Media&utm_medium=referral&utm_campaign=ftm_links&utm_term=090921) revealed more than 16,000 COVID-19 deaths and 68,000 cases among nursing home residents nationwide were omitted from federal data early in the pandemic as the CDC did not require reporting until late May 2020. The study estimates the missed data represented 11.6% of total COVID-19 cases and 14% of total deaths among nursing home residents in 2020. These omissions resulted in severe underreporting by the National Healthcare Safety Network and could have impacted the federal government’s response to providers most in need during the first months of the pandemic, researchers say. The authors of the study conclude that their publicly available data “offer the ability to credibly study the associations of facility responses and state and federal policy in the early months of the pandemic with slowing the spread in nursing homes, which is not possible with the federal data owing to missing data.” In May of 2021, CMS began requiring weekly reporting of vaccination data of residents and staff by long-term facilities. The rule also mandates that providers educate and offer the COVID-19 vaccine to both groups and document those efforts. As a result, surveyors will ask for a list of residents and staff that indicates their vaccine status, vaccine educational opportunities, including attendance records, and they could conduct related interviews. As of November, Florida, Ohio, Louisiana, Oklahoma, and Missouri had the lowest [percentage of staff vaccinated](https://data.cms.gov/covid-19/covid-19-nursing-home-data) at under 59%. States with the lowest percentage of resident vaccinations are Texas, Florida, Arizona, and Nevada, with less than 80%. The Biden administration issued a COVID-19 vaccination mandate for health care workers in facilities paid by Medicare and Medicaid in September, and the final rule was published in the [Federal Register](https://www.federalregister.gov/documents/2021/11/05/2021-23831/medicare-and-medicaid-programs-omnibus-covid-19-health-care-staff-vaccination) on November 5, 2021. This rule applies to over 76,000 facilities and 17 million healthcare workers, including more than 15,000 nursing homes. According to a study by the [White House](https://www.whitehouse.gov/wp-content/uploads/2021/10/Vaccination-Requirements-Report.pdf), vaccine mandates “boost vaccination rates and result in limited resignations and dismissals.” These trends in nursing home cases, resident and staff vaccination rates, vaccine mandates, and potential for staffing shortages all impact the COVID-19 litigation environment. Part Two of this series will focus on industry strategies, status of state and federal guidance, and the litigation landscape. Excelas has been on the forefront of supporting clients through the development of the [COVID-19 Comprehensive Integrated Timeline Tool](/defense-readiness) which facilities the review of federal, state, and corporate guidance that can be incorporated into medical chronologies. Contact us today to discuss how Excelas can support you in managing the shifting COVID-19 landscape. ## Telehealth/Telemedicine Regulations Update: Through the COVID-19 Public Health Emergency and Beyond https://excelas1.com/blog/telehealth-regulations-update-through-covid-19-phe ### Telehealth/Telemedicine Regulations Update: Through the COVID-19 Public Health Emergency and Beyond _2021-11-12 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Regulatory changes have expanded the use of telehealth, but federal and state action must be taken to continue its use after the pandemic. A recent study revealed that telehealth usage has [increased 38 times](https://www.mckinsey.com/industries/healthcare-systems-and-services/our-insights/telehealth-a-quarter-trillion-dollar-post-covid-19-reality) from before the COVID-19 pandemic. While this level of use is down from the early months of the pandemic, it has remained at 13-17% of office and outpatient visits. Both patients and providers have demonstrated willingness to use telehealth. Regulatory changes have allowed for expanded use of telehealth services; however, actions must be taken at the federal and state levels to make many of those changes permanent once the Public Health Emergency (PHE) expires. On November 2, 2021, the Centers for Medicare & Medicaid Services (CMS) issued the [final rule](https://edit.cms.gov/newsroom/fact-sheets/calendar-year-cy-2022-medicare-physician-fee-schedule-final-rule) for the 2022 Physician Fee Schedule (PFS). **CMS is continuing to evaluate telehealth services** which were temporarily added under the PHE. As such, certain telehealth services will be extended through December 31, 2023, even if the PHE expires prior to that date. The intent of the extension is to allow more time for CMS and stakeholders to gather data and submit support for telehealth services which should be permanent. CMS did add that the home of the beneficiary may be an originating site for telehealth services for **mental health disorders**. However, there must be an in-person, non-telehealth service within six months prior to the initial telehealth service. An exception can be made if clear medical record documentation exists based on beneficiary circumstances. In addition, audio-only mental health communications will be permissible if the beneficiary is not capable or does not consent to the use of two-way audio/video technology. Congress continues to introduce **telehealth legislation**, including the [Expanded Telehealth Act](https://thehill.com/policy/healthcare/580207-senators-seek-to-permanently-expand-telehealth-eligibility) which would extend reimbursement to physical and occupational therapists, audiologists, and speech language pathologists. This most recent bill, along with the [Telehealth Modernization Act](https://www.congress.gov/bill/117th-congress/senate-bill/368/text?q=%7B%22search%22%3A%5B%22%5C%22telehealth%5C%22%22%5D%7D&r=13&s=2), the [CONNECT for Health Act of 2021](https://www.schatz.senate.gov/imo/media/doc/CONNECT%20for%20Health%20Act%20of%202021_Summary.pdf) (Creating Opportunities Now for Necessary and Effective Care Technologies), the [Protecting Rural Telehealth Access Act](https://www.congress.gov/bill/117th-congress/house-bill/5425/text?r=51), and the [Telemental Healthcare Access Act of 2021](https://www.congress.gov/bill/116th-congress/senate-bill/3917/text?r=1&s=1) continue to move through the federal legislative process. The Center for Connected Health Policy publishes biannual reports on [**state telehealth laws**](https://www.cchpca.org/resources/state-telehealth-laws-and-reimbursement-policies-report-fall-2021/) and reimbursement policies along with an online database of current laws and policies by federal and [state jurisdictions](https://www.cchpca.org/all-telehealth-policies/). A key finding in their most recent report is “No two states are alike in how telehealth is defined and regulated.” Excelas will continue to monitor developments related to telehealth/telemedicine and its impact in the long-term care setting. [COVID Challenge Page](/about) [Follow us on LinkedIn](https://www.linkedin.com/company/excelas-llc) [Telemedicine after PHE](/blog/telehealth-after-the-phe) ## The Third Circuit Court of Appeals Affirmed the District Court’s Remand to State Court https://excelas1.com/blog/covid-19-cases-remanded-to-state-court ### The Third Circuit Court of Appeals Affirmed the District Court’s Remand to State Court _2021-10-21 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > The latest on COVID-19 cases in the court room where thee Third Circuit Court of Appeals affirmed the District Court’s remand to state court. On behalf of our clients, Excelas has been closely following COVID cases and the protections of the PREP Act. This is the first decision by a United States Court of Appeals. The [Third Circuit Court of Appeals](https://www2.ca3.uscourts.gov/opinarch/202833p.pdf) affirmed the District Court’s remand to state court. The Court noted that “There is no COVID-19 exception to federalism” and “nearly every federal district court to confront these cases has dismissed for lack of jurisdiction and remanded to the state court.” The plaintiffs allege that the residents’ deaths were a direct result of the nursing homes’ negligence by failing to monitor food preparation, failing to provide PPE, failing to diagnose and treat COVID-19 in a timely manner, and permitting visitors and employees to enter facilities without temperature checks or masks. The 34-page Opinion by the Third Circuit Court outlines why the federal court lacks subject-matter jurisdiction, and these cases should be in state court based on the following excerpts: ![Crittenden Insurance Conference Mega Verdicts Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-04-wooden-gavel-small.jpg) - **Federal officer removal statute:**To remove under this statute, four requirements must be met, including that the defendant is “acting under” the United States, its agencies, or officers. The court notes the nursing homes are private parties, not federal actors. The nursing homes argument that they are heavily regulated by CMS and the CDC does not rise to the level of being a government contractor or providing a service the government would otherwise provide. - **Complete federal preemption:**The nursing homes argued that the estates’ state law negligence claims are really federal claims under the PREP Act. However, the estates alleged only negligence, not willful misconduct, therefore they do not fall within the scope of the exclusive federal cause of action. Based on this, the Third Circuit determined they are not completely preempted, so the cases belong in state court. - **Willful misconduct:**To remove to federal court, the nursing homes also must show that the state-law claims fall within the scope of the exclusive federal cause of action.The PREP Act also provides a rule of construction: the willful misconduct requirement “shall be construed as establishing a standard for liability that is more stringent than a standard of negligence in any form or recklessness.”The estates allege negligence, not willful misconduct. In contrast, a claim for willful misconduct under the PREP Act requires wrongful intent, knowledge that the act lacked legal or factual justification, and disregard of a “known or obvious risk that is so great as to make it highly probable that the harm will outweigh the benefit.” - **Compensation fund:**The nursing homes argue that the PREP Act’s compensation fund—not just the willful misconduct cause of action—completely preempts the estates’ negligence claims.The court held only that (1) the estates’ negligence claims based on New Jersey law do not fall under the PREP Act’s narrow cause of action for willful misconduct, and (2) the PREP Act’s compensation fund is not an exclusive federal cause of action triggering removal jurisdiction. - **Federal issue:**The nursing homes argue that the estates’ claims raise a substantial federal issue. To remove a case under federal question jurisdiction, a defendant must show the case “aris under” federal law. The estates do not assert a federal cause of action. In conclusion, the Third Circuit Court affirmed the District Court’s order, stating, “Federal courts have limited jurisdiction. We may decide only cases or controversies that the Constitution and Congress say we may decide. Here, the estates of the deceased filed wrongful death lawsuits against the nursing homes. They filed in state court and asserted only garden-variety state law claims, so state court is where these cases belong.” This decision emphasizes the critical nature of the integration of medical record documentation with federal, state, and local guidance, and corporate response to that guidance, to defend cases associated with COVID-19. Based on this opinion, claims and litigation against long-term care facilities alleging failure to take appropriate action in relation to COVID-19 will most likely fall outside PREP Act protection. Excelas’ [COVID-19 Comprehensive Database](/defense-readiness) integrates federal and state guidance with a health care organization’s protocols, and a patient’s medical records, allowing for a clear chronology of events to assist in the defense of COVID-19 claims. [Contact Us](/contact) [COVID-19 Comprehensive Integrated Timeline Tool](/defense-readiness) [PREP Act and State Laws Update](/blog/prep-act-and-state-laws-in-ltc-settings) ## What to Know About COVID-19 Wounds: Essential Medical Record Documentation https://excelas1.com/blog/wound-documentation-during-covid-19-phe ### What to Know About COVID-19 Wounds: Essential Medical Record Documentation _2021-10-18 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > DRI Senior Living and Long Term Care Litigation Seminar in Las Vegas’s discussion on “COVID Wounds: Clinical Insights” differentiated wounds caused by pressure with those due to skin failure related to critical illness, including COVID-19. We were excited to attend the presentation by Mary Foote, RN, MSN, ANP, CWCN-AP, ED.Dc. and Tammera Banasek of HeplerBroom LLC, _**COVID Wounds: Clinical Insights**_, at the September DRI Senior Living and Long Term Care Litigation Seminar in Las Vegas. Ms. Foote’s informative clinical talk differentiated wounds caused by pressure with those due to skin failure related to critical illness, including COVID-19. Of special interest to Excelas was her emphasis on the importance of explicit medical record documentation, which is key in developing [medical chronologies](/clinical-analysis) and other analytical tools to support the defense of claims and litigation. ##### **Pressure Wounds** Citing industry standards as put forth by the [National Pressure Injury Advisory Panel](https://npiap.com/page/COVID-19Resources) and the Wound, Ostomy, and Continence Nurses Society (WOCN), Ms. Foote explained that localized damage to the skin and/or underlying soft tissue is defined as a pressure injury if it is a result of prolonged pressure, or a combination of pressure and shear, over a bony prominence. These wounds are influenced by the stability of the resident’s underlying co-morbid conditions, and the [Braden Scale](https://www.ahrq.gov/patient-safety/settings/hospital/resource/pressureulcer/tool/pu7b.html) is commonly used to identify the risk of pressure ulcer development. The Centers for Medicare & Medicaid Services classifies pressure injuries as: - Unavoidable: in which the pressure injury developed despite the facility’s evaluation of the resident’s clinical condition and risk factors, interventions following patient goals and standards of practice, and implementation and monitoring of interventions. - Avoidable: in which _documentation does not support_ unavoidability of wound development. ![Kennedy Terminal Ulcers and Federal Regulators Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-01-gauze.jpg) CMS imposes monetary fines in relation to avoidable pressure injuries; therefore, the importance of medical record documentation to support severity stratification of wounds, risk status, and unavoidable skin failure is key. ##### **COVID-19 Wounds** Ms. Foote stressed it is very difficult to determine the type of wound from a picture as patients with COVID-19 or other critical illness are also at risk for developing wounds. Patients with COVID-19 who experience critical illness with organ failure or cytokine storm develop wounds related to an underlying uncontrollable inflammatory response, poor perfusion, and tissue hypoxia. Acute, critically ill patients experience hypodynamic instability and the lack of circulation and perfusion making them susceptible to wound development. Therefore, the disease state must be assessed, and documented, by an interdisciplinary team to determine the causal factor. A key take-away from the lecture was providers of care must show restraint in classification of a wound as a pressure injury versus breakdown associated with an underlying condition. The [NPIAP 2020 White Paper](https://cdn.ymaws.com/npiap.com/resource/resmgr/white_papers/COVID_Skin_Manifestations_An.pdf) notes purple areas on non-pressure loaded surfaces that lack a pressure shear etiology should not be classified as pressure injuries. A true pressure injury may generate heat due to inflammation; however, the skin is cold due to hypoperfusion in a COVID-19 wound. Injuries due to multi-organ dysfunction cannot overcome reasonable efforts at prevention. Ms. Foote made clear that wounds related to COVID-19 and its treatment during an acute critical stage may not appear for 2-3 weeks, possibly after the patient has transferred to a long-term care setting. Differentiation of wound causation entails an in-depth analysis of the medical record including the enumerated tools Ms. Foote cited. In the skilled nursing or long-term care setting, this in-depth medical record documentation must include: - A review of the hospital records prior to facility admission. - Underlying critical illness, including COVID-19. - Any chronic illness prior to COVID-19 diagnosis, including skin failure, as these are often exacerbated. - Severity stratification of any presenting wounds on admission. - Risk factors including: skin failurecompromised circulationimpaired perfusionprolonged hypotensionsepsisimpaired nutritionimmobility - Actions related to these risks including pressure redistribution, use of support surfaces, management of moisture, nutrition and hydration, efforts at oxygenation, and product utilization. Ms. Foote’s well referenced presentation provided clear explanations of the clinical attributes and etiology of wounds. Whether a wound is pressure related or associated with COVID-19 and/or critical illness, Excelas’ medical analysts can review the medical records and create a [Medical Chronology](/clinical-analysis) and/or [Case Summary](/clinical-analysis) that will provide the entire story regarding the development and treatment of wounds. ## Early Case Valuation from a Medical Standpoint: What Counsel Needs to Know https://excelas1.com/blog/importance-of-early-case-valuation ### Early Case Valuation from a Medical Standpoint: What Counsel Needs to Know _2021-10-05 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Excelas, LLC can assist Defense Counsel with early case valuation to allow Counsel to focus on the legal issues and reduce overall litigation costs. ![RAC Audits Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-01-solutions-key.jpg) As highlighted in recent DRI seminars, knowing the details of claimed damages is critical in early case valuation. Counsel must assess many factors including legal liabilities and potential costs, similar cases and verdicts, claims of pain and suffering, bills, and medical records. The data contained in those medical records are key in these evaluations but can be costly to obtain and analyze without clear protocols. For that reason, defense counsel needs a standard process of retrieving and reviewing the medical information to reduce overall litigation costs. Such a process allows counsel to focus on the legal issues while shortening the cycle of case valuation and ultimate resolution. ##### **Know Who Can Help** Outsourcing the management of medical record retrieval and analysis enables counsel to shift their focus to the high-level legal aspects of the case throughout the stages of a lawsuit. Excelas employs a [team of professionals](/about), including health information administrators, nurses, and lawyers, who specialize in medical information management services. Our team processes millions of pages of medical records each year and distills these seemingly unrelated documents into concise, customized reports to support counsel’s decision making. By taking advantage of Excelas’ economies of scale, record retrieval and analysis costs are drastically reduced as compared to handling individual cases in-house. Excelas’ proprietary software allows for customized reports and our timeliness, cost effectiveness, and efficiency are a result of our standard processes. ##### **Know the Players in Your Case** Early identification of the key players related to the case is essential for determining potential witnesses and preparing for interviews and depositions. The first steps in this process are record retrieval and organization. - **Record Retrieval **Efficiency is key in [retrieving records](/defense-continuity). There is a distinct advantage in utilizing staff who have insider knowledge as to how health care facilities and providers maintain and release records. It is important to understand the multitude of electronic, hybrid, and paper medical record systems employed by health care providers, as well as HIPAA privacy and security regulations, and legal requirements. Utilizing Excelas’ experience with multiple electronic health information systems, records can be retrieved promptly upon request for release or review. - **Record Organization **[Medical record organization](/clinical-analysis) is the foundation for effective case analysis. Records are sorted by provider and episodes of care, indexed by document type, Bates numbered, and are searchable by OCR. An organized record is typically returned to the defense firm or in-house counsel in less than 2 weeks.During this process, records are assessed for completeness, duplicates are purged, “wrong patient” documents are removed, or redacted.Counsel is immediately notified of additional providers of care and potential missing documentation identified at this stage to promptly generate new record requests.All documents are available online through the Excelas HIPAA compliant, secure web portal. Each member of the legal team is provided with a unique log in to allow for concurrent access from any location. As records are received and electronically organized, our expert staff quickly prepare reports which detail all providers (physicians, nurses, therapists, etc.) who had interactions with the patient or resident. These reports are available to counsel following organization of the medical record and provide a timesaving overview of key players in the case. - **Provider of Care Report**Identifies potential witnesses by name, the date(s) care was administered, the record type and a hyperlink to the source document which contained the reference. The report is fully customizable. The [Provider of Care](/clinical-analysis) report facilitates efficient preparation for interviews and depositions, completely eliminating the need to review a record multiple times to identify caregivers and key personnel. - **Care Calendar/Touch Chart**Provides a user-friendly tool to visualize all patient/resident and provider contact categorized on an [interactive calendar](/clinical-analysis).Allows for a single click to take the user to detailed information on care provided and hyperlinks to source documents.Facilitates preparation for family meetings, mediation, and trial exhibits, eliminating the time-consuming and costly review of all interactions by an expert.Details of each caregiver’s interactions can be verified by simply downloading the data into an Excel spreadsheet for final review. - **Staffing Scorecard**[Staffing levels](/case-triage) at skilled nursing facilities can often be a factor in a claim or lawsuit. Payroll based data submitted to CMS can be useful in Identifying any issues in facility’s staffing levels.Efficiently utilizing this publicly available data, the Staffing Scorecard allows for identification of staffing fluctuations and comparisons to other facilities. ![Picture1](https://excelas1.com/api/media/file/2021-10-Picture1.png) ##### **Know the Medicine Relevant to Your Case** Insight into the information contained in the medical records relative to the allegations is key in developing an early defense strategy. Each case is unique; therefore, the format of this early analysis is flexible depending on counsel’s requirements. Typically available within days of record organization, the [Strengths and Weakness Assessment](/case-triage) is an executive level, narrative summary by our medical legal analysts of significant medical events that support or refute the allegations. A more detailed [Early Risk Assessment](/case-triage) is an appraisal of the clinical events with an objective review of the severity of findings and potential liability. This report includes hyperlinks to the source documents online. Based on the decisions made regarding the case value at this stage in the discovery process, more in-depth medical analyses may be required. If this is the situation, Excelas’ medical analysis team prepares detailed [Case Summaries](/clinical-analysis) and [Medical Chronologies](/clinical-analysis) which allow counsel to continue to build the defense. All reports are customizable based on the critical issues in each case; are prepared in an easy to read, online format; are hyperlinked to the page in the medical record which contains the source information; and are available in an average of three weeks from receipt of records. The reports may be sorted by topic, record type, care provider or other elements as directed by counsel. These timely reports build on the early case assessments to facilitate identification of expert witnesses and preparation for depositions and trial. ![Picture2](https://excelas1.com/api/media/file/2021-10-Picture2.png) As outlined above, there are many factors involved in the timely acquisition and management of medical records to support the litigation process. Counsel must know: - The most efficient means to acquire and warehouse the medical records. - The key players involved in the care of the patient as documented in the medical records. - If the medical records support or refute the allegations. - How to decipher and interpret the documentation in the medical records. - The most effective method to access and share the documents and reports among decision makers. The key to shortening the lifecycle and reducing overall litigation costs is knowing who can support the process. Excelas has that experience and expertise. Contact us today to discuss your medical information management needs. [Provider of Care Report](/clinical-analysis) [Care Calendar](/clinical-analysis) [Staffing Scorecard](/case-triage) ## The PREP Act and State Laws: COVID-19 in Long-Term Care Settings Update https://excelas1.com/blog/prep-act-and-state-laws-in-ltc-settings ### The PREP Act and State Laws: COVID-19 in Long-Term Care Settings Update _2021-08-26 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Update to the PREP Act and state immunity laws for healthcare workers in skill nursing as it pertains to the public health emergency. ![pexels-nataliya-vaitkevich-5863370](https://excelas1.com/api/media/file/2021-08-pexels-nataliya-vaitkevich-5863370-scaled.jpg) ![pexels-nataliya-vaitkevich-5863370](https://excelas1.com/api/media/file/2021-08-pexels-nataliya-vaitkevich-5863370-scaled.jpg) As of August 2021, the Hunton Andrews Kurth [COVID-19 Complaint Tracker](https://www.huntonak.com/en/covid-19-tracker.html) reported 302 wrongful death suits have been filed against healthcare providers, with LTC providers accounting for at least 20% of those cases. Over half of these claims have been filed in California, Florida, and Texas. Many states have implemented immunity provisions for healthcare facilities, including senior living, as a result of the pandemic. In addition, the Public Readiness and Emergency Preparedness Act (PREP Act) provides some immunity to facilities on the federal level. However, the PREP Act and state immunity provision have not preempted state tort claims in all cases to date. Most recently, a federal judge in Brooklyn, [NY rejected the defendant’s argument](https://nypost.com/2021/08/12/federal-judge-refuses-to-dismiss-covid-negligence-suit-against-nursing-home/) that federal law preempts or exempts nursing homes from state negligence suits. ##### **Background of the PREP Act** The PREP Act was first passed in 2005 in response to the Avian Flu and is meant for use in public health emergencies. As a result of the COVID-19 pandemic, the Secretary of Health and Human Services (HHS) declared the [PREP Act](https://www.federalregister.gov/documents/2020/03/17/2020-05484/declaration-under-the-public-readiness-and-emergency-preparedness-act-for-medical-countermeasures) effective as of February 4, 2020, and ending as late as October 1, 2025. The intent of the Act is to encourage expeditious development and deployment of diagnostics, treatments, and vaccines during a public health emergency while limiting legal liability for losses relating to the administration of these medical countermeasures. Under this Declaration, “covered persons” are generally immune from legal liability, with the exception of death or serious injury caused by “willful misconduct.” In March 2021, the [Congressional Research Service](https://crsreports.congress.gov/product/pdf/LSB/LSB10443) explained that in “the PREP Act, Congress made the judgment that, in the context of a public health emergency, immunizing certain persons and entities from liability was necessary to ensure that potentially life-saving countermeasures will be efficiently developed, deployed, and administered.” The requirements for PREP Act immunity include: - The individual or entity must be a “**covered person**” who prescribes, dispenses, or administers covered countermeasures (including long-term care facilities). - The legal claim must be for a “**loss**” which includes death; physical, mental or emotional injury; illness; disability or condition; fear of such injury including medical monitoring costs; and loss of or damage to property, including business interruption loss. - The loss must have a “**causal relationship**” with the administration of a covered countermeasure. - The medical product that caused the loss must be a “**covered countermeasure**” including vaccines, drugs, biological products, therapeutics, and devices (including masks and respirators) approved or otherwise authorized by the FDA. The language in all of these elements is broad and may be subject to interpretation by the courts. The PREP Act allows for injured persons alleging serious physical injury and death to submit a claim within one year to the [Countermeasures Injury Compensation Program](https://www.hrsa.gov/cicp/), which is a federal cause of action in the U.S. District Court for the District of Columbia. The General Counsel of HHS has issued eight advisory opinions since this current declaration of the PREP Act, which do not have the force or effect of law but may be used to inform the courts. The Advisory Opinion issued on January 8, 2021, discussed the PREP Act as a “Complete Preemption” Statute. It further defined non-use of covered countermeasures as triggering the PREP Act immunity. Examples of “non-use” of a countermeasure include failure to administer the vaccine to a person in a less vulnerable population when vaccines were prioritized due to scarcity. Another example of “non-use” could relate to lack of PPE at a facility as provided by the federal government. However, the court in _Lutz v. Big Blue Healthcare_ did not agree with this view of non-use. On August 4, 2021, the eighth amendment to the PREP Act clarified that pharmacy technicians are “covered persons” and expanded the scope of authority for qualified pharmacy technicians to administer seasonal influenza vaccines and for interns to administer seasonal influenza vaccines to adults. The Federal Register states, “…if boosters become necessary, allowing pharmacy interns and technicians to administer both COVID-19 vaccines and influenza vaccines would allow states maximum flexibility in limiting potential impacts of both illnesses.” These qualified pharmacy technicians and interns will be afforded liability protections in accordance with the PREP Act and any state law that would otherwise prohibit these healthcare professionals who are a “qualified person” from prescribing, dispensing, or administering COVID-19 vaccines or other covered countermeasures is preempted. The document indicates “…preemption of state law is justified to respond to the nation-wide public health emergency caused by COVID-19 as it will enable states to quickly expand the vaccination workforce with additional qualified healthcare professionals where state or local requirements might otherwise inhibit or delay allowing these healthcare professionals to participate in the COVID-19 countermeasure program.” ##### **Overview of State Immunity Laws/Regulations** Seyfarth Shaw LLP provides a [survey](https://www.jdsupra.com/legalnews/50-state-survey-of-liability-98243/) of executive and legislative actions in each state that protect healthcare providers from liability arising from the COVID-19 pandemic. 26 states have implemented immunity provisions for senior living and other healthcare providers for acts or omissions during the pandemic. ###### **Examples of Cases** - August 2021: [_Rivera-Zayas v. Our Lady of Consolation Geriatric Care Center et al_](https://www.pacermonitor.com/public/case/36866540/RiveraZayas_v_Our_Lady_of_Consolation_Geriatric_Care_Center_et_al) A federal judge found in favor of plaintiff Vivian Zayas and sent her case against [Our Lady of Consolation](https://nypost.com/2021/08/12/federal-judge-refuses-to-dismiss-covid-negligence-suit-against-nursing-home/) of Long Island back to state court in Brooklyn, New York. The case includes making the repeal of the state law, the Emergency or Disaster Treatment Protection Act, retroactive to the beginning of the pandemic. Statistics indicate about 16,000 NY nursing home/long-term care facility residents have died of COVID. The outcome of this suit could flood the court with these additional cases. - June 2021: _Estate of__Maglioli v. Andover SubAcute Rehab Ctr. I_: a Third Circuit panel heard oral arguments on Andover’s appeal of the district court sending the matter back to state court. In August 2020, the estate sued for negligence, wrongful death, and medical malpractice due to the nursing homes’ failure to take precautions against COVID-19. The court disagreed that the PREP act displaced the state law causes of action. The court stated the Act “does not, by its plain terms, cover more generally the care received by patients in healthcare facilities,” to include the facility’s decision to do nothing in the face of a COVID-19 outbreak. - May 2021: _Jackie Saldana et al. v. Glenhaven Healthcare LLC et al._, the Ninth Circuit court is considering the case for oral arguments based on Glenhaven’s brief that the family’s claims are preempted by the PREP Act. In October 2020 a California federal judge had rejected the facility’s bid to keep the case in federal court. - April 2021: S. District Court for the Northern District of Illinois decided a case of neglect and misconduct can move forward against Westchester Health nursing home (operated by Aperion Care) despite Illinois’ immunity laws. The judge said the immunity order does create liability for nursing homes accused of intentional or negligent conduct, although Westchester argued the state’s executive order granted immunity to long-term care facilities from neglect claims and does not create liability for willful and wanton misconduct. The allegations are that the facility failed to implement proper infection control protocols and negligently allowed symptomatic workers to treat patients with wearing PPE. - March 2021**: **_Holman v. Knollwood Nursing Home, LLC et al_. The nursing home is arguing the case should be referred to federal court under the PREP Act. The family claims the Alabama patient’s death was caused by placement of a COVID-19 positive resident in her room without appropriate interventions. - February 2021: _Dupervil v. All. Health Operations_: New York District court found the PREP Act does not preempt state law tort claims. This court did not agree with the January 8, 2021, HHS advisory opinion of “complete preemption” and remanded to the Supreme Court of New York, Kings County. - February 2021: [_Gilbert Garcia et al v. Welltower_](https://docs.justia.com/cases/federal/district-courts/california/cacdce/8:2020cv02250/803389/47)_ OpCo Group LLC, Sunrise Senior Living Management, Inc. et al_. The defendants were accused of failing to take adequate measures to prevent the spread of COVID-19. The court ruled the assisted living facility was deemed a “Covered Person” under the PREP Act and was [afforded immunity](https://www.mcknightsseniorliving.com/home/news/complete-liability-immunity-prep-act-ruling-is-significant-for-sunrise-welltower-industry/). The plaintiff is appealing in the U.S. Court of Appeals, Ninth Circuit. - February 2021: [_Robertson v. Big Blue Healthcare_](https://www.casemine.com/judgement/us/603d2e724653d05897279697)_, Inc. et al_. The lawsuit alleges negligence by Riverbend Post-Acute Rehabilitation that included lack of adequate staff, allowing infected employees to enter the facility, and failure to adopt social distancing. Defendants argued the case should fall under the PREP Act. The judge determined, citing 12 other cases which were substantively identical, the plaintiff’s claims do not fall under the PREP Act but rather under state law, and the case was remanded to the District Court of Wyandotte County, Kansas. - January 2021**: **[_Roberta Anson v. HCP Prairie Village KS OPCO LLC, et al_](https://ecf.ksd.uscourts.gov/cgi-bin/show_public_doc?2020cv2346-62)_:_ The daughter of a resident of an assisted living facility sued for wrongful death, lost chance of survival, and negligence with multiple allegations of failure to follow COVID-19 protocols. The U.S. District Judge concluded that the doctrine of “complete preemption” does not apply; therefore, plaintiff’s claims do not fall under federal law. The case was remanded to state court. - October 2020: _Sherod v. Comprehensive Healthcare Mgmt. Servs., LLC_: A Pennsylvania federal judge ruled the plaintiff’s allegations of negligence, misrepresentation, and wrongful death fell outside the PREP Act because they related the facility’s alleged failure to use countermeasures. The case was remanded to the Allegheny Court of Common Pleas. ##### **Outlook for Long-Term Care Providers** The rulings in the above personal injury and wrongful death cases, alleging failure to act appropriately in response to COVID-19, will set a precedent as to whether the PREP Act will supplant state law or provide for federal jurisdiction. According to [Dechert LLP](https://www.jdsupra.com/legalnews/prep-act-immunity-does-not-preempt-most-13396/), owners and operators of nursing homes and other senior living facilities should conservatively expect that claims alleging failure to take appropriate protective action, or non-compliance with alleged standards, will be treated outside PREP Act protection. Documentation of compliance with federal, state, and local guidelines is critical in managing these lawsuits. As emphasized in McKnight’s Long-Term Care News, [documentation](https://www.mcknights.com/marketplace/marketplace-experts/best-practices-for-protecting-leaders-and-facilities-from-covid-19-lawsuits/) should be digitized and include a chronology of actions taken to prevent or minimize the spread of the virus. Excelas’ [COVID-19 Comprehensive Database](/defense-readiness) integrates federal and state guidance with a healthcare organization’s protocols along with a patient’s medical records allowing for a clear chronology of events to assist in the defense of COVID-19 claims. [Employer’s Defense Against Claims](/blog/corporate-covid19-timeline) [Contact Us](/contact) [COVID-19 Record Review](/blog/covid-19-record-review) [Covid-19 Comprehensive Database](/defense-readiness) ## Trends in LTC: Vaccine Mandates https://excelas1.com/blog/covid-19-vaccine-mandate-in-ltc-facilities ### Trends in LTC: Vaccine Mandates _2021-08-19 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > An increase in COVID-19 cases due to the Delta variant have led many to consider mandating the vaccine for Long-Term Care workers. ![Vials of vaccine standing beside a syringe](https://excelas1.com/api/media/file/2021-08-Untitled-design-1.png) As of June 2021, new weekly COVID-19 cases in long-term care facilities [decreased 97%](https://www.kff.org/coronavirus-covid-19/issue-brief/covid-19-cases-and-deaths-in-long-term-care-facilities-through-june-2021/?utm_campaign=KFF-2021-Coronavirus&utm_medium=email&_hsmi=145824404&_hsenc=p2ANqtz-9tLvu9QEURAp9CuSX__rjrYdGGEFTYZEdnaZri132eN1nx5Y_ri_c__UzjVUNSpCm_VDxEis-KIRoZE_GgtOd96w-GaA&utm_content=145824404&utm_source=hs_email) since December 2020, with COVID-19 average weekly deaths down 96% in the same time period. According to the Kaiser Family Foundation, this decrease was largely due to the high rates of vaccination among LTC residents and staff. However, as of July, CMS reports that 58.4% of nursing home staff has been vaccinated. This level of vaccinated employees, along with increased cases as a result of the Delta variant, has prompted many private and public entities to move toward mandatory vaccinations. ##### **Employers and professional organizations announcing mandates** On August 2, 2021, Genesis HealthCare mandated COVID-19 vaccinations for all staff. Genesis reported 65% of their approximately 70,000 employees in 400 facilities nationwide are currently vaccinated. Employees who fail to get vaccinated within three weeks are subject to termination unless granted a medical or religious exemption. Many other [large senior living providers](https://www.mcknightsseniorliving.com/home/news/game-changing-senior-living-giant-good-sam-joins-growing-list-of-providers-mandating-covid-19-vaccines-for-staff/?fbclid=IwAR3drDwDztnQ4Smzzk9Lyn5trRv6NIeMwQ57bhV3q3W4Sy_G6vvQkvDmU40) have also issued mandates, including [Brookdale](https://www.mcknightsseniorliving.com/home/news/brookdale-takes-next-step-in-pandemic-in-mandating-staff-vaccination-ceo/) Senior Living, Evangelical Lutheran Good Samaritan, Sanford Health, LCS, Episcopal Retirement Services, CareOne, and Ascension. In July, the [AHCA/NCAL](https://www.ahcancal.org/News-and-Communications/Press-Releases/Pages/AHCANCAL-Issues-Policy-Statement-Regarding-COVID-19-Vaccinations-of-Long-Term-Care-Personnel.aspx), which represents 14,000 skilled and assisted living providers, strongly urged the vaccination of all health care workers and issued support of providers that adopt mandatory COVID-19 vaccination policies. Also, [LeadingAge](https://leadingage.org/aging-services-leader-joins-national-call-long-term-care-providers-mandate-covid-19-vaccines-all), which represents 5,000 nonprofit aging services providers, encouraged its members to make COVID-19 vaccines a condition of employment for all healthcare workers. This group also supported a [statement in support of vaccine mandates](https://leadingage.org/sites/default/files/Joint%20Statement%20on%20Vaccine%20Mandates.pdf) for all workers in health and long-term care which was signed by 58 professional organizations including the American Medical Association and the American Nurses Association. According to Centers for Medicare & Medicaid Services, nursing assistants and other aides have the lowest vaccination rate in LTC facilities at 45.6%. ##### **Federal and state government initiatives** In May 2021, the [US Equal Employment Opportunity Commission](https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws) announced that federal EEO laws do not prevent an employer from requiring workers to be vaccinated against COVID-19 as long as they did not violate the Americans with Disabilities and the Civil Rights acts. On July 27, the CDC issued a [Health Advisory](https://emergency.cdc.gov/han/2021/han00447.asp) as a result of the Delta variant, which included recommendations to nursing homes to establish incentives to employees and to evaluate if the facility can implement vaccine requirements. As of August 2021, California, [Connecticut](https://www.usnews.com/news/best-states/connecticut/articles/2021-08-06/connecticut-mandates-vaccines-for-nursing-home-workers), Illinois, Maryland, [Massachusetts](https://www.mass.gov/news/baker-polito-administration-announces-continued-efforts-to-protect-older-adults-in-skilled-nursing-facilities), New Jersey, and the city of Denver are requiring nursing home staff to be fully vaccinated. Yet seven states (Montana, North Dakota, Utah, Arizona, Arkansas, Tennessee, and New Hampshire) have enacted [legislation to ban employer mandated vaccinations](https://www.nashp.org/state-lawmakers-submit-bills-to-ban-employer-vaccine-mandates/). On the federal level, the Biden administration is considering [withholding federal funds](https://www.mcknights.com/news/biden-could-withhold-funds-as-stick-to-push-nursing-homes-and-others-to-get-more-workers-vaccinated/) from long-term care facilities based on employee vaccination compliance. ##### **Staffing issues in LTC settings** According to the CDC, “Maintaining appropriate staffing in healthcare facilities is essential to providing a safe work environment for healthcare personnel (HCP) and safe patient care.” As such, they publish [ongoing guidance](https://www.cdc.gov/coronavirus/2019-ncov/hcp/mitigating-staff-shortages.html) specifically for healthcare facilities experiencing staffing shortages due to COVID-19. This document includes Contingency and Crisis Capacity Strategies to mitigate staffing shortages. The “[COVID-19 Intensifies Nursing Home Workforce Challenges](https://aspe.hhs.gov/reports/covid-19-intensifies-nursing-home-workforce-challenges-0#note40)” study revealed the annual turnover rate for CNAs is 51.5%, LPNs 36.4% and RNs 50%. It noted that conditions in nursing homes are exacerbated by the impact of COVID-19 on staff. In another survey by AHCA/NCAL, 94% of nursing homes noted [staffing shortages](https://skillednursingnews.com/2021/06/94-of-nursing-homes-face-staffing-shortages/), with the situation being worse due to high turnover associated with COVID-19. Many strategies are being used to retain and recruit staff. For example, [Minnesota is proposing $1,500 bonuses](https://minnesotareformer.com/briefs/cost-of-1500-bonuses-to-assisted-living-nursing-home-workers-totals-96-million-estimate-says/) to the 79,000 long-term care workers in the state who have been working through the pandemic. There are currently 10,000 open positions in the state as a result of LTC workers who have left the field. ##### **Excelas’ role in addressing claims and litigation related to staffing issues** The impact of adequate staffing on quality of care is clear, but it is unclear what the effect of vaccine mandates on staffing levels will be in the long run. Documentation best practices are key, with multiple source records becoming relevant when short staffing is at issue. In addition to the resident’s medical records, these records include, but are not limited to: - Staff training meeting minutes - Staffing plans and incentives - Federal, state, and corporate guidelines and mandates - Policy and procedure changes in response to federal/state/corporate guidance - Infection control policies, procedures, and updates - Emergency response plans - Supply chain information relative to PPE - COVID-19 education, testing, and vaccination communications to staff ![Vaccine](https://excelas1.com/api/media/file/2021-08-Vaccine-scaled.jpg) Excelas’ tools, including the [Provider of Care Report](/clinical-analysis), [Care Calendar/Touch Chart](/clinical-analysis), and [Medical Chronology](/clinical-analysis) provide a means for early case assessment. Our [Staffing Scorecard](/case-triage) allows you to use CMS data to identify fluctuations in staffing levels, compare your facility to others in your area, and anticipate the plaintiff’s narrative. Our [COVID-19 Comprehensive Database](/defense-readiness) integrates all of the above documents in a concise timeline to illustrate your facilities response to the frequently changing guidelines in conjunction with the individual resident’s medical records. Contact the experts at Excelas for a demonstration of these powerful tools. [Follow us on LinkedIn](https://www.linkedin.com/company/2637621/admin/) [Staffing Score Card](/case-triage) [Covid-19 Record Review](/blog/covid-19-record-review) ## Forget Zoom…the Return to In-person Education and Networking https://excelas1.com/blog/return-of-in-person-networking ### Forget Zoom…the Return to In-person Education and Networking _2021-08-10 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Excelas Employee Terri Lightner attended the DRI Medical Liability and Health Care Law conference in Las Vegas focused on cutting-edge medical defense issues. ![pexels-luis-quintero-2774556](https://excelas1.com/api/media/file/2021-08-pexels-luis-quintero-2774556-scaled.jpg) Excelas was excited to return to in-person seminars for the recent **DRI Medical Liability and Health Care Law **conference in Las Vegas. The two days were full of cutting-edge defense issues which reaffirmed Excelas’ commitment to providing innovative tools to support our clients as they navigate the complex medical issues of their cases. ![DRI](https://excelas1.com/api/media/file/2021-08-logo-1-e1628632186568.png) ![DRI](https://excelas1.com/api/media/file/2021-08-logo-1-e1628632186568.png) Presentations highlighted the importance of **early case valuation** considering not only standards of care, but also damages and defensibility. [Medical record](/clinical-analysis) review is an initial step to _“counter anchor”_ a plaintiff’s anchor damages valuation. Medical record review by Excelas’ experienced analysts includes not only [Medical Chronologies](/clinical-analysis), [Case Summaries](/clinical-analysis), and [Strength and Weakness Assessments](/case-triage), but also an [Early Risk Assessment](/case-triage) which provides a quick appraisal of allegations and related medical injuries. If exact allegations are not provided, this high-level medical record review is the perfect tool to assess potential areas of liability. Whichever work product is chosen, Excelas provides initial medical information to expeditiously begin the process of case valuation. The **COVID-19** pandemic continues to affect us all with cases again on the rise. Clark County Nevada has seen an increasing number of cases. By July 29th, the second day of the DRI conference, this resulted in a mandate to return to wearing masks while indoors. The presentations regarding the Effects of COVID-19 on Communities of Color and the Effects of COVID-19 on Pregnancy highlighted some of the vulnerabilities to the virus. As the state of [immunity](/blog/prep-act-in-ltc-settings) orders plods its way through the courts, Excelas has been hard at work with clients creating [timelines](/blog/corporate-covid19-timeline) which include Federal, State, County, and even corporate guidance that was provided to attempt to control the pandemic. The [COVID-19 Comprehensive Database](/defense-readiness) provides clients with a concise report of what guidance was in effect at any given time during the pandemic. This data is invaluable in early case evaluation when incorporated into a chronology with the medical records of individual cases. Excelas is looking forward to attending (in-person) the 2021 Senior Living and Long Term Care Litigation Seminar in September. [DRI Website](https://www.dri.org/) [Excelas Approach](/about) [Testimonials](/about) ## The PREP Act and State Laws: COVID-19 in Long-Term Care Settings https://excelas1.com/blog/prep-act-in-ltc-settings ### The PREP Act and State Laws: COVID-19 in Long-Term Care Settings _2021-07-08 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > As of June 2021, the Hunton Andrews Kurth COVID-19 Complaint Tracker reported that 255 wrongful death suits have been filed against healthcare providers, with LTC providers accounting for at least 20% of those cases. California, Florida, Texas, New Mexico and Kansas account for over half of these claims. Many states have implemented immunity provisions for healthcare facilities, including senior living, as a result of the pandemic. In addition, the Public Readiness and Emergency Preparedness Act (PREP Act) provides some immunity to facilities on the federal level. However, the PREP Act and state immunity provision have not preempted state tort claims in all cases to date. As of June 2021, the Hunton Andrews Kurth COVID-19 Complaint Tracker reported that 255 wrongful death suits have been filed against healthcare providers, with LTC providers accounting for at least 20% of those cases. California, Florida, Texas, New Mexico and Kansas account for over half of these claims. Many states have implemented immunity provisions for healthcare facilities, including senior living, as a result of the pandemic. In addition, the Public Readiness and Emergency Preparedness Act (PREP Act) provides some immunity to facilities on the federal level. However, the PREP Act and state immunity provision have not preempted state tort claims in all cases to date. ![ACI National Forum - COVID-19 Liability LTC & Senior Care Providers Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2021-02-stethoscope.jpg) #### **Background of PREP Act** The PREP Act was first passed in 2005 in response to the Avian Flu and is meant for public health emergencies. The Secretary of Health and Human Services (HHS) declared the [PREP Act](https://www.federalregister.gov/documents/2020/03/17/2020-05484/declaration-under-the-public-readiness-and-emergency-preparedness-act-for-medical-countermeasures) effective as of February 4, 2020, and ending as late as October 1, 2025. The intent is to encourage expeditious development and deployment of medical countermeasures during a public health emergency, thereby limiting legal liability for losses relating to the administration of medical countermeasures such as diagnostics, treatments, and vaccines. Under this Declaration, “covered persons” are generally immune from legal liability, with the exception of death or serious injury caused by “willful misconduct.” In March 2021, the [Congressional Research Service](https://crsreports.congress.gov/product/pdf/LSB/LSB10443) explained that in “the PREP Act, Congress made the judgment that, in the context of a public health emergency, immunizing certain persons and entities from liability was necessary to ensure that potentially life-saving countermeasures will be efficiently developed, deployed, and administered.” The requirements for PREP Act immunity include: - The individual or entity must be a “**covered person**” who prescribe, dispense, or administer covered countermeasures (including long-term care facilities) - The legal claim must be for a “**loss**” which include: death; physical, mental or emotional injury; illness; disability or condition; fear of such injury including medical monitoring costs; and loss of or damage to property, including business interruption loss - The loss must have a “**causal relationship**” with the administration of a covered countermeasure - The medical product that caused the loss must be a “**covered countermeasure**” including vaccines, drugs, biological products, therapeutics and devices approved or otherwise authorized by the FDA The language in all of these elements is broad and may be subject to interpretation by the courts. The PREP Act does allow for serious physical injury and death claims to be filed with the Countermeasures Injury Compensation Program. The General Counsel of HHS has issued six advisory opinions since this declaration of the PREP Act, which do not have the force or effect of law but may inform the courts. The most recent issued on January 8, 2021, discussed the PREP Act as a “Complete Preemption” Statute. It further defined non-use of covered countermeasures as triggering the PREP Act immunity. Examples of “non-use” of a countermeasure include failure to administer the vaccine to a person in a less vulnerable population when vaccines were prioritized due to scarcity. Another example of “non-use” could relate to lack of PPE at a facility as provided by the federal government. However, the court in _Lutz v. Big Blue Healthcare_ did not agree with this view of non-use. #### **Overview of State Immunity Laws/Regulations** Seyfarth Shaw LLP provides a [survey](https://www.jdsupra.com/legalnews/50-state-survey-of-liability-98243/) of executive and legislative actions in each state that protect healthcare providers from liability arising from the COVID-19 pandemic. 26 states have implemented immunity provisions for senior living and other healthcare providers for acts or omissions during the pandemic. The PREP Act may protect facilities in states without these immunity provisions. ##### **Examples of Cases** - April 2021: S. District Court for the Northern District of Illinois decided a case of neglect and misconduct can move forward against Westchester Health nursing home (operated by Aperion Care) despite Illinois’ immunity laws. The judge said the immunity order does create liability for nursing homes accused of intentional or negligent conduct, although Westchester argued the state’s executive order granted immunity to long-term care facilities from neglect claims and doesn’t create liability for willful and wanton misconduct. - March 2021**: **_Holman v. Knollwood Nursing Home, LLC et al_. The nursing home is arguing the case should be referred to federal court under the PREP Act. The family claims the patient’s death was caused by placement of a COVID-19 positive resident in her room without appropriate interventions. - February 2021: _Dupervil v. __Alliance Health Operations_: New York District court found the PREP Act does not preempt state law tort claims. This court did not agree with the January 8, 2021, HHS advisory opinion of “complete preemption.” - November 2020: _Robertson v. Big Blue Healthcare, Inc. et al_. The lawsuit alleges negligence by Riverbend Post-Acute Rehabilitation that include lack of adequate staff, allowing infected employees to enter the facility, and failure to adopt social distancing. The case is currently in federal court under the PREP Act. - October 2020: _Sherod v. Comprehensive Healthcare __Management Services, LLC_: A Pennsylvania federal judge ruled the plaintiff’s allegations of negligence, misrepresentation, and wrongful death fell outside the PREP Act because they related the facility’s alleged failure to use countermeasures. The case was remanded to the Allegheny Court of Common Pleas. - August 2020: _Estate of__Maglioli v. Andover SubAcute __Rehabilitation Center I_: The estates sued for negligence, wrongful death, and medical malpractice due to the nursing homes’ failure to take precautions against COVID-19. The court disagreed that the PREP act displaced the state law causes of action. The court stated the Act “does not, by its plain terms, cover more generally the care received by patients in healthcare facilities,” to include the facility’s decision to do nothing in the face of a COVID-19 outbreak. - May 2020: _Martin v. Hollywood Premier Healthcare Center. _ Case was moved back to federal court a second time and is pending. #### **Outlook for Long-Term Care Providers** According to [Dechert LLP](https://www.jdsupra.com/legalnews/prep-act-immunity-does-not-preempt-most-13396/), owners and operators of nursing homes and other senior living facilities, who should conservatively expect that claims alleging failure to take appropriate protective action, or non-compliance with alleged standards, will be treated as outside PREP Act protection. The PREP Act should still preempt claims based solely on the _use_ of covered “countermeasures.” But in most suits involving personal injury or wrongful death alleging a _failure_ to act appropriately in response to COVID-19, the PREP Act likely will not fully supplant state law or provide for federal jurisdiction. Documentation of compliance with federal, state, and local guidelines is critical in managing these lawsuits. As emphasized in McKnight’s Long-Term Care News, [documentation](https://www.mcknights.com/marketplace/marketplace-experts/best-practices-for-protecting-leaders-and-facilities-from-covid-19-lawsuits/) should be digitized and include a chronology of actions taken to prevent or minimize the spread of the virus. ##### **How Excelas is Supporting Long-Term Care Providers** As organizations wait for judges to arbitrate the PREP Act and state immunity provisions, this precious time can be used to continue to prepare. Excelas’ structured timelines are an excellent way to document, preserve, organize, and present the actions taken to ensure a safe environment during the initial stages of the COVID-19 outbreak in March, up to and including any current changes made by your organization. We have found that companies who have taken the time to acquire and organize all the relevant documentation are in the strongest position to defend themselves against COVID-related allegations. Looking at your response retrospectively may seem daunting, but it is absolutely necessary to build a timeline of events and actions (from a risk mitigation perspective). The more time that passes, the more difficult this essential process will be. Through our software, all information can be merged into an individual patient or resident’s medical chronology to exhibit a comprehensive, sequential record of all relevant standards and expectations at a specific point in time. [Employer's Defense Against COVID-19 Claims](/blog/corporate-covid19-timeline) [Contact Us](/contact) [Covid-19 Comprehensive Database](/defense-readiness) ## Telehealth Access After the Public Health Emergency https://excelas1.com/blog/telehealth-after-the-phe ### Telehealth Access After the Public Health Emergency _2021-07-08 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > While HHS has renewed the Public Health Emergency (PHE) through July 19 and is expected to remain in effect through the end of the year, many states are allowing their public health emergency orders to expire. The expiration of these PHE orders will impact the use of telehealth in all settings, including long-term care. While HHS has renewed the Public Health Emergency (PHE) through [July 19](https://www.jdsupra.com/legalnews/hhs-renews-covid-19-public-health-7460982/) and is expected to remain in effect through the end of the year, many states are allowing their public health emergency orders to expire. The expiration of these PHE orders will impact the use of telehealth in all settings, including long-term care. ![Telemedicine COVID-19 pandemic LTC Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2021-04-couple-on-screen.jpg) During the PHE, [CMS waivers allowed telehealth services furnished by physicians and other covered practitioners (subject to state laws) to Medicare patients to include](/blog/telemedicine-covid19-impact) telehealth visits between a provider and new _or_ established patients, virtual check-ins via telephone, E-visits through an online patient portal, the elimination of geographic restrictions for patients and providers, and allowing providers to furnish services outside their state of licensure. On the federal level, there is bipartisan support for several bills relating to telehealth, including the [Telehealth Modernization Act](https://www.scott.senate.gov/media-center/press-releases/scott-schatz-shaheen-introduce-bipartisan-legislation-to-increase-access-to-telehealth-in-the-midst-of-the-pandemic), the [CONNECT for Health Act of 2021](https://www.schatz.senate.gov/imo/media/doc/CONNECT%20for%20Health%20Act%20of%202021_Summary.pdf) (Creating Opportunities Now for Necessary and Effective Care Technologies), the [Protecting Rural Telehealth Access Act](https://www.manchin.senate.gov/imo/media/doc/protecting_rural_telehealth_access_act_one_pager.pdf?cb), and the [Telemental Healthcare Access Act of 2021](https://www.cassidy.senate.gov/newsroom/press-releases/cassidy-smith-cardin-thune-introduce-bill-to-remove-barriers-to-telemental-health-care). Legislation is needed in order for the waivers enacted during the COVID-19 pandemic to become permanent on a national level. Many states have allowed their public health emergency orders to expire, thus ending some flexibility for telehealth. For example, as of June 26, healthcare providers in [Florida](https://health.wusf.usf.edu/health-news-florida/2021-06-29/telehealth-could-suffer-after-expiration-of-state-emergency-order) can no longer use audio-only telehealth platforms for non-Medicare patients, prescribe controlled substances via telehealth, continue telemental health services at the current level for Medicaid patients, and allow providers from other states to virtually treat Florida residents. In Alaska, the emergency provision that allowed out-of-state providers to practice telehealth has also expired. Meanwhile, Idaho and [Delaware](https://whyy.org/articles/pandemic-silver-lining-emergency-telehealth-expansion-made-permanent-in-delaware/) have made many emergency rules related to telehealth permanent, and [Connecticut](https://portal.ct.gov/Office-of-the-Governor/News/Press-Releases/2021/05-2021/Governor-Lamont-Signs-Legislation-Extending-Telehealth-Services-for-Another-Two-Years) has extended COVID-19 telehealth coverage for two years. Clearly, telehealth regulations, particularly for non-Medicare patients, will be varied among the 50 states as the PHE comes to a close. **Excelas will continue to monitor developments related to telehealth and its impact on the delivery of healthcare in the long-term care setting.** [The Impact of the COVID-19 Pandemic on Telemedicine in Long Term Care](/blog/telemedicine-covid19-impact) [Telemedicine: Considerations for Documentation and Medical Records](/blog/telemedicine-considerations-for-documentation-and-medical-records) ## Managing Expectations: End-of-Life Care https://excelas1.com/blog/end-of-life-care-expectations ### Managing Expectations: End-of-Life Care _2021-06-21 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Our staff had the opportunity to attend a discussion on Setting Realistic Expectations for Collaborative End-of-Life Care Planning in Senior Living Communities presented by the Adelman Law Firm. Rebecca Adelman and her team have developed “Expectations Management” programs that have been implemented in senior living communities throughout the country. These programs have been central to mitigating risk, improving quality of care, quality end-of-life care and enhancing staff satisfaction, while reducing turnout. This case study relates to a professional negligence claim arising at an Assisted Living Facility (ALF). ![Kennedy Terminal Ulcer Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-01-nurse-caring-for-patient.jpg) Over 835,000 Americans reside in ALFs, and the majority of those are over 85 years-old. Of note, most claims arise from care issues during the first two weeks or the last two months of residency in an ALF or skilled nursing facility (SNF). A case analysis illustrated tools for reducing claims and litigation risks relating to end-of-life expectations, including staff training, communication among providers and with families, and documentation policies and procedures. ##### **Case Discussion** A female was admitted to a memory care unit. Chronic conditions on admission included coronary artery disease, Alzheimer’s dementia, hypertension, hyperlipidemia, and osteoarthritis. In addition, poor food intake was noted, and she was well below weight for her stature. Initially the resident was a Full Code status. During the nine-month ALF residency she had four hospitalizations for falls, respiratory infection, and change in mental status. Two weeks prior to death, she was changed to DNR/no interventions. The cause of death included congestive heart failure, myocardial infarction, and coronary artery disease. Claims against the facility included falls with injury, medication errors, and failure to thrive. During a deposition, when the daughter was asked about her expectations of the facility on admission, she testified she “didn’t know what to expect.” She had no discussion with her mother about her wishes regarding care or her prognosis. She was unaware of her mother’s wishes for end-of-life care. The daughter stated that the family did not discuss these issues, but added she expected her mother not to have any falls, expected her mother to have rehabilitation, and did not expect her to die. Why did the daughter file a lawsuit? The facility knew about her mother’s condition and options and goals were not discussed with the family. The daughter felt the community over-represented what it could do. The lawsuit settled for $245,000, with additional costs including, but not limited to, nine months of litigation, the insured’s deductible, defense costs, costs of hospital admission, and hours relative to community human resource costs. Unquantifiable costs included impact on staff and well-being, cost to the institution, impact on insurance premium, and potential reputational damage to the facility. “Unmet expectations by residents and family members regarding clinical conditions, prognosis, and the trajectory of illness leads to confusion, anger and dissatisfaction. When a negative outcome occurs, evidence establishes that families want to blame someone. These feelings drive decisions about hiring an attorney and pursuing a claim”, says Ms. Adelman. ##### **Tools for Reducing Risk** As evidenced in this case study, realistic expectations for end-of-life care are essential. The need for clear communication and shared decision-making with the family upon admission to the ALF/SNF can improve satisfaction and the grief process. It was noted that 90% of DNRs are put in place by surrogates, as many residents are in cognitive decline. Discussing and documenting EOL issues and plans with residents and families ensures patient centered care, which may include palliative care and hospice care. Ms. Adelman adds that “By understanding and managing expectations along the continuum of care, not only is risk mitigated but residents, families and staff experience better end-of-life care and are more fulfilled.” ##### **Palliative and Hospice Care in Senior Living** Ms. Adelman stressed the importance of communicating the differences between palliative and hospice care to the resident’s family. While each of these options focus on quality of life and symptom relief, palliative care is available as soon as a long-term diagnosis is received. Hospice care, which is a type of palliative care, is available to anyone with a terminal illness whose doctor determines they have less than six months to live. [Palliative care](https://www.nia.nih.gov/health/what-are-palliative-care-and-hospice-care) is a resource for patients living with a serious, long-term illness. The intent is to improve the quality of life through symptom management and can be provided along with curative treatments. The palliative care team is multidisciplinary and includes the patient, family, doctors, nurses, social workers, nutritionists, chaplains, and others to assist in providing social, emotional, and practical support. Palliative care can be provided in any setting. In instances when hospice care is initiated, the Centers for Medicare & Medicaid Services (CMS) has clear [guidelines](https://www.cms.gov/files/document/creating-effective-hospice-plan-care.pdf) on creating and coordinating successful plans of care. The CMS Fact Sheet states “The primary goal of hospice care is to meet the holistic needs of an individual and his/her caregiver/family for whom curative care is no longer the preferred option. To support this goal, the hospice provider develops an individualized plan of care (POC), established by an Interdisciplinary Group (IDG) and overseen by a Registered Nurse (RN) coordinator.” ##### **Documentation** Medicare requires that the Hospice Plan of Care include the following elements: 1. Interventions to manage pain and symptoms 2. A detailed statement of the scope and frequency of services necessary to meet the specific patient and family needs 3. Measurable outcomes anticipated from implementing and coordinating the POC 4. Drugs and treatments necessary to meet the needs of the patient 5. Medical supplies and appliances necessary to meet the needs of the patient 6. The IDG documentation of the patient’s or representative’s level of understanding, involvement, and agreement with the POC, in accordance with the hospice’s own policies, in the clinical record The Social Security Act requires that hospices submit data through the Hospice Item Set, which in turn is publicly reported through the Hospice Quality Reporting Program. Even if a resident is not covered by Medicare, documentation guidelines, which provide a clear picture of the patient’s condition and symptoms to support the terminal prognosis, are applicable. ![Monitored Atypical Antipsychotic Drugs Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-01-stethoscope-laptop-medical-records.jpg) ##### **False Claims Acts** Although not discussed in this presentation, facilities must also be cognizant of the appropriate use of hospice. The Department of Justice has filed multiple cases under the False Claims Act with allegations including: - Admitting patients not hospice appropriate - Maintaining patients not actively dying - Kickbacks to physicians to bolster referrals - Categorizing patients in higher intensity levels (i.e. General Inpatient Care @ $1,045.66/day vs. Routine Home Care @ $199.25/day) Documentation plays a key role in these cases. In audits conducted by Excelas, red flags included: - No certification present or initial certification not performed in a timely manner - Subsequent/recertifications not timely - Physician narrative statement not present or valid - No plan of care - Face to face requirements not met - No certification for dates billed While the 11th Circuit Court of Appeals agreed in September of 2020 that a difference of physician’s opinions on a terminal patient’s prognosis does not indicate falsity under the FCA, there have been other cases which have allowed a jury verdict. Consistent documentation is key to the defense. ##### **Barriers to Setting Expectations for EOL Care** Several barriers to setting clear expectations with residents and family members were identified and included: - Lack of training of staff – to recognize the need for palliative/hospice care - Lack of a standardized assessment of terminal status - Communication gaps – among professional staff and with resident/family - Lack of access to hospice services - Issues created by joint management – including outside hospice providers - Issues created by transitions across care settings - Other delivery system issues ##### **Takeaways** These elements of an individualized plan developed by a team, including key caregivers/family members with a designated person for oversight, can facilitate establishing realistic expectations upon admission for all residents of an ALF/SNF, not only those on hospice. Facilities should have procedures regarding: - Where documentation of the end-of-life discussion is found in the records (admission documents, care planning section) - What is included in the documentation (e.g., EOL care options, patient wishes) - Who is responsible for the EOL discussion (e.g., PCP, nursing, admission counselor, social services, case manager) - Training for all staff on EOL issues and protocols In the case study above, had these steps been initiated upon admission to the ALF, the resident’s daughter would have been involved in the decision-making and planning, and would have known “what to expect” as her mother’s condition progressed. As noted earlier, with many claims occurring in the first two weeks of residency, facilities need to emphasize early discussions with the resident and family rather than waiting until the resident’s health prompts discussions. Setting expectations early improves quality of care/quality of life, family satisfaction, staff recruiting and retention, and reduces risk liability. For more information on “Expectations Management Program for Long-Term Care Communities”, Ms. Adelman can be reached at [rebeccca@adelmanfirm.com](mailto:rebeccca@adelmanfirm.com). [Read more Blogs](/blog) [Follow us on LinkedIn](http://www.linkedin.com/company/2637621/admin/) #### Contact us for more information. ## A Corporate COVID-19 Timeline – An Employer’s Defense Against Claims https://excelas1.com/blog/corporate-covid19-timeline ### A Corporate COVID-19 Timeline – An Employer’s Defense Against Claims _2021-05-18 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > While employers did their best to act quickly and execute on the recommended health and safety protocols for COVID-19, we may now be witnessing a new wave of issues – lawsuits filed by employees who do not feel their employers “did enough” to keep them safe. Excelas, LLC can help you defend COVID-related claims and/or litigation by preparing and displaying your company response to this global pandemic. #### **The Rise of COVID-Related Claims – Employers Beware** ![woman on laptop](https://excelas1.com/api/media/file/2021-02-women-on-computer-3.jpg) Last year the world, our families, and all organizational leaders had to react and respond to the unprecedented challenges and disruption caused by the COVID-19 Pandemic. While employers did their best to act quickly and execute on the recommended health and safety protocols, we may now be witnessing a new wave of issues – lawsuits filed by employees who do not feel their employers “did enough” to keep them safe and other COVID-related claims and/or litigation. Now, it is time to look back and reflect on all that was done. Employers should acknowledge the decisions they made and remember the details of the things that happened during 2020, including all the policies and protocols they implemented. Having a clear picture of how they managed through the Pandemic will be vital if an employee decides to take action against them. > **“No one wants to think about being sued, but this is the reality we face in this post-Pandemic time” explains Stella Skaljac, Founder of **[**ImagineHR**](https://www.imaginehrconsulting.com/)**, a human resource consulting practice dedicated to keeping employers out of legal troubles by helping them be proactive. As an employment attorney, Skaljac knows how crucial it is to “stay ahead of the game” and make sure an employer’s internal COVID documentation is organized and reflective of “good faith and due diligence” on the part of the employer. It is important for many reasons, not the least being able to respond to the legal claims that have already begun**. According to the international law firm of Littler Mendelson, on April 23, 2021: [Since March 12, 2020, there have been 2,314 lawsuits (including 186 class actions) filed against employers due to alleged labor and employment violations related to the coronavirus. States with the most filings include: California (581); New Jersey (274); Florida (181); New York (169); and Ohio (148).](https://www.littler.com/publication-press/publication/covid-19-labor-employment-litigation-tracker) While many of the claims noted by Littler Mendelson are in healthcare, others are in distribution, manufacturing, and construction. Employees claim that their employers did not do enough to maintain their safety. In addition, they claim negligence and reckless disregard in relation to the action (or inaction) of their employers to manage COVID-19 in the workplace. In addition, a recent article by [All Things Work by HR Magazine](https://lp.shrm.org/index.php/email/emailWebview?md_id=67444) also stated: > Worries over workplace safety in the COVID-19 era, as well as concerns about the impacts of business closings, plant shutdowns, and mandatory stay-at-home orders, spawned more than 2,000 lawsuits over the past 14 months according to Atlanta-based employment law firm Fisher Phillips.**Proactive Litigation Preparation – What Employers Can Do Now** In light of the recent news and research pointing to a growing trajectory of COVID-related lawsuits, Excelas was determined to help. The team at Excelas is now expanding their solutions from strictly healthcare to other industries. Their innovative solution – The Corporate COVID-19 Timeline – will help any employer proactively mitigate against COVID-related claims. Based upon our research, it is clear that companies are struggling to document, organize and retain the proactive steps they took during the Pandemic to assure the health and safety of their employees and workplaces. We have found that most employers took action or communicated with their teams, but unfortunately do not have this information organized or safeguarded. If a member of the leadership team made a decision, updated a policy, reorganized a workspace, changed on-site employee schedules, sent an email, conducted safety training, where was the evidence maintained? What happens if that individual is no longer in your employ when a claim is brought against your organization? Our structured Timelines are an excellent way to document, preserve, organize, and present the actions your organization took to address workplace safety during the initial stages of COVID-19 outbreak in March 2020 to the present. We have found that organizations that have taken the time to acquire all the relevant documentation are in the strongest position to defend themselves against COVID-related allegations. Looking at the organization’s response retrospectively may seem daunting, but it is absolutely necessary to build a timeline of events and actions (from a risk mitigation perspective). The more time that passes, the more difficult this essential process will be. ###### **Continued Risks with Reopening and Concerns over Liability Shields** The complexity for employers will continue as offices start reopening and employees return to the workplace, at times with employee hesitance and reluctance. [All Things Work by HR Magazine](https://lp.shrm.org/index.php/email/emailWebview?md_id=67444) reinforced this point, stating: As coronavirus vaccines become widely available, there is reason to hope that the workplace will soon return to normal. But risks remain for employers. Decisions concerning how and when a business reopens, who gets called back first, and how to protect employees after a return to the office will almost certainly spark new conflicts and lawsuits. In the unfortunate situation that there is a COVID-related incident as your staff returns to work, the best way to protect your organization is to document, organize, preserve, and timeline the manner in which you prepared. This is key not only to assure your workplace and workforce remain safe, but to effectively respond if there is a potential future issue or claim. Although some states have enacted liability shields blocking COVID-related claims against employers, these laws do not prevent federal lawsuits. Skaljac (as well as other employment attorneys) believe that “these laws may not be ironclad, and immunity laws will likely be challenged through crafty claims and litigation.” ###### **Final Takeaway and Recommended Best Practices** To remain proactive and begin to build your defense, Excelas recommends that employers collect and organize facility and office policies and protocols associated with: - Handwashing, Disinfecting, and PPE Usage - Temperature-Taking - Social Distancing - Scheduling Adjustments - Physical Changes to the Environment - Visitor Entry Protocol - Travel Restrictions - Infection Control Standards - Infection Surveillance - Education and Communication - Family First Coronavirus Response Act Leave - Vaccination Policies - Remote Work Policies - Return to Work Plan and Rationale After gathering all documentation (i.e. internal memos, policies, forms, etc.) associated with their Pandemic protocols, employers will then submit all company documents to Excelas to be organized and verified through a gap analysis. To augment your company’s response documentation, Excelas has collected and chronologized the Federal and State COVID-related guidance that may be integrated into your Corporate COVID-19 Timeline. > This post-pandemic time is riddled with uncertainty and risk. Be prepared to defend your case and protect your organization. Getting started is easy, simply connect with us today! Sources [https://www.law.com/njlawjournal/2020/11/03/people-are-now-suing-their-bosses-over-covid-19-at-work-but-can-they-win-in-court/](https://www.law.com/njlawjournal/2020/11/03/people-are-now-suing-their-bosses-over-covid-19-at-work-but-can-they-win-in-court/) [https://www.hrdive.com/news/nearly-a-year-into-the-pandemic-employers-brace-for-coronavirus-lawsuits/594068/](https://www.hrdive.com/news/nearly-a-year-into-the-pandemic-employers-brace-for-coronavirus-lawsuits/594068/) [https://www.jdsupra.com/legalnews/covid-19-related-litigation-surges-what-12639/](https://www.jdsupra.com/legalnews/covid-19-related-litigation-surges-what-12639/) [https://www.jdsupra.com/legalnews/covid-infections-may-be-down-but-covid-8603689/](https://www.jdsupra.com/legalnews/covid-infections-may-be-down-but-covid-8603689/) [https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/what-employers-need-to-know-about-covid-19-liability-shields.aspx](https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/what-employers-need-to-know-about-covid-19-liability-shields.aspx) [Connect with Excelas](/contact) [Read More Perspectives](/blog) [Follow Us on LinkedIn](https://www.linkedin.com/company/excelas-llc/) [Collaboration and COVID-19](/blog/collaboration-during-covid19-demands-new-directions) ## The Impact of the COVID-19 Pandemic on Telemedicine in Long Term Care https://excelas1.com/blog/telemedicine-covid19-impact ### The Impact of the COVID-19 Pandemic on Telemedicine in Long Term Care _2021-04-27 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > A report by FAIR Health found private payer telehealth claims increased 3,000% in 2020. Is this level of telehealth use here to stay and if so, what is the impact on the long-term care setting? ![Telemedicine during the COVID-19 pandemic for LTC Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2021-04-Doctor-looking-at-couple.jpg) ###### “Meteoric” is the term the U.S. Secretary of Health and Human Services used to describe the rise in the use of telemedicine/telehealth since the beginning of the pandemic in March 2020. Almost 40% of the 63 million Medicare enrollees received some sort of telemedicine service in the first seven months of the public health crisis. A report by FAIR Health found private payer telehealth claims increased 3,000% in 2020.* Is this level of telehealth use here to stay and if so, what is the impact on the long-term care setting? As discussed previously in the Excelas blog on [telemedicine and documentation](/blog/telemedicine-considerations-for-documentation-and-medical-records), telemedicine or telehealth is a means to connect patients to healthcare services and education remotely through technologies like the internet, videoconferencing, streaming media, and wireless communications. It can include virtual visits, chat-based interactions, and remote patient monitoring. While telehealth had been gaining momentum for several years, the quarantine restrictions created by the pandemic pressed long-term care facilities into action in order to provide high-quality and safe care for their residents. ##### **Government Initiatives** In March 2020 the [Centers for Medicare & Medicaid Services (CMS)](https://www.cms.gov/) expanded the use of telehealth under the 1135 waiver authority and the Coronavirus Preparedness and Response Supplemental Appropriations Act. The intent is to ensure Medicare beneficiaries, who are in a higher COVID-19 risk category, are able to visit their provider from their place of residence without the risk of going into an office or hospital. Under this waiver, while the Public Health Emergency (PHE) is in place, payable services furnished by physicians and other covered practitioners (subject to state laws) to nursing home patients include: - Medicare telehealth visits between a provider and new _or_ established patients. - Virtual check-ins of 5-10 minutes with a resident’s established practitioner via telephone or other device to determine if an office visit is needed. - E-visits between a resident and their established provider through an online patient portal. Other important changes under this waiver include **the elimination of geographic restrictions** for patients and providers and allowing providers to furnish services **outside their state of licensure**. CMS published the [Long-Term Care Nursing Homes Telehealth and Telemedicine Tool Kit](https://www.cms.gov/files/document/general-telemedicine-toolkit.pdf) to assist facilities with telehealth implementation. Of note, penalties may be waived for HIPAA violations against healthcare providers that “serve patients in good faith through everyday communication technologies, such as FaceTime or Skype” during the COVID-19 emergency. For example, if telehealth cannot be provided in a private setting, reasonable precautions could include using lowered voices, not using a speaker phone, or having the patient move a reasonable distance from others when discussing PHI. Along with the federal government, [many states have temporarily removed policy barriers to telehealth utilization during the pandemic](https://www.cchpca.org/covid-19-related-state-actions). Private payers have also temporarily modified telehealth coverage during the PHE, including reimbursing providers at the in-person rate. Making these changes permanent requires an act of Congress. Bipartisan legislation was introduced in February 2021 in both the House and the Senate under the [_Telehealth Modernization Act_](https://www.scott.senate.gov/media-center/press-releases/scott-schatz-shaheen-introduce-bipartisan-legislation-to-increase-access-to-telehealth-in-the-midst-of-the-pandemic) to ensure access to telehealth services for Medicare beneficiaries once the public health emergency expires. These bills are strongly supported by many professional organizations, including the American Telemedicine Association, whose CEO noted “access to telehealth is no longer an option in today’s society, it is an essential component of care delivery.” The March 2021 Medicare Payment Advisory Commission (MedPAC) [_Report to the Congress: Medicare Payment Policy_](http://medpac.gov/docs/default-source/press-releases/march-2021-medpac-report-press-release.pdf?sfvrsn=0) proposes a continuation of telehealth services. This recommendation is for a specified duration after the PHE is over with a goal of collecting data regarding access to care, quality of care and spending. ##### **Documentation** According to the American Health Information Management Association’s “[Telemedicine Services and the Health Record](https://healthsectorcouncil.org/wp-content/uploads/2018/08/AHIMA-Telemedicine-Toolkit.pdf)” Practice Brief, telemedicine records should be kept in the same manner as other health records. Basic guidelines for a telemedicine encounter include: - The telemedicine provider must assess the patient’s need for telemedicine services/orders through an identification assessment process prior to scheduling the appointment.is responsible for accurately documenting all required content during the telemedicine encounter.reviews telemedicine orders.incorporates telemedicine orders into the treatment plan.documents all steps and required follow-up. - Documentation of the physical location of the provider and the patient must be included. In addition, the names of all persons participating in the telemedicine service, along with their role in the encounter, must be recorded. This becomes important in the long-term care facility as staffing, particularly during the pandemic, is often reduced. It may not be feasible to have a nurse assist the resident with the telehealth visit, so clear documentation of who is present, as well as the type of training they have received to assist with telehealth visits, is essential. Long-term care facilities should have procedures in place to ensure the documentation from the provider for the telehealth visit is incorporated into the resident’s record in the same manner as if it were an in-office visit. Consideration regarding the participation of family members in a telehealth visit, and the documentation of such, should also be included in telehealth policies. Procedures to ensure patient privacy should also be in place, even with the more lenient HIPAA guidelines. ##### **Continuing Developments** A survey of physicians and other healthcare professionals, [the COVID-19 Healthcare Coalition Telehealth Impact Study](https://c19hcc.org/telehealth/), indicated they would like the following types of visits to continue via telehealth after COVID-19: chronic disease management, medical management, care coordination, hospital/ER follow-up, specialty care, mental/behavioral health, and acute care. Telehealth visits could become standard procedure as these are common types of visits for long-term care residents. This same survey noted that the top barriers to the use of “virtual care” after the pandemic included low/no reimbursement, technology challenges for patients, liability, and integration with the electronic health records. Providers will continue to be guided by CMS, as well as state and private insurers, regarding reimbursement guidelines. State legislatures are debating the continuation of loosening licensing requirements in allowing providers to practice across state lines. Tech companies are continuing to expand and develop tools to facilitate virtual visits and remote monitoring. > Excelas will continue to closely follow all developments related to telehealth in long-term care settings, including the _Telehealth Modernization Act_, and its impact on telehealth benefits for Medicare recipients in the future. [Connect with Excelas](/contact) [Read more Perspectives](/blog) [Follow us on LinkedIn](https://www.linkedin.com/company/excelas-llc) [COVID-19 Collaboration](/blog/collaboration-during-covid19-demands-new-directions) ## The Rationale for a Medical Literature Chronology Database https://excelas1.com/blog/the-rationale-for-a-medical-literature-chronology-database ### The Rationale for a Medical Literature Chronology Database _2021-03-12 · Filed under [Whitepaper](https://excelas1.com/blog/categories/whitepaper)_ > Risk managers, industry experts, and long-term care leaders have been discussing the importance of the following in defending COVID-19 claims and litigation cases: • Federal Guidance • State Guidance • Local Guidance • Company Response to the Guidance • Facility Response to the Guidance Excelas, LLC has been instrumental in developing a way to memorialize all this information in an easy to use, cloud-based system. Will this be all we reference? We believe there is an additional layer to the already voluminous amount of information individuals and providers were being forced to evaluate on a daily basis – the medical treatment expectations, and how they were changing throughout 2020. Through our software, all information can be merged into an individual patient or resident’s medical chronology to exhibit a comprehensive, sequential record of all relevant standards and expectations at a specific point in time. Sharon Ezzone, MBA, Excelas, LLC., Vice President, Operations ##### **INTRODUCTION** Risk managers, industry experts, and long-term care leaders have been discussing the importance of the following in defending COVID-19 claims and litigation cases: - Federal Guidance - State Guidance - Local Guidance - Company Response to the Guidance - Facility Response to the Guidance Excelas, LLC has been instrumental in developing a way to memorialize all this information in an [easy to use, cloud-based system.](/defense-readiness) **Will this be all we reference?** We believe there is an additional layer to the already voluminous amount of information individuals and providers were being forced to evaluate on a daily basis – the medical treatment expectations, and how they were changing throughout 2020. Through our software, all information can be merged into an individual patient or resident’s [medical chronology](/clinical-analysis) to exhibit a comprehensive, sequential record of all relevant standards and expectations at a specific point in time. -Sharon Ezzone, MBA, Excelas, LLC., Vice President, Operations ##### [Read More about the rationale for a medical literature chronology database](/blog/the-rationale-for-a-medical-literature-chronology-database) ###### [Download the PDF version of this White Paper](https://documentcloud.adobe.com/link/track?uri=urn:aaid:scds:US:cbcb320e-4933-43c0-a4e5-f205d2e1882c) ## ACI hosts 2nd National Forum on COVID-19 Liability for Long-Term Care & Senior Care Providers https://excelas1.com/blog/aci-long-term-care-covid19-forum-highlights ### ACI hosts 2nd National Forum on COVID-19 Liability for Long-Term Care & Senior Care Providers _2021-02-25 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > This February, our Founder and President, Jean Bourgeois, attended the ACI’s 2nd National Forum on COVID-19 for Long-Term Care and Senior Care Providers. With outstanding and diverse panels, this one day event covered the many challenging issues relating to best practices for COVID claims and litigation defense, federal and state immunity protections, the threat of class actions, and current challenges in the long-term care insurance industry. ![ACI's National Forum for COVID-19 Liability for LTC & Senior Care Providers Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2021-02-Red-Notebook-Educate-Align-Share.jpg) [COVID19 Demands Collaboration](/blog/collaboration-during-covid19-demands-new-directions) [COVID19 Medical Record Review](/blog/covid-19-record-review) [COVID19 Comprehensive Integrated Timeline Tool](/defense-readiness) [Click here for more articles](/blog) Our commitment to serving our clients in aging services includes staying abreast of current trends in claims and litigation by attending conferences such as the ACI, DRI, and Risk Legal Forum. Even during this pivotal time, conference attendance and sponsorship continue to be an integral part of our business strategy. For many industries, including ours, the traditional conference platform was upended initially with the pandemic; however, thanks to the innovative nature of our industry, we have been able to continue to disseminate relevant information in a virtual platform. This February, our Founder and President, [Jean Bourgeois](/about), attended the [**ACI’s 2nd National Forum on COVID-19 for Long-Term Care and Senior Care Providers**](https://www.americanconference.com/long-term-care-liability/). With outstanding and diverse panels, this one day event covered the many challenging issues relating to best practices for COVID claims and litigation defense, federal and state immunity protections, the threat of class actions, and current challenges in the long-term care insurance industry. > **Experiences at the Heart of the Pandemic** Glenn Fox, Dr. Frank Illuzzii, and John Snader brought us into the heart of their organizations, describing the stark reality of the challenges they faced, the commitment of their colleagues, and the decisions they made to protect their patients, residents, and caregivers. Caroline Berdzik and Max Beach told the compelling stories of bravery by individuals working in aging services. With live video from the roaring wildfires of California to the devastation of the COVID-19 pandemic, the analogies were profound and moving. > **The Shifting Landscape: Immunity and Defense Best Practices** The complex issues surrounding the shifting landscape of federal and state immunity statutes were clearly explained by Olga Kats-Chalfant, Tara Clayton, Drew Graham, and Lori Semlies. Exceptional strategies to avoid the costly and intrusive defense of COVID-19 cases were shared by Dylan Braverman, Rob Marshall, and Michael Brendel. > **Preparing the Defense: Documentation & Communication** Highlighted during the presentations were three best practices for the defense of the potential surge of COVID claims and litigation: documentation, timeline development, and collaboration with counsel. The essential first step in COVID defense preparation is collecting and memorializing the actions and response plan of an organization. Experts throughout each session recommended the following strategies: - Continue to interview staff and capture stories of front-line caregivers - Maintain complete and accurate medical records - Capture resident / patient and family communication - Log staff training and revision to company policies - Document infection control policies and updates - Monitor and record supply chain activities and actual experience with PPE acquisition - Detail COVID testing and isolation measures The second aspect of defense preparation is the development of timelines of federal, state, and local guidance, layered on the organization’s response: what you knew, when you knew it, and what you did. The final step is selecting defense representatives that are able to guide and assist in the first two recommendations of documentation and timeline development. Skilled and experienced partners with the tools to perform these best practices, capture and organize the most impactful information once, and make that information available for all cases if and when the onslaught of litigation occurs. > **The Benefits of Working Together** Our leadership has been providing best-in-class solutions for the aging services industry for decades. The industry’s ability to pivot, communicate, and unite has never been as profound as it has been over the past 11 months. The collaboration of defense and regulatory attorneys, the insurance industry, aging services providers, and consultants continues to inspire us. This is a time that we are proud and grateful to be an active participant in the development of meaningful, timely, and [cost-saving solutions](/clinical-analysis) for those we serve and support. As the conversation continues around the most critical issues, we are confident that our willingness to educate, align, and share will enable us to successfully navigate the storm of pandemic implications that lie ahead. ## COVID-19 demands collaboration and new directions https://excelas1.com/blog/collaboration-during-covid19-demands-new-directions ### COVID-19 demands collaboration and new directions _2020-11-05 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ ![COVID-19 New Direction and Collaboration Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2020-11-Square-New-Direction.jpg) > The conversations and collaboration among friends and colleagues locally, nationally, and here within Excelas have been the foundation I needed to take action, optimistically look toward, and plan for the future. #### An article by President & Founder, Jean Bourgeois, MBA, RHIA ![COVID-19 demands New Direction Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2020-11-Collaboration-COVID19-Direction.jpg) [Explore our Medical Chronology](/clinical-analysis) [Review our Early Risk Assessment](/case-triage) [Learn more about the COVID19 Comprehensive Guidance Database](/defense-readiness) [Click here for more articles](/blog) [Follow Excelas on LinkedIn](https://www.linkedin.com/company/excelas-llc/) According to Forbes, 42% of U.S. Deaths are from nursing homes and assisted living facilities* and each day the statistics become more staggering. In my home state of Ohio, the percentage of deaths was estimated at 70%. As each new disturbing statistic is released, it causes concern about the people, the business, and the industry I care about deeply. As a member of the health care industry for my entire career, an active participant in various professional associations, and the president of a company, I feel fortunate to be involved in the ongoing collaboration, innovation, and sharing of ideas. ##### **In the Industry** During this pandemic, my colleagues in the aging services industry have worked hard to schedule meetings at set times where collaboration can happen and best practices can be considered. We knew it was necessary that our professional organizations and their members work together to develop and design innovative approaches to respond to the challenges that lie ahead. As a result of the conversations among professionals in the [DRI](https://dri.org/), [AHLA](https://www.americanhealthlaw.org/), [CLM](https://www.theclm.org/), and[LTC-Risk Legal Forum](https://www.linkedin.com/posts/excelas-llc_covid-19-legal-defense-tool-activity-6677262868276101120-rDwa) we have been able to create new tools for the industry. These tools, utilized by individuals advocating for the aging services industry will help support our shared goal to resolve claims and defend cases. - _**The **_[_**medical chronology**_](/clinical-analysis)_** with a COVID-19 Topic Chronology**_written in a chronological format to help understand the experience of a single resident inflicted with COVID-19 - [_**Early Risk Assessment**_](/case-triage)offering a high-level overview to help us understand the clinical course of residents early in the case analysis phase - [_**A prototype database of documents**_](/defense-readiness)gathered and presented in chronological format, to help us understand the guidance that was issued for health care organizations since the first notices of the pandemic referred to as our [COVID-19 Comprehensive Integrated Timeline Tool.](/defense-readiness) ##### **In Conversations with Business Leaders** As a member of several organizations of business owners, it became apparent we needed active and regular dialogue to stay connected and support each other. We recognized there were challenges that never could have been anticipated, yet it was time to courageously lead our companies, whatever form that took. By sharing our experiences, information, successes, and obstacles it became possible to let go of what we planned for the year and create a roadmap for our businesses going forward. Collaborating we have been able to: - Generate new approaches to engage colleagues, clients, and our community - Establish plans for the work environment of a distributed workforce - Reimagine our service offerings, and in some cases our entire business to assure they will once again thrive ##### **In my own company** When 2020 arrived, we were energized by our strategic plan and before the end of first quarter it became apparent, we had to rethink and redesign the organization. Although we are primarily a work from home company, early in the pandemic we were tasked with closing our doors at the corporate office. With the insight of our [extraordinarily talented staff,](/about) we were able to create a new structure, new automated solutions, and a [new approach to our work.](https://documentcloud.adobe.com/link/track?uri=urn:aaid:scds:US:ec87742d-75f7-4434-9707-afe03dd58669) After the initial scramble to respond to the challenges of COVID-19, we focused on the following: - Identifying additional technology that would empower the team to successfully and productively work from home - Rethinking our communication strategies and meeting rhythm and structure - Examining what employee engagement will look and feel like in the future - Addressing the impact on our culture of being distanced and what we can do to stay connected, vibrant, and informed as a company - Designing [new tools](/blog/covid-19-record-review), [new reports](/case-triage), and [new databases](/defense-readiness) to meet the needs of our clients ##### **In it Together** The statistics of this pandemic are overwhelming, the impact on our industry devastating, what will happen next, uncertain. Yet the conversations and collaboration among friends and colleagues locally, nationally, and here within Excelas have been the foundation I needed to take action, optimistically look toward, and plan for the future. Perhaps I should seek therapy because sometimes it looks so bright, I need to wear shades. *Roy, A. (2020, May 26). The Most Important Coronavirus Statistic: 42% Of U.S. Deaths Are From 0.6% Of The Population. Retrieved June 10, 2020, from [https://www.forbes.com/sites/theapothecary/2020/05/26/nursing-homes-assisted-living-facilities-0-6-of-the-u-s-population-43-of-u-s-covid-19-deaths/#64f2ec9474cd](https://www.forbes.com/sites/theapothecary/2020/05/26/nursing-homes-assisted-living-facilities-0-6-of-the-u-s-population-43-of-u-s-covid-19-deaths/#64f2ec9474cd) ## COVID-19 Record Review https://excelas1.com/blog/covid-19-record-review ### COVID-19 Record Review _2020-04-21 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ ![COVID-19 Record Review Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2020-04-23311.png) > Healthcare has been threatened as a result of COVID-19 and your facility may have been impacted by high rates of COVID-19 among your residents and/or staff. [COVID-19 Early Risk Assessment](https://documentcloud.adobe.com/link/track?uri=urn:aaid:scds:US:0add10f4-0bd7-4415-9579-3891737316cc) [Medical Record Analysis Services](/clinical-analysis) Healthcare has been threatened as a result of COVID-19 and your facility may have been impacted by high rates of COVID-19 among your residents and/or staff. Excelas, LLC is helping healthcare providers such as yours prepare for the implications of what may come next. Reaction and response depend on your goals and the goals of the organization. While our [approach](/about) is always customized and collaborative, below are ways we are supporting our clients in response to the pandemic. Excelas, LLC will conduct a review of your resident records to determine if key changes in status occurred during a specified time period. This is an independent assessment of the status of your residents and the actions taken in regards to their health, care, and safety. A medical legal analyst will complete a review of your records over a time period of three to six months prior to a change in resident status. A [detailed chronology](/clinical-analysis) will be prepared highlighting key factors: - Possible symptomology, including respiratory symptoms, GI symptoms, muscles aches, headache, and/or fevers - Psychosocial well-being - COVID-19 testing - Airborne isolation implementation In preparation for the threat of litigation, we recommend you collect and organize facility policies and protocols associated with: - Handwashing and PPE Usage - Social Distancing - Visitor Entry Protocol - Infection Control Standards - Infection Surveillance - Education and Communication Excelas, LLC recommends you submit all medical records for [medical record organization and gap analysis](/clinical-analysis). The medical review and reports will focus on the COVID-19 time period; however, the complete resident record will be prepared in the event it is needed to defend your case. Getting started is easy, simply contact us using the form below. ## Are National Standards on The Horizon for the Senior Living Industry? https://excelas1.com/blog/national-standards-senior-living ### Are National Standards on The Horizon for the Senior Living Industry? _2020-02-07 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > The senior living industry group Argentum has been approved to be the accredited developer of national standards by the American National Standards Institute (ANSI). ![Excelas Logo Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2018-11-excelas-logo.svg) The senior living industry group Argentum has been approved to be the accredited developer of national standards by the American National Standards Institute (ANSI). However, as reported by [McKnight’s Senior Living](https://www.mcknightsseniorliving.com/home/news/provider-groups-debate-whether-industry-developed-standards-would-put-operators-at-risk/), many groups in the senior living space are warning that voluntary standards are not the best approach. Founded in 1918, [ANSI](https://www.ansi.org/about_ansi/overview/overview?menuid=1) is a private, not-for-profit organization dedicated to supporting the U.S voluntary standards and conformity assessment system. Their standards and quality systems cover “practically every industry.” In the April 2019 issue of ANSI’s weekly publication [Standards Action](https://share.ansi.org/Shared%20Documents/Standards%20Action/2019-PDFs/SAV5014.pdf), it published the following Developers Application for Accreditation: > [Argentum,](https://www.argentum.org/about-argentum/) a new ANSI member, has submitted an application for accreditation as an ANSI Accredited Standards Developer (ASD) and proposed operating procedures for documenting consensus on Argentum- sponsored American National Standards. Argentum’s proposed scope of standards activity is as follows:Argentum is a not-for-profit trade association dedicated to supporting companies operating professionally managed, resident-centered senior living communities and the older adults and families they serve. Argentum advocates for choice, independence, dignity, and quality of life for all older adults. As part of this mission, Argentum develops and publishes standards for senior living, including independent living, assisted living, memory care, and continuing care communities. Although ANSI approved Argentum’s application, the [American Health Care Association/National Center for Assisted Living](https://www.ahcancal.org/about_ahca/Pages/Who-We-Are.aspx), [LeadingAge](https://www.leadingage.org/) and [American Seniors Housing Association](https://www.seniorshousing.org/) have all filed appeals to reverse this approval. Their main concern with the proposal is the lack of industry-wide consensus and support of all stakeholders. The groups agree that quality initiatives in senior living communities – independent living, assisted living, and memory care – are of utmost importance, but that ANSI standards are not the answer. Regulations of these facilities are currently set by each state. The introduction of national standards has industry-wide implications. First, the ANSI standards could potentially become the standard of care for purposes of tort litigation. Second, the new standards could complicate compliance since state regulations already exist. Lastly, federal regulations may soon follow despite the notion that such oversight could be avoided through self-regulation. Excelas continues to monitor developments in this area and the potential impact on our clients. A hearing is scheduled to be held by ANSI’s Executive Standards Council on February 18. ## Disproving Understaffing in Fall Claims https://excelas1.com/blog/disproving-understaffing-in-fall-claims ### Disproving Understaffing in Fall Claims _2020-01-30 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > If allegations of negligence arise, the Staffing Scorecard shows whether or not there were fluctuations or inconsistencies in staffing levels during a certain period of time. ![Disproving Understaffing in Fall Claims Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2020-01-photo-of-elderly-man-walking-on-pavement-3093287-scaled.jpg) According to the [National Council on Aging](https://www.ncoa.org/), Americans aged 65 and older have a one in four chance of experiencing a fall during each calendar year. With falls being the leading cause of fatal and non-fatal injuries for the elderly1, it comes as no surprise that they are also consistently identified as a leading claim category at facilities who serve an aging and frail population.2 Despite the fact that falls occur both in and out of care settings and in low and high-risk populations alike, nursing homes are often blamed when falls happen under their watch. Plaintiff’s attorneys use a variety of information sources when building a case for medical negligence, carefully considering medical records, care plans, and staffing reports. Their goal is to prove that the nursing home did not provide an adequate level of care to the resident and that it was their lack of attention that led to the fall. Facilities who need to defend themselves against allegations of understaffing as a root cause of neglect can do so using their own staffing data. Each month, nursing homes are required to submit their payroll-based journal (PBJ) information to the Centers for Medicare & Medicaid Services (CMS) website, which is publicly available for anyone to view and extract. If a facility was adequately staffed during the specific period of time when a fall occurred, the numbers on the CMS website can provide proof. However, it does take time and effort to mine through the lines of data and then format the information into a useful tool. ##### The Staffing Scorecard Solution Excelas developed the Staffing Scorecard to give our clients quick access to their PBJ staffing data in an easy-to-read format that allows them to: - View the number of direct care hours per patient, categorized by job title. - Compare their facility’s staffing levels to nearby competitors. - Monitor their staffing trends over time so they can detect any issues. If allegations of negligence arise, the Staffing Scorecard shows whether or not there were fluctuations or inconsistencies in staffing levels during a certain period of time. When the scorecard is combined with our medical chronology, facilities can further identify the level of care provided during significant medical events. To find out more about Excelas’ Staffing Scorecard, contact us today for a free consultation using the form below. ###### 1 https://www.ncoa.org/news/resources-for-reporters/get-the-facts/falls-prevention-facts 2 CNA Aging Services 2018 Claim Report; Valuing Employees, Minimizing Risk ## Using PBJ Data to Defend Against Negligence Claims https://excelas1.com/blog/payrollbasedjournaling ### Using PBJ Data to Defend Against Negligence Claims _2020-01-22 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ ![Payroll-Based Staffing Data Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-05-analytics-blur-chart.jpg) > Anyone who regularly follows the news has undoubtedly heard about the workforce shortage in America and how it’s affecting different industries. [Staffing Scorecard](/case-triage) [Medical Record Analysis](/clinical-analysis) [Request More Information](/contact) Anyone who regularly follows the news has undoubtedly heard about the workforce shortage in America and how it’s affecting different industries. Skilled nursing facilities (SNFs) in particular have found it challenging to attract and retain the right mix of staff. A widely distributed and cited [report published in July 2019](https://www.healthleadersmedia.com/nursing/nurse-staffing-nursing-homes-lacking-0) revealed that the majority of SNFs met the [Centers for Medicare and Medicaid Services](https://www.cms.gov) (CMS) registered nurse staffing requirements less than 60% of the time. For overall staffing, 54% of facilities met expectations less than 20% of the time. The report analyzed payroll-based journal data (PBJ) from more than 15,000 nursing homes and was commended for providing a “more accurate and complete staffing picture” for both CMS and the general public. While this report and the resulting headlines contribute to a negative perception of nursing homes, it is only a generalization. Plaintiff attorneys may use the “low staffing” narrative to support their claims of negligence, but without objective data, those accusations are only assumptions. Facilities that monitor and review their PBJ staffing data each month will be better prepared to defend themselves against claims of negligence as a result of understaffing. They’ll also be in a better position to make necessary corrections to their staffing before an adverse event occurs. Excelas developed the [Staffing Scorecard](/case-triage) to give our clients quick access to their PBJ staffing data in an easy-to-read format. We mine thousands of lines of payroll data entries on the CMS website to produce a report that allows them to: - View the number of direct care hours per patient, categorized by job title. - Compare their facility’s staffing levels to nearby competitors. - Monitor their staffing trends over time so they can detect any issues. If allegations of negligence arise, the Staffing Scorecard will show whether or not there were fluctuations or inconsistencies in staffing levels during a certain period of time. When the scorecard is combined with our medical chronology, facilities can further identify the level of care provided during significant medical events. To experience an [interactive demo](/about/technology) of the Excelas’ Staffing Scorecard, call us at 440-442-7310 or fill out the form below. ## Assisted Living Challenges Lead to Rise in Litigation https://excelas1.com/blog/assisted-living-challenges-lead-to-rise-in-litigation ### Assisted Living Challenges Lead to Rise in Litigation _2020-01-03 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > The increase of assisted living claim payouts, lack of a consistent regulatory structure, and predominance of the for-profit business model attracts plaintiff counsel to bring creative actions against assisted living facilities. ![ALF Challenges and Rise in Litigation Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2020-01-ALF-couple-on-bench.jpg) As the number of assisted living facilities increases to accommodate the aging population, so too have the number of related claims and lawsuits. But are the issues that serve as the basis for these actions against assisted living facilities the same as those against the more traditional skilled nursing facilities? The plaintiff’s bar would like the public to think so, with their motivations being recent multi-million-dollar verdicts against assisted living facilities and claims which can average 20% more than those in a skilled nursing facility (CNA Aging Services 2018 Claim Report.) ##### Review of Long-term Care Settings A review of the differences in the types of long-term care facilities can serve as a basis for managing claims and litigation. Care settings are broadly categorized as skilled nursing, assisted living and independent living facilities, with the following characteristics: **Skilled nursing facilities **provide a high level of medical care to patients who are unable to live on their own either due to physical or cognitive impairments. SNFs are staffed by licensed health professionals. This includes, but is not limited to, registered nurses, physical and occupational therapists, social workers, pharmacy services, radiology services, and dental services. These facilities are regulated by Medicare and Medicaid, and surveys are conducted on an annual basis to determine compliance with standards. Claims and litigation typically focus on these standards of care. **Assisted living facilities **provide care for individuals who do not have high-level medical needs but need support with activities of daily living. ALFs have 24-hour staff on duty to provide personal care services including dressing, bathing, laundry, meals, medication management, and recreation/social opportunities. Most ALF residents have private, apartment-type units affording some autonomy. The majority of assisted living facilities are for-profit and only accept private pay. Just [16%](https://www.ahcancal.org/ncal/facts/Pages/Finance.aspx) accept varying types of Medicare and Medicaid payments. Regulations of assisted living differ on a state-by-state basis. Assisted living communities should have standard admission and discharge criteria to ensure a resident is receiving the appropriate level of care. Once admitted, a specific service plan should be initiated which is altered as the resident’s needs change. Many assisted living residents are able to “age in place” whereby additional services, such as home health or hospice, may be provided at the facility to avoid a move to skilled nursing. The variations in state requirements, along with the introduction of outside service providers into the facility, create a different set of claim and litigation circumstances than in the skilled nursing model. **Independent living communities** provide a community setting with minimal assistance to seniors. Usually apartments or free-standing homes, these types of communities offer activities, meals and transportation for the convenience of the residents. Medical care needed is contracted separately by each resident. These facilities do not typically fall under any state or federal regulations. However, if they are a part of a “continuing care” campus, the facility must be clear as to expected service levels. Independent living facilities are subject to claims and lawsuits related to transportation, lax security, and falls on the premises. ##### Assisted Living Claim Statistics According to the [National Center for Health Statistics](https://www.cdc.gov/nchs/data/series/sr_03/sr03_43-508.pdf), in 2019 there are 28,900 assisted living facilities and 15,600 nursing homes in the Unites States. Assisted living facilities accounted for 16% of the total number of long-term care claims with an average of $221,496 paid per claim. The number of skilled nursing facilities is declining, while the assisted living market continues to expand. The 2018 CNA report revealed that in fall-related claims, which are the costliest, 22.8% are made against assisted living facilities. The average payment is $224,300, or $36,526 more than a fall in skilled nursing. The report also notes that over 75% of claims are associated with for-profit organizations and those claims average a higher payout than not-for-profit facilities. Assisted living claims topped the list of the highest indemnity payments. This increase of assisted living claim payouts, lack of a consistent regulatory structure, and predominance of the for-profit business model attracts plaintiff counsel to bring creative actions against assisted living facilities. ##### How Excelas Can Help The rising trends in the senior population, the number and value of cases, along with the sometimes-blurred lines between facility type, dictate that an in-depth knowledge of the issues facing long-term care is essential in mitigating liability. Excelas’ extensive experience in record review provides expertise concerning the different and evolving requirements in each type of care setting. Use the contact us form below to talk to someone about how we can help your organization. ## Best reads of the week, 12-20 https://excelas1.com/blog/best-reads-of-the-week-12-20 ### Best reads of the week, 12-20 _2019-12-20 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Topics: nutrition, Amazon’s transcription service, healthy traveling, employee cyber security risks ![Best Reads 10-11 Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-10-roundup.jpg) This will be our last article roundup of 2019. Have a wonderful holiday season. ##### Nutrition: Blind Spot in Patient Care Although nutrition plays a large role in patient health and recovery, it is rarely prioritized or discussed during patient visits. ([Fierce Healthcare](https://www.fiercehealthcare.com/hospitals-health-systems/industry-voices-nutrition-a-blind-spot-patient-care-needs-prioritizing)) ##### Amazon’s Virtual Scribe Amazon’s new Transcribe Medical service seeks to streamline the clinical documentation process during physician-patient visits. ([CNBC](https://www.cnbc.com/2019/12/02/amazon-web-services-unveils-transcribe-medical-software.html)) ##### Stay Healthy While Traveling Being on an airplane is less likely to expose you to illness than being in an airport. ([Wired](https://www.wired.com/story/traveling-for-the-holidays-heres-how-to-not-get-sick/)) ##### Cyber Security Risk According to a recent study, younger workers are less aware and less likely to engage in cyber security best practices. ([Risk & Insurance](https://riskandinsurance.com/which-employees-pose-the-biggest-cyber-security-risk-you-might-be-surprised/)) ## Telemedicine: Considerations for Documentation and Medical Records https://excelas1.com/blog/telemedicine-considerations-for-documentation-and-medical-records ### Telemedicine: Considerations for Documentation and Medical Records _2019-12-16 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > The rapidly growing telemedicine industry is on track to transform the way healthcare is delivered. With new technologies generating large amounts of patient data across multiple platforms, there is a direct impact to health information management and documentation. What is Telemedicine? Telemedicine, or telehealth, is a means to connect patients to health care services and [...] ![Telemedicine Documentation and Medical Records Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-12-Fitbit.jpg) The rapidly growing telemedicine industry is on track to transform the way healthcare is delivered. With new technologies generating large amounts of patient data across multiple platforms, there is a direct impact to health information management and documentation. ##### What is Telemedicine? Telemedicine, or telehealth, is a means to connect patients to health care services and education remotely through technologies like the internet, videoconferencing, streaming media, and wireless communications. According to the [American Telemedicine Association](https://www.americantelemed.org/resource/why-telemedicine/) (ATA), telemedicine encompasses, but is not limited to, the following: - **Live videoconferencing**: a two-way, real-time interaction between a patient and provider in order to treat common illnesses. - **Store and forward**: the electronic transmission of recorded clinical information for evaluation purposes, typically among medical professionals. - **Remote patient monitoring (RPM)**: the electronic transfer of a patient’s medical data from one location to health care professionals in another location. - **Mobile health (mHealth)**: the use of smartphones, tablets, and wearables to support the prevention and treatment of health issues as well as boost patient engagement and empowerment. While one form or another of telemedicine has been around since the 1950s1, it is now [the fastest growing alternative care setting](https://www.ama-assn.org/practice-management/digital/telehealth-53-growing-faster-any-other-place-care). It’s recognized by individuals, companies, and even the government as a way to further modernize healthcare. For example, in 2018, President Trump [signed a bill](https://www.mobihealthnews.com/content/trump-approves-opioid-package-expands-telemedicine-regulates-e-prescribing-opioids) expanding Medicare coverage of opioid-specific telemedicine services. In October 2019, he signed [an executive](https://www.whitehouse.gov/presidential-actions/executive-order-protecting-improving-medicare-nations-seniors/) order pushing for Medicare to adopt more telehealth programs. ##### The Continuing Demand for Telemedicine Consumers want convenient access to healthcare that will save them time and money. They also want information that will help them make informed decisions. Smart phone applications are one way consumers use telemedicine to track their personal health. Some popular apps include: - [iPhone Health:](https://www.apple.com/ios/health/)allows patients to securely store their health records from multiple institutions - [Fitbit](https://healthsolutions.fitbit.com/wellness/): allows tracking and sharing of certain health data with care providers - [The Diary](https://thediary.com/): lets patients work with their care team to track the efficacy of treatment and care plans Physicians want to efficiently provide the best care to patients, while healthcare facilities aim to keep an eye on cost savings. Telemedicine helps rural hospitals improve patient access to specialized care, allowing them to receive video consults while staying close to home. Many skilled nursing facilities are using virtual, 24/7 physician services to reduce hospitalizations by [providing timely care](https://mhealthintelligence.com/news/telemedicine-helps-snfs-improve-patient-care-curb-hospitalizations). [Cleveland Clinic has built telemedicine into their growth strategy](https://newsroom.clevelandclinic.org/2019/10/21/cleveland-clinic-american-well-partner-to-launch-digital-health-company/), projecting that 50% of outpatient visits will be virtual in just five years. Even insurers are working to reduce costs to subscribers with convenient, easy-to-use digital tools. Many offer mobile apps that facilitate communication between patients and doctors. [Anthem recently launched CareSpree](https://www.beckershospitalreview.com/payer-issues/even-people-without-anthem-insurance-can-use-its-new-app-to-schedule-pay-for-care-via-smartphone.html), where users talk directly to doctors and use real-time data to analyze symptoms for potential diagnosis. UnitedHealth’s Recover app allows patients to take pictures of their surgical sites that are first analyzed using the Recover technology which then automatically alerts the surgeon to any problem. ##### Telemedicine Liability Concerns As the number of patients using telemedicine grows, we are likely to see an increase in telemedicine-related claims. However, a virtual office visit or use of mobile health apps doesn’t necessarily carry a greater risk. Physicians must follow the same standard of care and rules for documentation whether or not they meet patients in person. And telemedicine platforms and programs must meet all HIPAA requirements and comply with security guidelines. From a documentation standpoint, there are challenges related to the high volume of data generated by telemedicine from a wide variety of sources outside the traditional healthcare setting. Digital images, email, live streaming videos, and other data streams related to medical decision-making and treatment will be part of the medical record. At this time, the integration of mobile health apps with electronic health record systems is still a work in progress, but will inevitably need to be included as well. As the evolution of healthcare barrels forward, Excelas will keep on top of any changes or challenges related to medical record documentation. To ensure you have all the medical facts needed to review your case, [contact Excelas today](/contact). ###### 1 Telemedicine: A guide to Assessing Telecommunication in Healthcare [https://www.ncbi.nlm.nih.gov/books/NBK45445/](https://www.ncbi.nlm.nih.gov/books/NBK45445/) ## Best reads of the week, 12-13 https://excelas1.com/blog/best-reads-of-the-week-12-13 ### Best reads of the week, 12-13 _2019-12-13 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Topics: Future health innovations, physician privilege disclosures, Amazon insurance risks, loneliness ![Best Reads 10-11 Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-10-roundup.jpg) ##### Health Innovations of the Future Pocket-sized ultrasounds and a wrist band that can read your mind. These are just two of the exciting innovations we’re likely to see hit the market in the next decade. ([TIME](https://time.com/5710295/top-health-innovations/)) ##### Amazon Presents Challenge for Insurers The demands of Amazon’s fast-paced fulfillment and delivery produce a number of liability risks. ([Risk & Insurance](https://riskandinsurance.com/amazons-business-model-is-wreaking-havoc-across-the-insurance-industry/)) ##### Physician Privilege Disclosures at SNFs A new law in New York State will require nursing home operators to provide detailed information about their physician privileges to residents as a prerequisite for admission. ([Skilled Nursing News](https://skillednursingnews.com/2019/12/new-ny-nursing-home-law-targets-physician-privilege-disclosures/)) ##### Potential Good News About Loneliness Studies published by the American Psychological Association suggest that an increasing aging population may be to blame for the so-called “loneliness epidemic.” ([Medical Express](https://medicalxpress.com/news/2019-12-loneliness-due-aging-population.html)) ## Best reads of the week, 12-6 https://excelas1.com/blog/best-reads-of-the-week-12-6 ### Best reads of the week, 12-6 _2019-12-06 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Topics: Telehealth, ergonomics and opioid-related deaths, living-donor transplant campaign, illegal nursing home evictions ![Best Reads 10-11 Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-10-roundup.jpg) ##### Telehealth Grants Will Improve Rural Healthcare Access A bundle of new grant investments will help give rural U.S. residents better access to healthcare. ([Mobi Health News](https://www.mobihealthnews.com/news/north-america/usda-announces-dozens-grants-support-rural-telehealth-rollouts)) ##### Proposed Bill Calls for Increased SNF Staffing A new bill puts more pressure on nursing homes to staff up or possibly face fines of up to $10,000 per day and a freeze on payments. ([Skilled Nursing News](https://skillednursingnews.com/2019/11/new-nursing-home-safety-bill-would-increase-staffing-minimums-levy-10k-day-fines/)) ##### Poor Ergonomics Tied to Opioid Deaths Musculoskeletal disorders related to demanding work conditions could play a role in opioid-related deaths, according to recent studies of Utah residents. ([Risk & Insurance](https://riskandinsurance.com/poor-ergonomics-musculoskeletal-disorders-lead-to-opioid-deaths/)) ##### Campaign Boosts Inquiries for Living-donor Liver Transplants An awareness campaign about living-donor liver transplants resulted in more than 21,000 inquiries about the procedure at University of Pittsburgh Medical Center. ([Becker’s Hospital Review](https://www.beckershospitalreview.com/digital-marketing/upmc-s-campaign-for-living-donor-liver-transplants-resulted-in-20-000-inquiries-in-its-1st-year-2-marketing-leaders-explain-how.html?oly_enc_id=3914A0542789G0H)) ##### Illegal Eviction of Nursing Home Residents The number of California residents being kicked out of nursing homes over payment issues has been steadily rising. ([NBC News](https://www.nbcnews.com/news/us-news/some-nursing-homes-are-illegally-evicting-elderly-disabled-residents-who-n1087341)) ## A Note of Gratitude: Scalerator https://excelas1.com/blog/a-note-of-gratitude-scalerator ### A Note of Gratitude: Scalerator _2019-11-27 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > With Thanksgiving a day away, we wanted to reflect on an experience we had this year for which we are very grateful. ![Excelas Scalerator Graduation Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-11-Excelas-Scalerator-2019_1.jpg) With Thanksgiving a day away, we wanted to reflect on an experience we had this year for which we are very grateful. You may recall [our announcement](/blog) in the spring that we had been selected to participate in the 3rd cohort of [Northeast Ohio Scalerator](https://www.scaleratorneo.org/). Excelas, along with 12 local companies, committed to the 6-month, 95-hour program with the goal of accelerating our growth to positively impact the entrepreneurship ecosystem in our region. From the beginning, we were dedicated to fully participating in the curriculum taught by world-class faculty who provided training and mentorship. Unlike other programs focused on the development of only the CEO or president, Scalerator encouraged the involvement of all members of our leadership team. This was a rare opportunity for our managers and directors to work together in a unique shared learning environment. For two days a month, we were able to get outside of the office to focus on the practical application of best practices for strategic alignment, systematizing sales process, and transforming our organizational culture. The program challenged us to evaluate the way we currently do business, determine our strengths, and identify the areas where we could make improvements. We also had the good fortune to learn with and from other entrepreneurial companies in northeast Ohio. After graduating in October, we are ready to follow the roadmap we established as part of our Scale Plan and institute the changes needed to grow and contribute to the economic wellbeing of our community . We are excited about the future and again want to express our appreciation for the opportunity to participate in Scalerator. ## Best reads of the week, 11-22 https://excelas1.com/blog/best-reads-of-the-week-11-22 ### Best reads of the week, 11-22 _2019-11-22 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Topics: 401(k) limit increase, $3 million HIPAA settlement, Ohio pharmacy closures, issues facing nursing ![Best Reads 10-11 Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-10-roundup.jpg) Here are the top reads we wanted to share with you this week. Our next roundup will be for the week of December 2. Have a wonderful Thanksgiving! ##### NURSING SURVEY Survey responses from nearly 20,000 nurses across the U.S. highlights some of the issues facing the future of healthcare. ([Healthcare Finance News](https://www.healthcarefinancenews.com/node/139458)) ##### RETIREMENT PLAN CONTRIBUTION CHANGES The Internal Revenue Service announced an increase in workplace retirement contribution limits for 2020. ([Forbes](https://www.forbes.com/sites/davidrae/2019/11/20/irs-retirement-savers/#15a4d218384a)) ##### HIPAA SETTLEMENT The University of Rochester Medical Center (URMC) has agreed to a $3 million settlement for their failure to encrypt mobile devices as well as violating other HIPAA rules. ([Fierce Healthcare](https://www.fiercehealthcare.com/tech/new-york-health-system-to-pay-3m-hipaa-settlement-for-lapse-security-measures)) ##### OHIO PHARMACY CLOSURES Walgreens recently bought seven community pharmacies in Ohio and then closed them, leaving even fewer options for many of the state’s residents. ([Columbus Dispatch](https://www.dispatch.com/news/20191110/walgreens-buys-and-shuts-small-chain-shrinking-ohio-options)) ## Best reads of the week, 11-15 https://excelas1.com/blog/best-reads-of-the-week-11-15 ### Best reads of the week, 11-15 _2019-11-15 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Topics: PDPM & therapy reimbursement, Google & Ascension partnership, Amazon Care ![Best Reads 10-11 Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-10-roundup.jpg) Here are our picks for the week. Have a great weekend! ##### PDPM AND THERAPY REIMBURSEMENT Therapy advocates are concerned the proposed 8% cut to Medicare payments for occupational and physical therapy services will threaten patient access to care. ([McKnight’s](https://www.mcknights.com/news/providers-sweating-proposed-8-cut-to-therapy-services-theres-just-no-reason-for-that)) Genesis Healthcare reorganized its therapy gyms in preparation for PDPM implementation and says the staff cuts should save the company $30 million in annual operating costs. ([McKnight’s](https://www.mcknights.com/news/therapy-staff-cuts-pdpm-will-save-genesis-30m-ceo-says)) ##### GOOGLE, ASCENSION DATA SHARING The recently disclosed partnership between Google and Ascension, the largest non-profit health system in the U.S., is raising eyebrows. Some Ascension employees have concerns about the ways Google is gathering patient data. ([CNBC](https://www.cnbc.com/2019/11/12/google-project-nightingale-hospital-data-deal-raises-privacy-fears.html)) Eduardo Conrado, executive vice president of strategy and innovations at Ascension, has published his response to this news on the company’s website. ([Ascension](https://www.ascension.org/News/News-Articles/2019/11/12/21/45/Technology-that-improve-patients-lives-caregivers-experience)) ##### AMAZON CARE Amazon has put its own spin on telemedicine with the launch of their virtual care app, offering virtual healthcare services to Seattle-based employees. ([Becker’s Hospital Review](https://www.beckershospitalreview.com/healthcare-information-technology/6-glimpses-into-the-amazon-care-app-employees-first-stop-for-healthcare.html)) ## Best reads of the week, 11-8 https://excelas1.com/blog/best-reads-of-the-week-11-8 ### Best reads of the week, 11-8 _2019-11-08 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Topics: Seasonal affective disorder, 4-day work week experiment, insurance risk landscape, and courtroom confirmation bias. ![Best Reads 10-11 Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-10-roundup.jpg) Here are the articles our team enjoyed this week. ##### SEASONAL AFFECTIVE DISORDER As the days continue to get shorter, some of us could use help fighting off the blues. This article offers some solid tips. ([CNN](https://www.cnn.com/2019/11/03/us/sad-seasonal-affective-disorder-combat-tips-trnd/index.html)) ##### WORKER PRODUCTIVITY Microsoft tried out a 4-day work week for workers in Japan this past August, and the results were impressive. ([HuffPost](https://www.huffpost.com/entry/four-day-working-week-microsoft-japan_n_5d77c236e4b0fde50c2dec9a)) ##### INSURANCE RISK LANDSCAPE In a recent survey of insurance brokers, global concerns such as Brexit and the U.S.-China trade war ranked as high areas of concern. ([Risk & Insurance](https://riskandinsurance.com/what-keeps-brokers-up-at-night-climate-change-and-driverless-cars-for-starters/)) ##### COURTROOM CONFIRMATION BIAS Confirmation bias affects a person’s ability to look at situations objectively. CLM explores the impact of this bias on litigation, the trial process, and case resolution. ([CLM](https://clmmag.theclm.org/home/article/Confirmation-Bias-and-the-Courtroom)) ## Best reads of the week, 11-1 https://excelas1.com/blog/best-reads-of-the-week-11-1 ### Best reads of the week, 11-1 _2019-11-01 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Topics: Arbitration agreements, PDPM and SNF consolidation, flu season, and the effect of politics on our health. ![Best Reads 10-11 Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-10-roundup.jpg) Here are our picks for the week. Don’t forget it’s the end of daylight saving time this weekend! ##### ARBITRATION AGREEMENTS CMS clearly [states the requirements for arbitration agreements](/blog/cms-ruling-long-term-care-arbitration) in SNFs. We are starting to see the consequences of not following these guidelines. ([McKnights](https://www.mcknights.com/news/providers-missteps-leads-to-nullified-arbitration-agreement-court-finds/)) At the same time, two SNFs in Arkansas are suing to declare the arbitration rule as unlawful. ([McKnights](https://www.mcknights.com/print-news/snfs-suing-to-block-federal-limits-on-arbitration-language/)) ##### PDPM and SNF CONSOLIDATION So far, skilled nursing operators are hanging in there, despite predictions many would leave the marketplace due to PDPM. ([Skilled Nursing News](https://skillednursingnews.com/2019/10/pdpm-hasnt-caused-a-skilled-nursing-ma-wave-just-yet-but-could-next-year/)) ##### FLU SEASON It looks like we’re likely in for a long flu season this year. The more you know about what to expect, the better. This article, written for nurses, is very thorough. ([Nurse.Org](https://nurse.org/articles/everything-nurses-should-know-flu-season/)) ##### POLITICS AND HEALTH A recent survey found one in 10 of Americans felt “politics has adversely affected their physical health,” while therapists have noted more patients discussing their political concerns. ([US News & World Report](https://www.usnews.com/news/health-news/articles/2019-09-25/stress-of-us-politics-taking-mental-physical-toll-on-americans)) ## 2019 DRI Seminar Reflection https://excelas1.com/blog/2019-dri-seminar-reflection ### 2019 DRI Seminar Reflection _2019-10-31 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Excelas was fortunate to attend and sponsor the DRI Nursing Home/ALF Litigation Seminar in Chicago this September. ![Excelas Logo Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2018-11-excelas-logo.svg) Excelas was fortunate to attend and sponsor the [DRI Nursing Home/ALF Litigation Seminar](http://www.dri.org/docs/default-source/event-brochures/2019/nursing-home-alf-litigation/2019_0190_nursinghome.pdf?sfvrsn=8) in Chicago this September. As a provider of medical record organization and analysis to healthcare organizations and their legal representatives, we look forward to this event each year. The seminar was well-orchestrated and packed full of relevant sessions that gave us insight into how we are serving our clients in the long-term care space. We heard from many industry experts about the challenges ahead, from evolving regulatory initiatives to the rise of mega verdicts and settlements. We also learned about trends in LTC litigation and recent trial outcomes. Lily Hummel of the [National Center for Assisted Living (NCAL)](https://www.ahcancal.org/ncal/about/Pages/NCALStaff.aspx) provided us with some particularly helpful information. Her session, **The Next Frontier—Emerging Issues Facing the Assisted Living Industry and the Push for National Standards**, was especially timely for us given the increase in assisted living work we saw in 2019. One of the recurring topics discussed in several of the sessions we attended was the importance of early risk assessment for resolving claims and litigation. Evaluation of medical records is one of the first steps in this process and should be completed promptly. Legal teams need access to complete, accurate, and organized medical information if they want to be in a better position to make informed decisions about their defense strategy. This is where Excelas adds value to the process: years of experience in medical record expertise. Our ability to quickly retrieve, sort, summarize, and analyze medical documentation ultimately allows our clients to be more efficient and effective. Attending the DRI seminar lets us know what we’re doing well, but it also helps us identify opportunities to improve our processes, products, or services. Our [Staffing Scorecard](/case-triage) is something we developed after attending last year’s seminar, for example. A session on the CMS implementation of payroll-based journal data requirements inspired us to create a tool for helping skilled nursing facilities understand and use their publicly documented staffing levels. What new products or service will come out of this year’s seminar? We do have a couple of things up our sleeve, but for now you’ll just have to stay tuned. ## Best reads of the week, 10-26 https://excelas1.com/blog/best-reads-of-the-week-10-26 ### Best reads of the week, 10-26 _2019-10-26 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Topics: Fall prevention and mobility, opioid settlement, hospice in senior living, and dementia risk. Here are our top reads this week. ##### FALL PREVENTION VS MOBILITY Hospitals overly concerned about patient falls may be implementing prevention strategies that cause more harm than good. ([Kaiser](https://khn.org/news/fear-of-falling-how-hospitals-do-even-more-harm-by-keeping-patients-in-bed/) Health News) ##### OPIOID SETTLEMENT Four companies have avoided the first federal opioid trial set to begin on Monday by agreeing to a $260 million settlement with two Ohio counties. ([CNBC](https://www.cnbc.com/2019/10/21/four-drug-companies-reach-a-settlement-as-opioid-trial-was-set-to-begin.html)) ##### HOSPICE IN SENIOR LIVING The use of hospice is becoming more and more common in the assisted living space as facilities start to understand the benefits. ([Senior Housing News](https://seniorhousingnews.com/2019/10/14/5-trends-that-reveal-the-hospice-opportunity-in-senior-housing/)) ##### LINK BETWEEN DIABETES AND ALZHEIMER’S Neuroscience researchers are exploring new links between blood sugar levels and the risk of developing dementia. ([NPR](https://www.npr.org/sections/health-shots/2019/10/21/771894448/keeping-your-blood-sugar-in-check-could-lower-your-alzheimers-risk)) ## Best reads of the week, 10-18 https://excelas1.com/blog/best-reads-of-the-week-10-18 ### Best reads of the week, 10-18 _2019-10-18 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Topics: ACA lawsuit, AI innovation, accessibility, and alleviating financial stress. Here are our top reads for the week. Enjoy! ##### ACA RULING The Affordable Care Act (ACA) ruling is expected this month. NPR tells us what to expect and what’s at stake. ([NPR](https://www.npr.org/sections/health-shots/2019/10/12/769038397/heads-up-a-ruling-on-the-latest-challenge-to-the-affordable-care-act-is-coming)) ##### AI INNOVATION IN HEALTHCARE Patient input will be crucial to the success of Artificial Intelligence (AI) as a healthcare delivery tool. Blake McKinney, MD, explains why. ([Becker’s Hospital Review](https://www.beckershospitalreview.com/innovation/physician-viewpoint-patient-voices-are-crucial-for-ai-innovation.html)) ##### ACCESSIBILITY FOR AN OLDER POPULATION From directional signage to waiting room seats, healthcare facilities have a number of opportunities to better accommodate their older patients. ([Kaiser Health News](https://khn.org/news/age-friendly-health-care-clinics-hospitals-accommodating-older-patients/)) ##### FINANCIAL STRESS Reducing anxiety for most people means getting a handle on their finances. Deepak Chopra offers helpful tips for breaking bad money habits. ([CNBC](https://www.cnbc.com/2019/10/08/deepak-chopra-says-your-bad-money-habits-could-be-hurting-your-health.html)) ## Best reads of the week, 10-11 https://excelas1.com/blog/best-links-of-the-week-10-11 ### Best reads of the week, 10-11 _2019-10-11 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Topics: abuse icon on nursing home compare, cost of healthcare waste, Best Buy entering home health market, opioid news. Below are some of the most important, interesting, or instructive articles our team read this week. Enjoy! ##### NEW ABUSE ICON ON NURSING HOME COMPARE CMS is rolling out a new icon later this month on Nursing Home Compare. The move is intended to warn consumers about prior resident abuse, but some aging services leaders say it’s misleading. ([McKnight’s](https://www.mcknights.com/news/breaking-cms-to-label-cited-nursing-homes-with-do-not-proceed-icon-on-nursing-home-compare-website/)) ##### DOCTOR CLAIMS INCENTIVES GIVEN FOR PRESCRIBING OPIOIDS A doctor has sued Kaiser Permanente, alleging she was fired for voicing concerns over patient satisfaction evaluations that penalize doctors who refuse to prescribe opioids. ([The News Tribune](https://www.thenewstribune.com/news/local/article235764152.html)) ##### HEALTHCARE SPENDING REVIEW The Journal of the American Medical Association published a study estimating the cost of healthcare waste in the United States to be between $760 and $935 annually. They cite the greatest source of waste to be “administrative complexity.” ([Business Wire](https://www.businesswire.com/news/home/20191007005615/en/Journal-American-Medical-Association-JAMA-Publishes-Humana)) ##### RETAILERS LOOK TO ENTER SENIOR HEALTH MARKET Best Buy, Walmart, and Amazon are all making moves to capitalize on opportunities within the home health care space. Their specific focus? Keeping seniors out of institutional settings. ([Skilled Nursing News](https://skillednursingnews.com/2019/09/best-buy-amazon-walmart-lead-major-brands-charge-into-senior-care-with-multi-billion-potential/)) ## Best reads of the week, 9-27 https://excelas1.com/blog/best-links-of-the-week-9-27 ### Best reads of the week, 9-27 _2019-09-27 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Topics: nurse burnout, daily pay, flu season, and opioid fraud in Texas. Below are some of the most important, interesting, or instructive articles our team read this week. Enjoy! ##### ON THE JOB The high burnout rate for nursing home workers could be affecting patient care. A recent study calls for improved work environments and sufficient staffing. ([McKnight’s](https://www.mcknights.com/news/nursing-homes-advised-to-start-investing-more-in-rns/)) Clay Marsh, MD, takes on the question, “how do we heal the healers?” At West Virginia University Medicine, a focus on community and purpose is driving changes in their culture. ([Scientific American](https://blogs.scientificamerican.com/observations/american-health-care-is-sick-and-its-workers-are-too/)) Some home health companies are looking into daily pay as another strategy for retaining caregivers. ([Home Health Care News](https://homehealthcarenews.com/2019/09/why-daily-pay-may-be-home-cares-flavor-of-the-day/)) ##### FLU SEASON, ALREADY? We may be in for a rough flu season this year. Doctors are telling people to get the vaccine as soon as possible. ([NBC](https://www.nbcnews.com/health/health-news/year-s-flu-season-may-be-bad-one-here-s-n1054856)) ##### OPIOID CRISIS 58 medical professionals were charged in an opioid fraud scheme in Texas. ([Reuters](https://www.reuters.com/article/usa-opioids-texas/us-charges-58-in-texas-with-healthcare-fraud-illegal-dispensing-of-opiod-pills-idUSL2N2690YS)) Have a great weekend! ## Why Defense Attorneys Should Care About Duplicate Medical Records https://excelas1.com/blog/why-defense-attorneys-should-care-about-duplicate-medical-records ### Why Defense Attorneys Should Care About Duplicate Medical Records _2019-09-16 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ ![Duplicate medical records Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-09-lawyer-meeting.jpg) > Duplicate records pose issues for defense attorneys because they use medical records to evaluate the validity of a claim or allegation, determine case value, and form a defense strategy. Medical records are integral in defending against allegations of negligence and substandard care, but only to the extent that they are complete and accurate. Considering paper records still exist and that most health care facilities and providers utilize electronic health records (EHR) which are comprised of multiple internal and external systems that have to “talk”, there is a likelihood a patient’s record could be missing information critical to your case. ##### Duplicate data in medical records Incorrect patient identification (matching a patient to their medical record) is one of the most prevalent issues threatening the integrity of patient data in healthcare organizations. It can occur any time a patient has an interaction with a healthcare professional. This could be at the time of admission, before a procedure is performed, or when a specimen is collected, for example. Many factors contribute to these errors. The cause can be as simple as pulling the wrong chart because two patients share a similar name. Sometimes, numbers in a date of birth or Social Security number are transposed while looking for or creating a medical record. Three common medical records issues that can result from incorrect patient matching are: - **Duplicate records**: One patient has two or more medical records containing different information within the same facility, resulting in impartial and inconsistent medical histories and information - **Overlay**: Two patients share the same record or their records are incorrectly merged together - **Overlap**: More than one record exists for a single person in two or more facilities within a hospital system. ##### Dangers of duplicate medical records for healthcare organizations The reason duplicate medical data is challenging for healthcare organizations is that it can compromise clinical decision-making. An example of the problem duplicate records can cause is provided in the article, _Using Health Informatics to Tackle Duplicate Medical Record Issues_: “A physician may locate two records for a patient and select only one of the records as a reference for how he/she would administer treatment for the patient. This physician could then prescribe a medication for the patient that produces an adverse reaction, causing the patient to be referred for emergency treatment.” Health care facilities spend millions of dollars annually to address the duplicate problem, through personnel and IT solutions. The government, regulatory agencies, and professional organizations are all involved in initiatives to resolve duplicate records. The Office of the National Coordinator for Health IT (HealthIT.gov) states: > “Duplicate records caused by a lack of patient identity integrity, most often occurring at the point of origination through the registration process, can affect treatment, testing, insurance claims, and billing. The demographic data about a patient is a critical data set, and its reference and usage throughout the healthcare lifecycle is ubiquitous.” ##### **Issues duplicate medical records pose for defense attorneys** Duplicate records pose issues for defense attorneys because they use medical records to evaluate the validity of a claim or allegation, determine case value, and form a defense strategy. If they are working from partial, incomplete, or inaccurate records, they may not know they aren’t reviewing the complete story of patient care. They may only have one of two or more of a patient’s medical records, or they could be looking at a record that contains the medical history of two different individuals. If an attorney doesn’t have a medical background or access to a team member who does, this situation could be a huge setback, costing them precious time and resources. In this case, utilizing third-party health information management (HIM) professionals to review available records is a good way to start case preparation. HIM specialists are trained in all aspects of medical record documentation, including, but not limited to: - identifying inconsistencies - finding gaps in time and treatment records - comparing billing and supporting medical data - verifying that physician orders correspond with lab work, pharmacy and other ancillary records. ##### How Excelas can help The HIM specialists at Excelas can identify missing information early in the record organization and analysis process, allowing counsel to request additional records from the health care provider in a timely manner. Access to complete and accurate records will help uncover data that can be used to inform strategy right away. ## Best reads of the week, 9/13 https://excelas1.com/blog/best-links-of-the-week-9-13 ### Best reads of the week, 9/13 _2019-09-13 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Topics: PDPM, the economy, tattoo DNRs, and EHR-related claims. Below are some of the most important, interesting, or instructive articles our team read this week. Enjoy! ##### PAYMENT DRIVEN PATIENT MODEL Some advice for SNFs transitioning to PDPM: “stop and think before implementing any significant changes to a given facility’s care offerings and specialty services.” [How Skilled Nursing Operators Can Survive the New PDPM Compliance Landscape](https://skillednursingnews.com/2019/09/how-skilled-nursing-operators-can-survive-the-new-pdpm-compliance-landscape/) ##### ECONOMY Another signal that the labor market has shifted into low gear. [Job Growth Has Been Much Less Impressive Than Reported](https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/job-growth-bls-downward-revision.aspx) ##### ADVANCE DIRECTIVES Unlike tattoos, DNR orders should not be a permanent commitment. [DNR tattoos: Are they legal and is EMS bound to comply?](https://www.ems1.com/paramedic-chief/articles/dnr-tattoos-are-they-legal-and-is-ems-bound-to-comply-RE78PPdJlpo3zjUs/) ##### EHR-RELATED CLAIMS Copy/Pasting (also known as [cloning](/blog/cloning-in-ehr-can-lead-to-fraud-patient-harm)) is still cited as a top risk . [EHR-Related Claims Still Prevalent in Medical Malpractice Suits](https://ehrintelligence.com/news/ehr-related-claims-still-prevalent-in-medical-malpractice-suits) ## Best reads of the week, 9/6 https://excelas1.com/blog/best-links-of-the-week-9-6 ### Best reads of the week, 9/6 _2019-09-06 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Topics: Hurricane evacuation, tech and privacy, and positive psychology. Below are some of the most important, interesting, or instructive articles our team read this week. Enjoy! ##### HURRICANE EVACUATION AT LTC FACILITIES Hurricane Dorian is dominating the news this week, with mandatory evacuations underway. These articles shed some light on the risks of evacuating and sheltering in place. [Hurricane evacuation of nursing home residents still an unsolved challenge](https://theconversation.com/hurricane-evacuation-of-nursing-home-residents-still-an-unsolved-challenge-121163) [Employees of nursing home where 12 died in power outage charged with manslaughter](https://www.miamiherald.com/news/local/community/broward/article234400372.html) ##### TECHNOLOGY AND PRIVACY As consumers look to technology to improve accessibility and convenience in every aspect of their lives, some healthcare associations express concerns over privacy. [When Apps Get Your Medical Data, Your Privacy May Go With It](https://www.nytimes.com/2019/09/03/technology/smartphone-medical-records.html) Meanwhile, providers are beginning to test how voice technology can be used in a medical setting. [Privacy beyond HIPAA in voice technology](https://www.mobihealthnews.com/news/north-america/privacy-beyond-hipaa-voice-technology) ##### POSITIVE PSYCHOLOGY IN THE WORKPLACE At the Excelas staff training this week, we explored positive psychology principles, including cultivating a growth mindset. These TED Talks are a great resource on the subject. [10 must-watch TED Talks on positive psychology](https://positivepsychology.com/positive-psychology-ted-talks/) ## Best reads of the week, 8/26 https://excelas1.com/blog/best-links-of-the-week-8-26 ### Best reads of the week, 8/26 _2019-08-30 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Topics: Opioid litigation, duplicate medical records, and hospital marketing Staying on top of industry news can feel like a full-time job, so our team has started sharing articles with each other in an effort to stay more informed. We thought it would be a great idea to compile the most important, interesting, or instructive of these articles here. Below you’ll find a small collection of links we think may be worth your time. Enjoy! ##### OPIOID LITIGATION It’s been a big week for opioid litigation. We’ve been following the updates closely. (See our previous opioid-related blog posts [here](/blog/understanding-the-systemic-effects-of-opioids-can-help-mitigate-litigation-risk) and [here](/blog/opioid-litigation-medical-record-reviews)). Here’s the latest: [Johnson & Johnson to pay $572 million for role in opioid crisis; company says ruling ‘flawed’](https://www.usatoday.com/story/news/nation/2019/08/26/johnson-johnson-ordered-pay-572-role-opioid-crisis/2124385001/) [Drugmakers Endo, Allergan agree to $15 million in settlements in major opioid case](https://www.reuters.com/article/us-usa-opioids-litigation/drugmakers-endo-allergan-agree-to-15-million-in-settlements-in-major-opioid-case-idUSKCN1VA1FU) [Opioid maker Purdue Pharma is in talks to settle thousands of suits that claim it fed a deadly national drug epidemic](https://www.cnn.com/2019/08/27/us/purdue-settlement-ohio/index.html) ##### DUPLICATE MEDICAL RECORDS This article covers the operational and clinical costs of duplicate documentation, while offering a possible solution. [Developing a strategy to win the war on duplicates](https://journal.ahima.org/2019/08/14/developing-a-strategy-to-win-the-war-on-duplicates/) ##### HOSPITAL MARKETING For Shriners Chicago, Facebook and Instagram act not only as a resource for families looking for healthcare recommendations, but are also a place where they can share their own stories with others. [Digital marketing at Shriners Chicago drives patient acquisition by telling the ‘amazing’ story of its care](https://www.beckershospitalreview.com/digital-marketing/digital-marketing-at-shriners-chicago-drives-patient-acquisition-by-telling-the-amazing-story-of-its-care.html?oly_enc_id=3914A0542789G0H) **Have a great, long weekend!** ## Payroll Data Shows Reality of SNF Staffing Problem https://excelas1.com/blog/payroll-data-shows-reality-of-snf-staffing-problem ### Payroll Data Shows Reality of SNF Staffing Problem _2019-08-20 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Facilities can better prepare to defend themselves by understanding and using their publicly documented payroll-based journal data The [August issue of McKnight’s](https://www.mcknights.com/print-news/rn-staffing-is-inadequate-study/) Long-Term Care News reported on the results of a recent study conducted by Harvard and Vanderbilt medical schools on nursing home staffing. The researchers found “75% of U.S. nursing homes do not meet federal expectations for registered nurse staffing.” Also noted in the article: “70% of facilities self-reported higher total direct staffing levels than could be verified in the now-standard Payroll-Based Journal.” With many states experiencing a nurse shortage in long-term care facilities, declining quality of care for residents is a growing concern. Allegations of neglect and abuse have increased as the ratio of staff to resident has decreased. In short, low staffing increases the risk for regulatory actions and litigation. Facilities should be better prepared to defend themselves against these claims. They can start by understanding and using their publicly documented payroll-based journal data. This is the same information plaintiffs use to evaluate cases and create negative staffing narratives. ##### How Excelas Can Help Excelas extracts and interprets thousands of lines of payroll data entries from the CMS website to create a useful tool for gaining insight into your facility’s operations. [Read more about our Staffing Scorecard](/case-triage) for nursing homes. ## CMS Ruling: LTC Patients Not Required to Sign Binding Arbitration Agreements to Receive Care https://excelas1.com/blog/cms-ruling-long-term-care-arbitration ### CMS Ruling: LTC Patients Not Required to Sign Binding Arbitration Agreements to Receive Care _2019-07-18 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > CMS announces final rule on binding arbitration agreements in long-term care. Previously on our blog, we discussed [arbitration agreements in long-term care](/blog/arbitration-agreements-in-long-term-care) (LTC) and the ways in which patient advocate groups and the nursing home industry are at odds on their use. This week, the Centers for Medicare & Medicaid Services (CMS) announced a final rule on the matter: Medicare and Medicaid Programs; Revision of Requirements for Long-Term Care Facilities: Arbitration Agreements (CMS-3342-F). The final rule is published in its entirety in the [Federal Register](https://www.federalregister.gov/documents/2019/07/18/2019-14945/medicare-and-medicaid-programs-revision-of-requirements-for-long-term-care-facilities-arbitration). The summary of the rule notes that CMS is specifically repealing the prohibition on the use of pre-dispute, binding arbitration agreements and is strengthening the transparency of arbitration agreements in LTC facilities. The summary concludes that this final rule supports residents’ rights to make informed choices about important aspects of their health care. ##### **Final Rule Requirements** CMS considered more than 1,000 public comments from nursing home and beneficiary advocates on the [proposed rule](https://www.cms.gov/newsroom/fact-sheets/cms-issues-proposed-revision-requirements-long-term-care-facilities-arbitration-agreements) on arbitration agreements issued in June 2017. The [final rule states](https://www.cms.gov/newsroom/fact-sheets/medicare-and-medicaid-programs-revision-requirements-long-term-care-facilities-arbitration) LTC facilities must: > Not require that a resident or his or her representative sign an agreement for binding arbitration as a condition of admission to, or as a requirement to continue to receive care, at the facility. This must be explicitly stated in the agreement. This ensures that no resident will have to choose between obtaining the skilled nursing care he or she needs and signing an agreement for binding arbitration.Ensure the agreement is explained to the resident or his or her representative in a form and manner he or she understands, including in a language that he or she understands, and that the resident or his or her representative acknowledges that he or she understands the agreement. These two requirements ensure that the arbitration agreement is transparent and clearly stated.Ensure the agreement provides for the selection of a neutral arbitrator agreed upon by both parties and a venue that is convenient to both parties. These requirements help to ensure that the arbitration process is fair to both parties, especially the residents.Ensure that the agreement does not contain any language that prohibits or discourages the resident or anyone else from communicating with federal, state, or local officials, including Federal or state surveyors, other federal or state health department employees, or representative of the Office of the State Long-Term Care Ombudsman. This protects the resident from any undue influence by the LTC facility to not discuss the circumstances surrounding a concern, complaint, or grievance.Retain copies of the signed agreement for binding arbitration and the arbitrator’s final decision for 5 years after the resolution of any dispute resolved through arbitration with residents. Make these documents available for inspection upon request by CMS or its designee. This will ensure that CMS will be able to obtain information on how the arbitration process is being used by LTC facilities and on the outcomes of the arbitrations for residents. CMS indicates that this final rule on arbitration agreements is part of many steps it is taking to focus on patients, increase efficiencies and transparency, and strengthen the safety and quality of care beneficiaries receive. It is estimated that this rule, along with other CMS initiatives, will allow nursing homes to [focus resources on their residents by saving them millions in annual administrative costs.](https://www.cms.gov/newsroom/press-releases/cms-rules-put-patients-first-updating-requirements-arbitration-agreements-and-new-regulations-put) ##### **Arbitration Agreements/Admission Documents in the Medical Record** A critical component of Excelas’ medical record organization and analysis services, is identifying and highlighting admission documentation and all arbitration agreements. These forms are reviewed to determine if the above guidelines are followed and compliance with the process is clearly documented in the resident record. ## Patient Driven Payment Model (PDPM) will require SNFs to focus on documentation practices https://excelas1.com/blog/pdpm-requires-snfs-to-focus-on-documentation ### Patient Driven Payment Model (PDPM) will require SNFs to focus on documentation practices _2019-07-01 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ ![Patient Driven Payment Model - SNF Documentation practices Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-07-Nurse-with-Chart-Large.jpg) > Providers should expect increased scrutiny of nursing records under PDPM as SNFs will be required to capture information they haven’t had to in the past. As part of the Center for Medicare & Medicaid Services (CMS) “Patient over Paperwork” initiative, PDPM1 will replace Resource Utilization Groups (RUGs) Medicare Part A Skilled Nursing Facility Prospective Payment System (SNF PPS) for reimbursement. This will move reimbursement from a focus on therapy minutes to a more patient-centered and value-based approach. The attention will be on the patient’s progress and whether or not care plan goals are being met. Implementation of the new payment model is planned to take effect on October 1, 2019. ##### Fewer resident assessments, more comprehensive medical documentation Under PDPM, CMS will eliminate the mandatory 14-, 30-, 60- and 90-day resident assessment. Only the PPS 5-day and PPS Discharge Assessment will be required. An optional Interim Payment Assessment (IPA) will be allowed when clinical changes warrant a new PPS assessment that will affect a change in reimbursement. With this change, Medicare reimbursement for SNFs will be determined by the primary diagnosis at admission. This will require assessing many factors up front including surgical history, functional scores, clinical conditions and comorbidities, restorative nursing, diet modification, and swallowing disorders. Five clinical categories will be scored individually: physical therapy (PT), occupational therapy (OT), speech-language pathology (SLP), non-therapy ancillary (NTA), and nursing. The total of these scores will assign the case mix group which will determine reimbursement rates. The switch to the PDPM system is expected to greatly reduce the amount of paperwork currently generated from multiple MDS assessments and therapies. However, more comprehensive medical documentation will be needed in order to capture the characteristics and conditions of each resident so that a proper initial diagnosis can be made. An accurate primary diagnosis code on the MDS will be critical to ensure a claim is not automatically returned to the provider. ##### Greater scrutiny of medical records A recent article from Skilled Nursing News2 discusses why providers should expect increased scrutiny of nursing records under PDPM, warning that documentation habits will have to change. SNFs will now need to capture information they haven’t had to in the past, specifically NTAs. Because of this, “…receiving complete information from the hospitals prior to and at admission is paramount.” The article also cites nurse’s notes as being “crucial to achieving seamless documentation.” A challenge for most SNFs will be figuring out how to engage physicians outside their facilities and gain access to hospital documentation. The June 2019 issue of the Journal of AHIMA3 further explores these challenges in an article titled “Revolutionary Payment Changes Prompt Skilled Nursing Facilities to Eye CDI Programs.” It outlines the advantages of implementing clinical documentation programs at SNFs and identifies several areas in which CDI can have an impact. Per the article, the adoption of CDI can help SNFs: - Clarify specificity of all diagnoses - Ensure nursing documentation supports medical necessity of 24/7 skilled nursing care as well as all information reported on the MDS assessment - Identify any major surgical procedures that occurred during the inpatient hospital stay that immediately preceded the SNF admission - Obtain copies of physician progress notes, which can be omitted from the transfer/admission process - Obtain copies of the complete hospital record - Work with acute care hospitals to clarify the date of the preceding hospital admission ###### How Excelas Can Help As a national provider of medical record organization and analysis, Excelas handles millions of pages of medical records each year. Our health information specialists can help identify the strengths and weaknesses of your organization’s documentation so that you are better prepared for the switch to PDPM. [Contact us](/contact) to learn more. 1[https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/SNFPPS/PDPM.html](https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/SNFPPS/PDPM.html) 2 [https://skillednursingnews.com/2019/06/under-pdpm-providers-should-expect-close-scrutiny-of-nursing-records/](https://skillednursingnews.com/2019/06/under-pdpm-providers-should-expect-close-scrutiny-of-nursing-records/) 3 [http://www.ahimajournal-digital.com/ahimajournal/june_2019?pg=20#pg20](http://www.ahimajournal-digital.com/ahimajournal/june_2019?pg=20#pg20) ## Determination of the Robinson v. Bates Number https://excelas1.com/blog/determination-of-the-robinson-v-bates-number ### Determination of the Robinson v. Bates Number _2019-05-30 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > The Robinson number can be used as one basis for negotiations early in the evaluation process. A comprehensive review of all related medical bills, including but not limited to outpatient, inpatient, rehabilitation and physician bills, along with the amount paid by insurers and out of pocket by the plaintiff, is necessary. The plaintiff in any tort action clearly seeks the highest possible payment as a result of their injury. A fact-finder, often a jury, decides what a reasonable payment should be. How this payment amount is calculated varies by state, but in the state of Ohio this determination is guided by the 2006 Ohio Supreme Court decision [_Robinson v. Bates_](http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2006/2006-ohio-6362.pdf). ##### Robinson v Bates Background In the _Robinson_ case it was determined that both the amount originally billed by the provider and the amount paid by the insurer are admissible to prove the reasonable value of the medical treatment. In other words, the defense can introduce the amount of “write-offs”, or the negotiated paid-in-full amount, for consideration. The result of this ruling, allowing the introduction of the paid-in-full amount, is a decrease in the amount under consideration when determining compensation to the plaintiff. The _Robinson_ ruling was reaffirmed in [_Jaques v. Manton_](https://caselaw.findlaw.com/oh-supreme-court/1523699.html) in 2010 and again in [_Moretz v. Muakkassa_](http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2013/2013-ohio-4656.pdf) in 2013. In _Jaques_, the court’s opinion was that the reasonable value of medical services was a matter for a jury to determine from all relevant evidence. Write-offs are amounts not paid by third parties, or anyone else, so permitting introduction of evidence of them allows the jury (or fact-finder) to determine the actual amount of medical expenses incurred as a result of the defendant’s conduct. In _Moretz,_ the Supreme Court of Ohio again upheld the admissibility of write-off evidence. The Court held that “evidence of ‘write-offs,’ reflected in medical bills and statements is prima facie evidence of the reasonable value of medical services.” ##### Using the Robinson Number to Decide Case Value The _Robinson_ Number is used as one basis for negotiations early in the evaluation process. To determine the number, a comprehensive review of all medical records and corresponding medical bills is necessary. This includes, but is not limited to: outpatient, inpatient, rehabilitation, and physician bills, along with the amount paid by insurers and out of pocket by the plaintiff. ###### How Excelas Can Help The experienced medical analysts at Excelas can evaluate all aspects of care, as well as billing and reimbursement. Key components of our review include all providers of care, amounts billed by each provider, amounts paid to each provider by insurers or other parties (_Robinson _number), and verification that the bill is related to the claim/injury/accident. We also identify any pre-existing conditions/incidents which may relate to the claim in question. The final report is an easy-to-use spreadsheet providing counsel with a quick way to assess all aspects of the plaintiff’s medical history and the billing and reimbursement details. This spreadsheet helps verify the correct value of the _Robinson_ Number. ## Litigation Review: Roundup https://excelas1.com/blog/litigation-review-roundup ### Litigation Review: Roundup _2019-05-14 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > As of April 2019, over 11,200 people have sued in U.S. state and federal courts alleging Roundup has caused cancer. Roundup was developed as a herbicide by Monsanto in the early 1970s. The herbicide glyphosate is contained in over [750 products](http://npic.orst.edu/factsheets/glyphogen.html#products) from various manufacturers in the U.S. In 1996, Monsanto introduced genetically engineered crops (Roundup Ready seeds) which could tolerate glyphosate, thus increasing its use in large scale farming. Bayer acquired Monsanto, along with any liabilities associated with Roundup, in June 2018. ##### Litigation Overview As of April 2019, over 11,200 people have sued in U.S. state and federal courts alleging Roundup has caused cancer. To date two cases have gone to plaintiff verdicts, the first in August 2018 when a California jury awarded a school groundskeeper $289 million in damages for Monsanto’s failure to warn of the cancer risks posed by Roundup. The judge later reduced the award to $80 million. The second came in March 2019 when a federal jury found Roundup to be a factor in causing a California man’s non-Hodgkin lymphoma after he used the product to control weeds on his property for 26 years. He was awarded $80.3 million. On May 13, 2019 a jury awarded $2.055 billion ($2 billion in punitive damages and $55 million in compensatory damages) to a California couple in the _Pilliod v. Monsanto_ case. The jury found Bayer liable for the married couple’s non-Hodgkin lymphoma, who claimed it resulted from their use of Roundup on their property for 35 years. The husband and wife, both in their 70’s, are currently in remission. Plaintiff attorneys relied heavily on scientific studies of rodents and human populations that show glyphosate is carcinogenic. The defense highlighted that the EPA continues to approve the product. Further, the defense noted the couple’s health histories included prior cancer diagnoses and family history of cancer and autoimmune diseases. Bayer will appeal the verdict. Approximately 800 of these cases have been consolidated [In re: _Roundup Products Liability Litigation, MDL No. 2741_](https://www.cand.uscourts.gov/VC/roundupmdl) in the United States District Court, Northern District of California. On April 11, 2019, the judge ordered that these cases be organized to determine which cases should be dismissed, which should be remanded to state court and to transfer the remaining cases to the home districts for federal court trials. He further ordered the parties to enter into confidential mediation. A May 22, 2019 hearing is set to discuss the mediation efforts. There is potential that the mediation could lead to a confidential settlement amount. ##### Regulation of Glyphosate The U.S. Environmental Protection Agency’s review in 2017 found the chemical unlikely to cause cancer in humans. The European Chemicals Agency and European Food Safety Authority both approve glyphosate as well. Despite these approvals, a French court recently banned a Roundup product, several U.S. municipalities have barred the product and Costco Wholesale pulled Roundup from its stores. Plaintiff attorneys claim that company scientists influenced independent scientific papers and manipulated the findings, which they believe has impacted decisions by regulatory bodies. ##### Non-Hodgkin Lymphoma Statistics Both cases which have gone to verdict have alleged that Roundup caused the plaintiff’s non-Hodgkin lymphoma. According to the NIH [National Cancer Institute](https://seer.cancer.gov/statfacts/html/nhl.html), non-Hodgkin lymphoma is the seventh most common type of cancer in the U.S., with an estimated 74,200 new cases diagnosed, or 4.2% of all new cancer cases, in 2019. It is most frequently diagnosed in people aged 65-74. NHL is a disease in which cancer cells form in the lymph system and can be indolent or aggressive. [Risk factors for non-Hodgkin’s lymphoma](https://www.cancer.gov/types/lymphoma/patient/adult-nhl-treatment-pdq?redirect=true#Keypoint4) include: - Being older, male, or white. - Having one of the following medical conditions: An inherited immune disorderAn autoimmune diseaseHIV/AIDSHuman T-lymphotrophic virus type I or Epstein-Barr virus infection_Helicobacter pylori _infection - Taking immunosuppressant drugs after an organ transplant. The Surveillance, Epidemiology and End Results Program (SEER) of the National Cancer Institute using statistical models for analysis, shows that [rates for new non-Hodgkin lymphomas cases have been falling on average 0.9% each year over the last 10 years](https://seer.cancer.gov/statfacts/html/nhl.html). Death rates have been falling on average 2.2.% each year over 2007-2016. ##### About Excelas The medical review in the Roundup litigation entails evaluation on the individual case level as well as statistical analyses of the plaintiff population. Our medical analysts and health information specialists are experienced in managing the unique information needs in large scale litigation. This medical information is available through Zaxas, Excelas’ proprietary cloud-based software, which provides the tools for counsel to view source documents and review medical case summaries. **Updated 5/14/19:** This article was edited to update the Pilliod v. Monsanto verdict. ## The Challenges and Opportunities of Payroll-Based Staffing Data for Your Facility https://excelas1.com/blog/challenges-opportunities-payroll-based-staffing-data ### The Challenges and Opportunities of Payroll-Based Staffing Data for Your Facility _2019-05-03 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ ![Payroll-Based Staffing Data Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-05-analytics-blur-chart.jpg) > Skilled nursing facilities (SNFs) around the country are feeling the effects of the recent changes to Nursing Home Compare rating methodology by the Center for Medicare and Medicaid Services (CMS). Skilled nursing facilities (SNFs) around the country are feeling the effects of the recent changes to Nursing Home Compare rating methodology by the Center for Medicare and Medicaid Services (CMS). Since implementing the payroll-based journal staffing requirements, there has been an increase in SNFs dropping to one-star staffing ratings. According to an investigation led by the Dayton Daily News , 22 percent of SNFs in Ohio now have a one-star rating,” a jump from 14 percent just two years ago.” That number is likely to have increased the week of April 22 as more changes took effect in the Nursing Home Compare system. On Wednesday, the staffing threshold for receiving a 1-star rating was lowered from seven days per quarter without a registered nurse on-site to four days. In response, the American Health Care Associate (AHCA) stated in a press release , “By moving the scoring ‘goal posts’ for two components of the Five-Star system, CMS will cause more than 30 percent of nursing centers nationwide to lose one or more stars overnight—even though nothing changed in staffing levels and in quality of care, which is still being practiced and delivered every day.” ##### Using Staffing Data to your Advantage Although the payroll data SNFs submit to CMS is used to generate facility ratings and ultimately educate consumers, it can also be used for other purposes. Anyone willing to take the time to extract and interpret data from the CMS website will have the information needed to: - Compare staffing levels among facilities within a specific geographic footprint - Find inconsistencies or fluctuations in staffing levels at a facility during a certain period of time - Quantify the hours of direct care provided to residents by nursing staff - Create a narrative around the level of care provided, to be used in claims and litigation ##### About Excelas Excelas helps our clients use their staffing data to gain insight into their facility’s operations. We condense and simplify thousands of payroll staffing data entries into a report that’s is easy to read and understand. [Contact us](/contact) for more information on our [Staffing Scorecard](/case-triage). **Sources:** [Dayton Daily News](https://www.daytondailynews.com/news/local/local-nursing-homes-struggle-with-staffing-here-what-know/Mx9lQvP1LnQ9assjvzc7GI/) [AHCA Press Release](https://www.ahcancal.org/News/news_releases/Pages/AHCA-Response-to-New-Five-Star-Ratings-on-Nursing-Home-Compare.aspx) ## Crittenden Insurance Conference: Mega Verdicts on the Rise https://excelas1.com/blog/mega-verdicts-on-the-rise ### Crittenden Insurance Conference: Mega Verdicts on the Rise _2019-04-29 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Reasons for this mega verdict trend are speculative, but here are two factors believed to be at play. Excelas attended the 2019 Crittenden Medical Insurance Conference, held earlier this month in Miami. The event featured sessions on a variety of healthcare-related topics and covered current and emerging industry trends. We found the discussions around medical claim payouts particularly interesting. Below are some of our key takeaways. Claim frequency has steadily declined by more than 50% over the past 15-plus years, while verdict severity is at record high levels. In 2018, the average claim payout was more than $400,000 with more than 44 jury verdicts over $10 million and 17 verdicts awarding $25 million or more. ##### Why the Rise in Large Jury Verdicts? Reasons for this mega verdict trend are speculative, but here are two factors believed to be at play. > 1) There has been a shift in the public perception of wealth as the average American has become more desensitized to individuals having assets in the millions, and even billions, of dollars. Millennial jurors, who make up a large portion of the jury pool nationwide, grew up seeing more people achieve extreme wealth than their predecessors did.2) The public’s opinion of large corporations, especially hospitals, has also shifted over the years to one of distrust. There is a prevalent belief that these organizations value profits over people. In addition, plaintiff’s attorneys often use a courtroom tactic called Reptile Theory* to establish the defendant is a danger to the community. They work to convince jurors that they have the opportunity to “punish” these corporations on behalf of the community by compensating the injured with large sums of money.*Excelas has published several blog posts about Reptile Theory. Find the first one [here](/blog/reptile-theory-in-healthcare-litigation-introduction). The prediction is that the number of mega verdicts will continue to rise. The concern is that there won’t be enough experienced trial lawyers in the future to steady the waters. Currently, the pool of experienced defense attorneys is already shallow as fewer cases are going to trial, and senior attorneys are often reluctant to have inexperienced lawyers in the courtroom. Junior-level lawyers need training and real-life experience in order to strengthen and balance defense teams for the future. ## Understanding the Systemic Effects of Opioids can Help Mitigate Litigation Risk https://excelas1.com/blog/understanding-the-systemic-effects-of-opioids-can-help-mitigate-litigation-risk ### Understanding the Systemic Effects of Opioids can Help Mitigate Litigation Risk _2019-04-22 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > As the opioid crisis continues, we are likely to see more lawsuits initiated by patients who develop debilitating addictions to pain pills. News broke this week of what the Department of Justice is calling the [“largest-ever prescription opioid law enforcement operation.”](https://www.justice.gov/opa/pr/appalachian-regional-prescription-opioid-arpo-strike-force-takedown-results-charges-against) Authorities have charged 60 medical professionals for their involvement in the illegal prescription of more than 32 million pain pills. Some of the charges announced against these individuals include Medicare fraud and the unlawful distribution and excessive prescription of controlled substances. This bust is another wake-up call for doctors who prescribe opioids as part of a pain management plan and a reminder that they have clear duties for assessing, treating, and monitoring patients. As the opioid crisis continues, we are likely to see more lawsuits initiated by patients who develop debilitating addictions to pain pills. Providers of care must ensure that all records pertaining to patients clearly reflect the medical and relevant social history, physical examination, diagnoses and treatment. The effects of opioids on the physiology of the brain, systemic and behavioral symptoms, tolerance and addiction, and risk factors of abuse should all be understood and considered. ##### **The Effect of Opioids on the Brain** Opioids include prescription drugs such as oxycodone, hydrocodone, codeine and morphine, synthetic opioids such as fentanyl, and illegal drugs such as heroin. The body’s own opioids are the neurotransmitters endorphin and enkephalin. These neurotransmitters attach to opioid receptors in the brain, spinal cord and digestive tract and are involved in stress response, mood, learning, memory and immune functions. The binding on the opioid receptors in the reward regions of the brain inhibit the perception of pain and increases the feeling of pleasure. These receptors in the brain can also decrease alertness and slow respiration and those in other tissues can cause constipation and cardiac arrhythmias. When an opioid drug is used, the chemicals attach to mu opioid receptors on neurons, which triggers biochemical brain processes that give feelings of pleasure and relieve pain. Continued use of opioid drugs results in decreased production of the body’s own opioids, causing the brain to function abnormally when the drug is not taken. The areas of the brain directly impacted by opioid use, and the resulting effects, include: - The basal ganglia which plays a role in motivation, socializing, sex, and the formation of habits and routines. This area is part of the brain’s “reward circuit” which releases dopamine and becomes overactivated by the use of drugs. - The extended amygdala is involved in anxiety, irritability and unease. This area becomes more sensitive with drug use. - The prefrontal cortex controls thinking, planning, problem solving, decision making and self-control. Drug use impedes impulse control, resulting in drug seeking behavior to secure the euphoric feeling. - The brain stem controls basic functions such as heart rate, breathing and sleeping. Overdoses of drugs depress breathing, resulting in death. ##### **Tolerance, Withdrawal and Addiction** Tolerance occurs when the person requires a higher dose of opioids to achieve the same response. Repeated use of opioid drugs desensitizes the brain’s natural opioid system, which results in symptoms of withdrawal when the drugs are discontinued. Changes in neurotransmitter production during withdrawal causes nausea, anxiety, itching, muscle cramps, diarrhea and overall difficulty in functioning normally. Drug addiction is defined as an irresistible craving for a drug, out-of-control and compulsive use of the drug, and continued use of the drug despite repeated, harmful consequences. Opioid drugs produce large surges of dopamine, which essentially teach the brain to seek drugs, no matter the cost. Cues in the person’s environment can trigger these uncontrollable cravings, which the brain can remember for decades. Opioid dependence and addiction are considered chronic medical disorders. The reward system of the brain appears to be central in the development of tolerance and addiction. Other abnormalities that produce addiction are complex and may involve environmental effects and genetic predispositions in the form of abnormal brain pathways. ##### **Risk Factors for Opioid Addiction** A thorough review of a person’s social history can reveal known risk factors for opioid misuse and addiction. Records should be assessed for documentation of risk factors prior to the prescription of an opioid drug including: - Poverty / Unemployment - Family and/or personal history of substance abuse - Young age - History of criminal activity or legal problems including DUIs - Regular contact with high-risk people or environments - Problems with past employers, family members and friends (mental disorder) - Risk-taking or thrill-seeking behavior - Heavy tobacco use - History of severe depression or anxiety - Stressful circumstances - Prior drug or alcohol rehabilitation As noted in a [previous Excelas blog post](/blog/opioid-litigation-medical-record-reviews), CDC guidelines, state specific rules, and professional organizations provide extensive resources for the appropriate content of medical record documentation related to prescription opioid use. ##### **About Excelas** Excelas provides medical record services to organizations nationwide. Our team of credentialed health information managers and medical analysts have the experience and expertise to gather, organize and analyze the complex information in cases involving opioid abuse and overdose. ###### _**References:**_ - Mayo Clinic Staff. [How Opioid Addiction Occurs](https://www.mayoclinic.org/diseases-conditions/prescription-drug-abuse/in-depth/how-opioid-addiction-occurs/art-20360372). February 16, 2018. - Volkow, M.D., Nora. [What Science Tells Us About Opioid Abuse and Addiction](https://www.drugabuse.gov/about-nida/legislative-activities/testimony-to-congress/2016/what-science-tells-us-about-opioid-abuse-addiction). January 27, 2016. - National Institute on Drug Abuse. [Drugs, Brains and Behavior: The Science of Addiction](https://www.drugabuse.gov/publications/drugs-brains-behavior-science-addiction/drugs-brain). July 2018 - Kosten, M.D., Thomas R. and George, M.D., Tony P. [The Neurobiology of Opioid Dependence: Implications for Treatment](https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2851054). July 2002 ## Arbitration Agreements in Long-term Care https://excelas1.com/blog/arbitration-agreements-in-long-term-care ### Arbitration Agreements in Long-term Care _2019-04-05 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ ![Arbitration Agreements in LTC Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-04-contract.jpg) > Arbitration agreements in long-term care have been the subject of recent industry news. Arbitration agreements in long-term care have been the subject of recent industry news. In January, the White House Office of Management and Budget (OMB) reportedly began [reviewing a final rule](https://reginfo.gov/public/do/eAgendaViewRule?pubId=201804&RIN=0938-AT18) to reverse the Obama-era regulation that banned pre-dispute binding arbitration in nursing homes participating in Medicare or Medicaid. ##### Background The 2016 rule issued by the Centers for Medicare & Medicaid Services (CMS) prohibited arbitration agreements as a condition of admission and required facilities not enter into arbitration until after a dispute had arisen. Challenged in court by the American Health Care Association (ACHA), the rule was blocked by a preliminary injunction and was never implemented. The judge in this case determined CMS did not have the authority to regulate arbitration agreements. Then, in June 2017, CMS reversed their policy and announced [a revised proposed rule](https://www.arbitrationnation.com/wp-content/uploads/sites/469/2017/06/2017-11883.pdf) in support of arbitration. This rule is now pending regulatory review. Because this rule faces opposition from the long-term care industry and patient advocates alike, it is hard to predict when or if it will be implemented. While the U.S. Supreme Court has recently ruled in favor of nursing home arbitration agreements, see [Kindred Nursing Centers LP vs. Clark (May 15, 2017](https://www.scotusblog.com/case-files/cases/kindred-nursing-centers-limited-partnership-v-clark/)), there is still the matter of whether or not CMS has the authority to regulate said agreements or if some of the new proposed requirements are too restrictive. ##### For and Against Arbitration As it stands now, an estimated 90% of large nursing home chains in the United States currently include pre-dispute arbitration clauses as a requirement for applying to be admitted. The nursing home industry in general is in favor of enforcing arbitration agreements, pointing to swifter dispute resolutions and reduced expenses for all parties. According to the [2018 Aon General and Professional Liability Benchmark for Long Term Care Providers](https://www.aon.com/getmedia/c4af82af-61a0-4121-99d2-dec3ee900044/Long-Term-Care-Benchmark-Report-Executive-Summary.aspx), claims that were resolved with arbitration agreements closed more than two months faster than other claims, on average. Patient advocates, on the other hand, believe forced arbitration threatens residents’ rights to dispute resolution by a judge and jury and reduces the likelihood of a payout. They also call out the fact that the private nature of arbitration proceedings can keep the public in the dark about potential malpractice issues at facilities. ##### Proposed Requirements CMS has [proposed requirements in their new rule](https://www.cms.gov/newsroom/fact-sheets/cms-issues-proposed-revision-requirements-long-term-care-facilities-arbitration-agreements) that address some of the concerns about the negative effect these agreements might have on resident health, safety, and welfare. These requirements are: - All agreements for binding arbitration must be in plain language. - If signing the agreement for binding arbitration is a condition of admission into the facility, the language of the agreement must be in plain writing and in the admissions contract. - The agreement must be explained to the resident and his or her representative in a form and manner they understand, including that it must be in a language they understand. - The resident must acknowledge that he or she understands the agreement. - The agreement must not contain any language that prohibits or discourages the resident or anyone else from communicating with federal, state, or local officials, including federal and state surveyors, other federal or state health department employees, or representatives of the State Long-Term Care Ombudsman. - If a facility resolves a dispute with a resident through arbitration, it must retain a copy of the signed agreement for binding arbitration and the arbitrator’s final decision so it can be inspected by CMS or its designee. - The facility must post a notice regarding its use of binding arbitration in an area that is visible to both residents and visitors. ##### Recent Cases of Note The importance of following these proposed requirements for effective arbitration agreements are highlighted in recent cases. For example, in [Stephan v. Millennium Nursing & Rehab Ctr., 2018 WL 4846501 (Ala. Oct. 5, 2018)](https://law.justia.com/cases/alabama/supreme-court/2018/1170524.html), the signature on the contract did not belong to the patient, but rather his daughter. Because she did not hold power of attorney or other legal authority and the resident never signed the paperwork, it was determined an enforceable agreement was never formed. In [Cullinane v. Beverly Enterprises-Nebraska, Inc.](https://law.justia.com/cases/nebraska/supreme-court/2018/s-17-486.html), the arbitration agreement was invalidated due to the contract being misleading and confusing. ##### Arbitration Agreements in the Medical Record Arbitration as an alternative dispute resolution in long-term care is not going away any time soon. These agreements will continue to be an important piece of documentation in healthcare litigation. As part of our medical record sorting and summarization service, Excelas will locate arbitration agreements within admission documentation or determine if they are missing. We evaluate the signature to confirm whether or not the resident signed the contract. If the signature does not belong to the resident, we find their documented relationship to the resident as well as their legal authority to sign. We also determine if the resident refused to sign the agreement. ## A Look at Long-term Care Litigation and Liability Risks https://excelas1.com/blog/a-look-at-long-term-care-litigation-and-liability-risks ### A Look at Long-term Care Litigation and Liability Risks _2019-03-20 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > To evaluate liability risk, aging services providers need to be aware of the current legal landscape in long-term care, what it is expected to look like in the future, and where they should focus their efforts within their own organization to reduce risk exposure. Long-term care continues to be one of the fastest growing segments of health care litigation with liability costs rising year after year. To evaluate liability risk, aging services providers need to be aware of the current legal landscape in long-term care, what it is expected to look like in the future, and where they should focus their efforts within their own organization to reduce risk exposure. ##### **Let’s Look at Recent Events** Statistics on long-term care lawsuits are hard to come by, given the majority of these cases – more than 95%, according to the[Nursing Home Abuse Center](https://www.nursinghomeabusecenter.com/compensation/case-values/) – are settled out of court. However, data presented at the 2018 ACI Annual Forum on Long Term Care Litigation and Risk Management Strategies can help give us the lay of the land. We know that in 2017 there were 22 jury verdicts nationwide for nursing home and assisted living cases with $4,867,945 being average amount awarded to plaintiffs. The largest jury verdict of the year totaled $28,550,000, with $25,000,000 in punitive damages awarded. Although typically rare in injury cases, punitive damages were awarded in four (33%) of the cases with jury verdicts. This will be an interesting trend to watch and is certainly a concern for long-term care providers. Where arbitration was involved, the payout numbers looked quite a bit better. The average award to plaintiffs was $461,750, based on a total of six arbitration awards. A telling figure: the total number of arbitration awards combined with punitive damages was zero. Clearly, keeping a case out of court has its advantages. According to the [2018 Aon General and Professional Liability Benchmark for Long Term Care Providers](https://www.aon.com/getmedia/c4af82af-61a0-4121-99d2-dec3ee900044/Long-Term-Care-Benchmark-Report-Executive-Summary.aspx), the portion of claims with arbitration agreements in places has increased over time. These claims have a 3% lower total cost and tend to settle two and a half months sooner than those resolved without arbitration. Of claims that closed between 2015 and 2017, about 63% had an arbitration agreement in place. ##### **Projected Liability Costs for Long-Term Care** It comes as no surprise that the frequency and severity of aging services claims are projected to keep climbing. The Aon report warns long-term care providers that they should expect to see a 3% uptick in total claims frequency coupled with another 3% climb in the average size of each claim, with an estimated average loss rate of $2,410 per bed. Consequently, liability insurance rates for the senior living and long-term care industries could increase from 5% to 30% or more in 2019, according to [Senior Housing News](https://seniorhousingnews.com/2018/11/12/senior-living-providers-face-surging-liability-costs-2019/). States likely to see the greatest increases are California, Illinois and Florida. **Areas of Concern ** Falls are consistently identified as the leading claim category by CNA1 and will continue to be an issue at facilities who serve an aging and frail population. Last year, falls accounted for 40.5% of closed claims with nearly two-thirds of these claims asserting failure to monitor. In about half of fall-related claims, death was the outcome. Pressure injuries are cited by CNA as the second most serious challenge, comprising nearly 23% of closed claims in 2018. Death is the most common outcome of pressure injury (62% of closed claims) and the costliest. The average total paid for pressure injury allegations with death as the outcome was $246,386. Other common risk-prone issues include nutrition and hydration, medication errors, wandering and elopement. Long-term care facilities are already dealing with more complex situations related to the health of their patients and residents. The reality is that 68% of seniors have at least two chronic health conditions, according to the National Council on Aging.3 Dementia is a common ailment among seniors that increases the risk of falls and elopement. In the CNA report cited above, it was a factor in more than half of fall-related claims, and the condition will only become more prevalent in the future. According to the World Health Organization, the likelihood of experiencing the onset of Alzheimer’s Disease doubles every five years after age 60, when it is present in about 2% of patients. By the time someone reaches age 85, they face a one in three chance of having Alzheimer’s, and some studies place that figure as high as 50%. Currently, people age 85 or older constitute the fastest growing segment of the population.2 Higher acuity in older patients and residents is a result of people living longer and moving beyond their healthy retirement years. This demographic is on track to inundate nursing homes and assisted living facilities in the next few decades as the Baby Boomer generation, defined as those born during about a 15-year period following World War II, reaches old age. This population boom is often referred to as the “_silver tsunami_.” The[U.S. Census Bureau estimates](https://www.census.gov/library/stories/2018/03/graying-america.html?eml=gd&utm_campaign=20180313msacos1ccstosc&utm_medium=email&utm_source=govdelivery) that by 2030, 21% of people living in the U.S. will be older than 65. That’s up from 15% today and represents an additional 40 million people. By 2035, 78 million Americans will be 65 and older. Demand for senior care will skyrocket along with the aging population, but it’s uncertain there will be a labor market large enough to look after the people who need it. Paul Osterman, author of “Who Will Care for Us: Long-term Care and the Long-Term Workforce,” predicts that in 2030 there will be a national shortage of 151,000 paid direct care workers and 3.8 million unpaid family caregivers. Facilities need to start thinking now about how they will be able to attract and retain qualified staff so they can meet the requirements for providing proper standards of care. One last note on boomers and their effect on senior living: as they start needing additional medical care, they will look for housing alternatives that allow them more freedom than a traditional nursing home or assisted living facility. Continuing Care Retirement Communities (CCRCs) are becoming more popular because they offer seniors more choices for how and where they want to live, with access to the types of care they need. However, the fact that not all states have regulations governing these unique housing options, and less-defined regulations in those that do, makes them more vulnerable to litigation. ##### **Moving Forward** Aging services providers will continue to face claims and lawsuits, possibly at an accelerated pace due to the silver tsunami and an impending long-term care worker shortage. However, knowing where the biggest challenges lie can help you take proactive steps to manage your risk. For most facilities, this will entail: - Having an adequate staff that is equipped to handle patients or residents with higher acuity - Cultivating work satisfaction to prevent turnover and retain employees - Implementing a fall prevention and wound management program - Focusing on memory care to prevent injuries caused or compounded by dementia - Keeping communication open with patient and resident family members and set realistic expectations so they fully understand the realities of their loved one’s situation - Maintaining consistent and complete documentation to accurately illustrate the level of care provided ##### **About Excelas:** Excelas provides efficient and affordable medical record organization and analysis to organizations nationwide. We can handle any project, from a single case to a class action lawsuit. Our health information specialists have reviewed millions of pages of records, helping clients identify and address issues that could raise questions about a patient or resident’s care. [Contact us](/contact) to find out how we can help your organization. 1 CNA Aging Services 2018 Claim Report; Valuing Employees, Minimizing Risk 2 National Institute on Aging: [https://www.nia.nih.gov/living-long-well-21st-century-strategic-directions-research-aging/introduction](https://www.nia.nih.gov/living-long-well-21st-century-strategic-directions-research-aging/introduction) 3 https://www.ncoa.org/blog/10-common-chronic-diseases-prevention-tips/ ## Current Opioid Litigation and the Role of Medical Record Reviews https://excelas1.com/blog/opioid-litigation-medical-record-reviews ### Current Opioid Litigation and the Role of Medical Record Reviews _2019-02-27 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > According to the Centers for Disease Control (CDC), from 1999 to 2017, approximately 218,000 people died in the US from overdoses related to prescription opioids. According to the Centers for Disease Control (CDC), from 1999 to 2017, approximately 218,000 people died in the US from overdoses related to prescription opioids. Deaths were five times higher in 2017 than in 1999. Further, a study published in 2015 of patients aged 15-64 who received opioids for chronic noncancer pain revealed one in 550 patients died from an opioid-related overdose at a median of 2.6 years from their first prescription. The CDC estimates that the total costs of prescription opioid misuse in the United States, including healthcare, lost productivity, addiction treatment and criminal justice involvement, is $78.5 billion a year. ##### Federal Opioid Case As a result of the impact of this public health crisis, lawsuits have been filed throughout the country. Many cases have been brought by government bodies against manufacturers, distributers and retail pharmacies. Of national interest are the cases in multidistrict litigation, MDL 2804 _In re: National Prescription Opiate Litigation_, which have a trial date for the bellwether cases set for October 2019 in the United States District Court, Northern District of Ohio, presided by Judge Dan Polster. In the MDL, plaintiffs allege that the manufacturers of prescription opioids grossly misrepresented the risks of long-term use of those drugs for persons with chronic pain, and distributors failed to properly monitor suspicious orders of those prescription drugs–all of which contributed to the current opioid epidemic. The consolidation includes approximately 1,500 cases filed by government entities, hospitals, Indian tribes, and third party payors. Defendants include Purdue Pharma, Actavis Phama, Insys Therapeutics, Janssen Pharmaceuticals, AmerisourceBergen, Cardinal Health, McKesson, CVS, Walgreen, Walmart and Rite Aid. ##### **The Use of Medical Records in Opioid Litigation** Individual medical records, which may document examples of patients who received unnecessary prescriptions that resulted in addiction, are not coming into play at this point in the MDL. The plaintiffs are pursuing all of the costs related to the drug addictions, taking into account costs to the community. Defendants have argued specific individual examples are needed to demonstrate the events from manufacturer to end use. In this regard, Judge Polster has ordered that plaintiffs could rely on “aggregate proof” using statistical evidence relating to appropriate versus actual prescriptions in a given population as opposed to individual records. Unquestionably, medical record documentation will play a key role in other cases, particularly those specifically citing physicians, physician extenders, pharmacists and health care facilities. As evidenced by the $17.6 million verdict against a doctor and hospital in St. Louis in 2016, which was upheld on appeal in 2017, the stakes can be high., In such cases, the review of records typically begins with a comparison to guidelines and standards. ###### **CDC Guidelines for Prescribing Opioids** The CDC released guidelines for primary care physicians prescribing opioids for chronic pain (excluding cancer, palliative and end of life care patients) in March 2016. The CDC notes that primary care providers account for approximately half of all opioid prescriptions. The CDC guidelines include 12 recommendations: - Opioids are not the first-line therapy, and should only be used when the benefits outweigh the risks; - Establish goals for pain and function; - Discuss risks and benefits with patients; - Use immediate-release opioids, rather than extended-release, when starting; - Use the lowest effective dosage; - Prescribe shorter durations for acute pain; - Frequently evaluate benefits and harms; - Use strategies to mitigate risk; - Review patients’ Prescription Drug Monitoring Program data; - Use urine drug testing before starting opioid therapy; - Avoid prescribing concurrent opioid and benzodiazepine treatments; and - Offer treatment for opioid use disorder. ###### **State Guidelines for Prescribing Opioids** Many states also have guidelines for prescribing opioids. For example, the Ohio Revised Code contains administrative rules for management of chronic pain with controlled substances. The rules outline the following in regard to the physician maintaining a written record of all of the following: - Medical history and physical examination of the patient; - The diagnosis of chronic pain, including signs, symptoms, and causes; - The plan of treatment, the patient’s response, and any modifications, including all of the following: Documentation that other medically reasonable treatments for relief of the patient’s chronic pain have been offered;Periodic assessment and documentation of the patient’s functional status;Periodic assessment and documentation of the patient’s progress toward treatment objectives;Periodic assessment and documentation for indicators of possible addiction, drug abuse, or drug diversion;Notation of any adverse drug effects. - The dates on which controlled substances were prescribed, furnished, or administered, the name and address of the patient, and the amounts and dosage forms; - A copy of any record or report made by another physician that was used or consulted for the purpose of diagnosing the patient’s chronic pain or treating the patient for chronic pain. - A physician shall not prescribe, personally furnish, or administer to a patient a controlled substance without taking into account the potential for abuse, the possibility it may lead to dependence, the possibility the patient will obtain the controlled substance for a nontherapeutic use or distribute it to other persons, and the potential existence of an illicit market. In addition, the physician shall address with the patient the risks associated with protracted treatment, including informing the patient of the potential for dependence, tolerance, and addiction and the clinical or monitoring tools the physician may use if signs of addiction, drug abuse, or drug diversion are present. As the examples above show, CDC guidelines, state-specific rules, and professional organizations provide extensive resources for the appropriate content of medical record documentation related to opioid use. Many challenges remain in gathering the complete medical picture on a specific patient, as non-compatible data may be maintained in various systems, including, but not limited to, electronic health records (EHR), pharmacy records (including state specific Prescription Drug Monitoring Programs), billing systems, and paper records. **Sources:** ** ** [https://www.cdc.gov/drugoverdose/data/prescribing.html](https://www.cdc.gov/drugoverdose/data/prescribing.html) [https://www.ncbi.nlm.nih.gov/pubmed/26291716](https://www.ncbi.nlm.nih.gov/pubmed/26291716) Florence CS, Zhou C, Luo F, Xu L. The Economic Burden of Prescription Opioid Overdose, Abuse, and Dependence in the United States, 2013. _Med Care_. 2016;54(10):901-906. https://www.ohnd.uscourts.gov/mdl-2804 [https://molawyersmedia.com/momedlaw/2016/09/20/jury-awards-17-6-million-in-opioid-case/](https://molawyersmedia.com/momedlaw/2016/09/20/jury-awards-17-6-million-in-opioid-case/) [https://www.courthousenews.com/appeals-court-upholds-15-million-damages-opioid-case/](https://www.courthousenews.com/appeals-court-upholds-15-million-damages-opioid-case/) [https://www.cdc.gov/drugoverdose/pdf/pdo_checklist-a.pdf](https://www.cdc.gov/drugoverdose/pdf/pdo_checklist-a.pdf) [http://codes.ohio.gov/orc/4731.052](http://codes.ohio.gov/orc/4731.052) ##### **About Excelas** Excelas provides medical record services to organizations nationwide. Our team of credentialed health information managers and medical analysts have the necessary experience and expertise to gather, organize, and analyze complex medical information related to the chain of events in cases involving opioid abuse and overdose. ## Cloning in EHR can lead to fraud, patient harm https://excelas1.com/blog/cloning-in-ehr-can-lead-to-fraud-patient-harm ### Cloning in EHR can lead to fraud, patient harm _2018-03-28 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Documentation integrity is critical for avoiding fraudulent billing, HIPAA violations, claim denials, audits and compliance violations, and threats to patient care. Documentation integrity is critical for avoiding fraudulent billing, HIPAA violations, claim denials, audits and compliance violations, and threats to patient care. Unfortunately, certain practices used within electronic health records (EHRs) can be problematic. For example, as EHR continues to rapidly replace paper records, the use of cloning – also known as copy and paste or pulling forward – in clinical documentation has significantly increased as well. While this practice may have some time-saving benefits, it can also damage the integrity of the patient record. ##### WHAT IS CLONING? Cloning refers to copying and pasting notes from one patient encounter to another without updating the information. It’s also considered cloning when entries in the medical record are worded the exact same or very similar to previous notations. To meet medical necessity requirements for Medicare, documentation for each provided health service must be distinct from one another. ##### EHR-RELATED FRAUD AND ABUSE Cloning has been identified as a problem area by the Office of Inspector General (OIG) and for years has cautioned that cloning makes it too easy for providers to inflate claims or create false ones. In a report from 2014, the OIG noted, “When doctors, nurses, or other clinicians copy-paste information but fail to update it or ensure accuracy, inaccurate information may enter the patient’s medical record and inappropriate charges may be billed to patients and third-party health care payers. Furthermore, inappropriate copy-pasting could facilitate attempts to inflate claims and duplicate or create fraudulent claims.” The report also addressed overdocumentation and how duplicate and excessive information causes contradictions in records “…suggesting the practitioner performed more comprehensive services than were actually rendered."1 ##### PATIENT HARM ATTRIBUTED TO CLONING A medical record is only useful for clinical decision-making if it’s a trustworthy source. Confusion arises when information is contradictory or hard to find, and this can lead to poor clinical decisions affecting the lives and well-being of patients. Copy-pasting has been identified in the Joint Commission’s sentinel event database as the root cause leading to several reports of patient harm. Examples of documentation errors that have led to harm include outdated weight information used for dose calculation of chemotherapeutic agents and lengthy progress notes that prevented timely and efficient communication.2 ##### REDUCE YOUR RISK Cloning can be done responsibly if the proper steps are taken to ensure records are complete and accurate, containing all the elements essential to creating a narrative for patient care. Records should include documentation that shows the status of patients, their needs at each visit or encounter, and the care plans to address those needs. The [American Health Information Management Association’s official position](http://library.ahima.org/PdfView?oid=300306) on cloning in EHRs states that it “should be permitted only in the presence of strong technical and administrative controls which include organizational policies and procedures, requirements for participation in user training and education, and ongoing monitoring. Users of the copy/paste functionality should weigh the efficiency and time savings benefits it provides against the potential for creating inaccurate, fraudulent, or unwieldy documentation.” Similar stances are taken by the Joint Commission patient safety alert, “[Preventing Copy and Paste Errors in Electronic Health Records](https://www.jointcommission.org/assets/1/23/Quick_Safety_Issue_10.pdf),” and OIG studies on electronic health record integrity. Excelas can quickly and thoroughly review your records to identify errors related to cloning. In 2017, we reviewed more than 2 million pages of records. Our findings were: 90% of the records received were incomplete and gaps in documentation were identified and reported 20% were not HIPAA compliant 16% contained inconsistent entries with copy-pasting identified as an area of risk To talk to someone about the services we offer, [Call or email us today](/contact/)! **Resources:** _1 Levinson, Daniel R. _[_CMS and Its Contractors Have Adopted Few Program Integrity Practices to Address Vulnerabilities in EHRs_](https://oig.hhs.gov/oei/reports/oei-01-11-00571.pdf)_. 2014_ _2 “Preventing Copy-and-Paste in EHRs.” Quick Safety, no. 10, Feb. 2015, _[_www.jointcommission.org/assets/1/23/Quick_Safety_Issue_10.pdf_](http://www.jointcommission.org/assets/1/23/Quick_Safety_Issue_10.pdf)_._ ## Is Your Facility Too Lenient on Physician Certifications? https://excelas1.com/blog/is-your-facility-too-lenient-on-physician-certifications ### Is Your Facility Too Lenient on Physician Certifications? _2018-01-26 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Problems with documentation in skilled nursing facilities (SNF) often lead to claim denials that can negatively impact cash flow and make these facilities susceptible to audits. According to findings in the 2017 Comprehensive Error Rate Testing report, one of the most common errors in medical reviews is missing or insufficient physician certification and/or recertification statements. To ensure your documentation aligns with the care you have provided your patients, your facility must make the effort to provide all the information necessary for these statements to be considered complete and valid. ##### What constitutes a valid certification and recertification statement? While there is no requirement from the CMS for facilities to use a specific procedure or form, documentation must show that a patient required skilled nursing care or skilled rehab services on a daily basis for a condition that was treated or arose during the qualifying hospital stay. This information may be included in a physician’s order or progress notes. Any format is acceptable as long as it verifies the need for initial and extended skill nursing services. Initial certification must be obtained at the time of admission to the skilled nursing or rehab facility, ideally within 48 hours. If this isn’t possible, it should be signed within a reasonable timeframe. While capturing the physician or non-physician practitioner’s signature is important, confirming that the certification is dated is just as essential. A non-dated certification is not considered acceptable. The first recertification must be completed, signed, and dated by the doctor or non-physician practitioner no later than day 14 of post-hospital SNF care. This statement must give reasons for the continued need for SNF care, the estimated time a patient will need to stay in the SNF, any plans for home care, and an indication of whether or not the continued need for services is due to a condition that arose after their admission to the SNF. Subsequent recertifications are required to be signed and dated by the doctor or non-physician practitioner at intervals not exceeding 30 days after the first recertification. In the event a certification or recertification isn’t signed and dated within a reasonable timeframe, CMS will accept and honor delayed certifications. However, the facility must provide a reasonable explanation for the postponement of completion. ##### Ensure your facility’s documentation is complete Reviewing your claims before submitting them to Medicare can help you eliminate costly billing errors. Many facilities implement a triple-check system, a formal process involving team members from multiple departments including billing, clinical, rehabilitation, and administrative staff. Each person on the team is tasked with verifying and crosschecking key data so errors can be identified and corrected before the claims are sent for reimbursement. To obtain an objective review or to verify internal audit findings, third parties like Excelas are used to complete the triple-check audit. If you’d like to learn more about Excelas’ triple-check and medical records auditing services, [contact us today](/contact/). ## CMS Extends Moratorium on Phase 2 Enforcement Penalties https://excelas1.com/blog/cms-extends-moratorium-on-phase-2-enforcement-penalties ### CMS Extends Moratorium on Phase 2 Enforcement Penalties _2018-01-26 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > In November, the Centers for Medicare and Medicaid Services (CMS) announced it would give SNFs more time to adjust to some of the regulatory changes in LTC requirements before being penalized. Previously, the agency said it would restrict enforcement for one year, but due to readiness concerns from long-term care providers, they have extended their moratorium on penalties to 18 months. This delay allows providers to better understand the new numbering system for F-Tags while avoiding the risk of civil money penalties, discretionary denials of payment for new admissions, or discretionary termination. The Phase 2 survey process, which became effective November 28, 2017 has increased the number of F-Tags from 176 to 179. What complicates this is that some of the F-Tags have been combined, while others have split into multiple subparts. ##### F-Tags included in the moratorium: F655 – Baseline Care Plan F740 – Behavioral Health Services F741 – Sufficient/Competent Direct Care/Access Staff-Behavioral Health F758 – Psychotropic Medications related to PRN Limitations F838 – Facility Assessment F881 – Antibiotic Stewardship Program F-865 – QAPI Program and Plan F926 – Smoking Policies. NOTE: There is one tag not included in the moratorium: F608, which concerns the reporting of reasonable suspicion of a crime. ##### Freeze on Health Inspection Star Ratings In addition to the moratorium, CMS announced that they would hold constant the health inspection star ratings on the Nursing Home Compare website for any surveys conducted between November 28, 2017 and November 28, 2018. Facilities surveyed using the new LTC survey process will still be published on Nursing Home Compare; however, the findings will not be incorporated into the calculations for the Five-Star Quality Rating System for 12 months. Beginning in January 2018, the Nursing Home Compare health inspection star ratings will be based on the two most recent cycles of findings for the standard health inspection surveys and the two most recent years of complaint inspections. Any surveys and complaint investigations prior to November 28, 2017 will impact star ratings. CMS will update the User’s Guide for the Five Star Quality Rating System and the Nursing Home Compare website with recent changes. ## 10 Nutritional Considerations for Long-Term Care Residents https://excelas1.com/blog/10-nutritional-considerations-for-long-term-care-residents ### 10 Nutritional Considerations for Long-Term Care Residents _2017-09-02 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ ![Nutritional Considerations Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-01-photos-on-a-dinner-plate.jpg) > Nutrition is major focus at many nursing facilities because it is often linked to medical conditions. Malnutrition and dehydration, in particular, are recurring issues at nursing facilities, especially because they can lead to falls, the development of pressure injuries and/or cognitive impairment. Nutrition is major focus at many nursing facilities because it is often linked to medical conditions. Malnutrition and dehydration, in particular, are recurring issues at nursing facilities, especially because they can lead [to falls, the development of pressure injuries and/or cognitive impairment](/5-interventions-to-prevent-falls-in-nursing-facilities/). ##### Nutritional Assessment and Dietary Planning Assessing a nursing home patient’s nutritional health is a highly individualized process that must include measuring food intake levels. Patients are typically assessed shortly after admission. Subsequent nutritional reviews should occur at regular intervals—usually quarterly and annually if a patient is not showing signs of nutritional issues. Similarly, patients should be weighed monthly, or more frequently if nursing staff notices sudden weight gains or losses. Next, the nursing facility’s dietician should evaluate the nutritional assessments and create a dietary plan recommending the number of calories the patient should consume. To provide proper nutrition for a patient, it is important to consider each patient’s individual circumstances. Nursing staff observations should be noted and all information should be carefully documented. ##### 10 Considerations for Nutritional Health in Elderly Patients The nursing facility’s team, including staff, dieticians, and oral therapists, should consider the following factors: - **Ability to eat:** There are multiple factors that may impede a patient’s ability to eat. This could include issues chewing or swallowing, as well as a lack the strength to cut food or to properly use utensils. - **Constipation:** A patient who frequently suffers from fecal impaction may have a suppressed appetite, or may choose not to eat to avoid discomfort. - **Dentures or oral pain:** The patient may have ill-fitting dentures or cavities that cause pain while eating, or may need dentures to properly chew food. - **Diet:** The person’s diet may be unappetizing, whether it’s due to sodium restrictions for high blood pressure treatment, or reduced sugar intake because of diabetes maintenance. - **Depression:** Some patients refuse to eat because they are depressed. In these situations, the nursing home may want to order a psychological intervention, or determine whether the presence of the patient’s family may encourage them to eat. - **Disease processes:** Patients with certain medical conditions may experience weight changes depending on the stage of their disease. Some patients may gain weight because of fluid retention, then rapidly lose it after being placed on a diuretic. Nursing staff should be aware of a patient’s medications and treatment history, and how they may impact weight fluctuations. - **DNRs:** The nursing home should know whether patients or their families have a do-not-resuscitate (DNR) order in place. DNRs may prevent the implementation of certain nutritional interventions, such as the placement of a feeding tube. - **Lifestyle habits:** Sometimes patients’ culture or religion influences their diet. Patients who traditionally didn’t eat pork may not be able to vocalize their reason for refusing to eat pork chops at dinner. In some cases, it may be appropriate for the patient’s family to bring food that has cultural or traditional significance. - **Mobility:** Patients who are more active will generally need to consume more calories to maintain their weight compared to patients who are largely sedentary. - **Pressure injuries:** Patients with pressure injuries will need a higher caloric intake to facilitate the healing process. For patients whose weight changes significantly in either direction—i.e., more than 5% in a month, or more than 10% in 180 days—the nursing facility should consider a variety of interventions. This may include a physician ordering a feeding tube, whether as a supplementary or sole source of nutrition. Alternately, the nursing home could provide the patient with protein supplements, or with “enhanced food” that contains additional nutrients. Another option is providing the patient food that has a consistency compatible with the patient’s chewing and swallowing ability. The patient may require assistance at meal times, whether in the form of plates with raised edges, modified utensils, or manual feeding. For patients with Parkinson’s disease, ALS, or other conditions that cause tremors, the nursing facility may want to provide the patient with “finger foods” that are easy to grasp. Ultimately, many factors contribute to a nursing home patient’s nutrition and health. A defense attorney’s ability to demonstrate that a nursing facility properly assessed and provided for a patient’s individual needs depends on familiarity with nutritional considerations in elderly populations. Click here for more information on how to obtain assistance in this process. ## 7 Ways to Adjust Nursing Home Patient Care Plans After a Fall https://excelas1.com/blog/7-ways-to-adjust-nursing-home-patient-care-plans-after-a-fall ### 7 Ways to Adjust Nursing Home Patient Care Plans After a Fall _2017-08-02 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ ![Care Plans After Fall Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2017-08-fall-risk.jpg) > Falls are an enormous issue in long-term care facilities, and are often at the heart of lawsuits against care providers. The medical record is a crucial tool for the defense as it pieces together a timeline of what happened before, during and after a fall. It is imperative to document all of the steps the provider took to demonstrate its awareness of the resident’s fall risk, attempts to prevent them from falling, and response when a fall does happen. Falls are an enormous issue in long-term care facilities, and are often at the heart of lawsuits against care providers. The medical record is a crucial tool for the defense as it pieces together a timeline of what happened before, during and after a fall. It is imperative to document all of the steps the provider took to demonstrate its awareness of the resident’s fall risk, attempts to prevent them from falling, and response when a fall does happen. ##### Solving the Mystery of the Fall In a lawsuit where the plaintiff is claiming the nursing home could have prevented the fall, the defense will want to demonstrate from the medical record that the care team knew and documented the [steps taken to identify a patient as a fall risk](/the-five-step-process-for-assessing-quality-of-care/), to create and implement a care plan, and to evaluate and address the factors that led to a fall. The response should be immediate and demonstrate that the care team researched the factors that prompted the fall and implemented steps to remove or address that cause. Determining how and why a resident fell can be similar to solving a mystery. Going directly to the source—the resident—doesn’t always yield a conclusive answer. The resident may not be able to remember what happened, or may not have realized what caused the fall. In such instances, the nursing staff may need to rewind the timeline to determine what the resident was doing immediately before the fall, such as getting out of bed to use the bathroom, or reaching down to pick up an item that dropped to the ground. ##### Post-Fall Considerations and Changes to the Care Plan - For a resident who fell on the way to the bathroom, did the care team place the resident on a toileting routine to promote regular bathroom assistance? Did the facility implement appropriate interventions, such as grab bars or elevated toilet seats? - If a resident fell out of bed while trying to reach something, did staff respond by placing items like tissues, drinking water, or television remotes within easy reach of the patient’s bed? - Did the care team assess the resident’s medications to determine whether one medication or a combination of them caused the resident to experience dizziness or feel lightheaded when standing up? - Did the facility place a sign in the resident’s room reminding them to use the call light, and did the facility document the resident’s knowledge of the call system? If the resident’s fall was due to slipping or losing balance, did the care team provide the resident with appropriate footwear, including well-fitting shoes and non-skid socks? Or, if necessary, did the facility introduce a cane, walker, or wheelchair? - For residents who are prone to becoming bored and restless, did staff make an effort to engage him in activities? - Was an interdisciplinary approach used to determine what caused the fall and then address that cause? This may include communicating with housekeepers about their behavioral observations, or assuring that therapists have alerted other members of the care team to a resident’s tendencies. A resident’s medical record may provide the best evidence that a care team appropriately and quickly responded to a fall. The defense should look for information that the care team immediately updated the care plan by evaluating and adjusting any existing interventions to address the circumstances surrounding the fall. Ultimately, defense attorneys rely on medical records to create a narrative surrounding the fall and demonstrate that the provider properly cared for the resident. It requires a familiarity with care standards and a knowledge of what to look for—and when. [Contact us](/contact/) for assistance with this aspect of building a strong defense to a medical malpractice lawsuit. ## 11 Risk Factors for Infections Among the Elderly https://excelas1.com/blog/11-risk-factors-for-infections-among-the-elderly-excelas-legal-medical-solutions ### 11 Risk Factors for Infections Among the Elderly _2017-08-02 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ ![Risk Factors for Infection Among Elderly Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-01-mask-and-gloves.jpg) > Infections in long-term care (LTC) facilities are associated with higher rates of morbidity, mortality, rehospitalization, extended hospital stays, and substantial expense. Urinary tract infections (UTIs) are among the most common infections seen in LTC facilities. For these reasons, many medical malpractice lawsuits involve patients who were treated for an infection of some kind. Risk factors for infections among the elderly are a focus of many long-term care (LTC) facility medical malpractice lawsuits. Infections in long-term care facilities are associated with higher rates of morbidity, mortality, rehospitalization, extended hospital stays, [and substantial expense](https://stacks.cdc.gov/view/cdc/11550). Urinary tract infections (UTIs) are among the [most common infections seen in LTC facilities](https://www.cdc.gov/nhsn/PDFs/LTC/LTCF-UTI-protocol_FINAL_8-24-2012.pdf). For these reasons, many medical malpractice lawsuits involve patients who were treated for an infection of some kind. ##### Best Practices for Preventing Infections are the Best Defense Best practices that facilities should observe to prevent and treat infections are its best defense. The difficulty in defending medical malpractice cases involving infections is typically a general inability to determine whether those best practices were used. **One of the most important best practices is also one of the most difficult to track: whether the nursing staff practiced proper hand hygiene.** ###### Other Practices: Education, Surveillance, Evidence-Based Other practices [recommended by The Joint Commission](https://www.scripps.org/sparkle-assets/documents/national_patient_safety_goals_2016.pdf) in their January 1, 2018 Patient Safety Goal 7 are to **educate staff** about multidrug-resistant organisms and prevention strategies upon hire, and periodically thereafter on a schedule determined by the organization. They recommend implementation of a **surveillance program for multidrug-resistant organisms** to measure and monitor prevention processes and outcomes, including infection rates, compliance with guidelines and evaluation of the education programs provided to staff. The Joint Commission also recommends **evidence-based practices** to prevent central line-associated bloodstream infections. ###### Maintaining Proper Control of Environment Additional best practices include _maintaining proper control of the environment, especially in the event of infectious outbreaks_. This may include **isolation**, or teaching families about **using and properly disposing of masks and gloves** when visiting a patient with an infection. Prevention is also important, and is typically addressed in care plans. ##### 11 Risk Factors for Infections Among the Elderly A common approach among defense attorneys to assess infection-related medical malpractice cases is to _determine whether the nursing staff were aware of the common risk factors for infection_, then _determine whether they wrote an appropriate care plan_ that addressed those risk factors. The defense will then assess whether staff recognized signs and symptoms of infections, notified the physician in a timely manner, and provided for proper treatment as ordered. The following risk factors for infections are commonly associated with infections in LTC settings: - Diminished immune response - Advanced age - Malnutrition - The presence of multiple chronic diseases, a status that is often accompanied by many different medications - Cognitive deficits that may complicate compliance with basic sanitary practices, such as hand washing - Diminished ability to complain of or self-identify symptoms, or increased likelihood of presenting with atypical symptoms or signs of infection - Functional impairments such as incontinence or immobility - Blunted febrile response to infection - Use of invasive devices like catheters, ventilators, or feeding tubes - Growing population of post-acute residents recovering from a hospitalization - Institutional factors like turnover, payment, rates of transfer, and intensity of services ##### Using the Medical Record to Assess the Care Provider’s Diagnosis and Treatment One strategy for medical record review is for the defense attorney—or someone working on the defense’s behalf—to **compare a patient’s care plan with his or her treatment records**. For example, if a patient entered the nursing home with a urinary catheter, the defense should check the medical record to determine whether the nurse obtained orders for catheter care and examine the treatment records for indications of care performance. Was the catheter changed regularly? Did the care plan include instructions for gravity drainage for the catheter bag to avoid reflux? In short,_ make sure the care plan was accompanied by _[_best practices_](/the-five-step-process-for-assessing-quality-of-care/)_ for prevention and treatment._ ###### Consider the Care Setting Another consideration is the care setting in which the patient may have contracted the infection. For example, patients who are diagnosed with a Clostridium difficile colitis (C. diff) infection are commonly infected in a hospital setting, but remain asymptomatic for a few days—perhaps until they’re recovering in a nursing home. In C. diff cases, the defense should review the medical record to see what treatment the patient was receiving in his or her prior setting, as the infection is generally caused by a heavy antibiotic regimen that disrupts the natural flora in the stomach. ###### Consider Differences Between Hospitals and Long-Term Care Facilities Lastly, the defense is wise to consider the differences between hospitals and long-term care facilities, as the care models can differ a great deal. Nursing homes may be less equipped to recognize and diagnose infections due to their staffing models and more limited access to diagnostic equipment. Additionally, LTC facilities’ residential nature includes providing socialization and group activities, in contrast to self-contained care in hospitals. ###### The Difference Between Winning and Losing: The Medical Record Because it can be challenging to determine—and prove—that nursing staff followed best practices, it is crucial that defense attorneys are familiar with the risk factors for infection. _Knowing how to review both care plans and the treatment history within the medical record can be the difference between winning and losing in court_. For more information about how to get assistance in this process, [click here](/contact/). ## 5 Interventions to Prevent Falls in Nursing Facilities https://excelas1.com/blog/5-interventions-to-prevent-falls-in-nursing-facilities ### 5 Interventions to Prevent Falls in Nursing Facilities _2017-07-25 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ ![Fall Interventions Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-01-5-fall-interventions.jpg) > Falls are an enormous issue in long-term care facilities, and are often at the heart of lawsuits against care providers. The medical record is crucial to the defense when piecing together a timeline of what happened—including all the steps the care team took to demonstrate awareness of the patient’s fall risk and attempts to prevent the patient or resident from falling. Falls are an enormous issue in long-term care facilities, and are often at the heart of lawsuits against care providers. The medical record is crucial to the defense when piecing together a timeline of what happened—including all the steps the care team took to demonstrate awareness of the patient’s fall risk and attempts to prevent the patient or resident from falling. When reviewing a medical record, it may help to [apply a five-step process](/the-five-step-process-for-assessing-quality-of-care/) that examines the nursing home’s assessment of the resident, its resulting diagnosis and individualized care plan, the steps it took to implement the care plan, and its efforts to evaluate the effectiveness of that plan. There are many interventions a nursing facility can implement to enhance safety for its patients, including these five recommendations to reduce the likelihood of falls: - **Consider discontinuing the use of noisy alarms.** It used to be standard practice to place alarms under nursing home residents’ beds and chairs. An individual at risk for falling would trigger the alarm upon standing up unexpectedly. The alarm presumably had a dual purpose: remind residents to sit down, and alert the nursing staff to their movements. But when confused people hear an alarm, their first reaction is generally not to sit back down—but to run away from the noise. This type of quick, startled movement, paired with confusion, can lead to stumbling or tripping. Although staff members may be on their way to the resident’s room, it is generally too late at that point to prevent a fall. - **Consider using silent alarms or motion sensors.** As the previous alarm system falls out of favor, nursing homes are implementing newer technology, such as motion sensors or alarms that only sound at a nurses’ station, rather than in a resident’s own room. These still serve the purpose of alerting a nurse to movement, without the side effect of startling or confusing the resident. - **Strive for noise reduction and a calming atmosphere.** When it’s noisy, a resident may find it difficult to fall asleep and may become restless. This could lead to getting up unassisted for a drink of water, to use the bathroom, or to investigate the cause of the sounds. All of these actions heighten an individual’s risk of falling. While sleep deprivation due to a noisy environment can lead to falls, [studies show that noise reduction](https://secure.in.gov/isdh/files/Resources_for_Findings_2014.pdf) in nursing homes can help reduce the occurrence of falls. - **Increase staffing at key times.** Additional staffing may be necessary at certain times of day to properly address residents’ needs, such as post-mealtime and at dusk. Some people may have increased urges to use the bathroom after eating, including those who need toileting assistance. “[Sundowning](https://www.mayoclinic.org/diseases-conditions/alzheimers-disease/expert-answers/sundowning/FAQ-20058511),” a phenomenon causing some residents to become more confused or restless in the evening, can cause individuals with mobility issues to forget that they aren’t supposed to walk on their own. The nursing home may want to consider augmenting their staffing at these times to handle increased demand for services. - **Discuss resident’s histories with their families.** Especially among residents who have a history of falling, it’s important to collaborate with their families to develop a pattern of what caused the falls. For example, did they wake up at night to use the bathroom, and fall on the way? Did they fall simply walking through the living room, because they weren’t using their cane? Is there a tendency to trip over throw rugs? Does the person typically get around the house by holding onto furniture or leaning against walls? Once the family member leaves the familiarity of home—along with the methods they’ve used to stay mobile—the nursing facility may need to introduce ambulatory aids such as canes or walkers. The family can help the facility identify the factors that put their loved one at a higher risk for falls. There are many other clues to look for in the medical record, but it requires a comprehensive knowledge of nursing home care standards, new trends and best practices in long-term care, and an understanding of the types of interventions that may have been necessary in individualized situations. It may be difficult for someone without a clinical background to properly review a complex and lengthy medical record and build a strong defense. Luckily, there are medical legal analysts with a strong grasp of what is relevant in an aging services medical record and exactly where to find that information. What to look for. [Contact us](/contact/) for more information about using these analysts to prepare a defense. ## 3 Ways to Improve Your Billing Process and Avoid Recovery Audits https://excelas1.com/blog/3-ways-to-improve-your-billing-process-and-avoid-recovery-audits ### 3 Ways to Improve Your Billing Process and Avoid Recovery Audits _2017-07-07 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ ![Improve Billing Process Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-01-magnifying-glass.jpg) > Recovery auditors typically look for discrepancies in the nursing facility’s reimbursement requests. And while recovery audit decisions are generally appealable, it’s better to avoid an audit than to appeal one. Fortunately, there are a few proactive steps to take prior to finalizing billing that may help avoid audits—or allow a facility to successfully weather closer scrutiny. Most people think of nursing homes as providing long-term, end-of-life care, but many nursing facilities also provide short-term care, such as rehabilitative and therapy services, which is then reimbursed by the Centers for Medicare & Medicaid Services (CMS) under Medicare Part A. But CMS does not necessarily make Medicare reimbursements without any questions. In fact, the government will audit nursing facilities to make sure reimbursements are properly aligned with services rendered. And when the paperwork doesn’t exactly correspond with the payment, the government will seek to recover what it views as improper reimbursements. Recovery auditors typically look for discrepancies in the nursing facility’s reimbursement requests. And while recovery audit decisions are generally appealable, it’s better to avoid an audit rather than necessitate an appeal. Fortunately, there are a few proactive steps to take prior to finalizing billing that may help avoid audits—or allow a facility to successfully weather closer scrutiny. 1. **Compare MDS with therapy documentation.** Generating billing information is a highly-involved process that includes not just a company’s billing department, but also its medical coders, MDS coordinators, therapy managers, and the nurses who complete the Minimum Data Sets (MDS). MDSs are used for nursing home resident assessment and care tracking, including documenting all types of therapy, such as speech, occupational, and physical therapies. To prevent an audit, it’s crucial to ensure all therapy units documented and logged match what is on the UB-04. This may sound simple in theory, but it’s a very complex process. For example, the MDS coordinator might have rushed through a data set without performing an internal check for discrepancies, such as a nurse who may have checked the wrong box. Alternately, there may have been a lack of communication among all the parties involved, or poor documentation prior to medical coders getting the information. It’s important to make sure care is documented on time and correctly, and that coding is correct, before finalizing and submitting a bill. 2. **Verify RUG scores and document services to withstand increased scrutiny.** The general rule is that the higher the RUG score, the higher the reimbursement for the nursing facility. Due to the fact that higher reimbursements translate to more expenditures for the government, these types of reimbursement requests are generally scrutinized more closely. During the billing process for a patient with a high RUG score, it’s important to make sure the record addresses the issues that may impact the patient’s RUG level. When reviewing the record for such a patient, the reviewer should anticipate significant therapy for the patient, and perhaps additional entries for social services or other items deemed necessary for treatment. In other words, for high-level RUGs, the record should reflect a higher level of care. Documentation is the way to establish that the patient did, indeed, receive a greater number of care services. 3. **Make sure forms are completely filled out and signed.** One discrepancy auditors generally look for is whether all documents requiring signatures have indeed been properly signed. This is especially true for therapy care plans. Therapy is usually done pursuant to a doctor’s certification or recertification, which specifies the number of sessions or amount of therapy that’s needed. Therapy certifications need to be signed prior to submission to CMS in order to qualify for Medicare Part A coverage. At times, however, doctors don’t fill out the therapy certification completely, or forget to sign it. This can result in CMS refusing to reimburse—or seeking to recover reimbursements—for any therapy sessions that took place prior to the date on which a doctor signed a certification or recertification. Getting ready to submit documentation for billing and government reimbursements can be a painstaking process that requires a line-by-line review. It also requires knowing what types of potential issues or discrepancies an auditor might be looking for, including those listed above. Fortunately, there are services available that can triple-check billing records and make sure all documentation is in order. [Click here for more information](/contact/). ## The Five-Step Process for Assessing Quality of Care https://excelas1.com/blog/the-five-step-process-for-assessing-quality-of-care ### The Five-Step Process for Assessing Quality of Care _2017-06-08 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ ![Assessing Quality of Care Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-01-nurse-with-patient-in-wheelchair.jpg) > There are many aspects to building a strong defense, but one crucial factor is using the medical record to paint a picture of the quality of care that was provided. In many cases, the medical record contains much of the information the defense needs. The trick is knowing how to navigate the complexities of the medical record. The best offense is often a strong defense—especially when it comes to successfully defending healthcare providers in medical malpractice cases. One way to build a defense in medically-related lawsuits is by demonstrating that the healthcare company being sued met the standard for quality of care. There are many aspects to building a strong defense, but one crucial factor is using the medical record to paint a picture of the quality of care that was provided. In many cases, the medical record contains much of the information the defense needs. The trick is knowing how to navigate the complexities of the medical record. Some medical record experts use a five-step process to assess quality of care in medical defense cases, which often involve issues such as infections, pressure injuries, and falls. The steps of the process may not always be linear, but the approach typically includes assessment, diagnosis, planning, implementing and evaluating. **1. Assessment** – The first step is often checking to see whether the facility gathered assessment data about the resident from available sources, such as a health history, physical examination, observation, diagnostic tests, and patient/family interaction and communication. Take the common issue of falls as an example: An older adult’s fall risk must be assessed and documented upon admission or readmission into a facility, and reassessed after every fall. Even without falls, the facility should perform assessments on a regular—typically quarterly—basis. Determine whether the facility relied too much on standard forms that assign fall risk scores, or if they provided their own analysis based on individual risk factors and variables. **2. Diagnosis** – Become familiar with the facility’s process for taking assessment data and turning it into an informed diagnosis of actual or potential health problems. A successful defense may depend on showing that the facility took the data and used it for care planning and decision making. Also, developing a complete diagnostic picture of the resident will depend on more than just admission assessment data. The medical record will provide insight to not only the admission assessment and diagnostic information but whether the facility continued to gather data and update its diagnoses throughout the admission, depending upon patient activity and behavior. **3. Planning** – Analyze the record to determine whether the facility developed a clear, measurable goal plan and corresponding interventions. This may include assessing whether the healthcare provider adjusted the environment to the patient’s specific needs. For falls, this may include considerations relating to lighting, grab bars, and equipment that functions properly, as well as daily interventions such as making sure pathways are clear and quickly eliminating safety hazards from spills or other accidents. Planning essentially comes down to knowing the patient and their individual needs and making necessary adjustments when there is any type of change in status. **4. Implementing** – The next step is to evaluate medical record information to determine what the facility did to effectively carry out the planned interventions. When it comes to falls, this generally begins with the fall risk assessment and any other relevant information about the person and their level of functioning. Then it will be necessary to determine if the facility created an individualized care plan that took reasonable steps to decrease fall risk. Standard implementations may include installing side rails on beds; monitoring bathroom trips and providing toileting assistance; and positioning people with higher fall risk closer to nursing stations where staff are more likely to be in proximity. Similarly, the facility may group residents who are at a fall risk in the same area and assign more aides to that area. Look for examples of the care team demonstrating its knowledge of the residents and their patterns. **5. Evaluating** – Finally it is essential to determine if caregivers documented whether patient care planning goals were met. It should be evident that the facility restarted the process in the event goals were not met or the patient or resident did not improve. When falls happen, generally there is a reason—and the next step is to figure out the cause of the fall. It is a red flag if the medical record notes that the resident fell, and the facility continued with the same interventions. In contrast, look for instances where a resident fell and the care team took steps to improve its care plan and develop new interventions. Other considerations when assessing a medical record include analyzing it for completeness and legibility, or whether it’s missing information that might be relevant to determining the quality of care provided. Additionally, look for timeliness in terms of assessment and care documentation being performed as completed, rather than sometime after the fact. Ultimately, achieving quality of care standards requires a multidisciplinary approach and a lot of communication—a true team effort that may include not just nurses and CNAs, but also therapists and housekeeping staff. This information can typically all be found in the medical record. Need assistance with assessing a medical record for a medical malpractice defense? [Our experts can help](/contact/). ## Three Steps to Building a Successful Wrongful Death Defense https://excelas1.com/blog/three-steps-to-building-a-successful-wrongful-death-defense ### Three Steps to Building a Successful Wrongful Death Defense _2017-05-17 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ ![Wrongful Death Defense Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-01-lawyer-and-gavel.jpg) > Defending against a wrongful death claim can prove challenging. Often, the “blame” is directed at the last place the deceased received care, although myriad factors may have contributed to the cause of death. To be successful, the plaintiff must first prove that an event or injury occurred as a result of negligence. Then it must be proven that the event or injury proximately caused or contributed to cause of death. Even with a death certificate, the cause of death can remain uncertain, so an accurate and detailed medical record review is vital. Here are a few recommendations to consider… #### The Importance of Medical Record Review and Analysis in Wrongful Death Claims Defending against a wrongful death claim can prove challenging. Often, the "blame" is directed at the last place the deceased received care, although myriad factors may have contributed to the cause of death. To be successful, the plaintiff must first prove that an event or injury occurred as a result of negligence. Then it must be proven that the event or injury proximately caused or contributed to cause of death. Even with a death certificate, the cause of death can remain uncertain, so an accurate and detailed medical record review is vital. Here are a few recommendations to consider: ##### 1. Know the medical record in detail. The old adage “the devil is in the details” couldn’t be more appropriate when reviewing medical records for a wrongful death claim. There are 3 key time periods in which crucial details can be found – before, during, and after their hospitalization or nursing home residency. Medical records are extremely helpful in multiple ways. Records that **precede** admission provide context for the hospitalization or skilled nursing facility placement. In addition, they serve as excellent sources of information about co-morbidities and baseline functional status. Since the event or injury leading to the alleged wrongful death likely occurred **during a hospital or nursing home stay**, the need to review records during that period is obvious. Finally, if there are medical records **following discharge or transfer** from the hospital or nursing home, reviewing these records will assist in proximate cause and damage determinations. For example, if the alleged cause of death is sepsis from a urinary tract infection, medical records that reflect a history of urinary tract infections preceding admission to the hospital or nursing home will be critical. Also, records describing continued urinary tract infections after being discharged or transferred from the hospital or nursing home may support an argument that the infections were more likely due to an underlying co-morbidity or condition, as opposed to any negligence on the part of the facility staff. Additionally, if the death occurred many months to even years after the alleged event or injury, proximate cause becomes more dubious. ##### 2. Remember to consider the other possible causes. A detailed medical record review can shed light on other issues that could have caused or contributed to the patient/resident’s death—beyond what is alleged by the plaintiff or stated on the death certificate. These factors include co-morbidities, pre-existing risk factors, and non-compliance. Co-morbidities such as congestive heart failure, COPD, and chronic infections could arguably have caused more debility than an alleged pressure ulcer, for instance. Risk factors like Alzheimer’s disease and other forms of dementia can have a dramatic impact as well. As the disease progresses, individuals forget how to do basic activities of daily living such as walking or eating. They may also become non-compliant with recommended treatments, safety measures, or medications—and their refusals must be respected. For these individuals, outcomes such as falls, pressure ulcers, or malnutrition may be unavoidable despite all efforts made by the facility staff to prevent them. In those cases, even if the event or injury was the ultimate cause of death, there exists no negligence. ##### 3. Do not presume the death certificate is accurate. In some cases, the death certificate may be completed and signed by someone who barely knew the resident. Those authorized to sign a death certificate vary by state, but often include any physician, medical examiner, nurse practitioner, forensic pathologist, or coroner. As such, the death certificate may be completed and signed by a professional who had little to no knowledge of the events leading up to the resident’s death, much less their progressive decline over a period of months or years. Coroners and medical examiners will often review the medical records when making a cause of death determination, however rarely do they perform autopsies on individuals who were of advanced age or resided in a nursing home. In some cases, challenges to the death certificate may require testimony from a medical expert, and having a firm grasp of the details will be essential. Navigating a medical record to extract all the relevant information is no easy task. Luckily, there are experts who know exactly what to do. [Click here](/contact/) for more information. ## Legal Implications Of Changes To Pressure Ulcer Terminology https://excelas1.com/blog/legal-implications-of-changes-to-pressure-ulcer-terminology ### Legal Implications Of Changes To Pressure Ulcer Terminology _2016-11-29 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ ![Kennedy Terminal Ulcers and Federal Regulators Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-01-gauze.jpg) > Recent—and controversial—changes to pressure ulcer (now pressure injury) terminology and staging are accompanied by potentially significant legal implications for the healthcare field. [Recent—and controversial—changes to pressure ulcer (now pressure injury) terminology](/are-you-using-the-correct-terminology-for-pressure-injuries/) and staging are accompanied by potentially significant legal implications for the healthcare field. ##### Injury versus Ulcer For starters, the terminology itself has changed, trending toward using the term “**injury**,” rather than “**ulcer**.” Plaintiffs’ attorneys commonly try to blame pressure ulcers on a defendant provider’s care practices as a trial tactic, and the change in terminology may not be favorable to healthcare defense. The word “**injury**” connotes the concepts of safety and prevention, which may work in the plaintiff’s favor, particularly given the public’s (i.e., the jury’s) existing perceptions and beliefs about pressure ulcers. In essence, this change in terminology could further the plaintiff’s position while damaging the defense’s position—even in cases where ulcers were not preventable, and regardless of the quality of clinical care. ##### Controversial New Definition Additionally, some healthcare providers have found changes to the staging definitions controversial. For example, the new staging description for “**Deep Tissue Pressure Injury**” states that such a wound “results from intense and/or prolonged pressure and shear forces at the bone-muscle interface.” This definition fails to support the pathophysiology of pressure injuries recently revealed by several ground-breaking scientific studies. And because damage is attributed to "intense" or "prolonged" pressure or shear, the new definition implies that residents may have been abused or neglected. Ultimately, it may help plaintiffs’ attorneys argue that the injury developed because a resident was not properly cared for or unattended, or was left in one position for too long. Further, while the concept of “intense or prolonged pressure” was added to the definition, other verbiage that might have shifted some of the blame from providers was removed. Specifically, a previously-included statement that “evolution may be rapid, exposing additional layers of tissue even with optimal treatment” was removed. Eliminating the acknowledgment that bad outcomes sometimes occur even with good clinical care may have left plaintiffs’ attorneys with a clearer path for attacking the level of care provided to residents. ##### Incorporating the Changes into Your Defense Strategy In the wake of these changes and the likelihood of increased plaintiff activity, pressure injury cases will remain on defense attorneys’ radar. As always, the crux of the case is whether or not the provider met the standard of care. Perhaps now more than ever it is crucial for providers to enact interdisciplinary, personalized plans of care for skin integrity. Even more importantly, documentation related to pressure injuries must be exacting, and reflect the following: - Pressure injuries must be staged, measured, and documented appropriately and according to the new staging system. - The approach to treatment must be interdisciplinary and include timely and appropriate referrals/follow-ups when necessary, all of which must be documented. - Specific treatments must not only follow the standard of care; they must follow the individualized plan of care and must be documented accurately and completely, including response to treatments. Plaintiffs’ attorneys will look for deviations from the standard of care to support their case that the pressure injury was avoidable and was due to facility or provider negligence. The defense will have the burden of proving that the injury was unavoidable. Successful defense will largely be achieved through accurate and complete documentation by the facility caregivers. This documentation will be presented in tandem with expert testimony reflecting the large body of evidence demonstrating that early development of pressure injuries is not as simple as the “intense or prolonged pressure or shear” explanation included in the staging description. In conclusion, there is considerable opinion that the new terminology and staging system leaves providers and facilities open to new or worsening litigation risk. With the burden of proof placed upon the defense, the importance of patient-specific care planning, complete and consistent documentation, and cutting-edge expert testimony has never been greater. When you need to gather, quantify and present all documented medical and nursing services into one concise, visual presentation, explore the Excelas [Care Calendar](/service/care-calendar-touch-chart/). ## Are You Using The Correct Terminology For Pressure Injuries? https://excelas1.com/blog/are-you-using-the-correct-terminology-for-pressure-injuries ### Are You Using The Correct Terminology For Pressure Injuries? _2016-11-22 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ ![Facts About Pressure Ulcers Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-01-unrolled-gauze.jpg) > The National Pressure Ulcer Advisory Panel (NPUAP), a not-for-profit organization of pressure injury experts, recently made changes to the terminology and staging system used for the identification and assessment of pressure ulcers. The National Pressure Ulcer Advisory Panel (NPUAP), a not-for-profit organization of pressure injury experts, recently made changes to the terminology and staging system used for the identification and assessment of pressure ulcers. There are significant implications for care providers, so having an understanding of the new terminology is advised. Notable changes to the industry-standard nomenclature and related definitions include: - The replacement of the term “**pressure ulcer**” with “**pressure injury**,” which the panel felt was more inclusive and descriptive of wounds to both intact and ulcerated skin. The reasoning is that the previous usage of “**ulcer**” may have been confusing when dealing with damage to intact skin - An updated definition of “**pressure injury**,” now described as “localized damage to the skin and/or underlying soft tissue usually over a bony prominence or related to a medical or other device. The injury can present as intact skin or an open ulcer and may be painful. The injury occurs as a result of intense and/or prolonged pressure or pressure in combination with shear. The tolerance of soft tissue for pressure and shear may also be affected by microclimate, nutrition, perfusion, co-morbidities and condition of soft tissue.” - The usage of Arabic numbers, rather than Roman numerals, in staging nomenclature. So, instead of documenting a “**Stage II Pressure Ulcer**,” the provider will now document the presence of a “**Stage 2 Pressure Injury**.” - The removal of the term “suspected” from the “**Deep Tissue Pressure Injury**” diagnostic label. - The addition of two new definitions to the nomenclature: “**Medical Device Related Pressure Injury**,” and “**Mucosal Membrane Pressure Injury**.” The NPUAP’s updated and new staging definitions include: **Stage 1 Pressure Injury:** Non-blanchable erythema of intact skin. Intact skin is visible with a localized area of non-blanchable erythema and changes in sensation, temperature, or firmness may precede visual changes. **Stage 2 Pressure Injury:** Partial-thickness skin loss with exposed dermis. The wound bed is viable, pink or red, moist, and may also present as an intact or ruptured serum-filled blister. Adipose (fat) is not visible and deeper tissues are not visible. Granulation tissue, slough and eschar are not present. These injuries commonly result from adverse microclimate and shear in the skin over the pelvis and shear in the heel. **Stage 3 Pressure Injury:** Full-thickness skin loss. Full-thickness skin loss in which adipose fat is visible in the ulcer and granulation tissue and epiboly are often present along with the possibility of slough and/or eschar which might be visible. The depth of tissue damage varies by anatomical location and areas of significant adiposity can develop deep wounds. **Stage 4 Pressure Injury:** Full-thickness skin and tissue loss. Full thickness skin and tissue loss with exposed or directly palpable fascia, muscle, tendon, ligament, cartilage or bone in the injury is classified as Stage 4. Visible slough and/or eschar might be present and epiboly (rolled edges), undermining, or tunneling often occur and depth can vary depending on the location of the injury. **Unstageable Pressure Injury:** Obscured full-thickness skin and tissue loss. Slough or eschar obscures the extent of the tissue damage within the injury. If slough or eschar is removed, a Stage 3 or Stage 4 pressure injury will be revealed. **Deep Tissue Pressure Injury:** Persistent, non-blanchable deep red, maroon or purple discoloration. The skin can be intact or non-intact skin with a localized area of persistent, non-blanchable dark maroon, purple discoloration or epidermal separation revealing a dark wound bed or blood-filled blister. Skin color changes are often preceded with pain and temperature changes. Intense and prolonged pressure and shear forces at the bone-muscle interface cause this injury. The wound may rapidly advance to show the actual extent of tissue injury, or may resolve without tissue loss. If necrotic tissue, subcutaneous tissue, granulation tissue, fascia, muscle or underlying structures are visible, this indicates a full thickness pressure injury (Unstageable, Stage 3, or Stage 4). **Medical Device Related Pressure Injury:** Describes an etiology. These injuries result when devices are used for diagnostic or therapeutic purposes. The injury often conforms to the pattern or shape of the device and should be staged using the staging system. **Mucosal Membrane Pressure Injury:** Mucosal membrane pressure injury found on mucous membranes with a history of use of a medical device in the location of the injury. These injuries cannot be staged. These changes to the definition of pressure ulcers/injuries are meant to increase clarity by addressing the fact that not all injuries of this type involve skin breakage or blanching. Want to learn more about this switch from pressure ulcers to pressure injuries? Check out the official [NPUAP press release](http://www.npuap.org/national-pressure-ulcer-advisory-panel-npuap-announces-a-change-in-terminology-from-pressure-ulcer-to-pressure-injury-and-updates-the-stages-of-pressure-injury/). ## EMR: Details To Watch For When Extracting Records https://excelas1.com/blog/emr-details-to-watch-for-when-extracting-records ### EMR: Details To Watch For When Extracting Records _2016-10-11 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ ![EMR Extracting Records Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-01-desktop-computer.jpg) > Excelas has retrieved more than 600,000 pages of medical records from a variety of EMR systems and for a variety of projects and has observed some common trouble areas. Be aware of these six top issues when pulling electronic records. The healthcare industry is already well aware of many of the larger-scale challenges of electronic medical records (EMRs), including issues related to cutting and pasting, not making timely updates when conditions change, and caregivers making late entries. Additionally, EMRs are typically implemented in modules, and hybrid records are still common in many settings. These many variables in the use of EMRs potentially pose a legal risk. The process of extracting records from EMR systems is no different. Excelas has retrieved more than 600,000 pages of medical records from a variety of EMR systems and for a variety of projects and has observed some common trouble areas. Be aware of these six top issues when pulling electronic records. 1. **Internet headers/footers/menus printing out on the page** – Healthcare providers typically expect that there will be no URLs or menu tabs on the printed record. Such elements are not a part of the medical record, but rather an artifact of the extraction process. Therefore, their presence on the printed record effectively changes the integrity of the record. What is shown is not a mirror-image of the original medical record. When pulled correctly, these elements will not be visible. 2. **Username appearing on the extracted record** – Some EMR systems have record types that display the username of the person extracting the record on the printed page. To avoid the issue of a requestor questioning who has handled the patient’s record, procedures should be established and followed that prevent the username from appearing on the printed record. 3. **Records that say “No Data”** – When pulling records from an EMR, users must ensure they are pulling the correct document types within the correct date range for the patient in question. For example, if a patient did not have physical therapy in March, forcing the EMR system to pull a March therapy log may result in a page that says “No Data.” Such a record might give a false impression that therapy was not tracked properly, when in fact there simply were no services provided that would result in the creation of a record entry. 4. **Wrong patient information** – In some systems, there are record types in which the individual performing record extraction may choose to include “All Patients,” rather than just the patient in question. The result will be a record that shows personal health information (PHI) for all patients from that timeframe, rather than just a single patient. This is a common oversight, and the solution is performing quality review prior to releasing an electronic record to avoid an inadvertent release of PHI and possible HIPAA breach. 5. **Inconsistent record extraction methods** – Especially when pulling multiple records for a single project, such as an audit or response to a government subpoena, it is important for the extraction team to pull every document and record according to a standard operating procedure with consistent rules and parameters. If one record set is produced differently than another, it may trigger suspicion that information is being withheld or not being tracked properly. 6. **Forgetting the hard-copy portion of the chart** – Many facilities still maintain a hybrid medical record, with portions of the record contained in an EMR while some departments continue to document on a paper record, or possibly even in a separate system. It is important to examine the EMR to ensure all record types and relevant dates are included. Best practices for an organization will assure there is a matrix of medical record documents that details all systems containing patients’ clinical documentation, the dates EMR modules went live, and a department-by-department index of all clinical documentation they maintain. There are many things to watch for and be aware of when extracting electronic medical records, and these are just a few examples. Not taking appropriate care when extracting records can lengthen the record production process (e.g. producing an incomplete chart, then needing to gather the missing records). Records extracted inconsistently may generate a new set of questions from the requestor; may add more time and more cost to the preparation of the case; or may give the impression that the company producing the records is disorganized, opening them up to further scrutiny. The key is to be consistent, detail-oriented, and vigilant about keeping extraneous information off of the printed page. Need help extracting electronic records? Check out our [Electronic Medical Record Retrieval](/service/electronic-record-retrieval/)! ## Reptile Strategy in Healthcare Litigation: Opening Statements https://excelas1.com/blog/reptile-strategy-in-healthcare-litigation-opening-statements ### Reptile Strategy in Healthcare Litigation: Opening Statements _2016-09-30 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > Reptile Theory is ubiquitous, and it’s here to stay. With many plaintiffs’ attorneys now employing this theory in their trial strategy, defense attorneys must face the challenge of effectively defending against it. Delivering an effective opening statement is the last part of the three-pronged approach to overcoming the [Reptile Theory](/reptile-theory-in-healthcare-litigation-introduction/). Previously, we wrote about how to [properly prepare defense witnesses](/reptile-theory-in-healthcare-litigation-deposition-and-witness-testimony/) and [priming the jury in voire dire](/reptile-defense-tactics-priming-in-voir-dire/). The opening statement is a defense attorney’s first opportunity to cohesively rebut the plaintiff’s theory behind the case. And the most effective tactic for the defense is to present jurors with other sources of blame, says Bill Kanasky, author of [The Primacy and Recency Effect: The Secret Weapons of Opening Statements](http://www.courtroomsciences.com/media/8ebd6915-0acd-44d8-ba0d-e4f24ef96480/1439199459/Articles/PDF/BK%20-%20Trial%20Advocate%20Quarterly%20-%20The%20Primacy%20and%20Recency%20Effects-Secret%20Weapons%20of%20Opening%20Statements.pdf). During voir dire, the defense begins priming the jurors with strategic themes critical to their case. Shrewd attorneys carry this tactic over to their opening statements, using these same themes to place a “cognitive lens” through which the jurors will view everything else that follows in the trial. An example of this one-two punch for the defense is to introduce a theme during voir dire by asking jurors, “Who here feels that a patient has a responsibility to follow their doctor’s orders?” The jurors are then primed for the defense attorney to open their case at trial by describing a pattern of patient non-compliance that ultimately led to the plaintiff’s alleged injury. This has the effect of both showing the plaintiff’s own fault in incurring the alleged injury, while simultaneously suggesting that the injury was caused by something or someone other than the defendant. ##### START OFF STRONG Timing is a crucial when presenting the “cognitive lens” and telling the defense’s story (i.e., plaintiff culpability or alternative causation) in the opening statement. In fact, the first three minutes of the opening are the most critical moments of the statement, according to Kanasky, due to the primacy effect. In other words, jurors perceive information shared in the first few minutes of the opening as more valuable and more meaningful than information shared later. That’s why defense attorneys should not waste the precious first moments of their openings by introducing themselves and their clients, thanking jurors for their time, or reminding jurors of their civic duties. Instead, the defense must use those three minutes wisely by launching into a compelling theory of the case. ##### DELIVER AN OFFENSIVE, NOT DEFENSIVE THEME Taking a defensive stance during the opening statements is, perhaps, the biggest mistake the defense can make. Simply rebutting the plaintiff’s attorney’s opening statement allegations is not enough to slay the reptile. Plaintiffs’ attorneys generally provide their own themes (i.e., the ideas of safety rules, violations, and danger that are central to the Reptile Theory) in their opening, and defense attorneys must suppress their instinct to rebut the plaintiff’s arguments. The more the plaintiff’s themes are discussed, including during rebuttal, the more the jury focuses on them and sees them as central to the case. ##### PLANT DOUBT WITH ALTERNATIVE EXPLANATIONS As Kanasky suggests, the defense should start introducing the concept of alternative causation immediately. Opening statements—and really, the entire defense of the case—are not about defending against the issues presented by the plaintiff’s attorney. On the contrary, their purpose is to present a colorful narrative of how the plaintiff was actually responsible for incurring the injury in question or plant doubt in the jurors’ minds by outlining an alternative causation for the plaintiff’s injury. The most effective way to do this is by using the real, factual account of what happened, found in the medical record. Any medical review will identify things like which medications were administered or tests ordered, but it should also bring to light all potential alternate contributors to an adverse outcome. Whether it’s clinical diagnoses, past medical history, patient non-compliance, family involvement, etc.— these are details and information that someone with a clinical background or experience will recognize as important. A Medical Chronology is a valuable tool for understanding the entire timeline of a patient’s clinical course. But the defense must focus its chronology on specific issues that are the real cause(s) of the plaintiff’s alleged injury. A topic chronology extracts the most useful information from the larger chronology, putting all of the information that is most relevant to your defense strategy at your fingertips, in a more concise document than the overall chronology. For example, if the theme is one of plaintiff culpability (i.e., the plaintiff had a responsibility to follow the physician’s orders but failed to do so), your chronology will focus on the portions of the medical record where patient or resident instructions or care plans were delivered, and patient non-compliance is noted. This allows you to make the connections between the non-compliant behavior and its results and use the evidence in the record to show that the defendant(s) met the standard of care, but the individual failed to follow through on his or her responsibilities. Hopefully, this series has shed some light on how healthcare defense attorneys can recognize and respond to the Reptile Theory approach. Excelas provides a range of services that our clients use to formulate their strategies early in case preparation. [Contact Us](/contact/) to talk to someone about your particular challenge and how we can help. ## Hospital Finds Peace of Mind with Excelas’ Coding Verification Audits https://excelas1.com/blog/hospital-finds-peace-of-mind-with-excelas-coding-verification-audits ### Hospital Finds Peace of Mind with Excelas’ Coding Verification Audits _2016-09-16 · Filed under [Case Study](https://excelas1.com/blog/categories/case-study)_ ![Coding Verification Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-01-stethoscope-on-keyboard.jpg) > Performing proactive internal audits of processes and procedures is an excellent way to ensure compliance with corporate or regulatory standards. But sometimes, it’s not until an external audit returns unexpected results that an inward examination begins. ##### Background Performing proactive internal audits of processes and procedures is an excellent way to ensure compliance with corporate or regulatory standards. But sometimes, it’s not until an external audit returns unexpected results that an inward examination begins. Such was the case with a hospital client that had undergone two coding audits. The hospital was troubled by a substantial number of instances where external auditors found that codes for the facility’s hospitalists should be downcoded from an original Level 3 to a Level 1 due to documentation deficiencies. ##### Challenge These findings concerned the client on two fronts. First, evaluation and management (E/M) codes dictate the level of reimbursement the hospital receives from Medicare, Medicaid, or private insurers. Depending on the circumstances, a Level 1 reimbursement may be only one-third the amount of a Level 3 reimbursement. Therefore, having claims downcoded from Level 3 to Level 1 has a significant financial impact. ##### Solution The hospital reached out to Excelas for a coding verification audit to assist in determining whether the findings of the original audits were accurate or whether they should dispute the audit findings based upon a more thorough review of the medical records. Whether completed in response to an external audit or simply done as a proactive measure, such an audit can also provide an evaluation of the facility’s coding and documentation practices compared to industry best practices. Such a comparison can reveal specific areas in which coding procedures or documentation can be improved to reduce the client’s risk as well as to support their code assignment. Knowing when and why to choose one code over another, or knowing what is or is not in the record that impacts the coding decision, can help facilities develop improvement plans. Armed with this information, the hospital coding department will know where the can begin making improvements or providing retraining, so that future audits will produce better results. For example, a Level 3 E/M code for a hospitalist must be supported by a Level 3 Hospital Progress Note (among other criteria), which must include two of the following three elements: - A detailed history, which in turn must include a chief complaint; an extended History of Present Illness (HPI) that includes four HPI elements; two to nine Review of Symptoms (ROS) elements; and at least one element of Past, Family or Social History (PFSH). - A detailed exam, which in turn must include at least 12 data points from a review of organ system. - High complexity medical decision-making, which in turn must include two of the following elements: four problem points; four data points; and/or high level of risk. When it came time for Excelas to conduct the verification audit, the hospital provided a list of patients whose records had been audited, along with the original E/M codes assigned by the facility. During the audit, Excelas focused exclusively on a random sample of patients whose billing codes were changed from Level 3 to Level 1 in the external coding audit. For the client, the decision to conduct the audit was an easy one. “Having third-party review of our coding and documentation practices will give us the peace of mind we need to ensure that we are on track,” the hospital administrator said. “And the results will tell us where there are gaps in knowledge among our billing staff, if any.” Using the electronic medical record and an encoder, a thorough review of the clinical documentation was conducted. Particular attention was given to initial physician assessments and related documentation in order to determine the accurate code assignments. The verification audit then compared the original code assignment to the Excelas findings, and finally to the findings of the outside auditors. ##### Results Excelas’ findings confirmed those of the external auditor. In most cases, the E/M codes should be downcoded from Level 3 to a Level 1. “While this was not exactly the result we were hoping for, it does provide us with the information we need to move forward,” said the hospital administrator. “We now have validation that there are opportunities to improve our processes and strengthen our financial position.” For help evaluating your coding or documentation practices, [contact Excelas](/contact/) today. Learn how we can assist you improve your outcomes. ###### DISCLAIMER: The preceding case study is a true story. Excelas, LLC values the integrity of our client relationships. To protect them from uninvited or unwarranted attention, contact, exposure or scrutiny, we do not disclose the names, or any other identifying information, of the corporate entities, facilities or defense firms with whom we do business. ## Reptile Theory in Healthcare Litigation: Deposition and Witness Testimony https://excelas1.com/blog/reptile-theory-in-healthcare-litigation-deposition-and-witness-testimony ### Reptile Theory in Healthcare Litigation: Deposition and Witness Testimony _2016-08-25 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > The Reptile Theory is arguably the most game-changing trend in litigation in recent history. The goal of the theory, which was created by Don Keenan, Esq. and jury consultant Dr. David Ball as a counter to tort reform, is to achieve plaintiff verdicts and high damages even in jurisdictions where damage caps exist. With more than $7.7 billion (and counting) in verdicts and settlements for the plaintiff since 2009, it may seem like the Reptile Theory, [explained in the first post of this series](/reptile-theory-in-healthcare-litigation-introduction/), is scientifically sound—but it isn’t. Jury expert Bill Kanasky discredits the science behind the strategy in his publication, “[Debunking and Redefining the Plaintiff Reptile Theory](http://www.courtroomsciences.com/media/d0972cce-6433-42d2-880c-1fb2658ac080/1409464612/Articles/PDF/BK%20-%20For%20the%20Defense%20-%20Debunking%20and%20Redefining%20the%20Plaintiff%20Reptile%20Theory.pdf),” where he provides effective tactics to combat the Reptile approach at three stages of trial: deposition and witness testimony, voir dire, and opening statements. Let’s start with deposition and witness testimony. Witnesses can make or break a case long before a defense attorney ever steps foot in the courtroom. This is because plaintiff attorneys won’t save their questioning methods for trial; they’ll put them into play starting with pre-trial depositions. When Reptile Theory is used, the earliest questions a witness will encounter will revolve around the establishment of —and a defendant’s accidental agreement to—generalized “safety rules.” The questions will seem simple and will be based on principles which, at first glance, would be reasonable to agree with, such as “Safety is always a top priority,” “Sooner is always better,” or “Danger is never appropriate.” Once the witness agrees with these foundational principles, plaintiff attorneys move on to more case-specific questions. Kanasky provides this example: “Would you agree that if you see A, B, and C symptoms, then the standard of care requires you to order tests X and Y?” Such questions lead witnesses down a path where a series of testimonial missteps result in the witness implicating the defendant in wrongdoing, with no real way to rectify the damage that has been done. ##### HOW TO ARM WITNESSES WITH PROPER DEFENSE MECHANISMS According to Kanasky, defense witnesses are usually the only parties at trial who will have their survival instincts triggered, especially if they get trapped in a Reptile line of questioning for which they were not thoroughly prepared. This preparation must happen in the earliest stages of the litigation cycle, prior to their first deposition. Witnesses must be trained to recognize and avoid Reptile traps, and know what Reptile questions might sound like in any form. They must learn how to reject safety rules, respond to them effectively, and practice those responses until they become second nature. This requires a significant investment of time. Accurate information is also critical to the defense. Understanding the narrative of the medical record and having a complete list of caregivers and their record of involvement with the plaintiff will bring much efficiency to the earliest days of case preparation. A tool like a Provider of Care report can help the defense gather a list of potential witnesses, while a Medical Chronology will provide a crystal-clear understanding of the patient’s condition and clarify why one course of action was chosen over another—something witnesses must be able to eloquently explain during questioning. In our next post on Reptile Theory, Reptile Theory in Healthcare Litigation: Voire Dire, we will cover how defense attorneys can counteract the priming efforts of the plaintiff’s counsel during the questioning of potential jurors. ## Reptile Defense Tactics: Priming In Voir Dire https://excelas1.com/blog/reptile-defense-tactics-priming-in-voir-dire ### Reptile Defense Tactics: Priming In Voir Dire _2016-08-25 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > With more than $6 billion (and counting) in verdicts and settlements since 2009, the Reptile Theory has been a slam dunk for the plaintiff bar. The defense bar has devised a three-part strategy for battling the theory, starting with witness testimony and deposition, as proposed by jury expert Bill Kanasky. The next opportunity to fight the Reptile: Priming potential jurors in voir dire. By the time a case reaches trial, the plaintiff attorney has already been busy laying the foundation for [Reptile Theory](/reptile-theory-in-healthcare-litigation-introduction/) arguments. Savvy defense attorneys must lay their own foundations by successfully training their witnesses to [avoid reptile traps during deposition and testimony](/reptile-theory-in-healthcare-litigation-deposition-and-witness-testimony/). But with the opening of trial comes voir dire—the next stage at which the defense can take aim against Reptile maneuvering. ##### HOW EXPOSING THE REPTILE WEAPONRY DIFFUSES IT This may not seem like a typical stage to undermine the plaintiff attorney’s strategy. After all, examination of potential jurors hardly provides an opportunity to argue any salient facts of the case. What it does offer, however, is an opportunity to begin suggesting overall themes of the case that will be critical later on in the trial. Bill Kanasky, a national expert on jury psychology, refers to this as “priming,” a valuable technique that can—and will—be used by both sides. Fortunately for defense, applying the priming tactic during voir dire can result in huge gains against Reptile strategy. Psychology Today defines priming as “a non-conscious form of human memory concerned with perceptual identification of words and objects. It refers to activating particular representations or associations in memory just before carrying out an action or task. For example, a person who sees the word ‘yellow’ will be slightly faster to recognize the word ‘banana’ in a word recognition exercise. This happens because yellow and banana are closely associated in memory.” Put another way, priming occurs when a response to a stimulus depends on previous exposure to a related stimulus. It creates familiarity, and experiencing something—even just once—makes someone more likely to think of it again when a related idea is presented in the future. This is because our unconscious memories shape our future behavior and perceptions. In the courtroom, this effect can be used to influence jurors’ responses to concepts related to the case. ##### HOW PLAINTIFF ATTORNEYS USE PRIMING AT VOIR DIRE The plaintiff attorney’s job during voir dire is to start priming jurors, warming them up to their selected themes. They begin exposing jurors to concepts like danger, safety, and risk—all the concepts that support Reptile Theory. Themes are repeated throughout questioning so jurors will be more likely to focus their attention on these ideas during opening statements and trial. The goal here is to ensure jurors will be less likely to take in new, especially conflicting, information from the defense. ##### HOW PRIMING CAN BE EMPLOYED AS A DEFENSE TACTIC Fortunately, priming can also work for the defense at voir dire. This is an opportunity for the defense to be proactive, rather than reactive, in presenting its case. Rather than just asking questions to determine juror qualifications or trying to persuade jurors to focus on the law or science, defense attorneys can prime jurors to their own chosen concepts. Kanasky offers the following example: A plaintiff attorney uses the question “Who here feels that physicians should always put safety as their top priority?” to prime jurors to the concept of “safety.” The defense can attempt to re-prime jurors by instead asking, “Who here feels that a physician’s real priority needs to be treating every patient as a unique individual?” In this case, the defense can strip away the plaintiff attorney’s “safety” priming, and instead prime jurors to focus on the concept of treating a unique patient, rather than strict adherence to general safety rules. ##### HOW TO CHOOSE PRIMING CONCEPTS AND MESSAGES In a medical malpractice case, medical records can help defense attorneys decide what concepts or key themes to focus on in voire dire. A detailed Case Summary provides a concise, narrative-style review of the plaintiff’s medical history, encompassing all care providers and care settings. It should include an objective assessment of the case’s strengths and weaknesses and an evaluation of whether or not the standard of care was met. With this information in hand, the defense will be able to identify the critical issues needed to develop their strategy in the courtroom. For defense attorneys who do not have medical expertise in-house to accomplish these tasks, it can be extremely valuable to outsource this task to an organization that does. Ultimately, the idea and practice of priming jurors during voir dire is complex, but many resources are available. Thorough preparation is critical in deciding which case factors to focus on and which concepts to “prime” during voir dire. This is a singularly important opportunity to influence the jury to accept the concepts and terms upon which the defense is building its case. Defense attorneys’ strategy during voir dire will impact everything else the jury sees, hears, and thinks. Plaintiff attorneys are well aware of this, but the defense gets the last word—so they need to make it count. Next, we discuss what makes an opening statement effective against Reptile Theory tactics. ## Preparing for Government Audits: Hospice Services https://excelas1.com/blog/preparing-for-government-audits-hospice-services ### Preparing for Government Audits: Hospice Services _2016-07-05 · Filed under [Whitepaper](https://excelas1.com/blog/categories/whitepaper)_ ![Hospice Audits Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-01-hospital-bed.jpg) > In the healthcare industry, the Centers for Medicare & Medicaid Services (CMS) maintains a consistent vigilance over providers and their utilization, billing, and claims practices to ensure that the services they pay for are appropriate and in compliance. This vigilance extends to providers within the entire long-term and post-acute care continuum—including hospice services. In the healthcare industry, the Centers for Medicare & Medicaid Services (CMS) maintains a consistent vigilance over providers and their utilization, billing, and claims practices to ensure that the services they pay for are appropriate and in compliance. This vigilance extends to providers within the entire long-term and post-acute care continuum—including hospice services. This white paper examines hospice services in the context of how providers can stay in compliance with CMS standards and prepare for a possible visit from a RAC (Recovery Audit Contractor) official, the Office of Inspector General (OIG), or even the Department of Justice. [Read more](/wp-content/uploads/2019/01/Preparing-for-Government-Audits-Hospice-Services-2016.pdf) about how to prepare for and respond to hospice service audits. ## Preparing for Government Audits: Therapies https://excelas1.com/blog/preparing-for-government-audits-therapies ### Preparing for Government Audits: Therapies _2014-08-05 · Filed under [Whitepaper](https://excelas1.com/blog/categories/whitepaper)_ ![Therapy Audits Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-01-wheelchair-in-room.jpg) > There is little argument that the Centers for Medicare & Medicaid Services (CMS) are justified in seeking to ensure that the long-term and post-acute care services they pay for are appropriate and meet federal standards. And from a purely budgetary standpoint, it makes perfect sense to put checks and balances in place to make sure the dollars are spent where they should be. #### INTRODUCTION There is little argument that the Centers for Medicare & Medicaid Services (CMS) are justified in seeking to ensure that the long-term and post-acute care services they pay for are appropriate and meet federal standards. And from a purely budgetary standpoint, it makes perfect sense to put checks and balances in place to make sure the dollars are spent where they should be. Between the Medicare Recovery Audit Contractors (RAC) program and the Office of Inspector General (OIG), the use of physical, occupational, and speech therapies are under constant scrutiny when it comes to overbillings, overpayments and, to a lesser extent, even underpayments. In this white paper, we will take a look at therapies within the context of what providers need to do to be in compliance with CMS standards and what they can do now to prepare for potential audits. [Read more](/wp-content/uploads/2019/01/Preparing-for-Government-Audits-Therapies-2016.pdf) about how to prepare for and respond to therapy audits. ## A Business Associate’s Compliancy Journey: Business Associate Agreements https://excelas1.com/blog/a-business-associates-compliancy-journey-business-associate-agreements ### A Business Associate’s Compliancy Journey: Business Associate Agreements _2014-07-29 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ ![Business Associate Agreements Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-01-sign-contract.jpg) > Small businesses commonly face challenges in HIPAA compliance that larger companies do not face. One such challenge may be creating and executing Business Associate Agreements with subcontractors such as document management companies, couriers, and technology providers. Small businesses commonly face challenges in HIPAA compliance that larger companies do not face. One such challenge may be creating and executing Business Associate Agreements with subcontractors such as document management companies, couriers, and technology providers. For most small businesses, day-to-day operations may not necessitate having an attorney on staff. Additionally, the business’s resources might not allow for intensive engagements with attorneys. As a result, when final rules are published, many small businesses will be forced to do their own research as to how to remain in compliance. This may be true in particular when it comes to developing a Business Associate Agreement for company use pursuant to [the Department of Health and Human Services (HHS) final rule](https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/business-associates/index.html?language=es). ##### 1. Look for Free Resources Online Before Involving an Attorney Fortunately, in many circumstances, resources will be available online. For example, the HHS’s website includes a [free template](https://www.hhs.gov/hipaa/for-professionals/covered-entities/sample-business-associate-agreement-provisions/index.html) for a Business Associate Agreement. Companies are free to edit the template to fit their needs. With much of the legwork potentially already completed, the edited template can then be sent to an attorney for review—a much more cost-effective solution than having a custom agreement drafted from scratch. ##### 2. Find Ways to Achieve Procedural Efficiencies Depending on the situation, the revised template agreement—now with attorney approval—can then be sent out to clients and subcontractors to be signed. Small businesses may want to take this opportunity to kill two birds with one stone by conducting site visits with subcontractors as part of this process to ensure HIPAA compliance on their end. The compliance check may include inspecting the physical security of their workplace and the security of their networks or other technology resources that may be used in the course of their subcontracted business transactions. In the context of the HHS’s final rule for Business Associate Agreements, this process can additionally include sending out security assessment questionnaires to clients who may access personal health information (PHI) in the course of business. ##### 3. Keep Track of Compliance Efforts—Including Subcontractor Compliance Small businesses may want to maintain a log listing each subcontractor, a copy of their signed agreement, the date their agreement was signed, and notes on any related site visits to ensure timely follow-up and organization. Using this system may improve the ability to achieve success in getting agreements signed, as well as provide verification of HIPAA compliance via site visits. This method may also ensure the maintenance of existing agreements with all current and future subcontractors. Although achieving HIPAA compliance is a daunting task for small businesses, there are resources available to help make the journey a bit less intimidating—and considerably more affordable—when a small business’s compliance team is willing to seek alternative solutions. ## Reptile Theory in Healthcare Litigation: Introduction https://excelas1.com/blog/reptile-theory-in-healthcare-litigation-introduction ### Reptile Theory in Healthcare Litigation: Introduction _2014-07-29 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ > The Reptile Theory is arguably the most game-changing trend in litigation in recent history. Originally developed by Don Keenan, Esq. and jury consultant Dr. David Ball, the trial method was created in response to tort reform. The strategy was designed specifically to achieve plaintiff verdicts and high damages, even in jurisdictions where damage caps exist. It has been so successful for the plaintiff bar in personal injury and medical malpractice cases that it has now made its way into other areas of law, including product liability and transportation. Because of the theory’s prevalence in medical malpractice, it’s important for healthcare providers to be aware of how the strategy typically unfolds during litigation. Reptile Theory is arguably the most game-changing trend in litigation in recent history. Originally developed by Don Keenan, Esq. and jury consultant Dr. David Ball, the trial method was created in response to tort reform. The strategy was designed specifically to achieve plaintiff verdicts and high damages, even in jurisdictions where damage caps exist. It has been so successful for the plaintiff bar in personal injury and medical malpractice cases that it has now made its way into other areas of law, including product liability and transportation. **Because of the theory’s prevalence in medical malpractice, it’s important for healthcare providers to understand the strategy and know how it typically unfolds during litigation.** ##### WHAT IS REPTILE THEORY? Reptile Theory is based on the work of neuropsychologist Paul MacLean. In the 1960s, Dr. MacLean posited that the human brain has three distinct components representing the stages of human evolution. Humans’ higher functions, like language and logic, are governed by the neomammalian brain, while motivation and emotion are governed by the paleomammalian brain. Primitive and survival instincts are governed by the reptilian brain. It is this basic “lizard brain” instinct that the Reptile strategy seeks to activate and manipulate, setting aside appeals to reason and instead playing on fear. ##### HOW DOES REPTILE THEORY PLAY OUT IN THE COURTROOM? According to the theory, jurors’ survival instincts—in other words, their reptilian brain—can be triggered in the courtroom by conveying that the defendant’s actions present a clear and immediate danger to the juror and/or the community, and that those actions must be punished as a means of deterrence. Plaintiff attorneys carefully construct their cases by first establishing the existence of unwavering “safety rules” in medicine. Next, they typically manipulate defense witnesses into inadvertently agreeing with those “rules.” As an example of how plaintiff attorneys might put this into practice, a defense witness might be asked at trial, “Would you agree that patient safety must always be a physician’s highest priority?” On the surface, this may seem like an innocent, easy-to-answer question. But once a defense witness answers affirmatively, he or she is already starting to perceive such rules exist. The plaintiff attorney can then argue that the defendant willingly violated these rules. Another example is a plaintiff attorney claiming that because a chosen course of treatment presented some level of risk to the patient, the defendant must not have made safety his or her priority. They may argue that because the defendant didn’t abide by this safety rule and harm occurred, his or her actions were flagrantly dangerous and were the direct cause of whatever negative outcome initiated the litigation. As the theory goes, once the “safety rule” and the “danger” are presented, this activates a juror’s reptilian brain. They perceive the defendant’s actions to pose a clear, immediate threat to the survival or wellbeing of themselves or their community and may believe, for example, that this situation could have happened to them personally or to a member of their family. When executed successfully, jurors will deliver a favorable verdict for the plaintiff. The results are generally lucrative for plaintiff attorneys, because the best method of punishment and deterrence the jury has in their possession is recommending a high damages award. ##### CAN DEFENDANTS OVERCOME REPTILE THEORY? The Reptile Theory strategy has reportedly resulted in more than $7.7 billion in jury verdicts and settlements for plaintiffs since it was developed in 2009 . With this kind of earning power, it’s clear these practices aren’t going away any time soon. The good news is, healthcare defense can successfully overcome this strategy by taking advantage of a multi-part strategy. We discuss the first part of this strategy in Reptile Strategy in Healthcare Litigation: Deposition and Witness Testimony. ## How to Evaluate the Use of General Inpatient Care https://excelas1.com/blog/how-to-evaluate-the-use-of-general-inpatient-care ### How to Evaluate the Use of General Inpatient Care _2014-07-29 · Filed under [Case Study](https://excelas1.com/blog/categories/case-study)_ ![Kennedy Terminal Ulcer Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-01-nurse-caring-for-patient.jpg) > General inpatient care (GIP) is the second most expensive level of hospice care. GIP, which provides 24/7 nursing care, is intended for short-term use to manage pain and symptoms when palliation cannot be achieved in other settings. #### Hospice General Inpatient Care: A Guide to Ensuring Regulatory Compliance General inpatient care (GIP) is the second most expensive level of hospice care. GIP, which provides 24/7 nursing care, is intended for short-term use to manage pain and symptoms when palliation cannot be achieved in other settings. Symptoms that may require GIP can include unmanaged pain that is not responsive to lower levels of treatment, intractable nausea and vomiting and/or related dehydration, wounds that require frequent dressing changes or worsening wounds, respiratory distress, and delirium. Because GIP stays are designated only for advanced or difficult-to-control symptoms, it must be performed in a hospital, Medicare certified hospice unit, or skilled nursing facility (SNF). GIP has recently been identified by the U.S. Office of the Inspector General (OIG) as an area that may be vulnerable to fraud and abuse in Medicare/Medicaid billing. A 2013 report by the OIG revealed the following disparities in GIP care at inpatient hospice units, in comparison to GIP care at hospitals and SNFs: - GIP stays were 50% longer in hospice inpatient units than in hospitals, and 20% longer than in SNFs; - 58% of all GIP provided toMedicare beneficiaries occurred in hospice inpatient units while hospitals provided 33% and SNFs provided 8%; and - 35% of Medicare beneficiaries at hospices with inpatient units received GIP, compared to 12% for hospices without inpatient units. As such, GIP has become a focus area for regulatory auditors—as well asa prime subject of internal audit by healthcare providers seeking to assess how appropriately GIP is being used in their facilities. Conducting an internal GIP audit can give hospice care providers you the insight they need to be confident in their billing accuracy. The Best-Practice Approach One of the most effective ways to approach an internal GIP audit is to do it with the assistance of an outside contractor. A good contractor will perform an objective assessment with the purpose of determining whether GIP was appropriately utilized and whether the justification for the level of care is sufficiently documented in the medical record. Following are the most important bases to cover when conducting an internal GIP audit: - Assess whether necessary criteria for the initiation, continuation and discontinuation of GIP care were sufficiently documented in each individual case; - Evaluate whether the facility satisfactorily completed its documentation across all cases; - Identify any trends or patterns in documentation that indicate areas for improvement; and - Identify any instances in which the the documentation does not support the appropriateness of GIP admission ##### What to Look For A good contractor begins the audit process upon receiving your random sample of medical records from patients for whom GIP care was billed. As such, they should be able to work with paper records as well as electronic medical records—either through a secure file-sharing network or via your EMR system. Analysts should then review each individual record, examining all information regarding the decision to place patients in GIP. The best practice approach encompasses an unbiased and completely objective analysis of all criteria that are required to justify the use of GIP care, recording the presence or absence of necessary supporting documentation, and noting any lack of justification for the level of care. Analysts should also look for the following information: - Assessed need for change in level of care; - Signed and dated physician order to initiate GIP; - Updated plan of care reflecting initiation of GIP, reason for GIP and interventions; - Involvement of interdisciplinary group (IDG) members in decision to initiate GIP; - Daily RN visits or calls to assess ongoing need for GIP; - IDG support for continuation of GIP; - Involvement of IDG and attending physician indicating discontinuation of GIP; and - Signed and dated physician order to discontinue GIP ##### REPORTING THE RESULTS Upon completion of the project, the contractor should provide you with an audit report that scores the cases both individually and cumulatively. At its most basic level of measurement, the audit report provides a simple yes/no indication of the presence or absence of each type of documentation, by case. Each case also receives a score indicating the overall percentage of required criteria that were satisfactorily documented. The report should then include cumulative measures of how well the facilities are doing with documentation. First, the report should provide an average score across all cases, which indicates how complete the documentation was overall, in regard to all of the criteria in question. Second, the report should include cumulative percentage scores per criterion, which indicate how often each type of documentation was satisfactorily completed. Finally, the report should have relevant notes if the analysts find the use of GIP to be potentially questionable in any of the records reviewed. In short, the information received in the audit report should be considered as a benchmark to help identify areas of competence as well as trends that indicate areas for improvement. Because the issue of GIP care is a “hot topic” in the regulatory sector, providers who make a proactive decision to gauge their success, and put improvement measures into place now, are taking valuable steps in maintaining their compliance going forward. ##### OTHER AREAS TO AUDIT There are many regulatory focus areas in which an internal audit would be advantageous. Some examples include: - Hospice eligibility; - CMS documentation requirements for hospice admission; - Hospice length of stay and conditions/diagnoses in SNF settings; - Appropriate use of Ultra High Therapy RUGs in SNF settings and assessment of supporting documentation; and - Appropriate use of atypical antipsychotic medications and assessment of supporting documentation If you need to conduct an internal GIP audit, contact Excelas to help you navigate the process with expert advice and our team of experienced analysts. ###### DISCLAIMER: The preceding case study is a true story. Excelas, LLC values the integrity of our client relationships. To protect them from uninvited or unwarranted attention, contact, exposure or scrutiny, we do not disclose the names, or any other identifying information, of the corporate entities, facilities or defense firms with whom we do business. ## All Ulcers Are Not The Same: Diabetic Ulcers https://excelas1.com/blog/all-ulcers-are-not-the-same-diabetic-ulcers ### All Ulcers Are Not The Same: Diabetic Ulcers _2014-07-18 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ ![Diabetic Ulcers Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-01-diabetes-dictionary.jpg) > [vc_row][vc_column][vc_empty_space height=”16px”][/vc_column][/vc_row][vc_row][vc_column width=”1/3″ el_class=”vc_col-sm-push-8″][vc_single_image image=”299″ img_size=”full” style=”vc_box_border”][/vc_column][vc_column width=”2/3″ el_class=”vc_col-sm-pull-4″][vc_column_text]Skin ulcerations. They can be painful for patients and terrifying for families. They bring to mind the image of bed sores, possibly caused by neglect and abuse. But, anyone who has a loved one in a healthcare facility should understand that not all ulcers are the same—and, […] Skin ulcerations. They can be painful for patients and terrifying for families. They bring to mind the image of bed sores, possibly caused by neglect and abuse. But, anyone who has a loved one in a healthcare facility should understand that not all ulcers are the same—and, perhaps somewhat reassuringly, most are not the result of negligence. Ulcers can and do happen, even in the presence of excellent clinical care. There are a variety of skin ulcers. Most people know a bit about [decubitus ulcers or pressure sores](/facts-about-pressure-ulcers-bedsores/), also known as bed sores. [Kennedy Terminal Ulcers](/what-is-a-kennedy-terminal-ulcer/) (KTUs), another type of pressure sore, occur at the end of life. But, there are several other types of ulcers that are non-pressure-related, including [venous stasis ulcers](/all-ulcers-are-not-the-same-venous-stasis-ulcers/), [arterial ulcers](/all-ulcers-are-not-the-same-arterial-ulcers/), and neurotrophic (diabetic) ulcers. In this post, we will cover neurotrophic, or diabetic, ulcers. Patients with diabetes mellitus are at an increased risk for numerous long-term complications, so it certainly is not surprising that diabetes can negatively affect the body’s largest organ—the skin. Diabetics often suffer damage to the nerves, known as neuropathy, resulting in a loss of sensation in the lower extremities. Additionally, elevated blood glucose levels can damage blood vessels, resulting in decreased blood flow to the lower extremities. Together, this damage sets the perfect stage for lower extremity injuries and subsequent ulceration. As with all types of ulcers, diabetic ulcers have some defining characteristics: - **LOCATION:** Diabetic ulcers are usually located on pressure points on the bottom of the feet, although ulcers associated with trauma can occur anywhere on the lower extremities. - **APPEARANCE OF WOUND:** The borders of a diabetic ulcer are punched out and the surrounding skin is usually calloused. Diabetic ulcers are often small wounds of varying depths. These ulcers frequently have a pale wound bed, little or no granulation, and necrotic tissue. The ulcers generally have minimal to no drainage, unless the wound is infected, in which foul-smelling and/or purulent drainage may be present. - **APPEARANCE OF EXTREMITY:** The affected extremity may be warm to the touch, red, and swollen. Pulses will be present unless arterial disease is present. - **TESTING:** A variety of simple, non-invasive tests can be performed to detect the presence of neuropathy and assess the quality of blood flow to the lower extremities. Once a diabetic ulcer develops, treatment should focus on pressure relief, debridement (removal of dead tissue), management of any infection, and surgical intervention as indicated. Off-loading can be accomplished using cast boots, therapeutic shoes, and custom insoles. Debridement can be achieved by surgical means, or non-surgically with topical agents. Diabetic ulcers can become limb- and life-threatening in the event of an infection. If an infection is suspected, wound cultures are necessary to determine the appropriate course of antibiotic treatment. Bone cultures and/or radiographic examinations are used to confirm osteomyelitis (an infection of the bone). Unfortunately, once osteomyelitis is present, the infected bone usually must be removed. Although diabetic ulcers are just one type of ulcer encountered in healthcare settings, they often pose the greatest risk for adverse outcomes. Prevention and management of diabetic ulcers is key. Many have heard the old adage that an ounce of prevention is worth a pound of cure; that adage is particularly true when it comes to preventing diabetic ulcers. Patients should be educated on ways to reduce their risk for developing diabetic ulcers, including daily examinations of the lower extremity skin, daily washing and drying of the feet, adequate control of blood glucose and lipid levels, routine podiatry care, neuropathy screening, appropriate footwear, and avoidance of cigarette smoking. Diabetic ulcers can be alarming, just like bed sores and other types of wounds. But with an understanding of their physiological cause and possible interventions, providers and families can work together to find the best treatment and achieve the best outcome for patients. When it comes to skin ulcers, knowing the facts can help alleviate emotional upset and prevent unnecessary claims and allegations—a win for everyone involved. ## A Business Associate’s Compliancy Journey: Electronic Transfer Of PHI https://excelas1.com/blog/a-business-associates-compliancy-journey-electronic-transfer-of-phi ### A Business Associate’s Compliancy Journey: Electronic Transfer Of PHI _2014-06-30 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ ![Electronic Transfer of PHI Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-01-laptops.jpg) > For small companies whose primary function includes receiving, reviewing, and analyzing information contained in medical records, dealing in the transfer of protected (or personal) health information (PHI) will be a daily occurrence. These types of companies constantly deal with medical records, and protecting PHI that is electronically transferred is of primary importance. This can naturally lead to a major focus on becoming fully HIPAA compliant. For small companies whose primary function includes receiving, reviewing, and analyzing information contained in medical records, dealing in the transfer of protected (or personal) health information (PHI) will be a daily occurrence. These types of companies constantly deal with medical records, and protecting PHI that is electronically transferred is of primary importance. This can naturally lead to a major focus on becoming fully HIPAA compliant. ##### The Basics of Electronic PHI Transfer Transferring PHI electronically requires protection to prevent access by an unauthorized user. PHI is rendered unusable, unreadable, or indecipherable to unauthorized individuals if the PHI has been encrypted as specified in the HIPAA Security Rule, or if the media on which the PHI is stored or recorded has been destroyed. External PHI transactions occur when there is a transfer of information between a business’s staff and its clients. Clients will likely prefer the ease of accessibility and use that cloud sites offer for file transfers. However, the challenge is finding a reliable and secure cloud site that will assure compliance with HIPAA requirements while still offering ease of use for all parties. Additionally, when selecting a vendor, businesses must remember to comply with the HHS’s Business Associate Agreement rule. ##### Work With Clients to Establish Methods for External PHI Transfer After establishing a safe and secure method for electronic PHI transfer, small businesses must develop best practices to govern file transmission to clients. This may involve requiring clients to log into the cloud site to retrieve their messages and all related documents that are stored there, rather than transmitting these documents via email. This policy might likewise require clients to log into the cloud site to upload files being sent to the business. Under such a policy, files cannot be shared in either direction (e.g., uploading or downloading) without first logging into the secure HIPAA compliant site. ##### Develop Best Practices for Internal PHI Transfer In addition to external PHI transfer, businesses may also need to internally transfer PHI in the course of daily business. These circumstances should also be governed by formal rules or practices. For example, rather than sending PHI files via email, consider utilizing shared drives on a secure, internal network. Ultimately, when communicating via email or by any written means, it’s preferable to avoid sharing PHI to the extent possible. For businesses that frequently transfer electronic PHI, keeping this information secure as it changes hands is an enormous responsibility. Finding a solution that works for both the business and the client must be a top priority that will often require communication and education regarding options and recommendations to serve both parties’ specific needs. ## All Ulcers Are Not The Same: Venous Stasis Ulcers https://excelas1.com/blog/all-ulcers-are-not-the-same-venous-stasis-ulcers ### All Ulcers Are Not The Same: Venous Stasis Ulcers _2014-06-10 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ ![Venous Stasis Ulcers Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-01-dancing-feet.jpg) > There are a variety of skin ulcers. Most people are somewhat familiar with decubitus ulcers, more commonly known as pressure sores (and also sometimes called bedsores). Kennedy Terminal Ulcers (KTUs), another type of pressure sore, occur at the end of life. There are several other types of ulcers that are non-pressure-related, including venous stasis ulcers, arterial ulcers, and neurotrophic (diabetic) ulcers. In this post will cover venous stasis ulcers. Skin ulcerations. In the healthcare field, it’s a condition that can spark worry in a medical team, cause pain for patients, and be terrifying for families. The term brings to mind the image of bedsores, possibly caused by neglect and abuse. But, anyone who has a loved one in a healthcare facility should understand that not all ulcers are the same—and, perhaps somewhat reassuringly, most are not the result of negligence. Ulcers can and do happen, even in the presence of excellent clinical care. There are a variety of skin ulcers. Most people are somewhat familiar with [decubitus ulcers, more commonly known as pressure sores](/facts-about-pressure-ulcers-bedsores/) (and also sometimes called bedsores). [Kennedy Terminal Ulcers](/what-is-a-kennedy-terminal-ulcer/) (KTUs), another type of pressure sore, occur at the end of life. There are several other types of ulcers that are non-pressure-related, including venous stasis ulcers, [arterial ulcers](/all-ulcers-are-not-the-same-arterial-ulcers/), and neurotrophic (diabetic) ulcers. ##### How Venous Stasis Ulcers Occur and What Causes Them People who are not in the healthcare field may not be familiar with venous stasis ulcers, which are the most common type of lower extremity ulceration. They are the result of a chronic condition in which the leg muscles or valves in the leg veins do not efficiently pump blood back to the heart. Consequently, blood will pool in the lower extremities and leak out of the veins into the surrounding tissue. This leads to breakdown of the tissue and eventual ulcer development. Primary risk factors include deep vein thrombosis, smoking, older age, obesity, previous leg injury, sedentary lifestyle, and phlebitis. ##### Four Ways to Identify Venous Statis Ulcers Besides their root causes, there are several characteristics that help identify venous stasis ulcers: - **LOCATION:** Venous stasis ulcers are located over bony prominences, often over the medial malleolus (the inner side of the ankle). - **APPEARANCE OF WOUND:** Venous stasis ulcers are irregular in shape and are shallow. The wound base will usually have red granulation tissue and yellow fibrin tissue present. If the wound is infected, there may be green or yellow drainage, which can be significant in amount. Venous stasis ulcers are often recurrent and can persist for weeks and even years. - **APPEARANCE OF EXTREMITY:** The affected extremity will often present with a dull ache or pain that subsides with elevation, eczematous skin, swelling of the leg, and varicose veins. The skin will likely look thin and tissue-like with brown patches. Eventually the skin will become discolored, irritated, cracked, and crusted or weepy. These changes become permanent. - **TESTING:** Diagnosis is based on the appearance of the extremity and wounds. However, confirmatory tests may be performed to examine blood flow in the extremity. ##### Best Practices for Treating Venous Stasis Ulcers Once diagnosed, venous stasis ulcer treatment involves managing the disease. Measures include compression treatment with stockings or wraps in order to minimize swelling and promote the return of blood to the heart, avoiding long periods of standing, and keeping legs elevated when possible. When wounds are open or infected, proper treatment includes wet dressings, steroid creams and ointments, and oral antibiotics. Topical antibiotics, drying lotions, Lanolin, and topical analgesics should be avoided. For some patients, treatment may go beyond the local wound site. Surgical interventions may be considered in order to restore blood flow to the affected areas. These include surgical ablation of the saphenous vein, subfascial endoscopic perforator surgery, treatment of iliac vein obstruction with stenting, and varicose vein stripping. And as always, it’s important to document both preventive and treatment measures to maintain an accurate, detailed medical record. Venous stasis ulcers can be alarming, just like pressure ulcers and other types of wounds. But with an understanding of their physiological cause and possible interventions, providers and families can work together to find the best treatment and achieve the best outcome for patients. When it comes to skin ulcers, knowing the facts and documenting care can help alleviate emotional upset and prevent unnecessary claims and allegations—a win for everyone involved. ## Nursing Home Eviction And The Defensible Medical Record https://excelas1.com/blog/nursing-home-eviction-and-the-defensible-medical-record ### Nursing Home Eviction And The Defensible Medical Record _2014-05-24 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ ![Nursing Home Eviction Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-01-wheelchair.jpg) > A recent Associated Press (AP) article discusses the growing issue of complaints regarding involuntary discharges and evictions from nursing homes and other long-term care facilities. According to the article, complaints about evictions have increased 57% since 2000, and were the most frequently reported grievance received by the Long-Term Care Ombudsman Program in 2014, with 11,331 [...] A recent [Associated Press (AP) article](https://www.businessinsider.com/ap-nursing-homes-turn-to-eviction-to-drop-difficult-patients-2016-5) discusses the growing issue of complaints regarding involuntary discharges and evictions from nursing homes and other long-term care facilities. According to the article, complaints about evictions have increased 57% since 2000, and were the most frequently reported grievance received by the Long-Term Care Ombudsman Program in 2014, with 11,331 complaints filed. The Center for Medicare and Medicaid Services (CMS) reports that, among complaints filed with the Ombudsman Program, the discharge/eviction category has consistently ranked first or second in frequency since 2006. Many of these evictions are due to economic factors, the AP article suggests, specifically a facility preference for removing inconvenient or unprofitable residents in favor of those whose care would provide a boost to the facility’s bottom line. While this may be the unfortunate (and illegal) reality in a percentage of involuntary discharge cases, here are five situations in which a facility is within its legal rights to evict a resident: 1. The resident’s condition has improved such that the level of service is no longer necessary 2. The facility can no longer meet the resident’s needs such that a continued stay may place the resident’s health or safety at risk 3. The resident’s clinical or behavioral status puts the health or safety of other residents at risk 4. The resident’s failure to pay for services 5. Permanent closure of the facility While federal law provides these bases for eviction, facilities must carefully document in the clinical record the rationale and decision-making process in situations one through three above. Proper documentation helps to manage the risks associated with involuntary discharge, as well as ensure that discharges are legally appropriate and defensible. Based on [CMS’s interpretive guidelines](https://www.cms.gov/Regulations-and-Guidance/Legislation/CFCsAndCoPs/Downloads/som107ap_pp_guidelines_ltcf.pdf), as well as [proposed changes to the conditions of participation published in July 2015](https://www.federalregister.gov/documents/2015/07/16/2015-17207/medicare-and-medicaid-programs-reform-of-requirements-for-long-term-care-facilities#h-19), below are the documentation requirements long-term care facilities are expected to abide by when initiating an involuntary discharge. ##### Provide Proper Notice of Discharge and Orientation Regardless of the reason, if a facility plans to involuntarily discharge a resident, it must provide the resident and resident’s representative with written notice at least 30 days prior to discharge (or as soon as possible, depending on the reason for discharge. See the interpretive guidelines for exceptions). This notice must include: - The reason for the discharge, date of discharge, and location to which the resident will be transferred - The name, address, and telephone number of the state agency that handles discharge appeals - An explanation of the right to appeal, and information on how to file an appeal - Contact information for advocacy agencies for residents with mental illness or intellectual disabilities (if appropriate). The facility must also obtain resident consent to send a copy of the notice to the Ombudsman’s office. If the resident does not consent to have the notice sent to the Ombudsman, CMS advises facilities to document the refusal in the clinical record. Beyond the written notice, facilities are required to provide the resident with an orientation regarding the discharge in a manner and language the resident can understand. The orientation must be documented in the clinical record, noting methodologies used and providing evidence of the resident’s understanding. ##### Include Medical Reasoning in the Clinical Record Improvement in condition: If the resident is being discharged due to improvement in their condition, the resident’s physician must document the reason for the discharge in the record, along with an explanation of why the discharge is appropriate. Facility can no longer meet the resident’s needs: To support a discharge due to the facility’s inability to meet the resident’s needs, the following must be clearly documented in the clinical record by the resident’s physician: - The basis for the transfer - The resident’s specific needs that cannot be met - The facility’s efforts to meet the resident’s needs, including accurate assessments, care plans, interdisciplinary interventions, and their outcomes - The services available at the receiving facility that will better meet the resident’s needs _Facilities should be aware that, under the Americans with Disabilities Act, providers are prohibited from discriminating against residents based on the severity of their disabilities. Essentially, the facility has an obligation to do everything within its power to accommodate the resident’s needs. Outside of medical emergencies requiring hospitalization, it is rare that a facility cannot accommodate a resident’s needs._ Risk to health or safety of others: To support a discharge in cases where the health or safety of others is at risk, a physician—not necessarily the resident’s own physician—must document in the clinical record the basis for the discharge and an explanation of why the discharge is appropriate, including a description of the process used to determine that discharge was necessary. ##### What to Document Upon Transfer and Post-Discharge CMS’s proposed changes to the conditions of participation would require that, regardless of the reason for the discharge—whether voluntary or involuntary—all long-term care facilities must provide the receiving facility with the following information, as close as possible to the time of transfer: - Demographic information, consisting of name, sex, date of birth, race, ethnicity, and preferred language - Resident representative name and contact information - Advance directives - History of present illness - Past medical/surgical history, including procedures - Active diagnoses - Labs and diagnostic test results - Functional status - Psychosocial assessment, including cognitive status - Social supports - Behavioral health issues - Medications - Allergies - Immunizations - Smoking status - Vital Signs - Unique identifiers for resident’s implantable devices - Comprehensive care plan, including health concerns, assessment and plan, goals, resident preferences, other interventions and efforts to meet resident needs, and resident status The discharging facility is responsible for documenting that the communication related to the above-listed information occurred. With complaints about involuntary discharges increasing, residents and their advocates, as well as federal agencies, will likely monitor this issue. Complying with CMS guidelines will help facilities to ensure discharges are legally appropriate, minimize risk or trauma to the resident, and minimize legal and financial risk for the facility. Like so many other issues in long-term care, thorough documentation is the key to managing risk. ## A Business Associate’s Compliancy Journey: Remote Workforce https://excelas1.com/blog/a-business-associates-compliancy-journey-remote-workforce ### A Business Associate’s Compliancy Journey: Remote Workforce _2014-05-15 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ ![Remote Workforce Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-01-lock-on-file.jpg) > Small businesses may struggle to achieve and maintain HIPAA compliance, especially when there are added challenges such as employees who work remotely—whether full-time or on occasion—and need to access protected or personal health information (PHI) on a daily basis. Ensuring corporate office compliance is often an easier task than ensuring compliance for remote workspaces, but the HIPAA requirements stay the same no matter the location. Small businesses may struggle to achieve and maintain HIPAA compliance, especially when there are added challenges such as employees who work remotely—whether full-time or on occasion—and need to access protected or personal health information (PHI) on a daily basis. Ensuring corporate office compliance is often an easier task than ensuring compliance for remote workspaces, but the HIPAA requirements stay the same no matter the location. Businesses facing this challenge may want to establish several rules to ensure that remote workspaces are safe and secure. Here are five suggested remote workspace policies: - **Keep PHI Logs:** When printing PHI is necessary, require staff to record any and all activity in a log that enables the business to track any PHI that is in physical format. Staff must also record the date on which printed PHI was destroyed, as well as the manner of destruction. - **Develop Email Rules:** Don’t include PHI in the subject line of internal email messages. Further, require employees to include the least amount of PHI possible in the body of email messages with other staff. For example, instruct employees to refer to patients by initials only in the subject of email messages. Never allow employees to text any PHI. - **Establish Work Break Rules:** When employees leave their workstation for a break, require them to sign out of any programs where PHI is contained, as well as “lock” their computer. If physical PHI is on their desk, require them to cover the PHI with protector sheets so that no information is visible to anyone who might pass by. Instruct employees to follow separate end-of-day procedures when their shifts are over. - **Provide Periodic Training:** Require all employees to receive periodic training on HIPAA, including updates or new developments, refreshers on company policies, and quizzes to ensure information retention. - **Create and Follow Security Incident Procedures:** Put procedures in place to ensure that any potential breaches are reported and handled in a timely way, if they should occur. Promptly investigate all events and remedy any identified issues. Because maintaining compliance is also important, another suggestion is to provide all staff, whether remote or on-site, with laminated cards to keep at their workspaces, listing all the kinds of information that is considered PHI. It’s also a good idea to stock the protector sheets that employees are required to use to cover physical PHI during work breaks. Lastly, for businesses with compliance officers, consider including frequent updates and reminders in company newsletters and staff meetings to help achieve consistent compliance. Ultimately, employees should be aware that HIPAA compliance is a joint responsibility: if a breach were to occur, it’s not just the business at risk of liability, but also the individual employees who were involved. Employees who work remotely must especially manage their remote offices and function as their own compliance officers—in practice, if not in title. Building a business based on a remote workforce has many advantages, as well as some unique challenges. In terms of HIPAA compliance, it requires ongoing and comprehensive training to ensure full staff understanding of the requirements for compliance, and the risks and consequences of not meeting those requirements. It also requires a good dose of diligence from the compliance team to ensure remote workers are following through at every step. ## Facts About Pressure Ulcers (Bedsores) https://excelas1.com/blog/facts-about-pressure-ulcers-bedsores ### Facts About Pressure Ulcers (Bedsores) _2014-04-23 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ ![Facts About Pressure Ulcers Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-01-unrolled-gauze.jpg) > A pressure ulcer is a localized injury to the skin and/or underlying tissue, usually over a bony prominence. Areas most at risk include the sacrum (tailbone), ischium (the lower, back side of the hip bones), hips, heels, and elbows. Pressure ulcers are caused by prolonged pressure on the prominence, or pressure in combination with shear, such as a dragging or brushing motion. Too often, people associate the word “bedsore” with the concept of neglect and abuse, to the detriment of careful—and caring—health care providers. It’s true that skin ulcerations can be painful for patients and terrifying for families. And while they’re preventable, bedsores—more formally known as pressure sores, pressure injuries, or decubitus ulcers—are sometimes difficult to treat and can occur despite excellent clinical care. Because bedsores are often feared by patients and their families, it may help to understand the physiological mechanisms that can cause them, as well as measures that can be taken to prevent them. A pressure ulcer is a localized injury to the skin and/or underlying tissue, usually over a bony prominence. Areas most at risk include the sacrum (tailbone), ischium (the lower, back side of the hip bones), hips, heels, and elbows. Pressure ulcers are caused by prolonged pressure on the prominence, or pressure in combination with shear, such as a dragging or brushing motion. **RISK FACTORS:** Because these ulcers are caused by pressure, any condition that contributes to increased or prolonged pressure presents a risk for the development of ulcers. Some examples include bed-bound or chair-bound conditions, impaired ability to reposition oneself, obesity, inactivity, and immobility. Patients with disorders that decrease the amount of blood flow to the affected areas are at increased risk of developing pressure ulcers, or experiencing worsened symptoms. Examples of such disorders include anemia, emaciation, malnutrition, diabetes, cardiac disease, blood vessel disease, sickle cell anemia, and cancer. Advanced age results in decreased collagen, decreased fat under the skin, and decreased skin elasticity, all of which increase the risk for pressure ulcers. Both dry and moist skin can also lead to skin breakdown. **APPEARANCE:** The appearance of a pressure wound will vary with its stage. A standardized staging system is used to name the amount of tissue loss. - **Stage 1:** Non-blanchable erythema—a reddened area that does not turn white when pressed. - **Stage 2:** Partial thickness skin loss—a shallow open ulcer with red/pink wound bed. It may also present as an intact or open/ruptured blister. - **Stage 3:** Full thickness skin loss in which the fat under the skin may be visible. - **Stage 4:** Full thickness tissue loss with exposed bone, tendon, or muscle. These wounds are at risk for developing osteomyelitis, an infection of the bone. - **Unstageable/Unclassified:** The wound is completely obscured by slough (dead tissue) and/or eschar (black scab). The true depth cannot be determined, but it will either be a Stage 3 or 4. - **Suspected Deep Tissue Injury:** Depth unknown. The wound presents as a purple or maroon localized area of discolored intact skin, or a blood-filled blister, due to damage of underlying soft tissue from pressure and/or shear. The evolution of this type of injury may progress rapidly, exposing additional layers of tissue even with optimal treatment. **TREATMENT AND PREVENTION:** The treatment for pressure ulcers depends largely on their stage, size, and location. Ulcers can be treated conservatively in the early stages—for example, by relieving pressure. Ulcers in more advanced stages may require special dressings; surgical, mechanical or other methods of debridement; or other treatments, depending on severity. Pressure ulcer prevention should focus on decreasing pressure on bony prominences, improving skin condition, and improving nutrition. Measures to decrease pressure on at-risk areas include frequent repositioning, pressure-redistributing mattresses, chair cushions, pillows or foam wedges to keep bony prominences from direct contact with each other, and positioning heels off the mattress. Skin condition can be improved or maintained with the use of mild cleansing agents, application of lotions, frequent incontinence care, and the use of moisture-absorbing briefs. Nutrition should be addressed by increasing protein and carbohydrate intake, staying well hydrated, and providing supplements such as a multi-vitamin with minerals, vitamin C, zinc and protein supplements. Stabilizing underlying health conditions, such as diabetes and cardiac disease, will also promote tissue health. Preventing and treating pressure ulcers is complex, and they cannot always be avoided. But with an understanding of their physiological causes and possible interventions, providers and families can work together to find the best treatment and achieve the best outcome for patients. When it comes to skin ulcers, knowing the facts can help alleviate emotional upset and prevent unnecessary claims and allegations—a win for everyone involved. ## Dementia And Falls Among The Elderly https://excelas1.com/blog/dementia-and-falls-among-the-elderly ### Dementia And Falls Among The Elderly _2014-04-02 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ ![Dementia and Falls Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-01-elderly-woman-with-walker.jpg) > Falls are, unfortunately, common among the elderly—regardless of whether they’re at home or in a healthcare facility. Many healthcare providers are faced with litigation related to elderly patients falling and injuring themselves, but familiarity with why falls happen can help providers prevent them from occurring, or document what contributed to the event. Falls are, unfortunately, common among the elderly—regardless of whether they’re at home or in a healthcare facility. Many healthcare providers are faced with litigation related to elderly patients falling and injuring themselves, but familiarity with why falls happen can help providers prevent them from occurring, or document what contributed to the event. It is estimated that more than one third of older adult admissions to nursing homes are related to falls and instability. Add dementia to the mix, and the risk of falls increases due to impaired gait, visual perception, judgment, and decreased safety awareness. Despite being a common occurrence no matter the location, falls are also a frequent trigger event for claims and litigation. In assessing falls among patients with dementia—and separating those that are caused by neglect from those that are truly accidental—it is crucial to understand the underlying issues that make falls and related injuries so common among this demographic. ##### Five Factors That Contribute to an Increased Risk of Falling **Age-Related Mobility:** Many people become less active as they age, leading to loss of the muscle strength needed for balance and unassisted mobility. This problem can be compounded for dementia patients if the area of the brain damaged by dementia controls coordination and balance. In these cases, the risk of falls increases dramatically. **Gait:** Fall risk is also impacted by gait, and the disease process of some common ailments can affect walking style. For example, arthritis may cause one to take small, slow steps to avoid pain. In dementia, gait issues may be even more pronounced. For example, some dementia patients may walk slowly, but sway side to side with small, shuffling steps to try to keep their balance. Others, particularly those with poor judgment, may take regular steps but at an increased rate of speed, which causes increased instability. Dementia patients also commonly forget to use walking aids, such as canes or walkers, leading to an even greater risk of falls. **Vision:** Depending on the area of the brain affected by dementia, vision may be affected. When it is, the dementia patient may not see items in their path or in their periphery. They might trip over items on the ground, or lose balance by bumping into an unseen object. **Environment:** Further, dementia patients might misinterpret their environment and fail to recognize unsafe situations, including loose rugs, uneven surfaces, and slippery surfaces. They may choose inappropriate footwear. Confused and agitated patients may get up during the night without sufficient light; if they cannot remember the location of light switches or lamps and are unfamiliar with their environment due to confusion, this can increase their risk of falling. **Medications:** Finally, medications used by dementia patients can cause additional confusion. Some may also cause stiffness and rigidity, which increases the difficulty in getting up from a chair or with walking in general, creating gait and balance issues. Among the medications that could exacerbate confusion or cause balance problems are drugs for overactive bladder, allergies, vertigo, and nausea; certain antipsychotic medications; and certain drugs for nerve pain or depression. People with dementia are also more likely than other patients to fall when taking sedatives or tranquilizers. Additionally, blood pressure medications can occasionally cause blood pressure to drop when the patient stands, thus causing balance problems. ##### Nine Tips for Reducing the Risk of Falling Even with recommended safety measures in place, falls cannot be completely prevented. Alarms can alert staff that a dementia patient is getting up without assistance, but if no one is in immediate proximity, the patient could fall before anyone can reach them. Additionally, prolonged restraints will weaken the patient and predispose them even further to falls; for this reason, they are discouraged from being used. However, several proactive measures can be taken to reduce fall risks: 1. Provide therapy and exercise programs that can help dementia patients maintain strength while they are still ambulatory. 2. Conduct gait evaluations to identify problems that can be addressed in therapy. 3. Encourage patients to undergo annual eye exams to determine vision problems and get proper treatment, such as corrective lenses or cataract surgery that may better enable dementia patients to identify their surroundings. 4. Ensure that the facility is adequately lighted to help dementia patients more safely navigate their environment. 5. Provide all patients and residents with safe and stable footwear. 6. Remove tripping hazards such as throw rugs, extension cords, and clutter from walking pathways. 7. Recognize what sorts of objects may pose a fall risk, such as pets for patients living in a more residential environment. 8. When possible, avoid medications that have been linked to increased falls. 9. When possible, place grab bars in showers, bathtubs, and near toilets. These are sturdy and can be grasped when patients feel themselves losing balance. Towel racks are not sturdy enough for such use. ##### Strategies to Encourage the Use Mobility Aids One of the most obvious interventions to reduce fall risks—the use of rolling walkers, canes, and Merry Walkers when ambulation is increasingly difficult—is also one of the most difficult to execute. Many dementia patients are likely to forget to use their mobility aids. Therefore, it is crucial for healthcare staff to take consistent measures to encourage their use. For patients who can still read and comprehend, the use of written notes or other visual reminders can be very useful. For patients who cannot read or comprehend written communication, verbal reminders are necessary. Caregivers should use clear instructions, one short sentence at a time, focus on the present, and observe the patient’s response to ensure that they have been understood. In any communication with dementia patients, positive approach, tone, and enforcement are keys to reducing resistance and gaining compliance. Very often, dementia patients may simply not recognize that they need their mobility devices at all, because they may not recognize their own debility or the risks involved in not using the aids. When this occurs, caregivers should use sensitivity in finding ways to encourage their use. For instance, the caregiver might help the patient recall someone meaningful in his or her life who suffered a fall as an example of why mobility aids are necessary. The issue of fall risk in dementia is complicated, like many issues in elder care. Not only does the disorder itself increase risk, but gaining patient compliance is often negatively impacted as well, which further increases risk. When a fall occurs, it is important to consider and document all the mitigating factors, because—as every provider knows—every fall is unintended and every injury is unfortunate, but not every fall is a symptom of neglect, especially in the presence of dementia. ## The Role Of Aging In Malnutrition Of The Elderly https://excelas1.com/blog/the-role-of-aging-in-malnutrition-of-the-elderly ### The Role Of Aging In Malnutrition Of The Elderly _2014-03-10 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ ![Malnutrition of the Elderly Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-01-tray-and-plate.jpg) > Much of the litigation involving the elderly in nursing homes includes allegations of malnutrition. But malnutrition is not necessarily a sign of negligence. Instead, aging—and its many side effects—is a major contributor to the problem. Much of the litigation involving the elderly in nursing homes includes allegations of malnutrition. But malnutrition is not necessarily a sign of negligence. Instead, aging—and its many side effects—is a major contributor to the problem. The physiology of aging can affect body function in many ways that negatively impact nutritional health. Take, for example, these six side effects of aging: - Sensory loss—particularly reduced sense of taste and smell—can often cause a diminished or absent desire to eat. - Decreases in metabolic rate can lead to slowing of digestion and less frequent hunger. - The slowing of digestion may in turn cause constipation, which often leads to under-eating due to discomfort and/or feelings of fullness. - Slow digestion may subsequently result in decreased absorption of calcium and Vitamin D, which can lead to bone loss and pain. This pain may cause decreased activity and further diminish the need and desire for nutritional intake. - Bone loss can also lead to dental problems that result in pain or difficulty chewing and a consequent decrease in eating. - Slowing of function in the esophagus can lead to difficulty swallowing and a voluntary curtailment of nutritional intake. Often, the co-morbid conditions that exist challenge even the best efforts to support nutrition in the aged. Another common factor is age-related loss of muscle mass, which can lead to decreased activity. The lack of activity can, in turn, contribute to further breakdown of muscle mass, leading to greater decreases in strength, exertion, and activity with consequential reduction of nutritional intake. It is common for the body to increase fat stores in response to the loss of body mass and/or muscle mass. Consequently, there may be no evidence of weight loss, or there may even be a gain in weight. This makes it difficult to evaluate and diagnose nutrition issues in the elderly. Decreases in cardiovascular and renal function can also contribute to malnutrition. With aging, there are changes at the cellular level that can cause organs to slowly lose function, with the greatest changes occurring in the heart, lungs, and kidneys. As these organs lose function, there is a corresponding decrease in the transfer of essential nutrients—causing additional strain on the body and impacting overall nutrition. Acute or chronic disease processes can also cause or contribute to malnutrition. The incidence of atrophic gastritis, a form of chronic inflammation of the stomach, appears to increase with age and can decrease the desire to eat. The presence of diverticulosis—small pouches in the colon that can at times cause discomfort or pain—also increases with age. When elderly patients suffer from diseases that make eating an uncomfortable prospect, it becomes very difficult to ensure they have adequate intake. Further, diseases such as urinary tract and other infections, decubitus ulcers, and malignancies may cause the development of elevated resting metabolic rates and an accelerated loss of body cell mass, loss of appetite, decreased intake, and wasting. When taking into account the myriad pathophysiological effects of aging on nutrition, it is clear that maintaining the nutritional health of the elderly can be a challenging and sometimes impossible task for the healthcare provider, even in the presence of excellent clinical care. Because the factors contributing to malnutrition are often complex, expert medical review can help defense attorneys distinguish cases that are the result of neglect from those that are unavoidable due to physiological issues. ## All Ulcers Are Not the Same: Arterial Ulcers https://excelas1.com/blog/all-ulcers-are-not-the-same-arterial-ulcers ### All Ulcers Are Not the Same: Arterial Ulcers _2014-02-03 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ ![Arterial Ulcers Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-01-crossed-band-aids.jpg) > Unlike pressure ulcers, arterial ulcers are due to poor blood circulation, which can occur acutely (such as with trauma or thrombosis) or chronically (such as with atherosclerotic disease). Skin ulcerations. In the healthcare field, it’s a condition that can spark worry in a medical team, feel painful for patients, and be terrifying for families. The term brings to mind the image of bedsores, possibly caused by neglect and abuse. But, anyone who has a loved one in a healthcare facility should understand that not all ulcers are the same—and, perhaps somewhat reassuringly, most are not the result of negligence. Ulcers can and do happen, even in the presence of excellent clinical care. There are a variety of skin ulcers. Most people are somewhat familiar with decubitus ulcers, more commonly known as pressure sores (and also sometimes called bedsores). [Kennedy Terminal Ulcers](/what-is-a-kennedy-terminal-ulcer/) (KTUs), another type of pressure sore, occur at the end of life. There are several other types of ulcers that are not pressure-related, including venous stasis ulcers, neurotrophic (diabetic) ulcers, and arterial ulcers. Unlike pressure ulcers, arterial ulcers are due to poor blood circulation, which can occur acutely (such as with trauma or thrombosis) or chronically (such as with atherosclerotic disease). Arteries deliver nutrient- and oxygen-rich blood to the body. When blood flow is restricted due to arterial disease or damage, tissue in the area begins to die, resulting in ulceration. In some cases, lack of blood flow prevents ordinary scrapes or cuts from healing, eventually resulting in open ulcers. Regardless of whether the wound originates internally (e.g., tissue starvation or tissue death) or externally (e.g., a cut or scrape that won’t heal), the root cause is found at the vascular level. ##### Four Factors for Identifying Arterial Ulcers Besides their root cause, there are several characteristics that will help to identify arterial ulcers. - **LOCATION:** Arterial ulcers usually occur on the tips of toes, between toes, and on heels or outer ankles where boney prominences may rub against surfaces, such as shoes or bed sheets. - **APPEARANCE OF WOUND:** Arterial ulcers have even borders that appear to be punched out, with even, well-defined borders. They are typically very deep, sometimes exposing underlying tendons. The wound base is dry and pale, with an absence of bleeding. The tissue may be necrotic (appearing yellow, brown, gray or black) and often shows no sign of new tissue growth. - **APPEARANCE OF EXTREMITY:** The affected extremity will be cool or cold to the touch, may lack a palpable pulse, and may show signs of hair loss. The skin will likely be shiny, thin, dry, or taut. Another visual clue is the color of the extremity itself: if it is red when dangled, but turns pale white when elevated, this could indicate a problem with blood flow, meaning the ulcer may be arterial in origin. - **TESTING:** Vascular studies may also be used to determine arterial insufficiency. These include performing an ankle brachial index, arterial Doppler transcutaneous oxygen delivery (TcPO2), and toe pressures and arteriography. ##### Best Practices for Treating Arterial Ulcers Once diagnosed, arterial ulcer treatment choices are limited and will vary depending on the severity of the underlying disease. The main goal of treatment is to improve blood flow to the area. For this reason, compression dressings—a traditional wound treatment—are contraindicated for arterial ulcers because they further restrict blood flow. If the wound is dry, it should be kept dry. If the wound is moist and open, a non-occlusive dressing may be indicated. For arterial wounds with infection, conservative debridement may be used. Traditional wound debridement is not the first choice for treatment as it can worsen arterial ulcers. Pain management should also be part of the treatment plan, as arterial ulcers tend to be quite painful. For some patients, treatment may go beyond the local wound site. Surgical interventions may be considered in order to restore blood flow to the affected areas. However, many patients with advanced atherosclerotic disease who have multiple comorbidities will not be candidates for surgery other than above-the-knee amputation. ##### Preventing Future Arterial Ulcers Overall, the standards of care for arterial wounds require implementation of treatments as ordered; promotion of blood flow to the affected areas; and daily monitoring for signs and symptoms of infection or worsening wounds. Lifestyle changes are recommended to improve blood flow and prevent future wounds, including smoking cessation, avoiding constrictive clothing or shoes, and avoiding cold temperatures. Persons with arterial insufficiency should be vigilant in preventing trauma to the area, which may cause additional wounds. Nutrition is also important to aid in healing and prevention. Arterial ulcers can be alarming, just like bedsores and other types of wounds. But with an understanding of their physiological cause and possible interventions, providers and families can work together to find the best treatment and achieve the best outcome for patients. When it comes to skin ulcers, knowing the facts and documenting the care that’s been provided can help alleviate emotional upset and prevent unnecessary claims and allegations—a win for everyone involved. ## Aging and the Long-term Effects of Alcohol https://excelas1.com/blog/aging-and-the-long-term-effects-of-alcohol ### Aging and the Long-term Effects of Alcohol _2014-01-16 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ ![Aging and Long-Term Effects of Alcohol Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-01-glass-of-wine.jpg) > For many people, coming home at the end of the day and having a couple drinks to unwind and relax is a common occurrence. It’s a seemingly benign behavior that’s more harmful than what most people expect—mainly because of its negative impact on health later in life. For many people, coming home at the end of the day and having a couple drinks to unwind and relax is a common occurrence. It’s a seemingly benign behavior that’s more harmful than what most people expect—mainly because of its negative impact on health later in life. Women who consume more than one drink per day on average, and men who consume more than two drinks per day on average, are considered by the [Centers for Disease Control and Prevention](https://www.cdc.gov/alcohol/fact-sheets/alcohol-use.htm) to be “heavy drinkers.” While a drink or two each day may not seem excessive now, the long-term effect on health may prove otherwise. Studies have demonstrated unpleasant side effects that alcohol consumption has on people’s health as they age—suggesting this is a habit to consider giving up. #### Four Side Effects of Alcohol Use - **Worsened brain function:** The aging human brain naturally shrinks, and the growth of new brain cells gradually slows down. Long-term use of alcohol has a similar effect, thus exacerbating the normal aging process and brain function. Problems with coordination and muscle movement can occur, increasing the risk for falls and injury. Memory loss, depression, anxiety, and exaggerated emotional states are frequent manifestations in old age that can be hastened by the use of excessive alcohol. - **Increased risk of heart disease:** Beyond the effects on brain function, excessive alcohol intake can raise the level of triglycerides in the blood, increasing the risk for developing heart disease. Since coronary artery disease, high blood pressure, enlarged heart, atrial fibrillation, and heart attacks are common diagnoses in the elderly, alcohol consumption can increase the likelihood of their development as well. - **Malnourishment and kidney failure:** The gastrointestinal effects of alcohol use include gastritis, acid reflux, ulcers, diarrhea, and vomiting. Because of the calories in alcohol, chronic drinkers oftentimes feel less hungry, eat less, and subsequently become malnourished. Kidney failure, which affects the regulation of fluids and electrolytes in the body, can also occur. As a result of these consequences, skin can become dehydrated and depleted of the essential vitamins and minerals that are needed for the maintenance of healthy skin tissue, thus increasing the risk for skin breakdown. - **Brittle bones and joint inflammation:** Aging bones normally become more brittle and are more prone to fractures. Long-term alcohol use can interfere with bone growth and the replacement of bone tissue, resulting in decreased bone density and an increased risk of fracture. Alcohol use also leaches calcium from bones, often leading to osteoporosis. Joint inflammation, as well as the pain associated with arthritis, can be accelerated or aggravated by alcohol use. Chronic alcohol use affects every organ and system of the body, but these effects often only become apparent over the course of many years. Long-term care facilities commonly have residents that suffer from dementia, strokes, cardiac disease, skin breakdown, pain, and malnutrition/dehydration. Some of the infirmities are due to the natural aging process. Some can possibly be attributed to genetics. But it’s likely that individual life choices and patterns have had at least some impact on the development of any of these conditions, although it’s difficult determining to what extent. So far, scientists have been unsuccessful in finding a way to stop the normal aging process. Some promising breakthroughs have been achieved through improved diet, regular exercise, and preventive healthcare. Although there is no cure or reversal of the aging process, people can make the decision to eliminate behaviors and choices that have been proven to exacerbate the effects of aging. Any measures that will decrease the loss of brain cells, enhance the ability to maintain healthy skin, and reduce the effects of osteoporosis can significantly improve the ability to maintain health and independence in later years. One thing is for certain: the fountain of youth is not filled with alcohol. ## The Basics of Preventing Infection in Long Term Care Facilities https://excelas1.com/blog/the-basics-of-preventing-infection-in-long-term-care-facilities ### The Basics of Preventing Infection in Long Term Care Facilities _2013-08-22 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ ![Preventing Infection in Long-Term Care Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-01-gloves-and-mask.jpg) > Infections pose a significant threat to the frail elderly in long-term care settings, often resulting in life-altering complications, including death. Infection control measures must be consistently practiced by caregivers in long term care settings. Infections pose a significant threat to the frail elderly in long-term care (LTC) settings, often resulting in life-altering complications and even death. The incidence of infection is considerable, accounting for half of all hospital admissions for LTC residents1. The health implications are serious: When infection is the primary diagnosis, mortality rates can be as high as 40%. The top three health-care acquired infections in the long-term care setting are those of the urinary tract, respiratory system, and skin and soft tissue. And infections, as a whole, remain a persistent problem in long-term care. Among the cases reviewed by Excelas from 2010 to 2012, infection was an identified issue in 35% of claims and litigation, on average (27% in 2010; 36% in 2011; and 41% in 2012). Infection transmission occurs most frequently by direct contact between healthcare workers and residents, often leaving caregivers as the unwitting vehicle for transmission as they travel from person to person providing care. LTC facilities should be actively working to reduce the risk of infection in their residents by implementing a variety of simple safeguards: - **Regular Hand Washing**—Hand washing with soap and water, or an alcohol-based hand-hygiene product, is the #1 safeguard in reducing the risk for infection. - Protective Equipment—All blood, bodily fluids, secretions, mucous membranes, or body tissue are potentially infected and should be handled as such. Personal protective equipment (PPE) such as non-sterile gloves, a fluid-resistant gown, masks, and eye protection should be utilized for any healthcare activity to minimize exposure to body substances. - **Disinfection Practices**—Any equipment used for multiple patients, such as blood glucose monitoring devices or electronic IV pumps, must be properly disinfected between patient use. - **Proper Linen Procedures**—Proper handling of linen is essential in preventing the spread of infection. Dirty linen should be covered and must be clearly separated from clean linen. Once linen has been brought into one patient’s room, it should not be taken to, or used in, another patient’s room. All facilities must provide appropriate laundering for soiled linens. Even when all of the available safeguards are properly implemented, infections can still occur. Once an infection is suspected or diagnosed, appropriate isolation precautions should be implemented to prevent further transmission. The nature of these precautions will depend on the infection that is suspected or diagnosed. Isolation precautions will fall into one of the following categories: - **Contact isolation** is implemented for infections that are spread by direct or indirect contact (i.e., the bacteria or virus can be acquired by touching the infected site or body fluids, or by touching contaminated equipment). Infections such as Clostridium difficile or scabies require contact isolation measures which should include a private patient room; use of gloves and gown upon entering the patient room and removal before leaving the room; thorough hand washing; and dedicated use of equipment including stethoscopes, walkers, etc. - **Droplet isolation** is implemented to prevent the spread of infections transmitted through respiratory secretions (e.g., coughing or sneezing) or contact with mucous membranes. Illnesses such as influenza require droplet isolation measures, which should include a private patient room, use of surgical mask by employees and visitors, and use of a surgical mask by patients who need to leave the room. - **Airborne precautions** are implemented for bacteria or viruses that are small enough to remain airborne for a prolonged period of time. Infections such as shingles or tuberculosis require airborne precautions, including placement of the resident in an isolation room. Isolation rooms are private, maintain a negative air pressure in comparison to hallways or other adjacent areas, require at least six air exchanges per hour, and vent the room’s air outside of the facility. Additional precautions, such as respirator masks for staff, may be required depending on the infection. Consistently implementing these measures can help reduce the estimated 150,000 to 200,000 hospitalizations that happen annually as a result of infections, and the resulting $2 billion it costs to treat them. A reduction in infection rates will decrease the growing number of infection-related claims and related legal costs incurred by LTC companies. Together, the money saved may be redirected and better spent on other quality- and resident-centered initiatives—a win for both residents and LTC facilities. To learn more about how to defend against claims related to infection control, [talk to an expert](/contact/) at Excelas. _1 Background statistics and some general information in this post were taken from the webinar, _**Infection Control: The Down and Dirty of F-Tag 441**_, presented on August 15, 2013, by Relias Learning._ ## Are Kennedy Terminal Ulcers Gaining Recognition Among Federal Regulators? https://excelas1.com/blog/are-kennedy-terminal-ulcers-gaining-recognition-among-federal-regulators ### Are Kennedy Terminal Ulcers Gaining Recognition Among Federal Regulators? _2013-08-07 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ ![Kennedy Terminal Ulcers and Federal Regulators Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-01-gauze.jpg) > Long-term care (LTC) providers have, for years, asserted that not all skin alterations are an indication of poor-quality care. The Kennedy Terminal Ulcer (KTU) was originally noted more than a century ago, and was formally studied for the first time in the 1980s. But it has taken until now for federal regulators to give any credence to the phenomenon—and specifically, to consider excluding this particular type of ulcer from among the list of quality indicators. Long-term care (LTC) providers have, for years, asserted that not all skin alterations are an indication of poor-quality care. The [Kennedy Terminal Ulcer](http://excelas.insivia.co/what-is-a-kennedy-terminal-ulcer/) (KTU) was originally noted more than a century ago, and was formally studied for the first time in the 1980s. But it has taken until now for federal regulators to give any credence to the phenomenon—and specifically, to consider excluding this particular type of ulcer from among the list of quality indicators. A recent draft of [_Long Term Care Hospitals Quality Reporting Program Manual_](https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/LTCH-Quality-Reporting/Downloads/LTCH-QR-Program-Manual-v20-DRAFT.zip), a Centers for Medicare & Medicaid Services (CMS} publication released in April 2013, appears to recognize Kennedy ulcers as an issue separate from quality of care, instructing providers not to report them on quality reporting tools once they have been confirmed. CMS’s recognition of this issue seems to currently extend only to Long-Term Care Hospitals (LTCHs), and not to other types of facilities where KTUs are likely to be found—in particular, skilled nursing facilities (SNFs) where the majority of elderly in poor health spend their final days and weeks. Still, this is a positive step forward for long-term care providers that hopefully won’t stop with the LTCHs or long-term acute care facilities. It’s possible CMS will extend this recognition to SNFs, hospices, and other facilities providing end-of-life care. Pressure ulcers, in general, have been a hot button in LTC claims and litigation for years. Plaintiffs frequently use ulcers as the epitomizing physical manifestation of poor care or negligence. But as practitioners know—and as CMS seems to be acknowledging—the quality of care provided is not always at issue. In the case of Kennedy ulcers, poor care is never the direct cause. Continuing an open dialogue about Kennedy ulcers is critical for improving understanding of the end of life process. As practitioners and regulators become more knowledgeable about these ulcers, families of afflicted loved ones will also become better informed. When Kennedy ulcers are well understood as a symptom of end-of-life organ failure, not as evidence of neglect, it may help alleviate some of the shock and hurt experienced by family members, and some of the stigma and risk experienced by healthcare providers. To learn more about how to defend against claims regarding Kennedy ulcers [talk to an expert](/contact/) at Excelas. ## What Is A Kennedy Terminal Ulcer? https://excelas1.com/blog/what-is-a-kennedy-terminal-ulcer ### What Is A Kennedy Terminal Ulcer? _2013-08-01 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ ![Kennedy Terminal Ulcer Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-01-nurse-caring-for-patient.jpg) > Sometimes, when a person approaches the end of life, multi-organ failure begins to occur. And sometimes, such organ failure includes the largest organ of the human body—the skin. This can result in patients developing a Kennedy Terminal Ulcer (KTU). Similar in some ways to other pressure ulcers, KTUs are also distinctly different in important ways. Sometimes, when a person approaches the end of life, multi-organ failure begins to occur. And sometimes, such organ failure includes the largest organ of the human body—the skin. This can result in patients developing a [Kennedy Terminal Ulcer](http://www.kennedyterminalulcer.com/) (KTU). Similar in some ways to other pressure ulcers, KTUs are also distinctly different in important ways. **KTUs manifest suddenly and progress rapidly.** A KTU may start as a superficial blister or Stage 2 ulcer, red or purple in color, typically larger than an ordinary pressure ulcer. However, they very quickly progress, becoming much deeper and larger, and changing in color to yellow and black. It is not uncommon for a KTU to develop and progress to a Stage 3 or 4 in the span of a couple days. **KTUs are commonly found in the same area.** KTUs typically present on the sacrum, although their presence on other areas of the body is not unheard of. They are often pear or butterfly shaped, with irregular borders. **Timing of KTU manifestation can predict outcomes.** In some cases, KTUs develop according to what’s known as “3:30 Syndrome.” In these cases, a patient’s skin may be intact in the morning when they’re examined. However, by afternoon, the patient has developed a flat blister, purple or black in color, that is roughly the size of a quarter, although it can be larger in some cases. When progression of the sore follows the rather alarming “3:30 Syndrome” scenario, life expectancy has been shown to be between 8 and 24 hours. Kennedy Terminal Ulcers, and the 3:30 Syndrome, were first studied in the 1980s by Karen Lou Kennedy, a nurse practitioner at Byron Health Center in Fort Wayne, Indiana. In 1983, Kennedy started and led one of the first skin care teams in a long-term care setting. The meticulous records her team kept became the first data set addressing these ulcers, and subsequent analysis identified the characteristics of the ulcers and their correlation to patient death. Kennedy’s research was published in the May 1989 issue of _Decubitus_ (now _Advances in Skin & Wound Care_). To learn more about KTUs, visit [http://www.kennedyterminalulcer.com](http://www.kennedyterminalulcer.com). ## Reinvesting Your Resources in Patient Care https://excelas1.com/blog/reinvesting-your-resources-in-patient-care ### Reinvesting Your Resources in Patient Care _2013-06-06 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ ![Reinvesting Resources in Patient Care Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-01-cut-expenses.jpg) > The Alliance for Quality Nursing Home Care recently released a report that shared some sobering statistics about the financial health of the country’s skilled nursing facilities. While a majority of the factors contributing to this challenge are beyond the control of the SNFs, the good news is that there are some things you can control that can make a significant and positive impact on your organization. The Alliance for Quality Nursing Home Care recently released a report that shared some sobering statistics about the financial health of the country’s skilled nursing facilities. While a majority of the factors contributing to this challenge are beyond the control of the SNFs, the good news is that there are some things you can control that can make a significant and positive impact on your organization. With skilled nursing’s profit margins growing ever slimmer, it’s increasingly important for administrators to look for ways to achieve cost savings and direct resources to where they matter most—rather than to cover litigation expenses. The Alliance for Quality Nursing Home Care recently released a report that shared some sobering statistics about the financial health of the country’s skilled nursing facilities (SNFs): **One-third of SNFs surveyed** reported either a zero total income margin, or a net loss, for the years 2010 to 2012. **SNFs’ median net income margin** at the end of 2012 stood at 0.99%, about half of what it was in 2010. Importantly, the 2% Medicare reimbursement reduction due to take effect in 2013—a result of government sequestration—is not yet reflected in these statistics. Put simply, the negative impact on margins is going to continue for some time. While a majority of the factors contributing to this challenge are beyond the control of skilled nursing facilities and their administrators, the good news is that there are some things that SNF administrators can control that can make a significant and positive impact on their organizations. One of the most considerable expenses that many SNFs face is the handling of claims and litigation—a substantial and unavoidable vulnerability in long-term care. That’s why the ability to dramatically reduce spending in this area—thereby keeping resources invested where they matter most, in patient care, is a reality that SNF administrators should strive to achieve. SNF administrators should take advantage of businesses whose specialty is achieving cost-effective medical-legal solutions that can significantly reduce spending on litigation and shorten the lifecycle (and cost) of claims. This can enable SNFs to redirect their savings back into staffing and quality initiatives that directly serve residents and support the mission of caregiving. Fortunately, there is a way to positively impact how healthcare is delivered while controlling expenses on the litigation front, allowing for greater reinvestment in patient care. Learn more by watching the below video, or by [getting in touch](http://excelas.insivia.co/contact/). [Watch the video on YouTube](https://www.youtube.com/watch?v=qJmzP6QDXwQ) ## The List of Monitored Atypical Antipsychotic Drugs Just Got Longer https://excelas1.com/blog/the-list-of-monitored-atypical-antipsychotic-drugs-just-got-longer ### The List of Monitored Atypical Antipsychotic Drugs Just Got Longer _2013-05-31 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ ![Monitored Atypical Antipsychotic Drugs Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-01-stethoscope-laptop-medical-records.jpg) > The use of atypical antipsychotics in elderly nursing home residents with dementia continues to be a hot topic for CMS. Newly updated guidelines offer more guidance and criteria for when the drugs can appropriately be prescribed The use of atypical antipsychotics in elderly nursing home residents with dementia continues to be a hot topic for the Centers for Medicare and Medicaid Services (CMS). [Newly updated guidelines](https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-13-35.pdf) offer more guidance and criteria for when the drugs can appropriately be prescribed. CMS warns against using antipsychotic medications “without an adequate rationale, or for the sole purpose of limiting or controlling behavior of an unidentified cause,” because doing so provides “little chance” of effectiveness and may cause complications that include “movement disorders, falls, hip fractures, cerebrovascular adverse events (cerebrovascular accidents and transient ischemic events) and increased risk of death.” In addition to “generally” allowing use of antipsychotic medications to treat conditions other than dementia such as schizophrenia and schizo-affective disorder, CMS added seven other conditions and modified an eighth: - Schizophreniform disorder - Delusional disorder - Mood disorders (e.g., bipolar disorder, severe depression refractory to other therapies and/or with psychotic features) - Psychosis in the absence of dementia - Medical illnesses with psychotic symptoms (e.g., neoplastic disease or delirium) and/or treatment related psychosis or mania (e.g., high-dose steroids) - Tourette’s Disorder - Huntington disease - Hiccups (not induced by medications) - Nausea and vomiting not associated with cancer or chemotherapy - CMS has also broadened the scope of this focus area by categorizing four additional drugs as “atypical” antipsychotics in this recent update. The four drugs added to the “atypical” list are asenapine, iloperidone, lurasidone, and paliperidone. Familiarity with CMS guidelines can ensure a skilled nursing facility’s ability to receive maximum reimbursement from CMS. [Read more](https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-13-35.pdf) about the new guidelines. To learn more about how to defend against medication error claims,[talk to an expert](http://excelas.insivia.co/contact/) at Excelas. ## RAC Audits: The Calm Before the Storm https://excelas1.com/blog/rac-audits-the-calm-before-the-storm ### RAC Audits: The Calm Before the Storm _2013-05-23 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ ![RAC Audits Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-01-solutions-key.jpg) > The Center for Medicare and Medicaid Services (CMS) recently announced that healthcare providers would begin to see a decline in the number of additional documentation requests (ADRs) they receive, beginning in June 2013. There is one implication and one opportunity to be found in this announcement. The Center for Medicare and Medicaid Services (CMS) [recently announced](http://www.cms.gov/Outreach-and-Education/Outreach/FFSProvPartProg/Downloads/2013-05-09-enews.pdf) that healthcare providers would begin to see a decline in the number of additional documentation requests (ADRs) they receive, beginning in June 2013. Operating under the current program, which allows up to 400 requests per provider, per each 45-day period, this is welcome news. The not-so-welcome news? The relief will only be temporary. CMS has begun the process of selecting and transitioning to the next round of recovery audit contractor (RAC) contracts, and they’re attempting to reduce the number of open claims that will overlap with the new contracts. CMS also notes that pre-payment reviews and post-payment manual therapy reviews will continue at present levels. But, some relief is better than no relief. Once the new contract period begins (sometime in 2014), a fifth contractor will be included in the program. There will still be four A/B RACs, just as there are now—though whether any of the current auditors receive new contracts remains to be seen. The new, fifth contractor will focus exclusively on home health, hospice, and durable medical equipment (DME) claims. Ultimately, there is one implication and one opportunity to be found in this announcement. First, the implication is that once the new contract period begins, healthcare providers will feel a greater burden from the RACs. CMS will have more horsepower under its hood, which means there may be a greater number of ADRs and, potentially, a greater number of focus areas being examined, with home health, hospice, and DME being obvious, but probably not exclusive. But secondly, there’s inherent opportunity for healthcare providers in this CMS announcement: With a (somewhat) lighter burden beginning this spring, providers have the chance to get ahead of things. It’s common knowledge that documentation in the medical record is what will make or break an audit—any audit. Now is a great time to for healthcare providers to do internal audits on their own. This will allow providers to assess how staff is doing in regard to documentation practices and determine whether necessary documentation is happening at the appropriate times. This is what the RACs will be examining when they do a complex review of a healthcare facility’s resident records. There’s no better time than now for providers to find out where they are excelling, or where they need to implement facility-wide improvements. To find out how we can help you ensure that your documentation will stand up to RAC scrutiny, [talk to an expert](http://excelas.insivia.co/contact/) at Excelas. ## Preparing for Government Audits: Atypical Antipsychotics https://excelas1.com/blog/preparing-for-government-audits-atypical-antipsychotics ### Preparing for Government Audits: Atypical Antipsychotics _2013-05-17 · Filed under [Whitepaper](https://excelas1.com/blog/categories/whitepaper)_ ![Audit - Atypical Antipsychotics Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-01-Pill-Bottles.jpg) > Most people would agree that the Centers for Medicare & Medicaid Services (CMS) are justified in seeking to ensure that the long-term an acute care services they pay for are appropriate and meet federal standards. After all, ours is a rapidly aging population that is increasingly reliant on the Medicare/Medicaid system. From a purely budgetary standpoint, it makes perfect sense to put checks and balances in place to make sure the dollars are spent where they should be. Most people would agree that the Centers for Medicare & Medicaid Services (CMS) are justified in seeking to ensure that the long-term an acute care services they pay for are appropriate and meet federal standards. After all, ours is a rapidly aging population that is increasingly reliant on the Medicare/Medicaid system. From a purely budgetary standpoint, it makes perfect sense to put checks and balances in place to make sure the dollars are spent where they should be. In 2010, CMS launched its Medicare Recovery Audit Contractors (RAC) program to help do exactly that—primarily, to review care provider billings to identify and recover overpayments and, to a lesser extent, identify and reimburse for underpayments. CMS reports that in fiscal year 2016 alone, the program had recouped $4.7 billion. In the healthcare industry, new focus areas are being identified by the Office of Inspector General (OIG) and CMS on a regular basis, and these same focus areas can easily become the subject of investigation by the Department of Justice. Among the areas of focus most on the radar of our long-term care clients are atypical antipsychotic medications, hospice services, and physical therapy services. In this three-part series of white papers, we’ll take a look at each of these issues—examining how they came to be focus areas, what your organization needs to do to be in compliance with CMS standards, and what you can do now to prepare for, or respond to, audits. [Read more](/wp-content/uploads/2019/01/Preparing-for-Government-Audits-AAPs-2016.pdf) ## Medical Legal Analysts: The Credentials and Qualifications That Matter Most https://excelas1.com/blog/medical-legal-analysts-the-credentials-and-qualifications-that-matter-most ### Medical Legal Analysts: The Credentials and Qualifications That Matter Most _2013-04-18 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ ![Medical Legal Analysts Credentials Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-01-nurse-typing-on-keyboard.jpg) > Medical Legal Analysts. Legal Nurse Reviewers. Medical Analysts. Although the titles may vary, it’s the skills that matter. There’s a lot of discussion in the industry about what courses to take, what certifications to obtain, and how best to get a foot in the door doing medical analysis for the legal industry. Companies that recruit [...] Medical Legal Analysts. Legal Nurse Reviewers. Medical Analysts. Although the titles may vary, it’s the skills that matter. There’s a lot of discussion in the industry about what courses to take, what certifications to obtain, and how best to get a foot in the door doing medical analysis for the legal industry. Companies that recruit for these positions often have one simple—but very significant—objective: Finding a candidate with clinical experience. Many times, when recruiters look to fill analyst positions, they’re not necessarily looking at the alphabet soup after a candidate’s name, although it is necessary to have a nursing degree. A candidate’s competitive advantage is his or her clinical experience. The recruiter wants to see medical knowledge and practical experience that will enable the candidate to zero in on crucial information in the medical record and assess the quality of care. This is the candidate’s most essential asset, the foundation upon which everything else rests. So, what exactly makes up “the total package” for legal medical analysis companies? For some, the baseline requirements for a medical legal analyst position are a nursing degree, a minimum of 8 to 10 years of clinical experience, and stellar writing skills. Beyond that, recruiters may look for a person with sharp detective skills—a puzzle-solver, an analytical thinker and an objective observer, with a little bit of techie thrown in for good measure. And as for desirable intangible skills, it’s really about passion—a passion for telling the story of a resident’s care from myriad details and facts, a passion for excellence, and a passion for positively impacting how healthcare is delivered. Certifications and training courses are generally both viewed positively. But the basic skills of nursing and writing are the real foundations of a medical legal analyst’s success, and can function as a foot in the door. The more practical experience candidates have, the more successful they (and their clients) will be. Ultimately, a passion for finding the key details hidden in the medical record, matched by the ability to blend analytical thinking with clear and concise writing, will put a candidate ahead of the rest. If you would like to learn more about Medical Legal Analysts, [talk to an expert](http://excelas.insivia.co/contact/) at Excelas. ## Securing a Nursing Home’s Reputation in the Face of Lawsuit Onslaught https://excelas1.com/blog/securing-a-nursing-homes-reputation-in-the-face-of-lawsuit-onslaught ### Securing a Nursing Home’s Reputation in the Face of Lawsuit Onslaught _2013-04-11 · Filed under [Case Study](https://excelas1.com/blog/categories/case-study)_ ![Securing Nursing Home Reputation Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-01-notice-of-a-lawsuit.jpg) > Just like thousands of skilled nursing providers in the United States, a nursing home in the Midwest had worked hard every day to provide dignified care that serves the needs and enhances the quality of life of its residents. ##### Background Just like thousands of skilled nursing providers in the United States, a nursing home in the Midwest had worked hard every day to provide dignified care that serves the needs and enhances the quality of life of its residents. The center had no skeletons in its closet and no serious quality issues. In addition, it had never been targeted by the CMS Special Focus Facility initiative, nor had it incurred any major judgments against it. ##### Challenge The staff worked in accordance with the center’s mission of caring and continually providing quality care, day in and day out. But then an avalanche hit. One day, the center learned that a notorious plaintiff firm had erected a billboard in their immediate vicinity. On it, the firm sounded a clarion call for the families of any residents who had died at the center to contact them about bringing suit against the center for wrongful death. Soon, medical record requests started coming into the center, and the game was on. The plaintiff firm was successful in reeling in about 15 cases involving the nursing home. On a Tuesday afternoon, the center and its defense team were notified of the intent to bring suit on behalf of each of the 15 families. Medical records had been gathered by the plaintiff firm, and a meeting was called to discuss the center’s liability. That meeting was scheduled to take place the following Monday. Making matters worse, the plaintiff firm had not disclosed the allegations or complaints to the center, which meant the defense had no idea what to expect. This strategy was clearly intended to overwhelm the defense with thousands of pages of patient records and no clear direction as to the allegations involved. The strategy had a clear purpose: if the defense couldn’t adequately assess the records before the meeting—and it was a fair bet on the plaintiff’s part that they wouldn’t be able to do so—they could choose to settle quickly, in order to avoid a lengthy and costly spate of litigation. However, the center was confident in the care they had provided and they had no intention of giving in to a high-pressure tactic designed to garner a quick payout. ##### Solution The nursing home and its defense team sought a way to respond, even in spite of the impossible timeframe. They had three realistic choices: 1.) Admit they had no way to review the avalanche of records in a week and provide a quick payout; 2.) Allow the cases to go to through the litigation process, where they could end up paying a substantial amount in legal fees and judgments; or 3.) Find a way to evaluate the merit of each individual case and form a strategic response within the week they were allotted. The defense chose the third option, but knew they couldn’t do it alone. Enter Excelas and its team of medical legal analysts. Excelas was charged with the tasks of organizing and reviewing each case, which entailed providing an assessment of the standard of care each resident received, identifying any areas of potential liability, and presenting all the objective facts—pro and con—for each case. ##### Results Spread across an entire team of professionals, even the review of nearly 100,000 pages of records is easily accomplished when given proper priority and dedicated attention. The following Monday, as requested, the defense and the center’s representatives walked into the meeting with the plaintiff firm armed with a thorough understanding of each resident’s story and a solid response for every allegation made during the meeting. The defense was able to take the wind from the plaintiff’s sails, saving immeasurable time and cost for the center and maintaining its positive reputation. The next time you’re hit with a challenge that seems insurmountable, give Excelas a call. If it involves medical records and analysis, we’ve got you covered. ###### DISCLAIMER: The preceding case study is a true story. Excelas, LLC values the integrity of our client relationships. To protect them from uninvited or unwarranted attention, contact, exposure or scrutiny, we do not disclose the names, or any other identifying information, of the corporate entities, facilities or defense firms with whom we do business. ## How to Successfully Defend Against Multiple, Changing Allegations https://excelas1.com/blog/how-to-successfully-defend-against-multiple-changing-allegations ### How to Successfully Defend Against Multiple, Changing Allegations _2013-04-11 · Filed under [Case Study](https://excelas1.com/blog/categories/case-study)_ ![Defend Multiple Allegations Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-01-plan-b.jpg) > A busy law firm in Florida spent months prepping a case for trial. The allegations that their client, a nursing home, faced were clear. A defense was prepared and documentation was gathered to support their position. But, like so many things in life, their best-laid plans went awry—a few times. ##### Background A busy law firm in Florida spent months prepping a case for trial. The allegations that their client, a nursing home, faced were clear. A defense was prepared and documentation was gathered to support their position. But, like so many things in life, their best-laid plans went awry—a few times–as they faced multiple changing allegations. ##### Challenge The allegations were clear-cut: it was a case of neglect in which the resident, who required assistance with mobility, was left unattended and essentially bedridden for long periods of time. The defense was equally clear-cut: A review of the medical record documented each instance of assisted mobility, demonstrating satisfactory levels of patient interaction and ambulation. But when the parties met in the courtroom, everything changed on a dime. Without warning, the allegations shifted from a focus on mobility to a focus on infection. The problem, the plaintiffs stated, was that the resident suffered repeated infections due to poor care, and it was this problem that led to insufficient ambulation. When the parties adjourned for the day, the defense was left with a new set of issues that they would have to answer the following morning and that fell outside their original defense. With a single evening to respond to the new focus, the defense had to act quickly and decisively. ##### Solution Fortunately for the firm, they had engaged Excelas during the original case preparation, which opened the door to a perfect solution. Excelas had already completed a [medical chronology](/clinical-analysis), which provided the basis for the original defense. This made it possible to quickly generate a topic chronology, much like a larger medical chronology but focused on a specific area of risk (e.g., skin integrity, nutrition, or behavior). Topic chronologies draw information from the full chronology, so no new analysis needed to be conducted to provide the firm with its solution—a real time- and money-saver. The infection-related topic chronology was pulled almost instantly along with a timeline containing supporting documentation regarding every instance of infection the resident experienced. The defense was able to return to the courtroom in the morning, with all the information they needed to answer the new allegations. ##### Results Much to the surprise of the defense team, the allegations then shifted from infection to nutrition, and later from nutrition to a fall. But each time the allegations turned on a dime, the defense was able to counter without delay, returning with an effective defense each time. Excelas’ work products are designed to be responsive and flexible—even flexible enough to answer unexpected new mutliple changing allegations on the fly. Having the right tools available kept the case on track, saved critical time and money and, ultimately, scored a win in the courtroom. By providing flexibility and depth of information, Excelas has the tools you need to focus your defense, no matter where the allegations take you. ###### DISCLAIMER: The preceding case study is a true story. Excelas, LLC values the integrity of our client relationships. To protect them from uninvited or unwarranted attention, contact, exposure or scrutiny, we do not disclose the names, or any other identifying information, of the corporate entities, facilities or defense firms with whom we do business. ## Who’s Who In Your Medical Records? https://excelas1.com/blog/whos-who-in-your-medical-records ### Who’s Who In Your Medical Records? _2013-04-11 · Filed under [Blog](https://excelas1.com/blog/categories/blog)_ ![Who's Who in Medical Records Excelas Medical Legal Solutions](https://excelas1.com/api/media/file/2019-01-stethoscope-and-charts.jpg) > A crucial step in any medical review process or analysis of medical records is the Wrong-Patient Check—a confirmation during project initiation that ensures each piece of the record being reviewed belongs to the patient in question. Why is it worth mentioning? Because wrong-patient records are submitted for review surprisingly often. Catching these records at project initiation is critical because the information contained could potentially skew the medical analysis. Rapid identification and subsequent destruction of wrong-patient records is also critical from a HIPAA compliance standpoint; after all, it’s an inadvertent release of protected (or personal) health information (PHI). While it may not be a reportable breach, it is still a HIPAA compliance incident, and it’s important to prevent the information from being distributed further. It’s common for medical facilities of virtually every type (e.g., hospital, nursing home, hospice, etc.) to mistakenly submit records to medical legal analysis companies that include wrong-patient information. This encompasses both paper and electronic medical records. The practice of mistakenly transferring wrong records happens up to an estimated one-third of the time. Healthcare providers who need to submit medical records for review should be advised to incorporate this information into their compliance programs so they can be proactive in identifying the root cause of this issue and finding solutions to avoid the erroneous release of PHI. In the meantime, it’s a good practice for medical legal analysts to conduct a Wrong-Patient Check on every record they receive as a standard quality assurance procedure. Do you conduct a Wrong-Patient Check on your medical records? [Contact an expert](http://excelas.insivia.co/contact/) at Excelas to learn how. --- To work with Excelas: https://excelas1.com/contact. Site map for agents: https://excelas1.com/llms.txt.