SKILLED NURSING

Two recent Supreme Court decisions have altered the legal landscape

The Supreme Court levels the playing field for SNFs with two recent decisions.

CMS often imposes an enforcement action based solely on “guidance,” such as its State Operations Manual and “Interpretive Guidelines.” Legally, even as CMS acknowledged in an official memorandum, CMS may not cite a deficiency based solely on interpretive guidelines. A deficiency must be based on a regulatory violation. An example of a deficiency — and CMP —  based on CMS “guidelines,” not a regulation, is seen in Elgin Nursing and Rehabilitation Center v. HHS, No. 12-60086 (5th Cir. 2013) (Elgin).

In Elgin, a SNF was cited with “immediate jeopardy-level deficiencies” when surveyors claimed residents were served “soft-cooked” eggs. It did not matter that the residents wanted their eggs over-easy. When the provider appealed the deficiency and CMP, the ALJ upheld CMS’ determination. On further appeal, the board affirmed the ALJ decision. Undaunted, the provider appealed to the U.S. Court of Appeals for the Fifth Circuit, where CMS argued the court should afford “deference” to CMS’ interpretation of its regulation.

The court found that the alleged deficiencies were not deficiencies at all. Rather, they were interpretations of interpretations of a regulation that requires food to be cooked in a “sanitary” manner.

The court held, “Allowing deference to agency interpretations of ever more ambiguous regulations would allow the agency to function not only as judge, jury, and executioner but to do so while crafting new rules.”

In 2019, SCOTUS decided two cases that likely will impact appeals by SNFs.

DEFENSE TOOLS

Medical records and document management – to produce or not to produce?

In a webinar presented as part of the Senior Living Empower Hour by the Adelman Law Firm, 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.

EXCELAS NEWS

Excelas stay interviews with Beth Wilson

Kate Grimaldi, senior director of enterprise talent strategy for Paylocity in Chicago, has used stay interviews informally for several years. During the past six months, she has encouraged managers across the organization to incorporate light “stay questions” into their regular one-on-one meetings.Beth Wilson, Excelas’ new president, met with each Excelas, LLC team members for an Introductory session which incorporated some light “stay questions.”  The topics included:
-Tell me about yourself; and what do you want to know about me?
-When you log into work each day, what things do you look forward to most?
-What are you learning in your position?
-Why do you stay at Excelas?
-When was the last time you thought about leaving our team?
-What can I do to make your experience at Excelas better for you?
-What advice/thoughts can you share with me that might help me in my role as President?

Excelas’ team is going to Race for the Place

Race for the Place  is Sunday, June 4, 2023 – National Cancer Survivor Day – at Beachwood Place

The 5K run or 1 mile walk raises money to support free programs and services provided by The Gathering Place, which helps cancer patients, family and friends on the cancer journey.

To join our team, click on the button (below). Click REGISTER >> select join a team: Excelas 2023. If you can’t make the event yet want to support the cause, click on the donate button.

PERFORMANCE METRICS

Excelas, LLC April 2023 Performance Metrics

Excelas, LLC Performance Metrics as of April 30, 2023:
14,040 Records/Cases Reviewed
18,423,927 Pages Processed
376 Clients & Firms Supported
8,712 Hours of proprietary Zaxas software development
$1,045,492 investmenttmade in proprietary Zaxas software development

(Click on image to see which states are completed)

LATEST UPDATE

Excelas’ PREP Act Updates list summaries of relevant articles and selected court decisions, as well as additional recent court decisions, with hyperlinks for reference. We are continually updating cases as information becomes available. If you have insights to share, we welcome your contribution, with credit. The attached update is the most recent, including listings through early January 2023.