May a SNF continue to use  arbitration clauses in resident contracts?

Unless your state courts have ruled that state law prohibits the arbitration clauses, providers should be able to continue to use arbitration clauses in resident contracts. A number of state supreme courts have ruled that arbitration clauses in nursing home residency agreements are enforceable. Providers prefer arbitration over litigation because arbitration awards are most often lower than awards by a jury. 

CMS issued new skilled nursing rules, effective Nov.  28, 2016, which specifically banned the use of arbitration clauses in resident admissions agreements. However, the American Health Care Association and two nursing home providers filed a lawsuit to enjoin the Centers for Medicare & Medicaid Services from enforcing its ban. 

The court temporarily found for the providers, but it expressed discomfort in enjoining the ban, which it believed to be sound public policy: “As sympathetic as this court may be to the public policy considerations [that] motivated the [ban], it is unwilling to play a role in countenancing the incremental ‘creep’ of federal agency authority beyond that envisioned by the U.S. Constitution.”

Even so, the court left the door open for CMS in the future to show that it “could make a sufficiently strong showing that it had the regulatory authority to enact the [ban].”

This language coming from a U.S. District Court seems to indicate that arbitration clauses could still be on unstable ground in the future. Given President-elect Donald Trump’s stated distaste for expanding government regulations, his administration might not permit CMS to continue to push for the regulatory ban.  Moreover, the Trump administration could prevent CMS from appealing the district court decision.

Preventive policies are credited for lowering pressure injuries in hospitals by about half over the past decade, even as long-term care rates rose, a new analysis found.

In 2006, “facility-acquired prevalence,” which looks at new pressure injuries at the hospital or other acute-care settings, was at 6.2%. By 2015, it had dropped to 3.4%, per the International Pressure Ulcer Prevalence™ Survey. 

However, long-term care-acquired rates rose from 3.8% in 2013 to 5.4% in 2015.

Results were published in the Journal of Wound, Ostomy and Continence Nursing. 

Changes to the Five-Star Quality Rating System for nursing homes may be on the horizon under recommendations published by the Government Accountability Office in December.

Agency officials lauded the information made available by Nursing Home Compare and the Five-Star Quality Rating System but added that consumer usability needs to be improved.

In a move heartening to providers, the report also called for greater involvement of consumer satisfaction surveys. Operators have lobbied for years to have satisfaction survey findings included.

“We believe consumer satisfaction surveys could be a more direct measure of nursing home satisfaction,” report authors wrote.

The GAO also noted, however, that CMS has a lack of a “process to evaluate and prioritize implementation of improvements.” It charged the agency with creating one, along with a way to compare nursing homes on a national level.

The report reflects requests made in 2015 by Sens. Robert Casey (D-PA) and Ron Wyden (D-OR) inquiring about the reliability of the online ratings.

Long-term care providers delivered ringing endorsements of President-elect Donald Trump’s choice to lead the Department of Health and Human Services.

That’s because operators feel that Rep. Tom Price (R-GA), a former practicing orthopedic surgeon and fellow provider, will bring an empathetic eye toward healthcare administration.

“I have found Price to be supportive of the long-term care sector as he understands the unique role of long-term care and the patients we care for,” Cynthia Morton, executive vice president at the National Association for the Support of Long Term Care, told McKnight’s.

Another top lobbyist said that Price’s “actually delivering care and understanding the rehabilitation process will add insight and some uniqueness in that role.”

Price has been a strong critic of the Affordable Care Act, and what he has called excessive regulation.

The Medicare Payment Advisory Commission in December called for the elimination of market basket updates for skilled nursing operators in fiscal 2018 and 2019.

MedPAC commissioners said that a relatively unchanged industry should be given no inflationary payment upticks, and have its reimbursement system revised. 

Mike Cheek, senior vice president of finance policy & legal affairs at the American Health Care Association, told McKnight’s his group is concerned about MedPAC’s focus on fee-for-service margins. He also noted that this year’s recommendations were “more strident” than past years’. 

A vote on the recommendations is slated for January. 

When you ask people in this sector about the biggest staffing challenges ahead, responses often pour into familiar buckets.

Some will say administrators need better training and incentives. Others will insist that greater clinical abilities will be paramount. Some will add that frontline workers need fairer compensation.

These are all valid concerns. But focusing on the so-called worker bees ignores a larger challenge: the importance of finding the best future leaders. Here the stakes could not possibly be higher. The right people at the top can help open new doors and opportunities that currently don’t exist. The wrong choices will at best hold back operators — and in worst-case scenarios crash their firms while spreading ill will.

This observation is hardly an epiphany. Progressive steps are in fact already being taken. But so much more needs to be done, and it won’t be easy.

First and foremost, our future leaders will be tasked with thinking through — and perhaps dramatically altering — their organization’s mission. Put another way, these executives will need to determine the answer to this two-pronged question: What is our business and what should it be? Has there ever been a less certain time to contemplate such foundational matters?

Moreover, many current CEOs in this sector are nearing the end of their tenures. So it’s fairly apparent that CEO succession will soon become a common challenge.

For an excellent primer, you can do far worse than Ram Charan’s article in the December Harvard Business Review, titled “The secrets of great CEO selection.”

Charan argues that good judgment will be critical here. He notes that board directors should identify the two or three distinct capabilities their next CEO must have.

He adds that directors should stay flexible and allow for flaws in the chosen candidate, with the idea that competence gaps may be filled by other executives or corrected with coaching.

Of course, Charan’s guides won’t ensure that your next CEO is a huge success. But they can  help you find the best possible hire. And from the looks of things, many firms in this sector will need all the help they can get.

The healthcare industry is projected to need 1 million new nurses within five years, but most settings are finding the wait between placing a help wanted ad and a hiring decision to be far too long.

The reasons are many and complex, according to new research by Pew Charitable Trust’s Stateline. Based on its extensive review of occupational data, Pew determined it takes an average of 49 workdays to fill a typical healthcare job opening. The hiring lag isn’t due to a lack of candidates, many of whom face mounds of college debt and sparse offers. 

“Hospitals, nursing homes, home care agencies and doctor’s offices, like a lot of employers across the country, have a specific resume in mind,” Stateline observed, meaning many settings are looking for candidates with specific training, skillsets or specialties while lacking the money required to attract such candidates.

Among the long-term solutions to resolving such critical pay issues are Medicare and Medicaid fee schedules that support competitive wages, and taking steps to stem attrition by improving working conditions, Pew researchers said. 

Healthcare settings that substitute lower-level staff for registered nurses do so at their own peril, according to an extensive review of nurse skill mix at more than 240 hospitals in Belgium, England, Finland, Ireland, Spain and Switzerland.

Researchers examined discharge data to develop key outcome measurements in patient mortality, patient ratings of care, care quality, patient safety, adverse events and nurse burnout and job dissatisfaction. Results appeared in the November 15 issue of BMJ Quality and Safety.

Overall, richer nurse skill mixes (determined by every 10-point increase in the percentage of professional nurses among all nursing staff) were associated with lower odds of mortality, lower odds of low hospital ratings from patients and reports of poor quality, poor safety grades and other less satisfactory outcomes. Conversely, each 10-point reduction in the percentage of professional nurses was associated with an 11% increase in the odds of death. 

Substituting one nurse assistant for a professional nurse for every 25 patients was associated with a 21% increase in the odds of dying.

Researchers concluded that diminishing the richer skill mix by replacing professional nurses with less qualified staff could “contribute to preventable deaths, erode quality and safety of hospital care and contribute to hospital nurse shortages.”

We just finished our state and federal survey and received one federal citation. It is about dignity — are you familiar with this regulation, and if so, can you help me research? 

Congratulations on receiving only one citation! Dignity, also known as F-Tag 241, is in the top 10 most cited.

The regulation states that the facility must promote care for residents in a manner and in an environment that maintains or enhances each resident’s dignity and respect in full recognition of his or her individuality.  

Dignity pertains to a resident’s interactions with others, and makes sure that staff carry out activities that assist the resident to maintain and enhance his or her self- esteem and self-worth.  

Here are some examples that could have gotten you in trouble:

➢ Grooming — Residents are to be groomed how they wish to be. Examples: hair combed, beards shaved/trimmed, nails clean/clipped.  

➢ Respecting private space and property — Don’t post signs (for clinical reasons). 

➢ Names — Not referring to an individual by the name of his/her choice.

➢ Clothing — Individual preferences, appropriate for weather conditions; also, use their own clothes. 

➢ Labeling of clothes — In a way that respects their dignity; and cover catheter bags.

➢ Dining:

• Plastic and paper dishware are discouraged.

• Bibs — Clothing protectors used instead of cloth napkins;  or resident’s choice.

• When the resident needs to be assisted with feeding, the staff member should sit down with the resident.

• Staff should interact with the residents and not with each other when assisting during meals.

A skilled nursing facility with 100 occupied beds can expect to pay roughly $235,000 in liability expenses in 2017, according to the recently issued Aon Global Risk Consulting/American Health Care Association 2016 Long Term Care General Liability and Professional Liability Actuarial Analysis.

The report represents 31 providers and 224,000 long-term care beds, including skilled nursing, assisted living, home health, rehab and independent living.

Study authors project liability costs to increase to $2,350 per bed in 2017, with long-term care loss rates increasing by 6%. That’s compared to a 5% increase reported for the past three years.

The analysis included profiles of 17 states, with Kentucky and Florida landing on the high end, with projected loss rates for 2017 of $7,500 and $7,400, respectively. Minnesota had the lowest projected loss rate among the profiled states at $480. 

Providers should “understand what drives the potential for high liability costs,” and manage risk accordingly, said Christian Coleianne, associate director and actuary with Aon. 

The report also showed the frequency of liability claims to jump 4% in the coming year. That increase reflects a “deteriorating claims environment,” the report’s authors said. 

The severity of claims was also projected to increase 2% in 2017, with a forecasted severity of $218,000 per claim.

Coleianne said providers can use their organizations’ incident tracking to conduct internal benchmarking.

“Increasing claims frequency for an individual provider or location can signal a need to revisit risk management best practices,” Coleianne said. “Consistent tracking of incident reports can lead to insights on the effectiveness of risk mitigation and early warnings on developing risks. This tracking can also be used to compare locations to identify better performing facilities and those facilities where additional risk management attention is needed.”