The National Labor Relations Board established the new joint-employer standard under a rule that takes effect for all employers — including both those with and without union employees — on Feb. 26, 2024. Not only does the new joint-employer rule significantly broaden the board’s definition of “employer,” it also increases potential liability and exposure for facilities when they engage staffing agency caregivers or other third-party workers.

Critically, under the new rule, the board can find that a facility is a joint employer with another entity under many circumstances. This may include circumstances where a facility reserves some authority to determine an essential term or condition of employment for the outside caregivers or workers, even if the facility never exercised such authority, or where a facility exerts so-called “indirect control” over the workers’ working conditions.

The board will apply the new joint-employer rule when investigating unfair labor practice charges and union election petitions, as well as when determining whether an entity has any potential collective bargaining obligations. The board’s actions also are watched carefully by other state and federal agencies that investigate and address employment-related issues, such as agencies responsible for handling employee wage payment and unemployment compensation claims and employer tax collection. The board’s new rule may result in other agencies expanding their similar rules for finding joint employer liability.

The development of this new joint-employer rule is just the most recent step in a long history of back-and-forth changes that seem to happen under each change in presidential administrations.  

Most recently, the board under the Trump administration issued a formal rule in 2020 that included a more employer-friendly joint-employer test. That 2020 rule reestablished a narrower threshold for determining joint-employer status under the NLRA, requiring parties trying to prove such liability to show that an employer exercised “substantial direct and immediate control” over workers’ terms and conditions of employment. 

However, soon after changes to the board’s make-up that occurred under the current Biden administration, the board began taking steps that resulted in the new rule that goes into effect on Feb. 26 — assuming there are no successful legal challenges that stop its implementation.

How it works

Once in effect, the board will find a joint-employer relationship if the “employers share or codetermine those matters governing employees’ essential terms and conditions of employment.” 

Sharing or codetermining working conditions will include both reserving the right or having authority to control or actually controlling any of the employees’ essential terms and conditions of employment. Essential terms and conditions of employment include: wages, benefits and other compensation; hours of work and scheduling; assignment of duties to be performed; supervision of the performance of duties; work rules and directions governing the manner, means and methods of the performance of duties and the grounds for discipline; tenure of employment, including hiring and discharge; and working conditions related to the safety and health of employees.  

As you can see, under these very broad categories, for highly regulated long-term care facilities that are explicitly required to maintain minimum staffing levels and ensure all onsite workers comply with health, safety and other care requirements, joint-employer status might be found with practically any third-party worker who provides onsite services. 

Under the prior joint-employer standard, while a finding of joint-employer status between a facility and its agency or vendor workers was possible, the board looked for evidence of significant, direct control over the terms and conditions of the worker’s employment. 

This was still a real risk for long-term care facilities, particularly for onsite, agency-employed caregivers, where a facility inevitably must exercise authority to supervise or direct such workers. Under the new rule, a finding of joint-employer status may be as simple as proving that a facility has health and safety rules that apply to all onsite workers. 

Facilities of all sizes which are already the target of union organizing efforts may find themselves subject to brand new collective bargaining obligations and may have greater exposure for unfair labor practice violations. 

Now is the time for facilities to consider their third-party worker relationships and contracts with staffing agencies and other entities to look at potential joint-employer liability issues. Review your contracts and agreements with all entities that supply workers who work in your facilities.  Carefully consider whether services are necessary for current business operations, whether the services can be consolidated with fewer providers, whether work needs to be performed onsite or at the facility’s specific control or direction, etc. 

If control over the workers is unnecessary, consider eliminating open-ended contract language that reserves all rights to direct and control the workers to the facility. If the workers are necessary, make sure facility staff know whether direct or indirect control and direction of the workers’ tasks is required under the specific circumstances and train managers and supervisors accordingly. 

The risk of a joint-employer finding will be necessary under many circumstances involving onsite agency caregivers, but for other workers, it may not be and facilities should be considering the issue for all work performed onsite. Taking the time to do so now may help avoid major potential risk of a finding of joint employer status down the line.  

Neville M. Bilimoria is a partner in the Chicago office of the Health Law Practice Group and member of the Post-Acute Care And Senior Services Subgroup at Duane Morris LLP, as well as the Cannabis Law Practice at Duane Morris LLP; nmbilimoria@duanemorris.com.

Jennifer Long is a Special Counsel in the Chicago Office of the Employment, Labor, Benefits and Immigration Practice Group at Duane Morris LLP, JLong@duanemorris.com.  Neville M. Bilimoria is a partner in the Chicago Office of the Health Law Practice Group and member of the Post-Acute Care And Senior Services Subgroup at Duane Morris LLP.

The opinions expressed in McKnight’s Long-Term Care News guest submissions are the author’s and are not necessarily those of McKnight’s Long-Term Care News or its editors.

Have a column idea? See our submission guidelines here.

 I remember one Christmas, I was probably 7 years old, I wanted a child’s toolbox full of working tools like a kid-sized hand saw, screwdriver, wrench and a hammer. They all came in a metal toolbox that had a latch and a handle so you could carry it around.

I must have seen it in a store and asked for it, like Ralphie did with his Red Ryder BB gun. Lo and behold, on Christmas morning, there it was. I can still feel the elation of that moment. I also remember that in short order I was in the garage sawing up old cardboard boxes and making stuff that I proudly showed my parents. 

I hope you have memories like that. Just a few months before my mom passed away a few years ago, we all got out the photo albums and 8 mm films and reminisced about those days. It was a precious time I’ll never forget. Remember Clark Griswold in the attic. 

2023 has been a difficult year. The regulatory onslaught was brutal. But we are surviving. These challenges have also made me nostalgic. I often think about the day I made what I thought would be a temporary switch from acute care to long-term care. I became an MDS coordinator. A competent ICU step down nurse, I quickly realized I was out of my element in this new role.

In 2001, the MDS nurse was something new. PPS had just been initiated a few years earlier and the industry was still reeling. The MDS became electronic with that change and was required to be submitted to the state, via a modem. Do you remember the sound those things made? 

Quality Indicators, now quality measures, were new as well. No one really knew what was going on. Someone had to oversee it all. And so, the MDS coordinator position was born. 

Today there are a litany of resources available for the MDS nurse to rely on for advice and support. It is a wonderful thing to watch online communities take root and grow into vibrant discussions. Organizations like the American Association of Post-Acute Care Nursing (AAPACN), and others, have become the gold standard for educational opportunities and certifications. 

In those days, however, unless you knew someone who was also an MDS coordinator, there were relatively few resources available to answer questions and offer guidance. My paperback MDS manual was only a few hundred pages long and was scant on coding tips and clarifications. But those were the good old, “less complicated” days, remember? 

I also remember through the years those who helped me grow, many of whom have become career long friends. I remember my first administrator who had confidence that I could do the job. 

I remember several others I respected who came along, offered guidance, helped me gain confidence, and shed light on previously unrealized abilities. My initial nursing career plans did not include long-term care and these incredible people are the reasons I now do what I do. 

I came to understand through their compassion and care for this patient population, that the MDS and all it represents, is a powerful tool for good, that when a community of caregivers surround it and it is properly utilized, our residents are the beneficiary. What a joy!

As I think back, I am grateful for Randy Lewis, Joy Powers, Sandy Deakins, Mary Marshall, Diane Brown, Mendee Rock, Linda Estes, Manning McGraw, Sumit Malhotra and the many others who carried me along like a leaf on the river of this unexpected career.

Thank you also to McKnight’s Kimberly Marselas for reminding us of what it was like to have good friends by sharing this year’s Amazon ad, “Joy is shared,” in a recent article. I have a lump in my throat every time I watch it.

The RAI process is a wonderfully formidable task that cannot be accomplished alone. I hope that you have a circle of friends who help you grow and care about the MDS tasks you accomplish each day. Their support is indispensable. The outcome of those relationships will produce remarkable results, especially for the residents you care for.

Gracing our residents with those outcomes is the reason most of us do what we do in long term care.  Clarence the angel said it best to George Bailey in “It’s a Wonderful Life”: “No man is a failure who has friends.” 

I feel that intensely as I reminisce. How about you? 

Joel VanEaton, BSN, RN, RAC-CT, RAC-CTA, is a master teacher and the executive vice president of PAC Regulatory Affairs and Education at Broad River Rehabilitation.

The opinions expressed in McKnight’s Long-Term Care News guest submissions are the author’s and are not necessarily those of McKnight’s Long-Term Care News or its editors.

Have a column idea? See our submission guidelines here.

Every long-term care resident deserves to enjoy these festivities to the fullest without the risk of acquiring a respiratory virus that may land them in the hospital, or worse. As highlighted during the pandemic, what happens in the outer community is the major driver of viral spread into long-term care centers. So, it is incumbent upon all of us to ensure that our population is equipped to fight off common respiratory viruses, such as influenza, RSV and COVID-19; however, the challenge lies in convincing our nation’s seniors, healthcare workers, and the general public to roll up their sleeves and get vaccinated. 

As a geriatrician and current chief medical officer at the nation’s largest organization representing long-term and post-acute care centers, I have witnessed both the devastating impact these viruses can have and the incredible strides the global medical community has made in developing effective vaccines. We know that these vaccines may not necessarily prevent infection, but they do reduce the risk of severe illness and a potential trip to the hospital or worse — death. 

A need to double-down

Despite these major advancements and historic milestones, we are seeing a decline in the number of individuals willing to receive these vaccines. “Vaccine fatigue” and hesitancy are rampant throughout our society but especially when it comes to the COVID-19 and RSV vaccines. 

A recent KFF survey found that more than half (51%) of all adults say they “definitely” or “probably” will not get the latest COVID-19 shot and two-thirds of the general public are not worried about getting the virus. Meanwhile, only 16% of adults 60 years and older report having received the RSV vaccine. These surveys are consistent with what we’re seeing unfold. 

Recent data from the CDC shows low vaccination rates in the community. While we are seeing the same trends in long-term care settings, it is encouraging that our uptake is higher than in the community. Nonetheless, we need to double-down on our efforts to increase those numbers. 

Much has been written about challenges with vaccine availability or why we should hold more clinics to vaccinate our residents. These are not the reasons we’re seeing slow uptake. While initially the new COVID-19 vaccine was hard to access because it was first sent to commercial pharmacies serving the general public, the vaccine is now more widely available through the pharmacies serving nursing homes. National regulations require nursing homes to educate and offer every resident and staff member the COVID-19 vaccine. 

Harmful ripple effects

The primary issue is that the majority of residents or their family members who are making decisions for them either no longer believe the COVID vaccines are necessary or express fear and skepticism about getting the new shots. We are hearing similar concerns related to the RSV vaccine, despite evidence that it is most effective among the elderly, individuals with chronic diseases, and those who live in a long-term care setting. 

I’m also concerned that this vaccine fatigue and hesitancy is impacting interest in the influenza vaccine, which is lower this year than in pre-pandemic years. 

In addition, there are administrative and insurance reimbursement challenges that need to be addressed. In long-term care, we need vaccines to be readily available to order when a current resident or new admission wants the vaccine. Additionally, those orders need to come with a guarantee that we, as providers, or the pharmacy receives reimbursement from all insurance providers — not just Medicare. Cutting the red tape around reimbursement can help ensure that long-term care providers have access to the vaccine and remain focused on encouraging uptake. One way federal policymakers could take this a step further would be to offer a pool of free vaccines available to long-term care providers. This would eliminate the administrative burden and streamline access to vaccines for residents and staff. 

While free vaccines would be ideal, most importantly we need effective and consistent public health messaging, which is the major driver of the current vaccination rates. We need every provider in every healthcare setting — from the physician’s office, commercial pharmacy, adult day care, hospital and beyond — to discuss the importance of the vaccines with the elderly and their family and address each person’s concerns. 

We’ve come a long way, but … 

Unfortunately, many new admissions arrive to a nursing home or assisted living community without having been offered or received the vaccine during their encounters with clinicians in other healthcare settings. 

Using nursing homes as a stopgap to vaccinate all individuals is ineffective and insufficient. Seniors and families need to be offered the vaccine before they’re admitted to a long-term care facility — and at every subsequent interaction, especially since primary healthcare providers are seen as trusted advisors. Long-term care staff can then help pick up those missed or continue to work to convince hesitant or skeptical residents to get vaccinated. By increasing our education efforts throughout the healthcare community, we can work together to encourage more individuals — residents and staff alike — to get vaccinated.

We’ve come a long way since 2020: COVID-19 is no longer a pandemic, and the mortality rate among nursing home residents remains at record lows. Vaccines are a major reason why, but after three years of battling this virus, Americans have a hard time acknowledging vaccines are still necessary. 

Nursing home providers cannot shoulder the responsibility of combating these deeply held beliefs all on their own. As a country, we need to focus on collectively increasing vaccination rates among the general population and avoid isolating or placing blame on specific communities or individuals. 

Long-term care providers should be applauded for achieving higher vaccination rates than in other settings, but we need a collective endeavor to take this further. 

By having the entire healthcare community and public health system collaborate, we can overcome vaccine skepticism and hesitancy and achieve even better vaccination rates among our residents. In turn, we can better protect our most vulnerable community members. 

David Gifford, MD, M.PH, is the chief medical officer of the American Health Care Association and the National Center for Assisted Living (AHCA/NCAL). 

The opinions expressed in McKnight’s Long-Term Care News guest submissions are the author’s and are not necessarily those of McKnight’s Long-Term Care News or its editors.

Have a column idea? See our submission guidelines here.

One I saw was a wool throw blanket that looks like a piece of meat. Now I know my friends in Kansas love their beef, but I cannot imagine any of them wanting to be draped in a flannel steak.

I saw an ad for a Christmas screaming goat toy. Now I find the YouTube video of the fainting goats hysterical, but I am sure I’d go insane if my grandchild was playing nonstop with a screaming goat toy. 

Then I saw an ad for a set of holiday dad joke pencils. While my husband probably would love them, the rest of us would go nuts as he read them to us over and over and over. 

And who wouldn’t want a set of “Jingle Butts” — hand blown glass ornaments that look like a person’s behind but in festive colors. I guess you can combine it with a set of festive beard ornaments. (Yes, that is a real thing.)

One gift that boggles my mind is the padded toilet seat. I mean, how long are you going to be sitting on the toilet? Do you think your legs are going to go to sleep? Hasn’t anyone ever talked to you about bran?

Then there is the assortment of flavored candy canes that seem just so yummy!!! Sour pickle flavored candy canes, ketchup flavored candy canes, sour cream and onion flavored candy canes, hotdog flavored candy canes, Dante’s inferno candy canes and bacon flavor candy canes. (OK, maybe the bacon ones would be worth a try.)

Of course, Hairball Kitty is a great gift because having a fake kitty hacking up hairballs is so much fun. 

I read that an often-given hated gift is a diet book. Like seriously, a diet book when you have all this delicious, delectable holiday food. Who is cruel enough to give this as a gift? Satan? 

The holiday drama emergency ambiance candle might be a good gift when your dinner guests start talking politics. However, the public toilet survival kit may be a gift I get myself. Yes, I suffer from public restroom anxiety disorder. 

But the very best gift is all of you, who dedicate your lives to making this world a better place every day. Thank you for your sacrifices large and small, for your dedication, and for caring. That’s the best holiday gift ever!

Just keeping it real grateful,

Nurse Jackie

The Real Nurse Jackie is written by Jacqueline Vance, RNC, CDONA/LTC, Senior Director of Clinical Innovation and Education for Mission Health Communities, LLC and an APEX Award of Excellence winner for Blog Writing. Vance is a real-life long-term care nurse. A nationally respected nurse educator and past national LTC Nurse Administrator of the Year, she also is an accomplished stand-up comedienne. The opinions supplied here are her own and do not necessarily reflect those of her employer or her professional affiliates.

The opinions expressed in McKnight’s Long-Term Care News guest submissions are the author’s and are not necessarily those of McKnight’s Long-Term Care News or its editors.

Have a column idea? See our submission guidelines here.

A contract exclusion details the medications and treatments that are not included in the levels of a managed care contract. Are exclusions a good thing or bad thing? 

That depends on us, the provider. If we identify and capture these exclusions and bill the health plan for them, then exclusions are great. If we are unaware of the exclusions or are unable to identify them, then they’re not so great. 

On average, managed care companies are the payor source for half of Americans with Medicare (via Medicare Advantage, or MA, plans), and the way our post-acute care facilities get paid is now more complex. When most of a typical census was covered by traditional Medicare, fee for service norms made reimbursement relatively predictable and reliable. 

Most managed care patients are now covered by a health plan-specific contract with multiple reimbursement stipulations, such as contract exclusions, that require careful attention. Capturing every contract exclusion is an important step for getting full reimbursement. 

Contract exclusions and the pressure of leveled contracts

In recent years, most health plans have shifted to using Medicare Advantage contracts that define levels of care (usually four) that specify a per diem reimbursement rate for each level. The exclusions list details the medications and treatments that are not part of the contract levels. These leveled contracts, with exclusion lists, put pressure on providers to adapt their workflow to accommodate managed care reimbursement rules. 

No two contracts look the same, which adds insult to injury with an already overwhelming and complex new challenge for providers. Here are four steps to optimize your chances for full reimbursement. 

Step 1: Start with the contract terms

When the contract is being created, negotiate with the plan to make the exclusions list larger so your go-to meds and treatments can potentially be covered. Contracts can specify rules for what is covered or excluded and how to request coverage for excluded items. 

Know what the plan’s rules are for levels and for items on the exclusions list, and make sure your team knows them verbatim. These early steps set the stage for operationalizing your managed care contracts. 

Step 2: Capture and communicate 

This is where the action is. We like to use the term “operationalize” because working successfully with managed care payors is exactly that: a precision operation. 

Ideally, every member of a care team has access to the health plan contracts so when a patient’s condition requires a change in their care level or requires something on the exclusions list, staff alert each other, and the correct action occurs in real time. Staff note a change, communicate with each other, and then request authorization from the plan. Capturing exclusions requires this degree of teamwork, daily.   

Step 3: Have appropriate infrastructure to scale 

All the above sounds pretty simple when only a couple patients are covered by managed care contracts. For many, if not most of us, those days are fading into history. We now have substantial numbers in our managed care census and it’s a struggle to operationalize many different contracts every day. 

A best practice for scaling up is to have a dedicated case manager and appropriate technology that empowers the care teams with the right tools to never miss a beat. A case manager and tailored technology helps a team capture the exclusions, get authorizations for timely care, and set up the facility for proper reimbursement. 

Step 4: The unsung heroes complete the picture

The care teams do the heavy lifting. This is truer than ever with daily life in the hallways. But the final step in the operationalizing of managed care contracts is in the front office. All the work up to this point has to be converted into a claim for submission to the plan. Again, it sounds simpler than it really is.

It’s so easy to compile a UB-04 that looks complete, yet it misses level changes or includes medications on the exclusion list but will be denied because the authorization was not received. An all-star business office manager might be able to backtrack and clarify with staff, but what about when dozens of claims are needing to be processed and submitted? 

Step 4 is the non-clinical but no-less crucial final piece of full reimbursement. Whether this happens from consistently excellent analog best practices, or if it’s the final step of a case manager-led, software-supported operationalization, the result needs to be the same. This is the new reality for winning with managed care payors.  

Susie Mix, BS, MBA, NHA, is the founder and CEO of Mix Solutions Inc. She has more than 20 years of experience in the post-acute care industry. She has firsthand experience running facilities and holds the long-term care mission close to heart. Her experience working in the field, coupled with her time spent at a health plan provides a unique blend of knowledge that helps her provide solutions for each client. Mix has been doing managed-care consulting with facilities since 2009. She can be reached at susie@mixsolutionsinc.net.  

The opinions expressed in McKnight’s Long-Term Care News guest submissions are the author’s and are not necessarily those of McKnight’s Long-Term Care News or its editors.

Have a column idea? See our submission guidelines here.

The red bird flew to the transom and peered in at me. It sat there as I sobbed. I looked up, and it looked at me as if to say, ‘It will be OK.” Many times, the red bird would appear when I was going through times of sadness or deep reflection.

I remember once, as I strolled through the botanical gardens on my mother’s birthday, the red bird’s appearance. I stopped at a beautiful planting of dahlias, engrossed in thought as dahlias were my mother’s favorite flower. I felt the sensation of being watched, and there was the red bird. It was sitting on a twig, watching me. It stayed there for several minutes and then flew away. It reappeared when I entered the rose garden, my mother’s second favorite flower. 

Another time, I had been painting and suddenly was needed on an unscheduled Zoom call. I hurried in and grabbed the first thing in my closet, which happened to be my mother’s favorite blouse. I threw it over my painting clothes and jumped on the call. Shortly afterwards the red bird landed on the deck, walked over to the French doors, peered up at me and started squawking loudly, staring right at me. The red bird was so loud that those on the Zoom call asked what the noise was about. 

Several weeks after my father passed, I was sitting on my back deck, once again consumed in grief. The red bird landed on the chair next to me as I gazed out on the body of water my home looked upon. The red bird was calm, peering at me, then gently flew to my shoulder. It sat there only for a few seconds, but I swear it gave me a kiss on the check. 

The red bird continued to be a healing presence to me as I worked through my grief and pain of losing both parents in a relatively short time. As time marched on, the red bird would appear on meaningful dates. Its beauty and meaning touched me deeply each time I encountered it. 

Several years later, I moved to another state where the red bird does not migrate or live. I knew that the red bird would not appear any further to me. In October, my husband and I rented through a vacation website a condo at the beach to celebrate our wedding anniversary. 

We arrived late at night and did only what was needed to unpack, pushing out everything until the next day. In the morning, I discovered the coffee pot and soon had that precious dark fluid brewing. Once done, I reached into the cupboard and grabbed the closest mug. I almost dropped it as I turned the mug to look at the front. There was the red bird.

You might think the red bird moments were coincidental; maybe they were. I know that every time the red bird appeared, it was a time when I was feeling lost, or I was needing support. 

As I have shared my stories of the red bird with leaders, their faces often soften, and their eyes glisten. The red bird, for me, was a connection to the profound loss of my parents. One leader I spoke with quietly said, I wish I had a red bird to feel connected again. 

Did the red bird find me, or was I looking for it in my longing to seek meaning and understanding? I believe it is a little of both. What I know is that the red bird symbolizes the deep need we all carry in our hearts — the need for connection. 

This time of the year is a time for reflection. What is your red bird that connects you again or more deeply to purpose and meaning? 

Martie L. Moore, MAOM, RN, CPHQ, is the President/CEO of M2WL Consulting. She has been an executive healthcare leader for more than 20 years. She has served on advisory boards for the National Pressure Injury Advisory Panel, American Nurses Association, Dean’s Advisory Board at the University of Central Florida College of Nursing and Sigma, International Honor Society for Nursing. She was honored by Saint Martin’s University with an honorary doctorate degree for her service and accomplishments in advancing healthcare.

The opinions expressed in McKnight’s Long-Term Care News guest submissions are the author’s and are not necessarily those of McKnight’s Long-Term Care News or its editors.

Have a column idea? See our submission guidelines here.

My gosh, it was impressive, the way he appeared to defy every universal law of physics just to stay upright and nimble on his spindly little popsicle stick legs. “It’s a miracle, a true-blue spectacle,” I whispered to myself in awe and envy. “Could he be magic?” 

I’m similarly astonished by Mick Jagger, 80, and Paul McCartney, 81, who remain impervious to the ravages of time, and are able to still tour and perform at a high level without making a mockery of themselves. Tony Bennett continued to amaze and delight up until age 95, long after his diagnosis with Alzheimer’s. 

People like Barry, Mick, Paul and Tony make things tough for other seniors, and for me as I approach that time of life, because they skew the curve. Getting old should mean the pressures to achieve drop away, but after watching them onstage, I feel nothing but the growing panic of high expectations. Their performances make 85 seem like the new 70, but for most of us, that won’t stop 70 from feeling like 85. 

Fast forward a few years to when I’m your rehab patient, I’m already dreading the day I hit the wall and tell the therapist I can’t possibly take another step. Instead of reacting with acceptance and empathy, she’ll probably respond, “Of course you can. Don’t be such a wimp. I just saw Barry Manilow do it in Vegas, and he’s 100.” 

Actually, I suspect the secret to their unnatural longevity is wrapped around the self-sustaining nature of performance itself—the nurturing elation of feeling fervently loved and valued by their audiences. Even as my own pastor father aged into his mid-80s, I could see his energy spike and years drop from his face every time he stepped into the pulpit to deliver a sermon to a church full of true believers. When he was preaching, he was plugged in to the source, and it was a beautiful thing to watch.

You probably see this in your facilities every day, especially if you’re blessed with a great activity director who understands how to give each resident the opportunity to express themselves and be valued for it. Even just encouraging someone to tell you a story from their past, and responding to it positively and with presence, can offer them the sustaining warmth of an appreciative audience.

But I guess my main point is that while I don’t have a band, pyrotechnics or a literal stage, writing this column is also a performance of sorts. So as I enter my final years, your passionate loyalty and glowing feedback will be more critical and nourishing with each passing day. In other words, you hold my quality of life in your hands, and can only ensure my continued vitality by responding positively and passionately to my work. 

That means that in the absence of a literal performance space, and instead of screaming and waving glowsticks, you’ll each need to inundate the McKnight’s editorial team with emails, texts, social media posts and phone calls extolling my writing and rhapsodizing about how it has changed your lives for the better. 

Share from your hearts. Don’t hold back. Because my life depends on it, and I can’t smile without you.  

Things I Think is written by Gary Tetz, a two-time national Silver Medalist and three-time regional Gold and Silver Medal winner in the Association of Business Press Editors (ASBPE) awards program, as well as an Award of Excellence honoree in the APEX Awards. He’s been amusing, inspiring, informing and sometimes befuddling long-term care readers worldwide since the end of a previous century. He is a writer and video producer for Consonus Healthcare Services in Portland, OR.

The opinions expressed in McKnight’s Long-Term Care News guest submissions are the author’s and are not necessarily those of McKnight’s Long-Term Care News or its editors.

Have a column idea? See our submission guidelines here.

These consequences underscore not only the urgency in addressing staffing challenges within inspection agencies, but also the compelling need for comprehensive reform within Centers for Medicare & Medicaid Services programs reliant on survey data. This reform is imperative to ensure fair, accurate and timely assessments that prioritize the safety and care standards crucial for nursing home residents and providers.

The consequences stemming from delayed surveys impact the financial landscape as well. For many nursing homes, surveys represent an avenue for impartial third-party feedback, which they integrate into their Quality Assurance and Performance Improvement (QAPI) processes. However, the flip side reveals a concerning reality: Past poor survey results, which never expire, exert lasting repercussions. These repercussions include less ability to refinance, loan defaults, exclusion from preferred networks, and diminished Five-Star ratings — which subsequently result in decreased occupancy rates.

Taking a bird’s-eye view, significant variations exist in the intervals between annual surveys and certifications across states. In New Hampshire, the average stands at a low of 321 days, while Hawaii reports the highest at a staggering 1,507 days. The national average falls at 530 days, with a few alarming outliers (Idaho, Kentucky, Maryland) in the 1,000-plus day range.

However, another concern lies in the incomplete narrative presented by these averages. State-based survey teams cover specific geographic areas, and survey timelines are often inconsistent across those areas, which is reflected within states. As an example, Massachusetts has a statewide average of 501 days between surveys. Yet examination at county levels reveals substantial discrepancies: Plymouth County records an average of 768 days between surveys, while Suffolk County experiences significantly shorter intervals at 357 days.

As highlighted in my previous report in McKnight’s Long-Term Care News, the occupancy rates in nursing homes exhibit a direct correlation with Five-Star ratings, and the Health Inspection component plays a pivotal role, essentially “wagging the dog” within the Five-Star system. A negative survey doesn’t just result in immediate repercussions; it has a prolonged impact due to the extended lag time between surveys.

Consider this: Distressed nursing homes often undergo acquisition and implementation of a “turnaround” team striving to enhance staffing, clinical outcomes and compliance. Despite measurable improvements in these areas, often reflected quarterly on Medicare.gov, their efforts encounter a roadblock. They face an agonizing wait for a new survey to uplift their Health Inspection rating. However, the waiting period for a new survey paints a starkly different picture across states: Virginia at 600 days, California at 680 days, and Maryland at an alarming 1,205 days.

One might reasonably assume that nursing homes on the Special Focus Facility (SFF) candidate list would undergo more frequent surveys. However, reality paints a different picture. Despite being on the proverbial “watch list” as SFF candidates, facilities in 37 states face, on average, an additional 90 days of waiting compared to non-candidate facilities. Shockingly, in 10 states, SFF candidates endure survey intervals over 200 days longer than their non-SFF candidate counterparts.

This discrepancy in survey frequency feels like not only an added punitive measure, but also a discouragement against prioritizing and enhancing quality improvement initiatives. The extended waiting period for surveys in SFF candidate facilities seems contradictory to the intended purpose of the designation.

I am urging CMS to critically assess the impact of staffing shortages on the nursing home industry, both in terms of quality of care and financial viability. I strongly advocate for a reconsideration of the Health Inspection domain calculation when survey intervals exceed 365 days. One potential solution is to reassess the inclusion of the oldest survey cycle and either replace it with the state average or utilize data from cycle one and cycle two exclusively.

Another consideration could involve reevaluating the entire Five-Star rating system, perhaps by temporarily suppressing the Health Inspection rating to avoid consumers misattributing a poor showing to the nursing home provider rather than the state agency. It’s imperative to ensure that any adjustments maintain clarity and accurately reflect performance without making unsubstantiated suggestions of subpar nursing home quality.

The fundamental question that demands attention is the correlation between survey results and the actual quality of care provided in nursing homes. While the Five-Star Health Inspection and Quality Measure domains exhibit little or no correlation, it’s crucial to explore other metrics that may more accurately depict quality.

The pressing inquiry revolves around determining the optimal survey interval. Are annual surveys sufficient to drive improved outcomes? Government agencies often assert that extended survey intervals lead to compromised care, yet we seem to lack empirical evidence to substantiate this claim. The absence of analytical insights in this realm is striking, given the wealth of available data that could guide our understanding.

We face a gap in analysis that could serve as a beacon to navigate these critical questions. There’s a substantial need for comprehensive research to decipher the true relationship between survey results and the quality of care provided in nursing homes.

Steven Littlehale is a gerontological clinical nurse specialist and chief innovation officer at Zimmet Healthcare Services Group.

The opinions expressed in McKnight’s Long-Term Care News guest submissions are the author’s and are not necessarily those of McKnight’s Long-Term Care News or its editors.

Have a column idea? See our submission guidelines here.

We came to you at the beginning of November with exciting news that three new caregiver training CPT codes were finalized for calendar 2024.

Wow, did the inquiries come in!

Folks are clearly thinking about how they can provide these services and I am here today to answer the top questions I have received from you all since that release.

Let’s start with the basics.

Question

What are the new CPT codes and how are they defined?

Answer

97550 — Caregiver training in strategies and techniques to facilitate the patient’s functional performance in the home or community (e.g., activities of daily living [ADLs], instrumental ADLs [iADLs], transfers, mobility, communication, swallowing, feeding, problem solving, safety practices) (without the patient present), face-to-face; initial 30 minutes.

97551 — Each additional 15 minutes (List separately in addition to code for primary service).

97552 — Group caregiver training in strategies and techniques to facilitate the patient’s functional performance in the home or community (eg, activities of daily living [ADLs], instrumental ADLs [iADLs], transfers, mobility, communication, swallowing, feeding, problem solving, safety practices) (without the patient present), face to face with multiple sets of caregivers. 

Question

What is the “skill,” to say what does my intervention need to include and what must my documentation support to use these?

Answer

During a skilled intervention, the caregiver(s) is trained using verbal instructions, video and live demonstrations, and feedback from the qualified healthcare professional on the use of strategies and techniques to facilitate functional performance and safety in the home or community without the patient present. 

Skilled training supports a caregiver’s understanding of the patient’s treatment plan, ability to engage in activities with the patient in between treatment sessions, and knowledge of external resources to assist in areas such as activities of daily living (ADLs), transfers, mobility, safety practices, problem solving and communication.

Question

Do I need to identify this area of care on my treatment plan?

Answer

Yes, the expectation that a patient-centered treatment plan should appropriately account for clinical circumstances where the treating practitioner believes a caregiver’s involvement is necessary to ensure a successful outcome for the patient and where, as appropriate, the patient agrees to caregiver involvement.

Now, to the more specific areas you all are asking…

Question

Renee, what is a caregiver? How does the Centers for Medicare & Medicaid Services define this?

Answer

In CMS’s ongoing education and outreach work on the use of caregivers in assisting patients they have broadly defined a caregiver as a family member, friend or neighbor who provides unpaid assistance to a person with a chronic illness or disabling condition.

After considering the public comments, they finalized a revised definition of caregiver to be “an adult family member or other individual who has a significant relationship with, and who provides a broad range of assistance to, an individual with a chronic or other health condition, disability or functional limitation” and “a family member, friend or neighbor who provides unpaid assistance to a person with a chronic illness or disabling condition.”

Question

OK, so how often does the caregiver need to be involved in care every day?

Answer

A caregiver is an individual who is assisting or acting as a proxy for a patient with an illness or condition of short or long-term duration (not necessarily chronic or disabling); involved on an episodic, daily or occasional basis in managing a patient’s complex healthcare and assistive technology activities at home; and helping to navigate the patient’s transitions between care settings.

Caregiver understanding and competence in assisting and implementing these interventions and activities from the treating practitioner is critical for patients with functional limitations resulting from

various conditions.

Question

We are hearing that patients must consent? How is this accomplished when my patient is cognitively impaired?

Answer

You are correct. CMS states that they are finalizing, as proposed, that the patient’s (or representative’s) consent is required for the caregiver to receive Caregiver Training Services (CTS) and that the consent must be documented in the patient’s medical record. The reason to require the patient’s (or their representative’s) consent for CTS is because, unlike most services, the patient would not be present for the service.

CMS believes it is be important to make the patient aware, out of concern for patient privacy, that the service is furnished outside their presence and that any applicable cost-sharing would be

their responsibility.

Question

So, can we use general consent?

Answer

CMS leaders state they do not believe that the general consent to receive treatment would be sufficient to make a patient aware of the unique circumstances under which CTS are furnished.

For these same reasons, they continue to believe it is appropriate to require a specific consent for

CTS. The term “consent” as opposed to other recommended terms to remain consistent across other codes with consent requirements across the PFS. 

In cases of an Alzheimer’s or dementia diagnosis, it is encouraged providers obtain consent from the patient or their representative for CTS as early as possible in the diagnosis.

In closing, the unveiling of these codes not only addresses your queries but opens a pathway for a more comprehensive and collaborative approach to patient care, ensuring that caregivers are equipped with the tools and knowledge necessary for fostering optimal patient outcomes. 

As we move forward, let us embrace these changes with a commitment to enhancing the quality of care and support for both patients and their dedicated caregivers. 

Renee Kinder, MS, CCC-SLP, RAC-CT, is Executive Vice President of Clinical Services for Broad River Rehab. Additionally, she serves as a member of American Speech Language Hearing Association’s (ASHA) Healthcare and Economics Committee, is a member of the University of Kentucky College of Medicine community faculty and is an advisor to the American Medical Association’s Current Procedural Terminology CPT® Editorial Panel. She can be reached at rkinder@broadriverrehab.com.

The opinions expressed in McKnight’s Long-Term Care News guest submissions are the author’s and are not necessarily those of McKnight’s Long-Term Care News or its editors.

Have a column idea? See our submission guidelines here.

Turning 50 this year opened many doors for me. Turning 40 seemed confusing and somewhat depressing. Looking back, I wasn’t ready to accept growing older. Fifty, on the other hand? Bring it on. 

Working in the field of aging services, I believe, adds another layer of responsibility in considering how we look at aging personally. This is much deeper than appearances. Aging is associated with so many beauty hacks, especially if you are a woman. I must have hit the “50-something” algorithm on my socials because I feel like I am constantly being sold something to make me look, or feel, younger. 

I will admit, I’ve gotten sucked in a few times. I’m not proud. Vanity is sneaky. But the more I think about it, and I wonder if you do too, hopeful aging has little to do with how we look. 

I, without a doubt, believe it is a mindset thing. Specifically, a hopeful mindset approach to aging is crucial. One reason I absolutely love working in our field is because we get to study and observe people who have been around a little longer than us. I am fascinated by people who, regardless of what they are living through, are happy and hopeful, and are genuinely optimistic. I keep trying to figure out how some are adding years to their life while others are adding life to their years. 

More importantly, when does a hopeful mindset truly take hold?

The cool thing is a hopeful mindset can start at any age. There is no age requirement for being hopeful. I wish more people would be able to see, feel and believe hope can be learned and practiced.  A great friend of mine bases her hopeful mindset on her faith. I see it in her actions, her words, and in her prayers. 

Despite knock-down after knock-down, she remains hopeful because of her faith. I admire that about her. It prompted me to think deeper about how to inspire a hopeful mindset in others, especially as we grow older and when life’s setbacks happen. 

I keep coming back to a hopeful mindset and how we train ourselves to think, act and behave. How to speak about ourselves. How we speak to one another. How often do we encourage rather than criticize? I most definitely do not have it figured out, nor do I practice as frequently as I should. My children have taught me to keep stacking one day on top of the next. Turn one day into two, three into four and so on. 

People may start to wonder what is happening and why your spirit is so happy. A hopeful mindset, especially at this time of the year, can make all the difference for you personally, for your teammates and for the residents we serve. 

Hopeful aging does exist, we must have the courage to accept it and practice it even when it’s hard. Let me be clear: You can be hopeful and realistic at the same time. I am fully aware of new laugh lines and realize my face has changed. I choose to embrace the wrinkles with a smile, not hide them with shame for the years that made them.   

Our attitude reflects who we are and the work we do. If we do not age with hope, how can we expect those we serve to?

Julie.thorson@friendshiphaven.org

Julie Thorson was the 2018 recipient of the LeadingAge Dr. Herbert Shore Outstanding Mentor of the Year award. She currently co-facilitates LeadingAge Iowa’s Leadership Academy. She is a LeadingAge Academy fellow and former coach. The Head Coach (president and CEO) of Friendship Haven, a life plan community in Fort Dodge, IA, Thorson is a coach’s daughter at heart. A former part-time nursing home social worker, she is a licensed nursing home administrator and an alumna of LeadingAge’s Leadership Educator Program.

The opinions expressed in McKnight’s Long-Term Care News guest submissions are the author’s and are not necessarily those of McKnight’s Long-Term Care News or its editors.

Have a column idea? See our submission guidelines here.