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Legal Speak

Employment Discrimination Cases
October 23, 2013 3:09 PM by Tony DeWitt
Employment discrimination cases can be broken down into two separate categories. Hostile work environment claims are based on the environment in the workplace. An environment is hostile if the atmosphere created is one that a reasonable employee feels is hostile on the basis of a protected status. A protected status is age, sex, race, religion or pregnancy. A boss who ran around using four-letter words to describe women would be considered to create a hostile work environment.

Discriminatory treatment is the second category, and it is broken into two subdivisions. Disparate treatment means that people of a particular class (older workers, for example) are treated differently than others. Disparate impact looks at policies that are themselves neutral (for example, requiring men to be clean-shaven) but that have a disparate impact on a particular group of employees (for example, Amish men, or Hassidic Jews whose religions require they wear beards).

The law as announced by the Supreme Court at first blush looks pretty favorable toward employees. The Supreme Court has said that to be actionable under Title VII as a hostile work environment, the conduct need not seriously affect an employee's psychological well-being or lead the employee to suffer injury. All it must do to meet the standard is show an objectively hostile or abusive environment as well as the victim's subjective perception that the environment is abusive. Courts are directed to consider all the circumstances, not any one factor, in making this determination.

But many courts honor the letter of the law while ignoring its spirit. In one case the plaintiff asserted that her boss inappropriately pressured her to go on dates and made sexual advances toward her on two occasions. The court found that just two incidents were insufficient to create a hostile work environment. It then went on to note "The conduct is also not severe enough to overcome the element of infrequency. Sexual assault, for example, is the type of conduct that is severe enough that even one episode may be sufficient to establish a hostile work environment." The Court's insensitive suggestion that a woman need allege a sexual assault to state a claim for hostile work environment is difficult to accept in the 21st century.

In another case based on racial discrimination, an employee alleged that her African-American friends were consistently peppered with racial epithets at her plant, and that this created a hostile work environment not only for African-Americans, but also for those who were friends with and who supported them. The Court rejected this claim because the epithets were not directed at the plaintiff.

In one district court case in the District of Columbia, the court held that to state a claim under a hostile work environment theory, the harassment had to be so severe or pervasive as to "constructive[ly] alter[ ] ... the terms or conditions of employment," and that it required "careful consideration of the social context in which particular behavior occurs." Noting the standard set by the Supreme Court, the court simply ignored it. It said the standard for a hostile work environment requires that conduct be severe or pervasive, but that "courts generally find actionable claims only where the conduct is both quite severe and pervasive." The court continued by saying that "in our circuit, even multiple instances of physical contact and sexual advances may not be sufficient to meet the demanding legal standard for a hostile work environment." If this wasn't bad enough, the Court said that "incidents involving only verbal comments, particularly by co-workers, must generally be quite pervasive and severe to be actionable." The court simply forgave multiple sexual advances and crude speech by saying "it only happened once and wasn't repeated."

Cases like these are why most plaintiff's lawyers will not take a sexual or racial discrimination case. The lower courts refuse to be guided by the Supreme Court's standards, impose their own views of the law, and generally decide what is and what is not sufficient to establish harassment.

Disparate impact issues are not much different, and are the subject of my next blog.

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Employee Rights in Layoffs
October 15, 2013 8:59 AM by Tony DeWitt
Carrie was aware the firm was having financial problems, and she knew that other people had been laid off, but was pretty sure of her own job security because she felt like she was "mission essential" to the operations of her employer.

When the intercom buzzed and her boss said "Carrie, please step into my office," she assumed there was a new problem that had arisen, or a job that needed to be done, and she brought along a tablet to take notes. She had no idea she was the problem. When she arrived she noticed the woman with gray helmet-hair and horned-rimmed glasses in a gray wool suit purchased from a department store sometime in the 1960s. She was from the HR department, and she was sitting next to her boss. "I'm just here as a witness," the woman said. Carrie started to put two and two together, and almost didn't hear what came next:

"Carrie, we're letting you go."

People who have near death experiences describe a situation where they're out of the body, floating over the scene of their death. That's what Carrie felt. She tried to articulate the questions: Why? What have I done? When does this take effect? But instead her heart raced and her mouth opened and closed, and she started to cry (a show of weakness she later regretted). She couldn't even ask an intelligent question she was so shocked.

Anticipating her questions her boss explained she hadn't done anything wrong. Her position was being eliminated. The company was downsizing. She'd be considered for rehire in the future, but she should go look for a job immediately. She would be paid through the end of the day, but her termination was effective immediately.

A security guard stood outside the door (how had she missed him on the way in) and nodded curtly as she left her bosses office. He gave her a box and she packed the contents of her desk under his watchful eye. She wasn't allowed to take any paperwork. He handled everything she put into her box to make sure it was hers, and not the company's property. Carrie later said she felt like she was being treated like a sneak thief.

For the next two days Carrie sat at home and did mindless tasks. She washed, cooked, cleaned house, and did all the things she didn't have time to do when she was working. But mostly, she felt sorry for herself. On the third day she got angry and called a lawyer.

"You can be fired for any reason, or for no reason, but just not for an unlawful reason," the lawyer told her. "If you were filed in a legitimate downsizing, and it isn't related to age, sex, pregnancy, race or religion, then in most cases, you can't sue your old employer."

The lawyer was half-right. You can certainly sue, you just can't win. Any lawyer will tell you that employment cases are the most difficult type of case to win, primarily because the laws in most states are so antagonistic to employees. As one plaintiff's lawyer explains "If you don't have your boss on video tape asking for sexual favors, berating you with racial slurs, or sending out memos with crude anatomic drawings on them, then in most cases you'll lose."

About 70% of employment cases are dismissed before discovery (meaning the judge determines that there is no potential for recovery under the law). Of the ones that go into discovery, about 85% of those are dismissed on summary judgment (meaning the judge determines there is no issue for the jury to hear). Of the cases that are appealed, only about 5% nationally are ever reversed. The case law in federal court has become so hateful to employee rights that most employment lawyers will avoid federal court at all costs.

In my next blog posting, I'll highlight some of the more egregious discrimination cases from across the country and show how hostile federal courts are to employment litigation.

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Getting Fired? Beat Your Boss to the Punch
October 2, 2013 10:51 AM by Tony DeWitt
One of the most frequent questions I get from people when they learn I'm a lawyer is "what do I do if I know I'm going to get fired?"

Let me be clear: lawyers are problem solvers. We fix problems after they happen. We rarely are able to stop something that is already in play, for example, a plan by your boss to send you packing. While Hollywood and television have imbued lawyers with magical qualities on the order of a Marvel Comics superhero, for the most part, we're just professional men and women who have toolbox designed to fix or repair a given set of problems.

The one piece of advice I always give people if they think their head is on the chopping block is "beat them to the punch." If you know you're likely to get fired, save your boss the time and stomach trouble, and do it for him. Go find another job, and do it quickly. It is ten times easier to find a job while you have one then after you've been fired. It is much better to tell a prospective employer you're looking because you aren't being challenged enough in your current job, than it is to say "well, they basically fired me." No prospective employer wants someone else's problems.

"But won't they fire me if they know I'm looking?"

Sure they will, but generally, they won't find out until you already have another job and someone calls for a reference. In that situation they may be so happy to learn you're going somewhere else that they give you a glowing reference.

If your boss has to fire you, then there is at least a chance he'll have to pay unemployment for you. But if you move on to another job, that risk is obviated. So it is in your supervisor's best interest to give you a good recommendation and let you make the transition. Only a really stupid boss gives a troublesome employee a bad reference when that employee is still employed.

When they've fired that employee, in most cases the only reference they will give is "yes, she worked here from 2009 to 2013 and she's not eligible for rehire." That last phrase, "not eligible for rehire," is code for "we fired her." That's why it's important to have a good reference from someone you worked with, but not necessarily for, during your employment.

Ted supervises the day shift, Marsha supervises the evening shift. They see each other frequently and are acquainted with the work of each other. When Marsha goes looking for a new job, she knows that her direct supervisor won't give her a good reference, so she uses Ted. Of course, she clears that with Ted first and she makes sure to mention she'll return the favor. She also uses Ted's personal cell phone, not his work number, as the contact point.

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Avoiding Employment Litigation by Valuing Employees
September 12, 2013 4:31 PM by Tony DeWitt
One of the things I tell professionals when I speak on risk management is that it is never the medical error or mistake that gets professionals sued. It is always the collateral circumstances surrounding the error and how those circumstances are handled. While the law in most states used to be that an apology could never be provided because to do so would be an admission of negligence, the laws have changed in most states in this regard. Now a simple apology (I am very sorry for your loss) is acceptable and is not an admission, if it ever was. So I encourage apologies.

Recently an attorney planning to separate from his firm asked me whether apologies had any value in employment cases, because the reason he was leaving was because he felt like his contribution at the law firm was undervalued. He said, "if they apologized I might stay, but they don't even see the problem."

It is conventional wisdom that unless you're the "lead dog" the view never changes. That is true in the dog-sled world, but not true in the rest of the world. The fact is, the lead dog is often the one with the worst case of myopia. Being oriented to the front and pulling hard, he often feels that those behind him are not pulling at all. And in reality, it's the people behind him - the other members of the team - that are pushing him. Managers that do not see the contributions of their employees and profess the frequent belief that they are the only ones pulling the sled, while they may well be excellent at what they do, are nightmares in terms of litigation risk. When people feel undervalued, they either quit, or cause trouble. One frequent way they cause trouble is to file employment lawsuits. And nothing causes more disruption than an employment lawsuit.

It is never the fact that an employee is fired that causes an employment discrimination lawsuit. It is the way that the central issue (disrespect for women and minorities, an attitude toward tolerance of racial, sexual or religious bias, or the "you're expendable" observation) is handled by management that is at the heart of the lawsuit.

The attitudes on these issues are set at the top of the organizational food chain, and it is important to remember that the values that management shares are not always the values that managers and supervisors share. Leading requires more than just saying the right things, it means doing the right things and following up. When a manager or a supervisor, through attitude or behavior, manifests values that are at odds with the organization's values on HR issues, it's time for them to be shown the door.

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Which Type of Case Would You Rather Defend?
September 4, 2013 12:15 PM by Tony DeWitt
From Colorado comes a story of a nurse assistant who was accused of raping an elderly resident. There is almost nothing that produces lawsuits quicker than a resident alleging rape in a credible manner. The incident in Colorado is made worse by the fact that, after the nursing home conducted an "internal investigation" it allowed the rapist to return to work, only to call the police when a second resident later complained about sexual assault.

The nursing home's assumption that the elderly resident was confused is probably a reasonable one. The conclusion that the incident was unfounded, however, may not have been. When this case goes to trial (and you can bet a lawsuit is being prepared even now), the real question will be how did the nursing facility conduct its investigation.

We all want to believe that we are good judges of character. We all want to believe we can spot a pedophile, or an abuser of elders, just by the way they conduct themselves. But the fact is that people who have these kinds of predilections tend not to show up on anyone's radar, and that's why they have almost always abused dozens of people before they are caught.

An allegation of sexual abuse should be met with immediate suspension (and indeed, that's what this facility did). The investigation should be conducted carefully, and it should focus not only on what the resident says, but on what physical evidence is available to support an allegation of rape or sexual contact. Because this is not in the domain of your average nurse or administrator, this is an investigation that must be conducted by a trained detective with the local police department.

Detectives who interview these kinds of suspects tend to have their own methods of identifying individuals who commit these kinds of crimes. If an employee refuses to be questioned by the police on this issue, the result should be immediate termination. This is not a judgment that the employee is guilty, it's a judgment that the risk to the facility that he may be is simply too great to allow the employee to continue working.

If an employee comes back clean, and if the police determine the event is unfounded, it is still a good idea to have the employee work only with same-sex residents, and only under close supervision for the next 60 to 90 days. Any complaints or any suspicious behavior should be a red flag.

Sexual assault is like a throwing a plate on the ground and breaking it. You can say "I'm sorry" to the plate all day long, and it's not going to be made whole. You can do everything right after an initial assault and often avoid liability because rape of a patient is usually a criminal act that but for some kind of notice, the facility could not reasonably anticipate. But once there is an allegation - even one that is determined to be unfounded - then if there is a second credible allegation later the liability issue is going to be exceptionally difficult.

It is far better to defend a wrongful termination lawsuit than it is to defend a lawsuit involving allegations of sexual abuse by someone who was previously reported for the same conduct. Given the choice, I'd take defending wrongful termination every time.

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The Consequence of Unreasonable Verdicts
August 27, 2013 6:42 AM by Tony DeWitt
As a plaintiff's attorney I believe that verdicts in all cases should be reasonable. Unreasonable verdicts tend to inflame the passions of people who do not like lawyers, and who do not want people to ever be able to redress their grievances through the court system. As a plaintiff's lawyer one of my biggest obstacles is not defense lawyers, it's other plaintiff's lawyers.

Recently a patently ridiculous verdict was returned by a jury in a nursing home case. The verdict of $1,100,000,000 is simply so out of proportion to the harm in the case that it has absolutely no chance of surviving review by the trial and appellate courts in Florida where it was returned. But making matters worse, there are plaintiff's lawyers defending the verdict as a "sign of the times." If they really cared about protecting the elderly, they wouldn't be so quick to jump on the bandwagon. Cases like this make insurers think twice before offering liability insurance. And being able to collect a verdict is often more important than being able to obtain it.

Courts in most states, including Florida, have either by common law or statute a doctrine called remittitur that allows a court to review a verdict reached by a jury and increase it if the award is too small, or remit it if the verdict is too large. In Florida the statute provides in relevant part:

768.74 Remittitur and additur.-

(1) In any action to which this part applies wherein the trier of fact determines that liability exists on the part of the defendant and a verdict is rendered which awards money damages to the plaintiff, it shall be the responsibility of the court, upon proper motion, to review the amount of such award to determine if such amount is excessive or inadequate in light of the facts and circumstances which were presented to the trier of fact.

(2) If the court finds that the amount awarded is excessive or inadequate, it shall order a remittitur or additur, as the case may be.

(3) It is the intention of the Legislature that awards of damages be subject to close scrutiny by the courts and that all such awards be adequate and not excessive.

(4) If the party adversely affected by such remittitur or additur does not agree, the court shall order a new trial in the cause on the issue of damages only.

(5) In determining whether an award is excessive or inadequate in light of the facts and circumstances presented to the trier of fact and in determining the amount, if any, that such award exceeds a reasonable range of damages or is inadequate, the court shall consider the following criteria:

(a) Whether the amount awarded is indicative of prejudice, passion, or corruption on the part of the trier of fact;

(b) Whether it appears that the trier of fact ignored the evidence in reaching a verdict or misconceived the merits of the case relating to the amounts of damages recoverable;

(c) Whether the trier of fact took improper elements of damages into account or arrived at the amount of damages by speculation and conjecture;

(d) Whether the amount awarded bears a reasonable relation to the amount of damages proved and the injury suffered; and

(e) Whether the amount awarded is supported by the evidence and is such that it could be adduced in a logical manner by reasonable persons.

Remittitur is a good thing because it keeps juries from being whipped into a frenzy by a particularly good lawyer. And in this particular case, the principal allegations of negligence were 17 prior falls at the facility. The jury awarded $110,000,000 in damages for negligence, and $1  million in punitive damages against a defendant that "defaulted" in court.

In other words, the defendant simply made no defense to the charge of negligence. In such a situation it is easy to see where a jury might be whipped into a frenzy and award damages in excess of reasonable compensation.

While no amount of money can compensate for the value of a human life, there are limits of reasonableness that apply, and even absent an appeal by the defendant in this case, the Court is likely obligated to enter a remittitur on the verdict because of the sheer size of the damages. If the defendant does appeal the damages award, there are multiple avenues of appeal. First, the trial court will have to decide if under the evidence the damages equate to the harm caused. Then, under constitutional review, the punitive damages will have to pass muster under the principles of due process.

The United States Supreme Court requires that compensatory damages bear some reasonable relationship to punitive damages, and a ratio of greater than 9:1 is very rarely ever within the bounds of reason. Without such a relationship, the award is said to violate due process.

While this verdict may indeed cause a lot of worry in the nursing home industry, it probably shouldn't. The company was not represented at trial, the trial was only about damages, and the defendant had not put on a defense. In most nursing home cases, that won't be the situation. But it may certainly cause a spike in liability insurance rates in Florida if it is not quickly remitted.

 

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Preventing Lawsuits with Dental Care
August 23, 2013 6:55 PM by Tony DeWitt
Skilled nursing facilities face a number of hurdles in caring for the elderly, not the least of which is the inability to spend a sufficient amount of time providing oral care for residents unable to brush their teeth or maintain their dentures. Numerous articles have been published criticizing the lack of funding for dental care in nursing homes.

When a resident is a Medicaid recipient the federal nursing home benefit only covers emergency dental care (although some state plans require routine dental care coverage). What constitutes an "emergency" in terms of a dental visit is difficult to define. Perhaps more importantly, with attention to pressure sores, nutrition, weight management and the routine medical needs of complex patients, oral care may not be a routine issue checked by nursing staff.

One of the things that routinely saves skilled nursing facilities from liability for pressure sores is the routine documentation of skin condition, and the pressure sore risk assessment forms maintained by facilities.

For patients unable to do their own oral care, routine documentation on a weekly basis of some form of oral care is probably a must. If a dental or oral care issue gets to the point of it being an emergency then the facility may already have lost the lawsuit that is likely to be coming.

The problem, of course, is that most state plans do not pay for routine dentistry, and dentists who have billed Medicaid for routine examinations and oral care tend to either have their claims go unpaid, or in some cases, wind up paying back large amounts of money to the government under the False Claims Act.

Dental care is an issue that should be raised at the national level because patients who can't chew can't maintain their weight, and any rational nutrition plan should call for patients to be screened for dental problems. Yet, once identified, if the patient is limited to the $35 per month allowed by Medicare, the resident likely has no way to pay for the care other than to request that family members pay. For more than half of the residents in nursing homes, this is simply not an option.

One solution may be community service agencies. The Samaritan Center in Jefferson City, MO, has volunteer dentists and staff who treat homeless and impoverished clients in their Dental Care program. If expanded to include nursing home patients, such a program might be a good adjunct to routine documentation of oral health.

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Need a Lawyer? Make Sure It’s the Right One
August 20, 2013 7:17 AM by Tony DeWitt
There was a great commercial many years ago by AAMCO, an automotive company, that featured a hapless mechanic saying "let me try boss, I always wanted to fix a transmission." The commercial's spokesperson looked like the kind of guy who couldn't fix a paperclip. The commercial was funny but it made a point. When something is broken, you take it to someone who knows how to fix it.

Several years ago I went to a conference that was represented to be a conference on healthcare law related to false billing. I assumed the attendees would be - like myself - legal practitioners.

Instead, when I arrived I found myself in the company of doctors, billing office coordinators, coders and hospital administrators. Over the course of the two-day seminar these folks sat through horror story after horror story about 31 USC § 3729, the federal False Claims Act. These folks paid $500 to come get the pants scared off of them.

On the last day the partners of the law firm laid out their corporate compliance program, something they represented as a complete solution to the problems of the False Claims Act, and demonstrated how they would come in, do an audit, and protect the healthcare providers from spurious claims that they had made simple billing errors that were somehow fraudulent.

As a marketing strategy for legal services it was top notch because the firm brought in one of the most successful False Claims Act attorneys in the country to talk about all the money he made off companies that cheated the government. However, it reminded me of the advice that business people offer: find a need and then fill it. Essentially the company was creating the need (defense against false claims) and offering a turn key system to address all the possible ways that a company could get sued.

As a general principle, if it sounds too good to be true, it is. While every healthcare provider (especially larger group medical practices and chains of skilled nursing facilities) needs a corporate compliance plan, there is no "one size fits all" approach that will work. And if what you need is a litigator, these firms that offer compliance expertise are probably not your best bet.

Moreover, there are some firms that have a recognized expertise in this area (Jones Day, Katten Muchin Rosenman,Ropes and Gray, WilmerHale, etc.) and others that merely list the area on their website without having a solid track record in the area. In a False Claims Act case you will need someone with knowledge of the many technical defenses that can apply.

Most folks wouldn't go to a podiatrist and, thinking he's a nice guy, let him perform brain surgery. But people do that with lawyers every day. Always make sure that any lawyer you hire has actually handled similar cases or can affiliate with someone who has. The corporation you save may be your own.

(The author has no relationship with any of the law firms mentioned above, other than the fact that several of them have opposed him honorably in Fals
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Proof that Corporate Compliance is Still Needed in Health Care
August 15, 2013 2:10 PM by Tony DeWitt
One of the great things about capitalism is that every person has the right to make as much money as they can make, so long as they do not break any laws in the process. Motivational expert Zig Ziglar was fond of saying, "you can have everything in life you want, as long as you help enough other people get what they want." When skilled nursing facilities are operated properly and lawfully, they can and do generate good profits. But sometimes in health care the desire to generate bigger profits leads to bad decision-making.

A perfect example of this is the recent reporting about Sacred Heart Hospital in Chicago. Although sounding like a charitable or non-profit organization, Sacred Heart was actually a for-profit medical center that was operated by its owner. Its owner and several physicians stand accused of performing unnecessary tracheotomies because it generated $160,000 more in profit for Medicare patients. A report on the case can be found here. It is worth noting that an effective corporate compliance program could have prevented this debacle.

A few hundred miles east of Chicago, in Detroit, a physician stands accused of giving patients $35,000,000 in chemotherapy they did not need. Yes, as ridiculous as it seems, the doctor is alleged to have given chemotherapy - poisons designed to kill cells - to patients without cancer. The story can be found here.

The cases are, of course, aberrations. That's why they make the news. But the profit motive, particularly in health care, has been at the root of so many egregious cases in health care that it is worth acknowledging that whether an organization is structured as "for profit" or "not for profit" the margins in health care are smaller than the margins in manufacturing, new car sales, and day trading on the stock exchange. While the margins can be improved with effective cost-reduction measures, the desire to improve the bottom line through means that exceed ethical and legal bounds are to be avoided.

There are severe legal penalties for violating federal health care laws, particularly for overbilling Medicare. Not only are the penalties financial (double and sometimes triple damages) but they can also involve wearing stripes and eating bad food behind gray prison walls for long periods of time. This is exactly what happened to Robert Courtney, the Kansas City pharmacist who diluted chemotherapy for hundreds of patients and generated millions in profits. Courtney never got to enjoy the profits. He is now 12 years into a 30 year federal sentence (and federal sentences are meant to be served in their entirety - there is no parole or early release).

The role of the Corporate Compliance officer is to guard against what appear to be good business decisions that are perfectly fine in other businesses (e.g., paying people when they refer buyers) but that will run afoul of federal health care laws if applied in the health care context. And it is worth noting that just because someone can manage a small manufacturing operation doesn't mean that those management skills will translate into the health care field.

No company providing skilled nursing services should be without a corporate compliance program and a trained corporate compliance officer. Otherwise, it's like flying blind into a snowstorm - you won't see the obstacles until you crash into them.

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Who Can Sue?
June 24, 2013 2:47 PM by Tony DeWitt

One of the concepts that lay people have trouble with in terms of the law is the concept of standing. Standing basically means that a person must have a "justiciable interest" in a lawsuit. That means that the decision in the lawsuit must directly affect them.

In its simplest terms, standing is about whose ox got gored  Suppose a woman at the mall, in order to get to a sale item, hits your sister and dislodges one of her teeth.  She can sue the person for the battery because she has a real interest in seeing justice done. Similarly, the store could file a restraining order against the crazed woman because keeping rowdy people out of its store is a real concern. But you could not sue because your sister got hit, even if it troubled you a great deal, caused you to lose sleep, and generally made your life miserable. This is because you don't have "standing" to sue. You do not have a direct interest in the litigation.

Particularly in long-term-care there are organizations that consider themselves "advocacy groups." The idea is nothing new. Advocacy groups called lobbyists consistently ply Congress with money, alcohol and meals to get what they want. In the LTC context most advocacy groups are about the quality of care rendered to residents. Recently a California group came up with a novel approach to challenging care of residents in federal court.

Under a federal law called the Federal Nursing Home Reform Act, every Medicare- or Medicaid-certified nursing facility must have a governing body or ownership entity.  Normally that's a board of directors, although sometimes it can simply be an owner (or a corporation or LLC).  Whatever the ownership entity is, owner or board, that ownership entity must appoint an administrator. The law requires that the administrator be "directed by and answerable to" the ownership entity.

Some nursing home chains, and indeed many privately-owned nursing homes use management contracts where the operation of the nursing home is turned over to a separate entity that under the contract takes over all the operational aspects of running the nusing facitlity.  Recently a California advocacy group challenged this arrangement as violative of the Reform Act. They asserted residents suffer when there is a layer between the owner and the administrator.

But in getting into court the advocacy group made a fatal mistake. They sued in their own name, and not in the name of the patients they purported to represent. Although there is a concept known as "associational standing" generally this is applicable only where directors of an association (for example, the American Dental Association) sue on behalf of its members. Here that wasn't present, and the judge, John S. Tigar, threw out the case on that basis (although he did give them leave to refile within 30 days).

The judge was skeptical that transferring operational control to an independent management group affected patient care, but by giving the group time to replead and refile, he has at least given them a chance to make the case.

Read more articles on this topic:

Documentation Keeps Nurses Out of the Courtroom

Return to ADVANCE for Long-Term Care Management Homepage

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Worthless Services
June 10, 2013 10:21 AM by Tony DeWitt

Suppose you went to the auto mechanic and he told you that you needed your tires rotated and your oil changed. You wait patiently in the waiting room for 20 minutes and then someone brings you out your keys, takes your money, and sends you on your way. But back in the mechanical part of the shop the only service you received was to have the oil that was already in your car topped off, and no one touched your tires. If you learned of this, you'd probably be pretty angry because you had paid for services that were (a) not what you bargained for and (b) were as a practical matter, worthless.

This is the theory that the United States is using to go after nursing homes and skilled nursing facilities that provide substandard care but nevertheless bill Medicaid and Medicare for those services. Billing for worthless services is one of several ways a claim can be false within the meaning of the False Claims Act, the Civil War era statute that penalizes cheating the government. Worthless services cases stand for the proposition that a provider may not knowingly bill the government for goods and services where "the service is so substandard as to be tantamount to no service at all."

It is well-settled that billing the United States for a product or service that is of no value, if done with the requisite guilty knowledge violates the False Claims Act. Courts consistently have upheld liability for billing for deficient products and services. 

Thus there is no question that healthcare providers, including skilled nursing facilities, Hospice providers, and home health care providers who knowingly make claims for payment for worthless services may be liable to the United States

In one notable case, United States v. Cathedral Rock Corp., (Eastern District federal court, Missouri, Nov . 30, 2007) the court said "In a worthless services claim, the performance of the service is so deficient that for all practical purposes it is the equivalent of no performance at all.").  The issue in those cases was patients whose treatment by the nursing home staff had been so bad that they deteriorated and suffered injury as a result.

So, how does a facility prevent a worthless services claim? First, it provides adequate staff and supervises that staff appropriately.  It does not permit patients to go unsupervised.  It prevents elopements. I gives prescribed medications on time, and most importantly of all, it documents all of these things in records that demonstrate an attention to detail.

In most worthless services cases the overwhelming evidence that shows that the facility is liable to the government for collecting payments it should not have received comes from medical records that show ten and twenty day gaps between documented instances of care.  Patients develop bed sores, lose weight, and suffer injury as a result.

One solution for facilities is to employ a chart auditor who is independent of the facility. In other words, hire a nurse, as a consultant, to periodically review random sets of patient records and provide management with an overview of whether the facility is meeting its goal.  Tying performance under an audit system to staff bonuses or incentives is a practical way to ensure that when the facility does well, the staff does well too.

Oversight by non-management RNs or staff who are given authority to review records and make recommendations seldom works because (a) those staff lack authority over management nursing personnel, and (b) those staff tend not to last long in their jobs. Paying an outside consultant ensures accountability from the top down. 

Read more articles on this topic:

Documentation Keeps Nurses Out of the Courtroom

Return to ADVANCE for Long-Term Care Management Homepage

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Cleaning House
April 18, 2013 1:32 PM by Tony DeWitt
My wife is a cleaning fanatic. She cleans the way surgeons perform surgery. She has a plan, and she carries it out. She cleans a little something every day. My house is always clean because she is consistently after the little things to keep them from becoming little things.

Sometimes managing people is like that, and even in an age where everyone threatens to sue if you fire them, cleaning house is still a good idea when service requirements make it necessary. If you don't get rid of the dead wood in a work environment, before long all you'll have is dead wood.

A work environment is something like a good soup. If you have the right ingredients, and everything does what its supposed to, the soup is good, and it works. But put in the wrong ingredients, or ingredients that don't go together, and you can quickly have something that even the dog won't eat.

It's like that with people, too. Get the wrong mix of people in an organization, and you can pretty quickly have a situation where no work gets done, and no one cares. Patients, and patient care suffer. That leads to patient dissatisfaction, unhappy family members, and often times, lawsuits.

Early on in my professional career as a therapist I managed a department with a struggling supervisor. Rather than call out people who weren't working, she would often just go do their jobs for them because it was easier than fighting the uphill battle and dealing with all the grief staff would dole out. But every now and then it boiled over, and when it did, the staff would come crying to me because they just didn't understand why the supervisor could be "so mean."

One of the key players in this mix was a staff person we'll call Sheila. She was always whispering in everyone else's ear, and she always told them what to say. Her mantra was always the same: no one gets ahead here unless they are a "brown-noser." She had a unique ability to find something wrong with the best of situations. She was what I would call a pot stirrer. She stirred the pot, but she didn't want to get into the soup herself.  She always seemed to have plausible deniability.

When we figured out that she was the instigator of most of the trouble, we moved her, involuntarily, to the night shift with the expectation that this would cause her to quit. Instead, 13 people marched into my office and demanded that the supervisor be fired, or they would quit. 

Even though the odds are against it, 13 people can be wrong. They can often be spectacularly wrong. We weathered the threatened wildcat walkout, and a few months later the one bad apple in the bunch left employment for a hospital in the southwest. Almost overnight the attitude in the department improved, and people started enjoying their jobs again. Without someone to remind them on a daily basis of why they ought to be unhappy, they instead found ways to find joy in their jobs.

Human Resource people caution that firing people is expensive. Sometimes you have to pay unemployment. Sometimes they sue. Sometimes they file federal discrimination lawsuits.

As a lawyer, I say let them. Discrimination lawsuits are so seldom won that they are more like playing the lottery than actual litigation.  Unemployment must be paid anyway, and the cost to train new people is more than offset by the improvement in the overall tone of the institution.

And bad people not only are not good for the morale of the unit, they are often not good for patient care.  And I always tell hospital HR people that it is far cheaper and much less taxing to defend a wrongful discharge lawsuit than a wrongful death lawsuit.

Read more articles on this topic:

Crucial Conversations

Hiring for the Future

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Respecting Resident Privacy
April 10, 2013 9:13 AM by Tony DeWitt
Every day, in nearly every city in the country, healthcare workers routinely violate the HIPAA privacy rules. They do it when they come home and tell stories about what they did at work that day. Some of the stories are just "too good not to tell," and as a result, they're shared with friends, family, and sometimes on Facebook.

Even if you don't reveal a resident's name, if you disclose on public social media sites the details of resident care, you're violating the resident's privacy, your employer's work rules, and more likely than not, state law regarding medical confidentiality. You're also putting your professional license at risk.

As an attorney, people tell me stories all the time. Some of them are really too good not to share, but even as much as I might like to, I don't share them. As an attorney I have a sacred trust to uphold when it comes to protecting my clients, even if it's only from laughter and ridicule.

Recently a nurse I'm acquainted with told a story about a patient who was confused. It was indeed the kind of funny that would send a seasoned Hollywood writer running for a pen to write it down. The communication was not made in private. She was not asking for legal advice. She was, in my opinion, just poking fun at a poor old woman who didn't understand the meaning of a few key words.

When her story was over I thought immediately that I had to share it, and then I thought better of it.

The next time a clinician starts to tell you a funny patient story, do her a favor. Remind her that she's playing with fire.  Even if the employer doesn't discipline her, the family doesn't find out, and the HIPAA compliance people don't come after her, she's violating her professional ethics by talking about residents. You might even be saving her nursing license in the bargain.

Read more articles on privacy:

Social Networking Gone Bad

Risk Assessment & HIPAA

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The Public/Private Distinction
April 4, 2013 9:32 AM by Tony DeWitt

Of the care delivered in SNFs, much of it is delivered in non-profit nursing homes operated by charitable organizations including churches and Catholic religious orders. The other non-profit type of nursing home is the public facility funded by taxpayer dollars.

In a recent newspaper editorial a reader opined that public nursing facilities are, more often than not, the best option for community-based skilled nursing care. The editorial argued that for-profit nursing homes are not delivering good care, and that as a result publicly-funded nursing homes are the answer.

The data, however, does not bear out that opinion. Not only are many for-profit nursing homes providing excellent and cost-effective care every day, but many state and county owned homes tend to be inefficient and operate more expensively without providing any better care than their for-profit counterparts.

The secret is in the management and supervision of the employees. In most corporate-owned for profit facilities, employees work at will. They can be hired and fired for any reason or no reason. There is no convoluted disciplinary process to let an employee go. Corporate facilities have built in processes designed to make sure the operation runs efficiently.

Not so at many public facilities. Not only do some employees enjoy tenure that protects them from all but the most serious of violations, but seniority and union status often complicate the improvement of the quality of care through work rules and grievances.

Worse, because the public facility can simply ask for more tax money, there is no incentive for a public facility to be efficient and save money. In fact, just the opposite. Government operations often take the view that if they don't spend money, they won't get it in their budget next year.  As a result they buy supplies and equipment that they don't need in order to secure funding for future years.

Certainly not every public facility is inefficient or delivers bad care, but neither is every corporate owned facility a death trap with bad care. The truth is never at the extremes and viewing an industry through that lens is fraught with peril. 

Nursing home staff and administrators should take every opportunity they have to educate their friends and family about the reality of the work that they do, why its difficult, and how it is compensated. If people understood more about the funding and administration of nursing facilities, federal laws on the subject might well improve.

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For-Profits Under Attack

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A Messaging Problem
March 21, 2013 2:00 PM by Tony DeWitt

Time after time in this forum and everywhere I get asked to speak, I spout the golden rule of medical negligence: people don't sue people they like. 

I also tell people the corollary: If you make people angry, and they don't like you, they have no problem with suing you. In fact, they like it.

I was reminded of this last week when I went into the hospital for cardiac catheterization. As a side note, I think that the choice of wording has a lot to do with how normal people perceive things. Those of us with healthcare backgrounds know, when we hear "cardiac cath" that they'll stick a balloon in our artery and shoot die through it to see if we have perfusion. 

But when we refer to something as a "dye study" we should be mindful that homonyms, words that sound the same but have different meanings, should always be avoided. If you knew they were sticking a plastic catheter into your heart and you had no medical background, the concept of a "die study" would be, well, to say the least, frightening.

The result of my "dye study" was three new stents in my circumflex artery. I now have so much metal in my heart that I have to take a teaspoon of Liquid Plumber every morning at breakfast. But, while the cardiac end of things came off without a hitch, there was a complication.

Specifically (and there is no non-embarrassing way to say this), my urinary catheter gave me a urinary tract infection. Those of you who work in SNFs know these are common and frequently associated with catheterization. You also know they're painful. I assumed mine was normal irritation from the catheter. But when it had not gone away by my first day home, I called the cardiologist to get something for it.

As a general rule, and I am sure there are exceptions, most cardiologists are medical doctors, internists, who have not only completed an internal medicine residency, but have done a cardiology fellowship. Somewhere along the line it is certainly inferable that they learned a thing or two about infections and antibiotics. Here is the transcript of my call with the doctor's nurse:

Nurse: I got your message. Dr. X doesn't treat infections. He only writes prescriptions for cholesterol and cardiac medicines.

Me: Excuse me?

Nurse: You need to see your primary care doctor.

Me: My primary care doctor didn't cause this problem. My cardiac cath, the one your doctor set up for me, that's what caused it. I need to get a prescription.

Nurse: I'm sorry. I can't call it in. He doesn't write them.

Now, that's what was said.  Would you like to hear what I heard?

Nurse: You are completely unimportant to me.

Me: Excuse me?

Nurse: A pimple on my behind rates higher than you do.

Me: My primary care doctor didn't cause this problem. My cardiac cath, the one your doctor set up for me, that's what caused it.  I need to get a prescription.

Nurse: I have to do my nails. Please die quietly and don't call back.

Have I taken some liberties here? Sure. But the issue is that your average Joe, when they have an interaction like this, carry away from it a feeling that they are less important than whatever was on the supper menu that evening. 

Messaging is important. If this was really the doctor's policy he should tell people this up front. In the pre-procedure and post-procedure visits, he should instruct his patient to call the primary care physician for any problems that are not cardiac in origin. 

And Nancy Nurse could have done a lot better too:

Nurse: Thanks for calling.  Do you remember when you were here and we gave you the written instructions for after the hospital visit. We told you in that pamphlet that if you had an issue that wasn't related to your heart or your heart medications that you should call your primary doctor. Do you remember that?

Me: Uh, no?

Nurse: Here's what I can do for you. How about I call Dr. Y's nurse and have her give you a call. Will that work for you?

Me: That would be great. Thank you.

When people feel valued, they are happier with the care, and are more willing to forgive honest, even if tragic mistakes. But make them feel like they're an interruption in your day, and your life is going to get ugly.

More articles on this topic:

Keys to Uncluttered Communication

Resident Engagement

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    A.L. "Tony" DeWitt, RRT, CRT, JD, FAARC
    Occupation: Attorney
    Setting: Jefferson City, Mo.
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