Chat up your in-house counsel

Share this content:
Elizabeth Newman
Elizabeth Newman

Our coverage around lawsuits in long-term care — and how to avoid them — often focus on big events or cases that stand out, such as today's story on a bad perm.

That's why it was informative to visit two legal sessions at the LeadingAge Institute in St. Paul, MN, this week. One tackled the need to have documentation and delegation to reduce nursing liability and another reflected an in-house counsel's perspective on hot legal topics.

In the first, attorney Peter Gregory of Bassford Remele in Minneapolis reminded the audience that “documentation in these cases is everything,” especially when a resident is non-compliant.

“If it's not documented, it didn't happen,” is often stated, but remains true, he said. His co-presenter, Cyndi Siders of HCIS/Vaaler Insurances and Siders Healthcare Consulting, listed risk factors around leadership skills, delegation skills, volume-based staffing, competency and missed nursing care as areas where one weak pillar can cause a collapse.

As important as those areas are, administrators also would benefit from Benedictine Health System's Assistant General Counsel Trent Pepper's insights into day-to-day issues that can cause your in-house counsel to arrive at your door with a pained expression.

For example, mandatory flu vaccinations. I don't want to rehash the debate about flu shots for long-term care employees, but Pepper brought up a point I hadn't heard before: Union bargaining. He noted that with union workers, mandatory vaccination may be on the table or addressed in a contract.

He also noted that while some healthcare providers have defaulted to “vaccine or mask” for an option for those who don't want the flu shot, a human resources employee at a medical center sued last year with the help of the Equal Employment Opportunity Commission. She said she refused the shot on religious grounds and was terminated when she refused to wear the mask due to it inhibiting her ability to recruit. The EEOC has said an organization can't make the flu shot mandatory without carve-outs for medical (such as allergies) or religious exemptions.

Another area Pepper reminded attendees about is music and movie licensure. Traditionally, based on conversations I've had with administrators, facilities could play the radio, have in a music group, or put in a CD without anyone complaining. Now, however, many music licensing companies are zeroing in on long-term care.

While the licensing companies start with a friendly letter asking the facility to sign up, don't ignore it, Pepper warned.

“Take it seriously. The law is on their side,” he said. The fee is generally based on specific uses of music with the facility.

With movies, the Motion Picture Licensing Corporation is looking at movies in groups or closed circuit channels. The fee is often based on the number of residents and use. Here is the application for senior living providers.

Moving onto contracts, Pepper reminded administrators and managers to review each contract, rather than handing it off to legal. This is something I know happens a lot and I'm sympathetic — the gobbledegook of contracts can strain the eyes and the soul. But Pepper noted that while counsel “can help determine what reasonable is” for standard terms, “attorneys are often not experts on pricing or workforce issues.” In other words, the administrator or director of nursing may need to be the person to say, “Um, that's not going to work with our shifts or staff.”

Also remember that shorter terms favor providers, because the vendor wants that business back. It's tricky with a system or program that you know will take time to pay off, but my advice is to think realistically about anything longer than three years.

Another aspect to consider in a contract, as Pepper noted, is whether it is auto-renew. To my horror, I recently had a smartphone app auto-renew, as I had mistakenly assumed my one-year contract was finite. Despite my best attempts to push back, I failed, and learned my lesson about auto-renewing.

Finally, both in my session on handling the media and in Pepper's session, HIPAA was high on everyone's list, as was the future of the Affordable Care Act.

Let's assume, as both Pepper and I do, that a full repeal of the Affordable Care Act is unlikely right now. That means there are a lot of regulations, ranging from Section 1557 nondiscrimination regulations to Payroll-Based Journal submissions, that are unlikely to go away.

“If it's piecemeal, I have a hard time seeing PBJ or compliance being high on anyone's list,” he noted.

With the latter, of course, many nursing facilities are swimming along with PBJ and have robust compliance programs. If not, having written compliance standards, a person in charge, reasonable steps to implement and enforcement of standards isn't going to cause a facility to fall apart, especially with time to prepare. If anything, compliance guidelines should be marketed to prospective employees and residents as reflecting the high standards of your community.

But all of this reminds us that it's worthwhile to both have in-house counsel, and to take them to lunch occasionally. They may not be conducting direct caregiving tasks with residents, but they will often save your bacon.

Follow Elizabeth @TigerELN.  





Daily Editors' Notes

McKnight's Daily Editors' Notes features commentary on the latest in long-term care news and issues. Entries are written by Editorial Director John O'Connor, Editor James M. Berklan, Senior Editor Elizabeth Newman and Staff Writer Emily Mongan.

    ALL MCKNIGHT'S BLOGS