I learned long ago when faced with the risk of a significant dispute, there are a series of steps to take: First, act appropriately to try and avoid the dispute. Second, if the dispute happens, rely on the facts and be steadfast in your response. Third, when needed seek a trained and disinterested third party to resolve the dispute.
As James M. Berklan opines in McKnight’s, the recent decision of Maryland’s high court revolves around a civil action brought by the Attorney General of Maryland in December 2016 against Neiswanger Management Services LLC.
The case is now remanded to the lower court for appropriate action based on the appellate court ruling. This case will make its way through the pending proceedings, based on its particular facts.
Unlike Berklan, I can’t speak to the case cited in McKnight’s relative to New York, but I can speak to the care landscape in Maryland.
There are 227 skilled nursing and rehabilitation centers providing 5.6 million days of Medicaid and 1.6 million days of Medicare care annually to Marylanders in need of quality, compassionate and efficient care. There is strong state oversight in place by multiple agencies, beyond the federal survey and certification process.
This includes active efforts by multiple units within the Maryland Department of Health (MDH) including the Office of Health Care Quality, Office of the Inspector General, and a system of pay for performance incorporated into the Medical Assistance Program reimbursement to these centers. These MDH activities are augmented by the Attorney General’s Medicaid Fraud Control Unit.
The state legislature engages in ongoing oversight, having established a standing Oversight Committee on Quality of Care in Nursing Homes & Assisted-Living Facilities with a diverse and broad membership, the Maryland Health Care Commission conducts an annual satisfaction survey and publishes the results. And the Maryland Department of Aging’s Ombudsman’s Program provides additional oversight.
Regardless of isolated cases, this is the environment in which Maryland skilled nursing and rehabilitation centers operate every day. It is sometimes collaborative, very public and closely scrutinized.
These overlapping activities, along with federally required survey, certification and oversight actions can also be counterproductive when they reflect an increasingly non-collaborative aggressive regulatory process, such as when substantial civil money penalties divert needed resources away from centers improving care and services, even in instances in which there was no actual harm to any person.
All skilled nursing and rehabilitation centers are not identical, and when they are prepared or required to admit and retain challenging residents they need the support and consideration of residents, responsible parties, advocates and agencies in a fair application of requirements and the reimbursement commensurate with those needs.
Too often, the continuum of care can be at best an academic construct when other appropriate community and facility settings are not in fact available, or are unwilling to accept or retain residents in need of discharge.
Increasingly, hospitals are challenged to make clinically appropriate discharges to nursing homes, and despite their best effort and planning nursing homes are challenged to make clinically appropriate discharges to community.
There is a broader public policy conversation to be had on the issue of patient discharges that needs to take into account the rights of residents’ subject to discharge and the due process that is already in place.
That conversation also needs to take into account the rights of other residents affected by the possible patient conduct in question, the needs of staff for a safe workplace, the obligations of families and other responsible parties, and the obligation of the regulatory and reimbursement process to accept that planned involuntary discharges are sometimes the clinically best and necessary solution.
Finally, and importantly, Maryland Attorney General Brian Frosh has a long track record as an attorney, legislator and now AG of taking action based on the facts. Those who suggest that Frosh would take action based on political ambition are just wrong.
Attorney General Frosh and his team and I don’t agree on every issue. Yet we will all continue to be driven by the facts and serve as passionate advocates for both providers and people who rely on skilled nursing and rehabilitation centers.
Joseph DeMattos, Jr., MA, is the president and CEO of Health Facilities Association of Maryland.