With the White House’s stated intention to raise the dollar limit on per-instance financial penalties levied on poor-performing nursing homes from $21,000 to $1 million, learning the ins and outs of the survey process from both the state and federal level will be more important than ever for operators.
Dealing with “rogue employees” is one way operators can get into trouble on surveys, as Adam Guetzow, a partner at law firm Hinshaw & Culbertson LLP, explained during a panel at the LeadingAge Illinois conference this week.
A rogue employee is defined as an employee that undermines a business by ignoring rules and policies, according to Guetzow.
Even if a facility feels good about the policies and procedures they have in place for Covid response and infection control, they remain responsible for rogue employees.
James Moriarty, deputy general counsel at AbleHearts, saw this firsthand at one of his facilities.
A national senior care provider, AbleHearts has care centers across Illinois, Florida, Missouri and Texas and offers a range of services including short-term rehabilitation, dialysis and memory care.
Moriarty referenced one incident where an employee checked into work and marked that she didn’t have any Covid signs or symptoms, but unbeknownst to the facility, she woke up that morning with a fever.
“Two hours later she said to [a coworker] that she wasn’t feeling well,” Moriarty explained. “That employee told her supervisor and [she] was sent home and ended up testing positive.”
Still, AbleHearts was cited for the incident.
“Was that fair? No. I say it wasn’t fair because what else could we have done,” said Guetzow, who represented AbleHearts in a later hearing. “They followed all of the regulations and took immediate action.”
Guetzow said that while rogue employees may do what they want, the facility demonstrated it had strong procedures in place to deal with such situations as a coworker knew to immediately say something to their supervisor.
“Make sure your employee training is up-to-date to deal with rogue employees,” he added.
AbleHearts requested a hearing with CMS over the citation and explained that the actions it took were proper and the mitigation responses were “above and beyond.”
“We were able to negotiate and I think that is something that I don’t want people to lose sight of,” Guetzow explained. “While you may not be able to prevent certain things, your response is just as important when you’re looking at it in hindsight just three months later at the survey hearing.”
Determining when to challenge a citation
Just deciding to challenge a citation can be a difficult call for operators.
If a facility waives its right in writing to a hearing within 60 days of receiving a CMS notice the amount of civil monetary penalty (CMP) is reduced by 35%, so just challenging one can be a pricey decision for operators.
Furthermore, facilities have 15 days to prove financial hardship, which can also reset and reduce the amount of the CMP.
“You may be looking at a 50% reduction off the bat,” Guetzow said.
Moriarty said he considers several factors before waiving a CMP and pursuing a hearing including a facility’s survey history, other litigation the facility may have and whether the surveyor recommended a CMP to CMS.
The more citations a facility has the more likely its license will be targeted in the future, Moriarty explained.
He also considers if the facility has any residents that could potentially bring professional liability claims under the Nursing Home Reform Act.
“If there is, if you are having problems, then you need to do something to try to take the wind out of their sails later on down the road,” Moriarty said.
