Staffing, Psychotropic Scrutiny Contribute to Tough Litigation Climate for Skilled Nursing

As the skilled nursing industry is beset by crippling staffing shortages, inflation costs, and increased government oversight in an already highly regulated field, operators must be proactive in shielding themselves from litigation risk.

Risk is coming from a multitude of different places, according to experts at a Zimmet Healthcare Services Group webinar on Thursday, and operators should be most attentive to potential litigation stemming from issues related to residents, their families and staffing.

In addition, recent CMS policy updates related to psychotropic drug use give operators an “immediate heads up” on this as an area of heightened risk.

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Staffing issues are also contributing to a high risk environment since the situation is under intense scrutiny from all sides, Marie Infante, consultant for Zimmet, said during the webinar. Infante led the litigation mitigation discussion, along with Steven Littlehale, chief innovation officer for Zimmet.

“I think it’s worthwhile recognizing … we’re in a risky business. Let’s just be real in that regard,” said Infante. “Nursing homes are litigation targets, not just for plaintiffs’ lawyers on behalf of the resident’s family that are unhappy, but also as political footballs for politicians and policymakers.”

The Biden administration’s minimum staffing mandate to be unveiled this spring, and the Centers for Medicare & Medicaid Services (CMS) proposal to incorporate staffing data into Nursing Home Care Compare and the Five-Star Rating System, is an answer to calls for nursing home reform following the worst surges during the pandemic. But it also has the potential to create headaches for the skilled nursing sector.

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Recently, CMS announced new policies related to antipsychotic use and penalties. Targeted, off-site audits will determine whether nursing homes are accurately assessing and coding residents diagnosed with schizophrenia.

Sector as ‘political football’

Given this climate of heavier proposed regulation, nursing home operators are advised to get ahead of issues and treat every complaint as a gift, or at least a second chance to rectify a situation before parties resort to litigation.

Data available to the public can be both a boon or liability for operators, Littlehale and Infante said, using antipsychotic oversight as an example.

If nursing home facilities are more capable in conducting a so-called “root cause analysis” of faults and problems in the litigation context, they will be better equipped at dealing with flaws in a patient’s medication management plan, for example, including with use of antipsychotics.

“[CMS is] really going to be looking at this issue, antipsychotic prescriptions and diagnoses of schizophrenia that are not supported in the medical record. Take a look at that,” said Infante. “This should be one of these immediate heads up.”

Operators can contact pharmacy consultants and check to see if the facility has too many patients with dementia on antipsychotics and insufficient supporting documentation by CMS standards.

Other mitigation tactics

On a more general note, data on facilities is of paramount importance. It is both reflective of what is done well and what needs improvement, Zimmet leaders said.

“If you’re not really monitoring that data, managing and making sure that it’s accurate, and that it’s reliable, and it’s presenting a picture of who you are in terms of care and services that you provide, then that is adding to the risk out there,” said Infante.

Other bits of advice for operators: optimize available data, “put yourself on hold” with admissions and initiatives laid out by other stakeholders.

“When you create the most extraordinary and elaborate and impossible to achieve plan of correction, you overshoot because you’re in a panic situation,” said Littlehale. “You want to impress the surveyors. You put this plan of correction in place, and there’s absolutely no way, a week or a month later, you’re going to be able to achieve this overreaching goal.”

An atmosphere of wellbeing at facilities is important too. Enriching facility culture for employees, residents and their families can be as direct as fixing issues related to food and visitation, they said.

“Frequently, these are the kind of everyday things that in a community environment and nursing home environment, in particular, have heightened importance individually to a person,” noted Infante. “These are the things we can actually do something about before they escalate into an angry situation that turns into something that’s either a complaint to the state, a complaint to the government, or a call of the plaintiff’s lawyer.”

Referral sources, payers, politicians, government regulators, media portrayal of the industry, plaintiffs’ lawyers, insurance companies, vendors and partner relationships also pose litigation risk for operators, according to Infante and Littlehale.

Litigation risk isn’t limited to organizations either. Patient-care lawsuits, criminal actions, state attorneys general and Medicaid fraud investigations and lawsuits can come after individual workers too.

“You don’t want to see your name on that indictment,” said Infante. “In New York, for example, the nursing home administrator, the MDS nurse, among others, are charged criminally for not only patient care issues and neglect, but also for falsification of records.”

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