Avoiding Marketing Pitfalls That Could Bring Litigation to Your Doorstep

Most providers of senior housing and assisted-living services market their communities in many ways; through written materials, web-based advertisements, testimonials, and broad-based advertisements, to name just a few. Once created, an operator cannot control these materials’ circulation. The materials create a look, feel and impression of a community, and sometimes they can make implicit promises of results. These materials can create exposure for an operator. The following discussion will identify areas of legal exposure and offer suggestions to mitigate your risk by working with your marketing team toward a mutual goal of accurately communicating what you provide to your residents, setting reasonable expectations for the residents, and mitigating risk.

Washington Supreme Court Issues Ruling on Certificate of Merit and Continues to Preclude CPA Claims in Professional Liability Cases

The Washington Supreme Court has recently issued two significant rulings impacting the Long Term Care and Seniors Housing industry.

Preparing for and Responding to Issues Relating to Flu Season and Specific Considerations Regarding the H1N1 Influenza Virus

On October 9, 2009, the Equal Employment Opportunity Commission (“EEOC”) updated its pandemic preparedness technical assistance document. This update is just another reminder that flu season is here. The EEOC update follows on the heels of the Secretary of Homeland Security’s issuance of a preparedness guide for businesses, specifically regarding the H1N1 influenza, and similar information provided by the World Health Organization (“WHO”). The Centers for Disease Control and Prevention (“CDC”) has also issued interim guidance on infection control measures. As the sheer volume of information about the coming flu season can be daunting, the following highlights particular concerns of these agencies as applies to businesses and provides practical tips for employers in preparing for and responding to the influenza virus.

Limited Government Involvement: A Better Cure For What Ails Health Care

Emerging from the July Fourth recess, Congress confronted at least 10 “major” health care reform proposals including legislative drafts and white papers.  Each of these proposals would dramatically expand government’s role in financing and delivery of health care through methods ranging from completely replacing the current system with a government-run health insurance program for all Americans, to mandating that everyone maintain health insurance coverage and funding expanded access through various taxes and penalties.  The cost of these reforms has been estimated to be somewhere between $1 trillion and $3.5 trillion over 10 years.

View full article (PDF).

This article appeared in Washington Business magazine, a publication of the Association of Washington Business.

Tax Provisions in Proposed Health Care Legislation Would Limit Benefits Provided by U.S. Income Tax Treaties

Foreign companies with activities in the United States should take note of the “Americans Affordable Health Choices Act of 2009″ (“H.R. 3200″). Although H.R. 3200 primarily addresses health care reform in the United States, it also includes a tax provision that affects the U.S. taxation of U.S. source interest, dividends, rents and royalties paid to foreign companies otherwise entitled to preferential tax rates under U.S. income tax treaties.

If H.R. 3200 is enacted, the preferential tax rates provided by U.S. income tax treaties for interest, dividends, rents and royalties may not be available to a foreign corporation if received from its U.S. subsidiary corporation.

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President Obama Signs Stimulus Bill Expanding Health Care Coverage Continuation Rights For Employees

President Obama today signed into law the economic stimulus bill, formally known as the American Recovery and Reinvestment Act of 2009 (the “2009 Recovery Act”). The 2009 Recovery Act contains an important expansion of health coverage continuation rights for employees who were or will be involuntarily terminated between September 1, 2008, and December 31, 2009. These involuntarily terminated employees qualify for a 65 percent reduction in their continuation health plan premiums. Their covered family members who elect continuation coverage also qualify for the same subsidy. View full article (PDF).

Health Care Commitments and Realities – Facing a Difficult Economy, President Obama will Find Health Reform a Challenging Promise to Keep

Early in pursuit of the presidential nomination, Sen. Barack Obama acknowledged two health-care reform realities: Covering more people will cost more money, and a government-run, single-payer program might not make sense in an established system with heavily invested stakeholders. How will reform commitments and economic realities play out in the new administration? View full article (PDF).

This article first appeared in Seattle Business magazine.

Legal Matters: Association Health Care Plans Work

Fourteen years ago, Washington’s state Legislature adopted comprehensive health care reforms intended to expand health insurance coverage through sustainable, affordable, quality programs. These reforms, while controversial, were well-intended. The goals were unassailable and the details complicated. View full article (PDF).

This article first appeared in Washington Business Magazine.

MS Issues QandA as Final Guidance on Requirements of Deficit Reduction Act

As most providers know by now, the federal Deficit Reduction Act (“Act”) requires covered providers to establish written policies aimed at educating employees about false claims and whistleblower protections. Section 6032 of the Act applies to all entities that receive or bill at least $5 million in Medicaid funds. Compliance with the employee education provisions of the Act is a prerequisite to receiving Medicaid funds. The Act went into effect on January 1, 2007. View full article (PDF).

Advertising for Senior Housing and Compliance with the Fair Housing Act

America’s senior population has already begun to grow. That increase will accelerate dramatically in 2011 when the generation born between 1946 and 1964 (Baby Boomers) begins to turn 65. View full article (PDF).

This article appeared in the September/October 2006 issue of The Quality Provider.

Medical Malpractice Reform Adds Additional Mandatory Requirements to Plaintiffs, Defendants and Counsel

Pursuant to legislation enacted in the last legislative session (effective June 7, 2006), potential claimants in any civil action against a health care provider for personal injuries based upon alleged professional negligence face more stringent filing requirements, which could help curb baseless claims. RCW 7.70 et seq (regarding actions for injuries arising from health care), which was amended by this new law, includes nursing homes in its definition of a health care provider, and many of the new provisions of this law will affect personal injury/wrongful death cases filed against nursing homes. View full article (PDF).

Medicaid Law Changes Require Evidence of Citizenship

Beginning July 1, 2006, U.S. citizens seeking Medicaid benefits will have to provide evidence of citizenship. The new requirement to verify documentation when applying for Medicaid is intended to prevent illegal immigrants from declaring they are citizens and obtaining Medicaid benefits. View full article (PDF).

New “Open Letter” to Providers From the Inspector General Encourages Increased Use of Self Disclosure Protocol For Stark and Kickback Violations

On April 24, 2006, the U.S. Department of Health and Human Services’ Office of Inspector General (“OIG”) released “An Open Letter to Health Care Providers” regarding a new initiative to encourage self-reporting by providers. The focus of the OIG is to watchdog governmental health programs and operations by “protecting them against fraud, waste, and abuse.” The OIG’s duties are carried out through a nationwide network of audits, investigations and inspections. Accordingly, when the OIG speaks, long term care facilities should listen. View full article (PDF).

Office of Inspector General Releases 2006 Work Plan: What Nursing Homes Should Know

On November 16, 2005, the U.S. Department of Health and Human Services’ Office of Inspector General (“OIG”) released its 2006 Work Plan. The focus of the OIG is to watchdog governmental health programs and operations by “protecting them against fraud, waste, and abuse.” The OIG’s duties are carried out through a nationwide network of audits, investigations and inspections. Accordingly, when the OIG speaks, nursing homes should listen. View full article (PDF).

CMS Letter to SA Directors Provides Guidelines For Nursing Home Compliance With Federal Screening Requirements During the Hiring Process

On September 22, 2005, Centers for Medicare and Medicaid Services (“CMS”) issued a letter to State Survey Agency (“SA”) Directors asking them to remind all Medicare and Medicaid participating nursing homes of the federal requirements related to screening potential employees and checking with all appropriate nurse aide registries. View full article (PDF).

Nursing Home Litigation: Avoid Twelve Angry Jurors

Enormous jury verdicts against nursing homes for injury and death damages have become too numerous to blame on an isolated runaway jury or two. It’s interesting to note that some typical driving factors for large damage awards are missing from these cases. That is, things like lost earnings, life expectancy and extent of disability are not usually at issue with an elderly resident of a nursing home. View full article (PDF).

This article appeared in the September 2005 issue of Oregon Business Magazine in a special section titled, “Oregon Business Law Journal: Oregon attorneys offer legal advice for business leaders.”

Skilled Nursing Facility Prospective Payment System Final Rule Mandates RUG Refinements

On August 4, 2005, the Centers for Medicare and Medicaid Services (“CMS”) released its final rule updating the Skilled Nursing Facility (“SNF”) Prospective Payment System (“PPS”) for fiscal year 2006. The final rule contains a number of policy changes that could affect future reimbursement rates. View full article (PDF).

How Seemingly Reasonable Precautions Sparked Decades Of Litigation Over The Use Of Siderails

The risks and benefits of side rails in acute care and long-term care settings continues to be the focus of considerable debate. A universally accepted tenant of this debate declares that the routine use of side rails resulted more from a fear of liability than from individual determinations of usefulness. View full article (PDF).

Nonprofits Under Fire – Lawsuits attacking tax-exempt status pose risk for many health care facilities

Jennifer Beyerlein, Barb Duffy, and Charles Huber explain the risks facing the tax-exempt status of many health care facilities in a health care law focus article titled, “Nonprofits Under Fire,” that was published in the March 14, 2005, edition of Legal Times. With the explosion of litigation against nonprofit health care facilities, the Long Term Care and Senior Housing group may be bracing for a new wave of litigation as elder care facilities are targeted. View full article (PDF).

Centers for Medicare and Medicaid Services Clarifies Reporting Requirements for Alleged Violations of Mistreatment, Neglect and Abuse, Including Injuries of Unknown Origin

In late December 2004, the Director for the Center for Medicaid and State Operations/Survey and Certification Group of the Centers for Medicare and Medicaid Services (“CMS”) issued a clarification of the reporting requirements for allegations of abuse and neglect. See S&C-05-09 Dec. 2004. This clarification was issued at the request of state survey agencies. CMS’s clarification applies only to nursing homes. However, because state survey agencies are inclined to apply a one-size-fits-all approach to issues pertaining to reporting of abuse and neglect, we expect that CMS’s recent clarification will impact all senior housing providers, not just nursing homes. View full article (PDF).