When Does a Citation Become a Misrepresentation?

The unfortunate reality for most long term care providers is that citations happen. While providers strive for citation-free surveys, the seeming subjectivity, inconsistency, and unpredictability of the regulatory oversight process make this goal more aspirational than realistic, especially for those with challenging resident populations and decreasing reimbursement rates. View full article (PDF).

Copyright 2010 American Health Lawyers Association, Washington, DC
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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.

Plaintiffs Cannot Recover Compensatory or Punitive Damages for Federal Disability Retaliation Claims … at Least for Now

The Ninth Circuit Court of Appeals recently issued an employer-friendly decision in Alvarado v. Cajun Operating Company. The appellate court ruled that, based upon the plain language of the Americans with Disabilities Act (“ADA”), compensatory (i.e., emotional distress) and punitive damages are not available to plaintiffs claiming retaliation under the ADA. Instead, only so-called “equitable remedies,” such as reinstatement, back pay or front pay, are available to persons claiming retaliation under the ADA. Because remedies for retaliation under the ADA are strictly equitable in nature, the Ninth Circuit also ruled that plaintiffs making such claims are not entitled to a trial by jury.

OSHA Issues H1N1 Compliance Directive for Healthcare Workers

On November 20, 2009, the Occupational Safety & Health Administration (“OSHA”) issued a Directive relating to healthcare workers’ occupational exposure risks to the H1N1 flu virus. The Directive is in the form of Instructions to OSHA Compliance Safety and Health Officers (“Compliance Officers”) and its applicability is limited to the inspection of workplaces where workers are likely to have “high” to “very high” occupational exposure risks. Workers at “high” and “very high” occupational exposure risk to the H1N1 flu virus include workers who, through close contact (within six feet), attend to patients with suspected or confirmed H1N1 flu virus, or who transport such patients in enclosed vehicles. The Directive provides that inspections of such workplaces will be conducted in response to worker complaints, referrals (including media referrals), or as part of a fatality and/or catastrophic event investigation.

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.

Oregon Expands Religious Accommodation Rights at Work

On July 16, 2009, Oregon Gov. Ted Kulongoski signed into law the Oregon Workplace Religious Freedom Act (“OWRFA”). The new statute takes effect on January 1, 2010.

OWRFA expands existing protections against discrimination based on religion in the workplace by requiring employers to reasonably accommodate an employee’s use of leave time for engaging in religious observance or practices. OWRFA also prohibits employers from instituting occupational requirements that restrict employees from wearing religious clothing, from taking time off for holy days, or from participating in a religious observance or practice. The OWRFA contains only one occupation-specific exception: Public school teachers will be prohibited from wearing religious dress while “engaged in the performance of duties as a teacher.”

View full article (PDF).

Landlord Can’t Exclude Folks Who Need a Little Help

Demand for adequate senior housing continues to expand. The Joint Center for Housing Studies estimated that in 2000, the 65 and older population was approximately 35 million, or 12.4 percent of the population. The age group will surge to 69.4 million by 2030, expanding the senior population to more than 20 percent of the total. View full article (PDF).

This article first appeared in the Puget Sound Business Journal.

Lane Powell Helps WHCA Win Significant Victory in Federal Court Challenge to Washington Boarding Home Law

On January 14, 2009, the United States District Court for the Western District of Washington struck down portions of RCW 18.20.440 as unconstitutional in Washington Health Care Association v. Robin Arnold-Williams, et al., No. 3:08-cv-05427-RJB. As a result of this ruling, any boarding home with a Medicaid contract signed before March 28, 2008 who wants to avoid the Medicaid “lock in” provisions of RCW 18.20.440 should either terminate their current Medicaid contract or refuse to renew the contract when it expires. View full article (PDF).

Demand for Assisted Living Remains Strong in Spite of Weakening Economy

While the residential housing market has certainly felt the strain of the recent mortgage industry failures, credit crunch and general real estate malaise, the assisted living housing segment has proven particularly resilient even in these difficult times. As the population of skilled nursing residents declines, assisted living is being recognized as part of a national policy to address the care needs of our aging population. It is a market segment typically premised on immediate housing (and care) needs, where the consumer cannot afford to wait out current market conditions in the hopes of realizing maximum value from the sale of the primary residence. View full article (PDF).

This article first appeared in Washington CEO magazine.

Legislation Affecting Boarding Home Providers’ Ability to Withdraw from Medicaid Program Passed by Legislature

On Wednesday, March 12, 2008, Washington House Speaker Frank Chopp signed Substitute Senate Bill 6807 which affects boarding home providers’ ability to withdraw from the Medicaid program. The legislation had been approved by both houses of the legislature earlier this week. The bill has now been sent to Gov. Christine Gregoire for signature. View full article (PDF).

OIG and HCCA Issue Government-Industry Roundtable Report – “Driving for Quality in Long-Term Care: A Board of Directors Dashboard”

On January 31, 2008, the U.S. Department of Health and Human Services’ Office of Inspector General (“OIG”) and the Health Care Compliance Association (“HCCA”) released a report entitled, “Driving for Quality in Long-Term Care: A Board of Directors Dashboard.” The OIG’s focus is preserving governmental health programs and operations by “protecting them against fraud, waste, and abuse” through a nationwide network of audits, investigations and inspections. Accordingly, when the OIG issues a report involving the long-term care industry, facilities should take notice. View full article (PDF).

Feeding Assistant Regulations Upheld by Ninth Circuit Court of Appeals

On Friday, August 31, the Ninth Circuit Court of Appeals rejected a challenge to the CMS Feeding Assistant Regulations. The regulations allow States to permit skilled nursing facilities to use trained personnel to assist in feeding residents lacking complicated feeding needs. View full article (PDF).

Less Freedom for Employers to Contract: The Oregon Legislature Toughens Laws on Noncompete Agreements

On August 6, Governor Ted Kulongoski signed Senate Bill 248 into law, making more onerous the requirements for a valid noncompetition agreement between employers and their employees. View full article (PDF).

The Most Important Ten Minutes: The Oregon Court of Appeals Creates a Private Right of Action for Missed or Short Rest Breaks

The Oregon Court of Appeals has decided that an employee has a private right of action against an employer for unpaid wages if the employer fails to provide paid rest breaks to the employee as required by Oregon law. However, the employee does not have a private right of action against the employer for failure to provide unpaid meal breaks.

In Gafur v. Legacy Good Samaritan Hospital and Medical Center, 213 Or.App. 343, 161 P.3d 319 (2007), the plaintiffs brought claims against their employer for regular and penalty wages based on allegations that the employer failed to provide paid rest breaks and unpaid meal breaks. The plaintiffs also alleged a breach of contract claim based on the theory that mandatory meal and rest breaks were inherent in their employment contract. View full article (PDF).

New Washington Domestic Partnership Legislation Affects Providers

As widely reported in the media, on July 22, 2007, legislation providing certain unmarried couples with many of the same rights and benefits held by married couples became effective in Washington. SSB 5336 created a state domestic partnership registry in the office of the Secretary of State, as well as amending a variety of existing laws to include state registered domestic partners in their coverage.

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).

Modification To The Federal Rules Of Civil Procedure

The United States Supreme Court recently approved proposed amendments to Rules 16, 26, 33, 34, 37 and 45 of the Federal Rules of Civil Procedure. On December 1, 2006, these modified rules pertaining to electronic discovery will become enforceable in federal courts. The new Federal Rules impose strict and broad requirements on civil litigants with regard to disclosure and production of electronic documents. The significant changes to these Rules address requirements for document retention or production of electronic data. View full article (PDF).

Deficit Reduction Act Deadline Is Rapidly Approaching – Providers Must Be Ready With Employee Education About False Claims and Whistleblower Protections

The federal government wants your employees to know more about false claims and whistleblower protections — and is requiring you to tell them. On January 1, 2007, key provisions of the Deficit Reduction Act (“DRA”) will go into effect, and employers should start preparing now. 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.