April 16, 2014
3800 VerMaas Place, Suite 200
Lincoln, NE 68502 (map)
Phone: 402.475.7011
Toll Free: 800.714.3439

QAPI, Not Penalties to Reduce Adverse Events in Skilled Nursing Facilities

   In a report released by the Health and Human Services Office of the Inspector General (OIG), more than one in five Medicare beneficiaries receiving skilled care after a hospitalization experiences an adverse event.  The study defined an adverse event as harm that resulted in a longer stay in the skilled nursing facility or transfer to a hospital, permanent harm life-sustaining intervention, or death.  These adverse events are preventable and the resulting care and hospitalizations cost Medicare an estimated $2.8 billion in 2011, the year the study was conducted.

   The OIG stated that this study confirmed the need and opportunity for skilled nursing facilities to reduce the number of adverse events to residents and recommends that CMS direct the state surveyors to review facility practices for identifying and reducing adverse events.  When asked how they intended to deal with these adverse events, the CMS stated they did not want to approach the matter using harsher penalties and that survey citations won’t be the primary way for dealing with these incidents.  Rather, they want to focus on helping nursing care providers in setting up quality improvements specifically through the use of QAPI.

   The OIG recommended that CMS work on developing lists of preventable events to help skilled nursing facility’s staff understanding, include preventable events on the QAPI systems and to encourage facilities to report adverse events to safety organizations.  The OIG also recommended that CMS tell state surveyors to include an assessment of adverse event identification and reduction in their QAPI compliance and to link related deficiencies to their resident safety practices.  CMS did say that they are working to include guidance for surveyors on how to evaluate nursing facilities efforts to identify and reduce adverse events in their QAPI requirements.

   CMS still has not stated when QAPI will formally roll out. 

Employers and Employees Can Contract When Commissions Are Earned

The Nebraska Wage Payment and Collection Act, Neb Rev. Stat. §§ 48-1228 to 48-1232, requires that if the employer-employee relationship is terminated, the employer shall pay the employee all of the earned wages on the next regularly scheduled payday following the termination, or within two weeks of termination whichever is sooner.  Earned commission is considered earned wages and must be paid as well. However, commission is not payable until the employer has received payment, but as long as the commission has been earned, the employee is entitled to it.

Determining when the commission is earned could potentially be the tricky part. The Nebraska Wage Payment and Collection Act sets forth that unless the employer and employee specifically agree otherwise then commissions are earned on all orders delivered and all orders on file with the employer at the time of the termination. This is the default standard for when commissions are earned, but the standard can be changed if the employer and employee specifically agree to use a different standard. The Nebraska Supreme Court allowed a different standard in Coffey v. Planet GroupTherefore, it is always a good idea for both employers and employees to know when the commission is earned.

Office of Public Guardian

Legislative Bill 920, which creates the Office of the Public Guardian under the jurisdiction of the Nebraska State Court Administrator, passed in the Nebraska Legislature. A need for guardians and conservators exists when there is no one suitable or available to serve the needs of an individual, and the Office of Public Guardian will provide service for individuals in such circumstances. The Office of Public Guardian establishes a director of the Office of Public Guardian, a deputy public guardian, and up to twelve associate guardians.

Wage Theft and Paystub Bill Advances for Final Reading

Nebraska Employers should be aware that the 2014 Nebraska Unicameral Business and Labor Committee has advanced LB560 for “Enrollment and Review for Engrossment.” The bill would significantly alter the Nebraska Wage Payment and Collection Act, addressing wage theft, mandating new wage itemization, and authorizing investigations with penalties.

If passed suspected wage theft could result in an investigation by the Department of Labor, complete with subpoena power for witnesses and records.  Employers would face a civil penalty of $500 for a first offense and up to $5,000 for subsequent offenses. Citations and penalties could be contested within 15 days through the administrative process.

Employers would also become obligated to provide non-exempt employees with an itemized statement listing their wages and deductions on each payday. Employers would generally not be required to provide such information for employees exempt from overtime under the Fair Labor Standards Act unless the employer had a practice or policy of paying bonuses or overtime based on hours worked.  Failure to do so would lead to an infraction under Neb. Rev. Stat.  § 29-436, meaning fines of up to one-hundred dollars for a first offence, three-hundred dollars for a second offence within a two year period, and up to five hundred dollars on a third or subsequent conviction within two years.

The significance of the Enrollment and Review of this bill stems from the fact that the bill is prepared for final reading after having been advanced from Select File. The bill was a carryover from 2013, and this year several amendments have been adopted or rejected, and it is generally considered ready for final preparation and a vote. Employers should therefore pay close attention as this bill appears on track to becoming law.

New CDC Website Provides Tools to Fight Infections

The Centers for Disease Control and Prevention (CDC) has started a new website to help long term care providers gain access to information and resources to help in the prevention of infections in nursing home residents.  The site provides information to clinical staff, infection control coordinators and residents.

The CDC estimates that there are 1 to 3 million serious infections occurring each year in the long term care setting.  The site will provide information on hand hygiene, antibiotic management and dialysis safety.  Long term care providers will also have access to the CDC’s infection tracking system and to resources that the CDC has developed in partnership with the Advancing Excellence in America’s Nursing Homes Campaign (AE).  The two share a common goal in preventing c. difficile infections in nursing home residents.

The new website will promote AE’s resources on infection control in hopes it will extend AE’s campaign along with providing additional tools in the fight against infections.  The new website can be accessed http://www.cdc.gov/longtermcare/

 

Planning for Family Vacation Homes

Distributing a family vacation home can exacerbate existing disputes or create new conflicts among a family if proper planning has not taken place. Multiple options are available to assist with the orderly use and management of the property during life, and can also facilitate the transfer of ownership to future generations. Holding the property in trust is one such option.

A trust holding a family vacation home typically includes specific instructions regarding how the vacation home will be passed down, managed and maintained. The Trustee is often given sufficient flexibility and discretion to manage the property, although the grantors have the ability to specify how the property is to be handled.

Since vacation homes come with expenses, consideration should be given to the payment of the mortgage, taxes, maintenance and other general expenses, and the trust should have sufficient liquid assets to pay the expenses. The grantors also have the ability to address scheduling, whether or not the property will be rented, compensation for maintenance performed by family members, and related issues.

Although a great option, there are some limitations regarding the amount of time property can remain in trust, which is one consideration that will need to be addressed before transferring the property into a trust.

Employment Law: Unpaid Wages

What recourse does an employee have when and employer decides to stop paying his or her wages?

The employer obviously has the bargaining advantage as it is not living paycheck to paycheck as employees often are, hiring an attorney to collect the unpaid wages is often times not cost-effective for the amount of wages owed, and because Nebraska is an at-will state, the employer can terminate the employee for any lawful reason.  With that in mind, the Nebraska legislature set forth to try and level the playing field between employees and employers when it comes to unpaid earned wages, including commissions.  The Nebraska Legislature created a potent weapon for Nebraska employees, namely, the Wage Payment and Collect Act, Neb. Rev. Stat. § 48-1228 et seq. (“the Act”).

Perhaps the single most effective portion of the Act allows for attorney’s fees and all costs of the suit to be paid by the employer no matter the amount of unpaid wages in controversy, as long as the employee establishes a claim and secures judgment on that claim.  The Act also provides duties employers have to its employees, including statements employers must furnish if requested by employees and deadlines in which to do so.  The Act even provides a punitive measure of double damages against the employer if it is determined that the employer was willful in its nonpayment of wages.

Providing for Fido: Pet Trusts

A trust may be created to the extent its purposes are lawful, not contrary to public policy, and possible to achieve. Over the next several weeks, we will discuss unique reasons to create trusts, beginning with trusts implemented to care for pets.

A pet trust can be created to provide for the care and maintenance of pets in the event of the owner’s death or disability. In Nebraska, a trust can be created to care for any animal alive during the lifetime of the settlor, the person who creates the trust. The trust terminates upon the death of the animal or, if the trust was created to provide for the care of more than one animal alive during the settlor’s lifetime, upon the death of the last surviving animal.

The pet trust should include detailed instructions in order to provide the owner with peace of mind that the animals will be cared for according to the owner’s wishes. In addition, specific directions allow for a smooth transition between the pet and new guardian.

The settlor will have the opportunity to nominate a caretaker and a trustee in the trust. The trustee will be responsible for managing the trust assets and providing regular payments to the caretaker for the purpose of caring for the animals. Additional provisions can be included to accomplish the settlor’s specific wishes. For example, a provision to keep certain animals together may be included in the document.

Pet trusts are a helpful tool available to pet owners and careful consideration should be given to the creation of the trust in order to ensure the settlor’s wishes are properly carried out.

2014 Health Care Legislation Introduced

The Nebraska Legislature began its 2014 session on January 8th and over the first ten days of the session Senators introduced several pieces of legislation which could potentially impact nursing home facilities throughout Nebraska.

Senators Steve Lathrop and Les Seiler have proposed amendments to the Nebraska Hospital-Medical Liability Act to increase the amount recoverable from a health care provider for any injury or death of a patient.  Sen. Lathrop introduced LB 862 and proposed to increase the limit to $2.5 million.  Sen. Seiler proposed LB 893 which would increase the limit to $2 million.  Currently the amount someone could recover under the Hospital-Medical Liability Act is $1.75 million which was set in 2004.

Senator Kathy Campbell introduced LB 887 which would adopt the Wellness in Nebraska Act.  The proposed legislation would expand health coverage to individuals who are newly eligible for medical assistance.  It would allow those newly eligible individuals who do not have access to employer sponsored insurance but are not at the federal poverty level and do not have an exceptional medical condition to enroll in a qualified health plan.  The bill would also require that any private managed care organizations that provide “WIN Medicaid” coverage to ensure the newly eligible individuals have access.

Senator Colby Coash introduced LB 920 which would adopt the Public Guardianship Act.  This bill would create an Office of Public Guardian to provide individuals too incapacitated persons when no private guardian or conservator is available.  The public guardian will have the power to hire a deputy guardian and up to twelve associate public guardians.  The proposed legislation puts a limit of an average of 40 individuals for each associate public guardian.

LB 1072, introduced by Sen. Lathrop, would set up a board to maintain a prescription monitoring program with regards to dispensing controlled substances and other drugs identified as a potential for abuse.  The program will provide real time access to prescriptions information generated by dispensers and prescribers regarding a controlled substance.  The patient may not opt out of having the information shared through the program, but the information in the program is not subject to public disclosure unless requested by a subpoena.

These proposed legislative bills have not been adopted and will be discussed and analyzed throughout the 2014 session.

New Healthcare Laws Take Effect

On September 6, 2013, most of the laws the Nebraska State Legislature passed during the 2013 legislative sessions became effective.  Among those bills were LB 459 and LB 326.  In order to prevent several communicable diseases, LB 459 requires acute hospitals, immediate care facilities, nursing facilities and skilled nursing facilities to offer on-site vaccinations of diphtheria, tetanus, and pertussis prior to a patient or resident’s discharge.  LB 459 does not require facilities to pay for the cost of the vaccinations; it can be passed onto the resident.

Legislative Bill 326 amended the Automated Medication Systems Act to allow long-term care facilities to register and operate automated medication systems which will be licensed as a separate pharmacy.  In order for a nursing home to have an automated medication system, a pharmacist in charge of a licensed pharmacy must annually license the automated medication system.  It is the responsibility of the pharmacist to ensure that the automated medication system complies with Federal Drug Enforcement Administration and State Law.  The long-term care facility must comply with the policy and procedures that the pharmacist puts in place.  If a long-term care facility has an automated medication system the residents are not forced to receive their prescriptions from the automated pharmacy, they still have the choice to choose their pharmacy.

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