490 likes | 765 Views
Disclaimer. These materials have been prepared by HeathCap and Kitch Drutchas Wagner Valitutti
E N D
1. The Key to Past Non-Compliance (PNC)&Potential Implications of Uncontested Survey Findings in Civil Litigation Angie Szumlinski, NHA, RNC Director, HealthCap RMS
Angie.szumlinski@chelsearhone.com
734-996-2700
John Paul Hessburg Kitch Drutchas Wagner Valitutti & Sherbrook
John.hessburg@kitch.com
313-965-6696
2. Disclaimer These materials have been prepared by HeathCap and Kitch Drutchas Wagner Valitutti & Sherbrook PC, for informational purposes only and are not legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Readers should not act upon this information without seeking professional counsel. Photographs, articles, records, pleadings, etc., are for dramatization purposes only.
3. OBJECTIVES Define what is required to determine past non-compliance
Explain the role of the Quality Assurance Committee in establishing past non-compliance
Explain the importance of maintaining compliance with the plan of correction
Explain the potential relevance of survey findings to civil litigation
4. OVERVIEW Past non-compliance may be cited on Health and Life Safety Code surveys in nursing homes
Past non-compliance may be cited on any type of survey (standard recertification, abbreviated standard, e.g., complaint and revisit)
Data about past non-compliance tags are not carried forward to subsequent revisit surveys
IDRs will be allowed for past non-compliance tags
5. DISCONTINUED USE OF TAG F-698 The use of the generic survey data tag F698 for all past non-compliance citations was discontinued for all surveys with a survey exit date beginning on or after November 1, 2005
8. NEW SYSTEM CMS has modified the data system so that the specific nursing home survey data tag (F-tags for health deficiencies or K-tags for life safety code deficiencies) for which there was a finding of past non-compliance may be identified appropriately
9. WHAT IS PAST NON-COMPLIANCE? In plain English?
An unusual event occurs
A pattern of deficient practice is identified resulting in negative a outcome or with a high probability of a negative outcome
The Quality Assurance Committee develops a plan of correction to address the deficient practice and initiates the plan
10. THREE CRITERIA REQUIRED The facility was not in compliance with the specific regulatory requirement(s) (as referenced by the specific F-tag or K-tag) at the time the situation occurred
The non-compliance occurred after the exit date of the last standard re-certification survey and before the survey (standard, complaint, or revisit)( currently being conducted) and
There is sufficient evidence that the facility corrected the non-compliance and is in substantial compliance at the time of the current survey for the specific regulatory requirement(s) as referenced by the specific F-tag or K-tag
Whew
..lots of words
..lets take a look at each criteria!
11. CRITERIA #1 The facility was not in compliance with the specific regulatory requirement(s) (as referenced by the specific F-tag or K-tag) at the time the situation occurred. Examples include:
12. CRITERIA #1 EXAMPLES A resident fall occurs; the investigation reveals the resident was not assessed for risk of falls (per facility policy) and preventive interventions were not initiated
A resident is injured during a transfer using a mechanical lift; the investigation reveals that the staff member was never trained on safe use of the mechanical lift
In-house acquired pressure sores is another area commonly identified with past non-compliance
13. CRITERIA #2 The non-compliance occurred after the exit date of the last standard re-certification survey and before the survey (standard, complaint, or revisit) currently being conducted
14. CRITERIA #2 - EXAMPLES To Cite past non-compliance there must have been a:
Deficient practice identified after the last standard survey
Evidence that it was corrected before the current survey visit
Currently in compliance with the same regulatory requirement
15. CRITERIA #3 There is sufficient evidence that the facility corrected the non-compliance and is in substantial compliance at the time of the current survey for the specific regulatory requirement(s) as referenced by the specific
F-tag or K-tag
16. CRITERIA #3 - EXAMPLES Like a Plan of Correction to a Statement of Deficiencies
The Quality Assurance Committee develops a Plan of Correction (POC)
The interdisciplinary team implements the interventions in the POC and monitors through the Quality Assurance Committee
This is key; facilities who are not successful with past non-compliance attempts have often failed to monitor ongoing per the plan
17. Documentation of Past Non-Compliance 1. Past Non-Compliance that is not an Immediate Jeopardy and for which a quality assurance program has corrected the non-compliance should not be cited
NOTE: The facility needs to bring this to the attention of the surveyor
The facility must provide evidence to the surveyor who will contact their manager to review the information and make a determination if the evidence meets the criteria for past non-compliance
18. Documentation of Past Non-Compliance (cont.) 2. Past Non-Compliance identified as Immediate Jeopardy is entered on CMS 2567 under the specific deficiency tag, scope and severity with supporting documentation
3. The CMS 2567 should include the appropriate F-tag, date of deficiency, the date of past non-compliance, the evidence of past non-compliance and implementation of a plan of correction so that the civil money penalty can be determined
19. SURVEY DETERMINING PNC The surveyors may interview facility staff (i.e., administrator, nursing staff, social services, medical director, QA committee members, etc.) to determine what procedures, systems, structures, and processes have been changed since the deficient practice was identified
20. SURVEY DETERMINING PNC The surveyors may review how the facility identified and implemented interventions to address the non-compliance including but not limited to:
Interviews
Observations
Record review
21. INTERVENTIONS The facilitys review, revision or development of policies and/or procedures to address the areas of deficient practice
22. INTERVENTIONS EXAMPLE The facility QI report flags for weight loss
The policy and procedure for monthly weights does not indicate that a re-weight should be obtained if there is a 5# gain/loss
The policy does not state that the registered dietitian should be notified of all weight changes
The policy was updated to reflect these interventions
Staff were inserviced on the new weight protocol
23. INTERVENTIONS
The provision and use of new equipment as necessary; example:
24. INTERVENTIONS EXAMPLE The facility flags on the QI report for weight loss
An investigation reveals that the weight loss data may be inaccurate
A new scale is purchased
Weights begin to stabilize
It is determined that the scale was at issue and this was the corrective intervention
25. INTERVENTIONS The provision of staff training required to ensure ongoing compliance for the implementation and use of new and/or revised policies, procedures and/or equipment, especially with new and/or temporary staff
26. INTERVENTIONS EXAMPLE Resident is injured during a transfer using a mechanical lift
It is determined that the staff member performing the transfer had not been properly trained on the equipment
Training is provided to all direct care staff to ensure the equipment is used safely
27. INTERVENTIONS The provision of additional staffing, changes in assignments or deployment of staff as needed
28. INTERVENTIONS EXAMPLE Additional staff or changes in deployment has proven to be very effective especially if an acuity study is performed and it is determined that basic care needs are much higher than previously thought
Many facilities will successfully initiate permanent assignments
29. INTERVENTIONS The provision of a monitoring mechanism to assure that the changes made are being supervised, evaluated and reinforced by responsible facility staff
Remember, this is a QA system and QA systems require ongoing monitoring if they are to be effective
NOTE: FOLLOW THE MONITORING PLAN TO THE LETTER!
30. TRAP TO AVOID Avoid naming specific team members for ongoing monitoring. Use Director of Nursing OR DESIGNEE, Administrator OR DESIGNEE
Avoid locking yourself into a system where compliance cannot be maintained ongoing
Be sure to include an end date: i.e., will monitor weekly x 4 weeks then monthly x 3 months. This will allow you to stop the ongoing monitoring if the system is working well after 3 months
31. QUALITY ASSURANCE COMMITTEE Another area that is reviewed by surveyors when determining past non-compliance is to evaluate whether the committee is functioning well and:
32. QUALITY ASSURANCE COMMITTEE A well functioning committee will:
Identifying quality issues
Providing timely response to determine the cause of quality issues
Implementing corrective actions
Monitoring for ongoing compliance
33. MONITORING The world according to Angie
.this is the key!
The monitoring mechanisms must ensure continued correction and revision of approaches as necessary to eliminate the potential risk of occurrence to other residents and to ensure continued compliance
In other words, if the plan isnt working it is okay to revise it!
34. TO SUMMARIZE The deficient practice/violation must have been identified at or near the time it occurred
The event occurred after the last standard survey
The current survey information must indicate the facility is in compliance with the same tag
Corrective action was taken utilizing the four step plan of correction process
The plan of correction must have been completed prior to the current survey
35. STATEMENT OF DEFICIENCIES The 2567 will have a new look
The facility is not required to provide a plan of correction for a deficiency cited as past non-compliance as the deficiency is already corrected
The survey team will document the facilitys corrective actions on the CMS-2567
ASPEN will print tags cited as past non-compliance in tag number order on the CMS-2567
36. STATEMENT OF DEFICIENCIES The Providers Plan of Correction column will print Past non-compliance: no plan of correction required for past non-compliance tags
The Survey Team enters a correction date
The correction date must be before the survey start date of the visit identifying past non-compliance
37. PLAN OF CORRECTION A deficiency that is cited as past non-compliance does not require the nursing home to provide a plan of correction
The survey team documents the facilitys corrective actions on the CMS 2567 (similar to when an IJ is abated)
38. ENFORCEMENT Recommend the imposition of a Civil Money Penalty (CMP) for past non-compliance cited at the level of Immediate Jeopardy
Per Day fines
Per-Instance CMP when it is difficult to accurately establish when the past non-compliance occurred
39. CIVIL MONEY PENALTY (CMP) Civil money penalty is the only applicable enforcement action for a past non-compliance citation
Past non-compliance that is not Immediate Jeopardy for which a quality assurance program has corrected the non-compliance should not be cited
40. When Past Non Compliance is Not Successful - Post Survey Considerations Traditional Concerns
CMPs to Termination
Maintaining post POC compliance
Litigation Relevance tags / 2567
Evidence of negligence
Admission(s) against interest
Rebuttable
Maybe
Maybe not
.
41. 45 CFR 2 - How Could it Effect Us? Background
Bush administration quietly enacted a new rule for State and Federal Surveyors
Rule makes them all Federal employees
Traditionally, a Federal employee is shielded from providing evidence for either side during civil litigation
42. Scope of the Rule Does not apply to documents
Records are publicly available to anyone
New rule still allows for the access to records and reports
Testimony
It is the policy of the DHHS to maintain strict impartiality ? Not allowed to testify
45 CFR 2.1(b)
43. Testimony
No current or former DHHS employee may provide testimony or produce documents in any proceedings to which this rule applies
45 CFR 2.3
44. What type of Information is effected? Information is barred if it:
Was acquired in the course of performing official duties
Because of the persons official relationship with the DHHS
45 CFR 2.3
45. Exceptions to the Rule Any proceeding (State or Federal) in which the U.S or Federal agency is a part
Congressional requests
Consultative services
Employees serving as expert witnesses (giving their personal opinion)
Employees testifying in a private capacity not relating to DHHS
Matters involving FDA regulations
45 CFR 2.1(d)(1-7)
46. Exceptions to the Rule Agency can authorize an employee or former employee to testify
This will only occur when the agency head determines it is in the best interest of the agency for the employee to do so
45 CFR 2.3
47. Implications
48. Response to New Legislation Post survey handling more important than ever
Appeal citations state and federal
Substantive appeal
Delete cite altogether
Lower scope and severity
Out of substandard quality of care
Non harm
Unfounded conclusions
49. Summary Consider PNC before the State walks in
Be careful what we write in POC, IDR, etc.
Consider IDR / Fed Appeal
Re the SOD language
Re the merits of the tag(s)
Educate defense counsel
Surprises are not fun
50. The Key to Past Non-Compliance (PNC)&Potential Implications of Uncontested Survey Findings in Civil Litigation Angie Szumlinski, NHA, RNC Director, HealthCap RMS
Angie.szumlinski@chelsearhone.com
734-996-2700
John Paul Hessburg Kitch Drutchas Wagner Valitutti & Sherbrook
John.hessburg@kitch.com
313-965-6696