WILL HEALTH CARE REFORM CHANGE LONG-TERM CARE LITIGATION FOREVER? Chicago, IL ~ March 24 & 25, 2011
WILL HEALTH CARE REFORM CHANGE LONG-TERM CARE LITIGATION FOREVER? Moderator: T. Andrew Graham, Esq., Aging Services Group, Hall Book Smith & SloverP.C. Panelists: Christian Coleianne, FCAS, MAAA, Associate Director and Actuary, Aon Risk Solutions, Global Risk Consulting Actuarial and Analytics Richard Henry, Jr., President, Pendulum, LLC Andrew C. Schuh, Esq., Assistant General Counsel for Litigation, Sun Healthcare Group, Inc. Carolyn Toomey, Vice President, Long Term Care Division Leader, OneBeacon Professional Insurance
Healthcare Reform 101 Patient Protection & Affordable Care Act Reconciliation Act of 2010 Health Care Reform
Nursing Home Transparency & Improvement Act Patient Safety & Abuse Prevention Act Elder Justice Act
The Nursing Home Transparency Act
Media Call for Increased Nursing Home Transparency 2009
Nursing Home Transparency and Improvement Act of 2009 (S. 647) “More transparency will drive better quality care”
Nursing Home Transparency and Improvement Act of 2009 • Transparency • Education • Enforcement
Patient Protection & Affordable Care Act (2010) Nursing Home Transparency and Improvement Act of 2009 Transparency Enforcement Education
Patient Protection & Affordable Care Act (2010) Transparency Provisions • Disclosure Requirements • Real Time Nurse Staffing • Expansion of 5 Star • New Cost Reporting • Independent Monitors
Patient Protection & Affordable Care Act (2010) Education Provisions New Compliance and Ethics Programs Improvement of Training for Dementia and Abuse Prevention
Nursing Home Transparency Act (2010) Enforcement Provisions • Increased CMPs • CMP discounts for self-reporting • Escrow of CMPs
New Public Disclosure Requirement Goal: Increase Transparency Method: Create public availability of information about facility ownership and operations that was confidential before HCR
New Public Disclosure Requirement Source: HR 3590 EAS/PP, p. 1541 “Person or Entity” Title Function Ownership
Title Officer Director Member Partner Managing Employee Individual (including GM, business manager, administrator, director or consultant) who manages, advises, supervises any element of the practices, finances or operations
Function [Control]
Ownership
Disclosure of Organizational Structure
Availability of Public Disclosures Source: HR 3590 EAS/PP p. 1541
Expansion of Nursing Home Compare 12-24 months Source: HR 3590 EAS/PP p. 1562
Disclosure of 3 Years of Survey Data Immediate Action Required Available to any individual on request (March 2011) Post new notice of availability (March 2011) Source: HR 3590 EAS/PP p. 1567
Reporting of Direct Care Expenditures 12-24 months Source: HR 3590 EAS/PP p. 1573
Categorization of Functional Accounts 30 months Cost Report Expenditures Source: HR 3590 EAS/PP p. 1574
Categorization of Functional Accounts 30 months “Available to interested parties on request”
Nurse Staffing Accountability 12-24 months Source: HR 3590 EAS/PP p. 1577
Notification of Facility Closure Effective Now Source: HR 3590 EAS/PP p. 1594
Effective Now
Patient Safety and Abuse Prevention Act Establishes a nationwide system of criminal background checks for long-term care facilities Creates minimum requirements to be followed by the States Requires that the applicant be fingerprinted for use through the FBI's Automated Fingerprint Identification System
Elder Justice Act Each year, anywhere between 500,000 and 5,000,000 elders in the United States are abused, neglected or exploited
Elder Justice Act Victims are 3.1 times more likely to die at an earlier age than expected
Elder Justice Act Experts agree that most cases of elder abuse are never reported.
Reporting of Crimes • Report to Secretary (HHS) any “reasonable suspicion” of a crime against a resident • If serious bodily injury, report within 2 hours • If not serious bodily injury, within 24 hours • Penalties: • Not more than $200,000.00; AND • Exclusion from program
Reporting of Crimes • Increased Harm: • If you don’t report and that failure results in more harm to the resident then a CMP of up to $300,000.00 may be assessed along with the possibility of exclusion from the program • No retaliation against employees who report: • Additional penalties of up to $200,000.00 and exclusion from the program
QUESTIONS?
WILL HEALTH CARE REFORM CHANGE LONG-TERM CARE LITIGATION FOREVER? Moderator: T. Andrew Graham, Esq., Aging Services Group, Hall Book Smith & SloverP.C. Panelists: Christian Coleianne, FCAS, MAAA, Associate Director and Actuary, Aon Risk Solutions, Global Risk Consulting Actuarial and Analytics Richard Henry, Jr., President, Pendulum, LLC Andrew C. Schuh, Esq., Assistant General Counsel for Litigation, Sun Healthcare Group, Inc. Carolyn Toomey, Vice President, Long Term Care Division Leader, OneBeacon Professional Insurance
