Skip to Main Content

Long Term Care and the Law 2022

Schedule

This program will be formatted as a traditional two and a half day in-person program - we are excited for attendees to connect and network in person.

AHLA is committed to providing a safe and healthy environment for program participants and staff. AHLA has adopted preventative measures to reduce the potential spread of the COVID-19 virus, including requiring masks, and is following guidance provided by the US Centers for Disease Control and local authorities. Attendees are also expected to do their part and abide by AHLA’s Duty of Care.

SNF – Skilled Nursing Facility; AL – Assisted Living; HH – Home Health; Hospice – Hospice


Tuesday, February 22, 2022

4:00-6:00 pm
Registration and Check-In

 


Wednesday, February 23, 2022

7:00 am-4:30 pm
Registration and Check-In
8:00 am-1:00 pm

Assisted Living In-House General Counsel Roundtable sponsored by NCAL
(Pre-registration is required: space is limited; open to Assisted Living In-House Counsel only)

9:00-10:15 am Extended Sessions 

1. Beyond SNF: Intro to Post-Acute / Fundamentals of Medicare and Medicaid Reimbursement in Long Term Care
(not repeated)

Marian J. Hayden
Paula G. Sanders

  • Structure and background of the Medicare Program: History, program administration, and operation
  • Medicare coverage: Statutes, manuals, LCDs, NCDs, ALJ decisions, legislative history, resources
  • Components of Medicare programs, Parts A–D: Eligibility criteria, provider types, current reimbursement system, quality incentives affecting reimbursement, and appeals process
  • Medicaid fundamentals: Overview of state programs, eligibility criteria, covered benefits, reimbursement and financing, recent reform, and developments
 

2. Long Term Care Surveys and Appeals: Perspectives from Providers and Regulators
(SNF)

Alan C. Horowitz
Larry Johnson
Janine Lehman

  • Recent developments in administrative law that may change the calculus when advising clients to file an appeal of a CMS enforcement action
  • Answer the question, “Does the survey process achieve quality care?” while considering AMDA’s Position Statement on survey reform. Consider what changes are needed to make the survey process more effective
  • The best practices for survey “readiness” 365 days a year. Learn what facilities can do to keep staff prepared for survey at all times
  • The current “Top 10” deficiencies cited as of December 2021 and best practice recommendations for how to prevent them
  • Nationwide trends of survey findings and a look at survey changes and priorities throughout the pandemic
 

3. OSHA and CMS Vaccination Mandates–What Healthcare Employers Need to Know
(AL, SNF)

Lisa J. Cooney
Kevin Koronka

  • Understanding the vaccine mandates, testing alternatives, and requirements
  • Application of rules based on type of facility, including “hard” vs. “soft” mandates
  • Documenting and evaluating requests for religious and medical exemptions
  • Recordkeeping requirements concerning vaccination status and/or test results
  • Legal challenges to mandates
  • Enforcement and penalties for noncompliance
10:45-11:45 am

4. Predictive, Preventative, and Proactive: The Three “Ps” of Minimizing Risk from Internal- and External-Facing Fraud in Nursing and Long-Term Care Facilities
(not repeated)
(SNF)

Thomas H. Barnard
Amanda Fletcher

  • Statistics specific to the health care industry as it relates to occupational fraud
  • Tips for preventing and detecting fraud within facilities using real-life case study examples
  • Common areas and types of fraud unique to long term care facilities
  • Legal theories relied on by the government in Fraud/False Claims Act investigations
  • Specific COVID related fraud issues
 

5. Legal Ethics: Understanding the scope of the Quality Assurance Privilege
Ashlee M. Gray
Aleah M. Schutze

  • The background and policy for the Quality Assurance Privilege
  • Recent case law regarding the privilege
  • Compare and contrast the ways that courts have interpreted the use and breadth of the Quality Assurance Privilege
  • Best practices for utilizing and preserving the privilege
 

6. Employment Law Issues for Long Term Care Providers: Whistleblower, Retaliatory Discharge, and Patient Safety
Andrew Smith

This presentation will cover common employment-related claims made by long term care employees related to retaliatory discharge/patient safety complaints/whistleblower allegations. Specifically, it will cover:

  • Internal policies and procedures–clear delineated internal complaint process for all issues related to patient care, including staffing
  • Acknowledgements by employees–facility policies, reporting responsibilities, contact information for all appropriate state and federal authorities having jurisdiction over facility
  • Complaints of patient safety issues–documentation of nature of complaints, investigative efforts, and resolution
  • Termination–documentation of legitimate reasons for termination
  • Litigation–litigation strategies to combat retaliatory discharge claims, including benefits/drawbacks of mandatory arbitration
11:45 am-1:00 pm
Lunch on your own
1:15-2:15 pm

7. Caution Ahead: Hot Point Home Health Legal and Compliance Issues
(not repeated)
(HH, Hospice)

Sean J. Fahey
Elizabeth E. Hogue

Current legal and compliance challenges in home health:

  • Enforcement trends
  • Medical Director Agreements
  • Payments to marketers
  • UPIC audits
  • Kickbacks to discharge planners and case managers
 

8. Transactions and the Second Half of the Marathon–Getting Senior Living Transactions from Executed Purchase Agreement To and Past Closing
(AL, SNF)

Daniel Merriman
Gregory Pyle

The session provides background on a number of issues related to the transition of ownership, operators, and employers in a transaction. The approach of the session focuses on the events after successful negotiation of sales terms between buyer and seller and navigating a path to a successful closing.

  • Steps, tricks and timing for obtaining licensure; navigating tricky regulations and licensing agencies. Also, managing surveys and complaints
  • Impact of incoming structure to licensure steps; evaluating the differences of an asset sale, stock sale, and other approaches to structure on the transition
  • Operating in bridge or interim structures in jurisdictions where licensing is particularly slow
  • Analysis of the issues surrounding the transition to a new employer; policies and handbooks; training compliance, contracts, and turnover management
  • New operator transitions and managing residents; adapting to new operational procedures and managing resident relations
  • Managing contracted vendors and other related third parties
 

9. Show Me the Documentation!–How Good Documentation Can Save (and Even Make) an ALF/MC Community Money and Time​
(AL)
Lori C. Ferguson
Kris D'Ann Maples

Documentation requirements for Assisted Living Facilities vary from state to state and are typically not as stringent as for skilled nursing, home health, or hospice. However, good documentation can make or break an ALF, whether it be defending liability claims, evidencing the need for immediate discharge, preventing survey citations, supporting increases in level of care, or just assisting your staff to provide better care to residents. In this session, we will use a case-study approach to discuss:

  • Why ALF/MCs should encourage more consistent and timely documentation, even if state regulations do not require it
  • How documentation can impact a community’s defense of potential claims/actions by the state, managed Medicaid providers, residents, or families
  • How documentation can help or hurt you when looking to terminate a resident agreement, including appeals of discharge or legal evictions
  • How documentation can educate families about a disease process (especially dementia), the need for increased care services within the Community, or the need to move a resident on to a facility that can provide a higher level of care
  • General best practices for documentation
2:15-2:45 pm
Coffee Break
Exhibits Open–Meet the Exhibitors
2:45-4:30 pm General Session

2:45-3:00 pm
Welcome and Introduction
Cindy Reisz, AHLA President
Barbara J. Duffy, Program Planning Committee Chair

3:00-3:30 pm
OIG Update
Erin Bliss

This session will highlight OIG’s oversight and enforcement priorities to protect the health and safety of nursing home residents. Key goals of OIG’s nursing home initiative are to:

  • Protect nursing home residents from COVID-19 and other emergencies
  • Protect nursing home residents from abuse, neglect, and failures of care
  • Strengthen frontline oversight of nursing homes
  • Monitor and mitigate quality-of-care risks to nursing home residents

3:40-4:30 pm
10. Keynote Speaker
Barbara J. Duffy (Moderator), Morgan Katz, MD, MHS

4:30-5:30 pm
Networking Reception
(This event is included in the program registration. Attendees and faculty are welcome.)

 

Thursday, February 24, 2022

7:00 am-5:30 pm

Registration and Check-In

7:00-8:00 am

Continental Breakfast
(This event is included in the program registration fee. Attendees and faculty are welcome.)

8:00-9:00 am

11. Worth a Second Glance? Informal Dispute Resolution for Nursing Facility Survey Deficiencies
(not repeated)
(SNF)

Nathan C. Mortier
Stanton J. Stock

  • Federal regulations require states to offer skilled nursing facilities, nursing facilities, and dually participating facilities an informal opportunity to dispute cited deficiencies
  • State Informal Dispute Resolution (IDR) processes vary widely among states but offer a likely underutilized opportunity to address deficiencies separate from the formal process for appeals of sanctions arising out of cited deficiencies
  • Both state and federal “Independent” IDR processes provide different opportunities to challenge survey deficiencies and sanctions
  • Utilizing IDR effectively requires a detailed understanding of the specific rules, timeframes, and players involved
  • Introduce attendees to these considerations, examine the interplay between IDR and other dispute mechanisms, and assist counsel to facilities in utilizing IDR effectively and strategically
 

12. The IMD Exclusion and Federal Funding for Mental Health Treatment
(not repeated)
(SNF)

Emma P. Pelkey
Emily M. Solum

  • Background on the IMD Exclusion
  • Changes to the IMD Exclusion by the 21st Century Cures Act and several other legislative and regulatory actions in response to the opioid epidemic
  • Medicaid waiver opportunities for institutional/long-term care mental health treatment
  • The support/opposition received in response to state waiver applications
  • Funding opportunities for skilled nursing facilities providing behavioral health services
 

13. Tools for your Toolbox–Defending Claims and Litigation in a COVID-19 World​
(SNF)

Christy T. Crider
Lynn K. Fieldhouse
Thomas G. Goodwin

COVID-19 changed the landscape for Long Term Care providers. We will discuss how the pandemic impacted COVID-19 and non-COVID-19 claims and litigation, as well as offer strategies for preparing and defending these claims and lawsuits in light of the “new normal.”

  • Many state COVID-19 Executive Orders, Public Health Orders, and immunity statutes are broader than you think
    • Strategies that work for sweeping non-COVID-19 related claims under those statutes, including claims alleging understaffing as wells as whether the community was appropriate given the resident’s acuity level
  • Finding, preparing, and often neutralizing caregiver witnesses has never been harder
    • Tools that work for doing this successfully
  • Giving your jury or arbitrator the lens to accurately view the claim or lawsuit requires you to take them back in time to what the community or facility was doing during the relevant timer period
    • Tips on what you should be doing now to preserve that picture
    • The critical role of experts in focusing on issues to provide an accurate picture
  • Traditional visitation stopped for large windows of time during the pandemic, this resulted in:
    • Residents declining more quickly
    • Families not witnessing gradual declines. We call these "snapshot" claims. They had a snapshot of the resident when they dropped them off and then a snapshot when they required medical treatment or a higher level of care. This results in an increase in claims
      • How to use the snapshot defense
  • The pandemic changed jury composition
  • How juries have changed and how we must adjust our jury selection and trial themes as result
    • Trial themes that work, including how to turn the tables on prolific plaintiff themes
 

14. Anatomy of a COVID-19 Enforcement Appeal
(SNF)

Joseph L. Bianculli
Jacquelyn Smith Clarke

The speakers have prepared and tried several of the early COVID-19 enforcement appeals, including Life Care Center of Kirkland and Sagepoint Nursing and Rehabilitation Center. This session addresses lessons learned, including how CMS is using the COVID-19 emergency to stretch its enforcement discretion.

  • A short history of Focused Infection Control Surveys and COVID-19 citations
  • Early cases–Life Care Center of Kirkland, Sagepoint Nursing and Rehabilitation Center, and others
  • How COVID-19 enforcement actions differ from traditional survey and enforcement cases
  • CMS, CDC, the Supreme Court, and "ad hoc" enforcement standards
  • Lessons learned about preparing and presenting these cases
  • Relationship to personal injury cases
9:30-10:30 am

15. The Pros and Cons a Developing a Provider Driven I-SNP
(not repeated)
(SNF)

Richard J. Brockman
Joseph M. Greenman

  • Medicare Advantage Institutional Special Needs Plan (I-SNP)
  • What it takes to form an I-SNP (e.g., Department of insurance approval, actuarial assumptions, raising sufficient capital, developing a compliant Medicare Advantage provider network, developing a model of care, compliance program, claims administration and other logistical needs, and timing for filing for CMS approval)
  • Issues confronting an I-SNP and what can go wrong (e.g., managing through a pandemic or relationship with other plans)
  • Buying versus Building I-SNP operating systems
  • Benefits of a well run I-SNP such as improving quality of care and integrating it with other community resources and networks such as Medicaid HCBS
 

16. The Aftermath of CARES Act/Provider Relief Fund Reporting: What Comes Next for Long-Term Care Providers?
(SNF, HH, Hospice)

Mark E. Reagan
Bill Ulrich

This program will explore what happens after Long-Term Care (“LTC”) Providers make the required reporting under the CARES Act/Provider Relief Fund (“PRF”), including:

  • What are the next steps after submitting reports to HHS whether HHS accepted or rejected reports and what are the best strategies for managing disputes with HHS
  • Where do things stand with the required single audits and what are the best strategies for successful resolution of outstanding issues with auditors
  • Remaining significant legal issues, including: (A) the relationship between exhausting COVID-19 expenditures and counting lost revenue, (B) the acceptance/rejection of “Option 3” submissions for lost revenue, (C) the scope of parent/subsidiary relationships, (D) the treatment of PPP loans, “other assistance“ and Medicare/Medicaid reimbursement; and (E) technical matters associated with depreciation, contractual adjustments and others
  • How to manage threatened PRF recoupment sand as well as disputes with CMS contractors over Medicare billing for claims associated with waivers of the three-day qualifying stay and 100-day benefit period
 

17. Data Privacy in Senior Living Environments: How to Operationalize an Effective Compliance Program
(AL, SNF)

Peggy E. Kozal
Amita A. Sanghvi
Nancy A. Voisin

  • While COVID-19 transformed the way the world worked in 2020, it also fueled changes in the demand for data and how data is shared. At the same time, health care institutions experienced an uptick in data breaches. Senior living environments are not immune from the heightened risks and need to ensure they have compliant data privacy & security programs
  • How to employ an effective compliance program which addresses a robust data privacy & security framework. Even for those entities to which HIPAA may not apply, state privacy laws have become more instructive on how individuals' personal information must be maintained
  • HIPAA Notice of Proposed Rulemaking (NPRM), with a focus on how the proposed changes would impact long term care facilities, if finalized
  • Breach assessment tools will be utilized with examples of how to determine whether a reportable breach occurred, how to identify and quickly employ necessary investigatory steps upon discovery of impermissible access
  • Key concepts for staff training, touching upon recent trends in cybersecurity threats and HIPAA enforcement
  • Practical advice and take-aways, so that upon returning back to attendees' home states, they have an approach for which types of assessments are appropriate for their organization to analyze particular vulnerabilities that can be improved upon
 

5. Legal Ethics: Understanding the scope of the Quality Assurance Privilege
(repeat)

Ashlee M. Gray
Aleah M. Schutze

  • The background and policy for the Quality Assurance Privilege
  • Recent case law regarding the privilege
  • Compare and contrast the ways that courts have interpreted the use and breadth of the Quality Assurance Privilege
  • Best practices for utilizing and preserving the privilege
10:30-11:00 am
Coffee Break
Exhibits Open–Meet the Exhibitors
11:00 am-12:15 pm Extended Sessions

18. Assisted Living / Senior Housing Legislative and Regulatory Update: How The Landscape Has Changed and Future Predictions
(not repeated)
(AL)

LaShaun Bethea
Tara J. Clayton
T. Andrew Graham
Beth Richardson

  • The achievements senior living providers experienced during the pandemic through recent studies and reports
  • Updated legislative and regulatory requirements in the senior living space, including new state infection control regulations
  • Recent efforts by CMS, resident advocates, and academics to expand the reach of federal regulators into senior living
  • Renewed discussions of potential federal oversight in senior living
  • A 50-state summary of assisted living infection control rules and regulations
 

19. Case Law Update and the DAB/ALJ Case Law Update
Andria R. Adigwe
Jason E. Bring

  • False Claims and other fraud and abuse litigation
  • Arbitration agreement litigation
  • Data breach and HIPAA enforcement actions
  • General litigation developments
 

20. Compliance and Ethics Overload? Engage, Educate and Energize
(SNF, HH, Hospice)

Amy Brantley
Kathleen A. Hessler
Todd J. Selby

  • The ABCs of ethics and compliance plans: Accountability (applied in good faith), best practices (well-designed) and consistency (works in practice)
  • The US Department of Justice Criminal Division evaluation of compliance programs (June 2020)
  • High risk areas of compliance for skilled nursing facilities and other post- acute providers
  • Practice tips for engaging the Board, educating the managers and energizing the staff for maintaining a highly functioning and evolving program regardless of company size
  • For smaller facilities, discuss how to run a successful program with a small budget, how to conduct a risk assessment without breaking the bank, and using existing or low cost resources
 

3. OSHA and CMS Vaccination Mandates–What Healthcare Employers Need to Know
(repeat)
(AL, SNF)

Lisa J. Cooney
Kevin Koronka

  • Understanding the vaccine mandates, testing alternatives, and requirements
  • Application of rules based on type of facility, including “hard” vs. “soft” mandates
  • Documenting and evaluating requests for religious and medical exemptions
  • Recordkeeping requirements concerning vaccination status and/or test results
  • Legal challenges to mandates
  • Enforcement and penalties for noncompliance
12:15-1:15 pm

Lunch on your own

1:30-2:30 pm

21. Federal Court Expansion of Private Causes of Action Against SNFs
(not repeated)
(SNF)

Randall R. Fearnow

  • The Third, Ninth, and now the Seventh Circuit federal courts of appeal have recognized private causes of action arising under the Federal Nursing Home Reform Act (FNHRA) enforceable under Section 1983
  • Skilled Nursing Facility providers complained to the Courts that an expansion of private rights of action will turn otherwise routine medical malpractice claims against SNFs into complex civil rights cases for which providers may not be insured
  • In one state (Indiana) impacted by the recent 7th Circuit decision in Talevski, there exists the potential for plaintiffs to disrupt an efficient state procedural process for the adjudication of SNF malpractice claims. The defendant nursing facility has asked the Unites States Supreme Court to review the 7th Circuit's ruling
  • The impact of private causes of action on the existing state and federal system for adjudicating SNF complaints by residents remains uncertain. Exhaustion of Administrative Remedies may apply now only to providers and not residents.
  • What has been the impact so far on SNF litigation in jurisdictions affected by the three federal Circuits which have recognized individual rights under the FNHRA?
 

22. Best Practices for Conducting an Investigation in Your LTC Facility
(AL, SNF)

Denise Bloch
William E. Hopkins

  • Do you want to protect your investigation under privilege and how to do that?
  • Should you do internally or use outside counsel?
  • Should you give “Upjohn” or other warnings?
  • How to explain who you represent
  • How to create and follow an Investigation Plan
  • Unique issues when conducting an investigation virtually
  • How to deal with concerns over retaliation and other issues of reluctant staff
  • How to conduct investigation to get as much information as possible and protect your community
  • Hypothetical compliance Investigation to apply learning and get participation of attendees
 

23. An Introduction to HUD LEAN 232 Financing and how HUD LEAN 232 Financing has been impacted by COVID-19​
(SNF)

Craig W. Fitch
Joseph F. Zielinski

  • The basics of HUD LEAN 232 financing and how COVID-19 is impacting the process
  • The HUD LEAN 232 loan process
  • The essential elements of the HUD LEAN 232 loan process
  • The unique challenges of HUD Financing
  • How COVID-19 is impacting the HUD LEAN 232 loan process and the added requirements due to COVID-19
  • How these requirements are effecting the loan process and what to watch for
  • A Borrower, Lender and HUD perspective will be given to provide a 360 degree view of the HUD financing process
 

9. Show Me the Documentation!–How Good Documentation Can Save (and Even Make) an ALF/MC Community Money and Time​
(repeat)

(AL)
Lori C. Ferguson
Kris D'Ann Maples

Documentation requirements for Assisted Living Facilities vary from state to state and are typically not as stringent as for skilled nursing, home health, or hospice. However, good documentation can make or break an ALF, whether it be defending liability claims, evidencing the need for immediate discharge, preventing survey citations, supporting increases in level of care, or just assisting your staff to provide better care to residents. In this session, we will use a case-study approach to discuss:

  • Why ALF/MCs should encourage more consistent and timely documentation, even if state regulations do not require it
  • How documentation can impact a community’s defense of potential claims/actions by the state, managed Medicaid providers, residents, or families
  • How documentation can help or hurt you when looking to terminate a resident agreement, including appeals of discharge or legal evictions
  • How documentation can educate families about a disease process (especially dementia), the need for increased care services within the Community, or the need to move a resident on to a facility that can provide a higher level of care
  • General best practices for documentation
3:00-4:00 pm

24. Construction Contracts and Risk in the Post-Acute Care and Senior Housing Industry
(not repeated)
(AL, SNF)

Lawrence L. Lopardo
Jennifer McMillan Beyerlein

As providers expand to handle the continued and expected growth of the population in need of post-acute care and senior housing, they are moving from known health care transactions into a different world of construction where what is thought of as standard contract terms and expectations no longer apply. This presentation will cover the following:

  • Planning for new development or major renovations and construction
  • Different types design and construction contracts and construction delivery systems
  • Specific risks involved in constructing in this industry
  • Unique perspectives and contract provisions specific to constructing in a post-acute care / senior living environment
 

25. SNF Legislative and Regulatory Update
(SNF)
Christine L. Stanley

  • Key federal and state policy and legal developments affecting skilled nursing facilities
  • Possible federal oversight of the sector, proposed bills, or new actions from the Centers for Medicare and Medicaid Services
    • CMS new regulation requiring nursing homes to require that all staff be vaccinated against COVID-19
    • Targeted nursing home surveys focused on infection control and immediate jeopardy
  • The call for legislative and regulatory changes to support the small home-like models of skilled care
 

6. Employment Law Issues for Long Term Care Providers: Whistleblower, Retaliatory Discharge, and Patient Safety
(repeat)

Andrew Smith

This presentation will cover common employment-related claims made by long term care employees related to retaliatory discharge/patient safety complaints/whistleblower allegations. Specifically, it will cover:

  • Internal policies and procedures–clear delineated internal complaint process for all issues related to patient care, including staffing
  • Acknowledgements by employees–facility policies, reporting responsibilities, contact information for all appropriate state and federal authorities having jurisdiction over facility
  • Complaints of patient safety issues–documentation of nature of complaints, investigative efforts, and resolution
  • Termination–documentation of legitimate reasons for termination
  • Litigation–litigation strategies to combat retaliatory discharge claims, including benefits/drawbacks of mandatory arbitration
 

17. Data Privacy in Senior Living Environments: How to Operationalize an Effective Compliance Program
(repeat)
(AL, SNF)

Peggy E. Kozal
Amita A. Sanghvi
Nancy A. Voisin

  • While COVID-19 transformed the way the world worked in 2020, it also fueled changes in the demand for data and how data is shared. At the same time, health care institutions experienced an uptick in data breaches. Senior living environments are not immune from the heightened risks and need to ensure they have compliant data privacy & security programs
  • How to employ an effective compliance program which addresses a robust data privacy & security framework. Even for those entities to which HIPAA may not apply, state privacy laws have become more instructive on how individuals' personal information must be maintained
  • HIPAA Notice of Proposed Rulemaking (NPRM), with a focus on how the proposed changes would impact long term care facilities, if finalized
  • Breach assessment tools will be utilized with examples of how to determine whether a reportable breach occurred, how to identify and quickly employ necessary investigatory steps upon discovery of impermissible access
  • Key concepts for staff training, touching upon recent trends in cybersecurity threats and HIPAA enforcement
  • Practical advice and take-aways, so that upon returning back to attendees' home states, they have an approach for which types of assessments are appropriate for their organization to analyze particular vulnerabilities that can be improved upon
4:30-5:30 pm

26. Hospice Arrangements with Nursing Facilities and ALFs: The Latest Areas of Legal Scrutiny
(AL, SNF, Hospice)

Catherine J. Sloan
Howard J. Young

  • Preferred provider designations–care coordination features and AKS (referral) and Patient Choice risks
  • Serving and marketing to non-cancer patients in nursing homes: Managing a hospice’s legal and reimbursement risks
  • Legal and compliance risks associated with hospice aide visit frequency for hospice patients who reside in congregate living settings and hospice plan of care compliance
  • Legal issues related to Nurse Practitioner and Physician Medical Director Arrangements for hospice patients who reside in congregate living facilities
  • Legal issues associated with palliative care services for non-hospice patients in care facilities
 

27. When Safety and Resident Rights Are in Conflict
(AL, SNF)

Barbara S. Barrett
Michelle Dionne-Vahalik

  • Residents have right to make decision about how they live, but the facility is required to have protective oversight and keep the resident safe. What do you do when these two are in conflict? 
  • When does safety trump resident rights? How is that decision made?
  • How to use the assessments and the care plan process to address conflicts
  • Use examples to apply the information discussed
    • What do you do when a resident is on aspiration protocol but wants food in their room to eat on demand?
    • What do you do with resident signs out and does not return for several days or comes back drunk or on drugs? Can you prevent them from leaving?
    • What if a resident wants bed restraints but they are not needed?
 

14. Anatomy of a COVID-19 Enforcement Appeal
(repeat)
(SNF)

Joseph L. Bianculli
Jacquelyn Smith Clarke

The speakers have prepared and tried several of the early COVID-19 enforcement appeals, including Life Care Center of Kirkland and Sagepoint Nursing and Rehabilitation Center. This session addresses lessons learned, including how CMS is using the COVID-19 emergency to stretch its enforcement discretion.

  • A short history of Focused Infection Control Surveys and COVID-19 citations
  • Early cases–Life Care Center of Kirkland, Sagepoint Nursing and Rehabilitation Center, and others
  • How COVID-19 enforcement actions differ from traditional survey and enforcement cases
  • CMS, CDC, the Supreme Court, and "ad hoc" enforcement standards
  • Lessons learned about preparing and presenting these cases
  • Relationship to personal injury cases
 

 

5:30-6:30 pm

Netoworking Reception
(This event is included in the program registration. Attendees and faculty.)

 

Friday, February 25, 2022

7:00 am-1:15 pm

Registration and Check-In

7:00-8:00 am

Continental Breakfast
(This event is included in the program registration fee. Attendees and faculty are welcome.)

7:30-9:15 am Extended Sessions

Interactive Session: General Counsel Roundtable Discussion (in-house counsel only)
(Limited attendance; pre-registration required)
(SNF)
Annaliese Impink
Teresa Lee Salamon

  • Anatomy of a termination/closure:
    • Can you predict it's coming and stave it off
    • IDR v appeal and is it even worth it
    • Value of a TRO
    • Financial feasibility of RAP
    • Option as Medicaid only
    • Who is responsible for transferring residents
    • What happens when the last resident is discharged
  • Vaccination Mandates-where are we and why does the answer keep changing
  • CMS survey and certification–caught in the middle of CMS catch up
8:00-9:15 am Extended Sessions 

2. Long Term Care Surveys and Appeals: Perspectives from Providers and Regulators
(repeat)
(SNF)

Alan C. Horowitz
Larry Johnson
Janine Lehman

  • Recent developments in administrative law that may change the calculus when advising clients to file an appeal of a CMS enforcement action
  • Answer the question, “Does the survey process achieve quality care?” while considering AMDA’s Position Statement on survey reform. Consider what changes are needed to make the survey process more effective
  • The best practices for survey “readiness” 365 days a year. Learn what facilities can do to keep staff prepared for survey at all times
  • The current “Top 10” deficiencies cited as of December 2021 and best practice recommendations for how to prevent them
  • Nationwide trends of survey findings and a look at survey changes and priorities throughout the pandemic
 

19. Case Law Update and the DAB/ALJ Case Law Update
(repeat)

Andria R. Adigwe
Jason E. Bring

  • False Claims and other fraud and abuse litigation
  • Arbitration agreement litigation
  • Data breach and HIPAA enforcement actions
  • General litigation developments
 

20. Compliance and Ethics Overload? Engage, Educate and Energize
(repeat)
(SNF, HH, Hospice)

Amy Brantley
Kathleen A. Hessler
Todd J. Selby

  • The ABCs of ethics and compliance plans: Accountability (applied in good faith), best practices (well-designed) and consistency (works in practice)
  • The US Department of Justice Criminal Division evaluation of compliance programs (June 2020)
  • High risk areas of compliance for skilled nursing facilities and other post- acute providers
  • Practice tips for engaging the Board, educating the managers and energizing the staff for maintaining a highly functioning and evolving program regardless of company size
  • For smaller facilities, discuss how to run a successful program with a small budget, how to conduct a risk assessment without breaking the bank, and using existing or low cost resources
9:45-10:45 am 

28. Home Health Legislative and Regulatory Update
(not repeated)
(HH, Hospice)

William A. Dombi

  • The 2022 Medicare home health payment rule updates
  • Nationwide expanded Medicare Home Health Value Based Purchasing Demonstration
  • Medicare Review Choice Demonstration potential/planned expansion
  • Hospice quality of care survey and sanction reforms
  • Medicare home health Notice of Admission requirements
  • OIG hospice audit findings
  • MedPAC recommendations on home health and hospice reforms
  • Pending congressional actions affecting home care and hospice
 

23. An Introduction to HUD LEAN 232 Financing and how HUD LEAN 232 Financing has been impacted by COVID-19​
(repeat)
(SNF)

Craig W. Fitch
Joseph F. Zielinski

  • The basics of HUD LEAN 232 financing and how COVID-19 is impacting the process
  • The HUD LEAN 232 loan process
  • The essential elements of the HUD LEAN 232 loan process
  • The unique challenges of HUD Financing
  • How COVID-19 is impacting the HUD LEAN 232 loan process and the added requirements due to COVID-19
  • How these requirements are effecting the loan process and what to watch for
  • A Borrower, Lender and HUD perspective will be given to provide a 360 degree view of the HUD financing process
 

25. SNF Legislative and Regulatory Update
(repeat)

(SNF)
Christine L. Stanley

  • Key federal and state policy and legal developments affecting skilled nursing facilities
  • Possible federal oversight of the sector, proposed bills, or new actions from the Centers for Medicare and Medicaid Services
    • CMS new regulation requiring nursing homes to require that all staff be vaccinated against COVID-19
    • Targeted nursing home surveys focused on infection control and immediate jeopardy
  • The call for legislative and regulatory changes to support the small home-like models of skilled care
11:00 am-12:00 pm 

8. Transactions and the Second Half of the Marathon–Getting Senior Living Transactions from Executed Purchase Agreement To and Past Closing
(repeat)
(AL, SNF)

Daniel Merriman
Gregory Pyle

The session provides background on a number of issues related to the transition of ownership, operators, and employers in a transaction. The approach of the session focuses on the events after successful negotiation of sales terms between buyer and seller and navigating a path to a successful closing.

  • Steps, tricks and timing for obtaining licensure; navigating tricky regulations and licensing agencies. Also, managing surveys and complaints
  • Impact of incoming structure to licensure steps; evaluating the differences of an asset sale, stock sale, and other approaches to structure on the transition
  • Operating in bridge or interim structures in jurisdictions where licensing is particularly slow
  • Analysis of the issues surrounding the transition to a new employer; policies and handbooks; training compliance, contracts, and turnover management
  • New operator transitions and managing residents; adapting to new operational procedures and managing resident relations
  • Managing contracted vendors and other related third parties
 

16. The Aftermath of CARES Act/Provider Relief Fund Reporting: What Comes Next for Long-Term Care Providers?
(repeat)
(SNF, HH, Hospice)

Mark E. Reagan
Bill Ulrich

This program will explore what happens after Long-Term Care (“LTC”) Providers make the required reporting under the CARES Act/Provider Relief Fund (“PRF”), including:

  • What are the next steps after submitting reports to HHS whether HHS accepted or rejected reports and what are the best strategies for managing disputes with HHS
  • Where do things stand with the required single audits and what are the best strategies for successful resolution of outstanding issues with auditors
  • Remaining significant legal issues, including: (A) the relationship between exhausting COVID-19 expenditures and counting lost revenue, (B) the acceptance/rejection of “Option 3” submissions for lost revenue, (C) the scope of parent/subsidiary relationships, (D) the treatment of PPP loans, “other assistance“ and Medicare/Medicaid reimbursement; and (E) technical matters associated with depreciation, contractual adjustments and others
  • How to manage threatened PRF recoupment sand as well as disputes with CMS contractors over Medicare billing for claims associated with waivers of the three-day qualifying stay and 100-day benefit period
 

22. Best Practices for Conducting an Investigation in Your LTC Facility
(repeat)
(AL, SNF)

Denise Bloch
William E. Hopkins

  • Do you want to protect your investigation under privilege and how to do that?
  • Should you do internally or use outside counsel?
  • Should you give “Upjohn” or other warnings?
  • How to explain who you represent
  • How to create and follow an Investigation Plan
  • Unique issues when conducting an investigation virtually
  • How to deal with concerns over retaliation and other issues of reluctant staff
  • How to conduct investigation to get as much information as possible and protect your community
  • Hypothetical compliance Investigation to apply learning and get participation of attendees
12:15-1:15 pm

13. Tools for your Toolbox–Defending Claims and Litigation in a COVID-19 World​
(repeat)
(SNF)

Christy T. Crider
Lynn K. Fieldhouse
Thomas G. Goodwin

COVID-19 changed the landscape for Long Term Care providers. We will discuss how the pandemic impacted COVID-19 and non-COVID-19 claims and litigation, as well as offer strategies for preparing and defending these claims and lawsuits in light of the “new normal.”

  • Many state COVID-19 Executive Orders, Public Health Orders, and immunity statutes are broader than you think
    • Strategies that work for sweeping non-COVID-19 related claims under those statutes, including claims alleging understaffing as wells as whether the community was appropriate given the resident’s acuity level
  • Finding, preparing, and often neutralizing caregiver witnesses has never been harder
    • Tools that work for doing this successfully
  • Giving your jury or arbitrator the lens to accurately view the claim or lawsuit requires you to take them back in time to what the community or facility was doing during the relevant timer period
    • Tips on what you should be doing now to preserve that picture
    • The critical role of experts in focusing on issues to provide an accurate picture
  • Traditional visitation stopped for large windows of time during the pandemic, this resulted in:
    • Residents declining more quickly
    • Families not witnessing gradual declines. We call these "snapshot" claims. They had a snapshot of the resident when they dropped them off and then a snapshot when they required medical treatment or a higher level of care. This results in an increase in claims
      • How to use the snapshot defense
  • The pandemic changed jury composition
  • How juries have changed and how we must adjust our jury selection and trial themes as result
    • Trial themes that work, including how to turn the tables on prolific plaintiff themes
 

26. Hospice Arrangements with Nursing Facilities and ALFs: The Latest Areas of Legal Scrutiny
(repeat)
(AL, SNF, Hospice)

Catherine J. Sloan
Howard J. Young

  • Preferred provider designations–care coordination features and AKS (referral) and Patient Choice risks
  • Serving and marketing to non-cancer patients in nursing homes: Managing a hospice’s legal and reimbursement risks
  • Legal and compliance risks associated with hospice aide visit frequency for hospice patients who reside in congregate living settings and hospice plan of care compliance
  • Legal issues related to Nurse Practitioner and Physician Medical Director Arrangements for hospice patients who reside in congregate living facilities
  • Legal issues associated with palliative care services for non-hospice patients in care facilities
 

27. When Safety and Resident Rights Are in Conflict
(repeat)
(AL, SNF)

Barbara S. Barrett
Michelle Dionne-Vahalik

  • Residents have right to make decision about how they live, but the facility is required to have protective oversight and keep the resident safe. What do you do when these two are in conflict? 
  • When does safety trump resident rights? How is that decision made?
  • How to use the assessments and the care plan process to address conflicts
  • Use examples to apply the information discussed
    • What do you do when a resident is on aspiration protocol but wants food in their room to eat on demand?
    • What do you do with resident signs out and does not return for several days or comes back drunk or on drugs? Can you prevent them from leaving?
    • What if a resident wants bed restraints but they are not needed?

 

In-Person Program Format

How It Works

  • We will offer in-depth breakout sessions where speakers and attendees can interact and collaborate with each other in-person.
  • We consider the health and safety of all those onsite at in-person programs our top priority. AHLA will follow guidance and requirements issued by the CDC as well as by state and local government and are working with the hotel to ensure your health and safety as we transition back to in-person programming. 
  • All attendees, who register for the in-person program, will be required to commit to our Duty of Care agreeing to follow the protocols we establish and monitor their own health for the health and safety of all. 
  • On February 23rd, to minimize crowding, we are offering extended time for registration. We have adopted a new onsite registration system by providing seamless, touchless check-in, onsite badge printing, and safety supplies to all attendees to use while in attendance.
  • Built-in extended time between sessions for moving from room to room, networking with colleagues, and personal breaktime.  
  • Socially distanced seating arrangements in breakout rooms, regular cleaning in and around meeting spaces, and appropriate signage/floor decals to reinforce spatial distancing and other safety reminders.
  • The program sessions will be recorded. Audio of the presentations, along with the materials will be available for purchase after the program. More information on our ePrograms.

Benefits of the In-Person Program

  • After a year of virtual programming, you will finally be able to step out from behind your computer and network face-to-face with other health law professionals.
  • Interact with colleagues at in-depth breakout sessions.
Program Accessibility and Special Needs

AHLA is committed to ensuring equitable access to our educational content. We are continually improving the user experience for everyone and offering accessibility accommodations for our in-person programs.

Learn More

Thank You to Our Long Term Care and the Law Sponsors

If your organization is interested in sponsoring AHLA's Long Term Care and the Law program, please contact Valerie Eshleman.