11/16/2016. Weird Things: Problem Solving Those Issues That Don't Have Clear Rules to Follow. Goals for Session. Weird Things: Regulatory Paralysis

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1 Weird Things: Problem Solving Those Issues That Don't Have Clear Rules to Follow Attorney Brian Purtell DeWitt Ross & Stevens S.C. (608) Goals for Session Square peg, round hole decision making process. Appreciate that there may not be a right answer, yet develop confidence in decision making process Share experience and case study exercise demonstrating process 2 Weird Things: Regulatory Paralysis Definition: the state in which the absence of regulatory instructions dictating action, creates otherwise intelligent people to not know what course of action to take. Source: Brian Purtell 3 1

2 Weird Things Sources Resident Family/decision maker Employees (current and former) Community Regulators/Stakeholders Adversaries 4 Known, Known Issue presents and there are clear instructions for answer. Regulation spells out exact answer. Might not like answer, but clarity is comforting 5 Known, Unknown Issue not uncommon and there known and clear lack or absence of clarity, E.g. alternative placement requirement for involuntary discharge notice. 6 2

3 Unknown, Unknown So unforeseeable, there is no instruction, plan, guidance. What happened? You/he/she/it did what? You will never believe what happened over the weekend I thought I heard everything 7 Weird Things Categories Sex, drugs & rock n roll Resident rights/resident wrongs Decision makers Family dynamics Employee action or inaction Clinical Keystone Cops 8 Weird Things Sources Clinical challenges Expectations different Handled differently Necessity of proactive clinical preparation Fewer excuses for occurrence 9 3

4 Weird Things Residents Resident rights and wrongs AMA/refusal Clinical challenges/misadventures Sexuality/intimacy Drugs and alcohol Admission/Discharge/retention Accommodations Alternative medicine 10 Weird Things Residents Visitors House rules CPR/DNR/hospitalization Religious accommodation/requests 11 Weird Things Residents Common key considerations Who is the legal decision maker Assure informed consent Assure documentation 12 4

5 Weird Things Families/Decision makers Best Interest Unreasonable expectations Dangerous/threats Record Access/involvement in care Drugs/alcohol Atypical relationships Payment/Exploitation/Collection 13 Weird Things Family/Decision makers Common key considerations Who is the legal decision maker What are their official authorities Clear policies and expectations Know processes and legal options Engage ombudsman, when appropriate Fair but firm 14 Weird Things Employee While maybe a shortage of employees, no shortage of weird things Drugs/Alcohol Retention/Termination Screening, hiring and firing Employment law wage & hour, discrimination, whistleblower Misconduct 15 5

6 Weird Things Employees Common key considerations Clear policies and expectations Orientation, monitoring, engagement Solid HR training, access to counsel Articulate reporting requirements to protect residents and staff (from themselves) 16 Weird Things Community What can come in from the outside Emergency Preparedness Technology privacy 17 Weird Things Community Common key considerations Update emergency preparedness all hazards preparation HIPAA annual risk assessment 18 6

7 Weird Things Regulators/Stakeholders Surveyor issues and concerns Ombudsmen Media DOJ/OIG/OCR Adversaries Media Plaintiff s lawyers 19 Think, but don t Overthink Priorities: Residents Staff Facility 20 Think, but don t Overthink Accept that you there are not black and white answers to many, if not most, issues: Gather necessary information Evaluate goals, options and worst case scenarios Make decisions based on informed process Document thought process and decision Identify mitigation/risk reduction intervention Implement decision Monitor Adjust as necessary 21 7

8 Weird Things: Reactive Process 1. Identify problem: Narrow and define issue 2. Review applicable statute or regulation for answer 3. Search authoritative interpretation of statute or regulation 4. If above specifically addresses issue, implement action consistent. If not addressed: 5. Review applicable or related guidance sources/resources 6. Brainstorm Options 7. Devise and document thought process and action plan: 8. Revise Individual Care Plan, as applicable, to reflect action plan. 9. Monitor implementation: Document monitoring of actions. 10. Revise as necessary or applicable. 22 Weird Things: Essential Tools Current and complete statutes and regulations Bookmarks Nursing Homes: SOM appendix pp (most current version) DHS 132 DQA Memos CMS S&C Memos Assisted Living: DHS 83, 89, or 88 DQA/BAL Memos ALL: DHS listserve subscription DHS 12 and 13 Wis. Stat Chapter 50 Wis. Stat Chapters 154, 155, 54, 55, and Weird Things: Essential Tools LEIE Emergency Preparedness for Long Term Care and Assisted Living Facilities QAPI 24 8

9 1. Identify problem: Narrow and define issue Big may actually be a series of smaller ones Narrow into bite sized issues to tackle independently Prioritize based on risk analysis Review applicable statute or regulation for answer May be known, known Have frequent, applicable sources readily available Maintain current versions or check for updates Answers are key stroke away Legal research does not require a law degree anymore Search authoritative interpretation of statute or regulation State Survey Guidance/Memos CMS Guidance to Surveyors CMS S&C memos 27 9

10 4. If above specifically addresses issue, implement action consistent with requirements. Might not agree, but Document Action Plan Monitor Mindful of changes to law/regulation/interpretation 28 If not addressed: 5. Search applicable guidance sources/resources Clear answer/instruction may not exist, but resources provide relevant guidance or direction Insight into philosophy or likely interpretation Guidance to Surveyors Preambles to regs Standards of practice Brainstorm Options Think QAPI/RCA processes Involve varied individuals who may provide insight or information Answer may lie with unlikely source Develop options to consider Weigh risks and benefits Consider unintended consequences BUT DON T lose sight of priorities! 30 10

11 7. Devise and document thought process and action plan: Will vary based on type of matter being addressed Get credit for action taken and that thought went into it Assign responsibilities, timeframes, measures 8. Revise Individual Care Plan/ISP, as applicable, to reflect action plan. Per Document to reflect thoughtful anaysis Monitor implementation: Document monitoring of actions as having occurred, while monitoring may be QA/HSR 10. Revise as necessary or applicable. 32 challenges 1. Non resident issues. 2. Catch 22: violate one regulation to comply with another. 3. Lose lose 33 11

12 Weird Things: Proactive Process Same as above Anticipate the unknown Address common sources with framework to address Minimize occurrence or severity 34 Weird Things: Think Risk management 35 Weird Things: Proactive Process Clinical preparation Staff training: Do not expect prior failed training to work by simply repeating Review admission process to assure: Clarity of decision makers Articulate role, responsibility and limitation Emergency preparedness all hazards Relationship with responders engage in advance 36 12

13 Discussion and Case Examples 37 13