For the past six months the Department of Justice, one of the key regulator of the Americans with Disabilities Act, has been holding public hearings as part of a major overhaul of the A.D.A. designed to improve access and protection for the disabled.  As mentioned in a recent New York Times Magazine article (available here), some of these proposed changes have to do with the classification and public treatment of “Service Animals.”  The debates over which way the revisions will draw are currently ongoing, but I thought it would be instructive to offer a basic primer on the ADA with respect to service animals and the right to have them in skilled nursing facilities.  

Service Animals

Service animals are animals that are 1) individually trained, 2) to perform tasks, 3) for people with disabilities.  Service animals are working animals, not pets.  Though there is no formal licensing or regulatory body, service animals must be trained to accomplish specific tasks, not merely for comfort.  Such tasks can include alerting people who are deaf, pulling wheelchairs, guiding people who are blind and alerting and protecting a person who is having a seizure.  

Scope of Access

Under the Americans with Disabilities Act, businesses and organizations that serve the public must allow people with disabilities to bring their service animals into all areas of the facility where customers are normally allowed to go.  Not only does this include stores and restaurants, but also hospitals, medical offices and nursing homes.  The intend here is to ensure that the broadest feasible access be provided to service animals in public accommodations.  

However, the scope of this access is not without some limits.  Upon a showing that 1) the nature of the goods or services provided would be fundamentally altered; or 2) the safe operaiton of the public accomodation would be jeopardized, a service animal need not be allowed to enter.  

Limiting Access

Businesses must be very careful when attempting such a showing, however.  Only an assessment by appropriate medical personnel (case law suggests doctors, pharmacists and nurses) that an animal would pose a significant health risk may be used as a basis for excluding a service animal.  Yet, this cannot be a blanket ban.  Instead, facilities must assess whether an animal would pose a significant health risk to the particular area wished to be entered by the owner of the animal and whether that particular service animal poses a risk.  Essentially, whether a service animal can be let in the doors and where it can be excluded from must be a case-by-case determination.  

Specific Advice for Nursing Home Administrators

Nursing homes must follow the same guidelines w/r/t service animal access as book shops.  This goes both for visitors as well as residents of a nursing home.  Bascially, all must be allowed unless there is a showing of a significant health risk.  Further, regulators have given specific guidance that the potential for animal allergy or fear of specific types of animals (e.g. dogs) is not enough to fundamentally alter the services a nursing home provides so as to justify exclusion of the animal from the facility.  Neither can potential residents not be admitted because they use a service animal.  However, a facility is under no obligation to feed, groom, exercise, or in other ways care for a service animal of one of its residents.  

Conclusion

The proposed ADA revisions will likely make it easier for people with disabilities to find and have a service animal.  It may also systematize the process of licensing and training service animals.  This means that, everything else being equal, there will likely be more service animals assisting people with disabilities.  So, the likelihood that Administrators will have residents who use service animals is going to increase.  Ultimately, the ADA is an exceptionally good law, and is beneficial not only to people with disabilities, but to the society as a whole.  Administrators must be careful to accept service animals into their homes when appropriate, in protection of the civil rights of people with disabilities.

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The number of lawsuits against nursing homes is rising.  Many of these suits begin with either a sentinel, ‘never-event’ (e.g. dehydration, fecal impaction, etc.) or the emergence or worsening of a late stage pressure ulcer.  In fact, trial lawyers are especially keen to bring negligence and malpractice actions over pressure ulcers because recent nursing literature has encouraged the use of wound photos to track the progression/regression of pressure ulcers as a part of the clinical record.  Not incidentally, these photos are impactful and in many cases disturbing to judges and juries alike.

Let me be very clear.  Emerging pressure ulcers can be a sign of negligent care.  A nursing home should strive to never have an emerging pressure sore, and should work to heal the ones on patients at admission.  This being said, pressure ulcers do happen.  There are compelling arguments for tracking these wounds with photographic evidence, although these photos may make a legal defense more difficult.

Given the recent surge in lawsuits over pressure ulcers, then, I think a discussion on evidence law may be instructive for finding strategies to balance good nursing practice in taking care of these wounds and establishing aggressive practices for legal defense.

Initial Understanding

The rules of evidence dictate those facts which are admissible in open court and those which a jury will never hear.  Evidentiary law is procedural – – it is lawyers’ law; it is the rules by which the game is played.  As such, you can imagine, it is one of the most parsed, argued over and complicated areas of the law. 

In order for the court to allow facts to be heard in open court (admitted as evidence), they must be relevant, material and competent.  Relevance is whether the evidence makes a claim more or less probable.  Material is whether the evidence is offered to help prove a fact at issue.  Competence is the reliability of the evidence to prove what it aims to.  For example, in a lawsuit involving a resident with a pressure ulcer, a photo of a wound is relevant if it shows the wound of the resident suing, not a wound like or similar to the resident’s wound.  It is material if it shows the wound that caused the suit, not, for example, a previously healed wound acquired before nursing home admission.  It is competent if the photo illustrates what it claims to (i.e. it is clear what is depicted in the photo or it has not been Photoshopped).  The materiality, relevance and competency of evidence can be shown with something inherent to the evidence (something like labels on wound pictures) or by testimony of a witness with knowledge of the fact being depicted (example: the risk manager nurse who has the duty of keeping wound care photos).

Introducing Photos and Expert Witnesses

There are many specific and particular rules controlling the introduction of photos (especially specialty subject photos that are medical/clinical) into evidence, however.  The first and most important of these is called the Best Evidence rule.  Best Evidence is actually an ancient legal concept dating to the Ecclesiastical Courts of the Middle Ages, but remains extremely important today.  Essentially, the demand is that if a document (or photo) is introduced into evidence to prove a fact (negligent care, say) it must be the original or, if a copy, you must have a good reason for not presenting the original.  So, a wound photo, assuming it is developed into hard copy, should be the original print to be admissible. 

This rule also dictates how photos taken on a digital camera, and stored electronically, can be admitted, albeit in an oblique manner.  Since the law seeks originals in order to minimize the risk of misunderstanding caused by imperfect copies, a party seeking to admit a digital picture must be able to demonstrate the photo-file is the original one from the camera – – undoctored.  Obviously, this is difficult to do, and may require testimony from someone familiar with the taking and storing of your facility’s digital photos. 

The second related rule is that all real and demonstrative evidence (would photos will fit into either of these two categories) must be attested to with knowledge of the evidence.  This can be anyone who knows where the evidence comes from and how it was produced.  In the case of pressure ulcer photos, the court will also require an expert witness to describe to the jury what the photos are depicting, and what the depiction indicates (e.g. what stage pressure ulcer, how does one get to that stage, what are nursing practices to avoid this type of pressure ulcer, this particular resident’s circumstance which lead to this pressure ulcer etc.).  With this type of testimony accompanying very expressive photos, it becomes obvious why wound photos are so important in these types of cases.

Admission into Evidence: A Facility’s Steps to Protect Itself

It is fairly clear that wound photos are going to be admissible into evidence in a lawsuit alleging negligent care by a nursing home leading to a pressure ulcer.  So, what can facilities do to prepare for such suits?  The obvious answer is to prevent pressure ulcers from emerging and carefully documenting those that are present on admission.  From a legal standpoint the kneejerk answer (and one which many corporate counsel advocate) is to abandon the practice of taking wound photos, and rely instead on the written clinical record, but there are numerous nursing practice drawbacks to this approach.  So, assuming a facility is going to take and keep wound photos for the clinical record, the best defense for any potential suit is to control the wound photos as much as is practicable. 

Facilities should establish procedures whereby wound photos are as accurate is feasible and as precise as they can be.  What this means is that every wound photo should be taken is similar lighting conditions, from the same distance (from camera to wound) with the same camera settings.  Additionally, the photos should include some scaling metric (a ruler) and an indication of directionality.  Many facilities I know of place a five centimeter L-ruler under the wound and easily removable orange sticker in the direction of the head.  Steps like these make certain the wound does not appear worse than it really is (e.g. if there were no scale and the lighting was poor, a wound may appear more infected, larger and deeper than in reality).  Also, facilities should ensure their risk managers or wound care nurses take adequate documentation on all wounds, and be prepared to explain what is depicted in photos.  Last, make certain to take the appropriate number of photos so the progression/regression of a wound can be shown.  Set a schedule for taking these photos – – same time each and every day, for example.

Conclusion

Ultimately, the law of evidence presents an occasion for lawyers to wrangle – – apply their skills and win the suit on procedural issues.  But, despite the complexities of this area of the law, a general understanding can help Administrators prepare for a day that, hopefully, will never come; the day the care a facility provides is put into question.

Choosing a Nursing Home

December 10, 2008

The Centers for Medicaid/Medicare Services (CMS) have published a new edition of Guide to Choosing a Nursing Home.  It breaks a little long, 68 pages, but is strikingly comprehensive.  It includes chapters on payment structures, regulatory issues and offeres checklists for residents and their families to use when discussing LTC with an admissions coordinator.  

Unfortunately, it is difficult to streamline the nursing home admissions process.  New residents are bombarded with confusing information, even when they spend time researching Long Term Care before they are sick.  To say it can be a stressful situation is a gross understatement.  I am gladdened by guides such as this one because they provide clear, easy to digest information that is free from any commercial content.  

Operating a nursing home is many ways an exercise in advocacy.  The more resident-readiness literature is out there, the better.

Thanks to the Nursing Home Law Blog for alerting me to this new guide.

Around this time of year, many Congressional advisory committees start circulating their ideas of major recommendation reports.  The Medicare Payment Advisory Commission (or MedPac) is no different.  It was reported recently that MedPac sent a balloon up, testing the atmosphere for a recommendation that Medicare payments stay where they are for skilled nursing facilities throughout 2009.  This means no new payment updates until FY 2010. 

Take a breath.

Now, take another one. 

I’ve been giving these two pieces of advice to people all day.  I mention MedPac’s possible recommendation to Congress, and my administrative staff starts teeth-clenching. 

The merits of MedPac’s recommendation are up to not inconsiderable debate.  And, this would not be the first time such a recommendation has been discussed in the pre-report phase.  (FYI, MedPac’s two major reports are released in March and July each year).  What surprised me as I discussed this news with colleagues was how little understood healthcare legislation seems to be.  MedPac reports are a major component of the Medicare legislation package, but those I spoke with had only a faint notion of what MedPac is — usually just a vague memory of once hearing the name.   

I’m not sure if my facility is typical in this regard, but my guess is that it must be.  Even though two of my administrative nurses are Nursing Practice Act fiends (i.e. they review/discuss every proposed change) my staff in general is not keyed in to the political nature of their profession.  This is completely understandable; health care training is focused on the care, not the business side of things.  This is only right, but public health financing is a topic my residents and their families obviously care about.  As a profession, we should strive to educate ourselves to at least be conversant in the operation of health care legislation — if for no other reason than to be able to discuss it with patients. 

 

The Illinois Nursing Home Care Act prohibits a long term care facility resident from waiving her right to a jury trial before the commencement of any action.   What this means is LTC residents cannot enter contracts that have a waiver of the right to trial.  If they enter into these types of contracts, the clause waiving the right to trial (and/or jury trial) will be null and void.  

Many LTC facilities seek to arbitrate disputes instead of litigating them.  This protects the facilities from expensive litigation and it protects residents and families because the attendant costs of settling a dispute are much lower.  

The rule (sections 3-606 and 3-607 of the Illinois Nusing Home Care Act) conflicts with this desire to arbitrate becasue arbitration agreements generally ask residents to waiver their right to trial in exchange for the facility paying for and committing to arbitration.  

A recent Illinois 5th Appellate District Case confronts this conflict head-on.  Gott v. SSC Odin Operating Co. involved a wrongful death action brought by the representative of a deceased LTC resident against the owner corporation.  The corporation tried to enforce an arbitration agreement the resident signed on admission.  It argued the Illinois rule is preempted (basically overruled) by a Federal law, the Federal Arbitration Act, which promotes arbitration clauses in service and health care industry contracts.  The court found for the resident’s family, concluding the Federal Arbitration Act did not preempt the generally applicable state contract law and defense.  The Gott family was able to go on with their lawsuit against SSC Odin Operating Co.

The consequences of the Odin decision are not that far-reaching (after the IL Supreme Court refused to review the decision, it only has effect in the IL 5th Appellate District), but they do highlight a ongoing struggle in LTC:  protecting the right to sue vs. reducing the costs of disputes (for both facililities and residents).  

I was honestly surprised at the Odin  decision.  Surprised it came down the way it did (similar cases have found Federal preemption more often than preserving state defenses) and surprised the IL Supreme Court punted rather than review the case to give statewide guidance.     This is a much larger issue than I plan to write in this post, but perhaps a lengthier analysis is in order soon in the future.  Until that time, please see other posts on this issue here and here and at the Wall Street Journal.

For a few years now Life Services Network has conducted a survey of RNs and LPNs trying to gauge the nursing profession’s feelings on authorizing a new class of health care professional to administer medication. (see campaign website here) This category of health care worker, sometimes called medication technician or unlicensed assistive personnel (UAP) would administer medications to nursing home residents during med pass, but would do so under the direct delegation, supervision and control of a nurse. The survey, understandably, reflects deep feelings and division among nurses on this issue. (note: the survey referenced here is focused on nurses working in Illinois nursing homes). Roughly one third of nurses surveyed are in favor of creating and authorizing this new class of worker, but over one half are strongly against it.  There are also interesting breakdowns according to which nurses (master’s prepared, RN or LPN) support such a measure, which appear deeply ambivalent and which strongly oppose med techs, but this post is not the occassion to go into the meaning of these divisions).  

There are many compelling arguments on both sides of this issue: increased med-errors because of undertraining vs. more time for nurses to do ‘nursing work’ if they do not have the grind of med-pass, etc.).  One avenue avenue I have not seen much considered in this debate is the economics of malpractice liability.  Nurses in LTC are, for better or worse, general practitioners.  They are responsible for having master competence in everything from direct patient care to family counseling to documentation.  Generalizing skills increases the risk of error, oversight and gaps in one’s knowledge.  This risk increases the insurance needed to cover for nursing error.  One benefit of medication technicians is that a highly-specialized worker – – one who is expected to master competency in a few, interrelated tasks – – generally shows a decreased risk for error in those tasks.  Decreased risk means lower costs to guard against liability.

Is there room for an insurance argument in the med tech debate?  There should be.  And, I would be interested to see the argument framed in terms of liability economics.