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Posts Tagged ‘healthcare’

Federal Government Issues New CMS Guidance To Protect Nursing Home Residents From COVID-19

Posted on: March 30th, 2020

By: Kevin G. Kenneally, Michael P. Giunta and William E. Gildea

Nursing home and skilled nursing facilities have been particularly hard hit by the COVID-19 virus.  The resident populations are uniquely vulnerable and outbreaks in facilities nationwide have sparked actions to protect elderly and disabled residents.

The Centers for Medicare & Medicaid Services (“CMS”) provided new guidelines in a memorandum detailing protections for nursing home residents from COVID-19.  CMS recommends that all facilities restrict visitation of all visitors and non-essential health care personnel, absent certain compassionate care situations.  This follows on the heels of the preliminary results of the inspection of the Kirkland, Washington nursing home, which was the epicenter of the COVID-19 outbreak.  In addition to a focused inspection process provided to all facilities and inspectors, which is designed to ensure each facility is prepared to prevent the spread of the virus, the memorandum addresses additional guidance. If an individual enters a facility for a compassionate care situation, facilities should require visitors to perform hand hygiene and use Personal Protective Equipment like facemasks.  Decisions about visitation during these situations should be made on a case by case basis after careful screening of the potential visitor.  Facilities are expected to notify potential visitors to defer visitation until further notice. 

The memorandum lists specific guidelines that facilities should adhere to, including but not limited to: (1) cancelling communal dining and all group activities; (2) performing active screening of residents and staff for fever and respiratory symptoms; (3) reminding residents to practice social distancing and perform frequent hand hygiene; (4) screening all staff at the beginning of their shift for fever and respiratory symptoms; and (5) identify staff that work at multiple facilities and actively screen and restrict them appropriately.  The memorandum further discusses how facilities should consider hygiene and monitoring symptoms for persons entering/exiting facilities.  Facilities are encouraged to review and revise how their vendors deliver supplies, such as implementing dedicated drop-off locations for supplies at facilities.  If a nursing home has a resident suspected of having COVID-19, it should contact their local health department immediately. 

Instead of visits, facilities should consider offering alternative means of communications and assigning staff as primary sources of contact for residents.  If an individual enters a facility for a compassionate care situation, facilities should require visitors to perform hand hygiene and use Personal Protective Equipment like facemasks.  Decisions about visitation during these situations should be made on a case by case basis after careful screening of the potential visitor.  Facilities are expected to notify potential visitors to defer visitation until further notice.

The March 13, 2020 memorandum, in part, calls for facility staff to regularly monitor the Centers for Disease Control’s (“CDC”) website for additional information and resources. CMS recommends that facilities perform frequent monitoring for potential symptoms of respiratory infection.  The facilities should further maintain a “person-centered approach to care,” which includes communicating effectively with residents, resident representatives and/or family and further understanding the individual needs and goals of care for residents.  If a facility experiences an increased number of respiratory illnesses (regardless of suspected etiology), it should immediately contact their local or state health department for further guidance.

State governments closely regulate nursing homes, and many are issuing state specific guidance.  If a state government implements actions that exceed CMS requirements through an executive order, the facility will not be out of compliance with CMS’ requirements.  The memorandum further states that “State and Federal surveyors should not cite facilities for not having certain supplies (e.g., PPE such as gowns, N95 respirators, surgical masks and ABHR) if they are having difficulty obtaining supplies for reasons outside of their control.”  However, CMS still expects “facilities to take actions to mitigate any shortages and show they are taking all appropriate steps to obtain the necessary supply as soon as possible.”

The memorandum provides the following email address for a point of contact: [email protected].

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include the CCPA, the CARES Act, Law Enforcement and the viruses’ impact on the Construction Industry. Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the Coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER: The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19. The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement. We can only give legal advice to clients. Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG. An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest. As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such. We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

A Look Ahead to 2018 Legislative Session

Posted on: December 20th, 2017

By: Allan J. Hayes

The Georgia General Assembly will convene on January 8, 2018 and adjourn after 40 legislative days (usually the end of March). With 2018 being an election year, there is likely to be as much politicking, positioning and posturing as there is legislating during the second half of the 2017-2018 cycle. All statewide elected officials and all seats in the state House and State Senate are up for election in 2018. This generally means that no sweeping new policies will be passed this year.

Governor Deal (R) is term-limited, so the race for the office is open. Lt. Governor Cagle (R) is running for governor, so that office will be open as well. Many current and former legislators are campaigning to replace the Governor and the Lt. Governor, so both chambers are expected to adjourn early so everyone can campaign for their respective office.

But, as Speaker Ralston recently told a group of us, “regardless of elections, the people’s work must get done. And we will stay until it is finished.” This governor and legislature have worked well together in the past, and will likely work together on legislation that include the following (not in order of importance).

Every session, the most scrutinized piece of legislation is the state budget. According to the Georgia Constitution, it is the only issue the General Assembly must address each year. An increase in state revenue means lawmakers will have additional money to use in the 2018 fiscal year. At least some of that new money will go into education, which represents about half of the state budget. The health program for state employees and Medicaid are also likely to receive additional funds. And Lieutenant Governor Cagle wants the state to invest $100 million into venture capital for tech companies, a program he calls “Invest Georgia.” The state will also do what is necessary to continue funding of the Savannah Harbor Deepening Project.

The legislature will also consider spending for new rural development ideas like relocation tax incentives, rural broadband and healthcare funds to fight the opioid epidemic. Other healthcare related priorities include addressing rising health insurance premiums, including exploring association health plans and promoting the selling of insurance across state lines. Out-of-Network “Surprise Billing” or Balance Billing prohibitions is another major issue that will be tackled this session. The department of insurance may pursue ACA 1332 State Innovation Waivers to cover more Georgians and health insurance issues like air ambulance payments, cost-sharing Limits for prescription drugs, health insurance network adequacy standards, and medical marijuana will also be discussed.

The very contentious Religious Freedom Restoration Act has come up in each of the last two sessions of the legislature. Even with legislative leaders declaring it a “non-starter,” it will likely receive attention in the halls, if not on the floor. Last year a bill to modernize Georgia’s adoption laws which included the religious liberty provision was stalled. Legislative leaders have vowed to pass a “clean” adoption bill this year and the Governor has said he will sign it.  Additionally, there will be a bill introduced that would restrict local governments ability to ban short term residential rentals like Airbnb.

Another holdover from the 2017 session is Marsy’s Law, a proposed Constitutional Amendment securing permanent, enforceable rights for victims of crime. It passed the Senate and will be addressed in the House in 2018. Georgia’s certificate of need law for healthcare provider facilities is also a likely topic for debate. The Cancer Treatment Center of America is limited to 50 beds and a cap on in-state patients of 35 percent at their Georgia hospital and they support legislation to raise the 35 percent cap.

Finally, lawmakers are expected to debate two separate proposals that would boost pay for police and legislators. The Georgia Sheriffs’ Association is backing a one-cent sales tax to help fund a new mandatory minimum salary for deputy sheriffs and jailers, and legislators would see a 72 percent increase to their salaries under a proposal by a committee created earlier this year to review compensation for elected officials.

If you have any questions or would like more information, please contact Allan J. Hayes at [email protected].

Caps on Medical Malpractice Awards- How Much is Too much?

Posted on: August 5th, 2014

By: Taryn M. Kadar

Monetary caps on medical malpractice awards are commonplace in many states throughout the country. In today’s highly litigious environment, these monetary caps help limit the exposure a doctor or hospital may have in a medical malpractice suit. While some states such as Florida and Georgia have declared non-economic caps on damages to be unconstitutional, states such as California are currently considering whether to raise the cap on medical malpractice awards from $250,000 to $1.1 million. This significant raise ensures that both patient advocates and health care professionals will have a hand in the debate.

Patient advocates argue that raising the cap will help deter medical negligence. While opponents believe that a higher cap will raise healthcare costs and limit patient access to care. Further, doctors in California would need to spend more on medical malpractice insurance which may also hinder patient care.

How would this significant raise in the monetary cap amount impact the medical community in California? It is up to California residents to decide, as the issue has been approved for the ballot in November 2014. However, the debate is an important one, as other states may follow suit and consider raising its medical malpractice award caps.

Municipal Liability: Failing to Provide Inmates with Adequate Medical Attention

Posted on: July 9th, 2014

By: A. Ali Sabzevari

The Georgia Supreme Court is set to hear oral argument this September and will hopefully address and bring clarity to what the proper analysis is for determining whether a municipality is entitled to sovereign immunity for an inmate’s claim for failure to provide adequate medical care.  See City of Atlanta v. Mitcham, 325 Ga. App. 481, 751 S.E.2d 598, 599 (2013).

In Mitcham, an inmate was taken to a hospital because of “low blood sugar associated with diabetes.” When he was discharged, the hospital notified the City of the need to monitor his blood sugar and provide him with insulin. When the City failed to monitor and regulate his insulin levels, the inmate suffered serious and permanent injuries.

Under Georgia law, cities are protected by sovereign immunity for negligently performing governmental duties, but this immunity is waived if they negligently perform ministerial duties.

The Court in Mitcham found broadly that a “government unit’s” function of providing adequate medical care for inmates under its custody is ministerial in nature, and therefore, the City had waived its sovereign immunity.  The Court relied on Cantrell v. Thurman, 231 Ga. App. 510, 514, 499 S.E.2d 416, 421 (1998), a case involving a county, where the Court of Appeals denied official immunity to a county sheriff and sheriff’s deputy and held that providing medical care to persons in governmental custody is a ministerial act.

The judgment of the Court in Mitcham is debatable, but what is of greater concern is that the majority is blurring the distinction between the meaning of ministerial duties as pertinent to a City’s sovereign immunity and ministerial acts as pertinent to official immunity.  Moreover, questions of sovereign immunity and its waiver for municipalities and counties, as well as questions of official immunity, are based on different provisions of the Georgia Constitution and different statutes, and as such, courts and litigants alike should be cautious in merging the analysis.

This September the Georgia Supreme Court has the opportunity to bring clarity to the analysis for determining whether a municipality has waived its sovereign immunity when failing to provide adequate medical care to its inmates.

Electronic Medical Records – IT Guides for a New Frontier

Posted on: August 27th, 2012

By: Michael Eshman
It is clear that electronic medical records and exchanges are the wave of the future in healthcare. For better or worse, the electronic management and maintenance of files and records will transform the healthcare industry.

In December 2011, Georgia Health News reported on the medical revolution coming with online records and the statewide exchange Georgia is building with the help of a $13 million federal grant. In addition to the economic factors driving the change, in our prior blog post titled “Electronic Medical Records – Saving More Than Trees,” we noted that a recent Harvard study found medical malpractice claims dropped in Massachusetts after doctors began using electronic records. There are great rewards and incentives to adopt electronic medical records and to be part of the expanding record exchanges, both for the quality of care that can be provided to patients and for the economics and efficiency of practice management.

However, any practice using electronic medical records should lean heavily on trusted IT professionals to ensure the privacy and security of the records. As noted by Georgia Health News in the column linked above, the Ponemon Institute reports that the number of reported medical data breaches has increased by 32 percent since 2010.

In a recent brazen attack, hackers accessed the computer network of a small practice in Lake County, Illinois, but instead of merely stealing and reposting the records, they encrypted the records and posted a digital ransom note for payment in exchange for the password. It is unclear whether the records were backed-up, but if not, the hackers effectively held hostage the medical records of patients.

As more practices move to electronic records, and as medical record exchanges expand nationwide, the incidents of attempted hacks will likely increase, and it will fall to the practices and the administrators of the exchanges to manage the risk associated with maintaining and sharing electronic records. Electronic records and exchanges are part of the new frontier for medical providers, and there are great benefits to be gained from the advancements. But providers are wise to focus on the issues of data management and security and to lean on trusted IT professionals and risk managers for guidance.

Thoughts and questions are always welcome.