The legal and regulatory environment in the long-term care sector is heavily regulated due to government being a major payer and clients often being frail and vulnerable. Laws are categorized as civil law, which deals with private parties and penalties as monetary damages, or criminal law, which defines crimes and penalties as jail time or fines. Facilities must be licensed by the state and may seek federal certification to serve Medicare/Medicaid patients, which requires compliance with federal standards. Regulations cover areas like patient rights, privacy of health information under HIPAA, and antidiscrimination laws.

2. Legal and Regulatory Environment

3. Laws prescribe rules of conduct that are enforced by public authority Violation is threatened with punishment Laws serve mainly a protective purpose

4. Two main reasons why the long-term care sector is heavily regulated: The government is a major payer The clients are often frail and vulnerable

5. Two main categories of laws: Civil law Criminal law

6. Sources of Law Common law : Past court decisions (legal precedents) Statutory law : Laws made by the legislative branch Administrative law : Rules and regulations crafted by the executive branch

7. Civil Law Tort Law Contract Law Tort: A civil wrong other than a breach of contract Contract: A specific agreement between two parties

8. Civil law: Characteristics Deals with relationships between private parties When seeking remedy for injury, the plaintiff is a private party Penalties for wrongful acts are in the form of monetary damages

9. Criminal law: Characteristics Defines crimes and provides for punishments for crimes A crime is an offense against the general public Jail terms, fines, or both may be imposed The wrongdoer is prosecuted by a public prosecutor, but a harmed private party may also pursue civil action.

10. Crimes Specific to Health Care Delivery Billing programs for services not delivered Providing and billing for services that are not medically necessary Gross violation of commonly recognized standards of care Reckless disregard for the safety and well-being for patients

11. Tort Damages Award of monetary damages to make the person whole again Punitive (exemplary) damages for egregious conduct, such as Malice Gross negligence Blatant violation of individual rights Fraud

12. Contract Legally binding agreement Between competent parties To carry out a legal purpose An agreement generally involves: - offer and acceptance - meeting of the minds - consideration

13. Regulations Classified as administrative law Crafted by administrative agencies of the government Interpret statutes and furnish details for implementing the statutes Carry the force of law Enforced by administrative agencies that crafted the regulations

14. Non-profit Ownership Prohibited from distributing profits to individuals Must serve a charitable purpose Tax exempt Private donors can claim charitable deductions on their tax returns

15. Proprietary Ownership Three main types: Corporation Partnership General Limited Sole proprietorship

16. Desirable Qualifications of Board Members Respected community leaders Technical expertise in some area (health care, finance, law, etc.) Be able to bring community and client perspectives

17. Current NHA Issues Lack of uniform qualifications for licensure across states Most states do not mandate a bachelor’s or higher degree in health care management Shortage of qualified administrators

18. Licensing of Health Professionals All states require nurses, therapists, and physicians to be licensed Some states also license other health professionals Licensing laws govern to main areas: - minimum qualifications - scope of practice

19. Personal Liability The administrator and other employees can be held personally liable for Committing wrongful acts that cause harm Failure to do something they should have done and harm occurs as a result of the omission Unlawful acts regardless of whether harm occurs

20. Personal Tort Liability Negligent acts Intentional acts Breach of duty that results in injury Willful actions in which the consequences are known and desired

21. Injury from Negligence Four conditions must be present: A duty must be owed A breach of duty must occur An injury must result A direct cause-and-effect relationship must exist between the breach of duty and the resulting injury

22. Types of Intentional Torts Assault and battery False imprisonment Invasion of privacy or breach of confidentiality Defamation: libel and slander Fraud Infliction of mental distress

23. Respondeat Superior The nursing facility is held liable for the wrongful acts of its employees Individuals may also be held personally liable The organization is liable even if it takes all reasonable steps to select, train, and supervise employees A supervisor is not an employer and cannot be held liable for the acts of employees he or she supervises

24. A facility may be held liable for the wrongful acts of contractors if: The facility exercises control Contractors are represented to clients as employees of the facility The facility fails to review the qualifications and credentials of independent contractors rendering services to patients

25. Facility Licensure A nursing home cannot operate without having been licensed by the state Licensure requires compliance with state nursing home standards and with the national Life Safety Code Generally, the license must be renewed annually

26. Facility Certification Optional if the facility wants to serve Medicare and/or Medicaid patients The facility must comply with uniform federal standards called Requirements of Participation The law requires substantial compliance rather than zero tolerance Three types: SNF, NF, ICF/MR Dual certification: SNF and NF

27. Facility Accreditation Optional Accrediting body: JCAHO Most nursing homes have chosen not to be accredited because - deemed status is not conferred - fees are high Research shows a high correlation between accreditation status and quality

28. Requirements of Participation (2) Equal access This requirement applies to certified facilities Such facilities are required to admit patients on a first-come-first-served basis regardless of the patient’s source of payment Patients in certified facilities must receive similar services

29. Enforcement of Certification Standards Survey process is the main tool Five different types of surveys: standard, abbreviated, extended, special, validation Citation of deficiencies Plan of correction

30. Deficiencies Violation of a standard Resident-centered: violation affecting a single resident (e.g., an incontinent resident has not been cleaned). Facility-centered: violation affecting an operational system, such as infection control Severity and scope

31. Possible Sanctions Directed plan of correction requiring external consultation Denial of payment Fines Temporary management appointed by the state Termination from Medicare and Medicaid

32. Antidiscrimination Laws Title VI of the Civil Rights Act of 1964 prohibits denial of benefits based on race, color, or national origin Section 504 of the Rehabilitation Act of 1973 prohibits discrimination based on physical or mental handicap Also protects people with HIV/AIDS

33. Patient Rights Governed by the Patient Self-Determination Act of 1990 To be informed of one’s rights Privacy and confidentiality Freedom from abuse, neglect, and misappropriation of property Option to make decisions about one’s own care

34. Substitute Decision-Making and Advance Directives Role of family members Legal guardian Advance directives: Living will Do-not-resuscitate order Durable power of attorney

35. HIPAA 1996 Governs the use and disclosure of patients’ protected healthcare information (PHI) It is illegal to gain access to PHI except for - delivering health care - carrying out facility operations - reimbursement Exceptions: Emergencies, patient’s transfer to another facility, legal requirements Other uses or disclosures require the patient’s written authorization

36. HIPAA (contd.) Facility must protect transfer of PHI Facility must have a privacy policy detailing how the facility will use and disclose PHI A copy of the policy must be given to each patient or his/her guardian Policy must be posted in the facility Violations are subject to civil and criminal penalties