It has been a busy week and next week is a holiday week (Thanksgiving) so of course, a shortened news and work week. That said, there is a lot going on right now and for followers and readers, I thought sharing my top four topics to watch made sense.
Tort Reform: Back in February, the Georgia legislature approved the Data Analysis for Tort Reform Act, authorizing the insurance commissioner to collect data on tort claims and insurance connected risks. A key driver for this activity, aside from a favorable state administration under Governor Brian Kemp, is the healthcare provider community. Providers have been verbal in asking for help in the form of relief from frivolous lawsuits.
The report was issued on November 1, available here: H.B. 1114 – Data Analysis for Tort Reform Act Per the report, claims frequency increased between 2014 and 2023. During the five-year period 2014 to 2019, the average claim count was 583,756. For the following five-years of 2019 to 2023, the average claim count jumped almost 25% (24.9) to 729,191. Claim severity has also increase and at a rate faster than claim counts.
What is interesting about this topic to me is that it ties to work my firm H2 Healthcare does in our compliance and litigation practice. We have seen a steady increase in actions post-COVID nationwide and without question, the dollar demands have increased. If Georgia can make some reform headway, the same may present a model for other states to follow.
Oz, Medicare and Medicaid Reform: President Obama famously said, “elections have consequences”, and he was correct. With a wide electoral and popular vote victory, Republican and President Trump claimed the Oval Office and both houses of Congress. Running on a somewhat abstract reform agenda (some agenda items clearer than others), Trump has quickly begun to nominate cabinet and programmatic leadership candidates.
For Health and Human Services, he nominated Robert Kennedy, Jr. and for the head of CMS, he nominated Dr. Mehmet Oz (Dr. Oz of TV/Oprah fame). What is unknown and why this topic is on my “must” watch list is the depth and range of issues that are on the table ranging from regulatory reforms to wholesale program reforms.
During the campaign, Trump pretty much indicated a no change agenda for Medicare and Social Security though campaign promises tend to get lived-out in an alternate universe post-election. The GOP has been messing with possible Medicaid reforms, most probably on the conditional work or employment side. Regardless, a good framework of issues that are minimally, front-and-center comes from KFF (Kaiser). Biden’s CMS Chief Warns That GOP’s Plans Will Hurt Low-Income Enrollees – KFF Health News
CMS Issues Extensive SNF Survey Changes: CMS released on Monday, the following revised guidance for nursing home surveyors:
• Admission, Transfer & Discharge, Chemical Restraints/Unnecessary Psychotropic Medication, Resident Assessment, Quality of Life and Quality of Care, Administration, Quality Assurance Performance Improvement (QAPI), Infection Prevention and Control, and other areas. The 900-page update is available here: qso-25-07-nh-combined-files
A major portion of the changes CMS is making concern the use of psychotropic medication. Per CMS the focus of these (new) requirements is to ensure residents only receive psychotropic medications when other nonpharmacological interventions are clinically contraindicated. Residents must remain on psychotropic medications only when a gradual dose reduction and behavioral interventions have been attempted and/or deemed clinically contraindicated.
Additional guidance has been included to underscore the importance of residents’ rights to be fully informed about, and to participate in or refuse, their treatment. This specifies that residents must be informed and given the right to consent to or refuse psychotropic medication before its initiation or dosage increase.
Other updates include admission, transfer, and discharge requirement changes such as prohibiting language within resident agreements regarding third-party guarantees of payment.
Another interesting element is that even though the COVID 19 public health emergency has ended and COVID is now endemic, CMS has integrated updated COVID-19 immunization guidance into the survey process. Facilities will be required to educate residents and staff about the benefits and potential side effects of the COVID-19 vaccine and offer the vaccine to residents and staff as part of ongoing infection control efforts. What interests me here is that the vaccines currently available show no actual benefit in reducing the spread of COVID or minimizing, the risk of infection.
A good summary (for those that don’t wish to read 900 pages) is available here: CMS Unveils Major Changes for Nursing Home Surveys for 2025 – Skilled Nursing News
COVID Immunity in the Courts: A senior care provider in Florida is requesting a federal court to reconsider a case alleging willful misconduct during the pandemic, contending that such allegations should not be adjudicated by state judges.
GVDB Operations, the entity behind Grand Villa of Delray East, has petitioned the Eleventh Circuit to convene its full panel to review the case after a 2-1 decision by a panel of judges resulted in the case being sent back to a Florida state court.
The company maintains that the federal PREP Act, which grants extensive immunity to entities responding to the national COVID emergency, should preempt claims against it and other long-term care providers. According to the Act, federal courts are designated as the exclusive forums for addressing grievances that fall under its protection.
In a 2-1 decision, the Eleventh Circuit majority ruled on October 31 that Grand Villa of Delray East was not considered a “federal actor” during the pandemic. Consequently, the defendants are not entitled to federal jurisdiction over claims that their gross negligence resulted in a woman’s death from the virus in 2020. The court’s decision in Schleider v. GVDB Operations aligns with recent decisions by the U.S. Courts of Appeals for the Third, Fifth, and Ninth Circuits regarding federal designees. The opinion is here: 11th Circuit Decision
The plaintiffs (estate of Sara Schleider) asserted that the companies, who ran the assisted living facility, breached their duty of care by failing to implement measures to prevent Schleider from contracting COVID-19, which she soon after died from.
Arguments have yet to be brought in any case that I have seen, about what measures could have been used to prevent infection as what we are consistently seeing is that the CDC’s recommendations such as masks and vaccination were admittedly (by the CDC and other infection control experts) ineffective at preventing infection.
I wrote about an analogous case in Illinois. What is interesting to watch is how these matters get settled/addressed and what precedent that sets for the dozens of other similar cases presently in the courts. https://rhislop3.com/2024/10/22/illinois-assisted-living-and-covid-immunity/