T F Y P d m a d Tm THEA DVSI R · s we find ourselves in 2014, is-sues in U.S. healthcare are po-larized and pressurized, creating an environment of uncertainty and anxi-ety for consumers

20 PACIFICA • SUITE 1100 • IRVINE • CA • 92618 • (949) 788-1790 WWW.WROTENLAW.COM

THE ADVIS R

NEWSLETTER BRIEF ISSUE NO25 FALL/WINTER 2013

IN THIS ISSUECOVER STORY

Looking AheAd to 2014 in Long term CAre .............. 1

E l d E r l a w & l o n g T E r m C a r E

T h E F i r m Y o u P i C k d o E s m a k E a d i F F E r E n C E Tm

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COMPLIANCE CORNERLimiting Your Qui tAm exposure ......................... 3

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LEADERSHIP INSIGHTdeCiding how to deCide ... 4+EMPLOYMENT LAW

new CALiforniA empLoYment LAws for 2014 ................. 5

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SAVE THE DATE2014 LtC ConferenCe ..... 7+

As we find ourselves in 2014, is-sues in U.S. healthcare are po-larized and pressurized, creating

an environment of uncertainty and anxi-ety for consumers and providers. On the public front the nation’s leaders are debating the pros and cons of changes in healthcare coverage. In the back room, healthcare and insurance industry lead-ers and financial gurus are pacing and wringing their hands as they attempt to envision a successful outcome for the current crisis in healthcare delivery and financing.

At a recent meeting of the nation’s past and present Medicaid Directors and vari-ous consultants, presentation after pre-sentation was made about the changing landscape. Speaker after speaker stood at the podium in over a dozen educa-tion sessions and spoke about efforts to manage costs and provide healthcare for

many of the nation’s neediest individu-als. There were presentations to aid in the deciphering of the Affordable Care Act and all the related nuances, innova-tive demonstration projects for manag-ing citizens dually eligible for Medicare and Medicaid, projects to manage high cost patients more efficiently, chronic disease management, and the like.

In each session of the conference that this author attended, when it came to the specialty of long term care, the presenta-tions left a void as the speaker’s voice trailed off, mentioning only that long term care remains a concern. There was no substantive discussion about how these leaders in the Medicaid envi-ronment intend to manage the growing aging population, the growing need for rehabilitation services, the increasing demands of well-informed residents and family members who are insisting upon individualized but non-therapeutic diets and alternative treatments and how fail-ing to meet those demands may or may not create compliance concerns for pro-viders. The only mention of long term care financing was an aside that Medi-care officials are looking forward to the day when they can reduce payments to skilled nursing facilities in the dual-el-igible pilot projects. In follow-up with a U.S. Senator, it is clear that these and

Kimberli Poppe-Smart • Senior Attorney

[email protected]

LOOKING AHEAD2014 in Long Term Care

OUR PEOPLEweLCome AndreA sitAr..... 2AnnounCements ................ 2

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(continued on page 6)

LTC BLOGstAY informed with w&A LtC BLog ........................ 8

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NEW

ComplianCe Corner ur people make the DifferenCe

W&A Announcements

Wroten & Associates Welcomes Andrea Sitar

Wroten & Associates is pleased to welcome Associate Attorney An-drea Sitar to the firm.

Ms. Sitar obtained her Juris Doctorate from Loyola Law School in Los Angeles, Califor-nia. Ms. Sitar graduated in May 2013 with an International and Comparative Law concen-tration and a sub-concentration in Internation-al Economic Law.

During law school, she was a case worker for Loyola’s International Human Rights Clinic. She was also a Clinical Extern at Loyola’s

Center for Conflict Resolution, a public in-terest alternative dispute resolution center in downtown Los Angeles.

Ms. Sitar served as a mentor in the Judge Stephen O’Neil Young Lawyers Mentoring Program, which teaches high school students from underserved LA communities about the legal profession, rules of evidence, and trial techniques.

Ms. Sitar is a member of the American Society of International Law.

WELCOME OLIVIA CADENCE KEENEY CONGRATULATIONS CONGRATULATIONS

Melissa Keeney and her husband Troy

welcomed their daughter Olivia on

October 25, 2013. Olivia weighed in

at 9lbs., 4oz. of pure sugar and spice!

Nicole Chancellor exchanged vows

with Christopher Shelley on September

21, 2013. The couple honeymooned in

Italy.

Ambur Williams exchanged vows

with JP Rivera on November 17, 2013.

Ambur’s son, Isaiah joined the happy

couple.

Andrea Sitar • Associate Attorney

[email protected]

NEWSLETTER BRIEF ISSUE NO25 FALL/WINTER 2013 NEWSLETTER BRIEF ISSUE NO25 FALL/WINTER 2013

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ComplianCe Corner

Limiting Your Qui Tam Exposure

Qui tam is a Latin abbreviation for “one who sues on behalf of the king as well as for him-

self”. A qui tam case is one brought by a private citizen on behalf of the government. That private citizen is referred to as a “relator” or a “whis-tleblower”. In healthcare, this mecha-nism is being utilized to bring claims against providers for things such as violations of the anti-kickback statute and fraudulent billing practices. Of-ten the relator is a former (or current) employee. Congress has created an incentive for individuals to bring such a claim by allowing them to share in the money the government col-lects from the proceeds of the action against the provider. While it was Congress’ intent to provide incentives to supplement government enforce-ment of requirements on healthcare providers by rewarding citizens with knowledge to step forward and report such violations, they have arguably created an opportunistic relationship between employees and their employ-er.

To manage your organization’s expo-sure to qui tam actions, here are some strategies to deploy:

1) Maintain a robust and effective compliance program with rel-evant compliance activities.

2) Develop and communicate to all employees a culture of compli-ance.

3) Develop and communicate to all employees the mechanisms for re-porting compliance concerns.

4) Adopt a policy of non-retaliation for employees who report con-cerns.

5) Take reports of violations seri-ously. Investigate all concerns brought forward and provide a re-sponse to employees who have re-ported concerns, limiting what is shared where necessary to avoid disclosing personnel actions.

6) Conduct exit interviews for all employees.

7) Educate staff about the common experience of government inves-tigations and their options for re-sponding or not to investigators who approach them on and off duty.

Staying abreast of industry require-ments and administering compliance efforts in a transparent manner leaves

little room for speculation about wrong-doing and can lower your or-ganization’s exposure to whistleblow-er actions. The government reports that in the vast majority of cases, the whistleblower went to great efforts to solve the compliance concern in-ternally before seeing their own at-torney. Establishing and following a policy that promotes communication of concerns and follow-through is critical to reduce the risk of defend-ing a qui tam action.

Kimberli Poppe-Smart • Senior Attorney

[email protected]

NEW



LET US HELP...

NOW AVAILABLE

Wroten & Associates’Security and Privacy Guide

Includes• Policies & Procedures• Action Guides• Reference Materials• State Laws

Visit our website at

www.wrotenlaw.com for more

information and up-to-date

laws and exemplars to help

manage the ever-changing

landscape of compliance

regulations and requirements.



4

Marilynn Allemann, L.C.S.W., CPC [email protected]

Decision-Making: Deciding How to DecideBy Marilynn W. Allemann, L.C.S.W., CPC

Decision-making is an important skill in the workplace and ex-tremely important if you wish to

be an effective leader. Avoiding bad deci-sion-making requires critical thinking and a systematic, structured approach. Wheth-er you are deciding which strategy to pur-sue, a supplier to use, or a person to hire, being able to make a good decision based on available information is vital. A good manager or team leader will implement an organized and systematic decision-mak-

ing process which leads to better decision choices and successful leadership.

Managers are constantly called upon to make decisions in order to solve prob-lems. Everyday, personally or profes-sionally we each generate ideas, make decisions, draw conclusions and evaluate many situations. Deciding how to decide and problem solve are ongoing processes of evaluating situations, considering alter-natives, making choices and following up

with the necessary actions. We know that decision-making requires careful critical thinking. Critical thinking is a tool by which one can arrive at conclusions based on a reasoned, structured process. The process incorporates passion and creativ-ity, but is guided by discipline, practicality and common sense. Decision-making can be exciting, but also stressful. The entire decision-making process is dependent upon the right information being available to the right people at the right times. A systematic approach to decision-making aids you in addressing the critical ele-ments that end in a good decision. Using an organized approach lessens the risk of missing important factors in making an ef-fective decision.

Effective decision-making requires a number of critical steps. The creation of a constructive environment is important. This can be done by establishing the ob-jective, agreeing on the process, involv-

ing the right people, allowing opinions to be heard, and making sure you are asking the right questions. Be sure to accurately define the issue/problem so that all of the steps that follow are based on accurate information. Generating good alterna-tives is critical to the successful decision-making process. This can be accomplished through a process called brainstorming. In brainstorming, a group works together to generate ideas and alternative solutions. The assumption is that the group dynamic

stimulates thinking, as one person’s ideas, no matter how outrageous, can generate ideas from the others in the group.

Once reasonable alternatives have been identified they need to be evaluated. In evaluating the alternatives, which can be the most consuming part of the decision-making process, there are three key fac-tors to consider: 1) There is some risk involved in most decisions. It is impor-tant to evaluate and understand the risks and make the best choice possible. Spend some time, think ahead and determine ex-actly what will make the decision “right”; 2) No one can predict the outcome or im-plications of a decision with 100% accura-cy. However, being careful and systematic in the way you identify and evaluate pos-sible consequences will help ensure that you make the best choice; and, 3) Make sure the choice is feasible, realistic and implementable. Take a look at the deci-sion you’ve made as objectively as pos-sible, to ensure that your process has been thorough.

Communicating your decision and tak-ing action is also important. It is critical to communicate clearly and concisely the decision you have made to those affected by it and to those who will be involved in implementing it. Remember, many things can affect the final impact of your decision, so establishing a strong founda-tion of decision-making, identifying good alternatives and evaluating them you will improve the quality of your decision. Fol-lowing the implementation of your deci-sion, review and evaluate whether the issue or situation has been resolved. If it has been resolved then congratulations! If it has not, you may need to review your process, seek feedback, gather more de-tailed information and discover additional alternatives on which to base your revised

leaDership insight

“In any moment of decision the best thing you

can do is the right thing, the next best thing is the

wrong thing, and the worst thing you can do is

nothing.” - Theodore Roosevelt




5

employment law

DigitalNewsletter Available

Sign up today: www.wrotenlaw.com

E-NEWSLETTER

New California Employment Laws for 2014

As we enter into 2014, it’s impor-tant to take stock of new and amended laws effecting Cali-

fornia employers. The most significant may be the increase in minimum wage, but there are a number of other changes about which employers should also be aware. The following is a list of new or amended employment related laws which became effective January 1, 2014. Em-ployers should review their Employee Handbooks and Policies and Procedures manuals and make the changes necessary to assure their written policies are consis-tent with these changes.

MINIMUM WAGE INCREASE

AB 10 increases the California minimum wage from the current $8.00 an hour to $9.00 on July 1, 2014 and to $10.00 an hour on January 1, 2016.

DOMESTIC WORK EMPLOYEES

AB 241 enacts the Domestic Worker’s Bill of Rights which requires overtime pay for certain domestic work employees who are personal attendants.

DAMAGES FOR MINIMUM WAGE VIOLATIONS

AB 442 expands the Labor Commission-er’s authority to order liquidated damages after a citation from a field investigation is issued to an employer for failure to pay minimum wages to his/her workers. Pre-viously, the Labor Commissioner could only award restitution of wages owed.

ATTORNEYS’ FEES-PREVAILING PARTY WAGE CLAIMS:

AB 462 provides that an employer who wins a lawsuit based on a wage claim may only collect attorney fees and costs from the employee if the trial court finds that the employee filed the claim in bad faith.

LABOR COMMISSIONER LIEN PROVISIONS

AB 1386 provides that the amount due on an award by the Labor Commissioner creates a lien that the Labor Commission

Laura K. Sitar • [email protected]

decision.

While many of us sometimes avoid or delay the decision-making process, we as managers and leaders, must address deci-sions in a timely and careful manner. Very few, if any, situations solve themselves and only our actions will bring about the correct solutions we require for success.Be decisive and succeed!

Additional information can be found on Marilynn W. Allemann’s website and blog:

www.MWAExecCoach.com. www.MWAExecCoach.wordpress.com

Please contact Marilynn W. Allemann di-rectly at [email protected] with any questions.

Decision-MakingContinued from page 4




6

2014 in LTCContinued from page 1

similar concerns for long term care pro-viders are not at the forefront of any cur-rent leading debates and are not in scope for at least 18 months. As we wait, a crisis brews.

Over the next year we will present a se-ries of articles on relevant related topics, including the concerns raised above, in the realm of organizational compliance. A few of the topics we will explore include:

• Dissecting Corporate Integrity Agree-ments and similar materials to find clues on what an “effective” compli-ance program looks like.

• Highlighting the OIG Work Plan and HHS’s program integrity auditing and monitoring efforts.

• Analysis of “worthless services” and other violations of the False Claims Act.

• The impacts of regulatory issues on civil litigation.

• Review of new guidance, pilot proj-ects and other initiatives.

• Key organizational strategies to em-brace and maintain a culture of com-pliance.

January is when we like to contemplate those things we will improve in the new year. Sometimes we reduce those commit-ments to writing, creating a resolution to guide our efforts as we step forward with a renewed vision for our journey. As 2014 begins and you, like your employees and peers, contemplate how you will improve yourself and your organization in the new year, you are encouraged to consider the possibility of improving your organiza-tion’s performance and maintaining a fa-vorable compliance track record by man-

aging habits.

Changing the habits of an organization re-quires the habits of many people to change and the outcomes can be extremely pow-erful; resulting in lasting change and a more gratifying work environment. Just like individual resolutions, the first step in creating positive organizational change is to become aware of the habits that need to change. Just as you may become aware of your need to increase your physical activ-ity, eat more greens, or spend more time with your children, the organization must first become aware of its inefficiencies and habits that create imbalance or enterprise risk.

As a leader in your organization take some time to reflect on the habits in daily rou-tines and identify opportunities for im-provement. Take time to contemplate what habits should define your organization’s culture and realize that you can create that culture by strategically planning to change a few things in the organization. Just as in your personal life, trying to change too much all at once can derail you from achieving any of your goals. Prioritize those habits that, if changed, will have an obvious impact. For example, individu-alized care planning is a high priority for state surveyors. Are your residents cen-tral to the individualization of their care plan development or, are care planning meetings held at times when residents have competing activities such as bathing, treatments, therapies and the like? Exam-ine whether the staff can alter their work flow to be more accommodating to resi-dents and their families and allow greater exchange of care planning priorities and desired outcomes. Changing organiza-tional habits that lead to improved resident participation in the care planning process can lead to reduced criticism by oversight agencies and increased partnership with residents and their families. Improved relationships and effective communica-tion have been shown to reduce litigation exposure.

Another critical area where habits may be stagnating your growth and have an

eventual detrimental impact on your or-ganization is in the monitoring of quality measures. For example, are you monitor-ing and appropriately responding to subtle changes in conditions that, if addressed earlier and appropriately would result in an improved care experience? Do you wait until the resident has lost 5% of their weight in 30 days or 10% in 90 days to institute new interventions? Earlier indi-cators of actual or impending weight loss, like decreased appetite and food intake, could be identified and communicated within the team in a timely manner and responded to promptly with appropri-ate interventions. Perhaps the resident is experiencing depression or is lonely and addressing those needs through increased socialization or therapeutic support would lessen the need for appetite stimulants, in-vasive blood tests and more drastic inter-ventions.

These scenarios are presented as thought-starters for your analysis of organizational habits and room for improvement with planned change. Identifying the opportu-nities for change and prioritizing them are the beginning. There are many resources available that elaborate on the ways that habits impact outcomes and how to suc-cessfully effectuate change. One such resource is The Power of Habit: Why We Do What We Do in Life and Business by Charles Duhigg. This book provides an explanation of habit, including brain chemistry, that helps put this phenomenon in perspective. Mr. Duhigg describes how habits can be successfully changed by building “cues” into our lives and orga-nizational systems to shape our behaviors towards the desired outcomes.

Your organization’s habits may have de-veloped by accident but by focusing on a few key areas, and sticking with it, you can redefine those habits and create the culture you envision for improved experiences of staff, residents and families.

Be sure to check out our new section-COMPLIANCE CORNER-on page 3.

COVER STORY

NEW



7

may record on the employer’s real prop-erty.

PROTECTIONS FOR EXERCISING RIGHTS UNDER THE LABOR CODE

AB 263 amends Labor Code §98.6 to pro-hibit retaliation or adverse action against an employee who has exercised his or her rights under the Labor Code. Protected conduct includes presenting a written or oral complaint that the employee is owed unpaid wages. AB 263 adds a civil pen-alty of up to $10,000 per employee per violation.

FAMILY LEAVE EXPANSION

SB 770 expands the definition of “fam-ily” for purposes of the California Fam-ily Leave Act. The State Disability Fund currently provides partial pay to covered employees who stay home to care for se-riously ill parents, spouses, registered do-

mestic partners and children and for bond-ing with a new child. SB 770 expands the definition of “family” to include seriously ill grandparents, parents-in-laws and sib-lings.

SEXUAL HARASSMENT

SB 292 amends California’s current anti-discrimination statute to clarify that sexu-ally harassing behavior need not be moti-vated by sexual desire to be found to be hostile treatment.

PROTECTION FOR ACTIVE MILI-TARY AND VETERANS

AB 556 adds “military and veteran status” to the already long list of categories pro-tected from employment discrimination under the Fair Employment and Hous-ing Act. It’s important to add these terms to your anti-discrimination policies and statements.

RETALIATION AND UNFAIR IMMI-GRATION PRACTICES

AB 263 prohibits an employer from threat-ening to contact, or contacting immigra-

tion authorities because an employee has complained about unfair wages or work-ing conditions or for asserting other rights protected under the labor code.

TIME OFF FOR EMERGENCY TRAINING

AB 11 requires employers with 50 or more employees to provide leaves of absence of up to 14 days per calendar year to reserve police officers and other emergency per-sonnel to receive training. That training includes emergency rescue training in ad-dition to the fire fighting and law enforce-ment training.

Save The DaTe • May 29, 2014

Long Term Healthcare

Conferen ce 2014

6th Annual Wroten & Associates’ Long Term Healthcare Conference

Thursday, May 29, 2014at Disney’s Grand Californian Resort in Anaheim, California.

Continuing Education Units (CEU) Offered.

This educational conference is offered at no charge.

QUICK INFOScan for more information.

Be sure to regulary read the W&a legal Blog For employment laW updates

wrotenlaw.wordpress.com

STAY INFORMED

New 2014 LawsContinued from page 5

EMPLOYMENT LAW

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NEWSLETTER BRIEF ISSUE NO25 FALL/WINTER 2013

Documents

T F Y P d m a d Tm THEA DVSI R · s we find ourselves in 2014, is-sues in U.S. healthcare are po-larized and pressurized, creating an environment of uncertainty and anxi-ety for consumers