Some Supreme Court justices on Wednesday signaled their willingness to give courts more discretion in interpreting “ambiguous” federal statutes rather than leaving that work to the agencies tasked with implementation.

Abandonment of the so-called Chevron doctrine could have implications for nearly every US sector and industry, including long-term care. Existing practice requires courts to give federal regulators deference when a statute is unclear or could be interpreted two ways, but experts said a change could embolden more lawsuits challenging key rules affecting senior living and skilled nursing providers.

A decision overruling Chevron likely would require Congress to craft more detailed legislation that delegates powers more specifically. It also could “have a significant impact” in keeping administrative agencies from overreaching when such delegation doesn’t exist, said Mark Reagan, managing shareholder of Hooper, Lundy & Bookman.

“This will have impact across the entire regulated economy, including Medicare, Medicaid and other healthcare legislation,” he told McKnight’s. “If overruled, I would expect there to be serious consideration in some quarters to reverse prior decisions made in reliance on Chevron in the healthcare industry, particularly those involving complex Medicare reimbursement methodologies.”

In the long-term care sector, Reagan said the Centers for Medicare & Medicaid Services might have to change how it approaches its requirements of participation and reimbursement rules.

That might not constrain CMS, Reagan said, but instead could lead to more opportunities for successful litigation if the agency’s presumed authority “is far from clear.”

Two fishy cases 

Many conservatives have cheered the possibility of a reversal, which is being pursued by a group of herring fisheries that argue their livelihood is threatened by a Commerce Department rule requiring them to pay for overfishing monitors onboard their boats.

Those fishermen took two separate cases to the court for almost four hours of hearings Wednesday. The full court will weigh Relentless v. Department of Commerce, but Justice Ketanji Brown Jackson had to recuse herself from Loper Bright Enterprises v. Raimondo, in which she heard lower court arguments.

The court’s conservative majority peppered US Solicitor General Elizabeth Prelogar with questions about Chevron’s ability to create regulatory unreliability, or the idea that existing rules can be routinely “flipped” by agencies without any warning to the businesses they regulate. 

“The reality of how this works is, Chevron itself ushers in shocks to the system every four or eight years when a new administration comes in, whether it’s communications law, securities law or competition law or environmental law. It goes from pillar to post,” said Justice Brett Kavanaugh. “It’s just massive change. That is at war with reliance. That is not stability.”

Lawyers for the fisheries argued that courts could review contested agency actions for their persuasiveness, rather than reflexively deferring to the agency’s interpretation. That approach appeared to be favored by the court’s conservatives, too, Reagan noted. 

Liberal leanings

The court’s decision likely will be split, as several more liberal justices appeared inclined to let the 40-year-old doctrine stand.

Justice Elena Kagan used real-life cases ranging from classifying a product for the Food & Drug Administration and possible legislation on artificial intelligence to illustrate why courts might not be the best final arbiters.

“There are just some times when you look at a statute, and the most honest reading is that there is a gap there because of the limits of language, because of the limits of our ability to predict the future. And so who fills that gap?” she asked. “It’s best to defer to people [agency staff] who do know, who have long experience on the ground, who have seen a thousand of these kinds of situations. Judges should know what they don’t know.”

Kagan argued that the intent of Congress is to have the agencies it empowered make those decisions, not a series of federal courts that could conflict with each other based on their geography and political leanings.

Others, including conservative justice Samuel Alito, also questioned whether a revised approach might lead to more judicial activism. He referred to Chevron’s initial popularity when it was adopted by the Court in 1984 as a conservative tool to stymie a liberal DC Circuit Court.

That policy-making concern resonated with Brendan Williams, an attorney and president and CEO of the New Hampshire Health Care Association, the state affiliate of the American Health Care Association/National Center for Assisted Living.

“Those providers looking to the courts for salvation under a new approach should consider Health and Hospital Corp. of Marion County, Indiana v. Talevski, last year’s 7-2 Supreme Court decision that, in my opinion, fabricated out of whole cloth a right to sue publicly-owned nursing homes,” he said. “When courts, even conservative courts, are allowed to make policy, the consequences could be chaotic and unpredictable.”

Williams added that he was nervous that the conservative majority appears ready to institute an older precedent that was effective in the New Deal’s regulatory-building heyday.

“These days, with an utterly inert Congress, the complex task of governance could unravel if those with lifetime appointments, unaccountable in any way to the public, can second-guess agency scientific analyses,” he added. “Though it perhaps seems improbable, the day may come when an agency interprets an ambiguous statute in a ‘reasonable’ way beneficial to nursing homes, and those hostile to the sector challenge that rule before a judge who is also hostile to the sector. …That judge no longer must offer any deference to that agency.  So it cuts both ways.”

Decisions in the two cases are expected before the court adjourns in June.

In an attempt to reduce rehospitalizations, researchers have developed a new app that allows hospitals to speak the same language as the nursing homes receiving their newly discharged patients.

The info-sharing app aims to improve the exchange of patient information and better inform the care provided to nursing home patients. It bridges the gap between medical records systems that use different data storage technologies and offers patient information in a format influenced by nursing home workers themselves.

The development stems from a study that started with a team of experienced nursing home nurses identifying key data points and helping shape the way the tool works and its visual format. The process was detailed in JAMDA, the Journal of Post-Acute and Long-Term Care Medicine.

“The reason that people go to a nursing home after being hospitalized is due to their needs for additional support for medical complexity. Receiving information that is inaccurate or delayed ties the hands of the clinical providers in the nursing home, making it more difficult to provide safe and appropriate care at the time of transition,” co-developer and study author Kathleen Unroe told McKnight’s Long-Term Care News on Friday. “Medications for pain or other medical conditions could be delayed due to a lack of up-to-date information.”

Some conditions, especially behavioral health needs, also may be missed by receiving facilities, and those facilities may be unequipped to treat such needs.

“Not only can this place the patient’s health at risk, it can also put the health and safety of other residents (in the patient’s home or in a SNF), as well as provider staff, at risk,” Centers for Medicare & Medicaid Services Director David Wright wrote in a memo to hospitals earlier this year. “These situations can cause avoidable readmissions, complications, and other adverse events.”

Robust info sharing helps staff

Preventing unnecessary readmissions is one of Unroe’s main areas of focus as a research scientist for the Regenstrief Institute at Indiana University.  She said she has been bewildered by the lack of consistency or movement toward interoperability between healthcare settings.

“This is an issue we have had the technology to solve for a long time, and I and other clinicians are frustrated that the situation varies so much by facility and by discharging hospital,” she said. “I appreciate that CMS is pushing hospitals to take responsibility for transmitting appropriate and timely information to nursing homes to support care transfers.”

The info-sharing app development project focused on how critical information optimally should be presented and integrated into nursing home workflows. 

“A nursing home admission nurse or admitting physician should not have to sift through a pile of paper or dig through lengthy electronic health records to capture basic pieces of data that we need to know on each admission,” Unroe said.

The app provides “robust” information quickly to support what the research team called a seamless transition of care across settings, regardless of which electronic medical record systems the two facilities use. It addresses residents’ medical needs as well as what supports they might need for activities of daily living, explained co-author Joshua R Vest, PhD, of the Department of Health Policy and Management at Indiana University. 

And the benefits won’t necessarily be limited to patients, Unroe added.

“Costs of staff training are reduced if the time is put into thoughtful, user-centered design, such as the results presented in this study,” she said. “Increasing sophistication of medical record systems and a greater push for interoperability mean it is possible to get widespread solutions in nursing homes into use.”

Unroe now plans to advance the prototype into a fully scaled tool for broad use on computers and handheld devices. The researchers plan to test it in real time with actual transfers to confirm that it will support nursing home nurses “to efficiently and safely admit patients as well as to ensure that there is no disruption in the clinical care plan created by the hospital due to transition to a nursing home,” Regenstrief said in a press release.

The nation’s largest insurer is illegally using programs driven by artificial intelligence to override the decisions of medical professionals and wrongfully force residents from nursing homes, a lawsuit seeking class-action status claims.

A lawyer representing the plaintiffs told Reuters that the class, if certified by the court, could include tens of thousands of plaintiffs, and that claims for damages could reach billions of dollars.

The case is being brought by the estates of Gene B. Lokken and Dale Henry Tetzloff, both Medicare Advantage beneficiaries whose coverage for skilled nursing care abruptly was cut off just days into their stays. Doctors overseeing their treatment insisted that they needed further in-patient services, but both cases were denied on appeal. Each family paid for months of continued SNF care out-of-pocket until both men died earlier this year.

In documents filed Tuesday in US District Court in Minnesota, attorneys argued that the post-acute care coverage was wrongfully terminated by UnitedHealthcare using its nH Predict AI Model. 

“Defendants failed to use reasonable standards in evaluating the individual claims of plaintiffs and class members and instead allowed their coverage needs to be wholly determined by AI,” they wrote. 

Insurers have been under increasing scrutiny as the use of AI in patient-facing decisions becomes more apparent. Congress has held hearings on denial patterns, and STAT News on Wednesday released its latest investigation into the issue. It cited former UnitedHealthcare employees who said that claims denials were aligned with algorithm-based calculations by design, even when it came to discontinuing coverage for seriously ill patients.

The Centers for Medicare & Medicaid Services has instituted several limitations on how MA insurers can deny care in the future, but those changes don’t kick in until Jan. 1. Experts also have said they are uncertain whether the updated MA rule will have enough bite to prompt real change by plans.

Only about 10% of claims ever are appealed by residents. The risk of losing the appeal and being held financially responsible for a lengthier stay — such as was the case for the plaintiffs  — continues to discourage requests for review.

“Defendants bank on the patients’ impaired conditions, lack of knowledge and lack of resources to appeal the erroneous AI-powered decisions,” plaintiff attorneys wrote.

UnitedHealthcare did not immediately respond to McKnight’s Long-Term Care News’ request for comment, but the company previously has said that the case is without merit.

The court backed the provider’s interpretation that operators were protected in cases where short staffing due to COVID-19 conditions affected the ability to care for any residents or patients in a healthcare facility. Coverage applies even when the affected resident or patient doesn’t have COVID.

But the Supreme Court also ruled last week that a lower court was correct in denying Regency House of Wallingford’s motion, explaining that the provider should have presented more evidence of the effect of COVID on its operations to benefit from protections granted under an executive order.

In a companion ruling last week, the state Supreme Court also decided in Mills v. Hartford HealthCare Corp. that the immunity granted by a 2020 executive order by Gov. Ned Lamont (D) broadly applies to services meant to prevent, diagnose or treat COVID, but not to those taken after the virus had been ruled out.

Although Lamont’s original executive order included nursing homes but not assisted living communities as protected providers, the order did apply to individual healthcare professionals working in assisted living communities, LeadingAge Connecticut President Mag Morelli told McKnight’s. 

The ruling comes as state courts grapple with how to interpret various immunity provisions and a federal liability statute. Many of the protections expired with the end of the COVID-19 public health emergency, but cases from when they were in place continue to wind their way through appeals.

In denying the motion to dismiss the case involving Regency and its management company, National Health Care Associates, a Connecticut trial court cited the Mills case. A lower court earlier had interpreted the executive order to apply only in ‘‘instances involving the treatment of COVID-19 patients.’’ National sought to appeal its case to the state Supreme Court to help determine whether that ruling was too limited.

The state Supreme Court published rulings on the companion cases simultaneously Aug. 8.

“We are pleased with the court’s interpretation of the governor’s executive order within the opinions, which acknowledges the importance of protecting providers in the early days of the pandemic,” the company said in a statement emailed to McKnight’s on Thursday. “Otherwise, we cannot comment on litigation that remains pending.”

Much of the court’s unanimous decision in Manganelli vs. Regency House centered around language in Lamont’s order regarding the “lack of resources” as providers responded to the pandemic.

The court found that cases involving a lack of resources attributable to the pandemic — including a staff shortage — attributable to the pandemic that led to sub-par care should be covered under the immunity clause. But it also said that the language clearly requires defendants to show evidence that COVID conditions caused that lack of resources.

In the Regency case, executor Kimberly Manganelli is seeking damages following the December 2020 death of Darlene Matejek. Matejek had lived at the 4-star nursing home since 2014 but fell during a bed transfer on April 26, 2020. She fractured both legs, but when she returned, Manganelli alleged, she did not receive adequate physical therapy and developed other complications.

Regency argued that Matejek’s fall occurred during the height of the facility’s first COVID outbreak. A former director of nursing outlined detailed administrative challenges, including staff shortages due to virus exposure, shortages of personal protective equipment, increased phone call volume, the weakened condition of Regency House residents and increased requests for nurse evaluations. 

But the court said that was not enough and that the facility’s attorneys should have sought an evidentiary hearing to argue how those operational challenges affected Matajek’s care specifically.

“The defendants provided no evidence regarding how the lack of these resources led to the defendants’ failing to implement Matejek’s health program, leading to her fall,” Associate Justice Gregory T. D’Auria wrote. “They also supplied no evidence regarding how the lack of these resources related to the defendants’ failure to provide Matejek treatment for two days. Finally, the defendants advanced no evidence regarding how the lack of these resources connects to the defendants’ alleged failure to provide Matejek with proper treatment after she left the hospital and returned to Regency House.”

The court, however, affirmed repeatedly that such arguments could be valid in future cases given proper evidence.

“This interpretation of the ‘lack of resources’ clause is consistent with the language of the immunity provision as a whole,” D’Auria wrote. “Specifically, the clause at issue goes on to clarify that the alleged acts and/or omissions are caused by the lack of resources when the lack of resources ‘renders the healthcare professional or healthcare facility unable to provide the level or manner of care that otherwise would have been required in the absence of the COVID-19 pandemic . . . .’ This language eliminates any possibility that the governor intended the immunity afforded by Executive Order No. 7V to apply only to the diagnosis and treatment of COVID-19 patients.”

For additional coverage of the ruling, see McKnight’s Senior Living.

Experts previously have told McKnight’s that a decision allowing the government more rights to dismiss likely would reduce the number of meritless cases long-term care and other healthcare providers face.

In United States, ex rel. Polansky v. Executive Health Resources, the court had to decide whether government attorneys can seek the dismissal of cases in which they don’t see enough merit to get involved, as well as what standards should be adopted to allow those dismissals.

The court ruled 8-1 that states may move to dismiss such qui tam actions whenever they have intervened — whether that be in an early period when the case is sealed or later as new details emerge or the government finds the case baseless.

The decision is an important one for nursing homes, whose owners are often targeted in high-dollar suits in which “relators,” or private individuals, attempt to bring a case on the government’s behalf, alleging misuse of federal dollars. Relators stand to collect triple the amount of financial damage alleged. The number of False Claims allegations has exploded since Congress established their right to sue in 1986.

Taking the drag out

Though most claims are deemed meritless by the government, which either can decide to help a relator with a case or pass on it, even those rejected for federal litigation can drag on for years or result in costly settlements. 

“The court ruled that the government does not have to take over the case in order to get it dismissed, it can let the relator litigate the case and then intervene purely for the purpose of having the case dismissed,” appellate expert Kirk McGill, special counsel at Hall Estill, told McKnight’s. “As someone who does qui tam suits, that is a major disincentive for a law firm to bank roll a qui tam suit, because you could do years of work, as occurred in this particular case, and the government can dismiss the case out from under you.”

Jesse Polansky, MD, MPH, who accused a firm of helping hospitals bill inpatient rates for outpatient procedures, wanted to block the government from dismissing a case once it had approved a post-seal motion to intervene.

The majority opinion, authored by Justice Elena Kagan, splits the difference. It holds that the government can dismiss a case only in which it intervenes but refutes Polansky’s argument that the timing matters.

The court also said District Court judges considering a motion to dismiss an FCA action over a relator’s objection should use the existing Federal Rule of Civil Procedure 41(a), which governs voluntary dismissal of ordinary civil litigation.

Former US Department of Justice Attorney Alex Hontos called that a “very low” bar.

“This is a win for the government (and those defendants seeking so-called “Granston dismissals” of qui tam suits),” Hontos said in an email Friday. “More FCA cases will be dismissed over the objection of relators.”

He predicted that the Justice Department, given the green light by the High Court, now might move quickly to dismiss more “unmeritorious or burdensome claims.” But the ruling and its lone dissenting opinion may lead to even bigger False Claims changes ahead.

Dissent raises more questions

Justice Clarice Thomas argued that he would have sent the case back to the Third Circuit and allowed Polansky to continue his case, denying the government the right to dismiss.

But in his dissent, he also said he would have had the court consider the constitutionality of the entire case.

“The FCA’s qui tam provisions have long inhabited something of a constitutional twilight zone. There are substantial arguments that the qui tam device is inconsistent with Article II and that private relators may not represent the interests of the United States in litigation,” Thomas wrote.

Justices Brett Kavanaugh and Amy Coney Barret concurred with Thomas on that issue, with Kavanaugh writing that the Supreme Court should consider the arguments on the Article II issue in an appropriate case.

Although McGill said that Friday’s ruling would affect only a narrow group of cases, he predicted more to come based on Thomas’ dissent.

He called the three justices’ combined concerns “a very big deal for anyone who does business with the government.” 

The False Claims Act “is an anti-fraud measure of supreme importance that has worked successfully to recover huge amounts of money for the government over the past 150 years. That the entire framework could be struck down by the Supreme Court is a big deal,” McGill said.

“Just the risk that the court might do so could disincentivize coming forward in qui tam suits because if the court struck down the qui tam provisions while they’re suit was on going, then they would get no reward,” he added.

Hontos predicted that healthcare defendants now would be more likely to deploy constitutional challenges as part of pre-trial motions practice in light of the Polansky decision.

“If the Supreme Court declares, in a future case, that the FCA’s qui tam provision is constitutionally infirm, that would change decades of understood law,” he said.

Health and Hospital Corp. v. Talevski revolved around the Federal Nursing Home Reform Act of 1987 and whether the oversight and regulatory elements of the Medicaid system preempted individuals from bringing private court actions to seek redress for violations of their rights in nursing homes.

Thursday’s 7-2 ruling, experts said, more broadly protects the right of any individual to sue for civil rights violations, even when federally funded programs being run by states have existing mechanisms to address such concerns.

The court’s majority upheld a lower ruling against the Health and Hospital Corporation of Marion County, a public entity that operates nearly 80 nursing homes in Indiana. HHC had argued that the state Medicaid system’s existing oversight pathways were the right avenue for aggrieved parties to seek recourse.

The new and explicit interpretation of a 150-year-old legal statute referred to as Section 1983 also could drive up the number of costly lawsuits nursing homes face.

James Segroves, partner at Reed Smith and legal counsel for the American Health Care Association, called the ruling “disheartening to the hundreds of government-owned and operated nursing homes.” Residents, he added, deserve recourse but already have it through state and federal court systems. 

“We believe, as did the federal government, that Congress never intended to subject government-run facilities exclusively to additional legal claims for violating Medicare or Medicaid requirements of participation,” Segroves said in a statement. 

“Now, these publicly owned nursing homes may face additional suits seeking millions of dollars in damages,” he added. “At a time when the profession is already chronically underfunded and struggling to recover from the pandemic, subjecting these and only these government-run nursing homes to additional damages may threaten their ability to continue serving their communities.”

Norris Cunningham, a member attorney at Stoll Keenon Ogden PLLC who represents nursing homes, said he was still reeling from the decision Thursday night.

“I believe it is safe to presume that we will see many more claims against governmental and quasi-governmental entities like the defendant in Talevski,” he told McKnight’s. “Moreover, these actions under Section 1983 will not be subject to the protections and limitations that typically accompany the state law negligence and medical malpractice claims. Simply put, we may see higher jury verdicts in these cases since the 1983 action will not be subject to any state law damage caps.”

A person with dementia declines

Gorgi Talevski was a person living with dementia, and his family moved him to HHC’s Valparaiso Care and Rehabilitation’s nursing home when they could no longer care for him. Valparaiso is operated by American Senior Communities for HHC.

Talevski’s wife filed suit in 2019, claiming that her husband’s condition deteriorated after he was prescribed psychotropic medications. She also alleged that the facility refused to readmit Mr. Talevski after sending him to a psychiatric facility, triggering an involuntary transfer without their consent.

Despite complaining about their concerns to state regulators, the family did not receive immediate relief and eventually decided to leave Mr. Talevski in his new facility, three hours from their home, to prevent another traumatic move.

Their case sought to address alleged violations of Mr. Talevski’s rights under the Nursing Home Reform Act. HHC argued that because the act was passed pursuant to the congressional spending clause, the government was the only entity with the authority to uphold protections. Essentially, the corporation argued that in return for federal funds, the states agree to comply with federally imposed conditions and help enforce them.

But the court’s majority held firm to years of precedence, finding that an 1870s statute enacted to help individuals sue for federal protections after the Civil War should not be interpreted narrowly. The majority found that allowing private lawsuits would do nothing to thwart the federal government’s ability to continue its own enforcement methods.

“We discern no incompatibility between private enforcement … and the statutory scheme that Congress has devised for the protection of those rights,” Justice Ketanji Brown Jackson wrote for the majority, allowing the case to proceed in a lower court.

Difference of opinion

Justices Clarence Thomas and Samuel Alito dissented.

In his dissent, Alito wrote that allowing a private right to sue under Section 1983 will “upend” a “careful balance” created by the Nursing Home Reform Act’s federal and state enforcement channels.

“Allowing §1983 suits will upset this balance by allowing any plaintiff to demand damages regardless of the remedial regime that states establish pursuant to their explicit authority under the act,” Alito wrote.

“Moreover, whenever a plaintiff files suit, the determination about noncompliance will be taken away from federal and state authorities and given to courts,” he added. “And because the remedies offered under §1983 will often dwarf the relief available under FNHRA’s … remedies, §1983 will swallow the centralized state and federal review mechanisms the Act imposes.”

Cunningham said the language in the court’s opinion as well as the margin made it clear the case wasn’t the “close call” decision that many healthcare attorneys expected.

In Indiana, there will be outside ramifications, said Randy Fearnow, a partner at Quarles & Brady, which had filed a friend-of-the-court brief on behalf of providers in Talevski when it was at the Circuit Court level.

“We pointed to the disproportionate impact a decision in favor of Talevski would have on Indiana providers,” Fearnow told McKnight’s. “That concern is now a reality. …The vast majority of government-owned nursing facilities are in Indiana, a state with a highly developed system for adjudicating claims against healthcare providers. Plaintiffs will now be able to circumvent the existing state system and seek recovery instead in federal court under a federal statute which would also allow them to recover attorneys’ fees, relief which is not available under state law.”

Fearnow predicted the ruling would lead to upending of Indiana’s Medical Malpractice Act, especially if the plaintiffs’ bar feels incentivized “by the prospect of fee recovery.” An actuary also has found that liability coverage also could increase by two-thirds in Indiana.

“Now that the court has spoken, Indiana providers will have to pay close attention to the insurance market and double down on efforts to limit liability associated with nursing home care,” Fearnow said.

WASHINGTON, DC — Lobbying federal decision-makers for legislation that would benefit the assisted living sector may come with some risk of increased federal scrutiny, American Health Care Association / National Center for Assisted Living Senior Vice President of Government Relations Clif Porter II said Tuesday at the AHCA/NCAL Congressional Briefing.

“But believe you me, it is nothing like what we deal with in the [skilled nursing facility] space,” he added.

Porter was responding to an attendee’s concern related to the Expanding Veterans’ Options for Long-Term Care Act (S. 495/H.R. 1815), which would create a three-year pilot program to offer participating veterans the opportunity to have their care needs met in an assisted living community rather than at a Department of Veterans Affairs home. AHCA/NCAL and members are advocating for the legislation’s passage.

“The good news is that the regulatory impact would likely be veterans-focused,” he said of the bill.

The SVP said that assisted living providers would “have to be careful with these contracts” but noted that providers wouldn’t be mandated to participate in the program for veterans if the bill becomes law. “You can make that decision as an operator if it fits your business model,” he told attendees.

Porter said it’s natural that providers would have worries about the prospect of more federal regulation of the sector.

“There’s always tension. …And when you’re asking for support — and we saw a lot of that during COVID in particular — you sort of run the risk of the government saying, ‘Well, I gave you money so I have the right to oversee and regulate what you do,’ ” he said.

But strengthening relationships with federal lawmakers and officials “actually does the opposite” of raising the risk of oversight at the national level, NCAL Executive Director LaShuan Bethea told McKnight’s Senior Living in an exclusive interview before the Congressional Briefing.

“I think that those relationships actually help us to be able to share with them all of the information that we have about how assisted living is being managed at the state level,” she said.

When questions arise about how assisted living operators handle infection control, emergency preparedness and other issues, Bethea added, NCAL can point officials to the association’s summary of state regulations. “But we’re also able to bring members to the table to provide more detail,” she said.

NCAL and providers came to that figurative table frequently during the height of the pandemic, and continue to do so, Bethea said.

“There are a lot of members of Congress where we had regular communications through our government affairs team, answering questions specifically about assisted living, because many may not have recognized the distinction between skilled nursing and assisted living,” she said. “It created a perfect opportunity for not only myself and members of our team, but also for us to bring providers to the table to talk about some of the challenges or some of the things that they are doing to help the residents during the pandemic. …I think that we’ve had a lot more of those communications over the last several years.”

One result of those discussions, Bethea said, is that federal decision-makers now have a better understanding of assisted living. But clarity also is increasing at the state level and among prospective residents and their families, she added.

The pandemic, Bethea said, has “raised the awareness around people [as far as] what is assisted living, what services can and can’t be provided in assisted living and how it varies from state to state.”

And that variation is a good thing, she added. “States and the people that live in those states are unique, and I think that one of the benefits of assisted living is that we have the ability to provide a variety of models of care that allow us to meet the needs of the people who live in the various larger communities in which an assisted living may be,” she said.

The needs that may be addressed in assisted living are evolving as older adults and their families “are becoming more vocal in their desire to want to stay in a setting if the care can be provided there safely or if there’s a limitation that can be changed,” Bethea said.

An example, she said, is the expansion of medication administration in assisted living. In some places, certified medication aides are able to administer medications.

“It has always existed in some states, but we’re seeing other states looking at that as a way to allow an individual who otherwise would be appropriate for assisted living but needs more assistance with their medication to be able to stay in assisted living longer, because that’s their primary need,” Bethea said.

But even as assisted living evolves and serves people with greater health needs, she shared a prediction about the future of the industry with McKnight’s Senior Living: “I don’t know that there’s going to be a drastic change. I think assisted living is a key component of the continuum, and I don’t think assisted living will turn into skilled nursing. There is a line in the sand. …I think that it will continue to serve that population of individuals that do not require 24-hour skilled nursing care.”

Right now, though, in addition to the Expanding Veterans’ Options for Long-Term Care Act, NCAL continues to focus advocacy efforts on trying to ensure sufficient workforce members to provide the care and services that are offered in the sector.

“While overall staffing levels are beginning to increase, it still remains a challenge for many assisted living providers,” Bethea noted at the Congressional Briefing, adding that, “The [idea] that assisted living is fully back to normal is just not accurate.”

For that reason, she told attendees, NCAL is supporting legislation to help retain temporary nurse aides as well as immigration policies that would help address the labor crisis.

Harriett Jones has spent almost four decades calmly steering residents through bathing times, keeping plenty of warm towels handy or singing to soothe an anxious bather. Although she maintains eye contact throughout the process, Jones also keeps an eye on safety in the spa room.

Given an increasingly ambulatory population, the presence of water and the kind of warm and moist environment that invites bacteria to breed, risk is inherent in bathing areas. It takes careful strategy, attention to detail and smart use of equipment to deliver a sanitary and satisfying bath while preventing accidents that could leave residents or staff injured.

At Levindale Hebrew Hospital and Nursing Center in Baltimore, Jones’ job is made easier because staff members pair up for every single transfer, whether they’re using a Hoyer lift to get someone from bed to a shared bathing area or doing a slide transfer to a shower bed. “It’s not really a hard part of the job,” says Jones, who works the evening shift on Levindale’s Golden Hill unit, home to approximately 50 residents. “I feel wonderful that I can do this for them. We always talk to them, talk them through the shower, which part of the body we’re cleaning [and] asking them if it’s OK to move on.”

Approximately 80% of falls among older adults happen in bathrooms, according to the National Institute on Aging. Even in congregate communities that control for variables such as poor lighting and uneven surfaces, danger suddenly can appear in places it never has before — or in residents who always have seemed ready and willing to take a shower.

Some residents may become agitated due to dementia or other cognitive impairment, and conditions ranging from diabetes to a new hypertension medication could increase fall risk overnight.

Drains should flow freely so excess water doesn’t pool at residents’ or staff members’ feet. Staff members also should be wearing non-skid shoes. As a secondary technique of preventing water from leaving the shower area, Levindale aides roll resident chairs onto oversized, flat towels, catching any water dripping from a resident’s hair or elsewhere before they head back. 

CHICAGO — Dozens of senior living, skilled nursing and home care leaders and frontline workers became celebrities for a few hours Monday night in Chicago, where they were feted at the 2023 McKnight’s Women of Distinction awards.

The fifth annual celebration of the sector’s best and brightest female leaders kicked off with two educational panels and rolled into a fun-filled cocktail reception and dinner. Each honoree in attendance was presented with an engraved trophy marking their accomplishments.

Fifty of this year’s 59 Hall of Honor, Veteran VIP, Rising Star and Spirit Award winners attended the live gala, where co-workers, peers and loved ones from across the country gathered to network and pay homage to those making a mark on long-term care. Recognition as a McKnight’s Woman of Distinction award winner quickly has become a coveted title since the program launched in 2019.

Additionally, Marilynn Duker, co-chair of Baltimore-based Brightview Senior Living, was named the 2023 Lifetime Achievement Award honoree.

She has been with Brightview and its predecessor, The Shelter Group, a privately held real estate development and property management firm, since 1982. She was The Shelter Group’s second employee and has been involved in every phase of the company’s operations and growth. A little more than a decade after joining, she helped found Brightview, where she is one of six partners. The company has received several awards for its positive workplace culture.

“All of us in the room are incredibly fortunate to have a career that can be incredibly fulfilling while doing something really good for people at a very vulnerable time in their lives,” Duker told those gathered. “I’ve found the greatest personal satisfaction from having the incredible opportunity to work with so many amazing people. I’ve learned so much, getting so much, from many of you, both in Brightview and throughout the industry, and know we are better as a whole because we’re all in this together.”

Women of Distinction candidates are nominated in four categories. They include Hall of Honor, for senior-level professionals in the C-suite or at a level equivalent to vice president; Veteran VIPs (added in 2021), with more than 15 years of experience making an impact in long-term care at a level lower than vice president or its equivalent; and Rising Stars, candidates 40 and younger — or with fewer than 15 years of experience in the profession — who quickly have demonstrated an exceptional commitment to the industry.

The McKnight’s Spirit Award, added in 2022, recognizes inspiring caregiving and service to patients and communities. The stories of this year’s Spirit award winners provided some of the most tender moments of the evening, with the crowd warmly applauding feats such as organizing hurricane evacuations and administering life-saving CPR off the job.

“Congratulations to these notable women who are leading the way. They have distinguished themselves — and us — by showing how it’s done,” said John O’Connor, McKnight’s editorial director, vice president and associate publisher. “This year’s event in Chicago was truly a cause for celebration. These honorees truly are women of distinction.”

To learn more about all of this year’ honorees, flip through the commemorative booklet from the 2023 event.

Several of this year’s winners and a few notable previous honorees helped round out the day by participating in two roundtables on leadership and lessons learned over long careers during the McKnight’s Women of Distinction Forum, which preceded the awards dinner. Stay tuned to mcknightsseniorliviing.com later this week for coverage of “Traits of a successful long-term care leader” and “A lifetime of lessons from the C-suite.”

You can keep up to date with the entire McKnight’s Women of Distinction program and watch for details on next year’s entry period on the McKnight’s Senior Living website. For more inspiration, browse lists of previously honored women by year and category.

PointClickCare is the Diamond sponsor of this year’s program. PharMerica is the Silver sponsor. Additional sponsors include American HealthTech, Healthcare Services Group, Omnicare, Sentrics and ShiftKey.

CHICAGO — More than 200 aging services professionals, business partners and supporters celebrated a who’s-who of industry veterans Tuesday during the inaugural McKnight’s Pinnacle Awards ceremony. The awards are a joint effort of McKnight’s Senior Living and sister media brands McKnight’s Long-Term Care News and McKnight’s Home Care.

Awards went to 30 providers and long-time leaders in the senior living, skilled nursing and home care sectors. The new awards program was launched to honor those who have had a remarkable influence over industry standards, played key roles as change-makers or inspired others with their leadership approach.

“You’ve blazed the way, you’ve raised the bar, you have made us all so very proud to work with you as you bring a bright, warm light to this profession,” said emcee and McKnight’s Long-Term Care News Executive Editor Jim Berklan in one of several toasts.

Among the 2023 winners was Career Achievement Award honoree Robert G. Kramer, co-founder, past president and CEO and current senior adviser to the National Investment Center for Seniors Housing & Care, as well as the founder of Nexus Insights. Kramer was lauded for his entrepreneurial thought leadership and the way he helped revolutionize the use of data in the aging services space.

Kramer was one of 20 winners in attendance for the in-person awards gala. He was accompanied by many of NIC’s previous top executives, co-founders and current President and CEO Ray Braun, all of whom joined the packed room in a standing ovation for the honoree.

In his remarks, Kramer said his father, his Quaker education and a passion for a long-ago cause transformed him from a student shy about public speaking into a well-spoken elected official who went on to reshape long-term care through his visionary industry leadership.

“Every single one of us is here because we stand on somebody else’s shoulders. We stood on people’s shoulders who invested in us,” he told the crowd. “Every single one of us in this room, if this industry and this field is going to grow — and it needs to — every single one of us needs to be sure we have at least 10 people who stand on our shoulders. That means mentoring. That means time spent, because that’s where we have the greatest impact.”

The event was held at the iconic Ivy Room just off Chicago’s Magnificent Mile. The 1900s venue was once known as the Medinah Temple, the stage for productions such as circuses and recordings of Chicago Symphony Orchestra performances. Guests were treated to a cocktail reception, dinner and dessert at the venue.

The McKnight’s Pinnacle Awards recognize industry veterans with at least 20 years of experience in their chosen field. Winners were selected from a highly competitive pool of nominees by a national judging panel.

In addition to the Career Achievement Award, honorees were recognized in six other award categories acknowledging their contributions to the sector:

• Agent of Change Awards
• Industry Ally
• Inspiration Awards
• Setting the Standard 
• Thought Leader Awards
• Unsung Hero Awards

See the full list first-year winners here and in this commemorative book from Tuesday night’s event.

Nominations for the 2024 class of McKnight’s Pinnacle Awards honorees will open this fall. Keep up-to-date on the program and learn more about the process on McKnight’s Senior Living’s Pinnacle Awards page.

The Platinum sponsor for Tuesday’s event was MatrixCare; Omnicare was a Silver sponsor; and additional sponsors included Pinnacle Quality Insight, HealthDirect and Sentrics.