Winter/Spring 2012

A publication for Wisconsins Long Term Care Profession by

Silver Tsunami
2010 1960 1970 1980 1990 2000

The

2030

How Will Aging Baby Boomers Change Long-Term Care?

2020

Including: Handling Challenges in the LTC Continuum Looking Back at the 2011-12 Legislative Session Critics of LTC Tort Reform Should Double Check Their Facts

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Welcome
Creating Continuum
WELCOME to the inaugural 2012 edition of Continuum magazine, a publication targeting issues and interests of Wisconsins long-term care provider community, its caregivers and residents. You are receiving Continuum as you and your organization have distinguished yourself as an important and valued member of that community. The Wisconsin Health Care Association (WHCA) and its dedicated assisted living division, the Wisconsin Center for Assisted Living (WiCAL) conceived and created Continuum as an informational and insightful forum for providers, policymakers, and stakeholders. We view Continuum as a substantive reflection WHCA/ WiCALs member-driven mission of Advocacy Education Excellence. Published semi-annually, the second 2012 issue will be focused on and released shortly before this falls General Election. This issue of Continuum has a primary focus on the Silver Tsunami and the myriad ways in which the tidal wave of Baby Boomers will reshape Wisconsins and the nations long-term care landscape. It will also include a retrospective look at the substance and effect of the 2011-12 Wisconsin Budget and Legislative Session, which included passage of several key measures that will enhance the future of resident care through much needed and long-sought Medicaid, tort and regulatory reforms.

(From left to right) B.J. Dernbach, of Rep. Dan Knodls office; Eric Searing, of Sen. Pam Galloways office; Bill Donaldson, legal counsel for the Board on Aging and Long Term Care (BOALTC); Heather Bruemmer, BOALTCs Executive Director; Jim McGinn, WHCA/WiCALs Director of Government Relations; John Sauer, President & CEO of LeadingAge Wisconsin; Tom Ramsey, Vice President of Public Policy & Advocacy for LeadingAge Wisconsin; Tom Moore, WHCAs Executive Director and Governor Scott Walker before the signing of the bill into law.

WHCA/WiCAL extends a special thank you to all Continuum advertisers. Your support has enabled us to develop and deliver this attractive and informative publication to its readership at no cost. As always, we are very interested in your comments and recommendations on this and future issues of Continuum. Please contact WHCA/WiCAL at 1-800-277-9422 or by e-mail at info@whca.com. Sincerely,

Were moving!
In April, WHCA/WiCAL will be moving its offices to 131 W. Wilson St. Suite #1001 Madison, WI 53703. Our website address has also moved: Both www.WHCA.com and www.WiCAL.org have been merged into one site located at www.WHCAWiCAL.org. As always, if you have any questions, feel free to give WHCA/WiCAL a call at (608) 257-0125.

Thomas P. Moore Executive Director Wisconsin Health Care Association

WINTER/SPRING 2012 | CONTINUUM 3

Empowering Healthcare Denes All We Do

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The Wisconsin health Care Association strongly encourages all skilled nursing facilities in Wisconsin to take advantage of this unique opportunity for advancement of their staffs clinical skills in prevention and treatment of pressure ulcers. Wisconsins nursing home residents deserve the very best possible quality of care. Through WHCAs proactive partnership with DHS, West Bend Mutual Insurance and other long-term care organizations, LTC facilities across Wisconsin can receive a caliber and intensity of wound care training they might not otherwise be able to access or afford. Space and funding for this facility participation in this program is limited.

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4 CONTINUUM | www.whcawical.org

Contents
6
Continuum is published for the Wisconsin Health Care Association and the Wisconsin Center for Assisted Living 131 W. Wilson Street, Suite #1001 Madison, WI 53703 Phone: 608.257.0125 Fax: 608.257.0025 www.whcawical.org Managing Editor John J. vander Meer Publisher Dean Gille Editor Abbie McDowell Account Manager kris Holden Creative Director Sara Rice Layout & Design David Cox Published by

Winter/Spring 2012

COvER STORy

The Silver Tsunami

How Will Aging Baby Boomer Change Long-Term Care?

Over the past 65 years, members of the Baby Boom generation have changed virtually everything they have come in contact with. Now, as these estimated 77.6 million Americans move toward requiring long-term care, economists, care providers, the press and the public wonder how the silver tsunami of aging Boomers will change long-term care.

10

STAkEHOLDER SPOTLIGHT

Aging Baby Boomers Bring Long-Term Caregivers Challenges to the Forefront

Dennis Winters, Chief of the Wisconsin Department of Workforce Development Office of Economic Advisors offers a statistical analysis of the LTC workforce challenges facing the Badger State and the nation as a result of the aging Baby Boomer generation.

12

MEDIA MATTERS

Telling the Stories that Need to be Told

Wisconsins LTC Workforce Provides Excellent Care
Wisconsins long-term care provider community truly has some important stories to tell. But the real story that many people have missed this past year is a tale that often goes untold. Heres the secret everyday, thousands of our states most disabled and elderly citizens receive great care by good people, and nows the time to get the word out.

14

CLINICAL CORNER

Survival Guide: Handling Clinical Challenges in the LTC Continuum

1155 Wilburn Road Sun Prairie, WI 53590 608.834.3400 www.bgsinc.com Fore more information in advertising in Continuum call 608.257.0125 2012 Badger Graphic Systems. All rights reserved. The contents of this publication may not be reproduced by any means, in whole or in part, without prior written consent of the publisher. PUBLISHED MARCH 2012

From the Minimum Data Set to Re-hospitalizations, skilled nursing expert Theresa Lang offers a survival guide on handling the clinical challenges members of the long-term care provider community face everyday.

17

CAPITOL CONNECTION

Looking Back at the 2011-12 Session

Take a look back at the 2011-12 Wisconsin Legislative Session, which proved to be one of the most successful for the long-term care provider community in recent memory.

19

LTC LEGAL LETTER

Fact v. Fiction
Critics of LTC Tort Reform Should Double Check Their Facts
This column separates fact from fiction in the multitude of charges that have been made about 2011 Act 2, the Tort Reform legislation.

WINTER/SPRING 2012 | CONTINUUM 5

Cover Story

The Silver Tsunami

By John J. Vander Meer

How Will Aging Baby Boomers Change Long-Term Care?

ver the past 65 years, members of the Baby Boom generation have changed virtually everything they have come in contact with. From Woodstock to Wall Street the social, cultural and economic forces wrought by the population explosion born during the years from 1946 to 1964 has shaped American culture in ways that will be analyzed and debated for generations. Now, as these estimated 77.6 million Americans move toward requiring long-term care, economists, care providers, the press and the public wonder how the silver tsunami of aging Boomers will change long-term care. Will the existing long-term care provider workforce be able to meet the increased need? What new forms will long-term care take as a result of Boomer generation advocacy? How will skilled nursing and assisted living facilities change as a result of the involvement of Boomers? As Boomers approach age 65, and enter the next phase of life, they are already hard at work transforming options for senior living, said Matt Thornhill, Founder & President of the Boomer Project, a consulting firm that specializes in marketing to Boomers. They have already changed many aspects of society as theyve moved through various ages and life stages.

Boomers Care For Their Aging Parents

2011 was the first year in which Boomers turned 65, and the first sense of how Boomers will change long-term care is being increasingly discovered as more and more of them make arrangements for the longterm care of their own parents. As they go on-line to research the longterm care options for Mom and Dad, Boomers are forming perceptions of the ways in which they would like to receive care as they grow older. Going through the process of visiting facilities with their parents, comparing different options on the Internet, helping them navigate the Medicare and Medicaid bureaucracy, all while helping to address their parents on-going health issues will permanently shape their attitudes about how they will approach their own long-term care. As a result of those experiences they are going to form very personal and perceptional impressions of what skilled nursing care means to them, Thornhill said. Ultimately, Boomers want to know, Whats in this for me? Greg Crist is vice president for public affairs at the American Health Care Association (AHCA), the nations largest nursing home association,

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of which WHCA/WiCAL is a state affiliate. Crist said that nursing and assisted living facilities are ready to meet the needs of their residents from everything from creature comforts to clinical components because the long-term care provider community has evolved to meet changing needs, preferences and expectations. (Baby Boomers) are a culture that grew up on Superman and the Lone Ranger. They have seen computers go from the size of buildings to a size that can fit in the palm of your hand. Whether youre talking about the quality of the coffee thats available, all the way through the quality of their health care, this is a generation that has come to expect a lot out of their long-term care options, Crist said. However, as expectations have increased, so have costs and acuity rates, all while Medicare and Medicaid reimbursement rates have put the squeeze on the long-term care provider community. The acuity and level of services that we offer goes far beyond what they were 25 years ago, Crist said. In todays strained budgets, 65 percent of our residents rely on Medicaid and the demand for services will only increase arithmetically.

The Cost Crunch

Richard Rau, CEO of Clement Manor in Milwaukee, has seen the squeeze that Medicaid reimbursement rates have placed on his 166-bed skilled-nursing facility and many other LTC facilities across Wisconsin over the course of the 40 years that he has worked in long-term care. While providers have always lost money on Medicaid, they have been able to cover their costs with privatepay residents and adequate Medicare reimbursement. After the significant changes to Medicare reimbursement rates in 2011, one wonders if that will continue. On one hand, Rau said that as the Boomers have become more involved in their parents care, there has been an increase in requests for private rooms and other amenities. On the other, the Center for Medicare and Medicaid Services slashed the Medicare reimbursement rates to skilled nursing facilities through the Prospective Payment System changes, which went into effect in October 2011, cutting reimbursement rates on average more than 12 percent in Wisconsin facilities. Rau and many members of the longterm care provider community have long advocated for a return to the use of the Boren amendment, a federal law that directly linked Medicaid nursing home rates with minimum federal and state quality of care standards, which was in place from 1980-1997. As part of the Omnibus Reconciliation Act of 1980, the Boren amendment required that Medicaid nursing home rates be reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities in order to provide care and services in conformity with applicable state and federal laws, regulations, and quality and safety standards.

There must be some connection between the cost of care and the amount of reimbursement available through federal government programs like Medicare and Medicaid, which so many Americans have come to depend on, Rau said.

Aging In Place
The Journal of Housing for the Elderly states that aging in place is not having to move from ones present residence in order to secure necessary support services in response to changing needs. And as federal, state and local governments work to trim costs, and the frail, elderly, and disabled populations try to maintain independence, aging in place has surged in popularity in recent years. More than nine out of 10 say that even with a debilitating illness, they plan to live at home. This plan is often referred to as aging in place, Thornhill said. In previous generations, the frail and elderly would routinely move in with their children, or receive care from a spouse. While millions of frail and elderly people receive care through this traditional model, and millions more will continue to receive care through this model, because Boomers didnt have as many children, and 1 out 3 boomers is not married, more Boomers are expected to need longterm care services. In Wisconsin, the advent of the Family Care program was intended to offer elderly and disabled people a variety of alternatives to assist them in staying their homes so as to maintain their independence, sustain their connection to existing family and community-based care-giving networks and limit the cost of care. However, the explosion in the cost of Family Care led Wisconsin Governor Scott Walkers administration to
WINTER/SPRING 2012 | CONTINUUM 7

impose caps on the program last year, which are expected to be lifted before the end of the legislation session. In January, the Wisconsin Department of Health Services launched a website outlining initiatives that DHS is proposing to achieve sustainability in the states long-term care programs. The DHS proposals include the following recommendations (among others): Helping people remain in their own homes for as long as possible; Ensuring utilization of informal and less intensive supports in the community to help individuals and their caregivers remain healthy and safe at home without the need for more comprehensive long-term care supports and services; Ensuring that individuals receive the level of self-directed support services they request by strengthening program integrity and accountability. We reviewed Family Cares level of cost effectiveness and spending, and surveyed individuals on the waiting list about the needs they have, said DHS Secretary Dennis Smith in a press release announcing the launch. We also worked extensively with consumers, advocates and partners to develop reforms that ensure Wisconsins long-term care programs are sustainable.... Nationally, Medicaid is the largest payment source for long-term care. When federal matching funds for Medicaid declined significantly a year ago, Governor Walker and the Legislature committed $1.2 billion in new state funds to help meet those fiscal challenges. Even with those additional funds, the states long-term care programs must be reformed, because population growth and changing demographics
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will increase demand, leaving the long-term care programs at risk. Wisconsins population age 65 or older will double by 2035. In order to make aging in place a sustainable option, advocacy groups including the American Association of Retired Persons point to the need for greater availability of transportation options to make it feasible for frail and elderly to live independently. The great majority of older adults have a strong desire to live in their own homes and communities, stated a December 2011 AARP Report entitled, Aging in Place: A State Survey of Livability Policies and Practices. However, unsupportive community design, unaffordable and inaccessible housing, and a lack of access to needed services can thwart this desire. Starting in 2011, growth of the older American population will accelerate, in part because the leading edge of the baby boomer generation will reach age 65.

Changing Needs
As a result of the market research, focus group interviews and data analysis conducted by the Boomer Project, Thornhill said his organization has isolated five primary ways in which the Boomer generation will change health care: 1. Seniors will live with healthier old age, as prescription medications offer people a greater ability to manage several chronic health conditions simultaneously. 2. The transformation of health care delivery models will continue in the direction of a more patientcentered care model. 3. The location and composition of health care models will continue to dramatically evolve with existing infrastructure being retrofitted to accommodate modern sensibilities, new development projects created

around community-based, rather than institutional models, and skilled nursing facilities partnering with adult day care companies to provide in-home care. 4. The role of age segregation vs. intergenerational dynamics is going to change. In some cases, Thornhill said that smaller group homes are encouraging greater interaction with many generations in the configuration of the development of a LTC facility or campus. 5. There are expected to be substantial changes in perceptions of death and dying. As a result of changes in intergenerational living and people establishing connections with their children and grandchildren, seniors are becoming less desperate about extending their final years of life, Thornhill said. It was only in the last 50 or 60 years that people became obsessed with extending the last couple of years of life and we see that changing, Thornhill added. With the advent of pharmaceutical medications that have reduced diseases from death sentences some years ago, to chronic health conditions, Crist said another series of problems will arise. While Americans are living longer, theyre not necessarily living healthier, said Crist, who points to conditions like obesity and wonders how that will affect the quality of life of aging Boomers.

Workforce Issues
In a recent jobs report, the U.S. Bureau of Labor Statistics (BLS) projected that the health care and social assistance sector will gain the most new jobs 5.6 million of the 20.5 million new jobs the agency predicts will be created between

2010 and 2020. Studies show Americans aged 65 and older are expected to represent 19 percent of the population by 2030 a jump from 12.4 percent in the year 2000. The need for more health care workers over the course of the next 20 years is undeniable, said Dennis Winters, Chief of the Wisconsin Department of Workforce Development Office of Economic Advisors. Under normal circumstances, the issue would characteristically remedy itself. However, the next 20 years will be far from normal due to the demographic skewing brought about by the aging Baby Boomers. Rau said during his career in longterm care, he has consistently seen a direct correlation between economic conditions and the quality of the long-term care provider workforce. You can talk about the aging population, but you also have to talk about the aging workforce as well, Rau said emphasizing the importance of training and recruiting qualified personnel to staff long-term care

facilities in order to meet the growing need. I have always said that the toughest job in a nursing facility is that of the nursing assistant. Crist said while AHCA is comfortable with the availability of staff in general positions in skilled nursing such as directors of nursing, licensed practical nurses and registered nurses, however, he has more long-term concerns regarding attracting physicians and other highly skilled practitioners to the field. Were creating jobs (The longterm care provider community) created 60,000 jobs in this sector in 2011, Crist said. But the number of gerontologists and geriatricians is more concerning. You have to get them interested in a field by sixth grade.

According to Medicare.gov: In 2011, about nine million men and women over the age of 65 will need long-term care. By 2020, 12 million older Americans will need long-term care. Most will be cared for at home; family and friends are the sole caregivers for 70 percent of the elderly. A study by the U.S. Department of Health and Human Services says that people who reach age 65 will likely have a 40 percent chance of entering a nursing home. About 10 percent of the people who enter a nursing home will stay there five years or more. The medical model of a nursing home is getting to be an endangered species, said Rau, who points to initiatives like the Green House Project, which is an innovative model for residential long-term care that involves a total rethinking of the philosophy of care, architecture, and organizational structure normally associated with long-term care. In recent years there has been a movement toward greater flexibility in the settings in which frail, elderly and disabled people receive care. With the increasing specialization of services, Rau said the traditional model of the nursing home is becoming less and less prevalent. Moreover, with an increasing need for rehabilitation services and the changing models through which people receive end-of-life care, The long-term care system is going to be dramatically different five years from now, Rau said.

The Future of Nursing Homes

Despite efforts to limit the growth of costs by expanding in-home care options and the changing configurations of the traditional nursing home model, long-term care experts agree that in the coming years it will become increasingly difficult for skilled nursing facilities to meet the demands of an aging population.

For assistance, contact us at 1-800-242-7001

Scott Naze, President (ext. 817) Janet Hays (ext. 838) Dave Hosack (ext. 859) Kim Adey (ext. 833)
P.O. Box 510925, New Berlin, WI 53151-0925

www.securityins.net

John J. Vander Meer is the Director of Communications for the Wisconsin Health Care Association and the Wisconsin Center for Assisted Living. He can be reached at john@whca.com.

WINTER/SPRING 2012 | CONTINUUM 9

Stakeholder Spotlight

Aging Baby Boomers Bring Long-Term Caregivers Challenges to the Forefront

By Dennis Winters

he next socio-economic phase of the Baby Boomers is upon us. Just as they changed the world coming in en masse, they will change it going out. The oldest of the some 80 million United States Boomers turned 65 years of age in 2011. The growth rate of this senior humanity will build until 2020 and then scale off through 2030. In 2009, 13.5 percent of Wisconsins population was 65 years or older. By 2030, the percentage will rise to 21.4 percent. That will increase the ranks of Wisconsin seniors by some 638,000, to over 1.4 million. We know that the Abbies (aging Baby Boomers) will demand a change in the goods and services provided. Significant changes will have to be made to buildings and infrastructure. Mobility barriers, communications access, crime prevention, and health care provision will all have to adapt to the Abbies faculties.

As the number of Abbies swell and the ranks of the aged increase, demands on health care systems will increase like no time in our history. Abbies vim and vigor may be more robust than previous generations, but it is inevitable that this cohort will realize the physical and mental affects of aging. Along with aging come increased needs for acute care, ongoing treatments, therapies, and personal care. In addition to this bubble of humanity reaching old age, average life expectancy has increased over time. In 1960, as the Boomers were being born, life expectancy was 69.9 years. As of 2010, life expectancy had increased to 78.7 years, almost a ten year gain in one generation. Longer periods spent at older ages will mean increased demand on average for geriatric health care, particularly longterm care.

Recognizing the pending increased demand for health care and health care workers, the Office of Economic Advisors at the Wisconsin Department of Workforce Development (OEA) projects that health care occupations will constitute 11 of the 15 fastest growing occupations from 2008 to 2018. Home Health Aides and Personal & Home Care Aides are the top two. Moreover, along with Registered Nurses, Home Health Aides and Personal & Home Care Aides will have the most job openings during the 2008 to 2018 period. To further illustrate the point, consider figures 1 & 2. Figure 1 shows two things. The first item is shown by the dashed line. This line represents the demand and supply for registered nurses without consideration of the Abbies induced demographic skewing. It shows demand and supply increasing with population under known provision and supply development levels, resulting in equilibrium of the demand and supply of nurses. Introducing the Abbies bubble yields the Base Demand and Base Supply curves under known care provisions by age cohort. It portrays the increase in health care demand by Abbies and

figure 1

figure 2

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the constraints on supply by fewer young people training for the nursing profession. Under the Abbies scenario (one that demographics data tells us is real), the gap in the demand for nurses and the supply of nurses widens to huge proportions. By 2030, OEA projects a 27 percent gap in the number of registered nurses required to meet demand under current provision rates. That amounts to almost 18,000 fewer nurses than the 83,000 required in 2030. Figure 2 illustrates the even more challenging issue concerning registered nurses in long-term care settings. The rate of growth for nurses in the nursing home and extended care and home health care settings outpaces the overall demand increase for nurses across all settings. Almost 12,000 of those 83,000 registered nurses demanded in 2030 will be needed in the Nursing Home &

Extended Care setting, and nearly 5,000 will be needed in the Home Health Care setting by 2030. Further illustrating the challenges of satisfying the demand for senior care support staffing, the growth rate for Home Health Aides and Personal & Home Care Aides greatly exceeds that of registered nurses. Over course of the 2008 2018 OEA occupational projections period, the growth rate for registered nurses is estimated at 19.7 percent. Home health aides and personal and home care aides growth rates, by contrast, are 38.3 percent and 34.0 percent, respectively. This amounts to an increase of 21,000 home health aides and personal and home care aides, divided evenly between the two, in just 10 years. The need for more health care workers over the course of the

next 20 years is undeniable. Under normal circumstances, the issue would characteristically remedy itself. However, the next 20 years will be far from normal due to the demographic skewing brought about by the aging Baby Boomers. Health care will be one of the primary needs for this aging cohort. The demands on health care systems and providers to meet those needs will be unprecedented. As we have seen with other programs for seniors, addressing the situation is best done sooner than later.
Dennis Winters is Chief of the Wisconsin Department of Workforce Development Office of Economic Advisors

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Media Matters

Telling the Stories that Need to be Told

By John J. Vander Meer
Public relations is about reputation the result of what you do, what you say and what others say about you... Public relations practice is the discipline which looks after reputation with the aim of earning understanding and support and influencing opinion and behavior.

Wisconsins LTC Workforce Provides Excellent Care

challenges of limited spatial availability, staffing shortages, and diminished accessibility of operating revenue. Yet, everyday, assisted living and skilled nursing facility personnel provide the desperately needed care for the people who need it the most. Earlier this year I joined WHCA/ WiCAL as the organizations Communications Director. The most important part of my job is to make sure that providers receive the information that they need to make informed decisions about legal and regulatory issues in a timely fashion through www.whcawical.org, WHCA/WiCAL publications including Continuum and our weekly electronic newsletter, Friday Update. The other critical part of my job is to help tell stories about the issues facing longterm care patients and providers.

Institute of Public Relations

he year 2011 was a pivotal time for Wisconsins long-term care provider community. While at the federal level, providers were forced to sustain the greatest rate cut ever in Medicare reimbursement rates, at the state level, WHCA/ WiCAL and its allies secured several important policy changes aimed at improving the quality and reducing the cost of providing care to the Badger States most frail, disabled and elderly population. These legislative successes resulted from the tireless advocacy of our members and staff working with policymakers and elected officials of both political parties to enact common-sense reforms of the states broken survey process that emphasize quality improvement over punitive enforcement. Wisconsins long-term care provider community truly has some important stories to tell. But the real story that many people have missed this past year is a tale that often goes untold. Heres the secret everyday, thousands of our states most frail, disabled and elderly citizens receive great care by good people.

A 2011 national study by Eljay, LLP, a national accounting and longterm care consulting firm, found that Wisconsin has the second worst Medicaid Assistance reimbursement system for nursing homes in the country. While important corrective action was taken in 2011 by the State Legislature and the Walker Administration to partially fix aspects of long-term cares funding disparities, years of underfunding has left Wisconsin long-term care providers vulnerable to further funding cuts. However, in spite of years of underfunding, a survey conducted by the American Association of Retired Persons (AARP) found that Wisconsin is ranked fifth best in the country for affordable, high-quality care for its most vulnerable citizens in 2011. With the Baby Boomer generation moving closer to the age of requiring long-term care, the provider community in Wisconsin, as well as around the nation, is facing significant

Heres the secret everyday, thousands of our states most frail, disabled and elderly citizens receive great care by good people.

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Perhaps one of the most telling aspects of the community of people that I am proud to serve is that longterm care isnt an industry. We dont make things, we help people. Were a provider community. And as a provider community, we need to make sure that our stories are told. While patient privacy must be carefully protected, far too often the good work that the thousands of certified nursing assistants, skilled nursing staff and assisted living community activity coordinators, who passionately care about our states most disabled and elderly residents, goes unnoticed. While there is no excuse for providing poor quality nursing care, long-term care providers are hard-working people who try to serve their residents in the best way that they know how.

In the coming election year, Wisconsins radio and television airwaves will be beset with political attack ads on both sides. Some groups and individuals may choose to attack long-term care providers as a whole to grab headlines and get their face on the local news. We know that thats not the whole story. There are many tools in the public relations toolkit that LTC facility staff and administrators can use to help tell these stories: inviting members of the news media to cover community events, conducting facility tours with local dignitaries, drafting guest columns for the local newspaper, encouraging members of the community to write letters to the editor, sending out press releases about facility news and events, and utilizing social media as a way to facilitate interaction with residents families to name a few.

WHCA/WiCAL encourages you to make the voice of the provider community heard in Wisconsin. Long-term care faces some serious challenges that demand serious solutions not political grandstanding and histrionics. Only by working together can we ensure that policymakers and elected officials understand the importance of protecting our states most frail, disabled, and elderly population by supporting the people who care for them everyday.
John J. Vander Meer is the Director of Communications for the Wisconsin Health Care Association and the Wisconsin Center for Assisted Living. He can be reached at john@whca.com.

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Clinical Corner

SURVIVAL GUIDE: Handling Clinical Challenges in the LTC Continuum

By Theresa Lang

CHANGE
Change is the one common factor in which LTC has been a survivor. Why has LTC survived? What are the skills needed to survive this constant roller coaster of change?

Communication
nursing facilities (SNFs) where an interdisciplinary team inputs MDS data as it is collected, including nursing assistant documentation. The days of triggers and Resident Assessment Protocols (RAPs) have progressed to Care Area Assessments (CAA). In 1998-99, the Prospective Payment System was implemented for SNFs based on the Resource Utilization Group III-44 levels, followed by RUGIII-53, and in FY 2011 RUGIV-64. Consolidated billing has not progressed as planned, limiting the SNF liability to therapy services, a few preventative and screening services, and the excluded services defined by regulations. Internal as well as external communication is the key factor in all elements of change. Electronic communication means (email/text messages) have increased the speed of communication. The ability to receive referrals electronically and process them quickly is key to building and maintaining census.

he Omnibus Budget Reconciliation Act of 1987 (OBRA 87) resulted in sweeping changes to long-term care. Gone are the days of syringe feeding, restraints, side rails, Maalox and blow dryers, sugar and betadine, catheters for every incontinent resident and poly-pharmacy with psychoactive medications. OBRA 87 started the discussion on resident rights, which has progressed to resident-centered care and currently resident-directed care. The Minimum Data Set (MDS) is a key outcome of OBRA 87. The MDS, designed as a standardized, reproducible assessment to enhance the interdisciplinary care planning process, has become the basis for Medicare, Medicaid and reimbursement for other payers. It is also the foundation of the survey and certification processes as well as the indicators which are used to indicate quality to the general public via the Center for Medicare and Medicaid Services website.

Collaboration/Cooperation
Interdepartmental as well as external collaboration will be critical to the implementation of Accountable Care Organizations (ACOs) and the bundling of services as a reimbursement tool. Northeastern Wisconsin and Western Wisconsin are in the pilot ACOs accounted by CMS in early January. Partnering of providers at all levels of care will be the basis of ACO development.

If we embrace the following principles regarding change, we will be survivors...

The MDS process has changed from completion of a paper form with automatic and potential triggers which was data entered, to computers and kiosks found in many locations throughout the skilled
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Critical Thinking to Root Cause Analysis

Assessment and evaluation has progressed to critical thinking and most recently has expanded to root cause analysis. Documenting and communicating root cause analysis is key to positive resident outcomes.

Preventable Conditions/Acute Care Readmissions

Transient medical staff where physicians make monthly or weekly rounds in SNFs will be replaced with more physicians/physician extenders being SNF-based. This will be seen in the form of a hospitalist for the nursing facility. Why is this occurring? As acute care providers are being financially penalized for readmissions, they are looking for ways to prevent readmission to acute care. Managing the person at home, in the SNF, or other living situation is a must for the financial well-being of the acute care organization. Being in the SNF, monitoring residents more frequently, including daily or twice per day, will lead to management of the resident while preventing an acute readmission. Acute care providers are beginning to gather data on SNF discharges and readmission, identifying those SNFs that are unable to manage changes in condition resulting in trips to the ER and acute re-admissions which is affecting referrals to the SNF. Another strategy to manage hospital readmissions is the use of observation stays. Observations stays result in lack of access to Medicare SNF benefits for many beneficiaries. Many beneficiaries do not understand the impact of observation stays on their financial liability. Observation as a Medicare Part B service includes co-insurance of 20 percent, as well as medications not being covered resulting in the beneficiaries need to submit medication charges to their Medicare Part D plan for payment.

International Classification of Diseases (ICD-10)

ICD-10 is scheduled to be implemented on October 1, 2013. This will require extensive staff training including changes in existing clinical and billing software.

Electronic Medical Records

EMR implementation continues to move forward on a national basis. How and when the impact will be mandated in the LTC continuum is still being worked out.

THE FUTURE Money Follows the Person/PACE/ Family Care.

Numerous programs are in place and will continue to receive funding to keep recipients in the lowest level of care possible or at home with service to prevent institutional care. These programs are continuing to expand with requests for the programs frequently exceeding available funding. On a state and federal level, such programs are the goal.

Conclusion
In 1998, Dr. Spencer Johnson wrote the book, Who Moved My Cheese. Since that time, this twenty minute read has been translated into 42 languages and 23 million copies have been sold. It is a must read for all SNF managers at least annually. If we embrace the following principles regarding change, we will be survivors in this roller coaster world of regulatory and reimbursement change. Change Happens Anticipate Change Monitor Change Adapt To Change Quickly Change Enjoy Change! Ready To Change Quickly & Be Enjoy It Again
Theresa Lang, RN, BSN, MAPA, RAC-C, WCC, Vice President of Clinical Consulting, Specialized Medical Services, Inc. She can be reached at tlang@specailizedmed.com

Reduction in Payments
The recalibration of the RUG-IV reimbursement methodology on October 1, 2011 resulted in payment reductions averaging over 11 percent for Medicare Part A, although in Wisconsin these reductions exceed 14 percent for some facilities. This has caused renegotiation of ancillary contracts such as therapy and pharmacy while maintaining quality of care. As we continue into 2012, there are still many unanswered questions regarding payments to numerous provider types by Medicare and Medicaid. The Physician Fee Screen reductions and therapy cap exception process have been fixed through 2012 following action at the federal level in February following action at the federal level? Another doctor fix has been adopted to address March 1 and on. In an election year, however, these fixes are frequently temporary and are not permanent solutions to the issues at hand.

WINTER/SPRING 2012 | CONTINUUM 15

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Capitol Connection

Looking Back at the 2011-12 Session

By James McGinn

Governor Walker on January 27, 2011, and included caps on punitive damages, quality improvement provisions designed for better outcomes for patients, and a $750,000 cap for noneconomic damages for long-term care providers. (For more information on this, see page 19.) Included in the special session call was a budget adjustment bill (Special Session Senate Bill 11) that generated a tremendous amount of opposition by many groups, including the Wisconsin Education Association Council, the teachers union; and the Wisconsin State Employees Union. Specifically, opposition was focused on increasing state employees share of health insurance premiums, increasing contributions to their pensions, and various changes to limit collective bargaining for most public employees.

he November, 2010 elections certainly changed the political landscape in Wisconsin state politics. The voters not only elected Republican Scott Walker as Governor, but also flipped both Houses of the Wisconsin Legislature from Democrat to Republican. The Republicans took over the majority in the Senate from 18-15 Democratic control in 2010, to 1914 control by Republicans in 2011, and the State Assembly experienced a similar change from a Democratic majority 52-46-1 in 2010 to 60-39-1 Republican majority in 2011. Following the January 3, 2011 inaugural proceedings, Governor Walker and the Legislature began work on addressing the states projected $3.6 billion structural deficit. In his inauguration address, Governor Walker stated we will successfully tackle the $3.6 billion

deficit and do it without raids on segregated funds, excessive borrowing, and increasing taxes are off the table. As stated in his campaign, Governor Walker immediately called a special session of the Legislature to enact economic reforms that the Governor felt necessary to create jobs for Wisconsins citizens. Regarding the special session, the Governors plan included legislation that made several changes to civil actions for negligence in long-term care facilities, punitive damage awards, and confidentially and use of reviews and evaluations of health care providers and criminal liability for certain acts or omissions by health care providers, often referred to as tort reform. The Wisconsin Tort Reform legislation was signed into law by

During the months of February and March last year while the Legislature considered limiting the collective bargaining rights of public employees thousands, and on some days tens of thousands, of protestors occupied the Capitol and the entire Capitol square. Access to the Capitol on many days was limited to 2 wings of the building and police officers scanned all visitors and searched belongings. The Capitol building operated similar to airport security. It was difficult to conduct any business in the Capitol, as protestors beat drums and blew whistles 24-hours a day. At this time, the 14 Democratic members of the State Senate traveled to Illinois to avoid voting on the budget adjustment bill since the Constitution requires at least 20 Senators to be present to vote on a bill with an appropriation or fiscal note. Despite the absence of the Senate, the State Assembly met for 3 days
WINTER/SPRING 2012 | CONTINUUM 17

and over 60 straight hours of floor debate and passed the bill limiting collective bargaining for public employees and requiring higher health and pension contributions from public employees. With respect to the length of the Assembly debate, a Legislative Reference Bureau search could not locate any records or reports of a longer floor session dating back to at least 1915. With Democratic Senators in Illinois, Republican leaders of both Houses posted a notice that a conference committee had been created to address the differences between the two Houses regarding the Governors proposed budget adjustment bill. The conference committee removed all appropriations from the bill, but included the provisions limiting collective bargaining and increased contributions for health and pension benefits. The bill required a simple majority to vote to pass the bill. The Senate voted 18 to 1 and passed the modified bill, which was approved by the Assembly. While the budget adjustment bill dominated the news, Governor Walker also presented to the Legislature his proposed 2011-13 biennial budget bill. The biennial budget bill is typically the longest and most complex bill of the session. The Governors budget focused on the states $3.6 billion deficit, and the Governor indicated that his budget would reduce all funds spending and gone are the segregated raids, illegal transfers, accounting gimmicks, and tax or fee increases. Governor Walker signed the budget bill on June 26 and this column does not permit a review of the votes and debate of the measure by the Joint Finance Committee, the Assembly and the Senate. It should be noted, however, the budget bill included: a request by
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the Department of Health Services to increase nursing home acuity projections by 1 percent in 2011-12 ($7.3 million all funds) and 1 percent in 2012-13 ($14.7) to avoid a reduction in nursing home rates, created a $7 uniform fee for criminal background checks with the Department of Justice, and provided Residential Care Apartment Complexes (RCACs) the same protections under current law relating to noneconomic damages and confidentiality of health care services contained in the tort reform law. The summer months continued Wisconsins national news coverage as 9 State Senators were subject to recall elections, 6 Republicans and 3 Democrats. The recall elections resulted in 2 incumbent Republican Senators being defeated, narrowing the Republican control of the Senate to a 17-16 majority. With respect to the fall session of the Legislature, the Legislature passed and Governor Walker signed into law the Strengthening Our Nursing Homes Act, reforming a duplicative and outdated nursing home enforcement process. The measure did not repeal any regulation or expectation; it simply eliminated the potential for being assessed for a double penalty for a single incident of alleged non-compliance. Although the Legislature has reconvened, politics continues in Wisconsin. Petitions were circulated in November to mid-January to recall Governor Scott Walker, Lt. Governor Rebecca Kleefisch, and Republican Senators Scott Fitzgerald, Pam Galloway, Terry Moulton, and Van Wanggaard. While the Government Accountability Board is in the process of certifying the recall petitions, it does indeed appear that special elections will be held in spring or summer this year.

With respect to the Senate recall elections, 4 Democrats have announced their intentions to challenge the 4 Republican Senators. Lori Compas (D-Ft Atkinson) will run against Senate Majority Leader Scott Fitzgerald in the 13th Senate District, State Representative Donna Seidel (D-Wausau) will challenge Senator Pam Galloway (R-Wausau) in the 29th Senate District, former State Representative Kristen Dexter (D-Eau Claire) will challenge Senator Terry Moulton (R-Chippewa Falls) in the 23rd Senate District, and former Senator John Lehman (D-Racine) will challenge Senator Van Wanggaard (R-Racine) for the 21st Senate District. So far, former Dane County Executive Kathleen Falk, Secretary of State Doug LaFollette, and state Sen. Kathleen Vinhout (D-Alma) have announced their candidacies for the Democratic nomination for Governor. No candidates have announced plans to challenge Lt. Governor Kleefisch. (These are the candidates that have entered the races as of the time of Continuums publication.) In addition to the recall elections, I will conclude with a reminder that the general and presidential primary vote will be held on April 3, and the fall elections are scheduled for August 14 (primary) and November 6 (general and presidential elections).
James McGinn is WHCA/ WiCALs Director of Government Relations. He can be reached at jim@whca.com.

LTC Legal Letter

FACT V. FICTION
By Brian Purtell

Update to Health Care Service Review

Critics of LTC Tort Reform Should Double Check Their Facts

Myth: Changes to the health care services review confidentiality provisions permit providers to hide information from residents and families and will preclude wrongdoers from being held accountable for their actions. Fact: Wisconsin statutes section 146.38 provides confidentiality protection for the Health Care Services Review, sometimes referred to as peer review. The policy behind the protection is that health care providers should be afforded a forum

he comprehensive modification of certain statutes impacting lawsuits in Wisconsin, the 2011 Act 2 tort reform package, contained provisions that have implications a wide sector of individuals and businesses, as well as provisions that directly and indirectly affect the long-term care provider community. During the debate and subsequent to passage, there has been significant (mis)information about the content and impact of the provisions. Much of the criticisms contained, intentionally or otherwise, misconceptions or mischaracterizations of the provisions and the impact on accountability of providers for their acts or omissions. To counter the rhetoric from the special interests that seek to undo provisions that will benefit quality improvement and will hopefully permit stability in the insurance market to minimize operational challenges, providers need to be versed in the facts.

Apartment Complexes (RCACs), and Adult Family Homes (AFHs). Prior to the passage of Act 2, there was no limit on the level of damages that could be recovered in legal actions against Wisconsins LTC providers. The exposure to unlimited liability has contributed to an environment that fosters litigation and instability in the availability and affordability of professional liability insurance coverage. Act 2 extends to LTC facilities the same limits on noneconomic damages that previously applied to hospitals, physicians and other care providers. It is important to note that Act 2 did not impact or place any limits on economic damages. Act 2 also changed the way that Wisconsin permits the imposition of punitive damages, those damages that are awarded above and beyond compensatory damages to punish a wrongdoer. These changes are of general application to all suits, and limit punitive damages to twice the compensatory damages. These changes are not health care-specific, yet efforts to date to repeal these limits are oddly and narrowly aimed at a single sector, the LTC provider community.

Caps on Certain Damages

Myth: Putting limits on damages will prevent nursing home and assisted living providers from being held accountable. Fact: Act 2 simply extended the caps on non-economic damages that have been in place for suits against hospitals and doctors for years to apply to actions brought against additional health care providers, including nursing homes, Community Based Residential Facilities (CBRFs), Residential Care

to engage in quality review without fear that such efforts will used against them in other settings. This has been in existence for decades but has long needed an update to reflect todays health delivery system. Past efforts to update provisions have stalled or been vetoed, despite bipartisan support in the Legislature. Changes sought have focused on addressing the erosion of protection over the years; clarifying the providers covered; and permitting greater sharing of data and information among providers, systems, and with consultants, a recognized, more effective means to improve quality and outcomes. Act 2 updated and improved the law by clarifying what providers are covered, what activities are subject
WINTER/SPRING 2012 | CONTINUUM 19

to confidentiality, and permitted collaborative efforts within the confidentiality protections. A notable aspect of this is that nursing homes, CBRFs, AFHs and (later) RCACs were added as health care providers for purpose of this provision. The changes to section 146.38 are intended to allow greater collaboration, enhance candid exchange of ideas and analysis of opportunities for improvement. Critics of the 146.38 changes claim that the modifications will allow provider to shield information from patients/residents, thereby allowing providers to hide critical information related to negative outcomes. A great deal of confusion and misinformation is centered on the understanding of the term incident report, and the accessibility and admissibility of certain reports that meet the new definition of an incident or occurrence report within Chapter 146. The new law clarifies an important provision that encourages providers to address identified quality issues by protecting certain internal reporting and review.

anything called an incident report is covered under the definition and will therefore be shielded by covered providers. The disregard of the actual definition is further compounded by the fact that all providers subject to the Wisconsin Caregiver law must use a form titled Misconduct Incident Report. Again, just because the term incident is used does not automatically place a document into the confidential category that prohibits providers from using it for purposes other than Health Care Services Review. These reports sent to DHS are reviewed by the Office of Caregiver Quality as to the individuals conduct, and as applicable, by the Division of Quality Assurance as to the providers compliance. The accessibility of documents presented and generated in either or both reviews remains unchanged. Despite assertions by opponents, Act 2 did not limit causes of action and did not strip access to reports and records precluding accountability. A residents medical record is the residents, and can be shared with anyone the resident authorizes, including a legal representative. Resident record requirements vary by provider, but all are expected to include details regarding incidents and accidents. The law did clarify and make a specific change to the admissibility of incident or occurrence reports. Specifically that these reports cannot be used in a criminal or civil matter, but the admissibility of these has always been subject to a case-by-case analysis. Myth: Act 2 immunizes a health care provider from criminal prosecution for harm to a patient/resident. Fact: Following several instances of criminal prosecution of health

care providers for what many felt was an error rather than a criminal act, proponents sought to make clear that medical errors should not be addressed in the criminal code. The change, however, in no way immunizes individuals who cause harm to patients or residents. There was an addition made to the criminal code section entitled abuse and neglect of patient and resident that clarified the provision that makes it a crime if someone abuses, with negligence or neglects a patient or resident. Specifically, it added that this provision does not apply to a health care provider acting in the scope of his or her practice or employment who commits an act or omission of mere inefficiency, unsatisfactory conduct, or failure in good performance as the result of inability, incapacity, inadvertency, ordinary negligence, or good faith error in judgment or discretion. Essentially, the law was modified to make it plain that clear true mistakes should not subject staff to crimes. Acts of intentional and reckless abuse or neglect are unaffected by the change. The late-New York Senator Daniel Patrick Moynihan once said: Everyone is entitled to his own opinion, but not to his own facts. In the forthcoming recall elections, tort reform will likely be brought up as one of the prominent issues of the campaign. WHCA/WiCAL hopes all sides will engage in debate on the facts, not inflated suppositions based on political expediency.
Brian Purtell is WHCA/WiCALs Legal Counsel and WiCALs Executive Director. He can be reached at Brian@whca.com.

Everyone is entitled to his own opinion, but not to his own facts.
Critics, however, appear to gloss over the actual definition of incident or occurrence report which reads: a written or oral statement that is made to notify a person, organization, or an evaluator who reviews or evaluates the services of health care providers or charges for such services of an incident, practice, or other situation that becomes the subject of such a review or evaluation. Critics fail to apply, or intentionally disregard, the actual definition, and assert that
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