Defending Long-Term Care: Alan Horowitz on Capacity, Consent, and Compliance

In this episode of Taking Healthcare by Storm, Quality Insights Medical Director Dr. Jean Storm speaks with Alan Horowitz, Esq., RN,  an innovative healthcare lawyer who helps providers such as skilled nursing facilities, hospices, and home health agencies navigate the most complex regulatory challenges, bridging clinical care, government regulation, and legal advocacy with his deep understanding of both clinical issues and law.

Alan breaks down how the nursing home survey and enforcement process works, why it can feel adversarial, and why appealing CMS actions is so difficult and time-consuming. He also highlights emerging challenges for long-term care providers—including marijuana use, medical aid in dying, and consent and capacity issues for residents with dementia—while stressing the importance of strong preparation and clinical leadership during surveys.

If you have any topics or guests you'd like to see on future episodes, reach out to us on our website.

The views and opinions expressed by the host and guests are their own and do not necessarily reflect the views, positions, or policies of Quality Insights. Publication number QI-082126-GK

Transcript

Welcome to "Taking Healthcare by Storm: Industry Insights," the podcast that delves into the captivating intersection of innovation, science, compassion, and care. 

In each episode, Quality Insights’ Medical Director Dr. Jean Storm will have the privilege of engaging with leading experts across diverse fields, including dieticians, pharmacists, and brave patients navigating their own healthcare journeys. 

Our mission is to bring you the best healthcare insights, drawing from the expertise of professionals across West Virginia, Pennsylvania and the nation.

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Hi, everyone. Welcome to another episode of Taking Healthcare by Storm. I am Dr. Jean Storm, the medical director here at Quality Insights. Today, we're diving into one of the most misunderstood and consequential areas of long-term care, the nursing home survey and enforcement process. When a facility receives a deficiency citation from CMS, the consequences can range from a corrective action plan to enormous financial penalties, public reporting, and even threats to Medicare participation. I know the general public doesn't understand the consequences of the survey and what can happen The public doesn't understand how these decisions are made, how they can be challenged, and really what happens behind the scenes when providers decide to fight back and say, "What the survey team said happened really didn't happen or it didn't happen in that way." My guest today is Alan Horowitz, one of the nation's leading healthcare attorneys representing skilled nursing facilities, hospices, and home health agencies in some of the most complex regulatory disputes in the country. What makes Alan particularly unique is that before becoming an attorney, he was a registered nurse and a registered respiratory therapist, helping establish the first neonatal respiratory care team at Hahnemann University Medical Center. He later spent more than a decade as assistant regional counsel for the US Department of Health and Human Services, where he represented CMS and even trained surveyors on the legal principles of documenting deficiencies. That combination of clinical, regulatory, and legal expertise and experience gives Alan a perspective very few people possess. He understands how surveyors are trained, how CMS interprets regulations, and how providers can effectively defend themselves when they believe the government has gotten it wrong. We're gonna be talking all about the survey process, why CMS appeals are so challenging, the nationally watched Million Dollar Coffee case, which I found very interesting. We're gonna also be talking about emerging issues surrounding marijuana use in nursing homes, medical aid in dying, consent and intimacy among residents with dementia, capacity der- determinations, and then we're also gonna be talking about the future a little bit. This is gonna be an action-packed, information-packed conversation, and I am very eager to jump in. Alan, thank you so very much for joining me today. My pleasure, and thank you for allowing me to chat with you, Dr. Storm. All right. So we can go by first names if you'd like. Up to you. I'll just throw that out there. I'm more of a Jean, I think, than a Dr. Storm. So I just wanna talk about your career path. It's very unique, as I said. Y- how did you go from being a registered nurse and a respiratory therapist to becoming one of the nation's leading attorneys defending nursing homes in CMS enforcement actions? Well, thank you for that question, Jean. So I have always been interested in healthcare, uh, from my earliest childhood memories. In fact, as a young boy, I, I thought I would either go to law school or medical school, become a doctor or a lawyer. So my background is, as you pointed out, was in healthcare as a registered nurse, registered respiratory therapist, adjunct faculty at a medical center, but I wanted to do more. And I was at a crossroads. It was either going to be law school or medical school. And I opted for law school at that time, thinking, "Well, that's three years, and then hopefully, uh, I can focus my practice on health law," uh, which is what I've done for the last 35 years, and I've been blessed that I've been able to represent two major nonprofits with global reach in healthcare, as well as representing CMS, the federal agency, and for the last 13 years, representing providers. My focus was, my, my hope was that I could parlay a legal degree into a- allowing me to work in the healthcare space and the health law space, and fortunately, I couldn't have planned it any better. That's, that's what I've been doing, and that's what I love doing. That's good. It's really wonderful, right? When you do what you love, it's not work, right? Exactly. We're gonna jump right into survey because I think a lot of people listening are eager to learn from you. You spent a decade representing CMS and teaching surveyors how to document legally sufficient deficiencies. What are the mi- biggest misconceptions providers have about how surveyors think and how the survey process actually works? That's first, I guess, part of the question. And then I'd like to know what you feel are the most common mistakes nursing homes make during a survey that end up hurting them during an appeal. Sure. So let me just mention there are different types of surveys. There's the annual survey, also known as a recertification survey, which every nursing facility is supposed to have once a year, not more than once every 15 months. And then there are complaint investigations when CMS or a state department of health receives a complaint, uh, regarding the care of a resident, and they do a complaint sur- survey. There's also a third kind of survey, which is a revisit survey. So if surveyors determine that there's a highest level of a deficiency, which is a violation of a federal regulation, and they determine that it's, quote-unquote, "immediate jeopardy," they're obligated to come back and do a revisit to make sure that deficiency no longer exists, or at least no longer exists at the immediate jeopardy level. Unfortunately, the survey process, and I say this as someone who's been involved with surveys almost on a daily basis for the last 25 years The survey process is broken. I don't think anybody on, uh, whether it's the government side, patient advocates, or the provider community would argue that the survey process is effective. It has become increasingly confrontational and adversarial. surveyors sometimes, in my estimation, overstep their bounds. I think the biggest problem, and this is something that facilities need to be aware of if they're, particularly if they're cited with a deficiency, again, that being a, a violation of a specific federal regulation. Uh, and by the way, the federal regulations or the requirements of participation that all Medicare certified nurse homes have to comply with is, are found at 42 CFR Part 483. CFR is the Code of Federal Regulations. The surveyors are not e- expected to understand the voluminous regulations in 42 CFR Part 483. So what CMS has done over the years, they publish something called the State Operations Manual or the SOM. It's a 900-plus page document, online only, and it is interpretive guidelines to the surveyors, so the surveyors can, will use the SOM as a guide when they're doing s- surveys. The problem for facilities that I've seen, back when I represented CMS and for the last 13 years representing providers, surveyors at times will cite a deficiency based on their interpretation or their understanding of what the SOM, s- or State Operations Manual says. The problem with that is twofold. Number one, the State Operations Manual is considered subregulatory guidance. It is not law. In fact, so much so, and this is such a problem historically, that a former director of long-term care nationally for CMS issued a policy memo to all state survey agencies reinforcing the fact that surveyors may not cite a deficiency based solely on the State Operations Manual. There has to be a regulatory violation. So I think facilities need to be aware of the fact that surveyors or some surveyors sometimes will base a deficiency incorrectly on, on their interpretation of the State Operations Manual, which incidentally is an interpretation of a regulation. So you're now two steps attenuated or removed from a regulation, because you've got the SOM, which is an interpretation of the regulation, then you have a surveyor who may even be misinterpreting some of the State Operations Manual Yeah. It's a really scary thing, and I, I don't know if Obviously, the general public doesn't understand, facilities definitely don't understand, and I maybe wanna highlight or make... give an example that is a real-life example to this challenge of surveyors not, uh, being able to, to interpret the regulations fully. So for listeners who are not familiar with it, uh, with it, tell us the story behind the million-dollar coffee case. Oh, sure. How did... Yeah, so- So it is a very interesting case and maybe I can just... I guess I'll just maybe break it down briefly. Um- Sure ... this was a resident in a long-term care facility who was holding a cup of coffee because that's what he wanted, and had a seizure while holding the cup of coffee, and the coffee spilled on him, and he got a burn that was treated appropriately in the facility. But surveyors came in months and months and months later and thought there was negligence, and maybe you can explain it better. But how did it... how did this coffee spill result in a $1.8 million civil money penalty, and a- Sure ... decade-long legal battle? Yeah and, and this illustrates some of the problems challenging CMS enforcement actions. It also illustrates what happens when the surveyor, it misinterprets the state operations manual. So on June 23rd, 2016, a resident was sitting in his room, as you indicated. His adult personal aide brought him a cup of coffee. At some point, the resident had a seizure, and, uh, some coffee spilled on his abdomen. The nurse taking care of him charted a dime-sized wound on the left lower quadrant, and contacted the medical director. There was wound treatment. The w- it was a minor burn. It healed. Fast-forward to March of 2017 when the facility had its annual survey. The s- team leader was going through the incident logbook, and the facility wrote this up as an incident, and the team leader from the survey team, you know, berated the facility, "Why didn't you report this to the Department of Health?" In this case, it would've been the Virginia Department of Health. And the director of nursing administrator said, "Well, it's not a facility-reported incident. It's not an injury of unknown origin. We didn't have to do a root cause analysis. We knew what happened. He had a seizure. He spilled a coffee." The... That wasn't good enough, and the team leader, again, the RN surveyor, said, uh, berated the staff, "Don't you know the federal guidelines for the temperature of hot coffee?" Well, there are no federal guidelines w- and there are no s- state guidelines in Virginia dealing with the temperature of hot coffee for residents in nursing homes. Nonetheless, the surveyor cited immediate jeopardy, which, as I said earlier, is the highest level of a deficiency. CMS agreed with the survey surveyors, and imposed a- civil money penalty of $6,550 per day from the day of the coffee spill, June 23rd of 2016, through March of 2017, which was 272 days. And if you multiply the $6,550 per day civil money penalty times $272, you get a little more than $1.8 million. Well, clearly we appealed. First, I tried to reason with CMS or attorneys for CMS who were intransigent. And w- so we filed an appeal. The case went before an administrative law judge. I cross-examined the, the surveyors. Um, my-- Well, I can't comment on that 'cause the case is in litigation now. But I think I was surprised when the ALJ, the administrative law judge, ruled in favor of CM-CMS. We then appealed, as we had to, to the HHS Departmental Appeals Board, which by the way, this is, like, five years after we filed an appeal, that we got the ALJ decision, and we're now in front of the DAB. Last December, on December 22nd, 2025, the DAB, which is a panel of three judges, administrative law judges within HHS, affirmed the ALJ's decision. And at that point, uh, when a provider loses at the DAB level, uh, they can go into the court of appeals and challenge a civil money penalty. So that's what we did. The case is in front of the Fourth Circuit Court of Appeals. And I can tell you again, I have to be circumspect 'cause the case is pending. It, there's pending litigation, but I can tell you what's in the, the brief that I've submitted and which is in the public domain. W- the th-thrust of our argument is that the surveyor relied on the st- state operations manual, not a federal regulation. And in fact, the surveyor misinterpreted that. There is some guidance in the state operation manual. And again, the term, operative term is guidance dealing with hot water, but it deals with hot water in a bath or coming out of a, a sink or a shower head because you wouldn't wanna put a resident in a bathtub or in a shower or, uh, be, have them exposed to hot water in that situation. But that's very different than temperature of liquids that we consume. There's nothing in the entire 900-plus pages of the state operations manual that mentions hot coffee. So our position, one of our positions in this case, just to wrap it up, is that the government is, in this case, CMS, is relying on a misinterpretation of an interpretation of a regulation. And as I said earlier, there has to be a violation of a specific federal regulation in order for CMS to impose an enforcement action. So we think... Plus one other footnote As I said, CMS claims, and they're arguing in federal court, that there's immediate jeopardy for 272 days. The regulatory definition of immediate jeopardy, which again is found at 42 CFR Part 488.301, is that there must be death or serious harm or the likelihood of death or serious harm. We know that there wasn't death or serious harm to those 272 days. No other resident during that period spilled coffee or was injured from coffee or hot tea for that matter. So the question becomes, was it likely that there was going to be harm to any other resident? And my, uh, opinion is there wasn't. The director of dietary services provided an affidavit that over 55,000 cups of hot coffee or tea were served during those 272 days without a single spill or a single incident of any resident being burned or harmed. So if it was likely to occur, there were over 55,000 opportunities for it to occur, and it didn't. Therefore as I see it it was not likely. And if it wasn't likely that serious harm or death would occur, then as a matter of law, there can't be immediate jeopardy. But that's what the court is going to have to decide Yeah, and, and it's long it's been going on a long time. And- 10 years, yeah yeah. It... CMS wins the overwhelming majority of survey r- appeals, which you l- this is what we talked about previously in a previous conversation. Why are CMS so appeals so difficult? And what does it take for a facility to successfully challenge a deficiency or immediate jeopardy? It really is difficult, unfortunately. It's more difficult than it ought to be, and you're absolutely correct. So at the administrative law judge level, CMS prevails depending upon the statistics, between 89 and 96% of the time. At the DAB level, which is the next highest level, providers only prevail between 4 and 11% of the time. A few years ago, for example, there were 47 appeals that didn't settle, that actually made it to a hearing. Of those 47, CMS won 46. Actually, CMS won 46 and a half. The partial provider victory was, the s- provider challenged the immediate jeopardy def- deficiency, and the ALJ determined that there was immediate jeopardy. It just didn't last as long as CMS claimed, therefore, the civil money penalty was diminished somewhat. But overwhelmingly, the ALJs will rule in favor of CMS. I believe there's bias. I honestly believe that there's bias by the ALJs, and I'll share a story with you. When I was still working in the Office of the General Counsel representing CMS, we had an internal conference, and one of the ALJs was a speaker, and this was just for the government employees and those of us that litigated cases on behalf of CMS. And the ALJ, who is still a, a, a federal administrative law judge said that he had seen thousands of cases, and nursing homes broadly, you know, speaking broadly, nursing homes are terrible. So you have an administrative law judge who's supposed to be neutral and objective deciding these cases, who has, who has publicly s- stated, at least in a closed meeting, that nursing homes are really bad. So I think that kind of bias, and I I'm not gonna speculate that all ALJs have the same bias, but clearly that one ALJ did, and I, and I don't think he's alone. There, there's something wrong with the statistics when C- CMS can't be right 100% of the time and providers can't be wrong 100% of the time. For providers to overwhelmingly lose at the ALJ level and then lose again at the board level is very disheartening. a- again, it It is so we've got a survey system that I think is broken, and unfortunately, the appeal process is, in need of improvement. There are less than 10 administrative law judges that hear all the nurse home enforcement cases in the country. Typically, there's about seven active administrative law judges, and again, they will, it, it's I'll let the statistics speak for themselves. Over 90% of the time, they will rule in favor of CMS, and the next highest level, the Departmental Appeals Board basically sees their role as rubber-stamping the ALJs. Unfortunately, what that means for providers is it's going to take eight years typically to get before a court of appeals. The case that I described earlier with the hot coffee spill, just by way of reminder, that coffee spill, the only coffee spill, occurred on June 23rd, 2016. Yesterday was the 10th anniversary. It took this long. It took a decade to get in front of the court of appeals where we can challenge CMS. So oftentimes, providers will simply say, "You know what? If I don't appeal, I can get a 35% discount on the, on the civil money penalty. My money won't be escrowed. It won't be tied up. I'll save the cost of litigating this, and I'll just treat this as the cost of doing business." It's unfortunate but I've had many clients over the years, over the last 13 years say, "You know what? I just want to put it behind me. we'll pay the civil money penalty, less 35% discount." Another thing that happens, and this was another situation where it, it was clear to me at least, that the f- facility did not have a deficiency and the surveyors got it wrong. We lost at the ALJ level, and I thought, "Well, we'll go to the next level, the DAB, and ultimately to the court of appeals, where I firmly believe we would have prevailed." What happened because of the delay, because it takes on average three years or more to get a decision from the ALJ, in that intervening period, the facility was sold. The new owner contacted me and said, " I really don't have a dog in this race. Why should I continue the appeal and tick off CMS possibly? You know, I'm a new owner. I'm starting fresh. The-- I didn't have to pay the civil money penalty." So again, there are situations where there's a change of ownership, and the new owner really doesn't have a dog in the race, as I said, and, and the appeal is dropped at that point, and it never gets to the US Court of Appeals. So it's a long struggle. It's expensive. I always tell providers if they want to appeal a CMS enforcement action, it's going to take years, literally, you know, more than five years to get into a court of appeals. They're probably not going to get a fair hearing until they're in front of a panel of federal judges in a court of appeals. It's going to be expensive. And whatever the civil money penalty is, CMS escrows that up front, so CMS is holding onto your money. Uh, in the case of that $1.8 million CMP, CMS has had that money now for nine years in an escrow account. That's money that could have been used to recruit and retain staff yeah, it's I think we could talk for a long time about this, but I wanna move on to another controversial topic, which is marijuana and cannabis-derived products in nursing homes. These... M- many nursing homes are encountering residents who wanna use these products. It's legal in many states. So w- what is the current regulatory landscape and legal landscape, and what are the risks that facilities face when trying to ba- balance resident rights with the federal requirements? Okay, well, that's three questions, and I'll try to answer each of them. And they're excellent questions, 'cause there, there's really a lot going on right now. So historically, marijuana has been a Schedule I drug. Schedule I drugs under the Controlled Substance Act are drugs that have no medical purpose and a high risk of abuse, drugs like heroin, uh, methamphetamine, LSD. Uh, and many people would argue that medical marijuana, or marijuana in general, doesn't belong as Schedule I. What has happened recently is, uh, medical marijuana has been reclassified as Schedule III, which means, um, it would be legal for those purposes permitted. Now that's not recreational marijuana. So from a regulatory perspective, medical marijuana is now Schedule III, not Schedule I. Uh, and what that means is the FDA will be promulgating federal regulations dealing with the dispensing and use of medical marijuana. and this only applies to state-approved, state-licensed medical marijuana. I- in terms of the risk, you asked about the risk, and that's an excellent question. I've been asked about this a lot in the past 10 years, and increasingly. There are 42 states and the District of Columbia that have legalized medical marijuana, so clearly the overwhelming majority of Americans live in jurisdictions where medical marijuana is legal. I don't believe that there's a risk for a nursing facility if they let a resident use medical marijuana, so long as they're in strict compliance with state law and that the individual resident is a registered user in that state. It's not very difficult to become a registered user. There are typically 14 or 16 different clinical conditions that would qualify an individual to become a registered user. Uh, depending upon the state, there's about a $25 charge to, to have the u- user identification card. The reason I believe that it, there's not a, a serious risk of criminal prosecution is that going back to 2014, there was an amendment introduced in Congress called the Rohrabacher-Farr amendment that basically said, um, the Department of Justice cannot use any funds that we, the Congress of the United States appropriate to prosecute anyone that complies with state law regarding growing, selling, distributing, using medical marijuana. Now, that amendment is only good for the budget for that fiscal year. But every year since 2014, there has been a rider to the Appropriations Bill. The current rider, uh, was introduced by Senator Leahy, something referred to as the Leahy Amendment, which basically says, we Congress, are appropriating funds to the Department of Justice, but you may not use these funds to prosecute anyone who complies with state law. There was an interesting case a few years ago in federal court out of California called United States versus McIntosh, where the Department of Justice, notwithstanding the fact that Congress said you can't use funds to prosecute anyone if they comply with state law, Department of Justice had 10 different criminal defendants charged with possessing medical marijuana. Again, medical marijuana, not recreational marijuana. And the Department of Justice argued in federal court, well, this is a violation of the Controlled Substance Act. The 10 defendants, the cases were consolidated, argued, well, not so fast. Congress has spoken. Congress has passed the budget that said you're not even allowed to prosecute us. And the Ninth Circuit Court of Appeals agreed with the defendants and pretty much kicked the Department of Justice out of the court. The case was dismissed and the, and the court said, well, we have two competing bits of, you know, action by Congress. We have the Controlled Substance Act from years ago, but we also have the current Appropriations and Budget Bill where Congress has spoken and clearly said, Department of Justice, you can't use these funds to prosecute anybody who complies with strict law. So coming back to your question, Jean, I think that so long as a facility, a nursing facility complies, strictly complies with state law And we're talking about medical marijuana, not recreational marijuana. And the individual resident is a registered user, then I, I think that it's highly unlikely they'll be criminally prosecuted. I know of facilities that have been allowing medical marijuana for years. And I'm not aware of a single prosecution of a resident, the resident's family, the facility, or the facility employers. And I think if anything as mentioned earlier, the FDA will be promulgating regulations regarding medical marijuana. It's now Schedule III, so I think it's highly unlikely that there will be any prosecution. Again, one caveat is that there would need to be a rider to the budget bill every year. Um, but as I said, ever since 2014, there has been such a rider prohibiting the DOJ from, Department of Justice, from using any funds to prosecute anyone. Again, the caveat is as long as they're in strict compliance with state law That's what I think facilities need to keep in mind, but I think there's a lot of m- I know there's a lot of medical directors who are unwilling to traverse into this area. But maybe- And, and, and I'm sorry. I apologize for interrupting, and that's okay, too. I mean, I've known the m- probably the majority of facilities that I've dealt with in the last 10 years, as it relates to medical marijuana, have taken a position, "We're not going to allow it." And they're on solid ground because their argument was that, well, it, even if we comply with state law, it's still illegal under federal law, so we're not going to allow it. So a facility can go either way on that at this point in time. I think the time will come when it would be hard-pressed under, um, the federal regulations dealing with resident rights to deny a resident particularly if the resident's physician is recommending medical marijuana, and that resident was using it with a good outcome prior to admission to a SNF. Yeah, again, we could talk for a long time about this, but I'd, I wanna move on to autonomy and consent. I get a lot of questions about consent around medical decision-making, but something that's a little bit more challenging is residents with dementia who want to engage in intimate relationships. So how should facilities approach this challenging topic? And I guess, and maybe this is too broad a question, if we bring in capacity determinations and determining th- those things in nursing homes today. Are we getting those capacity determinations right? well, they're not being done often enough in my mind just based on empirical evidence. Y- you're absolutely correct that this is the problem that most, if not all, nursing facilities face, the, particularly given the population of residents with cognitive impairment, whether it's Alzheimer's disease or related dementias. Ch- and what facilities and surveyors don't necessarily understand is just because a resident has Alzheimer's or a related dementia does not mean that they lack the ability to consent to sexual intimacy with another. The, the critical issue is whether or not the resident or residents have decision-making capacity. I highly recommend that facilities undertake an assessment and d- and document what a resident's decision-making capacity is. Clearly the decision-making capacity may be such that a resident or two residents can, could consent to sexual intimacy on one day, but the next day, or even that evening, lack the ability to consent. So for that reason I believe that a dimin-- decision-making capacity assessment is ongoing. It's fluid. I mean, just because it's done on one time doesn't mean it lasts for the duration of the resident's residency. As there are ch-clinical changes in condition or other factors, the resident's decision-making capacity may wax and wane. A typical, uh, example would be Sundowner's syndrome, where a resident is capable of making informed decision in the morning but lacks the capacity to do so in the evening. I'm often asked, "Can our social worker make that decision?" I, I-- my answer to that is always, well, you want as much input as possible from your facility social worker, your medical director, the attending physician, if there's a different attending and medical director, and of course, the interdisciplinary team. But I highly recommend the input and the assessment by a geriatric psychiatrist or a geriatric psychologist with expertise in the area of dementia and sexual intimacy. Very quickly the reason, you know, that, that underscores the importance of this in the Rayhans case, where a gentleman, uh, Mr. Rayhans, was charged with raping his wife, who had Alzheimer's disease. Um, the prosecution had an expert, medical expert witness who looked at the records of Mrs. Rayhans, who couldn't articulate what her preference was because of her advanced Alzheimer's. And that medical expert, a qualified medical expert, said she lacked the ability to consent to intimacy. Meanwhile, the defense put a s-- put their medical expert on the stand who said, "No, I..." And he looked at the same medical records and j-said she had the ability to consent. So my point is, if you have two highly qualified medical experts who can't agree on whether or not an individual has or lacks decision-making capacity, it's best not to leave that decision solely to a social worker, who's a valuable member of the team. And you want the input from the social worker, as I said, in addition to the IDT, the attending, and the medical director. And again, it's, it's a dynamic process. It's not static. The making capacity assessment, it should be ongoing and clearly documented Yes. I agree. Agree wholeheartedly. Another controversial topic I just wanna get in briefly, medical aid in dying. It's expanding in some states while it's re- remaining prohibited in others. What should nursing home leaders understand about the current legal landscape around MAID, medical aid in dying? And do you- That's a great question. I'm sorry. Yeah. Do you see the issue affecting long-term care in the future? Abs- absolutely. And maybe hospice is more than SNFs, but, um, definitely hospice is more than SNFs. but because there may be a hospice patient in a SNF, the facilities should be aware of this, and I think that there's going to be an increasing,, demand for medical aid in dying. So what facilities need to know is the law in their state. Currently, there are 13 states and the District of Columbia that allow medical in dying. In all 13 states and the District of Columbia, there are four absolute criteria that somebody must meet in order to be eligible for medical aid in dying. It has to be an adult, it has to be someone who has a terminal disease, defined as someone with a prognosis of six months or less, it has to be someone who has decision-making capacity so they're not acting under duress, coercion, or diminished capacity. And finally, the fourth criteria is the individual has to be able to self-administer the lethal cocktail. A nurse, a physician, a family member cannot provide, uh, provide the medication. It has to be self-administered. What facilities need to know, obviously, is the law in their state. First of all, does the state permit it or not? Is it one of the 13 states that allows it? And apart from those four criteria, there are individual variances. So for example, most states require a residency require. Not all states do. Some states allow a nurse practitioner to be the prescriber for the lethal cocktail. Other states require that it solely be an MD or a DO. So again, my best advice is understand what your state law permits and comply with that, and have absolutely thorough a- and adequate documentation. Um, there are challenges to the state, the various state medical aid in dying laws. Typically, they are referred to as the End of Life Options Act statutes. There recently was a challenge to Colorado's End of Life Options Act, which permits MAID and the court de- denied that. That's on appeal. Likewise, there was a challenge to Del- Delaware's End of Life Options Act, and the court dismissed that. That's now appealed to the Third Circuit. So even though medical aid in dying has broad support accor- according to surveys, the majority of Americans believe that medical aid in dying should be available to adults with terminal illness there is, a group of- disability advocacy organizations that are adamantly opposed to medical aid in dying, and they're filing challenges to that throughout courts in those 13 states where it is legal So more to come on that. Yes, indeed. Yeah. So this last question I think is gonna be very helpful to any nursing homes facility staff who are listening, and I'm gonna gear it towards nursing home administrators, but I, I think this is to any leadership. This is for any leadership, um, individual in leadership in a long-term care facility. What is the single most important lesson every nursing home administrator should know about surviving a CMS survey? I believe the single most important lesson is you can survive it you can do well, you can breeze through it, and you can even have a deficiency-free survey. That's not... I wouldn't leave that up to happenstance. I, I think that the key issues to have a deficiency-free survey and have the best possible outcome is to prepare, prepare, prepare. Involve, absolutely involve the medical director. I advise facilities whenever possible, once surveyors walk through the door, if the medical director isn't in the facility, at least have him or her available by phone, so if there's a question about a clinical condition or the treatment, the physician can explain it to the surveyor. That makes a huge difference, having the involvement of the medical director. Likewise, the interdisciplinary team should consider what deficiencies were there in the past when getting ready for a survey. Past is prologue, so if the facility had a history of issues or deficiencies with pressure sores or falls, concentrate on those areas. Make sure the staff is well-educated. Make sure, policies and procedures have been r- reviewed and revised as appropriate. Um, and I think a good starting point is a facility assessment. Every facility, as you know, is required to do a facility assessment. If a facility has a subpopulation of ventilator-dependent residents, then make sure you, you know, that all of the services that you provide to ventilator-dependent residents, from changing the breathing circuit to changing trach tubes, make sure that your policies and procedures are intact. Make sure that your staff is educated, that they, that they know how to provide the quality service to residents needing that or any other area. And there are some difficult areas. Increasingly, we're seeing surveyors ask administrators and staff how they're dealing with residents who have substance use disorders, which can be very challenging, but that's a, a hot button issue, and again preparing. Finally, I would say that a facility should- Take a look at their QAPI program, and part of the QAPI program requires a QAA, or the Quality Assessment and Insurance committee. If there are ongoing issues the QAA committee can address those well in advance of a survey, provide the appropriate monitoring and au- auditing tools internally to make sure that the facility's in substantial compliance. And one final thing occurred to me. I always recommend engage as appropriate, the QIO, for additional resources. I found that QIOs can be extraordinarily helpful as an external resource and they have the same goal that providers do, which is to optimize the quality of care and quality of life for residents. So engage the QIO, involve the medical director, , the IDT, take a look at your past surveys and of course, let your facility assessment inform you on where you should focus your energy. Wonderful guidance and advice. If people want to find more about you, find out about what you're doing and, and h- maybe how to get in contact with you, how can they do that? They can reach me through my website, which is Alan C. Horowitz and Associates LLC. Thank you for asking. Yes. You can... We'll link that in the episode page so people can find out more about you if they need more information. But this was an amazing conversation, Alan Horowitz. Hopefully, we'll have you on again. I really enjoyed the conversation. Likewise, and thank you for your interest and for all you do to promote quality of care.

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