Who are the Governing Body of a Nursing Home?

Episode 204
Categories: Regulations
Transcript

Ever wondered who calls the shots in nursing homes? The governing body holds immense power. In this week’s episode, nursing home abuse attorney Rob Schenk welcomes guest Michael Brusca to talk about the roles and responsibilities of the governing body in nursing home care.

Who are the Governing Body of a Nursing Home?

Ever wondered who calls the shots in nursing homes? The governing body holds immense power. In this week’s episode, nursing home abuse attorney Rob Schenk welcomes guest Michael Brusca to talk about the roles and responsibilities of the governing body in nursing home care.

Schenk: The mysterious governing body of the nursing home. Coming up.

Hey out there. Welcome back to the nursing home abuse podcast. My name is Rob. I’m going to be your host for this episode today. We’re talking about the governing body. The governing body is essentially the legal entity that is responsible for the operations of the nursing home. And we’re not doing that alone. We have the fantastic attorney, Michael Brusca.

Alrighty. So now into the substance of the show, we’re going to be talking about the governing body, the who’s, the what’s, the wins, the wares, but we’re not doing that alone. As I mentioned, we’re going to have the fantastic attorney, Michael Brusca since departing the military in 2009, Michael has dedicated his legal practice to advocating for vulnerable individuals and their families in cases of abuse, neglect, and wrongful death across various care facilities. 

He shares his expertise through nationwide lectures, consultations with reporters, and law enforcement engagements. Previously, he served as the chairman of the executive board of the National Nursing Home Litigation Group for the American Association for Justice.

We’re very lucky to have him on. Mike, welcome to the show. 

Brusca: 

Thanks Rob. Happy to be here. 

Schenk: 

As always looking great. I’m a little bit disappointed if I can say, because you’re not in a bow tie, you’re actually in a normal tie. I feel like all of your marketing material and what I’ve seen, I should’ve got the bow tie.

Brusca: 

Yes. Okay. So generally speaking, I do wear a bow tie. That is true. Although I wasn’t going out to lunch today, so that takes that risk factor out. And ultimately I’m happy to come back on. And if you want to do a tutorial on bow ties, I can do it with my eyes closed with no mirror. I’m happy to do that for you.

Schenk: 

Okay. Did I hear you say that you, it’s more of a risk eating with a bow tie rather than a necktie? 

Brusca: 

Less because I wasn’t going out for lunch today. So if I’m not going out for lunch, then a necktie is.

Schenk: 

Right, yes. Yeah, I got it backwards then. Okay, very good. You’re a veteran of nursing home cases.

You’re a pro in my book is very important to everyone. And I haven’t had an episode dedicated to the governing body, the mythical governing body of nursing homes. And I thought that you’d be the perfect person to come on and shed some light on this topic. So the first question is the softball question for today.

And that is when we say governing body, as it pertains to nursing homes what does that mean? Who are these people? 

What is the Governing Body of a nursing home?

Brusca: 

The governing body Is defined by federal regulations. So there’s an F tag on this. And if your audience doesn’t speak that language, F tags are the federal regulations that are broken up into individual smaller regulations and the F tag that governs governing body is F tag 837.

And so this sets out the requirements for the governing body. And like many things When you’re talking about nursing homes, it’s important to say what it should be, because you used an interesting word, mythical, and there’s a lot of things that are mythical in nursing homes that they’re supposed to do.

And so ultimately, governing bodies are interesting. So it’s interesting to go to the reg and see what’s supposed to be right. So in this instance, the governing body must have one, right? That’s the word now I went to Catholic school. So that’s like a Bible word. So must have one, which means you better have it or you’re going to burn.

So the governing body has to have one and it’s a designated person with an S now. I don’t know how. I don’t know how closely this is looked at by state regulators, but nevertheless, it’s supposed to be a group of people. They can be owners, chief executive officers, or other people who are, quote, legally responsible.

They’re, what are they legally responsible for? To establish and implement policies regarding the management and operations of the facility. Now, who are they? Typically they’ll be the owner. It could be someone from the management company. It could be any of those people, but they do have to be appointed. Now, nothing in the right says this needs to be written down, which then increases the likelihood of mythical status exponentially. But what they’re supposed to do is, once they are implementing policies regarding the management of the facility, they’re supposed to appoint the administrator, and the administrator is then responsible for the management of the facility, and then in turn, the administrator is accountable to the governing body.

And they’re supposed to have some kind of meeting, some kind of discussion about the management of the facility, and the state is supposed to be able to go in there and make sure there is one, and find out what the administrator is providing to the governing body to make sure they’re doing their job.

Schenk: 

So I guess in a nutshell, the governing body is an entity that’s required under the federal regs that would consist of people possibly that are required to develop the policies and procedures as to how the nursing home was going to run. And they appoint the administrator who would be the, the feet on the ground.

I use the term mythical because I feel like at least as far as I know, unlike ownership. Of nursing homes and under the federal regs that has to be reported, but as of right now, to my knowledge, and correct me if I’m wrong, but I don’t think that the identities of the governing body are required to be disclosed at this point.

Brusca: 

Right?

It’s awkward because the regulation doesn’t really lay that out. It gives a list of responsibilities the facility has to do. They have to have a process and frequency. By which the administrator reports to the governing body how the administrators can be held accountable and the reports are supposed to do.

They’re also supposed to be responsible for and accountable for the QAPI program. Practically, they don’t write any of this stuff down, and I’ve asked a lot of baffling questions of administrators in the time I’ve been doing this. And one of the most baffling questions you can ask the administrator is, who’s your governing body?

Which I ask in all my depositions because They look at you like they don’t even know what it is. Do you know what I’m saying? They don’t even know what I’m talking about. I just asked them, who’s your governing body? And they’ll I’ve gotten answers like the department heads are the governing body.

Schenk: 

Right. I’ve got that one. 

Brusca: 

Yes. Yes. Sometimes they wing it at this point in time, they’ll start just throwing names out there. Because they don’t know. The reality is that, The FTAGs will lay out what they’re supposed to do, but then when you get in and find out what they actually do, they don’t have one.

They don’t, or they certainly, they don’t, not what the FTAG envisions. The FTAG envisions a group of people that are really involved with the facility and are engaged with the administrator and being sure that the quality assurance program is operating and the administrator is doing their job. And, the reality is that in the places that wind up on the business end of our company not to sound cynical, but that may not be the priority.

So in the end, as a consequence most administrators have no idea what I’m even talking about when I utter the words governing body. 

Schenk: 

What is your opinion about, speaking of the specificity of that regulation, what is your opinion about, do you think the regulation should go further? Like in terms of okay, we’ve laid out the basics, but here, the rubber needs to meet the road at some point.

Okay you’re in charge of coming up with the copy procedures, the quality assurance performance improvement procedures beyond. But what are you? Should we have something beyond that? Should we? Do you think the regulations say something like the governing body should meet exactly quarterly and the administrator should be there, et cetera, et cetera.

Or what’s your take on that? 

Brusca: 

It’s hard to say, because I do think you should give it. Nursing homes have flexibility in many regards that they shouldn’t just be creatures of operating under regulations. It could be as a consequence of my time in the military, but I will say this the way that they word this. It’s very ambiguous.

And so I think if an administrator actually thought about it, they would probably be able to come up with a better, more clever answer than, I don’t know what a governing body is. I think if they had a requirement to meet quarterly, at least make it separate and distinct from the QAPI meeting. QAPI is something special in a nursing home.

For your listeners that don’t know what that is, that’s an internal mechanism where they’re supposed to be able to look at disturbing trends, perhaps, in the facility. And then figure out ways to prevent that from continuing, like systemic problems, and they get privilege on this, right? They get privilege on this, because in this way, they’re free to talk about things that they may not want to talk with a state surveyor about, or certainly not me.

And if you made something distinct from that to make sure that these folks are making sure that QAPI is happening, because it generally is. Let me know. Bye! I can’t think of a case where they weren’t doing their QAPI meetings, at least at the minimum quarterly. Most actually do it monthly. And I think that’s good.

They should be doing those things. But at the end of the day, the governing body, I think it would be helpful if it was, if they did have some kind of requirement that they meet. Quarterly or something like that in my brain. I certainly can envision if you have a small one off place that’s owned by one person that’s really engaged interacting with the administrator.

I don’t have a problem with that. Kelly, they don’t end up as defendants in most of my cases, but because those places are actively run because the governing body who would be the owner, they really do care about the care they’re delivering to the residents. And ultimately, I don’t even know those places, but Perhaps if they did have a requirement that they keep some kind of minutes or something like that to make sure that’s happening because it just, it doesn’t happen.

I don’t know how else to put it. It just doesn’t happen. 

Schenk: 

I feel like in my cases, by the time that I’m getting to the orders on my motions to compel governing body meeting minutes. When I’m getting high up on that level, my cases tend to settle out. So I haven’t had an opportunity to get governing body meeting minutes, and I haven’t had an opportunity to actually depose anybody on a governing body that wasn’t themselves already an administrator or an owner in and of themselves.

So I don’t know. I haven’t had that experience. Have you been in your experience, have you been able to depose anybody on a governing body or get meeting minutes? 

Brusca: 

Yeah.

Schenk: 

I only say that because I have anecdotal evidence of sometimes the governing body meeting minutes, which is why I asked for them when they do exist.

They might say things like, Hey, great job with whatever, let’s buy ourselves some boats. That’s a dumb governing body, but at any rate let me ask this then. So outside of litigation, it doesn’t seem to me like the average John Q citizen would be able to get in for information about the governing body through an open records request.

It would, is that about, is that a fair statement? 

Brusca: 

Oh yeah. 

Schenk: 

Yeah. 

Brusca: 

I think if John Q public went into a nursing home to admit their mom or dad and said, before I met mom or dad, can I see your governing body minutes? I don’t know that there’s going to be better availability.

How do you find out information about the Governing Body?

Schenk: 

Right, okay. Set it, setting aside not telegraphing that you want those before you put your loved one in there, but I guess there’s not much information that’s publicly facing or that you could get through a records request having to do with the governing body.

And I just think that’s such a, such a, it’s a strange thing to me that there’s not a lot of info that you can get outside of litigation and the discovery process. 

Brusca: 

No, and I have to say I’ve been doing this a long time. There is a lot more information that the public can get than when I started doing this in 2009.

I started doing this kind of work when I came out of the service. So they had very little information for the public back then, at least that you could get online. You could make requests to the Department of Health, but now, of course, they had to put their surveys out in the lobby or they had to be accessible to the public.

But beyond that, there’s very little information. There’s a lot more now and that’s a good thing. I think certainly the problem with the skilled nursing facilities versus other types of businesses are that you’re not accessing this because you want to be there. You’re there because you’re compelled to be there yourself or put someone you care a great deal about.

And the magnitude of the responsibility that you’re handing over is enormous. You look at something like a daycare. I think sometimes if daycare has got the same results we do in nursing homes, it would be on the front page of the New York Times and Wall Street Journal.

So the problem is, too, that compounding these two things is the fact that families rarely have a lot of time to prepare for long term care. Or they’re not prepared for it. And it’s not something that people look into unless they have to. The vast majority of people wind up in nursing homes in my experience as a holdover from rehab.

So they have an accident at home. They’re in a hospital for a few days, and then the social worker is ready to toss ’em out into rehab, and the family has no idea where they’re gonna go. They pick the place that’s closest because they want to be able to visit the most, even though they might not know this, but this place might have terrible data and metrics.

And at the end of the day, it’s there’s mom. And she’s in this facility and they’re getting a bad outcome. And then I can’t speak for other states, but in my state, if you’re on Medicaid and you are a long term care resident, it’s very difficult to move to a different facility. You get on a waiting list and good luck.

It can be very difficult to move. So anytime you have more transparency or explaining to the public what these things are, I think that’s good. I think that’s a good thing. I’m glad there is more information available, but to this extent that governing bodies. Like I said, this is a, I hate to say this, but I just feel like they’re more aspirational in many cases.

Schenk: 

Agreed. I don’t know. I was going to say, because I’ve had the same experience in my cases where you ask the administrator who the governing body is. And they’re, they’re just looking around the room, like a chair that lamp over there. They’re in the governing body. They’re just naming whoever.

But that’s a great way to put it. It’s aspirational because, it seems like the federal government was trying to say, let’s at least establish a buck where it stops. But it didn’t. I don’t think it went far enough in terms of, there being any. I don’t know teeth or understanding as to what these people are supposed to be doing.

I know the watermelon book alludes to the governing body a little bit here and there, especially with the regs that you just mentioned, but I don’t know, I don’t know if it goes far enough. 

What role does the Governing Body have in the operations of a nursing home?

Brusca: 

It’s interesting because the F tag specifically defines these people as individuals who are legally responsible, right?

That’s a pretty strong language. Like they are legally responsible to establish and implement policies regarding the management and operation of the facility. So this isn’t a small thing. The administrator should be very clear who’s legally responsible for establishing these things. It’s not a small responsibility.

It’s a huge responsibility. And that’s why when they go on to say look, these might be the owner or chief executive officer. But this is their responsibility for the administrator not to know that I think it is problematic. Ultimately you know, sometimes they don’t even want to admit who the owner is to a facility or who they work for, things of that nature.

It can be pretty dodgy in depositions. We hear what I practice. 

Schenk: 

Exactly. Any, anything, any other illumination, any other illuminating facts that you can give us about governing bodies today? 

Brusca: 

No, I think that’s about it. Like I said, if you’re a lay person and you’re listening to this podcast because you’re interested in admission to a nursing home, you will get special attention. If you ask that question, I can assure you that. 

Schenk: 

Agreed. Thank you so much, Mike, for coming on and sharing your knowledge, letting us know what F tags are and rocking that suit. I think that you’re the first three piece suit that’s ever been on this program.

So I appreciate that. Oh, and even have the, what’s that called? The pocket square. 

Brusca: 

Yeah, of course. 

Schenk: 

Rock and roll. Awesome. Thank you so much, Mike. I really appreciate it. Thanks buddy. Thanks for having me on. Folks, I hope that you found the content of this episode informative. If you have any suggestions or comments for material that you want to see covered in future episodes, please be sure to let me know.

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