11th Annual Quality & Risk Summit: Key Takeaways

Federal Trade Commission (FTC) Non-Compete Ban

Effective September 4, 2024. Non-Profits are generally exempt from this Ban (exceptions are made for executive level positions).

• The FTC is targeting those with geographic restrictions.
• If For-Profit organizations already have non-compete agreements in place for executives, these will remain in effect.
• Consider reviewing any non-competes currently in place; noting that existing non-competes for the vast majority of workers will no longer be enforceable after the rule’s effective date of September 4, 2024.

Non-Solicitation Agreements

Should be a separate agreement entered between the employee and employer.

• Wisconsin: Restrictions of up to 2 years
• Minnesota: Restrictions of up to 2 years (although, it is recommended no more than 18 months) – Does not apply to service providers (i.e. staffing agencies).
• Providers should consider entering into non-solicitation agreements as a strategy to replace non-compete agreements and to prevent former employees from soliciting customers and/or clients upon departure from the organization.
• Employee Handbook that contains non-solicitation language is not enough to be enforceable; employee handbooks are not contracts.
• If a provider introduces a non-solicitation agreement after an employee has been hired the employer must give something to the employee in return for the agreement. For example, tie the agreement to a bonus payment, increased compensation, or guaranteed conference/trainings.

Independent Contractors

Independent Contractors are not protected in the same fashion as employees of an organization.

• Review contracts with those deemed as independent contractors
  • Independent Contractors are classified based on the circumstances surrounding the work that the contractor is providing and directing
• Staffing Agency employees do not fall under the independent contractor status – they are employees of the staffing agency.
• Consider reviewing state specific independent contractor tests, such as:
  • Wisconsin Department of Workforce Development
  • Minnesota Department of Labor & Industry

Joint-Employer Standard

• Review contracts and agreements with any other employers perceived as a “joint-employer” (i.e. staffing agencies/temp agencies, contracted therapy, beautician/barbers, contracted ancillary services).
• Limit the language of who controls the employee’s work and ensure there are separate management structures.
• If temporary or staffing agency staff work in your building, define them differently by using different style name badges for identification.
• Ensure recordkeeping and documentation surrounding contracted employees are kept separately and handled with the employer responsible for those individuals.
• Train managers and supervisors on their roles and involvement with staffing agency staff or temporary staff through joint-employer relationships.

Lesson 2:
Prepare staff before an incident occurs.

• Ensure your process includes background checks as per state and federal regulatory requirements.
  • Train & educate staff at-hire and regularly throughout the year. Provide them with the tools they may need to be successful while caring for individuals.
• Admission Criteria – Understand the needs and requirements of the population that is being served within the organization or at specific locations.
  • Ensure staff know who should and should not be offered placement and admitted based on your admission criteria.
• Admission Agreements with Arbitration – Ensure that admission agreements are reviewed periodically, and arbitration agreements meet the State and Federal regulations.
  • Admission Agreements should be very clear as to what is required of the resident, legal responsible parties, and the facility.
• Assessments and Documentation – Train staff on properly assessing residents and how to properly document what is taking place for the resident’s care.
  • Document interactions with both residents and their families and/or responsible parties.
• Negotiated Risk Agreements—Use these as a tool to continue to show that the facility staff have educated the resident and/or responsible party on the risks vs. benefits or refusals of care and services.
  • Revisit Negotiated Risk Agreements on-going throughout the resident’s stay and make revisions as resident’s care needs change.
• 30-Day Discharge Notices – Provide discharge notices when it is appropriate and follow-through with the steps outlined in the discharge notice.

Lesson 4:
M3, Defense Counsel, and the Insurance Carrier are on your team.

• Inform your M3 Team when a sentinel event occurs or if any communication has been received from a plaintiff attorney.
• There may be coverage on your policies to assist with defense counsel for board and licensing inquiries—connect with your M3 Team to find out more.
• Defense Counsel is there to help, be honest and up front with defense counsel about the good, the bad, and the ugly.  The more that the defense counsel team knows, the better.
• PR Firms – Do not let your brand reputation suffer. When an incident or sentinel event occurs, there may be media inquiries and social media outlets that may run articles and posts about the incident at your organization.
  • Utilize a PR Firm to train and educate staff on how to handle inquiries and to assist with creating a response to questions from the media.

Incident Response Process

• Incidents occur through ransomware attacks, email compromise, rogue employees, wire fraud, and accidents. Have an Incident Response Team in place as part of your Emergency Preparedness Plan.
  • Technical Resource (CIO/Head of IT)
  • Executive Leadership (CEO, CFO)
  • Human Resources
  • Lawyer (Breach Coach)
  • Security Forensics Team
  • M3 Team and Insurance Carrier
• Written Information Security Plan (WISP)
• Complete a Tabletop Exercise as part of Emergency Preparedness Planning—internally identify strengths and weaknesses; put a plan in place to patch the weaknesses.
• Engage Data Security and Privacy Counsel early (before an incident occurs).
• Minimize data, limit access within the organization, train employees to HIPAA and data privacy practices.
• Contracts matter– Conduct vendor due diligence and ensure third party contracts use strong data security contractual provisions.
• Plan for your most business-critical vendors to have a breach—outline your back-up plans on how to function while those organizations are out of commission (i.e. payroll, EHR systems, financial and billing systems).
  • Manual processes for handling day to day systems (i.e. paper charting progress notes; manual time clock cards)
  • Train staff on how to conduct business and care for the people you serve without technology.
• Communicate plans are very important—keep everyone up to date as best as possible with timelines and solutions to keep the organization going.
• Engage with a PR firm to assist with media inquiries if notification to the public is required under HIPAA privacy regulations.