U.S. nursing homes would benefit from a less punitive approach to performance improvement, according to Doctors Without Borders, the international medical humanitarian organization that has been assisting U.S. nursing homes with their response to COVID-19. The organization recently conducted in-person infection prevention and control trainings and provided technical support and wellness sessions to staff and residents in over 50 Michigan nursing homes and adult care facilities, and now is doing the same in Texas.
Doctors Without Borders has observed that long-term care facility staff face a dual burden: “anxiety and grief in their day-to-day reality, having lost colleagues and residents to COVID-19, while simultaneously enduring stigma in their sector.” While Doctors Without Borders recognizes that regulation and oversight play an important role in protecting residents and staff of long-term care facilities, it says that development of “a more collaborative oversight process with on-site training and support that is constructive and non-judgmental” is recommended.
The organization’s suggested approach is far different from the current reality. In addition to the grave care-related difficulties nursing homes must grapple with in coping with the pandemic, there are legal land mines looming. A few are outlined below.
DOJ Initiative/Substandard Quality of Care Enforcement Actions
Nursing homes are subject to renewed False Claims Act civil and criminal liability allegations relating to care-related matters. In early March 2020, pre-COVID, the Department of Justice announced a National Nursing Home Initiative to investigate and bring enforcement actions against nursing homes and professional staff that provide “grossly substandard care” to facility residents. But rather than table this effort in the face of the daunting COVID-related hurdles that nursing homes confront, it appears DOJ already is pursuing investigations into nursing home deaths related to COVID-19, likely for the purpose of aiding DOJ in alleging inadequate nursing home responses to the pandemic. Unsympathetic media coverage of the very difficult circumstances in nursing homes as COVID bore down without warning has not helped the plight of these care providers. False Claims Act violations can result in civil and criminal penalties that include the possibility of monetary penalties of three times the amount of actual damages. Making the situation worse, the federal government has the tools to point the liability finger at facility owners, officers, directors and senior managers, as well as the entity holding the license.
Sanctions as a Result of Strike Team Intervention
On July 22, 2020, the Centers for Medicare and Medicaid (CMS) announced that newly-formed Task Force Strike Teams of clinicians and public health service officials would be deployed to nursing homes in 6 states to provide support in combatting COVID-19. The stated goal was to determine what immediate actions were necessary to reduce COVID-19 spread and risk, and to better understand what resources were needed to ensure resident health and safety. Yet, Duane Morris attorneys know of instances where, after Strike Team intervention, the facility was socked with an Immediate Jeopardy finding, the most severe category of inspection sanction and one that can carry six-figure penalties.
Provider Relief Funds/Audit and False Claims Risk
CARES Act Provider Relief Fund monies have provided desperately needed financial assistance to nursing homes and others and, in the second round of distributions, to assisted living providers. But as nursing homes know, receipt of federal money does not come free of strings. Relief Fund grants may be used only for healthcare-related expenses attributable to coronavirus and lost revenues attributable to coronavirus, as defined in the legislation. These requirements are not particularly straightforward and easy to understand. Nonetheless, providers are subject to federal False Claims Act liability for inappropriate use of funds.
HHS has stated that it reserves the right to audit Relief Fund recipients. Many in the long-term care arena have no doubt that such audits will be the norm. The Department of Health and Human Services Office of Inspector General already has taken steps to address the appropriateness of Relief Fund awards. Notwithstanding the enormous amount of effort it takes to provide a safe environment for facility residents and staff in an unprecedented pandemic, it is important for providers to understand the legal limitations on use of Relief Fund monies. Having adequate documentation to show how the funds were used will be important. This may be no small task in a healthcare environment where new developments are frequent and where continual vigilance is needed to provide quality services. But such protective efforts are needed to help avoid audit liability in a harsh enforcement climate.
It’s not a pretty picture for an industry segment whose services are needed by those in our country who are among the most vulnerable. Continually-changing resident-care considerations, accompanied by a host of new standards and rules that are sometimes not clear-cut, require nursing homes to be nimble. As always, effective juggling and a close eye on both care matters and regulatory requirements will be important going forward.