Skilled nursing facilities have faced unprecedented challenges since the outbreak of the coronavirus pandemic. Individuals with many high-risk characteristics are the typical patients of these facilities. Add to this, necessarily close proximity of these patients, scarcity of personal protective equipment and shortage of testing common across the healthcare industry, and you have a perfect storm of increased risk with limited options for mitigation.
Unsurprisingly, infections in nursing homes surged during the early weeks of the pandemic, with some estimates indicating as many as 40% of nationwide COVID-19 deaths had occurred in these facilities as of early July. Such numbers have understandably caught the attention of multiple enforcement agencies and even the United States Congress. Nursing home operators are and will remain under intense public scrutiny and be an enforcement priority in the coming months. Preparing now may allow operators to avoid or mitigate government sanctions and public opprobrium as enforcement authorities continue their work in this area.
Nursing home operators are well familiar with government enforcement and public scrutiny. The Centers for Medicare and Medicaid Services (CMS) and state survey agencies partner for a robust system of inspections and enforcement, resulting in monetary penalties, loss of participation in Medicare or even loss of licenses for facilities with repeated or severe violations of regulations or protocols. CMS also maintains a wealth of data regarding nursing home violations, staffing levels and other indicators of nursing home performance.
Much government enforcement in the nursing home space occurs at the administrative level with fines and penalties for regulatory noncompliance. There have been a few civil enforcement actions recouping Medicare funds for allegations that nursing facilities artificially inflated daily payment through misrepresenting therapy frequency and intensity. Finally, in the most egregious of cases, there have been a few criminal prosecutions for care so sub-standard that it amounted to patient neglect, completely worthless services and significant patient harm. However, such cases have been relatively few and far between, and the winds of enforcement are presently shifting.
On March 3, Attorney General Barr announced the establishment of the National Nursing Home Initiative to “enhance civil and criminal efforts to pursue nursing homes that provide grossly substandard care to their residents.” Barr noted that the Department of Justice had already initiated investigations into approximately 30 individual nursing facilities in nine states as part of the effort. Barr also provided insight into what factors would bring a facility or operator into the government’s crosshairs, including inadequate nursing staff and failure to adhere to hygiene and infection control protocols.
The Office of Inspector General for the Department of Health and Human Service also lent its voice to this initiative stating, “Creating this initiative sends a message to those in charge of caring for these beneficiaries that grossly substandard care will not be tolerated.” This publicly stated priority by the United States government means prosecutors in Washington, D.C., and in U.S. Attorney’s offices throughout the country will be assigned to investigate and develop cases in this field.
Only days after DOJ’s announcement of this initiative, the coronavirus pandemic began taking a massive toll on nursing home patients. Focus has quickly turned to perceptions that nursing homes failed to provide adequate staffing and infection controls to stem the tide of the pandemic in their facilities. A May 20 Government Accountability Office study sent to Sen. Ron Wyden (D-OR), the ranking member of the Senate Finance Committee, found “widespread and persistent” infection control deficiencies in nursing homes prior to the coronavirus pandemic.
Shortly thereafter, on June 16, 2020, the House Select Subcommittee on the Coronavirus Pandemic sent letters to five major nursing home operators seeking information about “deaths of men and women in your company’s nursing homes during the coronavirus outbreak, the conditions that may have contributed to these deaths, and any steps taken to protect residents and workers from further tragedy.” The letter requests reams of information regarding the nursing homes and their operators, including seemingly irrelevant information about executive compensation and other financial information. Foreshadowing the direction of the committee’s inquiry, the letter recites multiple allegations regarding failure to comply with infection control protocols and failure to maintain adequate staffing.
While Congress’s investigations may occur in the uncomfortable light of day, DOJ’s investigation will develop more ominously in the secrecy of the government’s criminal and civil enforcement apparatus. The government will use pre-existing data compiled by CMS and state survey agencies, perhaps cross-referenced with recently obtained data regarding coronavirus deaths in facilities, to develop target lists for the various prosecutors around the country.
Government enforcement, however, often takes time. Nursing home operators would be well served to take that time to prepare a response plan should the government come knocking. Effectively presenting the nursing homes’ perspective is key to shaping the enforcement narrative from the beginning of an investigation. To that attend companies should:
- Be sure staff and on-site administrators are prepared for no-notice inspections, subpoenas, or even search warrants.
- Conduct internal evaluations of the company’s risk profile, including number and severity of past regulatory violations, to determine if enforcement is likely and get a head start in either cooperating with an eventual investigation or defending the company’s practices.
- Take corrective action for known deficiencies. As a former prosecutor, I can state that corrective action taken ahead of government enforcement goes a long way in convincing prosecutors and investigators that a company is operating in good faith.
- Document efforts at regulatory compliance, corrective actions, and all reasonable efforts to protect residents and employees in the midst of unprecedented conditions.
- Finally, in the event the government acts, the company should retain experienced counsel to guide it through the investigative process and assist in its defense.
It is clear that Congress and government enforcement agencies will be scrutinizing the skilled nursing facilities’ responses to the many novel challenges the pandemic has presented. Actions taken now to prepare for inevitable investigations can help nursing home providers effectively present their perspective and weather the coming enforcement storm.
Jon Ferry is a partner in the Government Enforcement and Investigations Practice Group at Bradley Arant Boult Cummings LLP. He is a former federal prosecutor who has handled many healthcare investigations including investigations into skilled nursing and assisted living facilities.