Providers shouldn’t assume that federal authorities will slow down enforcement efforts in the aftermath of the coronavirus pandemic. In fact, they should expect authorities to “step up” enforcement efforts — and that includes its new National Nursing Home Initiative, according to one legal expert.
“The two most recent examples are the financial crisis of 2008 and then the BP oil spill in 2010,” Brandon Essig, a partner with Lightfoot, Franklin & White LLC, told McKnight’s.
“Both of those resulted in a multitude of significant [Department of Justice] enforcement actions, criminally and civilly. The coronavirus will be no different and federal prosecutors will be eager to quickly demonstrate to the public that they are responding.”
Essig explained that the pandemic poses a “unique and significant threat” to nursing homes because of its susceptible population, which will make them “natural targets for investigations.”
The DOJ’s National Nursing Home Initiative announced last month targets the nation’s “worst nursing homes” particularly in regards to care quality. The best way providers, if targeted, can defend themselves against legal action is by having good operating procedures that the facility can demonstrate meet the standard of care, according to Essig. He added that the most likely triggers of fraud or abuse investigations would be suspect billing practices and reported instances of patient harm.
“As it relates to potentially fraudulent conduct, It’s important to ensure that the facility’s billing practices are absolutely accurate, e.g. how treatment is coded and billed,” Essig explained.
“For issues related to the physical well-being of the patients, I think the focus should be on ensuring that patient care meets the standard of care and that any mistakes, which are inevitable, are addressed and corrected,” he added.
Providers who are targeted under the initiative would likely be faced with large monetary penalties or see affiliated individuals being prosecuted for any crimes, he explained. Other ramifications could include facilities being barred from receiving payments from federal healthcare programs, such as Medicare and Medicaid, or being subject to a third-party monitor as part of a settlement, meaning the government could run the facility for a period of time.
Essig added that the most important action providers can take right now is to focus on their operations and begin conducting self-assessments.
“Also, I would recommend that all nursing homes implement policies and procedures to deal with the next iteration of a virus like COVID-19, or perhaps the next wave of this virus,” Essig said.
“This one caught everyone by surprise, but those impacted will be expected to have a plan next time. This is particularly true for entities like nursing homes where the risk from this type of disease outbreak is so pronounced,” he added.