What’s Next? What to Expect in Post COVID-19 Government Oversight and Enforcement Actions for Long Term Care and Skilled Nursing Facilities.

As the nation reels from the heartbreaking COVID-19 pandemic, scrutiny of Skilled Nursing Facilities and Long-Term Care facilities is all but certain to continue. Industry leaders and recent data suggests providers anticipate enhanced oversight from Congress, GAO and OIG, as well as HHS and CMS.  They recommend preparing now for Congress to legislate with respect to quality of care and reporting, and prepare for stricter regulation and guidance, more frequent surveys, and higher and more frequent CMPs and other enforcement remedies.

Infection Control

In March 2020, the federal government announced a change in their focus with surveys by turning to concentrating on compliance with the Centers for Medicare & Medicaid Services’ (CMS) infection control policies and to suspend all non-emergency survey work, with a focus on areas of concern regarding the spread of COVID-19. As a result of the announcement, infection control came under the regulatory microscope, and it showed in the citations of non-compliance with federal regulations, or F-tags, that nursing homes received in 2020.

In 2020 alone, there were about 61,000 surveys conducted focusing on infection control that resulted in facilities being cited with an “F tag” (F880) – presence of an infection and control within the facility – more than 11,500 times.  This represented a seven percent (7%) increase from the previous two years. This is an alarming finding as an F880 tag subjects the facility to immediate jeopardy of losing their certification and/or being levied with heavy civil monetary penalties.

As regulators begin to return to in person facility surveys, it is believed that it will result in more infection control citations to facilities. State agencies are still directed to survey twenty percent (20%) of nursing homes on infection control focused surveys in one fiscal year.  Although most facilities are understandably focused on COVID-19, facility operators should be aware that other factors can also jeopardize the safety of the facility patients.  

The CMS has provided clear guidance that the infection control focus survey should be a stand-alone survey not associated with recertification. Naturally this means that more facilities are in the pool to be surveyed in one fiscal than may have been the case in the past.  States are getting further support with conducting the surveys as they were awarded $397 million in federal aid to conduct these specific surveys in nursing homes. The federal money is earmarked for infection control surveys and can be recouped if the surveys are not conducted. This increased oversight in the face of facilities trying to recover from the aftermath of the pandemic is a recipe for disaster.

Many facility owners and operators understand the upward trend in enforcement actions for infection control is a result of a larger scheme to scrutinize long term care and skilled nursing facilities in the wake of COVID. Enforcement actions can, and will likely, come in various forms.  Even worse is the fact that some facilities could be subjected to multiple enforcement actions the same time. As the industry continues to lobby for government assistance to provide the standard of care expected and meet the evolving safety precautions, government agencies are actively searching for wrongdoing on the part of facilities.

 

Recent Enforcement Action

For example, in May 2021, SavaSeniorCare LLC and related entities (“Sava”) agreed to pay $11.2 million, plus additional amounts if certain financial contingencies occur. This settlement was to resolves allegations that between October 2008 and September 2012, Sava knowingly submitted false claims to Medicaid for coinsurance amounts for rehabilitation therapy services for beneficiaries eligible for both Medicare and Medicaid and for whom Sava also allegedly submitted or caused the submission of false claims to Medicare for those services. In addition, this settlement resolved allegations that between January 2008 and December 2018, Sava knowingly submitted false claims for payment to Medicare and Medicaid for grossly and materially substandard and/or worthless skilled nursing services. The government alleged that some of the nursing services provided by Sava failed to meet federal standards of care and federal statutory and regulatory requirements, including failing to have sufficient staffing in certain facilities to meet certain residents’ needs. The government also alleged that in certain skilled nursing facilities, Sava failed to follow appropriate pressure ulcer protocols and appropriate falls protocols and failed to appropriately administer medications to some of the residents.

The Attorney General assigned to the case made clear statements regarding the focus of enforcement actions by stating, “[n]ursing home operators will be held accountable when they engage in fraudulent schemes and put their own financial gain ahead of the needs of their vulnerable residents.” The AG added that “[t]o ensure the integrity of our public health care programs, the department will pursue operators who bill Medicare and Medicaid for unnecessary or grossly substandard services and who fail to provide adequate care.” Thus, notwithstanding the criminal activity, the government has taken a vested interest in investigating the overall quality of care provided by Long Term Care and Skilled Nursing Facilities.

Conclusion

Facilities are not at the mercy of state and federal agencies when facing the likelihood of being surveyed or investigated.  The best things a facility can do is start to prepare early and self-audit your facility as if you were preparing to undergo a survey. Review past and current records to ensure compliance with medical necessity and billing requirements.  Facilities operators should do a self-audit/survey of its operations, from care provided to staffing and infection control as once a facility is inspected, everything is fair game to the investigators.  The worst thing a facility can do is wait until they are given notice of a pending investigation or survey as there is no time to prepare for it or enact any corrective action.

How Frier Levitt Can Help

If your nursing home or long-term care facility has concerns regarding compliance or is approached about an investigation or enforcement action, do not panic.  Contact Frier Levitt so we may assist you through these complicated and unprecedented times.

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