Lessons Learned from COVID–19: Enforcement Trends in Long-Term Care Facilities

The pandemic exposed, among other things, some of the shortcomings facing long-term care facilities. Being well-aware of the persistent issues long-term care facilities have with resources, the federal government nevertheless pushed for patient-based care approach models.

The Centers for Medicare & Medicaid Services (“CMS”) in collaboration with the Center for Disease Control (“CDC”) issued various guidances during the pandemic to protect nursing home residents.  The CMS and CDC guidance emphasized the importance of adhering to the core principles for COVID infection control of maintaining physical distance. 

The spirit behind issuing such guidance was to alleviate some of the psychological, emotional, and physical toll that prolonged isolation and separation from family had on nursing home residents, and their families.  It is well documented that the facilities’ population is the most vulnerable to the myriad of negative effects brought by the COVID pandemic.  

The guidance and regulations enacted by the CMS and CDC required facilities to have the proper resources to assist in implementing safety protocols and containing any outbreaks in a facility.  While the CMS and CDC sought to protect residents, regulators have been reviewing data gathered during the pandemic to formulate future enforcement efforts.

Trends seem to suggest that regulatory enforcement will still primarily concentrate on source control measures and appropriate protective personal equipment. Nevertheless, facilities should not neglect the Department of Health and Human Services Office of the Inspector General’s (“OIG”) scrutiny of facilities staffing levels and recommendation to Center for Medicare and Medicaid Services to enhance their enforcement of required staffing levels.  OIG’s review of 2020 CMS surveys revealed that inadequate staffing and personal protective equipment contributed to the difficulties experienced when responding to the pandemic.

Further, facilities should be cognizant of the risk of criminal investigations for failure to reasonably prevent outbreaks. Though criminal prosecution for COVID-19 outbreaks is uncommon, it may become more common as the pandemic continues and public health guidance becomes increasingly consistent and more widely understood. Criminal investigations into COVID-19 outbreaks may be spurred by information about facility outbreaks brought to or obtained by law enforcement from several different sources such as employees, surveys, site visits, or facility resident’s visitors.

Even as national infection rates dwindle and vaccination rates increase, long-term and skilled nursing facilities should remain vigilant of their exposure to enforcement actions. Facilities should remain apprised of current applicable federal and state laws or regulatory guidance, be prepared to respond to and defend any audit, and in the event of an enforcement action by a government agency, retain experienced counsel to guide you through the process and prepare a robust defense.

How Frier Levitt Can Help

If your nursing home or long-term care facility has concerns regarding the implementation of a COVID-19 compliance policy or is approached by government agents or payors as part of an investigation or survey, do not panic.  Contact Frier Levitt so we may assist you through these complicated and unprecedented times.