Defending Against COVID-19 Liability Claims<p>As if experiencing the unspeakable tragedy of the unstoppable spread of COVID-19 among nursing center residents was not punishment enough, some of these same centers are now facing the realities of litigation arising from these unfortunate events. Despite the uncontrollable nature of the virus across all elements of society, the erroneous direction from the Centers for Disease Control and Prevention (CDC) as to how the virus was spread and the profound shortages of personal protective equipment (PPE), trial lawyers seem to have convinced grieving families that nursing centers and their caregivers were somehow at fault for the spread of COVID-19. With liability insurers creatively inserting COVID-19 exclusions into renewal policies, there could be no greater vulnerability than facing litigation without a backstop.<br></p><p>What is to be done now? Simply put, nursing centers need to fight these cases with a defense that features all that they did to protect residents and one another during these darkest hours. This account includes what they were being told at the time by CDC “experts” about the spread of the virus as well as how they used the scarce PPE in their possession to protect residents and staff. These centers should also take advantage of any and all civil liability protections available under state and federal law.</p><h3>State Protections</h3><p>Many states have recognized the unfairness of leaving the profession (and other health care sectors) exposed to significant litigation resulting from the relentless spread of a pandemic outside of their control and, instead, adopted reasonable and balanced protections arising from such unprecedented circumstances. Some states inexplicably pulled back those protections, and some never extended them at all.<br></p><p>Those protections were never absolute in nature. Rather, they recognized that only intentional, reckless, or grossly negligent conduct would suffice for liability to attach. Mere negligence was not enough. This effort reflected a reasoned approach that balanced the interests of consumers harmed by the pandemic with those of the health care provider community that did all that they could under the circumstances to combat the virus.</p><h3>The PREP Act</h3><p>Nursing centers in states with these liability protections are clearly in the best position to defend themselves from civil actions based upon COVID-19 infections. Those without these protections will need to increasingly rely on the protections of the Public Readiness and Emergency Preparedness Act (PREP Act), a law passed by Congress and signed into law in 2012. <br></p><p>This Act authorizes the Secretary of the Department of Health and Human Services (HHS) to issue a PREP Act declaration. Such a declaration provides immunity for civil liability (except in the instance of willful misconduct) regarding claims&#58;<br>(1) Of losses caused, arising out of, relating to, or resulting from the administration or use of countermeasures to diseases, threats, and conditions;<br>(2) Determined by HHS to constitute a present, or credible risk of a future public health emergency; and<br>(3) Brought against persons or entities involved in the development, manufacturing, testing, distribution, administration, and use of such countermeasures.<br></p><p>The PREP Act balances consumer rights to pursue claims for injuries related to the use of countermeasures employed by covered persons and covered entities during a public health emergency such as a pandemic. While these countermeasures can be as sophisticated as the development of protective vaccines or monoclonal antibodies, they also can be as basic as testing and PPE. The organizations receiving protection from such countermeasures can be as large as an international pharmaceutical company and as small as an independently operated nursing center.</p><h3>PREP Act Amendments</h3><p>HHS issued a PREP Act declaration based upon the COVID-19 pandemic in March 2020. This declaration was followed by a handful of amendments to that declaration in 2020 reflecting the dynamics and nuances of the COVID-19 pandemic and has continued to issue new amendments in 2021 and 2022. These amendments were accompanied at times with opinions issued by the Justice Department as to legal determinations related to those amendments.<br></p><p>One of the most important amendments to the declaration involved the situation where a countermeasure in scarce supply was selectively deployed by a covered entity to address the most pressing circumstances. That amendment expressly provided that the selective use of a scarce countermeasure for some patients and non-use for others implicated the protections of the PREP Act just as much as when the countermeasures were fully utilized.</p><h3>Two Directions for Claims</h3><p>Under the PREP Act, claims for personal injuries or death related to the use (or non-use) of countermeasures are channeled into one of two directions. Claims alleging conduct rising to the level of “willful misconduct” are required to be filed and adjudicated in the United States District Court for the District of Columbia. All other claims would be subject to resolution through an administrative claims process. As a result, any claims falling under the protections of the PREP Act are to be processed in this fashion. As such, the PREP Act is designed to “completely preempt” all claims falling within its coverage.<br></p><p>Of course, trial lawyers have not honored the provisions of the PREP Act. Instead, they have proceeded to file actions in state courts across the United States regardless of whether they relate to countermeasures or allege willful misconduct. Many providers have sought to have those cases “removed” (i.e., transferred) to the federal courts in order for these cases to be handled consistent with the PREP Act. Not surprisingly, the trial lawyers have resisted these efforts and sought to “remand” (i.e., send back) these cases to state courts.<br></p><p>However, the federal courts deciding whether they should exercise jurisdiction over these cases have largely found that state courts should decide them instead. To date, three different Circuit Courts of Appeal have all determined that federal courts should not decide these cases. However, each of those courts has nevertheless recognized that the PREP Act may well preempt some or all of the claims but that is for state courts to decide.<br></p><p>These decisions are difficult to accept as the entire purpose of the PREP Act was for national uniformity of the handling of claims under its coverage. This purpose will not be fulfilled by hundreds, if not thousands, of state court judges rendering decisions regarding the application of this federal law. That cannot be what Congress expected when it passed the PREP Act.</p><h3>How to Defend</h3><p>For now, nursing centers across the nation are defending these cases along with using any state-based civil liability protections and the PREP Act. However, these are not the only tools that can be used in the defense of these facilities. Liability is measured by applying performance against a “standard of care” that was in place at the time of the events in question for determination as to whether the injuries were “caused” by the alleged conduct. These requirements will be difficult to meet for those suing nursing centers for COVID-19 infections. However, it is essential that defense counsel retain knowledgeable and effective experts from the epidemiological and medical communities. Nursing centers will have strong defenses to these cases if they prepare now. AHCA/NCAL and its Legal Committee have been engaged on the likely civil liability ramifications of the COVID-19 pandemic throughout this difficult period. It has partnered with State Affiliates in reviewing cases filed in numerous jurisdictions and co-authored two amicus briefs with the California Affiliate in two PREP Act cases in the 9th Circuit Court of Appeals. AHCA/NCAL will continue to support members experiencing the burdens of unjustified COVID-19 litigation.<br></p><p><img src="/Monthly-Issue/2022/JuneJuly/PublishingImages/060722_MarkReagan_legal.jpg" alt="Mark Reagan" class="ms-rtePosition-2" style="margin&#58;5px;width&#58;125px;height&#58;143px;" />At some point, it is fair to expect that the scope of the PREP Act may well come before the United States Supreme Court. If and when that occurs, AHCA/NCAL will be there to express the voice of the profession. <br><br><em>Mark Reagan, J.D., is the managing shareholder of Hooper, Lundy &amp; Bookman. He counsels trade associations, including serving as the General Counsel for the California Association of Health Facilities and the Massachusetts Senior Care Association.​</em></p>2022-06-01T04:00:00Z<img alt="" src="/Monthly-Issue/2022/JuneJuly/PublishingImages/060722_legal.jpg" style="BORDER&#58;0px solid;" />Legal;COVID-19MarK ReaganWith liability insurers creatively inserting COVID-19 exclusions into renewal policies, there could be no greater vulnerability than facing litigation without a backstop.
Conducting Thorough Investigations<p><img src="/Monthly-Issue/2021/June/PublishingImages/DeniseWinzeler.jpg" alt="Denise Winzeler" class="ms-rtePosition-1" style="margin&#58;5px;width&#58;120px;height&#58;156px;" />​When a resident at facility A sustained a bruise of unknown origin on his right forearm, the director of nursing services (DNS) completed what she felt was a thorough investigation of the injury. However, during a subsequent facility visit, surveyors did not find evidence the DNS adequately investigated the incident and cited the facility for inadequate investigation.<br></p><p>Does this scenario sound familiar? Inadequately investigating an incident can trigger repercussions, including citations for noncompliance, inadvertently supporting plaintiffs’ legal claims, and, above all, negative effects on the resident’s well-being.<br></p><p>Thoroughly investigating all allegations and incidents is vital to gain facts, prevent recurrence, and maintain resident safety. Facility leaders should implement these tips to ensure their investigations are detailed and thorough.</p><h2>Organization is Key </h2><p>Merriam-Webster defines investigation as a “study by close examination and systematic inquiry.” To inquire systematically and examine all factors thoroughly, organization is key. Facility leaders must plan and prioritize, recognizing that some parts of an investigation will require more time than others.<br></p><p>Often, facility leaders conduct multiple investigations simultaneously, because they know that all allegations and incidents should be reviewed or investigated, not just those confirmed or involving a crime.<br></p><p>An organized approach enables the thorough review necessary for regulatory requirements, even when conducting multiple investigations. The 4-step process below can help facility leadership remain organized so they can conduct thorough investigations.<br></p><h3>Step 1&#58; Determine the purpose for the investigation. </h3><p>The first step of the process is determining the purpose(s) of the investigation and answering, “Why is an investigation being conducted?” Articulating purpose helps guide the investigator to avenues the investigative process should explore. <br></p><p>For example, a bruise of unknown origin investigation may include the following purposes&#58;<br></p><ul><li>To determine why the bruise occurred</li><li>To determine if abuse occurred</li><li>If abuse occurred, to identify the perpetrator for disciplinary action</li><li>To identify other residents who may be similarly affected </li><li>To learn why a bruise of unknown origin was not promptly reported per facility policy.</li></ul><p></p><h3>Step 2&#58; Develop a plan for the investigation.</h3><p>First and foremost, facility leadership must ensure the residents involved or affected are safe. Next, facility leaders should develop an investigation plan by asking&#58;<br></p><ul><li>Were all required entities notified, such as the department of health, local authorities, boards, etc.? </li><li>Who will lead this investigation?</li><li>Will anyone else be needed to assist? </li><li>What evidence should be reviewed? </li><li>Who should be interviewed? </li><li>Who will conduct the interviews? </li><li>Are staff involved, and does that involvement require temporary suspension pending the investigation’s findings? </li></ul><p></p><h3>Step 3&#58; Review tangible evidence and conduct interviews.</h3><p>Relevant tangible evidence may include in-house documents, like medical records, billing statements, staffing records, personnel files, schedules, or policies and procedures.<br>Other documents might come from outside sources, such as hospital or emergency medical service records or police reports. Evidence like camera footage, incident reports, or digital call- light printouts may also be needed to help the investigator determine what happened and the root cause(s).<br></p><p>Tangible evidence to review for a bruise of unknown origin may include&#58;<br></p><ul><li>Resident A’s medical record, including diagnosis, recent diagnostics, nurses’ notes, </li><li>and medication and treatment sheets</li><li>Assessment and observations of </li><li>Resident A</li><li>Incident report</li><li>Visitor log</li><li>Staffing assignments and staff schedule</li><li>Equipment used to aid the resident to ensure it is in working order and does not need repairs</li><li>Assessments and medical records of residents in similar situations, often referred to as “like residents,” to determine if other residents also have similar injuries.</li></ul><p></p><h2>Conduct Interviews</h2><p>Although it may not always be possible, try having two interviewers in each interview, one to ask the questions and another to write the statement or note-take.<br></p><p>It is best practice to have at least one interviewer present for all interviews. This is important for two reasons. First is consistency, so that all interviewees are asked the questions the same way. Second is the need to assess witness credibility, especially if it is one person’s word against another. It may be necessary to interview some people multiple times, especially if there are contradictions. <br></p><p>Before the start of the interview process, the interviewer should have standard questions to ask the interviewees, such as “Have you worked on A wing in the last month?” or “Have you ever cared for Resident A?” After easing into those questions, the interviewer can probe the situation in more detail.<br></p><p>Any residents involved in the incident should be interviewed unless they are semi-comatose or comatose. An investigator might erroneously not interview residents with impaired cognition, believing the impairment prevents the resident from giving any pertinent information. <br></p><p>Generally, this is mistaken. When interviewing residents, the interviewer is trying to determine if the resident perceives they have experienced harm, as well as details that help establish timelines and may identify root causes. Those with cognitive impairment can still contribute their perspective.<br></p><p>The interviewer may wish to consult with corporate staff or legal counsel before interviewing family members and visitors to receive any special instructions on how to conduct the interviews—such as who should conduct it or if the interview should occur with family members separately or as a group. <br></p><p>Each interview should yield a written statement. For people who are interviewed multiple times, prepare a separate statement for each interview and clearly mark each with the date and time. If there are contradictions in the statements, documenting this way will help to show discrepancies.<br></p><h2>Interview More People</h2><p>A common mistake investigators make is not interviewing enough people. Leadership must ensure the interview process is exhaustive and includes all who may be involved, including those who may have witnessed or been affected by the incident. For example, in the bruise of unknown origin scenario, leadership may wish to interview&#58;<br></p><ul><li>Resident A</li><li>Resident A’s roommate</li><li>Like residents</li><li>Staff and volunteers with access to Resident A who worked during the two-week period when the bruise is believed to have occurred</li><li>Visitors who had access to Resident A in the same time period.</li></ul><p></p><h3>Step 4&#58; Conclude and follow up.</h3><p>After reviewing the evidence collected and conducting interviews, the investigator conducts a root-cause analysis. Once the investigator makes a reasonable determination of cause, the facility must follow up to close the investigation. <br></p><p>Follow-up may include completing mandatory reports, such as the facility-reported incident (FRI) sent to the department of health, education needs, disciplinary actions, or policy and process changes.<br></p><p>The nursing home administrator or designee may wish to again consult corporate staff or legal counsel before conversations with family members, especially if the information being relayed is negative. Facility leaders should also inform the medical director of the investigation’s outcome. Then, update the medical record and provide any reimbursement, as necessary, in cases of theft or misappropriation.<br><br>Conducting a thorough investigation ensures no details are missed and that the voices of all involved in the allegation or incident are heard. It also mitigates risk of survey issues, litigation, and recurring safety issues. Facility leaders should prioritize thorough investigations and reassess processes now to avoid the possible repercussions of inaction or inadequacy.&#160; <br><br><strong>Denise Winzeler, BSN, RN, LNHA, DNS-CT, QCP,</strong> <em>is curriculum development specialist for the American Association of Post-Acute Care Nursing (AAPACN). She can be reached at <a href="mailto&#58;dwinzeler@aapacn.org" target="_blank">dwinzeler@aapacn.org</a>.<br></em></p><p><em><br></em></p><p style="text-align&#58;center;"><em><a href="http&#58;//aapacn.org/" target="_blank"><img src="/SiteCollectionImages/logos/AAPACN.jpg" alt="AAPACN " style="margin&#58;5px;width&#58;235px;height&#58;71px;" /></a><br></em></p><p><em><br></em></p><p><em>References<br></em></p><ul><li><em><a href="https&#58;//www.cec.health.nsw.gov.au/__data/assets/pdf_file/0018/259011/what_is_a_patient_safety_incident.pdf" target="_blank">Clinical Commission (Australia). (2014). Clinical excellence commission open disclosure handbook&#58; What is a patient safety incident? </a></em></li><li><em><a href="https&#58;//www.merriam-webster.com/dictionary/investigate" target="_blank">Merriam-Webster. Merriam-Webster.com dictionary. Retrieved March 23, 2021.</a><br></em></li><li><em><a href="https&#58;//www.compliance.com/resources/26-tips-experts-conducting-witness-interviews/" target="_blank">Strategic Management Services LLC. (2015, January). 26 Tips from experts on conducting witness interviews. Compliance.com. </a></em></li></ul>2021-06-01T04:00:00Z<img alt="" src="/Monthly-Issue/2021/June/PublishingImages/0621_Caregiving.jpg" style="BORDER&#58;0px solid;" />Caregiving;LegalDenise Winzeler, RNMerriam-Webster defines investigation as a “study by close examination and systematic inquiry.” To inquire systematically and examine all factors thoroughly, organization is key.
Watch Out for Wage-Hour Minefields<div>​</div> <div> In the struggle to attract and keep good employees in today’s competitive job market, many long term care facilities offer creative incentive packages. Employers that do so without fully understanding wage and hour implications put themselves at risk for devastating liability. Federal law makes it easy for employees to pursue claims as a group and provides successful plaintiffs automatic doubling of back pay. Simple mistakes can create liability in excess of $100,000, and, occasionally, over $1 million. <br></div> <div><br></div> <div>As staffing challenges grow, maintaining appropriate levels is more important and complex than ever. The Centers for Medicare &amp; Medicaid Services’ (CMS’) Five-Star Quality Rating System is based partly on nursing staff per resident. In 2019, CMS updated staffing ratios and added an automatic downgrade to one star for facilities that report at least four days per quarter with no registered nurse on site. Many states also impose stringent staffing ratios. <br></div> <div><br></div> <div>Employers that rely on payroll companies for wage calculations retain responsibility. Vendors can—and do—make errors, especially when employers don’t understand the overtime implications on incentives and bonuses.</div> <div><br></div> <div>Following are some issues and potential pitfalls that long term care employers and their payroll and human resources departments should watch for.</div> <h2 class="ms-rteElement-H2">Fair Labor Rules</h2> <div>The general rule under the Fair Labor Standards Act says employers must pay overtime to non-exempt workers for all hours over 40 in a work week at not less than one and one-half times the employee’s regular rate, as spelled out in Title 29 of the U.S. Code of Federal Regulations (CFR). That “regular rate” is not necessarily the employee’s base rate. <br></div> <div><br></div> <div>To calculate the regular rate, divide total renumeration in a work week by the total hours worked (including overtime hours). Do not include dollars or hours paid but not worked, such as vacation.&#160;</div> <div><ul><li>Shift Differentials/Incentives. Generally, shift differentials must be included in the employee’s regular rate of pay for determining overtime. The same is true for incentives offered to fill open shifts or work certain days.</li> <li>Payroll Pointer. Premium pay for working on a “special day” (holiday, weekend, or scheduled day off) that is not less than the employee’s overtime rate can be excluded from the regular rate and counted toward the employer’s overtime obligation in some circumstances, according to the CFR. Given the complexity of this determination, employers should consult with legal counsel.</li> <li>Payroll Pointer. Employers can limit the need for some complex rate calculations by carefully structuring bonuses to be based on a percentage of total earnings before the employee provides the services. In that case, per federal code, the employer does not need to recalculate overtime on the bonus payment.</li></ul></div> <div>For example, the employer could offer a retention bonus of 15 percent of the employee’s annual straight-time and overtime earnings. Because the percentage applies to the employee’s overtime earnings, no further calculation is needed. <br></div> <div><ul><li>Multiple Rates. When different rates are paid for two different jobs, the default rule is to pay overtime based on the weighted average (that is, total compensation divided by total hours worked).</li> <li>Discretionary Bonuses. Payments made to employees without obligation or prior promises may be excluded from the regular rate and not subject to overtime calculations. Discretionary bonuses are uncommon; think twice before excluding any bonus from the regular rate.</li> <li>Nondiscretionary Bonuses. Most nondiscretionary bonuses must be included in the regular rate for the weeks when the bonus was earned. Referral bonuses do not need to be included, according to U.S. Department of Labor guidelines, if “1.) participation is strictly voluntary; 2.) recruitment efforts do not involve significant time; and 3.) the activity is limited to after-hours solicitation done among friends, relatives, neighbors, and acquaintances.”</li></ul></div> <div><img src="/Monthly-Issue/2020/February/PublishingImages/legal_staff-chart.jpg" class="ms-rteImage-1" alt="" style="margin&#58;5px;" /><br><br>A bonus is considered nondiscretionary under federal regulations if the employer has promised, agreed, or even implied that it would pay it. Examples include attendance, production, quality, and retention bonuses. The employer must identify each work week during which the employee earned overtime and calculate the additional overtime due.</div> <div><br></div> <h2 class="ms-rteElement-H2">Adding it Up</h2> <div>Fictional employee, Pat, works for a center as both a certified nurse assistant (CNA) and as a certified medical assistant (CMA). Pat earns $13.00/hour as a CNA and $15.00/hour as a CMA. All nursing department employees receive a $1.00 per hour shift differential for hours between 2 p.m. and 10 p.m. and a “pick-up” premium for filling vacant shifts, which varies based on the urgency of the need. Pat’s schedule for a recent workweek is on the facing page.</div> <div><br></div> <div>Pat also received a $30.50 attendance bonus for this work week. In total, Pat worked 49 hours and earned $808.50 in straight-time wages.&#160;</div> <div><br></div> <div>Pat’s regular rate of pay for overtime calculation purposes is $16.50/hr. ($808.50 divided by 49 hours). This regular rate calculation is where payroll often trips up, failing to include the bonus amount or using one hourly rate instead of the weighted average. Incorrect calculations can result in liability for underpayments, or in the alternative, consistently overpaying employees on top of their costly incentives.</div> <div><br></div> <div>Beware, users of outside payroll companies—many may default to using the hourly rate the employee happens to be working when the overtime hours occur without telling the employer they are doing so. In order to legally use this method instead of the weighted average rate, the employer and employee need an advance agreement, according to 29 CFR. Sec. 778.419. <br></div> <div><br></div> <div>Additionally, since many work weeks end over the weekend (when premium pay is more likely), using that method will base overtime pay on a rate higher than the weighted average. <br></div> <div><br></div> <div>Total compensation can be determined with the formula (40 hours x Regular Rate) + (OT hours x 1.5 x Regular Rate). Here’s how the math works out for Pat in this example&#58; </div> <div>40 hours x $16.50 = $660. </div> <div>9 hours x 1.5 x $16.50 = $222.75</div> <div>Total compensation owed is $882.75. </div> <div>Calculating instead just additional overtime due (Regular Rate x 1.5 x OT hours) and then adding in straight-time wages would reach the same total amount. <br></div> <div><br></div> <div>An easier path? Not so fast&#58; The Labor Department recently proposed revisions and clarifications to the “fluctuating work week” (FWW) method of determining overtime for non-exempt employees who receive bonuses, which allows employer and workers to agree to a weekly base for all hours worked with only additional half-time pay for hours above 40.</div> <div><br></div> <div>While the proposal would extend FWW rules to bonus payments, the new model is not likely to have broad applications in long term care staffing where non-exempt employees generally have set base and variable OT hours. Long term care employers that may need workers to stay late or meet surge needs may find it difficult to convince employees to work an overtime hour for what may feel to them like a half-hour’s pay. </div> <h2 class="ms-rteElement-H2">Getting it Right</h2> <div>These are just a few of the many rules and approaches to properly attract and retain workers through properly calculated bonuses and overtime. There are other compensation arrangemewnts that can alter calculations and allow employers to fully pay and motivate employees while controlling labor costs. There could be state and local regulations, too.</div> <div><br></div> <div>But the headaches of getting it right usually pass with experience, attention to detail, and some help from experts when needed. The pain of getting it wrong while scrambling to keep fully staffed through creative overtime and bonus and incentive packages can last much, much longer. </div> <div>&#160;</div> <div><em>Michaelle L. Baumert is a principal in the Omaha office of Jackson Lewis. She is a seasoned litigator and has extensive experience in human resources counseling with an emphasis on wage and hour issues. She can be reached at Michaelle.Baumert@jacksonlewis.com or&#160;402-827-4270. Catherine A. Cano is an associate in the Omaha office of Jackson Lewis, representing management in all areas of labor and employment law. She can be reached at Catherine.Cano@jacksonlewis.com or 402-391-1991. </em></div>2020-02-01T05:00:00Z<img alt="" src="/Monthly-Issue/2020/February/PublishingImages/legal_t.jpg" style="BORDER&#58;0px solid;" />Legal;WorkforceMichaelle L. Baumert and Catherine A. CanoIn the struggle to attract and keep good employees in today’s competitive job market, many long term care facilities offer creative incentive packages.
Compliance in Patient Care Comes Into Focus<div>​</div> <div> The U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) recently updated its Work Plan to add an additional topic focusing on nursing facilities that receive Medicare and Medicaid reimbursement. </div> <div>&#160;</div> <div>The Work Plan provides a summary of new, revised, and continuing reviews for HHS programs and operations, including Medicare and Medicaid. It describes ongoing audits, evaluations, and specific legal and investigative matters. In addition, within the first four months of 2019, OIG has issued two reports and one data brief regarding nursing facilities. </div> <h2 class="ms-rteElement-H2"> An Opportunity for Review</h2> <div>The release of these reports and the addition to the Work Plan provide an opportunity for nursing facilities to review their own operations and practices while comparing them to the objectives in the Work Plan in order to identify areas for compliance improvement.</div> <div><br></div> <div>OIG conducts investigative activities that involve allegations of fraud, waste, and abuse in all HHS programs. Medicare and Medicaid constitute a significant portion of its work. Areas that OIG can investigate include billing for services not rendered, provision of medically unnecessary and misrepresented services, patient harm, and the solicitation and receipt of kickbacks. <br></div> <div><br></div> <div>In addition to performing investigations, OIG is also involved in facilitating compliance in the health care industry and the exclusion of individuals and entities from participation in Medicare, Medicaid, and other federal health care programs.</div> <h2 class="ms-rteElement-H2">The New Topic</h2> <div>Recently, OIG added a new topic to the Work Plan focusing on post-hospital skilled nursing facility (SNF) care to individuals eligible for Medicare and Medicaid, or dually eligible individuals.</div> <div><br></div> <div>Similar to topics added in the past, OIG noted previous reviews as the basis for the addition. Here, OIG references previous reviews that showed some residents who lived in and received Medicaid-covered nursing facility care were admitted to a hospital, discharged, and then returned to the same facility to receive Medicare-covered post-hospital SNF care.&#160;</div> <div><br></div> <div>OIG found that nursing facility physicians certified that individuals needed skilled care even though the hospital discharged the individual home to a Medicaid facility rather than a SNF. This is concerns the Centers for Medicare &amp; Medicaid Services (CMS) because of a belief that nursing facilities have a financial incentive to increase the level of care since Medicare pays more for SNF care than Medicaid pays for nursing facility care. </div> <h2 class="ms-rteElement-H2">Increased Scrutiny</h2> <div>With this new topic, OIG will be examining the level of care requirements for post-hospital SNF care provided to dually eligible beneficiaries. Specifically, OIG will be determining whether&#58;</div> <ul><li>The SNF level of care was certified by a physician or a physician extender; </li> <li>The condition treated at the SNF was a condition for which the individual received inpatient hospital services or was a condition that arose while the individual was receiving care in a SNF for an eligible stay; </li> <li>Daily skilled care was required; </li> <li>The services delivered were reasonable and necessary for the treatment of an illness or injury; and </li> <li>The Medicare payments made were improper.</li></ul> <div>In one report, OIG determined that CMS improperly paid claims for SNF services when the Medicare three-day inpatient hospital stay rule was not met. OIG attributed those improper payments to several factors, including the failure of hospitals to provide correct inpatient stay information and SNFs reporting erroneous hospital stay information with their claims. </div> <h2 class="ms-rteElement-H2">Addressing the Issues</h2> <div>CMS concurred with several recommendations from OIG to address the issues from this report. </div> <div>The first was to confirm that the Common Working File qualifying inpatient stay edit is enabled during the processing of SNF claims for payment. Also, CMS concurred with OIG’s recommendation for the provision of additional education to hospitals and SNFs about three-day inpatient stay documentation.</div> <div><br></div> <div>The second report issued by OIG addressed the need for the improvement of CMS guidance to State Survey Agencies (SSAs) on verifying correction of deficiencies to help ensure the health and safety of residents. Specifically, OIG found that seven of nine state agencies did not always verify the correction of deficiencies by nursing facilities and that the state agencies did not consistently obtain or maintain evidence of the corrections.&#160;</div> <div><br></div> <div>Ultimately, OIG determined that CMS guidance to SSAs regarding the verification of correction of deficiencies and the maintenance of documentation to support that verification needs to be improved. </div> <h2 class="ms-rteElement-H2">Deficiency Trends</h2> <div>Complementing that report from February, OIG issued a data brief in April that identified and analyzed trends in the deficiencies identified by SSAs in nursing facility surveys nationwide. Of note, several of the trends identified by OIG include that approximately 31 percent of nursing facilities had a repeat deficiency in the four-year review period and that the top 10 deficiency types comprised more than 40 percent of all the deficiencies reviewed. </div> <div><br></div> <div>The top 10 deficiency categories identified by OIG were&#58; free of accident hazards; establish an infection control program; provide care and services for highest well-being; food and sanitary; develop comprehensive care plans; drug regimen free from unnecessary drugs; drug records, label, store drugs, and biologicals; resident records; dignity and respect of individual; and investigate, report allegations, and individuals.</div> <div><br></div> <div>These audits, evaluations, and reports by OIG serve as an important reminder that nursing facilities must remain vigilant with their documentation, level of care certifications, and provision of services. The Work Plan provides insight into the areas that could come under scrutiny and ultimately can help guide internal compliance activities for a nursing facility. In addition to the Work Plan topics, the recent reports and data brief by OIG provide further confirmation of this increased review activity. </div> <div><br></div> <div>The recommendations, trends, and topics identified by OIG serve as helpful hints for nursing facilities when reviewing their own operations and compliance activity. For example&#58;</div> <ul><li>Nursing facilities need to ensure that physician certifications are compliant with applicable requirements. </li> <li>It is essential that nursing facilities properly train billing and claims staff and that staff keep current with regulatory service provisions. </li> <li>Nursing facilities need to be sure that they obtain complete and accurate documentation to verify the three-day stay requirements and documentation. </li> <li>As SSAs work to improve their processes regarding verification of corrective actions, nursing facilities should anticipate additional follow-up and closer scrutiny regarding documentation and corrective actions. </li> <li>To be prepared, nursing facilities must thoroughly document their plans of correction. </li> <li>Further, it is important for nursing facilities to implement their corrective action items and maintain adequate records to document implementation and completion.</li></ul> <div>With these recent developments in mind, nursing facilities should review their operations and take the steps necessary to be better prepared to achieve and maintain compliance and provide proper and quality care. </div> <div>&#160;</div> <div><em>Iain Stauffer serves as Of Counsel at Poyner Spruill in the Health Law Section. He can be reached at <a href="mailto&#58;istauffer@poynerspruill.com" target="_blank">istauffer@poynerspruill.com</a>.</em></div>2019-06-01T04:00:00Z<img alt="" src="/Monthly-Issue/2019/June/PublishingImages/legal_t.jpg" style="BORDER&#58;0px solid;" />LegalIain StaufferThe HHS OIG recently updated its Work Plan to add an additional topic focusing on nursing facilities that receive Medicare and Medicaid reimbursement.