In recent weeks, the U.S. Department of Justice has sharply increased scrutiny of owners and operators of long-term care facilities and nursing homes. On March 3, 2020, Attorney General William Barr announced the “DOJ’s National Nursing Home Initiative,” which will “coordinate and enhance civil and criminal efforts to pursue nursing homes that provide grossly substandard care to their residents.” Since then, investigations have ramped up – for example, on April 10, 2020, when an investigation began at the Soldiers’ Home in Holyoke, Massachusetts, following the deaths of 25 veterans from coronavirus.
Many facilities in nine states were already under investigation, and since Attorney General Barr’s announcement over 70 nursing homes and other extended care facilities have reported COVID-19 outbreaks. It is reasonable to expect that in the coming months relatives of resident-victims and government agencies will mount questions as to whether the failure to control the outbreaks of the virus was caused by inadequate care, especially in the area of infection control. Our recommendation is to begin to prepare now for this increased scrutiny by doing the following:
The reasoning is that the facility made false statements to Medicare and Medicaid when submitting claims for reimbursement for services provided to residents. The claims are argued to be false because facilities certify that the services provided are compliant with federal and state statutes, regulations, and rules, including the Nursing Home Reform Act. This line of reasoning then argues that since care was grossly substandard, leading to the COVID-19 outbreak, the facility certification was false and facilities provided inadequate or worthless services, thereby violating the FCA.
Violations of the FCA provide for breathtaking penalties. By statute, the government is entitled to recover treble damages, where damages are the specific reimbursements paid to the provider, per claim. Added to that are per claim penalties. Per claim penalties fall in a range between $11,463 and $23,331.
On a facility-wide basis, for example, the math is as follows: a claim is the bill for services rendered for each resident, each day, multiplied by the total number of residents billed each day, multiplied by treble damages or three times the bill plus a fine falling in the range above.
The FCA can also look back at years of claims. Violations of the FCA can also be charged under the Criminal False Claims Act, wire fraud, and mail fraud. The criminal false claims penalties carry a maximum fine of $250,000 for each act charged, and a maximum of five years of imprisonment. Prison sentences increase when serious bodily harm occurs, and in the event of death, a life sentence is possible.
This is especially important in the area of infection control. Staff should be trained in all policies and procedures related to infection control and that training should be documented in personnel records and in required infection control logs.
All polices should be current, risk assessments should be current, and all staff should be familiar with guidance provided by the Centers for Disease Control and Prevention, the U.S. Department of Health and Human Services, and state specific health departments and related agencies. The strength of your compliance program is your best defense to an allegation that you provided substandard care.
Ulmer’s Health Care and Long-Term Care Practice Groups are closely monitoring developments related to the COVID-19 pandemic and are prepared to assist you and your businesses during these uncertain times. Please reach out to our attorneys if you have any questions.
The information provided in this client alert speaks only to the information and guidance we have available as of the date of publication and is subject to change. We will continue to follow further issued guidance and regulations and endeavor to post those updates via our website. Please continue to follow these updates at ulmer.com. This legal update was created by Ulmer & Berne LLP, and is not intended as a substitute for professional legal advice. Receipt of this client alert, by itself, does not create an attorney client relationship. For any questions, or for further information, please contact David E. Schweighoefer at firstname.lastname@example.org or Daniel A. Gottesman at email@example.com.