They say the best defense is a good offense. New York State has decided to adopt this strategy in an attempt to deflect blame for its own policy mistakes during the current pandemic. With its newly published Report, the NY AG makes quite clear that she is looking to use COVID as a pretext to launch a take-no-prisoners war on NY’s for-profit nursing home operators.
Operators and their personnel on the front lines should be angry and concerned. The extensive NY nursing home industry investigations in the ‘70s began with a report and ended with numerous indictments. Operators must be prepared for the inevitable fallout coming, both for further investigations (and possible indictments), as well as for legislative changes affecting reimbursement, staffing levels, and compliance and reporting obligations.
The AG Report focuses squarely on for-profit facilities, criticizing management of infection control lapses and non-compliance with ever-changing executive orders, pushes for increased staffing, and recommends a roll back of facility immunity. And, chooses a report on nursing home response to the pandemic to make scurrilous claims of self-dealing at the expense of patient care, stating, “the current state reimbursement model for nursing homes gives a financial incentive to owners of for-profit nursing homes to transfer funds to related parties (ultimately increasing their own profit) instead of investing in higher levels of staffing and PPE,” AG Report, pg. 6.
While it is not where facilities want to be focusing their efforts during this pandemic, operators cannot remain complacent. There are immediate proactive measures that facilities can take to prepare for potential fallout.
High level examples include:
Performing a comprehensive assessment of existing compliance program policies and procedures, especially those involving infection control, COVID testing, PPE and related issues, and staff training and education.
Performing risk assessments to identify vulnerable areas, especially those involving staffing levels, PPE inventory, recordkeeping, reporting, and staff investigation readiness.
Creating/updating/training internal crisis management teams to quickly respond to crises, investigator visits or subpoenas, including training staff on investigator engagement, consulting with outside legal counsel and public relations firms to mitigate issues and establishing protocols for responding to investigations including document access and preservation.
Reviewing existing vendor contracts and related party arrangements for possible fraud and abuse and/or self-dealing concerns raised in the AG Report.
Please contact us for assistance with preparation for, or responding to, the inevitable investigations and scrutiny that is unfortunately on the horizon as a result of the AG Report.