Federal Prosecution Regarding Alleged Falsification of Staffing Data
In what may become a harbinger of more scrutiny regarding staffing at SNFs, federal officials announced on August 9, 2022 that criminal charges were filed against a SNF operator and senior staff for allegedly falsifying staffing records to Pennsylvania state regulators. Among the allegations are falsification of staffing sheets to make it look like nurses were working when they were not in fact in the building, directing staff to clock in for shifts not actually worked, providing such allegedly false documents to Pennsylvania DOH, and creating false documentation in patients’ MDS assessments to justify changing ADL scores based on allegedly false interviews with nursing staff.
While prosecutions for alleged falsification of documents submitted to regulators is not unique, the scrutiny given here to staffing levels and compliance with such requirements is presumably a direct result of recent state and national initiatives focusing on staffing levels in SNFs generally. As states mandate strict staffing levels and CMS increases scrutiny on staffing requirements (see CMS June 2022 Press Release that added new requirements for surveyors to incorporate the use of Payroll Based Journal (PBJ) staffing data for their inspections), it would not be surprising to see similar federal and state cases announced in the future.
Operators should therefore be vigilant in assuring accurate staffing recordkeeping and correcting any inadvertent errors early to avoid allegations concerning inappropriate staffing levels in surveys, audits, or any civil litigation involving patient safety. Documentation containing inadvertent errors can often times be used as the basis for civil lawsuits and criminal prosecutions before those accused have the opportunity to explain or correct those errors. SNF scrutiny in a politically charged environment warrants operators to place additional emphasis on documentation compliance to avoid issues.
NY State DOH Uptick in Life Safety Surveys
Also as a result of recent CMS policy changes, NYS DOH surveyors are increasingly finding facilities in noncompliance with Medicare Conditions of Participation regarding life and fire safety issues involving facility infrastructure. We are aware of a number of recent surveys that have resulted in CMS issuing discretionary and mandatory denials of payment for new admissions pending receipt of approved plans of corrections and time limited waivers from DOH and threatened termination from the Medicare and Medicaid programs. Due to staffing levels at DOH and the increased volume of such surveys, coordination between various levels of DOH and CMS is key to ensuring that any enforcement action is limited or withdrawn.
Facilities that have received such surveys are strongly encouraged to engage competent architects early in the process to ensure timely submission and approval of such plans of correction and time limited waiver requests. We are available to assist regarding issues arising from such enforcement actions.