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Let’s Talk about Nursing Homes – Who Will Raise the Red Flag Now That Routine Inspections Are Halted?

Posted  May 14, 2020

In March 2020, the federal government abruptly paused non-emergency inspections of some 15,300 nursing homes and other long-term healthcare facilities nationwide in order to focus on preparations to respond to the threat of COVID-19 pandemic.  This triage means that an on-site survey will be authorized only in cases of “immediate jeopardy” of serious harm (e.g., abuse) or reported infection-control deficiencies.  In lieu of routine inspections, nursing homes may now use a checklist to conduct their own reviews, which they keep in their own files.

While one can hardly argue with prioritizing inspections at nursing home, hospice, and other healthcare-facilities for reports abuse and infection control, will simultaneously suspending “lesser” inspections achieve the goal of addressing the pandemic’s exigencies?  As reported in this Buzzfeed article, stopping routine inspections when COVID-19 nursing-home deaths are astronomical and residents’ family members and friends cannot visit is particularly troubling.  The drastic reduction in oversight does not combine well with the aging population that often cannot speak up, inadequate and uneven staffing, and caregivers untrained to handle the influx and severity of virus and related illness.

“Routine” nursing home inspections play a crucial role.  The inspections are meant to catch hazards at an early stage: substandard care (such as failing to wash hands properly between patients or between hygiene care and medical care), wrong prescriptions, inaccurate medical records or care plans, overall neglect, unclean or broken-down conditions.  According to Buzzfeed’s data analysis, pre-COVID-19 unannounced “routine” inspections resulted in infection control citations for 60% of the nursing homes, including for failing to isolate residents during flu outbreaks, clean medical equipment, or wear protective gear.  Specific problems found typically include painful and infected bedsores, medication mismanagement, and residents with cognitive impairment leaving the facilities.

Cancelling non-emergency inspections creates particularly high risks for residents of facilities with histories of neglect and abuse.  Some owners of chronically substandard facilities have learned to cheat the system and hide serious risks and deficiencies.  Self-reporting and self-inspections without immediate accountability, and the absence of either the looming prospect of an unannounced inspection or the watchful eyes of residents’ family and friends will further deprive residents of a voice and protection.

The federal government’s March 4th order directs facilities with suspected or confirmed COVID-19 cases to report them to the local CMS office (or the facility’s accrediting organization).  But COVID-19 cases are not necessarily obvious and can be masked behind the other health conditions of this vulnerable populations.  The gross transgressors in nursing-home care will avoid reporting suspected COVID cases to avoid triggering a priority inspection.  Facilities with a history and practice of hiding and concealing deficiencies are unlikely to change when comes to reporting COVID cases.  These are the very places routine inspections have a chance of exposing.

Catching risks upstream is critical to preventing the only conditions for which inspections are now prioritized and authorized: “immediate jeopardy” to residents or significant infection control deficiencies.  Unfortunately, waiting to hold facilities accountable until these dangers manifest, like many of the later shelter-in-place COVID-19 orders, may come too late.

To be sure, the order to suspend non-emergency inspections and prioritize critical ones may have been borne of necessity, scarce resources, or some other good-faith policy decision.  This writing is not meant to target overworked, dedicated, minimally paid, and under-protected caregivers.  It’s not about nursing homes that are doing all they can with what they have, are transparent about deficiencies during COVID-19, and are begging for more resources. Indeed, some nursing home operators are held hostage to private equity owners who hold the purse strings.  Nor does this writing take to task dedicated government health officials seeking to protect the vulnerable, including on-site inspectors who may lack sufficient protective equipment.  But the fact remains that the removal of a key layer of oversight leaves nursing home residents more vulnerable at one of the most dangerous times in history.

There is a remaining voice available to hold egregious nursing home providers accountable: the whistleblower.  For years, whistleblowers have exposed wrongdoing that never would have been discovered. Fraud in nursing homes that are Medicare/Medicaid certified and reimbursed not only hurts the residents but costs all taxpayers.  For decades, whistleblowers have been able to file actions under the False Claims Act to bring fraudsters to heel and return ill-gotten gains to the public treasury.  Whistleblower lawsuits for egregious and fraudulent nursing home misconduct in the time of COVID-19 align with the U.S. Department of Justice’s March 2020 National Nursing Home Initiative, intended “to enhance efforts to pursue nursing homes that provide grossly substandard care to their residents.”

If you have evidence about nursing home fraud and think you might have a whistleblower case, please Contact Us.  To read more:

Tagged in: CC Lawyers, COVID-19, FCA Federal, Healthcare Fraud, Importance of Whistleblowers, Provider Fraud, SNF,