Long Term Care Guidelines: Information That Regulators and Investigators Want

There is no question that the nursing home industry and the long-term care industry are among the most heavily regulated types of industries in this country. And in fact it is second only to the nuclear power industry in terms of the number and breadth of regulations and long term guidelines that apply to facilities.

And so, on the one hand, you absolutely have the government wanting to work in tandem with facilities to make sure that the residents of nursing facilities are receiving the best possible level of care. By the same token however, the governments in various agencies which we’re going to discuss are also looking for noncompliance.

And so, while on the one hand, there's a shared interest and making sure that people are doing the best in complying with the regulation or long term care guidelines, there's also the interest of the government to weed out the entities that are not doing what they should be doing and are not following the regulations and the consequences that flow from that.

In general, the agencies that have oversight responsibilities or maybe doing investigations of long-term care in facilities include U.S. Attorney’s Offices. Each state has a US attorney’s office. That is a federal agency. And each state has a US attorney. And then there are a number of assistant US attorneys that work in that organization.

We also have the US Department of Justice headquartered and Washington DC that oversees all of the US attorneys’ offices and works in tandem with those offices to coordinate investigations if that's appropriate. So some of the investigations that are occurring in the health care realm are occurring on nationwide level for facilities or chains that are nationwide in scope.

We're also seeing it for example, in pharmaceutical companies that do business in all the states. And you may have coordinated enforcement and investigative activities where the either the state US attorneys offices are perhaps state attorney general’s offices or the equivalent in other states, each state calls it a little something different.

But you see a level of coordination on a nationwide level that it's frightening and understandable because a lot of health care investigations can be very costly types of investigations. So at the federal and state level, they're looking for ways to help pool or share those costs when they're doing investigations. And if certain providers are doing business in multiple states, then each state has an interest potentially in the matter being investigated if it's a broad enough issue.

So it makes sense that the federal and state agencies would pull their resources when they can manage to do it. It does make for a more complicated and costly investigation if you are the target of that kind of collaborative effort.

But the US attorneys offices are kind of the players of the federal theme. You also have the United States Office of the Inspector General that is charged with oversight of several health care programs.

You have State Medicaid Agencies who come in to facilities and do Medicaid audits. They're looking at cost reporting. They're looking at add-on requests to make sure that they're justified. But they're in other source of oversight in many facilities and also another source of information gathering.

You have the state survey agencies which, you know, you all are very familiar with and live with on a daily basis. Again, they're all called different things in each state but essentially we're referring to the state agency that is deputized if you will by the centers for Medicare and Medicaid services to do surveys to verify compliance with the conditions of participation and also to look at state regulations and review facilities to see if they're in compliance with the state regulations or long term care rules as well.

You have in addition to the agencies we've discussed, you have Medicaid fraud control unit at each state level usually part of the State’s Department of Justice or Attorney General’s Office. They're usually a subgroup within those offices with full investigatory authority both to prosecute criminal offenses as well as civil offenses. They look at issues such as abuse and neglect claims particularly those that rise to a certain level of seriousness.

Some complaints of abuse or neglect may be handled by investigators located within your state survey agency. But in some cases, the issue involved may be sufficiently serious that there is a cross referral to a Medicaid fraud control unit because it's considered an active elder abuse. And they will take over the investigation and pursue if appropriate criminal charges relating to that according to the long term care rules and guidelines.

They'll also look at financial exploitation claims again, with the level of seriousness to believe that criminal conduct maybe an issue, your Medicaid fraud control unit will also get involved there. And of course, their stock and trade is to look at misuse, abuse or fraud of under the Medicaid program. So they have a fairly broad jurisdiction in many locations.

And then perhaps a less thought of but nonetheless very relevant regulatory in the mix r Professional Licensure Agencies for those licensed professionals such as nursing home administrators, social workers and licensed nurses or even your physician medical directors. All of those physicians in most states are licensed professional physicians. And they also may get into the mix of issues going on in nursing facilities.

In the past, many, medication error issues or scenarios have been treated as survey deficiencies in, you know, either in an annual survey or complaint survey. What we're also seeing is though a cross referral among agencies where that survey is then leading to a referral to a state licensure agency to say, “Hey, when we’re doing the survey, we found this situation. We thought it really amounted to questionable competence on the part of the care giving staff involved.” And if it's the license caregiver in particular, they could refer it to a state licensure agency whoever has oversight responsibility for that licensed professional to conduct yet another investigation.

Another angle if you will of investigations and this really comes on the financial side, the reimbursement side of the house, that is quality of care deficiencies also being investigated as a potential fraud or abuse claim.

What we're seeing is that under on the false claim side, the financial side of the house, claims are being investigated that the quality of care provided to the resident was so poor that it constituted a false claim because it was essentially no care at all.

And it's a new wrinkle. It's frankly of somewhat difficult argument for the government to prevail on. They’ve had mixed success with it. But two factors to keep in mind, one is the cases are very expensive to defend. And many, many companies, because of the significant risks, financial risks and penalties associated with successful false claims actions usually don’t take the chance of being wrong and they settle the claim because they're extremely expensive to defend in the consequences of being wrong. And having an adverse judgment against you can be devastating to an organization. So a lot of those cases wind up settling.

But it is a difficult case for the government to prevail to essentially argue that the quality of care was so poor that it was tantamount to no care at all. But nonetheless, it’s an angle that's being pursued.

We're also seeing single incident-to matters, single incidents of death of course always get a lot of attention and understandably so. And also injuries, single isolated incidents are now triggering a more vigorous response especially if they're associated with pressure sores, med errors, falls or elopements. Those are all kind of sentinel events if you will that will trigger almost as an automatic reaction and extra level of scrutiny because those are things that surveyors and regulators more and more are viewing as never events that residents should never develop pressure sores. If they came in without them, they should be continuing to exist without them.

Med errors, false and elopements, those are things that are viewed as highly, highly preventable and really are things that aren't affected by the resident as per the long term care guidelines. Some issues that come up in nursing facilities are very tricky because you're dealing with people who are otherwise in decline physically.

And so, sometimes the cause and effect is very difficult to establish. And surveyors have an upheld battle to say that this particular issue causes the adverse impact on the resident. But for certain things like pressure sores, particular medication errors, falls or elopements, those kinds of things are always looked at as preventable on the part of the facility.

So when you have a serious injury or death that can be tied to one of those kinds of things, it's automatically going to trigger a heightened level of scrutiny both on the facility but on the particular caregivers involved with the process.

Overcome your survey challenges with our long term medicare conference page.