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Health-Care Organizations—Watch These Four Areas in 2022

Jan. 18, 2022, 9:00 AM

Covid-19 relief programs provided essential funding for health-care providers the past two years. But those programs have also created new risks that are likely to increase in 2022 tied to government investigations.

Long-term care providers also are increasingly the target of class action lawsuits that are often connected to their staffing levels. Given the increased challenges of finding and keeping employees in the health-care industry as a result of the pandemic, plaintiffs are likely to be more aggressive in the event of provider failure and errors in 2022 and beyond.

Those are a few enforcement and litigation trends for providers to navigate in the next year. They also may face new government scrutiny in other areas—especially telehealth and the ongoing opioid crisis. Across the board, there are practical steps providers can take now to reduce their risks.

Government Investigations

The health-care industry received billions of dollars through the Covid-19 Accelerated and Advance Payments (CAAP) Program and other relief programs. Now that most of the funding from those programs has been distributed, the main focus for many federal and state investigators will be whether it was used for its intended purposes. Their main and obvious priority is to target defendants who perpetrate intentional fraud, but the government will also target compliance breakdowns among larger providers.

Providers that received funding should conduct their own internal audits to confirm they have the proper documentation in place. Investigators will be looking for documentation on how and why providers received funding, how they used it and submitted reimbursement claims, and whether there was any erroneous information included or examples of double billing for claims or double dipping across relief programs.

If providers uncover instances that may be perceived as improper, they should consider self-disclosure and proactive reimbursement with the help of their government investigations outside counsel.

Shifting away from Covid-19, opioids continue to be a major focus of government enforcement. The Drug Enforcement Administration is actively and aggressively reviewing whether providers are prescribing and tracking opioids appropriately, as well as whether manufacturers and pharmaceutical companies are keeping accurate records of the volume being distributed and whether the opioids are reaching the intended beneficiaries.

For health systems and other large providers that may come under scrutiny, it can all come down to documentation.

Additionally, the Justice Department is pursuing cases tied to telehealth and electronic health records (EHRs). The use of telehealth skyrocketed during the pandemic, and, with that increased usage, came increased fraud and infiltration by bad actors. Federal investigators have engaged in an aggressive effort to identify and eliminate this fraud.

With telehealth and EHRs more broadly, it can be a wise investment for providers to audit how they are using and documenting those technologies on a regular and routine basis.

Lawsuits

Class action lawsuits against nursing homes, senior living facilities, and other long-term care providers have proliferated across the country over the last few years. Prior to this trend, long-term care providers typically faced individual claims for medical malpractice or negligence. Now plaintiffs’ attorneys are amalgamating those claims against providers and arguing they fit under a broader violation tied to the providers’ contracts as it relates to staffing.

This approach puts extreme pressure on providers in terms of litigation costs and documentation of care that may not always demonstrate the true extent of staff time spent with residents. Given the well-publicized staffing shortages faced by long-term care providers because of the Covid-19 pandemic, this trend will likely continue.

Moving Forward—Steps to Take

There are several opportunities for providers to learn from the cases that arose prior to the pandemic.

First, courts have allowed enough of these class actions to proceed that plaintiffs’ attorneys are almost certain to keep bringing them.

Second, there are practices providers can change right now to mitigate risks and more easily respond to the lawsuits.

Most of the cases center around staffing levels. Plaintiffs will argue that they were harmed because the facility was not staffed at the level promised. Staffing levels have been a challenge in the long-term care industry even before Covid-19, and the pandemic has made that an even bigger concern.

What often occurs when hourly caregivers are absent or in short supply is that salaried employees will take on shifts to fill the gaps. That fills the gap in terms of care, but it does not necessarily fill the gap in terms of paperwork. While it makes sense that salaried employees may not participate in a facility’s timecard system, facilities should attempt to document the hours that salaried employees are providing care to best defend against these types of actions.

And when possible, facilities should train as many of their administrative staff in the provision of care so there is no question regarding whether this time “counts” toward staffing ratios.

A second best practice is to train leadership and rank-and-file employees on how to talk about staffing challenges. When everyone is working to fill gaps in the schedule, it can feel like a crisis. But if that work behind the scenes allows them to ultimately meet their residents’ needs, later discovery of emails about a “staffing crisis” or “dire staffing needs” can be misleading. Leadership should set the tone and be disciplined in addressing the problem without blowing it out of proportion.

Third, long-term care providers should reexamine what they promise in their contracts, whether those promises go beyond their state’s requirements, and whether they include arbitration agreements. All those issues are imperative in the context of class actions.

Health systems, nursing homes, and other providers will face new enforcement and litigation risks in 2022. They can reduce those risks by taking proactive steps now, including auditing and improving their documentation tied to Covid-19 relief funding and staffing challenges.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owner.

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Author Information

Walt Cartin is a partner who leads Parker Poe’s Health Care Industry Team. He represents a diverse range of health-care providers, including health systems (for-profit, not-for-profit, and governmental), and nursing homes.

Brian Cromwell is a partner at Parker Poe on the firm’s Health Care Industry Team. He counsels clients on regulatory enforcement issues, white collar criminal defense, civil litigation, and internal investigations.

Robb Leandro is a partner at Parker Poe on the firm’s Health Care Industry Team. He assists his clients with a broad range of legal issues relating to health care, administrative law, and public policy.

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