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Covid-19 relief programs have provided critical funding to healthcare providers for the past two years. But these programs have also created new risks that may increase in 2022 related to government investigations.

Long-term care providers are also increasingly the target of class action lawsuits that are often related to their workforce. Given the heightened challenges of finding and keeping employees in the healthcare sector in the wake of the pandemic, plaintiffs are likely to be more aggressive in the event of supplier failure and errors in 2022 and beyond. of the.

These are a few enforcement and litigation trends that vendors will need to track over the next year. They may also face new government scrutiny in other areas, particularly telehealth and the current opioid crisis. Overall, there are practical steps suppliers can take now to reduce their risk.

Government investigations

The healthcare industry has received billions of dollars through the Covid-19 Accelerated and Advance Payments Program (CAAP) and other relief programs. Now that the bulk of the funding for these programs has been distributed, the primary focus of many federal and state investigators will be to find out whether it was used for its intended purpose. Their main and obvious priority is to target defendants who commit intentional fraud, but the government will also target compliance failures among large suppliers.

Suppliers who have received funding must perform their own internal audits to confirm that they have the correct documentation. Investigators will seek documentation of how and why providers received funding, how they used it and submitted claims, and whether any incorrect information was included or examples of double billing for claims or double levy in relief programs.

If providers discover cases that may be perceived as inappropriate, they should consider proactive self-disclosure and reimbursement with the assistance of their government investigations outside of the attorney.

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

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

Additionally, the Department of Justice is pursuing cases related to telehealth and electronic health records (EHRs). The use of telehealth has skyrocketed during the pandemic, and with this increased use has come an increase in fraud and infiltration by bad actors. Federal investigators are engaged in an aggressive effort to identify and root out this fraud.

With telehealth and EHRs more broadly, it can be a good idea for providers to check how they use and document these technologies on a regular and routine basis.

Prosecutions

Class action lawsuits against retirement homes, senior living facilities and other long-term care providers have sprung up across the country in recent years. Prior to this trend, long-term care providers typically faced individual malpractice or medical negligence claims. Now plaintiffs’ attorneys are merging those claims against the vendors and arguing that they fall under a broader breach related to the vendors’ contracts with respect to staffing.

This approach puts extreme pressure on providers in terms of legal costs and documentation of care that does not always demonstrate the true length of staff time spent with residents. Given the high-profile staffing shortages long-term care providers are facing due to the Covid-19 pandemic, this trend is likely to continue.

Moving Forward—Steps to Follow

There are several opportunities for providers to learn from cases that occurred before the pandemic.

First, the courts have authorized enough class actions that plaintiffs’ attorneys are almost certain to continue to bring them.

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

Most of the cases relate to staffing levels. Complainants will say they were wronged because the facility was not staffed to the level promised. Staffing levels have been a challenge in the long-term care sector even before Covid-19, and the pandemic has made it an even greater concern.

What often happens when hourly caregivers are absent or in short supply is that salaried employees take shifts to fill in the gaps. It fills the void in terms of care, but it doesn’t necessarily fill the void in terms of paperwork. While it makes sense for salaried employees not to participate in a facility’s tally card system, facilities should attempt to document the hours that salaried employees provide care to better defend against these types of actions. .

And where possible, facilities should train as many of their administrative staff in care delivery so that there is no doubt about whether that time “counts” in staffing ratios.

A second best practice is to train leaders and rank-and-file employees on how to talk about staffing issues. When everyone is scrambling to fill the gaps in the schedule, it can feel like a crisis. But while this behind-the-scenes work allows them to ultimately meet the needs of their residents, the later discovery of emails about a “staffing crisis” or “urgent staffing needs” can be misleading. Leadership must set the tone and be disciplined to solve the problem without blowing it up.

Third, long-term care providers should re-examine what they promise in their contracts, whether those promises go beyond their state’s requirements, and whether they include arbitration agreements. All of these questions 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 these risks by taking proactive steps now, including auditing and improving their documentation related to Covid-19 relief funding and staffing issues.

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 healthcare industry team. He represents a wide range of health care providers, including health systems (for-profit, not-for-profit, and government) and nursing homes.

Brian Cromwell is a partner at Parker Poe on the firm’s healthcare industry team. He advises clients on regulatory enforcement matters, white-collar criminal defense, civil litigation and internal investigations.

Robb Leandro is a partner at Parker Poe on the firm’s healthcare industry team. He assists clients on a wide range of legal issues related to health care, administrative law and public policy.