The Justice Department is on track to hand out a record more than $5.6 billion in total fines and penalties this year under the False Claims Act, a clear indication that the agency has pulled out the velvet gloves as the pandemic takes off to take, legal experts said.
However, there are ways long-term care providers can take steps to stay out of DOJ’s sights, they stressed.
The DOJ is well above last year’s $5.4 billion in FCA fines and sanctions and should surpass 2014’s record $5.6 billion, according to Michael Volkov of The Volkov Law Group.
“The pandemic, the whole country is in crisis, all healthcare workers are heroes… that’s all over from the government’s perspective,” said Matt Murer, chairman of Polsinelli’s division of health care, public policy and government investigations. McKnight’s long-term care news November 18.
“The government made every effort to accommodate healthcare providers in the context of the public health emergency. You saw really scaled back enforcement in surveys, really scaled back enforcement as far as DOJ investigations go, but that’s all gone. While the public health emergency is still in effect, providers in their annual complaint surveys have already sensed that state inspectors are taking a harder line.
The best way to mitigate risk and protect one’s own group from enforcement action is to cultivate a “culture of compliance,” BakerDonelson’s Alison Schurick told me. McKnights.
“Healthcare organizations should review and, where necessary, update existing internal policies, procedures and protocols, implement internal grievance and reporting processes, educate and train leaders and employees on policies, and ensure written agreements are in place,” Schurick said.
Murer said there are three main DOJ points that providers should be aware of: use of federal funds, joint ventures and quality of care. He recommends specific steps for each provider.
Federal funding audits
“Be very aware of how you spend your money and document it,” Murer said. “For some of those programs, there are very specific uses in terms of reporting, usage and accounting.”
The DOJ started by going after the low-hanging fruit of those who blatantly misused the money from the CARES Act and the Paycheck Protection Program by buying real estate or fancy cars, Murer said. He added that the department is now starting to pursue people who have not properly accounted for the money or have not used it for the prescribed purposes.
“People get audit request letters, which suppliers have been paid, which products have been purchased,” he said. “If there is a DOJ investigation into false billing, they want to add a possible claim about CARES Act money or PPP funding.
“What we tell our customers is, if they haven’t knocked on your door yet, expect them to. Go back and make sure all your records are in order, all the accounting of those funds is correct. Do you have money that has not been spent? You may have to return it.
With joint venture agreements, the partnerships between hospitals and nursing homes or pharmacies and nursing homes, there is a danger that those involved will try to monetize the partnership, Murer said.
How can we continue to reduce hospitalizations and provide patient care at the lowest cost is the reason for JVs, Murer said, and the government wants to see more of it.
“But you really have to be careful not to open yourself up to the claim that you are getting a bribe through that entity,” he said.
Murer’s simple example is when a pharmacy wants to partner with a local nursing home chain and a stakeholder wonders how they can make money from the scheme.
“Anytime someone starts talking about monetization, it’s a big concern,” Murer said. “In most cases, it’s not allowed.”
Murer said only 40% of profits can come from internal referrals, and no more than 40% of a joint venture can be owned by a referrer.
“I warn our customers if there is a seller who wants to do a JV because of the profits generated, you have to be extremely careful because you can really put yourself and your business at risk,” Murer said. “When you start talking about referral monetization, you should pause and seek legal advice.”
Quality of care
Finally, Murer said that health care providers can avoid quality-of-care issues by making sure their policies and practices on wound care, weight loss and falls are well attended. Failure can mean multimillion-dollar judgments and settlements, he said.
“They’re really measurable, and not only are they measurable, but a jury is really reacting negatively to them,” he said of poor care in those three areas. “It’s not a case you want to take on.”
Murer said a good fall program is not characterized by the original policy and procedure. It’s the reactions after a fall. Has there been an analysis and changes made?