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Skilled or unskilled nursing: Feds ramp up investigations, prosecutions

January 23, 2013
by Thomas S. Brown
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“The lack of supervision and monitoring of the residents is a serious safety concern.” 

“Due to the facility’s inadequate documentation, the team could not determine if the resident was receiving the appropriate nursing care to meet her healthcare needs.” 

“Areas of concern included decomposing walls at the floor level, uneven floor surfaces, peeling paint throughout the facility, non-functioning water fountains and heavily soiled floors, baseboards and doors.” 

“In summary, systemic problems with the provision of medical care and services, with extreme polypharmacy and the unwarranted prescription of psychoactive agents without adequate indications or consent, create a risk of possible substantial harm to every resident of the facility.[1]

The above comments are from a series of memoranda prepared by the Operation Guardians inspection team, an investigative arm of the Department of Justice, Bureau of Medi-Cal Fraud and Elder Abuse, after conducting recent random inspections of SNFs in California. The inspections are part of an increased focus by the Attorney General’s office on the conditions in SNFs throughout the state of California and mirror the trend of enforcement and prosecution against those in the healthcare industry across the country[2]

The descriptions are chilling and convey a growing concern among law enforcement agencies throughout the country—that those facilities and the owners, operators and administrators responsible for providing care to our elderly and infirm residents are failing to meet a basic standard of care. The result of this failure can have severe civil and criminal consequences.

The Centers for Medicare & Medicaid Services (CMS) in the past few years has published a list of underperforming nursing homes throughout the nation. These facilities are subjected to increased visits from CMS survey teams under the Special Focus Facility (SFF). The teams conduct thorough inspections of nursing homes and monitor their compliance progress. Those facilities found to be non-compliant with CMS’ federal standards are listed on CMS’ website. 

CALIFORNIA FOCUS

Almost every state has a similar program to that of the CMS survey teams and an example of this nationwide increased level of inspection and enforcement is readily apparent in California. The Operation Guardians (OG) is a multi-agency task force established in 2000 to conduct unannounced, on-site inspections of California’s SNFs. The task force comprises state regulatory and law enforcement officials such as district attorneys, city attorneys and geriatric care specialists, including physicians. 

The scope of the random investigations includes a review of resident medical files, a physical examination of a select number of the residents and an inventory and auditing of the facility’s equipment and files. Additionally, the Operation Guardians inspect the building’s facilities, focusing on maintenance issues that can impact a resident’s safety, and they also observe the staff’s interaction with residents. Exit interviews are conducted with the staff and any non-compliance issues are referred to local regulatory or law enforcement agencies. 

The detailed inspection reports were recently disclosed pursuant to a Public Records at Request made by California Advocates for Nursing Home Reform (CANHR), a nursing home advocacy organization. According to the CANHR, the most common problems discovered during the inspections included under-reported injuries; overmedication with psychotropic drugs; poor hygienic conditions; elementary medication mistakes; and falsified medical records and fraudulent billed services[3]

While CANHR’s characterization of the findings is disputed by many of the management at the SNFs, the underlying reports clearly provide evidence for most of the problems described by CANHR. Of the 14 facilities inspected during the most recent time period (January 2010 – March 2012), all of the facilities were found to be providing substandard services in many different areas and were deemed non-compliant with the Bureau of Medi-Cal Fraud and Elder Abuse guidelines[4].  Since the public disclosure, local newspapers and online reporting forums have highlighted the conditions at nursing homes and this increased press has impacted the skilled nursing community in a negative manner [5].

ATTORNEY GENERAL PROSECUTIONS

In addition to the unannounced inspections, the Attorney General’s office has made it clear that prosecuting SNFs is one of the department’s top priorities. The Federal Elder Justice Act (EJA) of 2009 requires all reports of suspected crimes committed against a resident of the facility to be submitted to at least one local law enforcement agency or jurisdiction and the Department of Public Health Licensing and Certification Program. This change in the law will increase the number of direct referrals by SNFs to local law enforcement agencies.

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