Alayna Frauhiger
Associate Editor
Loyola University Chicago School of Law, JD 2021
On March 3, 2020, the Department of Justice (“DOJ”) launched a National Nursing Home Initiative to “coordinate and enhance civil and criminal efforts to pursue nursing homes and long-term care facilities that provide grossly substandard care to their residents.” The DOJ’s new initiative adds to its extensive efforts to combat elder abuse and financial fraud targeted at American seniors. The initiative will start with a focus on some of the worst nursing homes and enhance all civil and criminal efforts to pursue the nursing homes that provide grossly substandard care to their residents.
Why increase the focus on nursing homes?
“The Department of Justice has a long history of holding nursing homes and long-term care providers accountable when they fail to provide their Medicare and Medicaid residents with even the most basic nursing services,” said Assistant Attorney General Jody Hunt for the Civil Division. Since the Medicaid and Medicare programs pay billions of dollars each year to nursing facility operators for long-term care services, it is critical to crack down on the fraud and abuse in these facilities.
Attorney General William P. Barr noted that “millions of seniors count on nursing homes to provide them with quality care and to treat them with dignity and respect when they are most vulnerable. Yet, all too often, [the DOJ] has found nursing home owners or operators who put profits over patients, leading to instances of gross abuse and neglect.” This national initiative will bring to justice those owners and operators who have profited at the expense of their residents, and help to more effectively and quickly pursue nursing homes that are jeopardizing the health and well-being of their residents.
Identifying problematic nursing homes
The DOJ has already launched investigations into approximately 30 nursing homes in nine states as part of this effort. Though the specific facilities and states currently under investigation have yet to be disclosed to the public, the department is using several factors when identifying problematic nursing homes, such as:
- Failing to provide adequate nursing staff to care for residents
- Failing to adhere to basic protocols of hygiene and infection control
- Failing to provide residents with enough food thereby making them emaciated and weak
- Withholding pain medication
- Using physical or chemical restraints to restrain or otherwise sedate residents
Any of which may lead to criminal and civil penalties.
Enforcement
While the DOJ has previously assessed civil penalties against nursing home operators under the False Claims Act, the initiative is now looking to expand its enforcement of nursing homes to include criminal penalties on top of the more common civil False Claims Act settlements that it typically reaches amid allegations of fraud.
The HHS Office of Inspector General (“OIG”) will “continue to pursue nursing home operators who provide potentially harmful care to residents who are often unable to protect themselves,” said Chief Counsel to the Inspector General Gregory Demske of HHS. These cases typically involved fraud, such as the provision of unnecessary therapy services in an attempt to boost reimbursements or instances of substandard care. This initiative will simply send a message to those in charge of caring for these beneficiaries that these grossly substandard levels of care and fraud will not be tolerated.
The National Nursing Home Initiative reflects the DOJ’s larger strategy and commitment to protecting our nation’s seniors, coordinated by the department’s Elder Justice Initiative in conjunction with the U.S. Attorneys’ Offices. The Elder Justice Initiative and the U.S. Attorneys’ Offices are essential to the DOJ’s investigative and enforcement efforts against nursing homes and other long-term care entities that deliver grossly substandard care to Medicare and Medicaid beneficiaries. The Initiative and the U.S. Attorneys’ Offices also support the efforts of state and local prosecutors, law enforcement, and other elder justice professionals to combat elder abuse, neglect and financial exploitation, with the development of training, resources, and information.
Though there is no foolproof system to prevent all wrongdoing, nursing homes will need to clean up their act in the future to avoid possible liability. Providers can start by increasing their internal system to increase the detection of wrongdoing and then disciplines or remedy the issue appropriately. Active and effective compliance programs will need to include robust audit functions to safeguard corporate goodwill and also shield those parties from liability.