Assisted living providers have benefited from Coronavirus Aid, Relief, and Economic Security (CARES) Act Provider Relief Fund monies over the past year to help them with pandemic-related expenses, but the federal government is “salivating” over the possibility of taking back those funds and assessing fines and penalties to entities that misused the dollars, according to Neville M. Bilimoria, a partner in the health law practice group of the Chicago office of Duane Morris LLP and a member of the Duane Morris Post-Acute Care and Senior Services Group.
A strong corporate compliance and ethics program, however, can help assisted living operators stay out of the federal government’s crosshairs, said Bilimoria. He discussed this and other ways to mitigate liability issues Wednesday at the American Health Care Association / National Center for Assisted Living Convention & Expo in the Washington, D.C., area.
“If you can show you have an effective compliance program, you’re going to avoid penalties altogether. You may even avoid a complete audit,” Bilimoria told McKnight’s Senior Living in a separate interview. Attorneys can guide providers in the eight-step process to draft an effective plan, he added.
Corporate compliance and ethics programs are “an effective anti-fraud tool” if they are well-designed, applied in good faith and work in practice, Bilimoria said. The worst thing a provider can do — aside from not having a plan — is drafting a plan and then not using it, he added.
For nursing homes, the programs, which are meant to reduce fraud and abuse, are standard and are required by the Department of Health and Human Services Office of Inspector General, he said. But they’re of increasing interest to assisted living providers due to the audits they could face over how they have used CARES Act funds, Bilimoria said.
“They will be subject to scrutiny and audits by the federal government now more than ever,” he said. “It’s important for assisted living facilities to have a proper corporate compliance and ethics program in place.”
HHS has indicated that it will invoke its OIG as well as the Department of Justice and the Internal Revenue Service to investigate whether CARES Act funds were properly used by assisted living companies, Bilimoria said.
The use of the money, however, became “very complicated,” with the government changing reporting requirements “time and time again” and given “very cryptic terms and conditions” for reporting how the money was used, he said. The good news, he added, is that the DOJ in June 2020 issued guidance about what it will look for in a corporate compliance program to determine when to bring criminal or civil charges against a provider.
Show you’re ‘doing the right thing’
Overall, Bilimoria said, when it comes to mitigating COVID-19-related liability issues, assisted living providers need to be aware of potential defenses, proactive policies and strategies to use now to limit their risk.
Unfortunately for the industry, he said, the public has conflated assisted living with nursing homes and the negative images and stories that emerged from the pandemic. That public relations problem has played into liability lawsuits by plaintiffs’ attorneys, holding assisted living to higher standards than are typical for the industry, he added.
In addition to corporate compliance programs, areas of concern for assisted living operators when it comes to liability risk are staffing, infection control and vaccine mandates, Bilimoria said.
“We are still battling the bad PR and what the public perceived is happening,” he said. “The mantra plaintiffs’ attorneys are using to go after skilled nursing and assisted living is, ‘They placed profits over people,’ and as a result, their client was harmed.
“The more assisted living facilities can show they are doing the right thing to the public, the more admissions they will get and the less liability they will have,” Bilimoria said.
Worker shortages abound in the senior living sector, and providers already are facing lawsuits blaming those shortages for deaths and harm experienced by residents, he said.
Attracting the right candidates in the first place, and then keeping dedicated staff members, were challenges pre-COVID-19, but now the pandemic exacerbated those challenges 100 times over, Bilimoria said.
Assisted living providers, Bilimoria said, need to have an answer to the question about what they are doing to protect their residents from COVID-19.
First and foremost, he said, is to comply with governmental orders, rules and regulations. Although operators initially struggled to adhere to guidance from the U.S. Centers for Disease Control and Prevention — which sometimes differed from state and local guidance — assisted living providers have, for the most part, figured it out and implemented policies, Bilimoria said. The challenge for operators, he added, is following those policies.
“It’s one thing to have policies in place, but you have to follow them,” Bilimoria said. “You increase your liability by having a policy and not following it.”
His advice: Rely on governmental guidance to reduce liability; doing so offers a good defense against claims from those who suffered from COVID-19 during an outbreak.
Many assisted living operators are wrestling with whether to impose mandatory vaccine policies for their staff members, Bilimoria said.
In some areas of the country, he said, mandatory vaccine policies are unpopular and leave providers with the threat of losing additional staff members. On the other hand, he said, many people see mandates as the right thing to do for the health, safety and welfare of residents, rather than as a political or moral issue.
And such mandates can be good for the bottom line, too.
“Many realized if you’re not going to mandate and have staff not vaccinated, and staff become COVID-positive, what ends up happening is, you can’t have any new admissions for 10 days,” Bilimoria said. “You could lose hundreds of thousands of dollars.”
Having a mandatory vaccine policy will help operators who face COVID-related lawsuits — and juries will agree, he said.
“There is something to be said for mandatory vaccine policies and how they can reduce liability,” Bilimoria said.