For Your Health:
Keeping the Pulse of the Law
Legal change often comes like a fast and furious rip current in the health care industry. To survive, tread water. To succeed, swim out of the current. To thrive, take command of a boat and harness the power of the current to sail your business into the future. We are here to help navigate you through the current and equip you with the information and tools to assure your smooth sailing.
Don’t expose yourself to unnecessary risks. Documentation containing inadvertent errors can often times be used as the basis for civil lawsuits and criminal prosecutions before those accused have the opportunity to explain or correct those errors. SNF scrutiny in a politically charged environment warrants operators to place additional emphasis on documentation compliance to avoid issues.
In advance of the President’s State of the Union address, the White House released a Fact Sheet yesterday entitled Protecting Seniors and People with Disabilities by Improving Safety and Quality of Care in the Nation’s Nursing Homes. The Fact Sheet is intended to summarize the Administration’s reform efforts, developed by and implemented through the U.S. Dept. of Health and Human Services (HHS) to improve the safety and quality of nursing home care nationally. These Federal reforms could have significant consequences for the nursing home industry if implemented.
We highlight a recent advisory opinion, OIG Advisory Opinion No. 21-18, regarding a long term care provider’s proposed arrangement with a therapy services vendor. The facts presented in the Opinion are straightforward and include elements not unlike many typical joint venture (JV) and management service organization (MSO) arrangements in the health care space.
Following on the heels of other state laws targeting nursing home enforcement and reporting such as in New York, Governor Murphy recently signed into law P.L. 2021, c.457 (formerly A-4478/S2759), which sets forth requirements for the New Jersey Dep’t of Health (DOH) to assess sanctions and impose penalties on nursing homes with repeat violations of State and federal requirements. The new law also imposes revised reporting requirements for nursing homes in significant ways, in some instances, much broader than most other states in the country.
CMS has suspended its vaccine mandate enforcement while these preliminary injunctions are in effect, and surveyors must not survey providers for compliance with the federal vaccine mandate’s requirements.
As of October 21, 2021, new NY PHL Section 2829 requires the following to be posted on a facility’s publicly accessible website:
· maximum rates to be charged for residency and services, updated annually by April 1st with detailed rates for each payor source other than Medicare, Medicaid or other governmental payors;
· all owners; this list must also be submitted to DOH for posting on its website and information should be updated within thirty days of any changes affecting ownership;
· the name and business address of any facility landlord, which should be regularly updated as changes occur; and
· a “summary” of all contracts for provision of goods or services for which a facility pays with any portion of Medicaid or Medicare funds or other agreements; such list should be updated within thirty days of signing.
A recent New York U.S. Dep’t of Justice (DOJ) whistleblower lawsuit is a sign of the times for government investigations of nursing homes and health care providers more broadly. Providers must be prepared and proactive to ensure regulatory compliance.
Amendments to NY PHL Article 28 require immediate attention, as they impact operator change of ownership applications, retention of employees upon a change of operation, AND new patient and staff disclosures upon admission and changes in operation.
Latest Status of Proposed New York Nursing Home Reform Legislation
As you are no doubt aware, the New York State Governor, the State Senate and the State Assembly have each recently introduced numerous bills aimed at reforming the New York nursing home industry, some with the potential to have drastic effect on the viability of the industry’s future. As we continue to monitor the status of the various proposals and we develop and evaluate potential legal challenges (depending on the passage of any bills into law), it is important that you remain aware of the status of the various bills and develop a strategy to lobby your representatives, for appropriate measures and against inappropriate ones.
Therefore, below is a reference chart that lists each key bill, summarizes its intent, and links to a website that tracks its status.
New York Governor Kathy Hochul has proposed some additions to the Public Health Law (PHL) that would dramatically impact New York physician practices and management services organizations (MSOs), bringing them both within the regulatory crosshairs of the New York State Dept. of Health (DOH).