The Justice Department is set to impose a record amount of more than $5.6 billion in fines and penalties under the False Claims Act this year, a clear indicator that the agency has withdrawn the children’s gloves as the pandemic began to wane, legal experts said.
There are ways, however, for long-term care providers to take steps to stay away from the DOJ, they pointed out.
DOJ is heading well above last year’s $5.4 billion in FCA fines and penalties and is expected to eclipse the $5.6 billion record set in 2014, according to Volkov Law’s Michael Volkov Group.
“The pandemic, the whole country is in crisis, all healthcare workers are heroes…it’s over from the government’s perspective,” said Matt Murer, chairman of the Department of Healthcare, Public Policy and Human Rights. Polsinelli’s government investigations. McKnight Long Term Care News November 18.
“The government has done everything possible to accommodate healthcare providers amid the public health emergency. You’ve seen really reduced enforcement in investigations, really reduced enforcement in DOJ investigations, but that’s over. Even though the public health emergency is still in place, providers have already sensed in their annual complaint investigations that state investigators are taking a harder line.
The best way to mitigate risk and protect your group from enforcement action is to cultivate a “culture of compliance,” said Alison Schurick of BakerDonelson. McKnight’s.
“Healthcare organizations should evaluate and, if necessary, update existing internal policies, procedures and protocols, implement internal complaint and reporting processes, educate and train leaders and employees on policies and make sure written agreements are in place,” Schurick said.
Murer said the DOJ needs to focus on three main areas that providers should be mindful of: the use of federal funds, joint ventures, and quality of care. It recommends specific vendor steps for each.
Federal Funding Audits
“Be very aware of how you spend your money and document it,” Murer said. “For some of these programs, there are very specific applications in terms of reporting, usage and accounting.”
The DOJ began by tackling the low-hanging fruits of those who blatantly misused CARES Act money and the Paycheck Protection Program by buying property or luxury cars, a said Murer. He added that the ministry was now starting to chase people who had misaccounted for the funds or failed to use them for the prescribed purpose.
“People are getting audit request letters, which vendors have been paid, which products have been purchased,” he said. “If there is a DOJ investigation for mis-invoicing, they are looking to add a possible claim regarding CARES Act money or PPP funding.
“What we tell our customers is that if they haven’t knocked on your door yet, assume they will. Go back and make sure all your records are in order, all accounting for those funds is correct. Do you have unspent funds? You may need to send it back.
With joint venture agreements, partnerships between hospitals and nursing homes or pharmacies and nursing homes, the danger is once those involved start trying to make money from the partnership, Murer said. .
How can we continue to reduce hospitalizations and provide patient care in the least expensive setting is the reason for JVs, Murer said, and the government wants to see more of it.
“But you have to be very careful not to open yourself up to a claim that you are getting bribes through this entity,” he said.
Murer’s simple example is when a pharmacy wants to partner with a local nursing home chain and someone involved wonders how they can monetize the arrangement.
“Any time someone starts talking about monetization, it’s a big concern,” Murer said. “In most cases, that’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 referring party.
“I caution our customers when a supplier wants to enter into a joint venture 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, that’s when you need to pause and see a lawyer.”
Quality of care
Finally, Murer said providers can avoid quality-of-care issues by ensuring their policies and practices around wound care, weight loss, and falls are being followed. Failure can mean judgments and settlements of millions of dollars, he said.
“They’re really quantifiable, and not only are they quantifiable, but a jury is really reacting negatively to them,” he said of poor care in those three areas. “It’s not a deal you want to take.”
Murer said a good fall program is not characterized by original policy and procedure. These are the reactions after the falls. Was there an analysis and were changes made?
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