In This Issue
Remember When You Give, You Also Get Your Share
There's a Guy at the Door With a Badge
In The OIG’S Crosshairs: SNF Long Term Care
Remember When You Give, You Also Get Your Share
by
Ken Burgess
That song lyric was made
famous by blues singer Nina Simone in the 1960s and the older I get, the
more I see the wisdom of her words. During my twenty plus years working
for long term care providers, I’ve often thought I’d like to do
something meaningful and lasting for seniors. After all, they are the
“customers” our clients serve. Now, I have my chance.
I met Keren Brown Wilson
many years ago when I was General Counsel for the Assisted Living
Association of America in Washington, D.C. and Keren was the CEO of
Assisted Living Concepts and a Board member of ALFA. Even then, Keren
was known as an American pioneer in the field of aging. After leaving
her company, Keren started a non-profit charitable foundation named for
her mother– by all accounts, an incredible woman. In addition to its
work with underserved elders in the US, the Jessie F. Richardson
Foundation soon spawned a project called Global Aging Partners – a
coalition of organizations and individuals working on aging issues in
developing countries.
Somehow, Keren wound up in
Nicaragua, helping develop basic services for seniors. Nicaragua is one
of the poorest countries in the hemisphere and what Keren found there
was appalling. Nicaragua has no nursing facilities, no assisted living
communities and, basically, very limited ability to help its frail, sick
seniors survive.
While working with
government officials, Keren visited the town of Jinotepe, Nicaragua,
where she found 34 elders living in a “senior shelter” with limited
access to water, medicine and food. Dangerous wiring, a leaking roof,
windows without screens, and non-working toilets make it a hazardous
place to live and work. The elders live on cots, with 4 x 6 feet of
personal space, and virtually no social or medical services at all. The
shelter survived on the generosity of occasional “sponsors” who gave
what they could, when they could. The shelter’s survival was a
month-to-month challenge.
That’s all Keren had to see.
With everything else she had going in Nicaragua and here at home, Keren
agreed to help a local group of volunteers who “adopted” the shelter,
formed a legal entity to operate it, and then started planning long
term. In late April, Keren is going back to Nicaragua for the 10th time,
with Global Aging Partnership (GAP) members from the U.S. to begin
building a safer place for these people who truly live lives of despair.
Keren asked me to help and before I could think about what I was
agreeing to, I said “yes.”
So, in April 2007, I’m going
with Keren and her pack of GAP volunteers to Jinotepe to help lay the
groundwork for this home in Nicaragua. We’ll meet with local engineers
and architects to help design the facility. I’ll help organize their
legal structure so the facility will have a future. We’ll meet with
government officials and local organizations. And we’ll meet these
seniors who just want a little hope amidst their poverty and loneliness.
We’ll hand out medical supplies and assist with health screening. Keren
tells me she wants me to go to Boaco, an even more remote area where the
Foundation is working with local volunteers and GAP partners to hold the
first community health fair in the community (and reportedly the entire
country) where local school children will present health projects to be
judged by local seniors and given small cash prizes. Keren says the
overall goal is to develop sustainable models to address the rapidly
developing aging issues in developing countries.
I offered to help Keren
raise some money for the shelter, eventhough I thought this would be
tough because, after all, we have our own problems right here in the
U.S. But, I was wrong. When my law firm heard about my trip, they
quickly offered a substantial donation to help with the cause. In
return, Keren offered to name a room in the new facility for Poyner &
Spruill. Very cool. Then several friends in other law firms around the
country heard about the trip and called, wanting to help with
contributions. My friend’s daughter’s college sorority wants to help and
so does my mom’s church. Some of the associations I’ve worked with over
the years have also contributed and Keren’s Foundation will match every
dollar I raise. I’m well on my way to reaching my goal of $10,000 for
the shelter, which in Nicaragua is a fortune. The staff at the shelter
currently earn less than $30.00 each month. Keren helped them set up a
neighborhood pharmacy selling basic supplies like bandages, aspirin, and
cough syrup which now generates the enormous sum of $200 per month,
enough to help the shelter stay afloat. More such micro-enterprises are
planned, all designed to make the shelter not only a home for its
residents, but a center of health care for the entire community.
Few things I’ve ever done
have given me such a sense of satisfaction as this project. The
generosity of my firm, my family, and my professional colleagues in
different parts of the country have moved me beyond words. And I’ve
learned, first-hand, that ole’ Nina was right – “when you give, you also
get your share” and more. We still need more funds and the center needs
basic medical supplies, including toothpaste, aspirin, cough syrup,
bandages and band-aids. While this is not a solicitation for
contributions, like Nina said, “when you give . . .” You can view
pictures and find more information about the foundation by visiting
their website at
www.jfrfoundation.org. Thanks, Ken
   
Ken
Burgess is a long term care attorney advising clients on a wide
variety of legal planning issues arising in the skilled nursing facility
setting, assisted living setting, and other aspects of long term care.
He is a frequent national lecturer and author of industry manuals,
national trade journal magazine articles and similar training tools. He
serves Poyner & Spruill clients by focusing on legal issues impacting
the long term care and health services sector. He may be reached at
919.783.2917 or
kburgess@poynerspruill.com.
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There's a Guy at the Door With a Badge
By
Ken Burgess
Hearing these words is every
health care provider’s worst nightmare. But, with the increasing use of
state and federal police powers to investigate allegations of fraud,
abuse and neglect at long term care facilities, the odds of hearing them
at some point are growing.
Most providers have no idea
what to do if a state or federal official shows up at their facility
with an official search warrant asking for documents. Obviously, the
first step is to contact your attorney for advice. But, what if you
can’t reach your attorney?
We’ve developed a few
guidelines to help providers who find themselves in that position and
need to know what to do now, while they are contacting or waiting to
hear back from counsel. These apply in any situation where state or
federal officials show up at your facility, armed with search warrants
issued by an administrative agency (such as the State Attorney General,
the FBI, the Office of the Inspector General, etc.) or a state or
federal court.
-
Do not interfere with the search.
-
Get the name of the lead agent, the
agency for which he/she works, and his/her address and telephone
number.
-
Request a copy of the search warrant.
Note the areas the agents can search and the items they can seize.
If the agents begin to search places or seize items not identified
in the search warrant, bring it to the lead agent’s attention. Fax a
copy of the warrant to your attorney.
-
Identify attorney-client and other
privileged information. The agents are permitted to seize this
information but should keep it segregated.
-
Request permission to have a few
employees accompany agents to monitor the search. Tell these
employees not to make any substantive statements to the agents. Have
employees take notes re: (a) the areas searched; (b) the documents
or items seized; (c) the questions asked by agents; and (d) the
names of employees interviewed by agents.
-
The agents may detain all persons on the
premises while the warrant is being executed. Ask permission to send
non-essential employees home. If permission is granted, advise
employees to take home only personal possessions and not to take any
company documents or files with them, including electronic files.
Advise employees who do leave that they will be contacted regarding
when to return to work or that they should contact a designated
individual at a certain time and date to find out when to return to
work.
-
Develop an employee announcement
advising employees that the premises are being searched pursuant to
a search warrant, the company is cooperating with officials
executing the warrant, and employees are not to interfere with the
search.
-
Explain rights to employees. (a)
Employees have the right not to be interviewed by the government. It
is the individual’s choice whether or not he or she agrees to be
interviewed. If employees agree to be interviewed, they can have
counsel to represent them at the interviews. (b) Advise employees
that they may be contacted at home by government agents and their
same rights to be interviewed or to decline apply there as well.
Also advise employees that even if they choose not to be
interviewed, they could still be subpoenaed to testify before a
grand jury. (c) The company should not instruct employees to decline
to be interviewed. That choice belongs fully to each employee. (d)
The company should determine whether it is willing to pay for
representation of its employees. If so, it should inform employees.
(e) Have employees inform the company if they have been contacted by
a government agent, been interviewed, or received a grand jury
subpoena. (f) Provide a name and telephone number of a company
representative employees can contact if they have questions.
-
Get a “receipt” of items seized from the
officials conducting the search.
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In The OIG’S
Crosshairs: SNF Long Term Care
By
Chris Brewer
When the Inspector General
for the United States Department of Health and Human Services speaks,
healthcare providers who do business with the government should listen.
This is exactly what Inspector General Dan Levinson did before the House
Subcommittee on Health and Oversight on March 8, 2007. It is especially
important for long-term care providers to take note since IG Levinson
highlights quality of care in long-term care facilities as one of the
top challenges for his agency in 2007.
IG Levinson prefaced his
remarks on enforcement priorities with an overview of the additional
funding resources which will be available to the OIG to ratchet up its
enforcement activities during the coming year. Typically, approximately
75 to 80 percent of the OIG’s efforts to combat fraud and abuse are
funded from the Medicare Trust Fund and another 20 percent from
discretionary funding. For fiscal year 2007, those combined resources
will provide over $200 million to the OIG. Significantly, in fiscal year
2007, Congress has provided special funding to the OIG to police
Medicare and Medicaid programs over and above its usual budget. Congress
has provided approximately $50 million in special funding for Medicaid
integrity activities and to fight fraud, waste and abuse in the Medicare
Part D prescription drug plan.
Next, IG Levinson directed
his comments to fiscal year 2007 enforcement priorities, including
quality of care in long-term care facilities. Levinson cited some
improvements resulting from past efforts by the OIG to address payment
and quality of care issues. However, he was quick to point out that
despite these improvements, many areas of concern remain.
For example, Levinson
referred to a recent OIG report which found that CMS did not
consistently investigate some of the most serious nursing home
complaints and that CMS oversight of nursing home complaint
investigations was limited. The report faulted CMS for its failure to
apply the mandatory termination remedy either because it received case
referral information from the state too late or was reluctant to impose
such a severe remedy.
OIG reviews planned during
fiscal year 2007 in the area of quality of care include, the use of
psychotherapy services, the implementation and impact of Medicare Part D
on residents of long-term care facilities, and the appropriateness of
payment and care for hospice beneficiaries residing in nursing homes.
Levinson once again asserted the OIG’s position that many quality of
care problems in long-term care facilities are so serious that they
constitute “failure of care” and become actionable under the civil False
Claims Act. The OIG believes that cases involving widespread or systemic
problems such as excessive falls, medication errors, an undue number of
patients with facility-acquired pressure sores, and chronic staff
shortages may merit use of the False Claims Act. Levinson concluded his
remarks by pledging to continue to work closely with U.S. attorneys, the
Department of Justice and State MFCUs “to help protect the health and
safety of this especially vulnerable population.” He also made it clear
that the OIG was prepared to use its exclusion authority and authority
to impose quality of care corporate integrity agreements against
individuals or entities responsible for furnishing poor care, with
particular emphasis on high level officials in long-term care
facilities.
Chris Brewer, former
Director of the N.C. Medicaid Fraud Control Unit, practices in the areas
of Healthcare Litigation, Medicaid Fraud Defense, and Reimbursement
Issues. He may be reached at 919.783.2891 or
cbrewer@poynerspruill.com.
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