Ensuring regulatory compliance in your facility

Long-term care (LTC) providers and their vendors, consultants and counsel often lament the number of regulations with which they must comply. The skilled nursing facility (SNF) industry specifically, often has been described as one of the most heavily regulated fields in the nation.

Whether this description is accurate is irrelevant. As an LTC provider, you must understand who your clients are, how the regulations govern your businesses and how the regulations and the clients' needs intersect.

Some of the federal regulations governing the provision of LTC services include the Health Insurance Portability and Accountability Act, false claims and anti-kickback statutes, Stark I and II, the Affordable Care Act, the Elder Justice Act, and, for SNFs, the Omnibus Budget and Reconciliation Act. In addition these federal regulations, most states have enacted statutes that either mimic their federal counterparts or expand on requirements for facilities. Each of these regulations serves overarching purposes: to protect privacy in medical records, to protect elderly and disabled adults, to ensure that federal and state monies being spent on long-term care are spent wisely, and to eliminate fraud, abuse and waste. Although these purposes attempt to provide some direction as to whom LTC providers serve, they actually fail to clarify the matter.

True LTC clients

Unions and employment attorneys may argue that LTC providers must serve the needs of their employees, meaning that, if you have a satisfied, well-trained and well-paid workforce, then the residents receive the best services. The U.S. Department of Health and Human Services’ Office of Inspector General and the Department of Justice, however, may argue that LTC providers serve at the mercy of the entities that ultimately pay for the care provided (Medicare, Medicaid, Department of Social Security, etc.). And your corporate stakeholders may argue that the facility serves its boards of directors and shareholders.

The best answer—and, frankly, the correct answer—as to whom an LTC provider really serves likely would come from the actual care providers themselves, that is, the individuals who change and reposition residents, treat wounds, administer medications and so on. The likely answer from these individuals is that the client is the resident and that it is the client who ultimately must be served properly. Ah, if it were only that simple.

Tri-partite relationship

LTC providers engage in, at minimum, what attorneys like to call a “tri-partite relationship.” Providers must offer services with sufficient quality to assist clients in achieving their highest practicable physical, mental and psychosocial well-being. So, too, providers must protect the privacy of each client and ensure that protected health information is not improperly accessed or divulged.

Although you may be achieving these goals, and because in most instances someone other than clients are paying for the services, you also have a duty to provide care in a cost-effective and efficient manner. Unfortunately, in this relationship, the interests of the client and the payer often are at odds. Attorneys call this disagreement a “perceived or actual conflict of interest." The means of rectifying the conflict are left to facilities to determine, but, unfortunately, the decision-making process is at your own peril. If your facility decides incorrectly, then it may be penalized in the criminal arena, the regulatory arena and/or in the civil arena.

Your LTC facility can take these actions to help ensure regulatory compliance:

• Remain abreast of the changes in implementation and enforcement of the vast array of federal and state regulations.
• Put into place policies, procedures and protocols that reflect the overarching purposes of the regulations.
• Train staff members—from front-line employees to middle managers to top-level executives—on the facility’s policies, procedures and protocols, and make them aware of each of their obligations. This staff training must be ongoing and consistent.
• Establish mechanisms that allow anyone (clients, visitors, staff, consultants, vendors) to report perceived violations without fear of retaliation.
• Create an investigative and audit process to identify areas of concern that simply need improvement.
• Develop a consistent disciplinary process to address any violations that are uncovered.

Given the current political and economic climate and the focus on providing healthcare for all Americans in a manner that appropriately uses resources, you no longer have the luxury of turning a blind eye. You must be vigilant and proactive to comply with regulations and report violations when and if they occur.

The author is the principal of Lowell Law Center, based in Ventura, Calif. She is a contributing author to the textbook Managing the Long Term Care Facility: Practical Approaches to Providing Quality Care, set to be released this year. Lowell also is a consultant to Priority Healthcare LLC, a firm working closely with SNFs and residential/assisted living facilities in the area of corporate compliance standards. She may be reached at 805-620-0849 or Rebecca@LowellLawCenter.com.

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