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Long-Term Care Governmental Compliance and Investigations

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New York State Governor Andrew Cuomo and Attorney General Letitia James’ unprecedented decision to jointly investigate long-term care facilities, including nursing homes, and their performance during the COVID-19 crisis has made it clear that aggressive scrutiny is coming. The Governor has even gone so far as to issue an Executive Order 202.23 dated April 24, 2020 authorizing the Commissioner of Health to suspend or revoke the operating certificate of any skilled nursing facility or adult care facility if the state determines “such facility has not adhered to any regulations or directives issued by the Commissioner of Health, and if it is determined to not be in compliance.”

The belief that simply “Doing the Best You Can” is insufficient under the present circumstances. Based on the experience of Harris Beach health care and government compliance attorneys, there are critical steps that can be taken to mitigate risk and protect your institution’s reputation.

Preparing Your Organization Against Liability and Compliance Risk

  • Train management to be prepared to respond to government inquiries, whistle blower complaints and/or significant complaints from internal or external sources
  • Train an organization’s staff on appropriate documentation and management reporting procedures
  • Develop health and safety plan
  • Provide documentation to ensure compliance and to demonstrate the actions taken were reasonable
  • Review protocols in place to identify any gaps and any contributing or mitigating factors
  • Review all relevant documentation and correspondence to identify any compliance risks or issues that should be addressed
  • Prepare for any identified situations that require self-reporting
  • Develop a crisis response and communications plan

Critical Actions to Take During an Investigation

  • Establish attorney/client privilege protection for sensitive governmental or regulatory investigations
  • Establish protocols for responding to an inspection warrant or an “imminent danger” inspection
  • Conduct document/ESI production with regulators/law enforcement and conduct employee interviews with government officers
  • Preserve all evidence that may be subject to an investigation
  • Conduct attorney/client privilege interviews with critical personnel
  • Prepare preservation notices and litigation holds where applicable
  • Assist in identification of potential insurance coverage
  • Execute crisis communications response to all stakeholders, internal and external

Post - Incident

  • Identify any lessons learned and process improvements
  • Conduct in-house training to protect against future risk
  • Evaluate and update your compliance policies and procedures to account for any deficiencies (i.e., spell out the circumstances which trigger notification of family members). This will establish an effective compliance program and is a strong defense to government and regulatory reviews
  • Prepare for closing conferences with regulators
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Mary M. Connors

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Team

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Long-Term Care Governmental Compliance and Investigations

Service

New York State Governor Andrew Cuomo and Attorney General Letitia James’ unprecedented decision to jointly investigate long-term care facilities, including nursing homes, and their performance during the COVID-19 crisis has made it clear that aggressive scrutiny is coming. The Governor has even gone so far as to issue an Executive Order 202.23 dated April 24, 2020 authorizing the Commissioner of Health to suspend or revoke the operating certificate of any skilled nursing facility or adult care facility if the state determines “such facility has not adhered to any regulations or directives issued by the Commissioner of Health, and if it is determined to not be in compliance.”

The belief that simply “Doing the Best You Can” is insufficient under the present circumstances. Based on the experience of Harris Beach health care and government compliance attorneys, there are critical steps that can be taken to mitigate risk and protect your institution’s reputation.

■ All Services

Preparing Your Organization Against Liability and Compliance Risk

  • Train management to be prepared to respond to government inquiries, whistle blower complaints and/or significant complaints from internal or external sources
  • Train an organization’s staff on appropriate documentation and management reporting procedures
  • Develop health and safety plan
  • Provide documentation to ensure compliance and to demonstrate the actions taken were reasonable
  • Review protocols in place to identify any gaps and any contributing or mitigating factors
  • Review all relevant documentation and correspondence to identify any compliance risks or issues that should be addressed
  • Prepare for any identified situations that require self-reporting
  • Develop a crisis response and communications plan

Critical Actions to Take During an Investigation

  • Establish attorney/client privilege protection for sensitive governmental or regulatory investigations
  • Establish protocols for responding to an inspection warrant or an “imminent danger” inspection
  • Conduct document/ESI production with regulators/law enforcement and conduct employee interviews with government officers
  • Preserve all evidence that may be subject to an investigation
  • Conduct attorney/client privilege interviews with critical personnel
  • Prepare preservation notices and litigation holds where applicable
  • Assist in identification of potential insurance coverage
  • Execute crisis communications response to all stakeholders, internal and external

Post - Incident

  • Identify any lessons learned and process improvements
  • Conduct in-house training to protect against future risk
  • Evaluate and update your compliance policies and procedures to account for any deficiencies (i.e., spell out the circumstances which trigger notification of family members). This will establish an effective compliance program and is a strong defense to government and regulatory reviews
  • Prepare for closing conferences with regulators

■ People

Terrance P. Flynn

Member
(716) 200-5120
tflynn@harrisbeach.com

Thomas J. Garry

Member
(516) 880-8489
tgarry@harrisbeach.com

Joan P. Sullivan

Member
(518) 701-2732
jsullivan@harrisbeach.com

Harris Beach and its subsidiaries provide a full range of legal and professional services for clients across New York state, as well as nationally and internationally. Harris Beach is among the country’s top law firms as ranked by The National Law Journal and is among the BTI Elite law firms based on in-depth interviews of more than 600 corporate counsel at the world’s largest and most influential companies. Our clients include Fortune 100 corporations, privately-held companies, emerging businesses, public sector entities, not-for-profit organizations and individuals. Principal industries we represent include education, energy, financial, food and beverage, health care, insurance, manufacturing, medical and life sciences, real estate developers, and state and local governments and authorities.

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Offices throughout New York:

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677 Broadway
Albany, NY 12207
518-427-9700

Buffalo
726 Exchange Street
Buffalo, NY 14210
716-200-5050

Ithaca
119 East Seneca Street
Ithaca, NY 14850
607-273-6444

Long Island
333 Earle Ovington Boulevard
Uniondale, NY 11553
516-880-8484

New York City
100 Wall Street
New York, NY 10005
212-687-0100

Rochester
99 Garnsey Road
Pittsford, NY 14534
585-419-8800

Saratoga Springs
513 Broadway
Saratoga Springs, NY 12866
518-587-0551

Syracuse
333 West Washington Street
Syracuse, NY 13202
315-423-7100

White Plains
445 Hamilton Avenue
White Plains, NY 10601
914-683-1200

Offices also in:

New Haven, CT
195 Church Street
New Haven, CT 06510
203-784-3159

Newark, NJ
One Gateway Center
Newark, NJ 07102
973-848-1244

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© 2022 Harris Beach PLLC

Content current as of May 26, 2022 9:49 am
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