First, Do No Harm

“First, do no harm” is the primary directive for all healthcare practitioners. Achieving this goal at this time certainly requires vigilance, both personal and professional, on the part of all practitioners. Some commentators have suggested anecdotally that healthcare practitioners may be a significant vector of transmission of the coronavirus.


In an article in The New York Times on February 26, 2020, entitled “Shaved Heads, Adult Diapers: Life as a Nurse in the Coronavirus Outbreak,” Nurse Zhang Wendan reported that she and her colleagues were required to live in the hospital where they worked for thirty consecutive days. They then quarantined for an additional fourteen days before returning home.


Likewise, Italian physicians raised the question in early reports about whether patients should be kept at home when diagnosed with coronavirus with intensive remote monitoring. They suggested that in-person care at home should be provided by a mobile team dedicated to the care of coronavirus patients and that only the most severely ill patients should be hospitalized.


In “Bringing the Hospital Home to Patients,” by Gurvinder Kaur, MD, published on June 18, by Vituity, Dr. Kaur recommends that COVID-19 patients be kept at home whenever possible. The article provides details about how the “hospital at home” model has worked in a health system in California.


The questions of whether practitioners are a significant vector of transmission and if so, how to disrupt transmission will undoubtedly be resolved at some point in the future. In the meanwhile, practitioners must be vigilant about their conduct both on and off the job to help ensure that patients are not harmed. It’s “all hands on deck” all of the time!


The importance of vigilance, both at work and in personal life, is underscored by a recent article in The Boston Herald on July 29, 2020. The article reported that thirteen patients and twenty-three employees at a Massachusetts hospital, Baystate Medical Center, tested positive for the coronavirus after an employee recently traveled to an out-of-state virus “hot spot.” The situation was almost certainly exacerbated by the fact that hospital staff members gathered in break rooms without wearing masks or observing social distancing protocols.


Practitioners must be vigilant about their behavior at all times until more is known about how the coronavirus is transmitted, or until there is an available vaccine or treatment or both. In other words, it’s not enough to wear personal protective equipment (PPE) and to adhere to infectious disease protocols at work in order to prevent harm to patients and colleagues. The current pandemic calls for more. Practitioners’ conduct on and off the job may now cause harm to both patients and others. Be vigilant everywhere!



©2020 Elizabeth E. Hogue, Esq.  All rights reserved.

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Elizabeth HogueFirst, Do No Harm

Practical Reasons to Develop and Maintain Fraud and Abuse Compliance Programs

Providers may have heard or read about the importance of Fraud and Abuse Compliance Programs in their organizations. Despite the wealth of available information about Compliance Programs, many providers continue to express uncertainty about their value. The practical value of Compliance Programs is now clear.

Providers may avoid indictment and enforcement action, including Corporate Integrity Agreements (CIAs), if they are able to show that they have a commitment to Compliance Programs. The OIG often requires CIA’s that include a process for stringent monitoring by the OIG on a continuous basis. These monitoring activities can be extremely burdensome to providers in terms of both time and money. Providers with valid Compliance Programs may not be asked to develop and implement CIA’s.

Representatives of the U.S. Department of Justice are now asking for specific information about Compliance Programs, including how much money has been spent on them. Therefore, now is the time to develop or update Programs!

Here are some FAQs about Compliance Programs:

Why should we have a Fraud and Abuse Compliance Program?

First, the Office of Inspector General (OIG) of the U.S. Department of Health and Human Services has clearly stated that, consistent with the Affordable Care Act (ACA) all providers must have current Compliance Programs that are fully implemented.

Technically speaking, the Federal Sentencing Guidelines make it clear that establishment and implementation of Compliance Programs is considered to be a mitigating factor. That is, if accusations of criminal conduct are made, the consequences may be substantially less severe as a result of a properly implemented Compliance Program.

In addition, providers with Compliance Programs are more likely to avoid fraud and abuse. This is because Programs routinely establish an obligation on the part of every employee to report possible instances of fraud and abuse. This means that providers get the “first crack” to address areas of non-compliance!

Compliance Programs may also help to prevent qui tam or so-called “whistleblower” lawsuits by private individuals, rather than by government enforcers, who believe that they have identified instances of fraud and abuse. There are significant incentives to bring these legal actions since whistleblowers receive a share of monies recovered as a result of their efforts. Some whistleblowers have received millions of dollars. Compliance Programs make it clear that employees have an obligation to bring any potential fraud and abuse issues to the attention of their employers first.

In addition, the federal Affordable Care Act (ACA) requires providers to have Compliance Programs. In short, it’s the law!

Finally, the Deficit Reduction Act (DRA) requires providers who receive more than $5 million in monies from state Medicaid Programs per year to implement policies and procedures, provide education to employees and put information in their employee handbooks about fraud and abuse compliance. These requirements can be met through implementation of Fraud and Abuse Compliance Programs.

We don’t receive reimbursement from the Medicare or Medicaid Programs. Do we still need a Compliance Program?

Statutes and regulations governing fraud and abuse also apply to providers who receive payments from any federal and state healthcare programs, including Medicaid, Medicaid waiver and other federal and state health care programs, such as Tricare. Many private insurers have followed the federal government’s lead in terms of fraud and abuse enforcement, so private duty providers must have Compliance Programs, too.

We hear that the OIG of the U.S. Department for Health and Human Services has provided guidance for various segments of the healthcare industry regarding Compliance Programs. Specifically, the OIG has already published guidance for home health agencies, hospices and home medical equipment (HME) companies. Should we just use the model guidance that is applicable to us?

The answer is “no!” Guidance from the OIG is not a model Compliance Program. Guidance from the OIG consists of general guidelines and does not constitute a valid Compliance Program. In addition, the OIG has made it clear that Programs must be customized for each organization.

We have all sorts of policies and procedures in our organization. Why do we need something else called a Compliance Program?

Compliance Programs are specific types of documents that routinely address issues that providers do not usually cover in internal policies and procedures. In addition, providers may not gain benefits under the Federal Sentencing Guidelines, described in paragraph one above, if there is no formal document called a Compliance Program.

We just spent a lot of money to become accredited or reaccredited. Doesn’t certification mean that we are in compliance?

On the contrary, Compliance Programs appropriately address potential fraud and abuse issues. They also include mechanisms for helping to ensure compliance, such as processes for identification and correction of potential problems that are not addressed during the certification process. In other words, organizations may be accredited, but fail to meet applicable compliance standards for fraud and abuse.

Now is the time for all providers to recognize and act upon the need to establish and maintain Compliance Programs. “Working on it” is no longer good enough.

©2020 Elizabeth E. Hogue, Esq. All rights reserved.

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Elizabeth HoguePractical Reasons to Develop and Maintain Fraud and Abuse Compliance Programs

Provider Relief Funds: Potential Enforcement Action for False Claims

The Office of Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS) announced a strategic plan for oversight of COVID-19 response and recovery on May 26, 2020. The Plan includes four goals:

  • Protect people
  • Protect funds
  • Protect infrastructure
  • Promote effectiveness

Providers who receive funds from the Provider Relief Fund are especially concerned about the OIG’s efforts to protect funds. The OIG has, of course, officially announced its intention to audit recipients of payments from the Fund. The terms and conditions of the Fund make it clear that full compliance is required. Non-compliance is grounds to recoup some or all of the payments made from the Fund. Therefore, failure to comply with all terms and conditions may result in repayment of the monies received.


Non-compliance with all terms and conditions may also result in allegations of false claims under the Federal False Claims Act. The False Claims Act includes these types of violations:




(1)       knowingly and willfully makes or causes to be made any false statement or a representation of a material fact in any application for any benefit or payment under this subchapter,


(2)       at any time knowingly and willfully makes or causes to be made any false statement or representation of material fact for use in determining rights to any such benefit or payment,


(3)       having knowledge of the occurrence of any event affecting (A) the initial or continued right to any payment, or (B) the initial or continued right to any such benefit or payment of any other individual in whose behalf he has applied for or is receiving such benefit or payment, conceals or fails to disclose such event with an intent fraudulently to secure such benefit or payment either in a greater amount or quantity than is due or when no such benefit or payment is authorized, or


(4)       having made application to receive any such benefit or payment for the use and benefit of another and having received it, knowingly and willfully converts such benefit or payment or any part thereof to a use other than for the use and benefit of such other person…”


The terms and conditions for receipt of funds include language that says that “any deliberate omission, misrepresentation, or falsification of any information contained in this Payment application or future reports may be punishable by criminal, civil, or administrative penalties.” Possible adverse action includes revocation of billing privileges in the Medicare Program and/or exclusion from all federal and state health care programs.


This statement certainly clarifies that the application for funds and subsequent reports filed may be treated as false claims under the False Claims Act.  Careful completion of all documents related to funds received is clearly important.



©2020 Elizabeth E. Hogue, Esq.  All rights reserved.

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Elizabeth HogueProvider Relief Funds: Potential Enforcement Action for False Claims

Wound Care: Legal Issues for Providers

Wound care is a risky business these days. Providers who render wound care services are at risk for:

  • Liability for negligent wound care
  • Violation of fraud and abuse prohibitions based on substandard wound care
  • Liability for abandonment when wound care services are discontinued
  • De-certification from participation in the Medicare/Medicaid Programs
  • Disciplinary action by state licensure boards with regard to individual practitioners who provide substandard wound care services
  • Indictment and prosecution for criminal neglect

Providers are at risk for these types of liability for a variety of reasons:

  • Standards of care are rapidly changing with regard to wound care. Many providers can remember the days when practitioners assumed that patients who were chronically ill would develop wounds. Now there are attorneys for patients and their families who would like to apply a standard of care that states that when patients develop wounds, it is due to providers’ negligence. This latter standard is certainly inappropriate if, for no other reason, than because it is not yet known with certainty what causes all wounds, what will work to heal wounds, and why some wounds heal and others do not. Nonetheless, when standards of care change rapidly, providers are always at increased risk.
  • Not all providers of wound care services have kept up with recent changes in standards of care. For example, according to the guidelines of the Agency for Health Care Policy and Research (AHCPR) and other national organizations, the routine application of Betadine is no longer an acceptable treatment for pressure ulcers. Yet practitioners still routinely receive orders from physicians to apply Betadine; a treatment that is clearly outside applicable standards of care.
  • Providers are at risk for wound care services because there has always been a “folk medicine” component to wound care. Many staff members have encountered orders for wound care that included shortening, liquid antacids, mixtures of sugar and water, and ointment intended for use on cows’ udders to prevent chafing when they are milked. A practitioner, for example, once described a wound as a “three-bear wound.” When asked about the meaning of this term, she explained that the doctor ordered staff to fill the patient’s wound with honey, and that it took three plastic bears worth of honey to do so! Hence, a “three-bear wound.” Despite some recent information about the possible benefits of Medihoney, treatment with honey bought in the grocery store is certainly contrary to national standards of care.
  • Finally, providers are at increased risk for wound care services because wounds look and smell terrible, especially to those who do not routinely encounter them; including patients, their families, judges, and jurors. From a practical point of view, it is hard for those unfamiliar with wounds to understand how patients could have such awful wounds unless someone has been negligent.

In view of the seriousness of these multiple risks, providers must be especially vigilant about managing risks related to wound care.



©2020 Elizabeth E. Hogue, Esq.  All rights reserved.

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Elizabeth HogueWound Care: Legal Issues for Providers

Court Refuses to Intervene in Medicare Payment Suspension

The U.S. District Court for the District of Missouri decided not to require the Centers for Medicare & Medicaid Services (CMS) to make a final determination on a provider’s suspension from the Medicare Program on the basis that such decisions are solely within the discretion of CMS

[Naushad v. United States Department of Health and Human Services, No. 4:20-CV-00018 JAR (E.D. Missouri May 29, 2020)]. Dr. Abdul Naushad owned a clinic called Advanced Pain Center (APC) that provided pain management services to Medicare beneficiaries. Dr. Naushad was charged with federal offenses related to illegal importation and use of a foreign injectable drug known as Orthovisc that was not approved by the U.S. Food and Drug Administration (FDA).


CMS suspended Medicare reimbursement to APC through its contractor, AdvanceMed, based on credible allegations of fraud. The Notice of Suspension advised APC that it had the right to submit a rebuttal statement. The Notice said that CMS would make a decision within fifteen days of receipt of the rebuttal about whether to lift the suspension. APC submitted a rebuttal statement asking CMS to lift the suspension. AdvanceMed responded two days later and said that it was reviewing the rebuttal statement and that a final response to the rebuttal “would be forthcoming.” APC then submitted a supplement to its original Rebuttal Statement.


APC also followed up six times with AdvanceMed regarding the status of its request, asking for status updates and demanding a final decision about lifting the suspension. AdvanceMed continued to respond by telling APC that it was reviewing the Rebuttal Statement and that a final response would be provided in addition to the interim response that was already provided. APC continued to submit letters and additional evidence to CMS and AdvanceMed to consider.


Approximately four months after payments were suspended, APC filed suit asking the Court to order CMS/AdvanceMed to provide a final decision about continuing the suspension of payments. The Court ruled against APC. According to the Court, APC is not entitled to a final determination about its suspension because CMS has no obligation to make any final determinations or lift suspensions before the investigation of providers is resolved, including any pending civil or criminal actions. Decisions to suspend payments or to continue payment suspensions, said the Court, are made at the sole discretion of CMS.


Further, the Court said that the length of suspensions is not limited to fifteen days. Suspensions based on credible allegations of fraud may last until the resolution of underlying investigations. Providers’ rights to appeal are triggered by overpayment determinations; not by decisions to continue or lift suspensions after consideration of rebuttal statements submitted by providers. The Court said that it would not upset the “balance” between hardship resulting from delays in administrative processes and the potential for overly casual or premature judicial intervention in administrative systems that process millions of claims every year.


There is definitely something wrong with this picture! Whether or not the allegations against providers are true, CMS “wins” because few providers have the financial resources to withstand suspension of payments from the Medicare Program for months at a time. The only option for many providers is to close their doors. Providers should surely receive more due process before such devastating losses take effect.



©2020 Elizabeth E. Hogue, Esq.  All rights reserved.

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Elizabeth HogueCourt Refuses to Intervene in Medicare Payment Suspension

Marketing Hospice Services to ALFs: Preferred Provider Agreements

New research published in Health Affairs shows that utilization of hospice services among Medicare beneficiaries is greater in assisted living facilities (ALFs) than in other settings, including private homes. Hospices should, therefore, market their services intensively to ALFs.


This finding is not surprising because management at assisted living facilities (ALFs) are often committed to keeping residents in their facilities for as long as possible.  There are, of course, costs associated with filling vacancies.  In addition, if residences remain empty for any length of time, profitability can be severely adversely affected. Consequently, to the extent that hospices can assist residents to remain in their apartments, ALFs may be extremely interested in establishing ongoing relationships with them.


In addition, management at ALFs may wish to make referrals to a single hospice or to limit referrals to a few hospices.  The perception among managers of ALFs, whether true or not, seems to be that providers are more likely to help them to meet the goal of limited resident turnover if they have preferred provider relationships with them.


Providers may wish to approach ALFs to see if they are interested in preferred provider relationships.  If they are, then management of ALFs may want to sign Preferred Provider Agreements in order to cement these relationships with hospices.


The anti-kickback statute may apply if providers or ALFs involved in referral arrangements receive any type of federal or state funds, including, but not limited to, payments for services provided from Medicaid waiver programs, managed Medicaid programs, the Tri-Care Program, the VA or any other state or federal programs. The anti-kickback statute certainly applies to most hospices since they are often certified by the Medicare Program


The anti-kickback statute generally says that anyone who either offers to give or actually gives anyone anything in order to induce referrals has engaged in criminal conduct. There are, however, a number of exceptions to this statute that may be applicable.


Hospices should ask two crucial questions about the application of the anti-kickback statute to referral arrangements:

  1. Is there a kickback or rebate?


  1. If so, is there an exception or “safe harbor” that permits the arrangement even though it would otherwise violate the statute?

A kickback or rebate occurs when a provider receives referrals from another provider and something flows back to the referral source from the provider who received referrals. If there is a kickback or rebate, providers must automatically ask the second question listed above.  If they fail to utilize applicable exceptions, they may miss out on useful marketing strategies that are likely to result in numerous referrals.


With regard to Preferred Provider Agreements, however, it is important to note that no money or anything of value changes hands between providers and the other party involved.  Consequently, there is no kickback or rebate.  Hospices can, therefore, enter into Preferred Provider Agreements and avoid violations of the anti-kickback and rebate statute so long as no money or anything else of value is given to ALFs in exchange for referrals.


The parties to Preferred Provider Agreements must also make certain that they honor patients’ choices of providers. There are a number of sources of patients’ right to freedom of choice of providers applicable to arrangements between hospices and ALFs:

  1. Court decisions or the common law says that all patients – regardless of payor source, type of care rendered, or types of providers involved – have the right to control the care they receive and who provides it.
  2. A federal statute that guarantees all Medicaid patients the right to freedom of choice of providers. This statute may be applicable if either party receives reimbursement from the Medicaid Program.

Unless state statutes or regulations require otherwise, there is no requirement that ALFs must present lists of providers from which residents may choose in order to comply with the above. When patients express preferences for certain providers, however, their choices must be honored despite the existence of Preferred Provider Agreements. The agreement of the parties to a Preferred Provider Agreement to honor patients’ choices should be included in such Agreements.


The market for hospice services is expanding, but the competition for referrals among providers seems to be extremely fierce.  Providers would be well advised to utilize Preferred Provider Agreements to assist them with increasing and/or maintaining referrals in order to help ensure profitability.



©2020 Elizabeth E. Hogue, Esq.  All rights reserved.

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Elizabeth HogueMarketing Hospice Services to ALFs: Preferred Provider Agreements

Chalk Up Another Win for Providers!

A U.S. Court in Texas has prohibited the government from recouping an alleged overpayment from a provider pending a hearing before an Administrative Law Judge (ALJ) [MedCert Home Care v. Azar, No. 3:18-CV-02372-E (N.D. Tex. Mar. 11, 2020)]. Med-Cert, a Medicare-certified home health agency, was subject to a Zone Program Integrity Contractor (ZPIC) audit in 2017. The overpayment rate for audited claims was extrapolated to all Medicare claims for the period audited, resulting in an alleged overpayment of $1,787,063.39.


Med-Cert appealed. Both the Medicare Administrative Contractor (MAC) and the Qualified Independent Contractor (QIC) upheld the ZPIC’s determination, so Med-Cert appealed to the ALJ. Due to a massive backlog of appeals no ALJ hearings have been held, despite the fact that a statute requires an ALJ hearing within ninety days of the date on which appeals are filed.


Med-Cert said that it could not pay approximately $33,000 per month toward repayment of the overpayment. The Court issued a preliminary injunction prohibiting the government from recouping alleged overpayments until after a decision by the ALJ. The Court also ordered the government to return any funds recouped to Med-Cert.


Med-Cert then sought permanent injunctive relief on three grounds:

  • The government violated its right to procedural due process by failing to comply with the requirement to hold a hearing within ninety days.
  • The government engaged in “ultra vires” actions against it.
  • Injunctive relief is appropriate under the Administrative Procedure Act.

In response to Med-Cert’s request, the Court decided that Med-Cert does not need to show that the outcome of ALJ hearings will likely be favorable. It’s sufficient to show that ALJ hearings are required before recoupment.


The Court also decided that Med-Cert had a valid property interest in receiving Medicare payments for services rendered to patients.


The Court then sided with courts that have decided that the ability to escalate appeals to the Appeals Council if hearings are not held within ninety days does not adequately protect due process rights because the Appeals Council could rely on records from the QIC only.


Finally, the Court said that Med-Cert established that the failure to grant a permanent injunction will result in irreparable injury for which no adequate remedy at law exists. Going out of business outweighs the burden of delayed recoupment. If an ALJ rules against Med-Cert, the government can begin recoupment of the alleged overpayment.


While there are court decisions that reach various conclusions on the issue of recoupment before ALJ hearings are held, providers facing severe hardship and/or closure should certainly consider seeking assistance from the courts.



©2020 Elizabeth E. Hogue, Esq.  All rights reserved.

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Elizabeth HogueChalk Up Another Win for Providers!

Patients’ Right to Freedom of Choice in a COVID World

The Centers for Medicare and Medicaid Services (CMS) has issued a number of waivers of various requirements for healthcare providers. On May 11, 2020, CMS issued waivers regarding requirements for discharge planning for hospitals and critical access hospitals (CAHs). These waivers are described below.


CMS is waiving: Requirements of 42 CFR 482.43(a)(8), 42 CFR 482.61(e) and 42 CFR 485.642(a)(8) to provide detailed information about discharge planning as follows:

  • The hospital, psychiatric hospital and CAH must assist patients, their families or patients’ representatives to select a post-acute provider by using and sharing data that includes, but is not limited to, home health agency (HHA), skilled nursing facility (SNF), inpatient rehabilitation facility (IRF) and long-term care hospital (LTCH) quality measures and resource use measures. The hospital must ensure that the post-acute care data on quality measures and resource use measures is relevant and applicable to patients’ goals of care and treatment preferences.
  • Requirements and subparts of 42 CFR Section 482.43(c) related to  post-acute care services to expedite the safe discharge and movement of patients among care settings, and to be responsive to fluid situations in various areas of the country except as indicated below. Specifically, CMS is waiving requirements that hospitals ensure patients discharged home and referred for HHA services, or transferred to a SNF for post-hospital extended care service or transferred to an IRF or LTCH for specialized hospital services must:
    • 43(c)(1): Include in the discharge plan a list of HHAs, SNFs, IRFs or LTCHs that are available to patients;
    • 43(c)(2): Inform patients or their representatives of their freedom to choose among participating Medicare providers and suppliers of post-discharge services; and
    • 43(c)(3): Identify in discharge plans any HHA or SNF to which patients are referred in which hospitals have disclosable financial interests.

CMS is maintaining: Discharge planning requirements that ensure patients are discharged to appropriate settings with necessary medical information and goals of care as described in 42 CFR 482/43(a)(1)-(7) and (b).


Since most of these requirements are included in statutes, it is unlikely that CMS waivers will be permanent. Nonetheless, important rights are being waived temporarily that seem difficult to justify.




©2020 Elizabeth E. Hogue, Esq.  All rights reserved.

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Elizabeth HoguePatients’ Right to Freedom of Choice in a COVID World

Will Home Care Come Full Circle?

“My view, you know, is that the ultimate destination of all nursing is the nursing of the sick in their own homes…I look to the abolition of all hospitals…


But no use to talk about the year 2000.”


– Florence Nightingale; June, 1867



The roots of healthcare in the United States are clearly in the care of patients at home. Perhaps the definitive book on home care nursing in this country is No Place Like Home: A History of Nursing and Home Care in the United States authored by Karin Buhler-Wilkerson in 2001. As Ms. Buhler-Wilkerson points out in her book, care for the sick was part of domestic life in early 19th century America. Physicians and nurses delivered care in patients’ homes, most often with the help of female family members, neighbors, and perhaps servants. For those who had no one to care for them, the options for care were scarce.


Enter The Ladies Benevolent Society (LBS) of Charleston, South Carolina! The LBS was founded in 1813 during the British blockade of Charleston harbor to address the needs of patients for whom there were few other options. The Society was founded by 125 women who were the wives, sisters, and daughters of Charleston’s wealthiest families. The Society was a philanthropic organization only. Members raised needed funds for care of the sick and distributed them, including hiring nurses to care for patients in their homes. A visiting committee conducted the daily work of the Society.


Patient load varied with the seasons and the occurrence of epidemics. In the early years, the Society cared for an average of 290 patients annually. Ms. Buhler-Wilkerson says in her book, “Most important, the LBS supplied the sick poor with nurses, for ‘of what avail are medicines or proper nourishment, unless there be some kind hand to administer them in due season?'”


Home care has once again become the “fashion.” An increasing number of treatments are provided at home. An article by Shantanu Nundy and Kavita K. Patel entitled “Hospital-at-Home to Support COVID-19 Surge-Time to Bring Down the Walls” that appeared on the JAMA Health Form, JAMA Network on May 2, 2020, makes the point that both COVID-19 patients and patients with other diagnoses should be cared for at home. The authors state that “the concept of a hospital stay in the home has been tested and proven to be effective in a wide variety of settings and clinical conditions…”


The article goes on to say that:


A 2016 Cochrane review evaluating the effectiveness and cost of hospital care at home found no difference in 6-month mortality…, no difference in being transferred or readmitted to a hospital…, and lower costs…


It is clear, contrary to Florence Nightingale’s prediction above, that hospitals will always have a role to play in the delivery of healthcare. It is also clear, however, that home care of all types provides an important answer to many dilemmas currently encountered in the healthcare industry and must, therefore, be ascendant! Will healthcare now come full circle to its roots of caring for patients in their homes? 




©2020 Elizabeth E. Hogue, Esq.  All rights reserved.

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Elizabeth HogueWill Home Care Come Full Circle?

Access to Residents of Assisted Living Facilities

Anecdotally, at this time home health providers are often denied access to their patients who reside in assisted living facilities (ALFs). The rationale of ALFs is that denial of access is necessary in order to void exposure to COVID-19. The experience of skilled nursing facilities (SNFs) with multiple infections and deaths from the virus may increase ALFs commitment to denial of access.

The Centers for Disease Control and Prevention (CDC) has issued guidelines for ALFs entitled “Considerations When Preparing for COVID-19 in Assisted Living Facilities.” These guidelines are clearly based, in part, on the CDC’s expectation that patients who need skilled services from home health agencies will continue to receive them. First, the CDC points out that:

Because staff at many of these facilities are generally not trained to provide medical care, their access to and training to use recommended personal protective equipment (PPE) and their ability to care for residents with COVID-19 is limited…

The CDC, therefore, goes on to say out that personnel from home health agencies who wear all recommended PPE may assist ALFs to regularly check on residents’ health. In addition, ill residents may be able to remain at ALFs if they can remain isolated in their apartments and if home health agency personnel can provide the level of care needed with access to PPE. The guidance further states that if home health agencies cannot provide care to residents who have the virus, then these residents should, of course, be transferred to hospitals or other appropriate care sites.

It is certainly clear that ALFs should limit or deny visitors’ access to their facilities, but, according to the CDC, “visitors” do not include clinical personnel from home health agencies. Guidance from the CDC makes it clear that home health agencies should be active participants in the ongoing care of residents, including residents who are ill with COVID-19.

The failure of ALFs to follow CDC guidance in this regard may have significant adverse consequences for ALFs. The denial of needed skilled services provided by home health agencies to residents may result in enforcement action against ALFs by state licensure boards, especially if patients’ conditions worsen or go untreated altogether.

Likewise, ALFs may be targeted by patients and their families alleging negligence or perhaps even wrongful death because home health personnel could not provide needed care. Legal counsel for patients and their families may rely on guidance from the CDC to show that national standards of care do not support denial of access to residents by home health agencies.

By the same token, home health agencies cannot maintain residents on census if they cannot visit them over an extended period of time. Home health agencies must work directly with ALF Administrators to gain access and document their efforts to do so. In the meantime, to the extent that virtual visits are appropriate, they should be used to the maximum extent possible.

Receipt of needed skilled care by ALF residents is serious business, especially during the pandemic. The efforts of ALFs to protect residents by denying access to home health agencies are surely misplaced.

©2020 Elizabeth E. Hogue, Esq. All rights reserved.

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Elizabeth HogueAccess to Residents of Assisted Living Facilities