Today’s post is a bit of a hybrid. I’m trying to keep up with a bunch of things ranging from policy to economics (Jerome Powell speech today) to some work stuff so I’m combining two things today that probably, deserve a bit more dissection, but this will do for now. Plus, I’m hopeful that tomorrow will be an off day for me and my wife (also my biz partner).
As routine readers know, my (and my wife’s) firm, H2 Healthcare, has a pretty robust compliance practice with a unique focus on litigation support. My wife is one of (if not the) foremost clinical compliance experts in post-acute care and senior living, thus called upon for expert opinion work in litigation matters. A growing amount of litigation today, as I’ve written about previously, is related to staffing. Now, the staffing litigation is morphing to class action suits.
AARP is weighing in via its Litigation Unit, taking on three cases that allege civil rights and consumer protection violations related to SNF and Assisted Living staffing, or chronic under-staffing. The cases are in Illinois, Tennessee and West Virginia.
AARP Foundation Litigation claims an issue arises when operators promise to provide a sufficient level of staffing, but residents and their families then equate this promise to mean individualized care or care more one-on-one. The reality of senior living and skilled nursing facilities is that staff are there for all residents, not specific individuals.
The core claim is that providers make promises to attract residents but then fail to meet resident needs or to reassess resident care as changes in condition occur.
In 2022, a federal class action case was filed against Brookdale Senior Living, the nation’s largest senior living organization. The lawsuit accuses Brookdale of “chronically insufficient staffing” at its communities, purportedly to meet financial targets. The lawsuit also accuses Brookdale of misleading residents and families, thus failing to provide care and services as represented.
AARP claims that the litigation unit’s focus is not about what a facility may do wrong at an individual patient level that could be a compliance problem (abuse, neglect) but rather how to “force” nursing home and assisted living organizations to change their practices to provide adequate staff. In an Illinois case, AARP is suing Alden nursing homes, alleging that the company is intentionally understaffing its homes.
Per AARP counsel, residents should not be lied to about the staffing levels when they come into a facility. AARP openly states that part of their strategy is to garner media attention for the lawsuits: “We believe the decision to understaff is done at a corporate level … and the facilities don’t have a lot of discretion against what the corporation tells them.”
In a related twist, AARP is apparently interested in pushing litigation as False Claims Act cases to the Department of Justice and suggested that resident groups and industry watch-dog groups work with state attorneys general’s offices to point out potential Medicare and Medicaid fraud that could garner the attention of federal prosecutors.
False Claims Act litigation would pertain to the generalized requirement for billing Medicare or Medicaid, that claims are submitted on behalf of a provider that is operating in full compliance and providing care in a manner that is not conditioned on a false representation (staffing adequacy). A good recap on the False Claims Act is a post I did a number of years ago, available here: https://rhislop3.com/2012/11/27/false-claims-act-providers-beware/
The second part of this bifurcated post today is a bit more about Medicare Advantage. A couple of days ago, I wrote about the growth in Medicare Advantage plans. That post is here: https://rhislop3.com/2023/10/17/medicare-advantage-status-update/
Today, as a follow-up, I’m attaching a link to an article from Becker’s Hospital CFO report about how hospitals and health systems are beginning to think twice about their relationships with certain Medicare Advantage plans. This doesn’t bode well for seniors, particularly in rural or exurban areas where provider options are more limited. While the Medicare Advantage industry is growing, its growing pains are showing. The article is here: https://www.beckershospitalreview.com/finance/hospitals-sour-on-medicare-advantage-8-things-to-know.html?origin=BHRE&utm_source=BHRE&utm_medium=email&utm_content=newsletter&oly_enc_id=2570E5046034I0W