COVID Investigations Raise Questions About Oversight and Enforcement Before the Pandemic

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On September 3, 2020, Special Agents of the Federal Bureau of Investigation, Department of Health and Human Services Office of Inspector General, and the Internal Revenue Service, along with investigators from the Pennsylvania Office of the Attorney General, executed search warrants at two long-term care facilities in western Pennsylvania.1   The raids, which occurred at the Brighton Rehabilitation and Wellness Center, near Pittsburgh, and a sister facility, Mt. Lebanon Rehab and Wellness Center, in Allegheny County, followed the statement by the state’s Attorney General, Josh Shapiro on August 12, 2020, that the Brighton facility was “one of the subjects of our criminal investigations into neglect at nursing homes during the pandemic.”  The number of these investigations, in Pennsylvania and elsewhere, is expected to grow as critical assessments of facilities’ preparedness, compliance with infection prevention and control requirements, and patient care increase.  While public scrutiny has focused largely on long-term care facilities, which have accounted for over 40% of the country’s COVID fatalities,  the current crisis also mandates a closer look at the regulatory structures governing the nursing home industry.

Brighton Rehab, a 589-bed facility at the epicenter of one of the nation’s deadliest outbreaks, has seen almost 450 cases and dozens of deaths,  and is the subject of multiple state and federal investigations, including for the unauthorized use of hydroxychloroquine to treat COVID patients.5    The facility’s history of systemic problems raises questions, however, about the effectiveness of the state survey agencies – and the role that lax, or lack of, oversight may have played in the death toll in nursing facilities nationwide.

An investigation of Brighton Rehab by TribLIVE reporters found numerous persistent issues and a history of official confusion or inaction that included:  three years of inspection reports showing serious infection control, management, and patient care deficiencies; thirty months on a federal watch list for underperforming nursing homes; 40% to 50% less care time per patient compared to other facilities in Pennsylvania and across the nation; inspection reports issued days apart in April that painted dramatically different pictures of infection control and other issues at the facility, with one report showing severe deficiencies, another none; and claims by county officials that there had been little communication between the owners and the county, particularly after the surge of COVID-19 deaths began.6

Earlier during the pandemic, the Centers for Medicare and Medicaid Services (CMS) announced that it would suspend regular survey activities and conduct only two types of surveys:  (1) complaints and incidents that are triaged as immediate jeopardy, and (2) infection control surveys.7  An analysis of 171 infection control surveys that were conducted between March 25 and April 21, 2020, found that 130, or 76%, of the surveys did not identify an infection control problem at all, and that, of the 41 surveys that did cite a deficiency, 30, or 73% found “no harm.”  Of the remaining 11 surveys, 8 initially cited an immediate jeopardy deficiency, each of which was removed or reduced to a “no harm” deficiency during the survey, and only 3 surveys resulted in an immediate jeopardy finding, one of which was the Life Care Center of Kirkland, the first nursing facility in the country where COVID was identified.8   Since the facilities were selected because of their histories of infection control problems, the survey findings clearly raise more questions than answers.

As pressure to assign responsibility for COVID infections grows, skilled nursing facilities will be in the front lines, but, inevitably, there will be questions and a possible overhaul of the patchwork of state and federal regulations governing the industry to follow.

[1] https://www.post-gazette.com/news/health/2020/09/03/Federal-agents-execute-warrants-Brighton-Rehabilitation-Mt-Lebanon-Rehab-pandemic/stories/202009030126

[2] https://twitter.com/PAAttorneyGen/status/1293646878270160896

[3] https://www.nytimes.com/interactive/2020/us/coronavirus-nursing-homes.html

[4] Id.

[5] https://www.dailymail.co.uk/news/article-8694671/FBI-agents-raid-two-Pennsylvania-nursing-homes-including-facility-worst-COVID-19-outbreak.html

[6] https://triblive.com/news/problems-at-brighton-rehab-didnt-start-with-coronavirus-trib-investigation-finds/

[7] https://www.cms.gov/files/document/qso-20-20-all.pdf

[8] https://medicareadvocacy.org/wp-content/uploads/2020/05/Special-Report-Infection-Control-5-7-2020.pdf

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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