Critical Actions for Nursing Homes to Take During an Investigation

Harris Beach PLLC

One of the most difficult aspects of COVID-19 lies in the number of people who have died in nursing homes in New York and across the nation. In response to that painful toll, Gov. Andrew Cuomo has asked the state Department of Health and Attorney General Letitia James to review the circumstances and look into reports of homes violating aspects of his executive orders.

In the weeks and months to come, nursing homes will come under intense scrutiny for their decision-making, especially during the most intense period at the start of the pandemic. Nursing homes are also under a directive to comply with both state and federal laws, regulations, directives and guidance, and could face financial sanctions or have their operating license revoked if they fail.

The Governor also announced a new directive requiring nursing homes to immediately report to DOH the actions they have taken to comply with all DOH and CDC laws, regulations, directives and guidance. DOH will inspect facilities that have not complied with these directives, including separation and isolation policies, staffing policies and inadequate personal protective equipment, and if DOH determines that the facilities failed to comply with the directives and guidance, DOH will immediately require the facility to submit an action plan. Facilities could be fined $10,000 per violation or potentially lose their operating licenses.

Our health care and government investigations team has prepared a list of key steps to follow to ensure compliance and how to respond should they become the subject of an investigation. Preparation is key. Nursing homes should, for example:

  • Establish protocols for responding to an inspection warrant or an “imminent danger” inspection
  • Preserve all evidence that may be subject to an investigation
  • Conduct interviews with key personnel on a privileged basis
  • Assist in identification of potential insurance coverage
  • Execute crisis communications response to all stakeholders, internal and external

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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