LTC Facility Documentation During COVID-19

Husch Blackwell LLP

There is a common saying in healthcare – “if it isn’t documented, it didn’t happen.” In the healthcare industry, and particularly in the long-term care (“LTC”) sector, clinical and operational documentation has long been critical for purposes of ensuring appropriate patient care and demonstrating compliance with the myriad regulatory requirements imposed by the Centers for Medicare & Medicaid Services (“CMS”), as well as state licensing and Medicaid agencies.

COVID-19 clearly presents unique challenges to LTC facilities. Although infection control and emergency planning protocols are not new to LTC facilities, the rapidly changing landscape of guidance issued by federal, state, and local regulatory bodies relating to COVID-19 has placed LTC facilities in a position where they must implement, and simultaneously communicate to staff, residents, and resident family members, new or updated clinical and operational protocols on a daily, if not hourly, basis. Given the urgency in ensuring appropriate protocols are in place, there is often an emphasis on action, as opposed to documenting the actions taken.

LTC facilities certainly should prioritize acting to address urgent health and safety risks to residents and staff presented by COVID-19. However, we encourage LTC facilities to ensure that they are also mindful of documenting their COVID-19 response efforts. When the COVID-19 pandemic eventually begins to recede (and, perhaps, even before), LTC facilities reasonably can expect that there will be increased survey and enforcement activity from both CMS and state licensing agencies focused on how LTC facilities handled the COVID-19 crisis. Similarly, adverse outcomes relating to COVID-19 may lead to potential litigation initiated by residents and their family members. Contemporaneous documentation of the efforts undertaken by an LTC facility in preparing for, and responding to, the pandemic will put the facility in the best possible position to tell its story about how it addressed the day-to-day challenges brought on by COVID-19.

Among the activities that we believe LTC facilities should consider documenting are:

  • Protocols implemented by the facility to ensure that the facility stays up-to-date on the ever-changing guidance issued by federal, state, and local agencies;
  • Facility changes / updates to existing policies and procedures in response to COVID-19;
  • Mechanisms for communicating updated protocols to staff members and residents (where appropriate), as well as specific training dates and materials used in training staff and residents;
  • Challenges / obstacles faced by the facility during COVID-19 preparation / response (e.g., shortages in PPE, staffing shortages, etc.), and efforts undertaken by facility to solve for those challenges;
  • Any increased expenses incurred by the facility due to COVID-19;
  • Communications provided to residents and family members regarding operational changes in response to COVID-19;
  • Efforts to facilitate continued communication between residents and their family members; and
  • Notifications provided to, or communications with, any governmental entities, including the local public health departments, state licensing agencies, state Medicaid agency, CMS, etc., regarding COVID-19.

Please note, this is not intended to be an exclusive list of documentation practices. Documentation practices should be tailored to the specific facility and its COVID-19 response efforts.

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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