Guidance for the heavily regulated

Skilled nursing homes are among the most heavily regulated industries in the country. All skilled nursing homes are subject to state licensure rules and the federal Health Insurance Portability and Accountability Act (HIPAA) statute governing privacy.

Those that have Medicare and Medicaid residents are also subject to the conditions of participation under the Medicare and Medicaid programs, the False Claims Act, the Anti-Kickback Statute, the Civil Money Penalties laws and the Stark law, which governs certain transactions with physicians.

All Washington facilities are surveyed by the Department of Social and Health Services. In addition, facilities participating in Medicare and Medicaid are also subject to investigation by the Centers for Medicare and Medicaid Services, the federal agency overseeing those programs and the Office of the Inspector General, which together with the Department of Justice oversees the federal statutes that prohibit fraud and abuse.

On Sept. 30, the OIG issued new guidance regarding nursing home corporate compliance programs. These voluntary programs are designed to help nursing homes comply with the many regulations that govern them. If a nursing home has a corporate compliance program and nevertheless violates the federal fraud and abuse rules, the compliance program may be taken into account in determining the penalties assessed against the facility.

The top risk area identified in the new guidance is quality of care. For many years, the OIG and some prosecutors have taken the position that if a nursing home provides poor care and submits a claim for reimbursement under the Medicare or Medicaid programs, the facility has made a false claim and is subject to criminal and civil penalties and to exclusion from those programs.

Many legal commentators and some case law disagree with this analysis except in cases where the problems are systemic and widespread. Under the new guidance, of particular concern to the OIG are care issues resulting from lack of sufficient staff, lack of comprehensive care plans, the failure to properly manage medications and the failure to promote resident safety.

The OIG’s interest in quality of care issues compliments other recent federal actions taken to promote resident care. In April, CMS began public notification of what it identified as the poorest performing facilities by publishing a list of special focus facilities on the CMS Nursing Home Compare website,

More information regarding these facilities can be found at There are no Clark County facilities on the special focus list.

On Sept. 18, CMS published a report analyzing recent trends in nursing home survey deficiencies and complaints. The report noted that in the last three years, more than 91 percent of all nursing homes were cited for one or more deficiencies as a result of state department of health surveys.

The percentage of Washington nursing homes cited for deficiencies was 90.9 in 2005, 91.5 in 2006 and 90.9 in 2007.

Aaron Besen is an of-counsel attorney at the Vancouver office of Bullivant Houser Bailey PC, where he represents long-term care providers, landlords to these providers and related businesses. He can be reached at 360-737-2300 or