Mark Yost Publishes AHLA Bulletin on Nursing Home Regulatory Enforcement Activities

Baltimore, MD (May 7, 2020) - Baltimore Partner Mark Yost recently published a Bulletin for the American Health Law Association’s (AHLA) Post-Acute and Long Term Services Practice Group titled “COVID-19 Alters the Landscape on Nursing Home Enforcement Activities.” The article discusses nursing facility-related regulatory enforcement activities that are expected to occur over the coming months and provides guidance for complying with new regulations.

Mr. Yost begins the article by explaining that nursing facilities have garnered public attention during the COVID-19 pandemic due to the large number of adverse outcomes that their residents have suffered. He then focuses his discussion on three regulatory enforcement measures, which will impact nursing homes in the near future. These measures include the formation of an independent commission, the administration of additional nursing home surveys, and the issuance of new COVID-19 reporting requirements.

First, Mr. Yost explains that the newly-formed Coronavirus Commission for Safety and Quality in Nursing Homes, which will convene in late May, will examine how nursing homes have responded to the pandemic and will recommend improvements for these facilities. In detailing the objectives of the Commission, Mr. Yost describes that its members will (1) ensure that nursing facilities are protected from COVID-19, (2) strengthen efforts to identify and mitigate virus transmission, and (3) improve compliance with infection control policies.

Mr. Yost then explores the topic of nursing home surveys, explaining that pursuant to Center for Medicare and Medicaid Services (CMS) directives, state survey agencies will be conducting additional infection control and complaint surveys of nursing homes by July 2020. He recommends that in preparing to respond to these surveys, nursing facilities should document the actions that they are taking to implement the latest recommendations from CMS and the Centers for Disease Control and Prevention (CDC). Accordingly, Mr. Yost notes, “It is essential that nursing home operators and attorneys who advise them stay abreast of the latest recommendations from CMS, the CDC, and local health authorities.”

Finally, Mr. Yost details new reporting requirements for nursing homes, which were codified at the end of April. The purpose of these requirements, as stated by CMS, is to keep nursing home residents and their representatives abreast of conditions inside of a facility. Mr. Yost points out that the reporting requirements could potentially benefit attorneys handling litigation involving nursing homes because the information reported to the CDC will be publicly available and subject to FOIA requests. Moreover, he advises facilities to “follow the reporting guidelines but be sure to report accurately and only the information requested.”

Mr. Yost concludes by predicting that the “difficult regulatory environment” will likely continue as COVID-19 continues to spread. He states, “The work of the [Commission] will need to be closely monitored. Additionally, it will be essential for attorneys representing nursing facilities to ensure that the actions of those facilities are judged on the standards present and known at the time, rather than what we now know or may know in the future.”

Mr. Yost is a member of Lewis Brisbois’ Healthcare Regulatory & Compliance and Long-Term Care & Elder Law Practices. He has over 15 years of experience in the healthcare sector, most notably in the post-acute care space. His practice focuses on defending healthcare providers against government and regulatory actions, as well as directing transactional change of ownership of healthcare facilities.

Read the full article on the AHLA website.

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