PPE Shortages to Play Central Role in Future Nursing Home Lawsuits

Problems with securing sufficient quantities of personal protective equipment (PPE) span the health care continuum, but in the skilled nursing setting, many providers are grappling with severe shortages — even as they try to contain a contagious disease that presents unique dangers to their patient population.

Widespread shortages of masks and gowns, coupled with a lack of quick and accurate testing kits, have hamstrung many operators’ efforts to prevent the spread of COVID-19 in nursing facilities.

And as SNFs try to secure and allocate their short resources of PPE, they have to keep in mind what’s going to happen six months from now, when the crisis will likely be either over or dying down.

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That’s when the lawsuits already starting to germinate from the COVID-19 crisis will begin to emerge, according to Christy Tosh Crider, chair of the health care litigation group at the law firm Baker Donelson.

“We already see the plaintiffs’ bars circling, advertising already for lawsuits related to COVID,” Crider said on a Tuesday webinar hosted by Society for Healthcare Organization Procurement Professionals (SHOPP).

To avoid getting blindsided by legal actions emerging from the COVID-19 emergency, Crider emphasized that SNFs need to document every step they take in providing care. This is going be particularly important because family members are currently not allowed to visit their loved ones, and will not see the care provided firsthand, she said on the webinar.

Plaintiff’s attorneys are already talking about staff who tested positive for COVID-19 and returned to work, operators that continued to admit new patients — especially in the long-term care setting — after a positive diagnosis in the community, and struggles to obtain PPE. That last one is a particularly important point.

“That is being quoted in almost every interview with plaintiff’s attorneys, is the issue of PPE,” Crider said.

That makes it all the more important that providers capture their decisions around PPE in writing, especially when it comes to the allocation of supplies to given facilities, she said.

In particular, it’s crucial for SNFs to know how much PPE they’re using, as Melissa Powell, the chief operating officer at the Allure Group in New York, emphasized on the webinar. It’s not just a matter of knowing what PPE is required — especially since most SNFs are ordering items they haven’t had to use before — but also knowing when to order it, she explained.

That means knowing the daily burn rate at a facility, knowing how to calculate it, and how that rate will change if a patient comes back positive. And SNFs have to be sure their suppliers are in the loop, and be sure they know what is going out of stock.

She also emphasized the need to stay on top of guidance around PPE, despite the challenges of keeping up with the information coming out of state and federal governments.

“You need to pay attention to what is required by the Department of Health, versus what the [Food and Drug Administration] says,” Powell added. “Just because the FDA says something’s okay, I don’t necessarily know and believe yet that the Department of Health says that’s okay. So I’ve been keeping very strict adherence to what the Department of Health says is okay, and watching what products to use based on the Department of Health.”

Medicaid assistance incoming

When the first wave of funds from the coronavirus stimulus bill hit the bank accounts of skilled nursing providers late last week, the exact amounts were based on their Medicare fee-for-service reimbursements in 2019.

As welcome as that first distribution from the Centers for Medicare & Medicaid Services (CMS) — about $30 billion of the $100 billion allocated for health care providers in the coronavirus stimulus package passed in March — was to SNFs, most residents in a nursing facility have their care covered by Medicaid.

But the second wave of that $100 billion will include Medicaid providers, and that money should be distributed some time early next week, Clifton Porter, senior vice president for government relations at the nursing home group American Health Care Association (AHCA), said on the webinar.

“The focus there is on Medicaid providers — and I don’t say this in order, I say this in general, the three categories that the focus of this second tranche is on: Medicaid, Medicare Advantage, and what they’re considering COVID hotspots,” he said on the webinar.

He projected it would be similar to the approach taken on the Medicare fee-for-service side for SNFs, in which the percentage of an institution’s overall Medicaid revenue is considered — though he did note that the algorithms and calculations being used have not been released, and that it’s not certain.

“It’s clear at least to the skilled nursing sector that this round, at least intuitively, should be a significant and meaningful round of stimulus, because the majority of our revenues, as you know, are Medicaid,” Porter said. “So if you are a higher Medicaid provider, in this round, at least in theory, you should receive a larger check than maybe the folks that were higher Medicare fee-for-service did in the first round, because their business model is different.”

Medicare Advantage is the other major part of that second tranche, which has varying concentration in different states; the COVID hotspot portion “is a mystery to me, at least at this point,” Porter added.

“We don’t know if that is going to be driven by geography or if that’s going to be driven by some claims data maybe from the hospitals — I have no clue,” he said. “I doubt it will be claims data, mainly because they seem to want to look at retrospective data, so my guess is that it will likely be geographic, but don’t hold me to it. We don’t know anything definitively, but the idea is: How do we direct resources to places like Detroit and other markets, to alleviate some of the pain those geographies are facing?”

The third round is likely to be something of a “cleanup round,” which might include providers who did not have a full year of ownership through 2019, he added.

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