For the Defense - Vol. 5, Issue 2 - 49

illness was avoidable. Owners and operators
who are found liable could face significant civil
penalties and even the potential for criminal
prosecution.
Health care investigations began within days
of the COVID-19 outbreak. There were several
residents at the Atria Willow Wood assisted
living facility in Ft. Lauderdale, Florida that were
diagnosed with COVID-19, some of whom died.
While the diagnoses were expected to some
degree, Governor DeSantis implied that the
facility was negligent and its actions, or lack of
actions, "could be" criminal.11 Governor DeSantis
stated "[i]t ... clearly fell below the standard of
care and whether it went into criminal ... I think
that that's a possibility." He further stated "[t]hat
was clearly non-compliant, negligent and it did
cost those residents their lives."12 The potential
for criminal liability may focus on failing to screen
construction workers, cooks, and staff when they
were visibly ill, yet granted access to a healthcare
facility. Due to the significant effects COVID-19
had on the facility, law enforcement, the Centers
for Disease Control and Prevention, and state
officials were asked to investigate. To date, the
facility has not been charged criminally.
In Washington State, there have been dozens
of COVID-19 related deaths at the nursing home,
Life Care Center of Kirkland.13 As a result, the
Centers for Medicare and Medicaid Services and
state regulators inspected the facility. On March
16, 2020, the inspection determined that out
of twenty-nine deaths, three were found to be
"Immediate Jeopardy" situations, which means
that a resident's safety is in "imminent danger."14
The inspection found the facility:
*	 failed to identify and manage ill
residents;
*	 failed to tell the Washington
Department of Health about the
increasing rate of respiratory
infection among residents; and
*	 failed to have a sufficient backup
plan after the facility's primary
clinician fell ill.15
In response, the nursing home stated that it had
"inadequate guidance" from health officials,
and the only reason residents were placed
in jeopardy was due to the "extraordinary
pandemic" and that the nursing home was not
prepared by Department of Health.16 Based on
the final inspection report documenting a series

of failures, the facility faced a $611,000 federal
fine and the possibility of losing Medicare and
Medicaid funding if it "[did] not correct all
deficiencies and return to full compliance."17
The fine includes a per-day penalty for failing
to comply with certain regulations. The facility
also faced losing its Nurse Aide Training and
Competency Evaluation Program and may forfeit
federal payment for the patients during a specific
time period.18
Similar to the investigations in Florida and
Washington, Massachusetts Governor Charlie
Baker asked outside counsel to conduct an
independent investigation into possible
procedural failures leading up to COVID-19
deaths at a state-run nursing home for veterans.19
Shortly after the Governor acted, Massachusetts
Attorney General Maura Healey announced
that her office was investigating the facility
to determine if legal action is necessary.20 The
Department of Justice's Civil Rights Division
and the U.S. Attorney's Office for the District of
Massachusetts also joined forces to investigate
the deaths. Consequently, the superintendent
of the facility was placed on paid administrative
leave. While these investigations have not
yet resulted in any criminal charges, these
are examples of the type of public health
investigations that are being conducted in
response to the COVID-19 pandemic.
Furthermore, questionable billing practices
will remain a focal point of investigations
into fraud and abuse. State Attorneys General
will presumably only increase the scrutiny of
healthcare providers alleged to have made false
or misleading statements in association with
claims for reimbursement related to Medicaid/
Medicare programs. Such investigations
may also include a more detailed review of
COVID-19 related services to determine if they
were medically necessary or if they failed to
meet professionally known standards of care.
Moreover, the public health crisis has caused
telehealth regulations to be relaxed. This will
allow the telehealth industry to treat more
patients, but as a result, those involved in
this process may have increased exposure to
government oversight. It is critical during this
time for healthcare providers to maintain and
observe strict compliance protocols.
State Attorneys General are also likely to
increase scrutiny and enforcement on businesses

Vol. 5, Issue 2 l For The Defense

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For the Defense - Vol. 5, Issue 2

Table of Contents for the Digital Edition of For the Defense - Vol. 5, Issue 2
