Andrew J. Schulson
Partner/Director
516-393-2234
Long Term Care
- Overview
- Attorneys
- Insights
- News
Garfunkel Wild’s Long Term Care Practice Group is comprised of individuals with deep experience in this segment of the health care industry, including former general counsels of national companies, who bring a seasoned and practical approach to the many challenges facing providers, suppliers, and investors. Our clients are engaged in skilled nursing, assisted living, home health, rehabilitation, continuing care retirement communities, behavioral health, infusion, and hospice and palliative care.
Our team regularly advises on and assists with:
- Mergers, acquisitions and joint ventures
- Transactional due diligence
- Federal and state regulatory compliance
- State licensure survey and enforcement matters, audits and investigations
- Risk management
- Digital health technology
- HIPAA privacy and security
- Entity formation and structuring
- Third party payor negotiations (including Medicare Advantage and ISNPs)
- Contract negotiations with vendors and other third parties
- Medicare and Medicaid enrollment, compliance and reimbursement issues
- CARES Act compliance
- Labor and employment matters
- Discharge planning and appeals
- Resident rights
- Guardianship proceedings
- Treatment issues, including DNR and MOLST
Our team is available to provide immediate assistance in emergent situations, such as removing immediate jeopardy citations, responding to incidents, communications strategies, conducting incident investigations and addressing urgent treatment, transfer and discharge matters. We also conduct training for facilities and staff concerning new or existing legal requirements. Our team’s broad experience means that an answer to a pressing client question is usually only a phone call away. Garfunkel Wild attorneys are mindful of the many pressures facing industry participants and always strive for unsurpassed responsiveness and efficiency in the handling of matters trusted to us.
Practice Group Contacts
Team
New DOJ Report: Providers Beware
Last week, the U.S. Department of Justice (DOJ) and the U.S. Department of Health and Human Services (HHS) released its annual, jointly authored Health Care Fraud and Abuse Control Program Report (the Report) for Fiscal Year 2023.
New OIG Priorities Emerge in Report
The U.S. Department of Health and Human Services (HHS), Office of Inspector General (OIG) released its Semiannual Report (SAR) to Congress on December 4, 2024.
Navigating HHS-OIG’s New Compliance Guidance for Nursing Facilities: Key Risks, Mitigation Strategies, and Evaluation Considerations
Garfunkel Wild’s Robert Del Giorno, David Traskey, and Colleen Pierson will present the webinar “Navigating HHS-OIG’s New Compliance Guidance for Nursing Facilities: Key Risks, Mitigation Strategies, and Evaluation Considerations” on December 17, 2024, from 12:00 PM – 1:00 PM ET.
OIG Highlights New Concerns
This week, the U.S. Department of Health and Human Services (“HHS”), Office of Inspector General (“OIG”) fulfilled its annual statutory obligation by releasing its 2024 Top Management and Performance Challenges Report (the “Report”). Historically, the Report has not attracted widespread interest in the provider community because it largely focuses on HHS operational challenges. Importantly for providers and other stakeholders, however, the Report reveals crucial insights about compliance priorities for the year ahead.
DEA Extends Telemedicine Prescription Rules Through 2025
The Drug Enforcement Administration (DEA) and the Department of Health and Human Services (HHS) have jointly issued a third emergency extension allowing health care practitioners to prescribe Schedule II-V controlled substances via audio-video telemedicine encounters without an initial in-person evaluation. This extension, effective from January 1, 2025 through December 31, 2025, also provides the DEA with additional time to finalize permanent regulations for prescribing controlled substances through telemedicine.
NYS Department of Health Issues Proposed PACE Regulations
On August 7, 2024, the New York State Department of Health’s (DOH) proposed regulations for a new, unified licensure process for Program of All-Inclusive Care for the Elderly (PACE) organizations were published in the New York State Register. The proposed regulations implement New York Public Health Law (PHL) Article 29-EE, which was enacted in 2022. The proposed regulations, if adopted, will impact PACE organizations that are currently operating, as well as entities with pending and future PACE applications.
Is Your NJ Patient Safety Committee Protected by a Privilege?
In a recent ruling, the New Jersey Supreme Court concluded that the “self-critical analysis” privilege under the Patient Safety Act (“PSA”) and its implementing regulations can only be applicable if the information sought was generated for purposes of an independent patient safety committee that is created solely for the purposes of the PSA (i.e., the information […]
Florida Health Care Association’s Annual Conference & Trade Show
Garfunkel Wild will sponsor the Florida Health Care Association’s (FHCA) Annual Conference & Trade Show.
New York Nursing Homes to Receive Additional 1% Medicaid Rate Increase
On July 16, 2024, the New York State Department of Health (DOH) announced in a letter to nursing home administrators that nursing homes across the state will receive an additional 1% increase in their Medicaid rate after receiving Centers for Medicare and Medicaid Service (CMS) approval. In 2023, New York State approved a 7.5% increase […]
NY Hospital & Long Term Care Legislative Update
Garfunkel Wild’s 2023-24 Legislative Session Update newsletter will keep you up to date on relevant legislation introduced in New York State, particularly involving hospitals and long term care facilities.
NY Issues Statewide Fiscal Intermediary RFP
As we reported in a prior alert titled "NY Upends CDPAP Fiscal Intermediary Framework", the New York State (NYS) budget for fiscal year 2025 significantly changed who can be a Fiscal Intermediary (FI) under the state’s Consumer Directed Personal Assistance Program (CDPAP).
NY AG Faces Major Setback in Fight for Control Over Nursing Home
On June 4, 2024, the New York State Supreme Court, Orleans County held that courts cannot appoint independent health care and financial monitors to make binding “recommendations” – the centerpiece of the New York State Attorney General’s campaign against for-profit nursing homes.
OIG Report Highlights Enforcement Priorities
The U.S. Department of Health and Human Services (HHS), Office of Inspector General (OIG) released its revamped Semiannual Report (SAR) on June 3, 2024. The SAR’s new format focuses on the oversight work OIG completed during the reporting period, and emphasizes how this work directly addresses the Top Management Challenges Facing HHS.
NY Upholds Elimination of Nursing Home Residual Equity Reimbursement
The Court of Appeals recently upheld New York State’s elimination of residual equity, a capital cost component of Medicaid rates afforded to for-profit nursing homes with older facilities (the “Elimination”).
Lawsuit Challenges “Nightmare” Federal Nursing Home Minimum Staffing Mandate
On May 23, 2024, the AHCA filed a lawsuit challenging the CMS's Federal Minimum Staffing Mandate, calling it "irrational" and "unattainable" due to staffing shortages and lack of statutory authority.
Telehealth Update: NY Proposes Controlled Substance Prescribing, Waiting on DEA
On May 15, 2024, the New York State Department of Health (DOH) announced a pivotal change in its regulations, as it intends to permit health care providers to use telemedicine to conduct patient evaluations before prescribing controlled substances. Prior to the COVID-19 pandemic, DOH required health care providers to perform an initial in-person physical evaluation of patients before prescribing controlled substances.
NYSHFA | NYSCAL Annual Conference & Expo
Garfunkel Wild will be a sponsor at NYSHFA| NYSCAL’s Annual Conference & Expo.
Be Prepared! NYS OMIG’s 2024 Work Plan Provides an Audit Roadmap for Health Care Providers of All Types
Garfunkel’s Compliance Webinar Series rolls on with an examination of the 2024 Work Plan published by the New York State Office of Medicaid Inspector General (OMIG).
NY Upends CDPAP Fiscal Intermediary Framework
The recently enacted New York State (NYS) budget for fiscal year 2025 significantly changed who can be a Fiscal Intermediary (FI) under the state’s Consumer Directed Personal Assistance Program (CDPAP). This change was made by amendment to Social Services Law (SSL) § 365-f by eliminating the CDPAP request for offers (RFO) process that was in place for designating FIs (RFO #20039).
FTC Bans Non-Competes Across the Nation
On Tuesday, April 23, 2024, the Federal Trade Commission (FTC) promulgated a final rule banning most non-compete agreements, in any industry, and is set to become effective 120 days after its publication in the Federal Register (the “Final Rule”).
OIG Allows Patient Assistance Programs Funded by Drug Manufacturers
The U.S. Department of Health and Human Services, Office of Inspector General (OIG) posted a favorable Advisory Opinion (24-02) permitting a non-profit organization (Non-Profit) to provide financial support to eligible patients with specific rare diseases through assistance programs (Programs) it operates.
Nursing Home Alert: Dramatic Increase in NYS DOH Life Safety Code Citations
Nursing homes being cited for Life Safety Code (LSC) deficiencies by the New York State Department of Health (DOH) are on the rise. The difficulty achieving substantial compliance or obtaining a waiver places nursing homes at risk for termination from Medicare and Medicaid, denial of payments, and monetary penalties.
OIG Issues New Resource for Single Audits
The United States Department of Health and Human Services (HHS), Office of Inspector General (OIG) recently posted a new educational resource on its website about Single Audits. HHS is the largest grant-making agency in the Federal government, and OIG’s new resource is designed to help key stakeholders understand the scope of Single Audits, as well as improve the overall quality of such audits.
Governor Hochul Proposes Significant Changes to CDPAP and to LHCSA Enrollment in Medicaid
Governor Hochul’s 30-day Amendments to her proposed state fiscal year 2025 Executive Budget would significantly change New York State’s (NYS) Consumer Directed Personal Assistance Program (CDPAP) and what licensed home care services agencies (LHCSAs) can enroll or re-enroll in Medicaid.
New Jersey Medicaid Will Now Reimburse for Services Billed by Social Workers, Counselors
On January 8, 2024, New Jersey passed a law that permits Clinical Social Workers, Professional Counselors, and Marriage and Family Therapists to bill NJ Medicaid/NJ FamilyCare directly for services rendered to Medicaid beneficiaries.
New York OMIG Updates Self-Disclosure Guidance
The New York State Office of the Medicaid Inspector General (OMIG) recently updated its Self-Disclosure Guidance and Frequently Asked Questions (collectively, “Updates”). These Updates give participating providers and entities additional insight into how to report overpayments involving unresponsive Medicaid Managed Care Organizations (MMCOs) or multiple entities, as well as those that are untimely, have adjusted or voided claims, or lost or damaged records.
OMIG’s 2024 Work Plan Gives Critical Insights into Program Integrity Initiatives
The New York State Office of the Medicaid Inspector General (OMIG) released its 2024 work plan in furtherance of its mission to coordinate and conduct activities to prevent, detect and investigate medical assistance program fraud, waste and abuse, and to recover improperly expended Medicaid funds.
OIG’s Newest Strategic Plan Prioritizes Managed Care Oversight
The U.S. Department of Health and Human Services, Office of Inspector General (OIG) recently designated oversight of managed care as a “priority area”, and developed a coordinated strategic plan (the Plan) to better align its audits, evaluations, investigations, and enforcement of managed care.
OIG Issues Toolkit for Medicare Advantage Organizations
The U.S. Department of Health and Human Services, Office of Inspector General (OIG) released a new toolkit to help Medicare Advantage (MA) organizations replicate OIG audit methodologies to detect and correct inaccurate diagnosis codes in their own systems.
OIG Approves Use of Gift Cards for Referrals in Certification-Heavy Advisory Opinion
The U.S. Department of Health and Human Services, Office of Inspector General (OIG) posted a favorable Advisory Opinion (23-15) permitting a consulting company’s (Consultant) proposal to offer gift cards to its current physician practice customers for referring potential new physician practice customers to Consultant. Notably, OIG determined that the proposed arrangement did not implicate the Anti-Kickback Statute (AKS).
OIG Approves Creative Approach to Restructuring Medical Practice Partnerships
The U.S. Department of Health and Human Services, Office of Inspector General (OIG) posted a favorable Advisory Opinion (23-12) that allows a limited liability partnership (the Partnership) consisting of two classes of physician partners to make a one-time, voluntary redemption offer (offer) to individual partners when they reach age 67.
OIG’s Favorable Advisory Opinions Allow Incentives to Medigap Plan Policyholders
The U.S. Department of Health and Human Services, Office of Inspector General (OIG) posted two favorable Advisory Opinions (23-09 and 23-10) to allow a licensed offeror of Medicare Supplemental Health Insurance (Medigap Plan) policies and a preferred health organization (PHO) (collectively, “the requestors”) to incentivize Medigap Plan policyholders to seek inpatient care from a hospital within the PHO’s network. Notably, OIG issued these favorable opinions even though the proposed incentives implicated the Anti-Kickback Statute (AKS) and the Beneficiary Inducement Civil Money Penalty (CMP), and there was no applicable exception or safe harbor.
More Provider “Nuggets” From OIG’s Year-End Reporting Blitz
Continuing its year-end reporting blitz, the U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) released its Semiannual Report (SAR) to Congress on December 1, 2023.
New CMS Disclosure Requirements for Nursing Homes
On November 17, 2023, the U.S. Department of Health and Human Services’ Centers for Medicare and Medicaid Services (CMS) published a final rule (“Final Rule”) imposing new ownership disclosure requirements on Medicare skilled nursing facilities and Medicaid nursing facilities (“nursing homes”). Due to concerns over the quality of patient care in facilities owned by certain types of nursing facility owners, including private equity companies and real estate investment trusts, CMS believes these new disclosure requirements will allow them to monitor and hold nursing homes accountable.
DOJ/HHS Jointly Release “Highlight Reel” Report
This week, the United States Department of Justice (DOJ) and the United States Department of Health and Human Services (HHS) fulfilled its annual statutory obligation by releasing its jointly-authored Health Care Fraud and Abuse Control Program (HCFAC) Report for Fiscal Year 2022.
Second Circuit Decision Undercuts Lawsuits Against NYS Nursing Homes
The U.S. Court of Appeals for the Second Circuit decision held that while nursing homes have a general obligation to adequately care for their residents, there is no specific requirement that nursing homes use Medicaid or Medicare reimbursement payments in a certain way because such payments are reimbursements for services already provided to residents, and do not contain “forward-looking conditions” on how the funds must be used.
OIG Provides Roadmap to Hot-Button Issues
The OIG fulfilled its annual statutory obligation by releasing its Top Management and Performance Challenges (TMC) document. Providers should take note because the document provides important insight into the specific areas over which HHS (and the OIG) will remain focused.
New York DOH Adopts New Requirements for All Adult Care Facilities
On November 15, 2023, the DOH adopted new regulatory requirements for adult ACFs in an effort to expand resident rights in conformance with the CMS’s HCBS rule final rule. ACFs across the State are now required to allow residents to have visitors at any time, giving them unrestricted access to common areas.
OIG Releases New General Compliance Program Reference Guide
On November 6, 2023, the OIG released its General Compliance Program Guidance, the first in a series of new, non-binding reference guides designed to share information with health care compliance professionals and other health care industry stakeholders
FQHC Lessons Learned from the Field: Tips to Avoid OSV Non-Compliance
Join Garfunkel Wild’s attorneys as they discuss the OSV process, highlight the areas HRSA reviewers consider, and impart meaningful tips on how FQHCs can be in compliance.
Temporary Health Care Staffing Agencies Now Required to Register in New York
In what appears to follow a multi-state trend to protect “temporary” workers, as part of the New York Budget for FY 2023-2024, a new law went into effect that requires any entity that provides temporary staff to health care entities to register with the Department of Health (DOH).
CMS Issues Final Rule Ending COVID-19 Vaccination Requirements
On June 5, 2023, the Centers for Medicare and Medicaid Services (“CMS”) published a much anticipated Final Rule surrounding vaccination and related requirements surrounding the COVID-19 Public Health Emergency.
New Jersey Lifts COVID-19 Testing Requirements in Health Care and Congregate Care Settings
Governor Phil Murphy signed an Executive Order lifting COVID-19 testing requirements for health care and congregate care settings. This Executive Order took effect April 3, 2023.
New York Lifts Suspension of Nursing Home Staffing/Minimum Spending Requirements
Governor Kathy Hochul re-instated provisions in the State Public Health Law (Sections 2895-b[3] and 2828[1]). The New York State Department of Health (DOH) later notified nursing home administrators that these two provisions are in “full effect” as of April 1, 2022.
Garfunkel Wild Webinar – Federal No Surprises Act – One Month In. What Have We Learned? What Questions Remain?
Garfunkel Wild’s Debra Silverman and John Martin will present the webinar “Federal No Surprises Act – One month in. What have we learned? What questions remain?" on February 1, 2022, from 12:00 pm – 1:00 pm (EST).
Greater New York Health Care Facilities Association’s Webinar: LTC New Horizons…New Governor
Garfunkel Wild Of Counsel Eve Green Koopersmith will present at the Greater New York Health Care Facilities Association’s Webinar: LTC New Horizons…New Governor, October 7, 2021.
COVID Health Care Worker Mandates: New York, New Jersey and Connecticut
As the Delta variant of COVID-19 continues to spread, New York, New Jersey, and Connecticut have mandated that certain health care workers be vaccinated against COVID-19.
New Laws for New York Nursing Homes Will Take Effect on October 21, 2021
On June 11, 2021, Governor Cuomo signed Senate Bill S6767 into law. The amended law, which takes effect on October 21, 2021, will continue to greatly impact the ownership and operation of nursing homes in New York by imposing broad notice and contract disclosure requirements on nursing homes.
Cuomo Announces End of State of Emergency in New York
On June 23, 2021, Governor Cuomo announced that the State-of-Emergency in New York declared as a result of the COVID-19 pandemic ends June 24, 2021.
New York / Federal Vaccine Requirements for LTC Facilities
In a Dear Administrator Letter (“DAL”) dated May 28, 2021, the New York State Department of Health highlights the differing requirements long-term care (“LTC”) facilities must meet regarding COVID-19 vaccinations under recent federal and state regulations.
Change Is Coming: Proposed Legislation Amends Quality Assurance Activities For Adult Care Facilities
In an effort to prioritize and increase infection control in adult care facilities, SB 1784A and AB 5846 were introduced in the New York State Legislature.
72nd Annual Health Care Association of New Jersey Convention – Virtual
Jeffrey Brown and Robert Del Giorno will present at the 72nd Annual Health Care Association of New Jersey Convention – Virtual – on October 27, 2020.
CMS Releases Guidance On Emergency Preparedness Testing Exercises For Inpatient And Outpatient Facilities
In a memo, dated September 28, 2020, the Director of the Quality, Safety & Oversight Group in CMS’ Center for Clinical Standards and Quality clarified that facilities that activated their emergency plans due to the COVID-19 Public Health Emergency (PHE) are exempt from their next required full-scale community-based or individual, facility-based functional exercise.
New York State Society of Certified Public Accountants (NYSSCPA) Health Care Conference
Andrew Blustein Will present at the New York State Society OF Certified Public Accountants (NYSSCPA) Health Care Conference – September 24, 2020.
CMS Issues Interim Final Rule Announcing New COVID-19 Reporting Requirements for Long Term Care Facilities
On May 1, 2020, the Centers for Medicare and Medicaid Services (CMS) issued an interim final rule with comment period that establishes new COVID-19 reporting requirements for long term care (LTC) facilities.
Garfunkel Wild Webinar – Personal Advance Care Planning in a Pandemic: How can I get my health care proxy, living will, and estate planning documents in order?
Garfunkel Wild’s Eve Green Koopersmith and Doris L. Martin will present the webinar “Personal Advance Care Planning in a Pandemic: How can I get my health care proxy, living will and estate planning documents in order” on April 23, 2020.
Garfunkel Wild Webinar – Nursing Facility Update: 1135 Waivers and NYS Executive Orders Explained Emergency Treatment Protection Act (Immunity) and Telehealth Expansion
Garfunkel Wild’s Eve Green Koopersmith will present the webinar “Nursing Facility Update: 1135 Waivers and NYS Executive Orders Explained Emergency Treatment Protection Act (Immunity) And Telehealth Expansion” on April 21, 2020.
CT Governor Signs Orders Regarding Waivers for Healthcare Providers Related to COVID-19
CT Governor Signs Orders Regarding Waivers for Healthcare Providers Related to COVID-19, Restricting Surprise Bills for Out-of-Network Services and Uninsured COVID-19, and Extending Permits and Pre-Licensure for Health Care Professionals.
CMS Issues Stark Law Blanket Waivers in Response to COVID-19 Pandemic
In an effort to ensure the availability and accessibility of health care items and services, the Centers for Medicare and Medicaid Services (CMS) has issued blanket waivers of sanctions under the federal physician self-referral law (also known as the Stark Law) in response to the COVID-19 pandemic (the “Stark Blanket Waivers”).
Garfunkel Wild Webinar – New Rules, New Monitors and New Spotlight on Nursing Homes
Garfunkel Wild Partner/Director Eve Green Koopersmith will present the webinar “New Rules, New Monitors and New Spotlight on Nursing Homes” on April 1, 2020.
Coronavirus (Covid-19) New York State Nursing Home Guidance
New York State’s rapidly evolving response to COVID-19 has resulted in a number of new Executive Orders (“Orders”) from Governor Cuomo, as well as various regulatory waivers and guidance from the Centers for Medicare and Medicaid Services, the New York State Department of Health and other state agencies.
COVID-19/New York State Emergency Approvals
We have been heartened by many of our client healthcare facilities and providers developing and offering up unique and creative solutions to address the surge of healthcare needs from the evolving COVID-19 outbreak.
Greater New York Health Care Facilities Association (GNYHCFA) Seminar – Regulatory Updates
Eve Green Koopersmith will present at the Greater New York Health Care Facilities Association’s (GNYHCFA) Seminar – Regulatory Updates – March 5, 2020.
Coronavirus (COVID-19) Strategies And Suggestions
The number of confirmed cases of COVID-19 in the United States is increasing rapidly and health care providers need to be prepared. Federal, state and local government agencies recommend that health care providers take various steps during their preparation efforts, including...
Garfunkel Wild Webinar – IPAs & Managed Care – What Nursing Homes Need to Know for 2020?
Garfunkel Wild Partner/Director Debra Silverman will present “IPAs and Managed Care – What Nursing Homes Need to Know for 2020,” on January 29, 2020.
Mental Hygiene Legal Service to Represent New York Nursing Home Residents
The New York State Legislature has expanded the authority of Mental Hygiene Legal Service (“MHLS”) to provide legal assistance to certain residents of residential healthcare facilities.
DOH Revises Methodology for Case Mix Adjustment
On October 9, 2019, New York State Department of Health (DOH) announced that it will be implementing a new methodology for adjusting nursing home Medicaid reimbursement rates, commonly referred to as the “case mix adjustment.” The revised methodology will apply retroactively to July 1, 2019. Under DOH’s revised methodology, adjustments will continue to be made in January and July of each calendar year based on the (Medicaid–only) case mix data for the previous case mix period.
Argentum Executive Director Leadership Institute (EDLI)
Eve Green Koopersmith will present at the Argentum Executive Director Leadership Institute (EDLI) on September 25, 2019.
Fraud and Abuse – Lessons from Esformes Case
John Martin will present the “Fraud and Abuse – Lessons From Esformes Case” Webinar on September 18, 2019.
LeadingAge New York Financial Professionals Annual Conference
Debra A. Silverman will present at the LeadingAge New York Financial Professionals Annual Conference on September 11, 2019.
Community Health Care Services Foundation, Inc. (CHC) Webinar – Managed Long Term Care Managed Long Term Care Value Based Payment Contracting
Debra A. Silverman will present at the Community Health Care Services Foundation, Inc. Webinar – Managed Long Term Care on September 10, 2019.
2019 ASC and Healthcare Management Pre-Symposium Webinar: Resolving Payer Obstacles
Garfunkel Wild Partner/Director Debra A. Silverman and will be joined by Garfunkel Health Advisors to present a complimentary webinar entitled “Resolving Payer Obstacles.”
Garfunkel Wild Webinar – Home Care Referrals, Marketing and the Kickback Laws
Garfunkel Wild Partner/Director Peter M. Hoffman will host a webinar entitled “Home Care Referrals, Marketing, and the Kickback Laws” on Tuesday, March 19, 2019.
CMS Issues New Immediate Jeopardy Guidelines
For those providers and suppliers that are subject to survey in order to maintain their Medicare status (e.g., hospitals, ASCs, SNFs, home health agencies), CMS has published important revisions to its current survey guidelines.
Garfunkel Wild Attorneys Facilitate Transfer of 28 Skilled Nursing Facilities
Garfunkel Wild Attorneys Facilitate Transfer of 28 Skilled Nursing Facilities
Garfunkel Wild’s Long Term Care Practice Group is comprised of individuals with deep experience in this segment of the health care industry, including former general counsels of national companies, who bring a seasoned and practical approach to the many challenges facing providers, suppliers, and investors. Our clients are engaged in skilled nursing, assisted living, home health, rehabilitation, continuing care retirement communities, behavioral health, infusion, and hospice and palliative care.
Our team regularly advises on and assists with:
- Mergers, acquisitions and joint ventures
- Transactional due diligence
- Federal and state regulatory compliance
- State licensure survey and enforcement matters, audits and investigations
- Risk management
- Digital health technology
- HIPAA privacy and security
- Entity formation and structuring
- Third party payor negotiations (including Medicare Advantage and ISNPs)
- Contract negotiations with vendors and other third parties
- Medicare and Medicaid enrollment, compliance and reimbursement issues
- CARES Act compliance
- Labor and employment matters
- Discharge planning and appeals
- Resident rights
- Guardianship proceedings
- Treatment issues, including DNR and MOLST
Our team is available to provide immediate assistance in emergent situations, such as removing immediate jeopardy citations, responding to incidents, communications strategies, conducting incident investigations and addressing urgent treatment, transfer and discharge matters. We also conduct training for facilities and staff concerning new or existing legal requirements. Our team’s broad experience means that an answer to a pressing client question is usually only a phone call away. Garfunkel Wild attorneys are mindful of the many pressures facing industry participants and always strive for unsurpassed responsiveness and efficiency in the handling of matters trusted to us.
Practice Group Contacts
Team
New DOJ Report: Providers Beware
Last week, the U.S. Department of Justice (DOJ) and the U.S. Department of Health and Human Services (HHS) released its annual, jointly authored Health Care Fraud and Abuse Control Program Report (the Report) for Fiscal Year 2023.
New OIG Priorities Emerge in Report
The U.S. Department of Health and Human Services (HHS), Office of Inspector General (OIG) released its Semiannual Report (SAR) to Congress on December 4, 2024.
Navigating HHS-OIG’s New Compliance Guidance for Nursing Facilities: Key Risks, Mitigation Strategies, and Evaluation Considerations
Garfunkel Wild’s Robert Del Giorno, David Traskey, and Colleen Pierson will present the webinar “Navigating HHS-OIG’s New Compliance Guidance for Nursing Facilities: Key Risks, Mitigation Strategies, and Evaluation Considerations” on December 17, 2024, from 12:00 PM – 1:00 PM ET.
OIG Highlights New Concerns
This week, the U.S. Department of Health and Human Services (“HHS”), Office of Inspector General (“OIG”) fulfilled its annual statutory obligation by releasing its 2024 Top Management and Performance Challenges Report (the “Report”). Historically, the Report has not attracted widespread interest in the provider community because it largely focuses on HHS operational challenges. Importantly for providers and other stakeholders, however, the Report reveals crucial insights about compliance priorities for the year ahead.
DEA Extends Telemedicine Prescription Rules Through 2025
The Drug Enforcement Administration (DEA) and the Department of Health and Human Services (HHS) have jointly issued a third emergency extension allowing health care practitioners to prescribe Schedule II-V controlled substances via audio-video telemedicine encounters without an initial in-person evaluation. This extension, effective from January 1, 2025 through December 31, 2025, also provides the DEA with additional time to finalize permanent regulations for prescribing controlled substances through telemedicine.
NYS Department of Health Issues Proposed PACE Regulations
On August 7, 2024, the New York State Department of Health’s (DOH) proposed regulations for a new, unified licensure process for Program of All-Inclusive Care for the Elderly (PACE) organizations were published in the New York State Register. The proposed regulations implement New York Public Health Law (PHL) Article 29-EE, which was enacted in 2022. The proposed regulations, if adopted, will impact PACE organizations that are currently operating, as well as entities with pending and future PACE applications.
Is Your NJ Patient Safety Committee Protected by a Privilege?
In a recent ruling, the New Jersey Supreme Court concluded that the “self-critical analysis” privilege under the Patient Safety Act (“PSA”) and its implementing regulations can only be applicable if the information sought was generated for purposes of an independent patient safety committee that is created solely for the purposes of the PSA (i.e., the information […]
Florida Health Care Association’s Annual Conference & Trade Show
Garfunkel Wild will sponsor the Florida Health Care Association’s (FHCA) Annual Conference & Trade Show.
New York Nursing Homes to Receive Additional 1% Medicaid Rate Increase
On July 16, 2024, the New York State Department of Health (DOH) announced in a letter to nursing home administrators that nursing homes across the state will receive an additional 1% increase in their Medicaid rate after receiving Centers for Medicare and Medicaid Service (CMS) approval. In 2023, New York State approved a 7.5% increase […]
NY Hospital & Long Term Care Legislative Update
Garfunkel Wild’s 2023-24 Legislative Session Update newsletter will keep you up to date on relevant legislation introduced in New York State, particularly involving hospitals and long term care facilities.
NY Issues Statewide Fiscal Intermediary RFP
As we reported in a prior alert titled "NY Upends CDPAP Fiscal Intermediary Framework", the New York State (NYS) budget for fiscal year 2025 significantly changed who can be a Fiscal Intermediary (FI) under the state’s Consumer Directed Personal Assistance Program (CDPAP).
NY AG Faces Major Setback in Fight for Control Over Nursing Home
On June 4, 2024, the New York State Supreme Court, Orleans County held that courts cannot appoint independent health care and financial monitors to make binding “recommendations” – the centerpiece of the New York State Attorney General’s campaign against for-profit nursing homes.
OIG Report Highlights Enforcement Priorities
The U.S. Department of Health and Human Services (HHS), Office of Inspector General (OIG) released its revamped Semiannual Report (SAR) on June 3, 2024. The SAR’s new format focuses on the oversight work OIG completed during the reporting period, and emphasizes how this work directly addresses the Top Management Challenges Facing HHS.
NY Upholds Elimination of Nursing Home Residual Equity Reimbursement
The Court of Appeals recently upheld New York State’s elimination of residual equity, a capital cost component of Medicaid rates afforded to for-profit nursing homes with older facilities (the “Elimination”).
Lawsuit Challenges “Nightmare” Federal Nursing Home Minimum Staffing Mandate
On May 23, 2024, the AHCA filed a lawsuit challenging the CMS's Federal Minimum Staffing Mandate, calling it "irrational" and "unattainable" due to staffing shortages and lack of statutory authority.
Telehealth Update: NY Proposes Controlled Substance Prescribing, Waiting on DEA
On May 15, 2024, the New York State Department of Health (DOH) announced a pivotal change in its regulations, as it intends to permit health care providers to use telemedicine to conduct patient evaluations before prescribing controlled substances. Prior to the COVID-19 pandemic, DOH required health care providers to perform an initial in-person physical evaluation of patients before prescribing controlled substances.
NYSHFA | NYSCAL Annual Conference & Expo
Garfunkel Wild will be a sponsor at NYSHFA| NYSCAL’s Annual Conference & Expo.
Be Prepared! NYS OMIG’s 2024 Work Plan Provides an Audit Roadmap for Health Care Providers of All Types
Garfunkel’s Compliance Webinar Series rolls on with an examination of the 2024 Work Plan published by the New York State Office of Medicaid Inspector General (OMIG).
NY Upends CDPAP Fiscal Intermediary Framework
The recently enacted New York State (NYS) budget for fiscal year 2025 significantly changed who can be a Fiscal Intermediary (FI) under the state’s Consumer Directed Personal Assistance Program (CDPAP). This change was made by amendment to Social Services Law (SSL) § 365-f by eliminating the CDPAP request for offers (RFO) process that was in place for designating FIs (RFO #20039).
FTC Bans Non-Competes Across the Nation
On Tuesday, April 23, 2024, the Federal Trade Commission (FTC) promulgated a final rule banning most non-compete agreements, in any industry, and is set to become effective 120 days after its publication in the Federal Register (the “Final Rule”).
OIG Allows Patient Assistance Programs Funded by Drug Manufacturers
The U.S. Department of Health and Human Services, Office of Inspector General (OIG) posted a favorable Advisory Opinion (24-02) permitting a non-profit organization (Non-Profit) to provide financial support to eligible patients with specific rare diseases through assistance programs (Programs) it operates.
Nursing Home Alert: Dramatic Increase in NYS DOH Life Safety Code Citations
Nursing homes being cited for Life Safety Code (LSC) deficiencies by the New York State Department of Health (DOH) are on the rise. The difficulty achieving substantial compliance or obtaining a waiver places nursing homes at risk for termination from Medicare and Medicaid, denial of payments, and monetary penalties.
OIG Issues New Resource for Single Audits
The United States Department of Health and Human Services (HHS), Office of Inspector General (OIG) recently posted a new educational resource on its website about Single Audits. HHS is the largest grant-making agency in the Federal government, and OIG’s new resource is designed to help key stakeholders understand the scope of Single Audits, as well as improve the overall quality of such audits.
Governor Hochul Proposes Significant Changes to CDPAP and to LHCSA Enrollment in Medicaid
Governor Hochul’s 30-day Amendments to her proposed state fiscal year 2025 Executive Budget would significantly change New York State’s (NYS) Consumer Directed Personal Assistance Program (CDPAP) and what licensed home care services agencies (LHCSAs) can enroll or re-enroll in Medicaid.
New Jersey Medicaid Will Now Reimburse for Services Billed by Social Workers, Counselors
On January 8, 2024, New Jersey passed a law that permits Clinical Social Workers, Professional Counselors, and Marriage and Family Therapists to bill NJ Medicaid/NJ FamilyCare directly for services rendered to Medicaid beneficiaries.
New York OMIG Updates Self-Disclosure Guidance
The New York State Office of the Medicaid Inspector General (OMIG) recently updated its Self-Disclosure Guidance and Frequently Asked Questions (collectively, “Updates”). These Updates give participating providers and entities additional insight into how to report overpayments involving unresponsive Medicaid Managed Care Organizations (MMCOs) or multiple entities, as well as those that are untimely, have adjusted or voided claims, or lost or damaged records.
OMIG’s 2024 Work Plan Gives Critical Insights into Program Integrity Initiatives
The New York State Office of the Medicaid Inspector General (OMIG) released its 2024 work plan in furtherance of its mission to coordinate and conduct activities to prevent, detect and investigate medical assistance program fraud, waste and abuse, and to recover improperly expended Medicaid funds.
OIG’s Newest Strategic Plan Prioritizes Managed Care Oversight
The U.S. Department of Health and Human Services, Office of Inspector General (OIG) recently designated oversight of managed care as a “priority area”, and developed a coordinated strategic plan (the Plan) to better align its audits, evaluations, investigations, and enforcement of managed care.
OIG Issues Toolkit for Medicare Advantage Organizations
The U.S. Department of Health and Human Services, Office of Inspector General (OIG) released a new toolkit to help Medicare Advantage (MA) organizations replicate OIG audit methodologies to detect and correct inaccurate diagnosis codes in their own systems.
OIG Approves Use of Gift Cards for Referrals in Certification-Heavy Advisory Opinion
The U.S. Department of Health and Human Services, Office of Inspector General (OIG) posted a favorable Advisory Opinion (23-15) permitting a consulting company’s (Consultant) proposal to offer gift cards to its current physician practice customers for referring potential new physician practice customers to Consultant. Notably, OIG determined that the proposed arrangement did not implicate the Anti-Kickback Statute (AKS).
OIG Approves Creative Approach to Restructuring Medical Practice Partnerships
The U.S. Department of Health and Human Services, Office of Inspector General (OIG) posted a favorable Advisory Opinion (23-12) that allows a limited liability partnership (the Partnership) consisting of two classes of physician partners to make a one-time, voluntary redemption offer (offer) to individual partners when they reach age 67.
OIG’s Favorable Advisory Opinions Allow Incentives to Medigap Plan Policyholders
The U.S. Department of Health and Human Services, Office of Inspector General (OIG) posted two favorable Advisory Opinions (23-09 and 23-10) to allow a licensed offeror of Medicare Supplemental Health Insurance (Medigap Plan) policies and a preferred health organization (PHO) (collectively, “the requestors”) to incentivize Medigap Plan policyholders to seek inpatient care from a hospital within the PHO’s network. Notably, OIG issued these favorable opinions even though the proposed incentives implicated the Anti-Kickback Statute (AKS) and the Beneficiary Inducement Civil Money Penalty (CMP), and there was no applicable exception or safe harbor.
More Provider “Nuggets” From OIG’s Year-End Reporting Blitz
Continuing its year-end reporting blitz, the U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) released its Semiannual Report (SAR) to Congress on December 1, 2023.
New CMS Disclosure Requirements for Nursing Homes
On November 17, 2023, the U.S. Department of Health and Human Services’ Centers for Medicare and Medicaid Services (CMS) published a final rule (“Final Rule”) imposing new ownership disclosure requirements on Medicare skilled nursing facilities and Medicaid nursing facilities (“nursing homes”). Due to concerns over the quality of patient care in facilities owned by certain types of nursing facility owners, including private equity companies and real estate investment trusts, CMS believes these new disclosure requirements will allow them to monitor and hold nursing homes accountable.
DOJ/HHS Jointly Release “Highlight Reel” Report
This week, the United States Department of Justice (DOJ) and the United States Department of Health and Human Services (HHS) fulfilled its annual statutory obligation by releasing its jointly-authored Health Care Fraud and Abuse Control Program (HCFAC) Report for Fiscal Year 2022.
Second Circuit Decision Undercuts Lawsuits Against NYS Nursing Homes
The U.S. Court of Appeals for the Second Circuit decision held that while nursing homes have a general obligation to adequately care for their residents, there is no specific requirement that nursing homes use Medicaid or Medicare reimbursement payments in a certain way because such payments are reimbursements for services already provided to residents, and do not contain “forward-looking conditions” on how the funds must be used.
OIG Provides Roadmap to Hot-Button Issues
The OIG fulfilled its annual statutory obligation by releasing its Top Management and Performance Challenges (TMC) document. Providers should take note because the document provides important insight into the specific areas over which HHS (and the OIG) will remain focused.
New York DOH Adopts New Requirements for All Adult Care Facilities
On November 15, 2023, the DOH adopted new regulatory requirements for adult ACFs in an effort to expand resident rights in conformance with the CMS’s HCBS rule final rule. ACFs across the State are now required to allow residents to have visitors at any time, giving them unrestricted access to common areas.
OIG Releases New General Compliance Program Reference Guide
On November 6, 2023, the OIG released its General Compliance Program Guidance, the first in a series of new, non-binding reference guides designed to share information with health care compliance professionals and other health care industry stakeholders
FQHC Lessons Learned from the Field: Tips to Avoid OSV Non-Compliance
Join Garfunkel Wild’s attorneys as they discuss the OSV process, highlight the areas HRSA reviewers consider, and impart meaningful tips on how FQHCs can be in compliance.
Temporary Health Care Staffing Agencies Now Required to Register in New York
In what appears to follow a multi-state trend to protect “temporary” workers, as part of the New York Budget for FY 2023-2024, a new law went into effect that requires any entity that provides temporary staff to health care entities to register with the Department of Health (DOH).
CMS Issues Final Rule Ending COVID-19 Vaccination Requirements
On June 5, 2023, the Centers for Medicare and Medicaid Services (“CMS”) published a much anticipated Final Rule surrounding vaccination and related requirements surrounding the COVID-19 Public Health Emergency.
New Jersey Lifts COVID-19 Testing Requirements in Health Care and Congregate Care Settings
Governor Phil Murphy signed an Executive Order lifting COVID-19 testing requirements for health care and congregate care settings. This Executive Order took effect April 3, 2023.
New York Lifts Suspension of Nursing Home Staffing/Minimum Spending Requirements
Governor Kathy Hochul re-instated provisions in the State Public Health Law (Sections 2895-b[3] and 2828[1]). The New York State Department of Health (DOH) later notified nursing home administrators that these two provisions are in “full effect” as of April 1, 2022.
Garfunkel Wild Webinar – Federal No Surprises Act – One Month In. What Have We Learned? What Questions Remain?
Garfunkel Wild’s Debra Silverman and John Martin will present the webinar “Federal No Surprises Act – One month in. What have we learned? What questions remain?" on February 1, 2022, from 12:00 pm – 1:00 pm (EST).
Greater New York Health Care Facilities Association’s Webinar: LTC New Horizons…New Governor
Garfunkel Wild Of Counsel Eve Green Koopersmith will present at the Greater New York Health Care Facilities Association’s Webinar: LTC New Horizons…New Governor, October 7, 2021.
COVID Health Care Worker Mandates: New York, New Jersey and Connecticut
As the Delta variant of COVID-19 continues to spread, New York, New Jersey, and Connecticut have mandated that certain health care workers be vaccinated against COVID-19.
New Laws for New York Nursing Homes Will Take Effect on October 21, 2021
On June 11, 2021, Governor Cuomo signed Senate Bill S6767 into law. The amended law, which takes effect on October 21, 2021, will continue to greatly impact the ownership and operation of nursing homes in New York by imposing broad notice and contract disclosure requirements on nursing homes.
Cuomo Announces End of State of Emergency in New York
On June 23, 2021, Governor Cuomo announced that the State-of-Emergency in New York declared as a result of the COVID-19 pandemic ends June 24, 2021.
New York / Federal Vaccine Requirements for LTC Facilities
In a Dear Administrator Letter (“DAL”) dated May 28, 2021, the New York State Department of Health highlights the differing requirements long-term care (“LTC”) facilities must meet regarding COVID-19 vaccinations under recent federal and state regulations.
Change Is Coming: Proposed Legislation Amends Quality Assurance Activities For Adult Care Facilities
In an effort to prioritize and increase infection control in adult care facilities, SB 1784A and AB 5846 were introduced in the New York State Legislature.
72nd Annual Health Care Association of New Jersey Convention – Virtual
Jeffrey Brown and Robert Del Giorno will present at the 72nd Annual Health Care Association of New Jersey Convention – Virtual – on October 27, 2020.
CMS Releases Guidance On Emergency Preparedness Testing Exercises For Inpatient And Outpatient Facilities
In a memo, dated September 28, 2020, the Director of the Quality, Safety & Oversight Group in CMS’ Center for Clinical Standards and Quality clarified that facilities that activated their emergency plans due to the COVID-19 Public Health Emergency (PHE) are exempt from their next required full-scale community-based or individual, facility-based functional exercise.
New York State Society of Certified Public Accountants (NYSSCPA) Health Care Conference
Andrew Blustein Will present at the New York State Society OF Certified Public Accountants (NYSSCPA) Health Care Conference – September 24, 2020.
CMS Issues Interim Final Rule Announcing New COVID-19 Reporting Requirements for Long Term Care Facilities
On May 1, 2020, the Centers for Medicare and Medicaid Services (CMS) issued an interim final rule with comment period that establishes new COVID-19 reporting requirements for long term care (LTC) facilities.
Garfunkel Wild Webinar – Personal Advance Care Planning in a Pandemic: How can I get my health care proxy, living will, and estate planning documents in order?
Garfunkel Wild’s Eve Green Koopersmith and Doris L. Martin will present the webinar “Personal Advance Care Planning in a Pandemic: How can I get my health care proxy, living will and estate planning documents in order” on April 23, 2020.
Garfunkel Wild Webinar – Nursing Facility Update: 1135 Waivers and NYS Executive Orders Explained Emergency Treatment Protection Act (Immunity) and Telehealth Expansion
Garfunkel Wild’s Eve Green Koopersmith will present the webinar “Nursing Facility Update: 1135 Waivers and NYS Executive Orders Explained Emergency Treatment Protection Act (Immunity) And Telehealth Expansion” on April 21, 2020.
CT Governor Signs Orders Regarding Waivers for Healthcare Providers Related to COVID-19
CT Governor Signs Orders Regarding Waivers for Healthcare Providers Related to COVID-19, Restricting Surprise Bills for Out-of-Network Services and Uninsured COVID-19, and Extending Permits and Pre-Licensure for Health Care Professionals.
CMS Issues Stark Law Blanket Waivers in Response to COVID-19 Pandemic
In an effort to ensure the availability and accessibility of health care items and services, the Centers for Medicare and Medicaid Services (CMS) has issued blanket waivers of sanctions under the federal physician self-referral law (also known as the Stark Law) in response to the COVID-19 pandemic (the “Stark Blanket Waivers”).
Garfunkel Wild Webinar – New Rules, New Monitors and New Spotlight on Nursing Homes
Garfunkel Wild Partner/Director Eve Green Koopersmith will present the webinar “New Rules, New Monitors and New Spotlight on Nursing Homes” on April 1, 2020.
Coronavirus (Covid-19) New York State Nursing Home Guidance
New York State’s rapidly evolving response to COVID-19 has resulted in a number of new Executive Orders (“Orders”) from Governor Cuomo, as well as various regulatory waivers and guidance from the Centers for Medicare and Medicaid Services, the New York State Department of Health and other state agencies.
COVID-19/New York State Emergency Approvals
We have been heartened by many of our client healthcare facilities and providers developing and offering up unique and creative solutions to address the surge of healthcare needs from the evolving COVID-19 outbreak.
Greater New York Health Care Facilities Association (GNYHCFA) Seminar – Regulatory Updates
Eve Green Koopersmith will present at the Greater New York Health Care Facilities Association’s (GNYHCFA) Seminar – Regulatory Updates – March 5, 2020.
Coronavirus (COVID-19) Strategies And Suggestions
The number of confirmed cases of COVID-19 in the United States is increasing rapidly and health care providers need to be prepared. Federal, state and local government agencies recommend that health care providers take various steps during their preparation efforts, including...
Garfunkel Wild Webinar – IPAs & Managed Care – What Nursing Homes Need to Know for 2020?
Garfunkel Wild Partner/Director Debra Silverman will present “IPAs and Managed Care – What Nursing Homes Need to Know for 2020,” on January 29, 2020.
Mental Hygiene Legal Service to Represent New York Nursing Home Residents
The New York State Legislature has expanded the authority of Mental Hygiene Legal Service (“MHLS”) to provide legal assistance to certain residents of residential healthcare facilities.
DOH Revises Methodology for Case Mix Adjustment
On October 9, 2019, New York State Department of Health (DOH) announced that it will be implementing a new methodology for adjusting nursing home Medicaid reimbursement rates, commonly referred to as the “case mix adjustment.” The revised methodology will apply retroactively to July 1, 2019. Under DOH’s revised methodology, adjustments will continue to be made in January and July of each calendar year based on the (Medicaid–only) case mix data for the previous case mix period.
Argentum Executive Director Leadership Institute (EDLI)
Eve Green Koopersmith will present at the Argentum Executive Director Leadership Institute (EDLI) on September 25, 2019.
Fraud and Abuse – Lessons from Esformes Case
John Martin will present the “Fraud and Abuse – Lessons From Esformes Case” Webinar on September 18, 2019.
LeadingAge New York Financial Professionals Annual Conference
Debra A. Silverman will present at the LeadingAge New York Financial Professionals Annual Conference on September 11, 2019.
Community Health Care Services Foundation, Inc. (CHC) Webinar – Managed Long Term Care Managed Long Term Care Value Based Payment Contracting
Debra A. Silverman will present at the Community Health Care Services Foundation, Inc. Webinar – Managed Long Term Care on September 10, 2019.
2019 ASC and Healthcare Management Pre-Symposium Webinar: Resolving Payer Obstacles
Garfunkel Wild Partner/Director Debra A. Silverman and will be joined by Garfunkel Health Advisors to present a complimentary webinar entitled “Resolving Payer Obstacles.”
Garfunkel Wild Webinar – Home Care Referrals, Marketing and the Kickback Laws
Garfunkel Wild Partner/Director Peter M. Hoffman will host a webinar entitled “Home Care Referrals, Marketing, and the Kickback Laws” on Tuesday, March 19, 2019.
CMS Issues New Immediate Jeopardy Guidelines
For those providers and suppliers that are subject to survey in order to maintain their Medicare status (e.g., hospitals, ASCs, SNFs, home health agencies), CMS has published important revisions to its current survey guidelines.
Garfunkel Wild Attorneys Facilitate Transfer of 28 Skilled Nursing Facilities
Garfunkel Wild Attorneys Facilitate Transfer of 28 Skilled Nursing Facilities