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Scott Loftin

Scott assists healthcare providers in navigating the complex state and federal regulatory environment in which they operate, including Medicare and Medicaid requirements of participation, licensing requirements, reimbursement issues and general operational and risk-management considerations. Scott handles matters including:

  • Anti-Kickback Statute
  • Stark Law
  • False Claims Act

There is a common saying in healthcare – “if it isn’t documented, it didn’t happen.” In the healthcare industry, and particularly in the long-term care (“LTC”) sector, clinical and operational documentation has long been critical for purposes of ensuring appropriate patient care and demonstrating compliance with the myriad regulatory requirements imposed by the Centers for Medicare & Medicaid Services (“CMS”), as well as state licensing and Medicaid agencies.

COVID-19 clearly presents unique challenges to LTC facilities. Although infection control and emergency planning protocols are not new to LTC facilities, the rapidly changing landscape of guidance issued by federal, state, and local regulatory bodies relating to COVID-19 has placed LTC facilities in a position where they must implement, and simultaneously communicate to staff, residents, and resident family members, new or updated clinical and operational protocols on a daily, if not hourly, basis. Given the urgency in ensuring appropriate protocols are in place, there is often an emphasis on action, as opposed to documenting the actions taken.

On April 7, 2020, the U.S. District Court for the Western District of Arkansas granted summary judgment in favor of the U.S. Department of Health and Human Services (“DHHS”) in the closely-watched Northport case. In this case, certain nursing facility industry plaintiffs challenged the enforceability of the most recent iteration of the Centers for Medicare & Medicaid Services’ (“CMS”) rule governing the use of pre-dispute arbitration agreements with residents in long-term care (“LTC”) facilities that participate in the Medicare or Medicaid programs. In finding for the government, the Northport court held that the rule was a valid exercise of CMS’s authority under the Administrative Procedures Act (“APA”), was adopted in accordance with federal procedural rules, and does not conflict with the Federal Arbitration Act (“FAA”).