Consider Self-Assessment as Risk Management Strategy. The COVID-19 pandemic has arrived, and it could be here for a while. SNFs should act now to broaden their pandemic response to include preemptive risk management strategic planning. To really get ready, turn an unflinching eye on past practices and understand how operations could appear from a plaintiff attorney’s, surveyor’s, or government investigator’s perspective. A SNF must realistically assess itself, warts and all.

Privilege Protections Should be Considered Now. While a critical assessment is necessary to understand potential liability moving forward, it should be conducted under various privilege and confidentiality protections available to SNFs. This way, SNFs can limit future discoverability of their audits, findings, and conclusions to the greatest extent possible. It is much harder, if not impossible, to protect documents and information that could have been privileged but were not created or handled as necessary.

Thus, the very first step in risk management strategy should be understanding and preparing to exercise the various privileges provided under State and Federal law.

Understand Applicable Privileges. Below is a high-level overview of Federal privileges. Some State privilege laws/rules are very similar to Federal laws/rules but are not necessarily identical in language or with respect to how they are applied. Federal privilege laws/rules will often apply in Federal court, and State privilege laws/rules will apply in State court. However, this is not always the case, as the applicable requirements, State or Federal, can be a very fact-specific determination. Finally, and most importantly, privileges are never absolute. All of these protections are subject to certain limitations and important exceptions, which is why a SNF should work closely with legal counsel during this process. The other reason to engage legal counsel is because certain privilege protections are available only with attorney involvement.

• Attorney-Client. Applies to information communicated between an attorney and client, in confidence, for the purpose of seeking, obtaining, or providing legal assistance to the client.
• Work Product. Applies to documents and tangible things created by a party or its representative(s) in anticipation of litigation or for trial. Representatives include attorneys, consultants, and other agents of the party seeking work product protection.  
• Quality Assurance (for SNF surveys). A SNF is required to maintain a quality assessment and assurance committee that meets certain specifications. The records of this committee (and often – but not always – records created at the instruction of the committee) are protected from disclosure to a State or the U.S. Department of Health and Human Services. In some instances, this may include Quality Assurance and Performance Improvement (QAPI) documents and records too, depending upon how the committees are structured and how the information is generated and maintained.
• ‍Patient Safety Work Product. Applies to data, reports, records, memoranda, analysis, or written and oral statements assembled and developed for reporting to a Patient Safety Organization (PSO) and which has actually been submitted to a PSO approved by the Agency for Healthcare Research and Quality.         

Act Now to Secure Privilege Protections. Clearly, SNFs have been working overtime to keep residents and staff safe and to stay current with the latest infection control guidance. However, when it comes to taking full advantage of privilege protections, time is of the essence. An organized and coordinated strategic plan is key to maximizing the privilege protection available to you and the volume of covered information, as well as for minimizing the risk that the government or plaintiff’s counsel will successfully counter it.

Consider Involvement of Legal Counsel. We strongly suggest that you work with legal counsel to prepare for future litigation by reviewing your policies, procedures, and workflows to ensure SNFs avail themselves to quality assurance and peer review privileges and by providing attorney-client and attorney work product protections whenever possible.