Reforming the Survey Process: An Interview with Alan C. Horowitz

Alan C. Horowitz, Esq., RN

The survey system required of facilities participating in the Medicare or Medicaid programs was originally designed to ensure that facilities were in compliance with the programs’ requirements. However, many within the long-term care sector, ranging from geriatricians and other health care workers to resident advocates, agree that the survey system is in need of reform.

The recent publication of, Time for an Upgrade in the Nursing Home Survey Process: A Position Statement From the Society for Post-Acute and Long-Term Care Medicine draws further attention to the survey process. Complete with recommendations for reform, the position statement has generated an ongoing conversation about the survey process.

Alan C. Horowitz, Esq., RN, and a member of the i Advance Senior Care Advisory Board, was a member of the workgroup that developed this position statement. We are pleased to share his insights with you in the below interview.

IASC: Can you describe some of the issues that exist with the current approach to nursing home surveys?

AH: By way of brief background, the survey system that applies to skilled nursing facilities (“SNF”) and nursing facilities (“NF”) that participate in the Medicare and/or Medicaid programs is mandated by federal law i.e., (the Social Security Act) and the implementing federal regulations. Every SNF must be surveyed annually (or not longer than 15 months) and whenever there are complaints. The latter form of surveys is known as a “complaint investigation” or an “abbreviated survey.” The primary focus of any survey is to make sure that a SNF is in “substantial compliance” with Medicare’s Requirements of Participation promulgated by the Centers for Medicare and Medicaid Services (“CMS”). (“Substantial compliance” is defined by regulation as having no conditions that could cause “more than minimal harm” [or actual harm] to even a single resident.)

When there are deficiencies (i.e., instances of noncompliance), CMS is authorized to impose one or several enforcement actions (euphemistically referred to as “remedies” or “sanctions”) such as, a civil money penalty (“CMP”); a denial of payment for new admissions (“DPNA”); a directed in-service; a directed plan of correction; temporary management; and/or termination from the Medicare and Medicaid programs. The latter sanction is tantamount to the financial kiss of death since a loss of Medicare and Medicaid revenue would probably financially cripple most SNFs. The above background is necessary to understand any meaningful discussion about the survey process.

I have personally been involved with surveys as in-house counsel for a SNF, as an Assistant Regional Counsel at U.S. Department of Health and Human Service representing CMS in actions taken against SNFs for hundreds of cases over a 12-year period, and currently, as a partner in a law firm with a robust health care practice representing nursing homes throughout the country. So, I’ve been in the trenches, argued cases both for, and now, against CMS dealing with surveys and their resultant enforcement actions. There is no reasonable person who would argue that the current survey system is not broken and in serious need of redesigning.

The main problem with a survey system in need of reform is that it fails to optimize results for residents who deserve the highest quality care. Further, there are additional negative consequences, including, but not limited to, driving good providers out of the industry; demoralizing staff from medical directors to nurses to nurse aides, which further compromises resident care; and diverting large sums of money from resident care issues and staffing to pay for punitive CMPs, often in excess of $1 million.

Some consumer advocacy groups feel that CMS should actually increase its enforcement actions when SNFs are alleged to not be in substantial compliance. Yet, there has never been a credible study that supports the unsustainable premise that increased CMPs and/or other enforcement actions have a positive correlation to improved resident outcomes. Among the many serious problems – documented by the Government Accountability Office (GAO) and others for decades – is the regional variability among survey findings from state to state as well as intrastate discrepancies given similar if not identical fact patterns. Additionally, many well-intentioned surveyors simply lack sufficient knowledge to question a complex medical issue or understand the root cause of a problem.

Another issue is that sometimes surveyors – which are typically State department of health employees, mostly registered nurses, who work under contract with CMS – will determine that there are no deficiencies or none that rise to the highest level, “immediate jeopardy.” However, some of the 10 regional CMS offices will direct the surveyors to return to the SNF and cite deficiencies, including “immediate jeopardy,” which carries significant and often six or seven-figure CMPs as well as other draconian consequences. Thus, at times there is an apparent disconnect between what State surveyors determine and how CMS views the results with CMS having the final say.

As noted above, I have observed the survey process from both sides (CMS and providers) firsthand, beginning in 1990, when I was in-house counsel for a nursing facility. I have litigated myriad enforcement actions based on surveys for over 20 years, and sadly, the nursing home survey process has never been more adversarial than at present. However unintentional, the adversarial nature of the survey process has created a toxic atmosphere where many desperately needed and dedicated healthcare workers, from medical directors to nurses to nurse aides to therapists, have chosen to simply leave the entire long-term care field. Likewise, attracting qualified clinicians who will be subjected to an often unnecessarily hostile survey compromises the ability of a facility to recruit and retain the best healthcare workers.

What makes a bad situation worse is that we have never needed qualified healthcare workers more than now given the current COVID-19 pandemic. Over the years I have met too many dedicated healthcare workers who were literally reduced to tears and/or resigned their position and decided to work in a different milieu because of the actions and hostility of some surveyors. While that does not represent all or thankfully most surveyors, no surveyor should be the cause of a healthcare worker crying or leaving the field, absent extraordinary circumstances not usually present. I have represented small family-owned SNFs with dedicated owners that chose to voluntarily close the facility and “get out of the business” because of 1) the current surveyor process and 2) frequently excessive enforcement actions by CMS.

Actually, the above represents the tip of the iceberg but provides an overview of some of the serious issues concerning surveys, which is one reason why AMDA decided to form a Survey Workgroup, described more fully below. The primary purpose was to improve resident outcomes and how the survey process could be enhanced to foster that goal.

IASC: How did you become a member of the AMDA Survey Workgroup?

AH: I have been a (non-physician) member of AMDA for several years. I have been fortunate to meet many of its leaders who, like all of its members, are extraordinarily dedicated professionals. Additionally, I have given presentations regarding legal aspects of long-term care at many AMDA annual conferences and State chapters over the years. I think it was my clinical background as a registered nurse and respiratory therapist and being in the trenches as well as my having represented both CMS and now providers for more than 30 years that enabled me to be invited to be a part of the Workgroup, for which I am extremely grateful. Actually, I think I was just lucky to be invited to join the Workgroup.

IASC: How did the AMDA Survey Workgroup meet?

AH: The Workgroup met on a monthly basis for over one year by way of conference calls since the members of the group were in different geographic locations, literally from coast-to coast. In additional to our monthly meetings, we communicated regularly by email and calls, sharing relevant information including multiple documents from GAO Reports to research papers throughout the duration of the Workgroup’s existence.

IASC: How did you arrive at the final set of recommendations included in the Position Statement?

AH: At our monthly meetings, we would typically have invited guests with specific relevant expertise to gain as broad and comprehensive a perspective as possible. Those guests included former CMS officials, nationally recognized health care experts, policy makers, academics, and of course, nationally recognized geriatricians considered leaders in the field. Dr. Nazir, as the leader of the Workgroup, kept the meetings focused by having a predetermined agenda and the minutes of each meeting were recorded and disseminated for approval. The Position Paper represents a synthesis of all of the input from Workgroup members, invited guests, and numerous documents and research articles related to surveyors. We believe that those recommendations are, at a bare minimum, worthy of consideration.

IASC: What has the general reaction to the Position Statement been so far?

AH: From my perspective, the reaction has been mostly positive although somewhat mixed. I think the provider community welcomes it and even some former CMS officials who are friends of mine thought it was a very positive and productive effort at initiating a long-overdue dialogue about survey reform. One retired CMS official who is a close friend confided that she had been trying to make changes to the survey system for years without any measurable success and welcomed the result of the Workgroup – AMDA’s Position Statement.

However, some well-intentioned advocacy groups may have the misunderstanding that we created a position statement for the sake of facilities. Nothing could be further from the truth. The reality is that the Workgroup was and is concerned first and foremost with improving resident outcomes and their quality of life. And, since the survey process is in need of reform, that was our focus; to stimulate a constructive discussion among all stakeholders, including policy makers.

IASC: What type of action do you hope the Position Statement generates?

AH: Obviously, it is our hope that the Workgroup, which resulted in AMDA’s Position Statement, encourages a constructive dialogue across the spectrum with input from all stakeholders on how the survey process can be modified to improve resident outcomes. As a nation, we are at an inflection point regarding long-term care. The devastating effects of the COVID-19 pandemic has refocused the limelight on long-term care and the survey process. Perhaps, there never was a better or more necessary time to reform the survey process. The opportunity is certainly there, as is the need.

IASC: Is there anything else that you think our readers should know?

AH: The person who really deserves the most credit is Dr. Arif Nazir, the former president of AMDA and the person who spearheaded the project and spent countless hours poring over research papers, GAO reports, and myriad other related material. Dr. Nazir’s tireless efforts, in addition to being Chief Medical Officer at a large national chain of nursing homes, kept us focused and inspired. The real heroes are the medical directors on the Workgroup, each of whom is a recognized leader in the field. I was truly humbled to be among their company. Dr. Nazir and the other members are the ones who deserve the recognition. Even before the COVID-19 pandemic, these incredible physicians – all of whom I had the great privilege to get to know – represent the finest of human qualities: compassion, commitment to excellence in geriatric medicine, and a profound dedication to making life as comfortable as possible for the most frail and often medically complex segment of our population. Each of the co-authors are not only thought leaders and extraordinary geriatricians but role models for physicians and anyone who cares about the welfare of another. They exemplify the very best among us and again, it was a genuine privilege to be among such a dedicated group of leaders who care so deeply, provide outstanding medical care, and literally save lives because they love what they do. Hopefully, our work will result in a much-needed constructive dialogue among all stakeholders, including resident advocates about how we can improve residents’ quality of life by rethinking and improving the current survey system.

IASC: There has been much contention about the survey process lately, including talk of implementing harsher penalties. What is your opinion about the current actions surrounding CMS enforcements?

AH: Recently, there has been much speculation about harsher penalties for nursing facilities that are not in substantial compliance with the federal Requirements of Participation. The new Secretary of HHS, Xavier Becerra, has been critical of the current enforcement process and has previously written to Congress complaining that CMS’ enforcement process is not robust enough. Moreover, the American Association of Retired Persons (AARP) has filed suit against CMS, alleging that it “violated the law by limiting enforcement penalties for nursing homes.”

In my opinion, respectfully, the lawsuit filed by AARP is flawed and contains inaccurate information. For example, according to the AARP press release linked above, “The suit centers on a July 2017 directive from CMS that restricts monetary penalties for nursing homes that violate federal law. Under the directive, states and CMS may only impose a one-time fine for a violation, not to exceed $22,320, rather than a fine of up to $22,320 for each day of noncompliance.” Respectfully, that is simply incorrect. What the July 7, 2017 CMS memo states is that, “[a] Per Day CMP will be used to address noncompliance that occurred where: (1) a resident suffers actual serious harm at the immediate jeopardy level; (2) a resident was abused; (3) or the facility had persistent deficient practices violating federal regulations.”

Moreover, the CMS Survey & Certification Memo referred to above states that, “If the [CMS] RO [Regional Office] determines that imposition of a CMP will best achieve the goal, the ROs use an analytic tool to calculate the amount imposed based on the type of noncompliance.” That Memo unequivocally states that “When selecting an enforcement remedy, CMS Regional Offices (ROs) review the survey findings to determine which remedy is most appropriate to address the noncompliance.” That sounds like “the punishment should fit the crime” and not, “let’s limit enforcement remedies,” as the AARP suit alleges.

The courts will decide if the AARP suit is correct that CMS violated the law by limiting enforcement actions, or if the Memo, which is sub-regulatory guidance and does not have the force of a regulation, nor can it supersede a regulation, merely provides flexibility to the CMS ROs to use the most appropriation sanctions in a given situation, whether a per day or a per instance CMP, a directed in-service, a directed plan of correction, state monitoring or termination from the Medicare program is best-suited for the underlying issue. Poor performing nursing homes should be held fully accountable, as the CMS Memo notes and everyone agrees with.

I applaud the AARP for seeking to improve the quality of care and life of residents in nursing homes. However, higher CMPs, which are already over $1 million in many cases, have never been proven to benefit residents. We all want to see resident care optimized. The question is whether we use the carrot or the stick. Surely, some, if not all of the recommendations in AMDA’s position statement referred to above are worthy of consideration rather than simply calling for “stiffer fines” and harsher punishment. Wouldn’t it be nice if all stakeholders were willing to cooperatively work together to determine the best way to fix a broken survey process? I respectfully suggest that we consider all options, especially the recommendations found in AMDA’s Position Statement, not just the “Let’s punish nursing homes more” approach. Residents in nursing homes deserve a survey process that actually achieves the optimal outcome and improves the quality of their lives. We owe it to those residents to consider all options that have the potential to improve the survey process.

The opinions above solely reflect the views of Alan C. Horowitz, Esq.; the AARP lawsuit and the nomination of Mr. Becerra to be Secretary of HHS occurred after the Survey Workgroup made its recommendations.

Paige Cerulli

Paige Cerulli is a contributing writer to i Advance Senior Care.