Challenging surveys

After a tense day of having surveyors in your facility, the survey team meets with your administrator and director of nursing. The survey team leader announces that "immediate jeopardy" exists in the facility. Feelings of dread circulate through the room—everyone has heard stories of the brewing storm and cascade of events that seem sure to unfold.

Now what?

Depending on the underlying facts, survey findings do not have to be accepted without considering an appeal. Having previously litigated cases involving enforcement actions for the Centers for Medicare & Medicaid Services (CMS) and now providers, the author provides a brief overview of the process facilities can use to challenge survey findings and the resultant enforcement actions imposed by CMS.

Following a survey alleging serious deficiencies, the state survey agency (SSA) will send a notice of its findings and a copy of the statement of deficiencies. The notice will explain that the facility has 10 calendar days with which to request an informal dispute resolution (IDR) to challenge the deficiencies. Depending on which state the facility is in, the SSA may make a recommendation to CMS for specific enforcement actions such as a discretionary denial of payment for new admissions and a civil money penalty (CMP). Next, CMS will send a notice imposing one or more sanctions. Both notices start the clock ticking for critical decisions the facility must make.

IDR OR IIDR?

One of the earliest decisions a provider must make is whether to request an IDR or an independent informal dispute resolution (IIDR). As of Jan. 1, 2012, facilities have the right to request an IIDR when CMS imposes and escrows a CMP. The IIDR process offers several advantages, such as being conducted by an entity that is "organizationally separate" from the state agency. Keep in mind that the 10 calendar days in which to request either IDR or IIDR begins with receipt of the notice from the SSA and CMS, respectively. Once an IIDR is submitted, the process should be completed within 60 days of the facility’s request.

Both an IDR and IIDR provide an informal process to challenge questionable deficiencies. They also allow a facility to evaluate the strength or weakness of the deficiency. In most regions, CMS generally accepts the results of an IDR/IIDR and success at either may eliminate the need to litigate a case or may enhance settlement opportunities, depending on the particular circumstances. Even if deficiencies are not deleted during an IDR/IIDR, they may have their scope and severity downgraded.

Preparing for either IDR or IIDR consumes facility resources, but depending on the allegations and their consequences, it may be a wise investment of facility time and energy. The outcome of an IDR/IIDR may be a double-edged sword, however. If a provider is not successful at an IDR/IIDR, then CMS likely will use the findings against the provider in a related appeal. Conversely, a provider can submit favorable IDR/IIDR findings as evidence undermining a deficiency in any related appeal.

An IIDR requires that the state’s long-term care ombudsman and any residents (or their representatives) involved with the challenged deficiency must be notified and be allowed to submit their written statements to the IIDR entity. Contingent on the underlying facts, notifying a resident cited under a deficiency may help or hinder the facility. Another important point: Neither IDR nor IIDR results are binding on CMS; they are “recommendations” that CMS may reject. Neither will delay enforcement actions or timelines, such as the time to file a formal request for hearing (appeal).

APPEALS TO AN ADMINISTRATIVE LAW JUDGE

Whether or not a facility pursues an IDR or IIDR, the facility may still request a hearing before an administrative law judge (ALJ) of the Departmental Appeals Board. A written request for an appeal must be filed within 60 calendar days from receipt of the notice from CMS. The facility must state the findings of fact and conclusions of law with which it disagrees and the basis for the disagreement.

The regulations explicitly provide that only “initial determinations” may be appealed. Thus, only a deficiency that resulted in an enforcement action is appealable. Because CMS’ designation that a facility is a special focus facility is not an initial determination, it may not be appealed. ALJs and the board have refused to permit a hearing on that issue.

DEPARTMENTAL APPEALS BOARD

Either CMS or a provider dissatisfied with an ALJ’s decision may file an appeal with the board. Appeals of ALJ decisions must be filed within 60 calendar days of the ALJ’s decision. These appeals are not an evidentiary hearing, and no new evidence is generally permitted. The issue is whether the ALJ’s conclusion of law is erroneous and whether the findings of fact are supported by the evidence in the record taken as a whole.

FEDERAL COURT

If CMS does not prevail at the board level, it may not appeal any further. If a provider loses at the board level, however, it may seek judicial review in either the U.S. Court of Appeals (for appeals of CMPs) or U.S. District Court (for appeals of termination).

WHY APPEAL?

A recent Region IV case illustrates the benefits of an appeal. CMS claimed that immediate jeopardy existed at a facility and imposed a CMP of approximately $275,000. The reason: Surveyors alleged that a resident died after choking on a four-inch piece of bacon. In fact, there was no bacon, the resident never choked and the facility bore no responsibility whatsoever for any harm to the resident, who died of natural causes. After an appeal, CMS agreed to remove the incorrectly cited immediate jeopardy and the weighty CMP. Further, it was forced to remove the inflammatory and erroneous claims from the statement of deficiencies. The result was that the facility was vindicated, saved a substantial amount of money, maintained its reputation and saw an increase in staff morale. Additionally, its five-star rating was readjusted to reflect the quality care it rendered.

According to Melissa Green, senior vice president of clinical operations at AdCare Health Systems Inc., “Facilities should carefully review deficiency citations. If there is clear evidence of substantial compliance with regulatory requirements, then a facility should pursue IDR (or IIDR) and consider filing an appeal.”

Additional reasons to consider filing an appeal:

• When enforcement actions in addition to a CMP are not justified (e.g., loss of NATCEP program).
• When collateral civil litigation may exist or be threatened if invalid deficiencies are not removed.
• When invalid deficiencies increase the likelihood of becoming (or remaining) a special focus facility.
• When invalid deficiencies may raise insurance premiums or the risk of being placed on a termination track.
• When rectifying invalid deficiencies is a matter of principle to owners/operators.

KNOW WHEN TO APPEAL

Providers should always consider carefully any deficiencies on the statement of deficiencies, including whether the deficiencies and resulting enforcement actions deserve to be challenged. But when it appears that a deficiency has been correctly cited, the author’s advice is for providers to:

• Waive the facility’s right to appeal within 60 calendar days, which will reduce the CMP by 35 percent; and
• More importantly, examine what went wrong, and implement appropriate measures so future incidents can be avoided.

SUMMARY

No long-term care facility ever wants to see a statement of deficiencies with serious deficiencies on it. In some cases, CMS incorrectly cites deficiencies, leading to absolutely legitimate reasons for a challenge. But knowing when to appeal those deficiencies (and also when it’s best to learn from them and further improve resident care) can help all facilities in the process of delivering quality care and maintaining consumer trust.

For more information, see the presentation "Successfully Challenging Surveys" by the author (PDF).

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Alan C. Horowitz

Alan C. Horowitz, Esq., is a partner at Arnall Golden Gregory LLP, where he focuses his legal practice on regulatory compliance for skilled nursing homes, hospices and home health agencies and manages cases where the Centers for Medicare and Medicaid Services (CMS) has imposed an enforcement action. He is a former assistant regional counsel Office of the General Counsel, U.S. Department of Health and Human Services. As counsel to CMS, he was involved with hundreds of enforcement actions and successfully handled appeals before administrative law judges, the HHS Departmental Appeal Board and in federal court. He also has clinical healthcare experience as a registered respiratory therapist and registered nurse. He can be reached at alan.horowitz@agg.com.