Challenging surveys
By Horowitz, Alan C | |
Proquest LLC |
After a tense day of having surveyors in LA your facility, the survey team meets JL JL. 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
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 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 informal dispute resolution (IDR) or an independent informal dispute resolution (IIDR). As of
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. However, the outcome of an IDR/IIDR may be a double-edged sword. If a provider is not successful at an IDR/IIDR, then CMS will likely 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 longterm care (LTC) 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.
THE 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. However, if a provider loses at the board level, then it may seek judicial review in either the
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
According to
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
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 authors 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 LTC facility ever wants to see a statement of deficiencies with serious deficiencies on it. In some cases, CMS incorrecdy 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.
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Copyright: | (c) 2014 Medquest Communications Inc. |
Wordcount: | 1359 |
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