Surveys / Deficiency Citation Appeals

Fuerst Ittleman David and Joseph represents nursing homes in connection with state and federal surveys from inception through the appellate process.

Health care providers receiving Medicare and Medicaid reimbursement are subject to state and federal surveys aimed at determining substantial compliance with Conditions for Coverage (CfC) and Conditions of Participation (CoP). At a minimum, skilled nursing facilities (SNF) are subject to annual surveys once every 15 months. Typically, however, even the best SNFs will experience more frequent complaint surveys. In either event, the SNF is advised of its alleged deficient practices (if any) through the surveying agency’s issuance of a Statement of Deficiencies (Form CMS-2567). The provider has 10 calendar days to submit its Plan of Correction in response thereto.

An acceptable Plan of Correction must include five core elements:

  1. How corrective action will be accomplished for those residents found to have been affected by the deficient practice
  2. How the SNF will identify other residents having the potential to be affected by the same deficient practice
  3. What measure will be implemented (or systematic changes) to ensures the that deficient practice will not reoccur
  4. How the SNF plans to monitor its performance to make sure that solutions are sustained
  5. Dates when corrective action will be completed

Since Statements of Deficiency and Plans of Correction ultimately become available for public consumption, it is advisable that SNFs include a disclaimer in the Plan of Correction, where applicable, noting that the SNF denies and disputes the citation(s) and submits its Plan of Correction to comply with applicable state and federal regulations.

In the same 10 calendar days an SNF has to submit its Plan of Correction, it must also request Informal Dispute Resolution (IDR). IDR is the process by which SNFs can informally dispute regulatory deficiencies. It is important to note that neither the submission of a Plan of Correction nor the request for IDR tolls the time within which a Request for Hearing before an Administrative Law Judge (ALJ) must be filed (assuming that the SNF wishes to pursue its appellate rights).

Generally, a SNF has 60 days from receipt of its Statement of Deficiencies (Form CMS-2567) to file a timely Request for Hearing before an ALJ. At the ALJ level, the Centers for Medicare and Medicaid Services (CMS) has the initial burden of making a prima facie case of a regulatory violation. To that end, CMS may rely on the Statement of Deficiencies to make its prima facie case of a deficiency, but only if the factual findings and allegations it contains are specific, undisputed, and not inherently unreliable. If CMS meets its burden, the SNF then bears the burden of persuasion to demonstrate, by a preponderance of the evidence, that the SNF was, in fact, in substantial compliance.

Either CMS or the SNF may appeal an ALJ’s unfavorable decision to the Departmental Appeals Board (DAB). The failure of either party to file a timely appeal renders the ALJ decision final agency action. An unfavorable decision of the DAB may be appealed to the federal district courts and, ultimately, the U.S. Courts of Appeals.

Fuerst Ittleman David and Joseph’s health care practice group has the experience necessary to guide you through each stage of the survey process, from the issuance of the Statement of Deficiencies through the appellate process. For more information call 305-350-5690 or email contact@fuerstlaw.com.