surveys, informal dispute resolution, and cms...

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Surveys, Informal Dispute Resolution, and CMS Appeals

R. Marcus Givhan, Esq.Kenny W. Keith, Esq.

Today’s Topics

• Maintaining Substantial Compliance• Getting through the Survey Process• Returning to Substantial Compliance• Returning to Substantial Compliance• Overturning Allegations of

Noncompliance

Maintaining Substantial Compliance

Deficiency Avoidance

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Compliance v. Survey Readiness

What is the Facility’s Goal?• The Facility’s goal should be to establish

a record of providing quality care in ana record of providing quality care in an environment that promotes residents’ highest level of physical, mental and psychosocial well-being.


How does the Facility achieve that goal?How does the Facility achieve that goal?•• Focus on maintaining compliance with the Focus on maintaining compliance with the

regulations rather than reacting when anregulations rather than reacting when anregulations rather than reacting when an regulations rather than reacting when an incident or bad outcome has occurred.incident or bad outcome has occurred.


Use the Facility’s quality assurance process to monitor the quality of care being provided and the condition of g pphysical facilities on a continuous basis.

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•• Monitor the effectiveness of measures Monitor the effectiveness of measures taken as a result of the last survey.taken as a result of the last survey.

•• Have good habits been established?Have good habits been established?Have good habits been established?Have good habits been established?•• Are new policies being followed?Are new policies being followed?


The Facility should attempt to avoid a perception that it is in and out of compliance with particular tags.p p g


When an incident or reportable event occurs, however, treat the situation as if a surveyor is going to review it and look for y g ga way to cite a deficiency.

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Go through a checklist as if the Facility is drafting a plan of correction to address the issue.


• Has the Facility addressed all of the needs of the particular resident(s) involved in the incident?

• Is there a need to assess other residents or protect them?

• Has the Facility investigated the incident/outcome thoroughly?


• Is the investigation documented?• What staff members are involved?• Did a staff member fail to follow a policy?Did a staff member fail to follow a policy?• Have staff members been re-educated,

disciplined, or reported?

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• Have policies been reviewed to determine if they are effective or can be improved?

• Revise policies when appropriateRevise policies when appropriate.• In-service appropriate staff members

regarding any revisions.


If a surveyor reviews the issue or incident, If a surveyor reviews the issue or incident, be prepared with documentation to be prepared with documentation to demonstrate that the facility identified the demonstrate that the facility identified the yyissue and implemented measures to issue and implemented measures to address the issue.address the issue.

The Survey

The Surveyors are in the building.What do you do now?

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The Survey

• Identify the surveyors and the team leader.

• Identify the type of survey Annual?Identify the type of survey. Annual? Complaint?

• Help the surveyors set-up. Provide a conference room.

The Survey

• Assign a staff member who will be responsible for making copies.

• Offer to accompany the surveyors on the initial tourtour.

• The surveyors may or may not allow someone to accompany them, but if they do, be prepared. The surveyors may not wait on you.

The Survey

• Stay in touch with the surveyors to learn of any concerns as soon as possible.

• If any concerns can be addressed byIf any concerns can be addressed by providing documentation, provide the information to the surveyor as quickly as possible.

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The Survey

• Stay in touch with employees who have been interviewed by the surveyors.

• Debrief them to preserve an accurateDebrief them to preserve an accurate account of what was said during the interview.

Handling Difficult Situations

Quality Assurance Materials


If a surveyor requests quality assurance documents, try to determine what is driving the request.g q

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• Is the surveyor focusing on a particular incident that has already been identified?

• Is the surveyor attempting to determineIs the surveyor attempting to determine whether the facility has a meaningful quality assurance committee?


Is the surveyor looking for incidents?


Depending upon the surveyor’s purpose consider the following:

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• Will the document help the Facility avoid a deficiency?

• Is the document really a quality assuranceIs the document really a quality assurance document?


If the documents do not contain true quality assurance information or if th ld ll i t th ’they could alleviate the surveyor’s concerns, consider providing the document.


If there is no specific purpose for providing the QA documents or if they

t i t t d i f ti di tcontain protected information, direct the surveyor to the State Operations Manual.

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State Operations Manual Appendix P, Sub-Task 5(F) states, “Part 1 should

t i l d i f ittnot include a review of committee minutes that address actual quality deficiencies.” AND


State Operations Manual Appendix P, State Operations Manual Appendix P, SubSub--Task 5(F) states, “Committee Task 5(F) states, “Committee

d d/ i t i l di thd d/ i t i l di threcords and/or minutes, including those records and/or minutes, including those identifying details of the specific quality identifying details of the specific quality deficiencies which have been dealt with deficiencies which have been dealt with or are currently being dealt with should or are currently being dealt with should not be reviewed.”not be reviewed.”


If after reviewing these provisions, the If after reviewing these provisions, the surveyor insists upon seeing the QA surveyor insists upon seeing the QA d td tdocuments:documents:

1)1) Seek Legal Counsel; Seek Legal Counsel;

2)2) Offer to show the documents but explain Offer to show the documents but explain that they may not be copied; andthat they may not be copied; and

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3)3) Document the conversation with the Document the conversation with the surveyor regarding the QA surveyor regarding the QA

t i lt i lmaterials.materials.


Remember: When handling any difficult situation, be professional,

t d NEVER l thcooperate, and NEVER place the Facility in a position where it appears it is obstructing the survey.


Personality Conflicts

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If a surveyor acts unprofessionally toward a resident or staff member:


1) Call legal counsel.

2) Take statements from the parties involved (e.g., the resident, staff members, family members).


3) Try to keep the situation from escalating.

4) If possible, wait until after the survey has concluded to address the issue formally with DHCF.

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The Exit Conference

• Take good notes regarding the tags the surveyors intend to cite.

• Be a good listener Be alert forBe a good listener. Be alert for opportunities to refute a tag and ask about deadlines for submitting additional information for Quality Assurance Review.

The Exit Conference

•• Get enough information to begin Get enough information to begin implementing corrective measures and implementing corrective measures and start a draft of the plan of correction.start a draft of the plan of correction.

•• Consider whether the Facility will Consider whether the Facility will challenge citations.challenge citations.

•• Begin to gather additional information for Begin to gather additional information for possible submission to DHCF.possible submission to DHCF.

Quality Assurance Review

• A facility may submit additional documentation for consideration by the Nursing Home Survey Compliance g y pOfficer.

• Written information must be accompanied by an explanation of the significance of the documents submitted.

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Timely Submission for Quality Assurance Review

• For non-immediate jeopardy citations, additional information must be submitted within 72 hours of the close of thewithin 72 hours of the close of the business day of the exit conference unless other arrangements are made with the Survey Compliance Officer.

Timely Submission for Quality Assurance Review

For unabated immediate jeopardy citations, additional information must be submitted to DHCF within 12 hours after the exit conference.

What to Submit?

Documented information which shows that the facility was in substantial compliance with the tag cited based on p gthe surveyor team’s discussions during the survey process and exit conference.

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Types of Documents to Consider for Submission

• Additional facility records which may not have been considered by the survey team.St t t f f ilit t ff d/• Statements of facility staff and/or physicians who have knowledge of the alleged deficiency.

• Documents supplied to survey team with additional clarification.

Food for Thought: Which Documents to Submit for QA Review

• Does the document assist the quality assurance team in understanding that the facility was in substantial compliance?

• Does the document create other issues or concerns which could be used to support the alleged deficient practice or other deficiencies?

• Can the facility explain the significance of the document in terms of the deficiency proposed by the survey team?

The CMS Form 2567

Carefully review statement of deficiencies and the letter from DHCF.

• What deficiencies were cited?What deficiencies were cited?• What scope and severity level?

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The CMS Form 2567

• Does the Facility have a basis for challenging any of the citations?

• When is the plan of correction due?When is the plan of correction due? Calendar the deadline.

• Does the Facility have an opportunity to correct before remedies are imposed?

The Plan of Correction

Goal: Get the plan of correction accepted as soon as possible.

The Plan of CorrectionThe Plan of Correction

• The plan of correction is not the place to argue the merits of whether the citation was appropriately cited.pp p y

• It is appropriate to use a disclaimer that the Facility does not admit that the citations are accurate in any respect.

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The Plan of CorrectionThe Plan of Correction

Use the plan of correction to demonstrate that the Facility understands DHCF’s concerns and is able to address themconcerns and is able to address them.

The Plan of Correction

ALWAYS use the 4-step approach to drafting the plan of correction.

4-Step Plan of Correction

1. RESIDENTS IDENTIFED

What corrective measures will be taken for those residents found to have been affected by the deficient practice?

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2. OTHER RESIDENTS

How will the Facility identify other residents having the potential to be affected by the same deficient practice?


3. SYSTEMIC CHANGES

What measures will be put in place, or system changes made, to ensure the deficient practice will not recur?


4. MONITORING

H ill th F ilit it itHow will the Facility monitor its corrective actions to ensure that the deficient practice is being corrected and will not recur?

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Helpful Hints

• Get organized.

• Be specific and clear and try to avoid follow-up questions.

Helpful Hints

• Use a formula to answer the deficiencies.

• By [date], [staff member] will [do what].

Example

The Facility was cited with F-324 based upon an allegation that the Facility failed to ensure that RI#1’s bed alarm was in place on 01/24/07 as stated on the care plan. On 01/24/07, RI#1 fell and sustained an injury to the head.

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Step One

F-3241) Residents Identified:

On 01/24/07, the LPN charge nurse assessed RI#1 and provided first aid to treat the injury to RI#1’s head. The LPN charge nurse notified RI#1’s physician and family. The LPN charge nurse conducted neuro checks every 15 minutes for 4 hours as ordered by the physician.

Step One

On 01/25/07, the care plan team met to review RI#1’s care plan. By 01/28/07, RI#1 ill i th lt dRI#1 will receive a therapy consult and the care plan will be updated to reflect additional interventions as recommended.

Step Two

2) Other Residents:

By 01/31/07, the care plan team willBy 01/31/07, the care plan team will review care plans for all residents assessed as being at risk for falls. The care plan team will update resident care plans to include additional interventions as indicated by the review.

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Step Three

3) Systemic Changes:

On 01/25/07, the quality assurance team , q yupdated the falls prevention policy and procedure to require CNAs to check the placement and functioning of bed alarms at the beginning of each shift. CNAs are to check off bed alarm placement and functioning at the beginning of each shift.

Step Three

By 01/31/07, the director of nursing will inservice all direct care staff regardinginservice all direct care staff regarding the use of the ADL sheet to monitor the placement/functioning of bed alarms.

Step Four

4) Monitoring

On a daily basis for 2 weeks, the director of nursing or designee will randomly observe residents with bed alarms to verify that the alarms are in place and functioning.

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Step Four

On a daily basis for 4 weeks, the LPN charge nurses will review ADL sheets for 5 residents with bed alarms to verifyfor 5 residents with bed alarms to verify that CNAs are checking bed alarms and signing off on the ADL sheet.

Step Four

On a weekly basis for 4 weeks, the LPN charge nurses will review ADL sheets for 5 residents with bed alarms to verify ythat CNAs are checking bed alarms and signing off on the ADL sheet.

Step Four

The LPN will check the ADL sheets for 5 residents on a monthly basis5 residents on a monthly basis thereafter.

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Important Considerations

• Has the Facility addressed all of the residents?

• Has the Facility addressed all of theHas the Facility addressed all of the issues?

• Has the Facility specifically identified the persons involved in implementing the POC?

Important Considerations

• Are the systemic changes feasible?

D it k ?• Does it make sense?

Don’t Forget

• “This plan of correction constitutes a written allegation of substantial compliance ”compliance.

• Legal Disclaimer

• Date Certain

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Informal Dispute Resolution

• Should the Facility challenge the citation of a deficiency?


• A Facility always has the option of requesting an IDR meeting.

• A Facility must request within 10 days of the date of the notice letter from DHCF.


The IDR request should be thoroughand include:

1) All of the citations the Facility wants to1) All of the citations the Facility wants to challenge.

2) The reasons the citations are inappropriate.

3) Supporting documentation.

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What is the process?

• A, B, or C level deficiencies:

IDR will be conducted by telephone conference and decided by the survey team supervisor.

What is the process?

• D and higher level deficiencies:

IDR will be conducted at a face-to-face meeting with a panel appointed by DHCF at the DHCF office.

Who Attends?

• IDR Panel – 1 lawyer and 2 nurses

• Facility Employees with direct• Facility – Employees with direct knowledge, one corporate representative, and relevant consultants

• DHCF – Survey team, survey team supervisor, senior management staff

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Limitations

• Cannot challenge scope and severity unless citation constitutes immediate jeopardy or substandard quality of carejeopardy or substandard quality of care.

• If an example is deleted from a tag, however, DHCF may reconsider the scope of the tag.

Limitations

• Cannot challenge remedies imposed.• Survey process or surveyor conduct.

S ffi i f IDR• Sufficiency of IDR process.• CMS can reject a favorable IDR decision.

Considerations

• How strong is the Facility’s position?

• Is there clear documentation that the citation isIs there clear documentation that the citation is unwarranted?

• How serious are the consequences of the tag?

• Is IDR the Facility’s only opportunity to challenge the citation?

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Considerations

• Can the Facility accomplish its objectives through an IDR meeting?through an IDR meeting?

How to Prepare

• Identify the reasons why DHCF cited the deficiency.

• Analyze the requirements of the regulation as set forth in Guidance to Surveyors (Watermelon Book).

How to Prepare

• Develop the arguments that demonstrate the Facility met the requirements of the regulation.

• Create an outline.

• Organize supporting documentation.

• Identify speakers.

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At the Meeting

• Be organized.

• Provide an overview of the topics you are• Provide an overview of the topics you are going to discuss.

• Make your presentation flow in a way that will be easy for the panel to follow.

After the Meeting

• The panel will send a letter indicating whether it is affirming or deleting the findings.

If f l h F ili “ l ”• If successful, the Facility must request a “clean” 2567 as soon as possible.

• Resubmit the “clean” 2567 to DHCF with the plan of correction.

CMS Appeals

• What is a CMS appeal?• Does the Facility always have the right to

appeal?appeal?• When must the Facility file an appeal?• What can the Facility hope to

accomplish?

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What is a CMS appeal?

• Heard by an ALJ from the Department of Health and Human ServicesM t b it hibit li t it li t• Must submit exhibit lists, witness lists, written briefs.

• Usually have an in-person hearing.

Right to Appeal

• Facilities have the right to appeal when a remedy has been imposed against the F ilitFacility.

• Appealable remedies include CMPs, loss of nurse aide training, denial of payment for new admissions, and termination.

Right to Appeal

• Note: If the Facility has an opportunity to correct and is successful in correctingto correct and is successful in correcting the deficiency, the Facility’s only opportunity to challenge a deficiency will be at the IDR level.

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When to File

• 60 days after receipt of the letter from CMS notifying the Facility of the remedies imposed.

• Do not confuse CMS letter with DHCF letter.

• Watch out for multiple letters from CMS.

When to File

• If the Facility is considering an appeal, provide ALL correspondence to legalprovide ALL correspondence to legal counsel as soon as possible.

What Can Be Accomplished

1) Was the facility in substantial compliance?

2) In immediate jeopardy appeals was the2) In immediate jeopardy appeals, was the jeopardy call clearly erroneous?

3) Are the time periods appropriate?4) Is the CMP reasonable?

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Limitations

• An ALJ can only consider scope and severity if a successful challenge would change the range of the CMP.A ti l tt li it d t• As a practical matter, you are limited to challenging scope and severity level for immediate jeopardy tags.

• Lengthy process.• Difficult to establish financial hardship based

on CMPs without providing detailed financial information.

Settlement

CMS attorneys have the ability to negotiate a settlement that could include:

1) Reduced scope and severity;2) Deletion of deficiencies;3) Reduced CMPs;4) Relief from other remedies.

Limitations

• Different lawyering styles.• Increasing reluctance on the part of CMS• Increasing reluctance on the part of CMS

to settle appeals.

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Considerations

• What is at stake?

• Is a lawsuit expected?Is a lawsuit expected?

• Will the CMP create a financial hardship?

• Has there been bad press associated with the survey?

Considerations

• Does the Facility have good documentation?

• Does the Facility have good witnesses?Does the Facility have good witnesses?• Is there realistic negotiating room?• Is it a matter of doing what is right?

Questions?