United States: Say It Ain't So!

Shorts on Long Term Care July 2016
Last Updated: July 4 2016
Article by Kenneth L. Burgess

Just when you thought things couldn't get much worse for skilled nursing facility (SNF) providers in terms of civil money penalties and other survey sanctions, it did. All of a sudden, we've noticed in our practice a marked uptick in the number of providers wanting to challenge deficiencies via the Informal Dispute Resolution (IDR) process.

Let's be honest - for many years, providers who escaped an annual or complaint survey with a handful of D-level deficiencies figured they had a good day at the office. The occasional G or "actual harm" tag rankled some of our clients enough to challenge it, but most providers just sucked it up and took a G, especially if it didn't come with a CMP attached. That seems to be changing and I wondered why. So, I did some digging with clients, and here's what I found:

  1. Back in April of this year, CMS quietly announced to the state survey agencies that it was doing away with the "chance to correct" concept, also known as the "double G" rule. Under the old double-G rule, facilities that had a G or actual harm deficiency on their current survey (and had no higher-level deficiencies at the jeopardy level), but had not experienced a G or higher-level deficiency on the previous recertification survey or any intervening complaint survey, were given a chance to correct the deficiency without imposition of a CMP or other sanction. That chance to correct is described in Section 7304.2.1 of the State Operations Manual. Now, CMS has announced a change in policy and advised state survey agencies to start imposing survey sanctions for even an isolated G deficiency, even if the facility otherwise did not meet the double-G rule. CMS has not yet issued survey guidance in writing, but that is anticipated. Officials of the NC Survey Agency have notified providers of this change via email.
  2. As for the second reason more providers want to IDR deficiencies, well, it's all about the stars. CMS's "Five-Star Quality Rating System," which seems to be undergoing constant review (and criticism), is also driving providers to challenge even low-level deficiencies. I recently asked a longtime client who rarely challenged anything but an IJ, "Why are we IDRing four D-level tags?" He said, "Well, Ken, each D is assigned 4 points and 4 x 4 is 16. Heck, I'd only get 20 points if I had a G." And, he's right. The "Health Inspection Score" component of the Five-Star Quality Rating System assigns 50 points to each J deficiency (isolated immediate jeopardy), 20 points to each G deficiency (isolated actual harm) and 4 points to each D deficiency (no actual harm with potential for more than minimal harm that's not immediate jeopardy). The five-star system also ranks providers arbitrarily by requiring that only the top 10% of facilities in the state (i.e., the 10% with the lowest number of demerit points) receive 5 stars; the middle 70% are ranked 2, 3 or 4 star (23.3% get 2 stars, 23.3% get 3 stars and 23.3% get 4 stars) and the bottom 20% get 1 star. This system is forcing providers to really consider challenging deficiencies they believe are unfounded, far more than CMPs or other survey sanctions. It also creates a somewhat perverse situation where, sadly, the worse the other guys do, the better you look.

So I say somewhat tongue in cheek, after years of seeing the IDR practice decline, it looks like we're back in business. And that's unfortunate for our clients because they have so many other important things to deal with like Medicaid reform; quality measure improvements that should reflect improved survey outcomes, but often don't seem to; and an industry that is changing so fast it makes your head spin.

I was also recently asked what I thought about the "revised" IIDR (Independent Informal Dispute Resolution) process, and my answer was then, and remains, "Not much." To me, the opportunity to present your case in person, here in North Carolina, to both survey and provider members of an IDR panel who at least know something about your facility and reputation, is a huge advantage over a review of papers seen by a group of out-of-state surveyors who know nothing about you and never get to see your face or hear your arguments. No offense intended, but it's just not the same. Others may disagree, but that's been my experience.

So, sadly, I'll probably be hearing from some of you more frequently than in the past few years 'round about annual survey time. And I'm sure I'm gonna hear that thang y'all love to say to me when we meet at the NCHCFA winter and summer conventions: "Ken, we love ya, but we sure hate to have to call ya."

Y'all come back now, ya hear?

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Kenneth L. Burgess
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