Nursing home operators are seeing government oversight surveyors collaborate at the state and federal level to issue more citations at a time when the nursing home industry is already grappling with a very tight regulatory environment.
The survey process is fraught with problems – including lacking standardization – resulting in unnecessary citations and distractions, according to operators.
Lisa Chubb, chief clinical officer for Brickyard Healthcare in Indiana, has seen a “pretty significant” increase in state citations through deficiency count reports.
Surveys can be regionally subjective, she said. It’s a trend among surveyors, and one that the Centers for Medicare & Medicaid Services (CMS) is aware of – subjectivity related to each area within a state.
“[CMS has] been working on this for many years now, to take that subjectivity out of the survey process,” said Chubb. “I think it’s still a work in progress, certainly, because we see that locally.”
While the Quality Indicator Survey (QIS) process has allowed for less subjectivity and more standardization, complaint survey results can be dependent on regional factors, she said. And, every survey team, every complaint surveyor is different.
The problem has become so vast that advocacy groups are diverting attention away from reimbursement issues to give surveys more priority.
“I hear it more and more from my peers and other parts of the country that the regulatory environment is becoming more difficult. And I’ve heard indirectly that CMS surveyors, not state surveyors, are giving direction to state surveyors to cite more, fine more,” Iowa-based Care Initiatives CEO Michael Beal told Skilled Nursing News.
It lines up with the Biden administration’s pressure to do more enforcement-related activities, Beal said, adding that the Iowa Health Care Association (IHCA) has shifted focus from Medicaid rebasing to managing survey outcomes.
Brent Willett, president and CEO of IHCA, sees survey processes as an “evergreen issue” for the association, but coming out the other side of the pandemic, members must make sure that in working with surveyors, they’re as effective as they can be in ensuring quality.
“There’s a lot of work to do on both sides to make sure that the survey process is as effective, and focused on delivering and ensuring safety and quality in nursing homes,” Willett said. That work starts with aligning government resources to not only enforce regulations but counsel to members to improve outcomes in the future.
Iowa was one of the top states with the highest increase in citations issued between 2021 and 2022, Willett said. An increase in citations usually “raises the spectacle” of civil monetary penalties that exceed $12,000, triggering prohibition on staff training.
Such roadblocks to growing the staffing pipeline have been seen before, but policy hasn’t changed, Willett said.
As citations ramp up, relationships key
In Indiana, the scope and severity of citations has been steady across the board, Chubb said. But similar to Iowa there’s still a high number of citations overall.
“We’re seeing less grace with the survey teams. We’re seeing a high number of D-level citations,” she noted.
These types of citations refer to one patient, one instance, with no harm or potential for harm, and the issues oftentimes have to do with system management, she said.
There are avenues operators can take when they don’t agree with what has been cited, she added. Making sure facility leaders – usually the director of nursing or executive director – have a good existing relationship with local survey teams is key.
“We maintain those relationships at multiple levels … we reach out to them frequently when it comes to getting a plan of correction accepted, or if we need to send more supportive documentation,” said Chubb.
Frequent talks often take place between Brickyard’s VP of risk and regulatory compliance and the head of state Departments of Health, in order to head off “significant events,” she said.
“Having that proactive approach and that relationship to really share that event before it comes across in writing [and] developing those relationships and being very transparent – I think it’s very beneficial,” said Chubb.
Surveyors dig in after multi-year gap
Some of Brickyard’s buildings hadn’t been surveyed since 2019, and then more recently got surveyed in 2021. And so given that there had been a significant multi-year gap for annual surveys, surveyors were extra eager to dive in and really look thoroughly at all areas, Chubb said.
Prior to the pandemic, survey teams might have said that they saw a minor situation occur but not cite it, giving the facility a chance to educate its teams so such a situation doesn’t happen again. But given the gaps, the survey teams are trying to hasten the process.
“There’s no such thing as an FYI anymore,” said Chubb.
Interplay between state and federal surveyors
The fallout from collaboration between state and federal surveyors can be mixed.
In Indiana, federal surveyors running an annual survey have questioned the number of citations from a previous state annual survey, Chubb said, so in that case the collaboration resulted in a boon for the nursing home
“They had even said, ‘Well, I’m not really even sure why these were cited,’ and so they were going to talk with the state survey team,” added Chubb. “It was more favorable for us.”
Willett said the state survey agency serves as a contractor for CMS, and serves a dual role when it comes to enforcement – enforcing both federal and state regulation.
However, sometimes regional surveyors can influence federal surveyors – and not necessarily in a positive way for nursing homes.
“The interplay between the state survey agency and CMS would pertain to the enforcement of those federal regulations. I think that there is a fair amount of regionalism around the regional offices in terms of exactly how that relationship plays out,” said Willett, echoing Chubb’s comments on subjectivity in the survey process.
Still, changes to the appeals process have helped immensely, Chubb said. An operator can opt to pay a fine outright, resulting in a 35% reduction in the total amount.
“[Surveyors] did essentially walk that back a little bit now that the pandemic is over and the current civil monetary penalty process … does align with the higher scope and severity citation more closely,” added Chubb.
CMS updated appeals processes even further in the most recent SNF final rule. Operators no longer have to send a letter within 60 days of receiving a CMS deposition in order to waive the right to an appeal, and receive the 35% fine reduction.
Companies featured in this article:
Brickyard Healthcare, Care Initiatives, CMS, Iowa Health Care Association
