The new risk-based nursing-home survey process, set to begin September 8, could raise litigation concerns because the streamlined approach uses fewer survey activities and a smaller resident sample, potentially allowing problems relevant to civil liability cases to go undetected.
The Centers for Medicare and Medicaid Services’ (CMS) surveys are also only a snapshot of a facility at a particular point in time, and a facility receiving no citation does not necessarily mean negligence did not occur in an individual resident’s case, according to Ricky A. LeBlanc, managing attorney at Sokolove Law, who added that regulatory survey findings do not determine civil liability. And some operational concerns at providers can get masked by the new survey process.
“I do not expect an immediate increase in litigation against nursing homes simply because CMS is changing the survey process,” LeBlanc told Skilled Nursing News. “Where I do see potential litigation implications is when a serious problem develops at a facility that recently underwent a more focused survey … The absence of a citation does not necessarily mean that negligence did not occur in an individual resident’s case, and the survey process itself does not determine civil liability.”
That said, the new risk-based model is designed for higher-performing facilities that meet specific criteria, he said, adding that CMS’ pilot for the model found that the focused surveys identified noncompliance and resident-safety risks at rates comparable to traditional surveys.
“It’s important to recognize the safeguards CMS has built into the program. Facilities with serious citations, certain pending complaints or facility-reported incidents, or other identified risk factors can be disqualified from the risk-based process and moved back to the traditional survey process.
Areas of litigation concerns
If litigation does increase, LeBlanc expects the greatest scrutiny around recurring or systemic problems, rather than isolated clinical mistakes. Potential areas for litigation include falls, pressure injuries, elopements, preventable infections, abuse or neglect, medication errors and staffing-related failures.
In all these areas, staffing levels could be closely scrutinized because inadequate staffing can affect multiple aspects of resident care, including repositioning, fall prevention, response to call lights, medication administration, supervision of residents with cognitive impairment and recognition of changes in condition. However, whether or not staffing contributed to an injury would have to be determined based on the facts of each individual case, LeBlanc said.
There may be particular problems that CMS may not identify during a risk-based survey but that could still create malpractice or negligence exposure, he said.
“Some issues that become significant in a negligence case may not be apparent during a periodic regulatory inspection,” he said. “A facility could, for example, have repeated resident complaints about slow call-light response times, a pattern of falls during a particular shift, internal concerns about an employee’s conduct, incomplete implementation of a resident’s care plan, or staffing problems that fluctuate depending on the day or time. Those facts could potentially be relevant to an individual negligence case even if they did not result in a CMS citation during a particular survey.”
It’s also important to distinguish regulatory compliance from civil liability, he said. CMS surveys evaluate compliance with federal requirements governing Medicare- and Medicaid-certified nursing homes. On the other hand, civil litigation can involve different questions, including whether the facility met duties applicable under state law and whether an alleged failure caused harm to a particular resident.
Some problems that might be better captured by the traditional survey approach could go undetected by facilities.
“Some issues that become significant in a negligence case may not be apparent during a periodic regulatory inspection,” LeBlanc said.
Internal records could therefore become especially important in litigation, he said. Complaints, grievances, incident reports, QAPI records and internal investigations may help establish whether a problem was isolated or recurring, whether management knew about it, what corrective action was recommended, whether it was implemented and whether the problem continued.
The legal treatment of QAPI and quality-assurance records varies by jurisdiction, and some materials may receive protections from disclosure. However, other internal records documenting prior notice, recurring problems or management responses may still become important evidence, he said.
Why smaller resident sample size matters
When a facility receives a more focused survey, a key concern becomes limited areas of scrutiny. Also given fewer facilities will receive these, the smaller sample size introduces its own issues.
“The principal concern is sampling. The new model still includes a streamlined review of all required areas, but it uses fewer activities and a smaller resident sample than the traditional survey process,” LeBlanc explained. “Like any sample-based regulatory review, there is a possibility that intermittent or resident-specific problems will not be captured during that particular survey.”
LeBlanc notes that CMS has safeguards intended to address this limitation. Facilities with serious citations, certain pending complaints or reported incidents, or other risk factors can be excluded from the risk-based process and instead receive a traditional survey.
CMS’ pilot results also suggest that the streamlined model can identify significant compliance and safety issues, although its effectiveness of the approach will become clearer as it is implemented more broadly, LeBlanc said.
“We will need to see how the system works in practice once it is implemented nationwide,” he said.
