Ask the legal expert ... about surveyor citations

John Durso, Esq, Nixon Peabody LLP
John Durso, Esq, Nixon Peabody LLP

We dispute surveyor citations and fear they will go on our Five-Star ratings report card for numerous months, until we obtain a hearing decision in our favor, which we believe we will get. What can we do?

One of the first opportunities for a facility to refute surveyor citations or deficiencies and have the survey agency remove them is the Informal Dispute Resolution (“IDR”) process or, when CMS has imposed a civil money penalty that the facility must place in an escrow account, the Independent Informal Dispute Resolution (“IIDR”) process. (IDR and IIDR are collectively “IDR.”)

While an active IDR will not delay enforcement of penalties related to a deficiency, it can be extremely useful in safeguarding a facility's Five-Star Quality ratings, and reputation.

If the facility makes a timely request for IDR, pending completion of that process, CMS will not upload the disputed deficiencies into the Nursing Home Compare website. If, through the IDR, the facility successfully demonstrates that the surveyor cited one or more deficiencies in error, the surveyor must remove the applicable deficiencies from its survey report and the previously alleged deficiencies will not become part of CMS's calculations of the facility's Five-Star Quality ratings.

Because, among other benefits, a positive IDR decision prevents an incorrect finding from negatively affecting a facility's quality ratings, facilities should prepare carefully for an IDR and present a strong case for removing a disputed deficiency. Surveyors often get the benefit of the doubt.

If you have requested an IDR or successfully removed deficiencies through an IDR, you should periodically check CMS's website to make sure the agency has not prematurely or improperly downgraded the facility's ratings.