SNF victory in federal appeals court expected to cause review of other deficiency cases

A federal appeals court has upheld fines emanating from a pair of deficiencies found and affirmed at a California nursing home. But the provider and its legal counsel are thrilled because the court also ruled that 25 other alleged deficiencies should be reviewed for relevance.

In a decision that could have implications for numerous skilled nursing facilities, the U.S. Court of Appeals for the Ninth Circuit reversed in part and remanded a decision by the HHS Departmental Appeals Board, which had upheld an administrative law judge's decision to not review 25 of 27 alleged deficiencies at Plott Nursing Home. The board decision affirmed a $500 daily fine based on the two deficiencies that were reviewed.

They key is that the appellate court said the DAB panel should have found that all 27 deficiencies should have been reviewed.

“One can only imagine how many alleged deficiencies that ALJs routinely refused to consider will now be reviewed or dismissed,” said provider attorney Alan Horowitz, an Arnall Golden Gregory healthcare partner, in a statement.

“The practical implications of this decision cannot be overstated. By allowing providers to have a meaningful review of challenged deficiencies or forcing their dismissal, SNFs may effect a positive change in their Five Star rating; correct unsupportable survey allegations, thereby preserving their reputation; and prevent alleged deficiencies from being used in collateral litigation.”

Back in 2008, CMS agreed with state inspectors when they leveled citations and civil penalties against Plott Nursing Home for alleged violations that had occurred during the last four months of the year.

The Ninth Circuit appellate court ultimately did support CMS' charges that the facility violated bed sore preventative measures by failing to provide pressure relief and low air-loss mattresses in a timely manner for a high-risk patient. But the court also ruled that “substantial evidence did not support a determination of a violation regarding urinary tract infections where a resident suffered recurring infections, even though the nursing home acted on appropriate treatment plans,” according to a report on the outcome.