The Centers for Medicare & Medicaid Services conveys its policies (and directives) through its Quality, Safety & Oversight (QSO) memos. On Jan. 18, 2023, CMS announced that beginning on Jan. 25, 2023, it would start “posting citations under dispute” on its Nursing Home Care Compare website. 

CMS claims it is taking this action because of its “commitment to transparency.” However, many skilled nursing facility owners and operators, as well as other stakeholders, question the fairness of CMS’ actions for the reasons noted below.

Whenever a survey of a SNF alleges that there are deficiencies, those deficiencies, also referred to as “citations,” are cited on a Statement of Deficiencies (CMS Form 2567, referred to as the “2567” or “SOD”). The citations on the SOD are allegations that one or more of Medicare’s Requirements of Participation were violated and are posted on CMS’ Care Compare website. When a SNF disputes the factual and/or legal basis of a citation, CMS does not post them on its website until the dispute is resolved – until now. 

The federal regulation at 42 C.F.R. § 488.331 permits providers to file an Informal Dispute Resolution (IDR) when they believe the citation is baseless or otherwise factually unsupportable. When CMS imposes a civil money penalty and escrows those funds, a SNF is entitled to submit an Independent Informal Dispute Resolution (IIDR) request. Although there are some differences between the IDR and IIDR process, for purpose of this article, they are treated the same as the new policy applies to both.

According to CMS’ new policy, whenever a provider challenges a citation through either IDR or IIDR, CMS will display the challenged citation on its Care Compare website “with a note that they are under dispute by the nursing home.” CMS states that if a provider is successful at overturning the citation(s) at IDR/IIDR, they will be removed from the site. However, it may be several months before that occurs – while the disputed allegations are publicly available. 

Even CMS acknowledges that not all citations – or allegations of noncompliance – are factually and/or legally supportable. For example, in its QSO memo, CMS notes that “on average, the majority of citations (approximately 75%) do not change after completion of the IDR/IIDR process.” A corollary of CMS’ statement is that approximately 25% of the disputed citations are in fact changed. CMS further notes that the IDR/IIDR process takes approximately 60 days, although it frequently takes six months or longer. 

So, here’s one of the problems with the new policy. Let’s imagine that a SNF files an IDR/IIDR for several “immediate jeopardy” level citations because it genuinely believes the surveyors got it wrong. CMS will “display” those citations even though they are being challenged. Two months later – or longer – the IDR/IIDR panel recommends removing the citations. Assuming that CMS agrees, it may take additional months before the citations are removed from the CMS website. In the meanwhile, families may have avoided placing a loved one in that nursing home based solely on the allegation – which was subsequently determined to be unsupportable. 

As noted above, approximately 25% of the time, providers are successful at IDR/IIDR. Yet, they and their reputation have been unfairly tarnished for months. Even though the wrongful citation may be deleted from Care Compare months after it was challenged, this is akin to closing the barn door after the horses have escaped. Hasn’t the well been poisoned by keeping an unsupportable deficiency posted on the web for months at a time? Or, as one SNF owner/operator observed, “You can’t un-ring a bell.”

CMS claims it is instituting the new policy to be more transparent. Transparency should apply equally to CMS and providers. It is unknown if CMS will offer an online apology or explain why the surveyors incorrectly cited a deficiency when a provider prevails at IDR/IIDR.  Transparency demands that when an IDR/IIDR panel recommends deleting a deficiency, but CMS rejects that recommendation – a common practice since CMS can accept or reject recommendations from IDR/IIDR panels – CMS should provide a factual explanation rather than just rejecting the favorable IDR/IIDR. 

Some providers have commented that the new policy is not unlike the concept of guilty until proven innocent. Although the policy seems unfair to SNFs, in my humble opinion, it is ultimately unfair to prospective (and current) residents and their families. It is not difficult to imagine a family avoiding an otherwise excellent SNF based solely on the posting of disputed citations. 

Consequently, a placement may be made to another, less desirable SNF, which might be further from loved ones’ homes, thereby adversely affecting visitation, among other drawbacks. And the only reason for that placement – and avoiding a quality and appropriate SNF – is the inevitable second-guessing when a family sees a disputed citation on Care Compare that ends up being withdrawn months later.

It is important for consumers and especially caring family members to be able to rely on Care Compare when making the difficult emotional decision of which SNF best meets the needs of a loved one. The Care Compare website is a powerful and useful tool in helping families make perhaps one of the most challenging decisions concerning how a loved one will live out his/her days. Publicly displaying alleged deficiencies that may subsequently be removed from CMS’ website does little to benefit residents and their families and needlessly penalizes facilities when the IDR/IIDR process reveals that there were, in fact, no deficiencies and the citations were baseless.

In its Jan. 18, 2023, press release, CMS claims that by displaying challenged citations, it can “help consumers make informed decisions when it comes to evaluating a facility.” But how “informed” is that decision if it is based on publicly available allegations that are subsequently found to be unsustainable?

Attorney Alan C. Horowitz represents providers with Arnall Golden Gregory LLP and also serves on the Board of Directors of a Colorado nonprofit hospice organization. Previously, he served as Assistant Regional Counsel in the Department of Health and Human Services’ Office of the General Counsel for more than 12 years.

The opinions expressed in McKnight’s Long-Term Care News guest submissions are the author’s and are not necessarily those of McKnight’s Long-Term Care News or its editors.