Tyler J. Smith

The Centers for Medicare & Medicaid Services showcases the Five-Star Quality Rating System as an excellent source of information to aide the public in selecting a nursing home. But many believe that it will soon serve as the platform for public and private ratings programs such as “pay-for-performance.” In fact, just recently the Medicare Payment Advisory Commission (MedPAC) warned that Medicare cannot maintain its current cost trajectory and was critical of the Medicare fee-for-service payment system since “it rewards more care and more complex care without regard to the quality or value of the care.”

MedPAC declares that “expanding access to Medicare will not solve the nation’s healthcare cost problem” and argues that “to eliminate wasteful spending, policymakers must transform economic incentives for doctors, hospitals, and other providers of medical services.” Other experts believe that the Five-Star system may be soon considered in licensure or certificate-of-need determinations and could have an effect on the availability or affordability of liability insurance.

By and large, professional medical societies support incentive programs to increase the quality of healthcare. However, many have expressed concern with the validity of the Five-Star system’s quality indicators. This is because the Five-Star system is primarily based on the survey and certification system, which in itself has demonstrable flaws. For instance, facilities can be subject to survey teams that lack adequate knowledge of the regulations and instead offer their subjective interpretations of the regulations, which can often result in false determinations.  Other times, surveyors could lack adequate skills and/or character traits necessary to objectively examine facts and search for the truth in order to bring about a just result.

Indeed, the complainant or others involved in the circumstances giving rise to the complaint may have ulterior motives for filing and/or fostering the complaint, which in many instances is difficult to detect, especially if one is not trained in the art of interrogation. Lastly, it is not uncommon for some surveyors to either consciously or unconsciously adopt a “holier than thou” approach to their role as the judge of the facts, which allows bias and/or prejudice to taint their retrospective conclusions as to what actually happened and whether discipline is warranted.

These concerns can be magnified in the setting of a complaint investigation, particularly, when the vague medico-legal connotations of “neglect” and “abuse” are irresponsibly being wielded about. Indeed, The U.S. General Accountability Office has confirmed that the ambiguous nature of these terms makes the prevalence of these offenses difficult to determine. Therefore, it is not surprising that when one combines the regulatory ambiguities with the limitations of our nation’s survey system that many facilities and their staff have unfortunately been wrongly accused and improperly disciplined. These false determinations have paved the way for poor ratings, disciplinary action ranging from warnings to licensure revocation, long-term care and corporate negligence claims, employee lawsuits, and in some cases, criminal indictments.

Of course, if a facility disagrees with the number of stars it is assigned, it is permitted to raise the issue with the state survey agency. But there is no guarantee that the challenge will be reconsidered. There is no informal or formal process for ensuring that the state survey agency reviews the rating and offers an unbiased assessment of the findings.

Even deficiency findings that are appealed by nursing facilities will remain part of an individual facility’s rating until reversed on appeal. Because the appeal of a remedy and its underlying deficiency takes months, and sometimes years, to resolve, facilities that successfully appeal a remedy based upon a deficiency finding will incur a substantial injury to their reputation that will not be adequately repaired by correcting the rating months later. To make matters worse, facilities initially were not allowed to view and dispute any inaccurate data before it was published by CMS on www.Medicare.gov and provided to national news outlets.  Many facilities were unable to view their star rating as late as the evening before the information was published on the Internet.

Now that the public and private sectors are placing even greater emphasis on the state survey, it is incumbent on facility administrators to take a more pro-active approach to ensure that they are not victims of a faulty system.  With particular reference to complaint investigations, facility administrators should determine whether they are equipped with the necessary skills to orchestrate, investigate and examine sources of facts to ensure that the truth is persuasively conveyed to the state’s survey team and appropriately applied to the regulations.

Furthermore, they should be skilled at identifying and navigating through the myriad potential conflicts of interest that often arise between staff, administration and the facility’s directors and officers. To mitigate risk, facility administrators might want to consider outsourcing the lead to complaint investigations to experienced litigators who are experts in this area.

Tyler J. Smith is a partner in the health care litigation, litigation defense, and federal and state qui tam litigation practice groups of Pietragallo Gordon Alfano Bosick & Raspanti LLP, of Pittsburgh.