The Centers for Medicare & Medicaid Services implemented a new policy on Jan. 25, 2023, which requires the nursing home industry to publicly post “disputed facility inspection results” on a government website before any of the alleged deficiencies are confirmed. In doing so, CMS aims to provide current information and transparency by publishing citations that are under dispute.
However, citations will not be factored into the nursing homes’ star ratings until conclusively determined, thus making it difficult for consumers to make fully informed decisions while the dispute process is ongoing.
This new policy highlights the heightened importance of moving quickly and efficiently through the dispute process.
Nursing homes have an informal opportunity to dispute citations via the Informal Dispute Resolution (IDR) process. Nursing homes also have the opportunity to request an Independent IDR (IIDR) in the event CMS imposes a civil money penalty. Both processes typically take approximately 60 days; however, CMS states, “there are some cases that take longer.”
Section 488.331 of title 42 of the Code of Federal Regulations outlines the process for IDR and IIDR. Under IDR, CMS offers “an information opportunity, at the facility’s request, to dispute the survey findings upon the facility’s receipt of the official statement of deficiencies.” To initiate the IIDR process, nursing homes “must request independent informal dispute resolution in writing within 10 days of receipt of CMS’s offer.” This timeline can be crucial to keep track of as “according to CMS’s data, providers are twice as likely to receive favorable results at an IIDR than at an IDR.”
While the findings from the IDR/IIDR process are not binding on CMS, it has been noted that CMS is especially likely to reject results in favor of the nursing home when the “underlying alleged deficiencies constitute ‘immediate jeopardy.’”
In the event the citation is upheld, the deficiency “will remain posted and will be included in the calculation of the facility’s star rating if applicable. If the citations are overturned (i.e., removed), they will be removed from the website. If the level of scope or severity of a citation is reduced, the citation will be displayed at the reduced level.”1
Nonetheless, the premature posting of deficiency citations may cause irreparable harm to nursing homes as “[p]otential residents and families researching nursing homes on Nursing Home Care Compare are likely in imminent need of nursing home placement and do not have 60 days or more to wait to see how a disputed citation is resolved,” Katie Smith-Sloan, president and CEO of LeadingAge, said in a Jan. 23, 2023 letter to CMS Administrator Chiquita Brooks-LaSure.
“They will decide based on the information available. It will not matter if the citation is ultimately overturned – the resident or family member has long ago moved on and the nursing home has missed the opportunity to provide care and services to this individual based on erroneous or incomplete information,” Smith-Sloan continued.
It is worth noting that CMS issued a proposed rule in 2019 that outlined improvements to both the IRD and IIDR processes to make them fairer. The improvements would:
- Require that both processes be completed within the same timeframe (i.e., 60 days from a timely filed request)
- Provide specific instructions to states as far as timing for uploading the survey results for inclusion in CMS’ national reporting system
- Make clear that the entity conducting the IIDR has individuals who are familiar with the Requirements for Participation in Medicare that nursing facilities must adhere to
- Require that the final result as well as the rationale behind the result of an IIDR be provided to the facility in writing by either the State or CMS.
The proposed rule has not been finalized.
Christine Burke Worthen is a partner in Nelson Mullins’ Healthcare practice, which advises long-term care facilities in all aspects of managing their businesses. She may be reached at [email protected].
Lily Shannon is an associate in Nelson Mullins’ Healthcare practice. She may be reached at [email protected].
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.
