The decision to post disputed nursing home citations on a government website for consumers riled providers and legal experts Wednesday, with one warning that poorly explained information could have a more chilling effect than a “stop” icon given to facilities cited for abuse.
The Centers for Medicare & Medicaid Services announced early Wednesday morning that it would be adding deficiencies currently in the Informal Dispute Resolution or Independent Informal Dispute Resolution process to facility listings starting Jan. 25.
“Consumers should have as much information about nursing homes as possible to support their healthcare decisions,” the agency said in announcing the change. “Allowing consumers to see all of the citations a facility receives regardless of whether they are under IDR/IIDR is consistent with our commitment to transparency and also enhances accountability and oversight of nursing homes.”
But attorney Alan C. Horowitz (above) of Arnall Golden Gregory LLP told McKnight’s Long-Term Care News that the move may ultimately make it harder for consumers to decipher high-quality providers from lesser performers.
“Transparency seems to be a one-way street here,” he said. “If a provider is successful, you’ve already posted an allegation of a deficiency. If it turns out that there is no deficiency, do you just remove the allegation, without an apology? Do you provide the reasoning that shows the surveyors got it wrong?”
Horowitz, previously a CMS attorney for 12 years, called the move “unfair,” adding that it might only take a single disputed citation to permanently “poison the well” for consumers researching placements.
In its memo to surveyors, CMS noted Care Compare currently lists more than 200,000 citations. It said those included a “relatively small” number of Immediate Jeopardy citations — 80 in the past two years — that went through the IDR or IIDR process. It’s important to note that those findings reflect a time period when survey activity has been down overall due to COVID-19 and staffing issues.
But Horowitz noted that many highly rated nursing homes use the dispute process to avoid citations for lesser penalties too. The number of those disputes was not provided by CMS.
“Many do get overturned or downgraded,” said Jessica Curtis, managing partner at Formation Healthcare, whose firm tracks such appeals through its Quality In-Cite platform. “Some operators we work with are very successful in their appeal efforts because they have tight processes and submit critical evidence.”
Little hope to slow implementation
CMS said about 75% of citations do not change after completion of an IDR or IIDR process. That indicates, however, that about a quarter of nursing homes who protest deficiencies come out victorious and will have been penalized anyway under the new system.
Both Curtis and Horowitz said they’d seen many dispute resolutions stretch beyond 60 days, meaning the time some providers could be overlooked as a site of care based on allegations might be lengthy.
As with the “stop” icon rolled out by CMS in 2019, Horowitz said providers likely have few legal opportunities to challenge the dispute designation, a status marker he believes is worse than the “stop” hand because it ignores that core facts are in dispute.
“Ultimately, I think this is potentially unfair to residents and their families. It’s conceivable a resident’s family will steer them away from an excellent facility based on an allegation posted on a government website,” he said. “To me, there’s something fundamentally wrong with that.”
Curtis warned that the look or the wording of the indicator itself, which is not yet known, could potentially bring unwanted and unwarranted negative attention to providers.
CMS did not respond Wednesday to McKnight’s questions about the design of the dispute designation nor how removals would be addressed. In its memo, the agency said it would still hold off from calculating disputed citations as part of the Five-Star rating until the dispute process is complete.
The announcement about the IDR posting came in a two-pronged memo that explained CMS also would begin targeted MDS auditing of facilities’ use of schizophrenia diagnoses. Facilities with coding inaccuracies will see their quality measure rating decline.
Taken together, the changes stirred concern at the American Health Care Association.
“We support transparency for consumers and ensuring nursing home residents are properly diagnosed and receive the right care,” Chief Medical Officer David Gifford said in a statement.
But, he added, “It is becoming increasingly difficult for consumers to use Care Compare to see and understand what is most important when searching for a nursing home. We hope to work with CMS on both of these efforts to make ongoing improvements for both residents and consumers.”
In its criticism of dispute processes, CMS said cases that exceed 60 days keep key decision-making information from the public. It cited 300 current citations under informal dispute that are six months or older and not on Care Compare.
Curtis acknowledges that some providers prefer the tactic of appealing any and all severe citations and delaying “sometimes inevitably damning performance details” from public reporting and Five-Star consideration.
“This delay can hurt peer facilities’ Five-Star ratings for health inspections within their state. Many appealed citations that are upheld are also excluded erroneously from public reporting permanently, which hinders public information and peer ratings,” she said.
But she said the announcement illustrates CMS’ continued efforts to be punitive toward providers rather than collaborative.
“Publicly posting high severity citations that are being appealed is not strengthening safety in the facility,” Curtis added. “In our opinion, based on reading thousands of survey narratives each year and working closely with many operators, operators do not IDR often enough given the arduous process and staff commitment involved to fully and successfully defend yourself.”