Is The Deck Stacked In Nursing Facility Survey Appeals?
For several years now, you’ve heard me say how tough it is for providers to win appeals of survey deficiencies and related sanctions, such as civil money penalties. New data prepared by Healthcare Case Law, LLC, an online research database of all nursing facility survey appeals, proves the point. According to the data, between January 1, 1995, and July 10, 2012, the administrative law judges (ALJs) who hear these appeals ruled in favor of the Centers for Medicare & Medicaid Services (CMS) 89% of the time and ruled for providers only 11% of the time. Of the 15 ALJs who currently hear these cases, all but one of them ruled for CMS in 80% or more of the cases. One ALJ who has heard and decided roughly 118 cases has ruled for CMS 116 times and for providers only twice.
Worse still, when an ALJ decision is appealed to the Departmental Appeals Board (DAB), a three-judge panel set up for such appeals, the DAB has reversed the ALJ only 15 times. In 10 of those cases, the reversal was in favor of CMS, and in only five cases did the DAB reverse the ALJ in favor of a provider. So the odds are not good, and these data are consistent with what we see in our own practice and hear from our colleagues around the country. That is not to say that appeals are pointless. In some of the cases reported as being decided for CMS, an ALJ or the DAB did reverse some original CMS findings and some sanctions, but the case, on the whole, was not decided in favor of the provider.
The ALJs and the DAB both consider themselves to be part of the CMS enforcement system, not the type of objective judicial body most Americans think of when they think about appealing a government decision. Perhaps it’s no real surprise that CMS wins more often than it loses. However, with multiple published studies over many years consistently criticizing the CMS survey and enforcement system as inconsistent from state to state and within CMS regions, it is surprising that these data show such an overwhelming history of cases being decided for CMS and against providers.
The takeaway from all this is that providers faced with serious deficiencies and stiff sanctions or fines should still carefully review their survey results and consider whether to challenge them, including at an informal dispute resolution. But providers should go into these appeals with their eyes wide open, realizing that it’s a tough slog and an uphill battle.
