New Legal Threats from Risk-Based Surveys? Not Likely

When CMS in July said it was expanding a Risk-Based Survey (RBS) pilot to the entire nation to offer a streamlined review process for higher-performing nursing homes it was not an invitation for more litigation concerns for providers, says a leading lawyer in the LTC space.

Some trial lawyers have been quoted in the trade press as saying the RBS process, which started yesterday on Sept. 8, could increase such worries because the new surveys are a streamlined version of a traditional survey and use fewer activities and a smaller resident sample. The theory is this could potentially allow resident care problems relevant to civil liability cases to go undetected.

Mark E. Reagan, managing shareholder and chair of the Post-Acute and Long-Term Care Practice, Hooper, Lundy & Bookman, P.C., said the theory is a stretch at best.

“On the one hand, facilities in civil liability cases fight hard to exclude survey findings if trial lawyers attempt to use them offensively. It is hard for me to see that dynamic changing,” he said.

However, to the extent that facilities use their 5-Star score or survey results as part of their defense (in response to survey findings being introduced), it is certainly technically possible for a trial lawyer to attempt to argue in the future that they “really aren’t” a 5-Star facility because of the RBS.

“But would the judge really let them put that on trial?” Reagan said.

In the end, the RBS is a process that only the most high-performing nursing homes can access. So, in attacking the facility’s 5-Star, in this context, would just lend more credence to their high-performing nature, he added.

Anyone implying that facilities will become less diligent if they are subject to RBS fails to appreciate that this would only result in the facility falling out of the program, a self-defeating proposal.

“If a facility is already committed to achieving 5-Star status, I doubt that they would likely change their approaches to providing excellent care,” Reagan said.

Eleven Reasons Tied to RBS

Remaining eligible for the RBS program means a facility not having any of the below:

1. Less than a 5-Star Overall Rating

2. Less than 3-Star Staffing Rating

3. Any citation(s) for Actual Harm, or Immediate Jeopardy (IJ), or Substandard Quality of Care (SQC) in the last survey cycle (the last standard survey and any complaint investigations in the last year)

4. More than 18 months without a standard survey

5. Any staffing waivers in effect

6. Failed Payroll-Based Journal (PBJ) staffing data audit

7. Failed resident assessment Minimum Data Set audit (MDS)

8. Health Inspection Score higher than the 50th percentile in the state (lower scores indicate better performance)

9. Two or more residents aged 65 or older who are coded with a diagnosis of schizophrenia after being admitted without this diagnosis

10. A change in ownership since the last standard survey

11. Special Focused Facility Candidate

What Is Really Happening?

At a high level, Reagan stressed that the key question at the heart of concerns about litigation and the RBS process involve some fundamental misconceptions.

“The theory assumes that there would be less civil liability problems with more surveys and surveyors,” he said. This essentially means that surveys are conducted in a consistent manner across the country, which the sector knows is not the case.

“A survey may find more items but that does not demonstrate that the facility did anything wrong. . . The facility made it through the 11-point gauntlet to get into the program. It has no significant open investigations, has strong staffing scores, and is otherwise doing a good job. It doesn’t have a regulatory violation that would disqualify the facility and now what, you want to argue that it should not have qualified as a Five-Star facility? If you do that you are going to lose that argument,” he said.

On the other hand, a facility in the RBS has far more to lose if it no longer qualifies, Reagan noted.

“The facility could be the go-to place for hospital discharge planners and managed care plans. It takes work to maintain consistently great performance. It is not an easy task; it takes real investment. Having done all the work and built all the systems and installed the sort of careful oversight, a facility would not be likely to get lackadaisical because of a couple of less surveyors,” he said.

Comments or questions? Contact Patrick Connole at pconnole@parkplacelive.com.