New York Estate Planning & Elder Law Blog
Nursing Homes See Lost of Deficiency Appeals
The Nursing Home regulations permit nursing homes to appeal a deficient issue for which they are cited for not meeting federal care standards in situations where the Centers for Medicare & Medicaid Services implements a fine against the deficiency.
The Center for Medicaid Services often focuses on financial penalties for nursing care centers whose deficiencies directly harm or jeopardize residents. The Center for Medicare Services success in most appeals involving administrative issues, but it seems other harms, as well as deficiencies as well as associated penalties, are resolved away from the appeal process. Consequently, more details about transparency with the nursing facility process are more plainly needed.
The Center for Medicare Advocacy reviewed 53 decisions from the Departmental Appeal judges which were issued two years ago, which is the most current date with full data.
Fifty nursing home decisions consider deficient elements at nursing home. Two decisions dismissed facility appeals when no remedies were imposed, while a third decision confirmed the date of a facility’s participation in Medicare.
Analysis Performed During the Decisions
The analysis that was performed of these decisions revealed some important issues which include the following:
- Almost all nursing home decisions resulted in civil penalties and deficiencies being upheld.
- Immediate jeopardy was found in 29 decisions and harm was found in 10 decisions
- The most common deficiencies raised in decisions included accident avoidance, adequate supervision, abuse, and residents who incurred pressure sores
- California received the most decisions, while Texas had the second most
- Appeals were resolved by summary judgment, by the written record, by written party exchanges, or by hearing
- Civil penalties ranged from $18,164 to $1,449,975 and averaged a little over $210,000
- Deficiencies were routinely cited due to surveys performed in 2017
The data reveals some important issues including that the Center for Medicare Services is successful in most appeals. The deficiencies that are appealed by facilities are substantial and depict significant care failures that lead to resident harm. These deficiencies are most commonly connected to facilities’ failure to provide adequate supervision to residents.
Appeals by facilities are most commonly resolved by summary judgment or review of filings as well as exchanges between parties. Decisions are largely influenced by facility records. In a small number of cases, factual disputes necessitate evidentiary hearings.
Appeals are often not resolved until several years after deficiencies are first cited.
Two Examples of Appeals
Two example decisions depict decisions made by summary judgment and highlight that per day fines are substantially higher than fines per instance. In one case, a nursing home incurred a harm-level supervision deficiency and a daily fine totaling $81,065 for failure to supervise a resident while she was attending to her hygiene even though facility assessments identified the resident’s chance for falls. Care plans created at the center also necessitated that staff watch over her. The resident fell several times at the facility she was not appropriately supervised and might have even fractured several ribs in a fall.