I recently won a case against state surveyors and I learned something new… again.
The surveyors were adamant that the facility neglected a resident, and cited violations of policies, and criticized the nursing care afforded to the resident who later passed away. The surveyors cited harsh penalties against the facility.
We requested a hearing to contest the surveyor findings and after two years of negotiating, the department refused to budge on the fines and penalties. So it was time to take this one to hearing.
The facility was adamant that their care and treatment of the resident was not neglectful, that they did follow their procedures, and that the nursing care was adequately provided at all times to this beloved resident. We provided arguments that were reasonable, supported by good nursing practices, and records to show compliance. The department didn’t budge.
At the end of the day, after reaching impasses, we prepared the case for hearing before an administrative law judge. Shortly before the hearing, we had to provide our list of witnesses. Ingeniously, our list of witnesses included a renowned physician expert, and a renowned nursing expert. The department had no expert witnesses. They wanted to rely on their nurse surveyor and testimony of employees during the survey, despite the fact that we showed the employee statements were inaccurate, supported by our good nursing and medical evidence.
In the days before trial, something happened. The department got nervous. After all, the department had no experts and we had two. Each day that passed, a new offer of settlement came and we rejected the paltry offers, claiming that the facility should be vindicated from the harsh penalties the department was so adamant to initially enforce.
Finally, on the eve of trial, the department caved and relented, deleting the key tags and reducing the fine substantially. In fact, it was everything we had initially requested to settle the case two years before, and more. A huge victory for the facility.
I tell you this story not to brag, but to show you that sometimes nursing surveyors need a nudge. They think they are correct until someone can prove they are not. That someone usually comes in the form of a physician expert. After all, physicians oversee resident care and nurses react and respond to physician orders every day. Only after we revealed the threat of a physician expert who could discount the nursing surveyor findings did the department surrender.
That’s what these cases come down to these days. So often when we have a bad survey at a facility, we need to focus on the experts. Providing an informal dispute resolution or contesting a survey can be difficult, but it’s necessary to stop bad surveyor surveys and erroneous findings.
Perhaps getting the medical director more involved in fighting the survey from the start may tip the scales in favor of a better settlement and quicker outcome for facilities. Whether it is consultation of the medical director regarding the survey, or obtaining even a well-drafted legal affidavit of the medical director to support care given, having the physician expert there may be the only thing that convinces surveyors and state health departments of wrongfully cited deficiencies or violations.
Surveys are on the rise, and enforcement is stepped up these days for facilities. Having your medical director help with deficiencies, or even having your attorney speak to the medical director early on to support a facility’s good care, may be the ticket to quick resolution of cases.
These cases can take time, but in the end, medicine controls, good nursing care controls. Talking to and utilizing your medical director up front, and more often, about these surveys and surveyor findings can help to better resolve these surveys more efficiently.
Neville M. Bilimoria is a partner in the Chicago office of the Health Law Practice Group and member of the Post-Acute Care And Senior Services Subgroup at Duane Morris LLP; [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.
