Refresher: How to Contest Survey Deficiencies

New Conditions of Participation (CoPs) went into effect for home health agencies on January 13, 2018. Hospices have recently come under withering fire from the Office of Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS) regarding egregious survey deficiencies that may result in a crackdown by surveyors on hospices. Private duty agencies are subject to increasingly complex regulatory requirements for licensure and participation in Medicaid Programs in many states. Providers anticipate that they may receive unwarranted deficiencies as a result of these developments. Consequently, it is important for providers to know how to contest inappropriate deficiencies.

The first action providers should take when they disagree with deficiencies is to contest them in Plans of Correction (PoCs) submitted in response to Statements of Deficiency. Surveyors in some states have reacted negatively to this practice, especially in those states that have what may be described as “bad survey culture.” Some surveyors have even demanded that any language expressing disagreement in PoCs must be removed before PoCs will be accepted.

It is important for providers to know that the Centers for Medicare & Medicaid Services (CMS) has instructed providers to indicate disagreement in PoCs when they wish to contest deficiencies. Specifically, Chapter 3 of the State Operations Manual 3016E – Disagreement over Deficiencies states as follows:

A provider that disagrees with an SA finding regarding a cited deficiency or an acceptable PoC should be advised to annotate its positon on the PoC, and should specify why the SA’s citation is not correct…

In other words, providers that want to be heard regarding contested survey findings should express their disagreement in PoCs. Providers should express disagreement and the reasons for their disagreement in PoCs. They may also wish to request specific actions in PoCs, such as withdrawal of deficiencies. Providers must, however, be meticulous about how they contest deficiencies in PoCs.

Despite the fact that providers have expressed disagreement with deficiencies and perhaps have asked that the deficiencies be withdrawn, they must also submit a PoC for each contested deficiency. If providers do not also submit PoCs for each contested deficiency and challenges to deficiencies are rejected, providers may suffer adverse action, including loss of participation in the Medicare and/or Medicaid Programs, because they did not submit PoCs for every deficiency received.

In addition to challenging inappropriate deficiencies, providers should also utilize independence dispute resolution (IDR) processes that may be available to them. The processes for IDR may vary from state to state, so providers should identify state requirements and follow them.

Using these two ways to contest inaccurate or inappropriate survey deficiencies has produced excellent results for many providers. Providers must be prepared to stand up for themselves during the survey process by contesting deficiencies using the mechanisms available to them.

©2019 Elizabeth E. Hogue, Esq. All rights reserved.

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