Short on LTC Newsletter - August/September 2007

Historically, surveyor work notes have been routinely given to provider counsel during formal appeals of nursing facility surveys. Most states’ Freedom of Information Acts (“FOIA”) create authority for providers to obtain the surveyor work notes, and states have traditionally assumed that their FOIA laws would cover requests to state agencies for surveyors’ notes.

However, that may be changing. Earlier this year, CMS issued a Survey and Certification Memorandum to State Survey Agencies (Admin. Info. 07-06), which said that where a state agency is performing a purely state function (e.g., a licensure survey), the state’s FOIA laws would continue to govern such requests. However, where the state agency is acting in its dual capacity as a state government agency and an agent of CMS, then federal FOIA laws would govern. CMS considers state agencies to be its agent when performing certification surveys, and in states like North Carolina, where nursing facility licensure and certification surveys are conducted jointly, this may create a problem. The suggestion from the CMS memo is that when provider counsel requests surveyor work notes from a survey conducted by the state for CMS, that request must now be directed to the CMS regional office, which will decide whether and when to produce the work notes. This has the potential to prevent provider counsel from obtaining the work notes or, at least, to slow down access to those notes. In practice, each CMS regional office will make that determination, and whether and how fast providers can access those notes will vary. In Region V, for example, the CMS counsel generally believes the notes must be produced. In Region IV, it’s not so clear at this point. Since there is no right to formal discovery in the federal appeals process (i.e., no right to serve written interrogatories on CMS or depose its witnesses), the surveyor work notes are critically important because they fulfill, in part, the role formal discovery would normally play. The bottom line is this – state agencies will no longer control whether and how quickly providers can access surveyor work notes. CMS will make those decisions and many provider counsel are bracing for a tough fight over this issue. We will continue to monitor this issue in Region IV and report to you in future issues of Shorts on Long Term Care.

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“I Swear, I Never Said That!” Preventing Inaccurate Staff Statements in Survey Reports

By Ken Burgess

Imagine this scenario: you are the administrator of a nursing facility or assisted living community. During a state or federal survey, a surveyor approaches you and says that a nursing assistant told her a resident was abused two weeks earlier, that she reported the incident to you, and that you failed to investigate. The surveyor asks you to respond. You state that yes, the nursing assistant reported a situation, but you fully investigated it and could find no evidence of any abuse, no other witnesses, and no evidence of any injury or violation. When the survey report comes back, it recites the nursing assistant’s statements to the surveyor and states, “Discussed the situation with the administrator, who confirmed the findings,” without further explanation. Now what?

Increasingly, long term care providers are expressing concerns about quotes attributed to staff or management in survey reports that are either incomplete, out of context, or just plain inaccurate and that imply a staff member said something they dispute saying. Some of the problems we see in working with clients on surveys are: 1) incomplete quotes attributed to staff, 2) answers to questions taken out of context, which are often compounded because the question that was asked is not included on the survey report, 3) erroneous summaries of discussions with staff, and 4) questions directed to staff who are not qualified to answer them by virtue of their training, experience, or involvement with the situation being investigated. As the severity of citations continues to increase, along with the resulting civil money penalties and related sanctions, it’s natural that providers are asking some common questions, which include:

Can I and/or should I record interviews between staff and surveyors? There is no prohibition in state or federal law on providers taping interviews between surveyors and staff - so yes, you can do so. However, providers should be aware that some surveyors do not like being recorded for a variety of reasons, and insisting on recording interviews will likely change the tenor of the discussion and perhaps the overall survey. Providers should weigh the pros and cons carefully. Generally, if a survey has already become antagonistic, we recommend that providers consider taping interviews. If the process has generally gone smoothly and the provider feels he or she is being treated fairly, then absent some compelling reason (such as a staff member who has presented problems in prior survey interviews where there are questions of his or her motivations or credibility), insisting on recording staff interviews is probably not necessary or advisable.

If I do record interviews, must I be prepared to supply a copy of the tape or a verbatim transcript of the recording to the survey agency? As a general rule, you should be prepared to provide the survey agency with copies of any recordings you make of interviews between surveyors and staff or management. This is just common courtesy and in some states is required. Moreover, it eliminates any questions later about fairness and the accuracy of the statements, since both the agency and the provider have the exact same information, from the same source, at the same time. You should discuss this issue with the survey team leader before commencing any recording and reach an agreement on the format (recording copy or verbatim transcript) and the timing of providing such copies.

Can staff members refuse to answer a question they do not feel comfortable answering? Absolutely. Not only can staff do this, but they should. No staff member is required to answer any question they do not feel qualified to answer either because of their training, licensure, or certification category, or simply because they were not present during the incident. They are also not required to answer if the issue does not fall within their job responsibilities, or they otherwise have no firsthand knowledge of the event. The proper response in such situations is for the staff member to advise the surveyor that he or she is not comfortable answering the question, why this is the case, and then refer the surveyor to the administrator or a supervisor to identify the proper staff person to handle the question. This is particularly an issue when surveyors ask unlicensed staff, such as nursing assistants, questions that should be properly directed to licensed staff only, and then, in the survey report, state that the unlicensed staff “does not know” or “is unable to answer.”

Can the facility request that the administrator or his/her designee be present at interviews with staff? The facility can make such a request, although it’s better if such a request comes from the staff member being interviewed. This should really be a choice of the staff member, but providers are within their rights to advise staff members that they can request the presence of another staff member or management when being interviewed by surveyors.

Absent a recording of staff/surveyor interviews, what is the best tool for refuting incorrect or misleading quotes or interview summaries in the survey report? The best tool to accomplish this is usually the surveyor work notes, because they usually include at least some summary of what the surveyor asked the staff member or otherwise provide some context. These notes may also indicate what questions were not asked by the surveyor that should have been to provide proper context for the discussion. And the work notes can reveal inaccuracies in the staff statements as they are recorded on the survey report. Sometimes, surveyor work notes will reveal that while one staff member responded “yes” to an inquiry about an incident, numerous other staff members, when asked about the same incident, replied “no,” thus raising questions about the accuracy of the report or the credibility of the staff member at issue. Surveyor notes may also reveal contradictory evidence that offsets staff statements reflected in the notes and are an important tool in assessing the accuracy and completeness of findings in the report.

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The View from the Board Room: It’s Getting Scary Out There

By Ken Burgess

If you think serving on a health care company’s Board of Directors is just a series of boring quarterly meetings, the occasional hiring and firing of key management staff, and playing lots of golf, you probably haven’t served on a board lately. As federal and state officials have ratcheted up their enforcement and oversight of health care, they’ve paid particular attention to the role of board members in overseeing daily management and operations. The federal Office of Inspector General (“OIG”), in particular, and state Medicaid agency and law enforcement officials have repeatedly warned board members in the last few years that the government views them as ultimately responsible for corporate misdeeds.

This has been particularly true in cases involving financial misdeeds by a company or its management and employees. The OIG has focused heavily on board responsibilities for creating and overseeing health care company corporate compliance committees. A series of OIG guidance documents, coupled with some high-profile prosecutions of board members for failing to exercise vigorous and continuing oversight of corporate activities, has highlighted the government’s expectations of board members. Those expectations apply equally to board members of for-profit and nonprofit providers, and of small and large companies.

As the government’s enforcement activities have increased, they’ve morphed from focusing purely on financial matters and traditional fraud and abuse issues to include quality of care oversight. Now, to underscore that point, the OIG, in conjunction with the American Health Lawyers’ Association, have issued a joint guidance document clearly spelling out the government’s expectations for Board members in overseeing facility quality of care.

The document states unequivocally that board members have an active responsibility to ensure quality of care at their companies’ facilities. Specifically, the document reviews the laws applicable in most jurisdictions to board members, describes their legal and fiduciary duties as board members, identifies quality of care as an integral part of that duty, and provides a series of questions that board members should ask of senior management on an ongoing basis. According to the OIG, these questions are designed to ensure that board members have sufficient information to make a reasonable inquiry about operations matters.

While the document provides “guidance” only and imposes no new legal obligations on board members or health care providers, it does signal the ongoing and increasing focus of federal and state government officials on quality of care and on the government’s role in identifying and punishing quality of care deficiencies. The document is helpful for board members, new and old, in focusing on their responsibilities, and is a good tool to use during annual board member orientation and training.

The joint OIG/AHLA report was issued in June 2007 and can be found at www.oig.hhs.gov.

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