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Challenging surveys

February 18, 2014
by Alan C. Horowitz, RN, JD
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After a tense day of having surveyors in your facility, the survey team meets with your administrator and director of nursing. The survey team leader announces that "immediate jeopardy" exists in the facility. Feelings of dread circulate through the room—everyone has heard stories of the brewing storm and cascade of events that seem sure to unfold.

Now what?

Depending on the underlying facts, survey findings do not have to be accepted without considering an appeal. Having previously litigated cases involving enforcement actions for the Centers for Medicare & Medicaid Services (CMS) and now providers, the author provides a brief overview of the process facilities can use to challenge survey findings and the resultant enforcement actions imposed by CMS.

Following a survey alleging serious deficiencies, the state survey agency (SSA) will send a notice of its findings and a copy of the statement of deficiencies. The notice will explain that the facility has 10 calendar days with which to request an informal dispute resolution (IDR) to challenge the deficiencies. Depending on which state the facility is in, the SSA may make a recommendation to CMS for specific enforcement actions such as a discretionary denial of payment for new admissions and a civil money penalty (CMP). Next, CMS will send a notice imposing one or more sanctions. Both notices start the clock ticking for critical decisions the facility must make.


One of the earliest decisions a provider must make is whether to request an IDR or an independent informal dispute resolution (IIDR). As of Jan. 1, 2012, facilities have the right to request an IIDR when CMS imposes and escrows a CMP. The IIDR process offers several advantages, such as being conducted by an entity that is "organizationally separate" from the state agency. Keep in mind that the 10 calendar days in which to request either IDR or IIDR begins with receipt of the notice from the SSA and CMS, respectively. Once an IIDR is submitted, the process should be completed within 60 days of the facility’s request.

Both an IDR and IIDR provide an informal process to challenge questionable deficiencies. They also allow a facility to evaluate the strength or weakness of the deficiency. In most regions, CMS generally accepts the results of an IDR/IIDR and success at either may eliminate the need to litigate a case or may enhance settlement opportunities, depending on the particular circumstances. Even if deficiencies are not deleted during an IDR/IIDR, they may have their scope and severity downgraded.

Preparing for either IDR or IIDR consumes facility resources, but depending on the allegations and their consequences, it may be a wise investment of facility time and energy. The outcome of an IDR/IIDR may be a double-edged sword, however. If a provider is not successful at an IDR/IIDR, then CMS likely will use the findings against the provider in a related appeal. Conversely, a provider can submit favorable IDR/IIDR findings as evidence undermining a deficiency in any related appeal.



Alan C. Horowitz

Partner at Arnall Golden Gregory

Alan C. Horowitz

Alan C. Horowitz, Esq., is a partner at...