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Challenging surveys

February 18, 2014
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An IIDR requires that the state’s long-term care ombudsman and any residents (or their representatives) involved with the challenged deficiency must be notified and be allowed to submit their written statements to the IIDR entity. Contingent on the underlying facts, notifying a resident cited under a deficiency may help or hinder the facility. Another important point: Neither IDR nor IIDR results are binding on CMS; they are “recommendations” that CMS may reject. Neither will delay enforcement actions or timelines, such as the time to file a formal request for hearing (appeal).


Whether or not a facility pursues an IDR or IIDR, the facility may still request a hearing before an administrative law judge (ALJ) of the Departmental Appeals Board. A written request for an appeal must be filed within 60 calendar days from receipt of the notice from CMS. The facility must state the findings of fact and conclusions of law with which it disagrees and the basis for the disagreement.

The regulations explicitly provide that only “initial determinations” may be appealed. Thus, only a deficiency that resulted in an enforcement action is appealable. Because CMS’ designation that a facility is a special focus facility is not an initial determination, it may not be appealed. ALJs and the board have refused to permit a hearing on that issue.


Either CMS or a provider dissatisfied with an ALJ’s decision may file an appeal with the board. Appeals of ALJ decisions must be filed within 60 calendar days of the ALJ’s decision. These appeals are not an evidentiary hearing, and no new evidence is generally permitted. The issue is whether the ALJ’s conclusion of law is erroneous and whether the findings of fact are supported by the evidence in the record taken as a whole.


If CMS does not prevail at the board level, it may not appeal any further. If a provider loses at the board level, however, it may seek judicial review in either the U.S. Court of Appeals (for appeals of CMPs) or U.S. District Court (for appeals of termination).


A recent Region IV case illustrates the benefits of an appeal. CMS claimed that immediate jeopardy existed at a facility and imposed a CMP of approximately $275,000. The reason: Surveyors alleged that a resident died after choking on a four-inch piece of bacon. In fact, there was no bacon, the resident never choked and the facility bore no responsibility whatsoever for any harm to the resident, who died of natural causes. After an appeal, CMS agreed to remove the incorrectly cited immediate jeopardy and the weighty CMP. Further, it was forced to remove the inflammatory and erroneous claims from the statement of deficiencies. The result was that the facility was vindicated, saved a substantial amount of money, maintained its reputation and saw an increase in staff morale. Additionally, its five-star rating was readjusted to reflect the quality care it rendered.

According to Melissa Green, senior vice president of clinical operations at AdCare Health Systems Inc., “Facilities should carefully review deficiency citations. If there is clear evidence of substantial compliance with regulatory requirements, then a facility should pursue IDR (or IIDR) and consider filing an appeal.”

Additional reasons to consider filing an appeal:


Alan C. Horowitz

Partner at Arnall Golden Gregory

Alan C. Horowitz

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