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Challenging surveys

February 18, 2014
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  • When enforcement actions in addition to a CMP are not justified (e.g., loss of NATCEP program).
  • When collateral civil litigation may exist or be threatened if invalid deficiencies are not removed.
  • When invalid deficiencies increase the likelihood of becoming (or remaining) a special focus facility.
  • When invalid deficiencies may raise insurance premiums or the risk of being placed on a termination track.
  • When rectifying invalid deficiencies is a matter of principle to owners/operators.


Providers should always consider carefully any deficiencies on the statement of deficiencies, including whether the deficiencies and resulting enforcement actions deserve to be challenged. But when it appears that a deficiency has been correctly cited, the author’s advice is for providers to:

  • Waive the facility’s right to appeal within 60 calendar days, which will reduce the CMP by 35 percent; and
  • More importantly, examine what went wrong, and implement appropriate measures so future incidents can be avoided.


No long-term care facility ever wants to see a statement of deficiencies with serious deficiencies on it. In some cases, CMS incorrectly cites deficiencies, leading to absolutely legitimate reasons for a challenge. But knowing when to appeal those deficiencies (and also when it’s best to learn from them and further improve resident care) can help all facilities in the process of delivering quality care and maintaining consumer trust.

For more information, see the presentation "Successfully Challenging Surveys" by the author (PDF).

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Alan C. Horowitz

Partner at Arnall Golden Gregory

Alan C. Horowitz

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