Interpretive Guidelines for Long-Term Care Facilities in Litigation
When defending cases against long-term care facilities, the Interpretive Guidelines become the canon by which the operations of a facility are judged. Like most law, long-term care regulations must be scrutinized through interpretation. Understanding the background and application of the Interpretive Guidelines can help build solid claims for litigation. As part of ALN Consulting’s commitment to our legal partners, we explain the Interpretive Guidelines and outline the importance of their application to strengthen your legal team’s expertise.
How are Nursing Homes regulated?
The Omnibus Budget Reconciliation Act of 1987 (OBRA ’87) and the Balanced Budget Act of 1997 (BBA ’97) require the Federal Centers for Medicare and Medicaid Services (CMS) to create regulations that govern practices in long-term care and skilled nursing facilities. The regulations resulting from OBRA and BBA are divided into two parts.
First, the regulations are stated in the U.S. Code of Federal Regulations (CFR) and referred to as “F-tags.” The second part of the regulation requires the agency responsible for enforcing the regulation to derive the Interpretive Guidelines. The Interpretive Guidelines should include an explanation of the intent of the law, definition of terms, and instructions on determining compliance with the law.
Who are the surveyors and how are the Interpretive Guidelines used?
Long-term care facilities receiving Medicare or Medicaid funds must be surveyed approximately once a year, and no less than 15 months. In almost all cases, these surveys are performed by state employees who use federal regulations to inspect facilities. Since the surveys are performed by state employees, the Interpretive Guidelines can be found in the State Operations Manual (SOM). The SOM provides guidance to each state on all aspects of state health care operations. Appendix PP to the SOM applies to long-term care and skilled nursing facility surveys.
Since Interpretive Guidelines are not included in the CFR, they do not have the force of law. However, they are still considered definitive by the CMS regarding what each regulation means. While not as authoritative as “standard of care,” the Interpretive Guidelines have a tremendous bearing on a long-term care liability case. The Interpretive Guidelines are designed to assist surveyors in understanding the CFR requirements, applying those requirements consistently, and suggesting pathways for inquiry. The CMS continually produces revisions of the Interpretive Guidelines for surveyors’ use in nursing homes. State and federal surveys use the newest improvements that are backed by evidence.
Examples of Interpretive Guidelines
Appendix PP of the SOM covers long-term care operations and lists each CFR “F-tag,” followed by the Interpretive Guidelines, which include definitions of terms and questions for the surveyors to consider during the survey. For example, let’s examine a short Interpretive Guideline for dietary personnel staffing:
483.35 (b) Standard Sufficient Staff
- The facility must employ sufficient support personnel competent to carry out the functions of the dietary service
Interpretive Guidelines: §483.35(b)
“Sufficient support personnel” is defined as enough staff to prepare and serve palatable, attractive, nutritionally adequate meals at proper temperatures and appropriate times and support proper sanitary techniques being utilized.
For residents who have been triggered for a dining review, do they report that meals are palatable, attractive, served at the proper temperatures and at appropriate times?
- Sufficient staff preparation: Is food prepared in scheduled timeframes in accordance with established professional practices?
- Observe food service: Does food leave kitchen in scheduled timeframes? Is food served to residents in scheduled timeframes?
Standing alone, the CFR statement could be interpreted differently by individual surveyors of different states and personal experiences. However, the Interpretive Guideline provides concrete questions for the surveyor to determine if the federal regulation has been met.
Types of Surveys – Implementation of Interpretive Guidelines
In addition to annual surveys, nursing homes receiving Medicare or Medicaid funds are also subject to complaint surveys at any time the state survey agency or the CMS chooses. An annual or complaint survey can result in federal citations against the facility, which require the nursing home to create a plan of correction and submit it to the survey agency. The survey agency then verifies the correction, usually by revisiting the nursing home. These follow up visits can also result in additional citations.
Each problem, or deficiency, found is given a rating for “severity” and “scope,” or an “s/s” score on a scale of A to L, the latter of which is the most severe. For instance, a facility has a complaint survey based on a resident’s fall-induced fracture. The surveyor finds failure to ensure adequate supervision in order to prevent accidents, and rates the “s/s” as “G,” (defined as fairly severe) since the resident sustained a fractured hip. The facility submits a plan to correct the deficiency and the facility is re-surveyed a month later. The follow-up survey justifies removal of the immediate jeopardy, but the facility is not in full compliance due to a failure to complete the quality assurance related to staff monitoring, analysis of monitoring results, and a development and implementation of their plan. The facility is re-surveyed two weeks later and found to be in complete compliance.
Sanctions can be imposed on nursing homes that fail to meet requirements. State imposed sanctions can include citations and fines, bans on admission, and appointment of temporary managers. The facility’s license can also be suspended or revoked. If a nursing home is certified under CMS, federal sanctions can include directed plans of correction, directed in-service trainings, state monitoring, and/or denial of payment for new admissions, civil fines, and termination of Medicare or Medicaid payments. All nursing homes federally regulated under the CMS are listed under datasets created by the CMS called the “Five Star Nursing Home Quality Rating System.”
How to use Interpretive Guidelines in Nursing Home Litigation
Litigators defending long-term care and skilled nursing facilities can use CMS’s guidance to surveyors to help strengthen their arguments against liability. Consulting the Interpretive Guidelines could demonstrate that a facility intervened with numerous, appropriate interventions, in accordance with the guideline(s), but still received a poor outcome. Using a facility’s compliance with the Interpretive Guidelines could strengthen the claim that the outcome was likely unavoidable. In many cases, plaintiffs attempt to use the regulations and survey results to make “standard of care” arguments and sweeping claims against the care rendered by nursing home staff in a particular case, making it imperative to understand the basis of their argument.
Applying the Interpretive Guidelines in order to strengthen a claim requires expert knowledge and time-consuming research. With more than 127 collective years of legal experience and familiarity with the CMS Interpretive Guidelines, ALN’s nurse consultants serve as a unique partner for legal teams in nursing home litigation. Utilizing legal nurse consultants familiar with the CMS Interpretive Guidelines and skilled in survey analysis will help bolster the defense team’s understanding of these issues in the case and improve the defensibility of the claim.
- Harris, Rick E. (2015). How to Use the CMS Surveyor Guidance to Craft a Winning Defense [Presentation at the DRI LTC/SNF Seminar].
- Thomas, David R. (2006). The New F-tag 314: Prevention and Management of Pressure Ulcers. In Clinical Practice in Long Term Care (pp523-524). St. Louis, MO: AMDA.
- Centers for Medicare & Medicaid Services. (2015). State Operations Manual – Appendix PP – Guidance to Surveyors for Long Term Care Facilities. Retrieved 11/20/15