Letter, if Not Spirit
August 20, 2009
Skilled Nursing Facility administrators often complain the survey process is too focused on the letter of CMS guidelines, and not the spirit of them. Nurses grouse that good care is evident despite a lack in documentation; “quality of life” is too subjective for so-called “paperwork deficiencies,” and so on. Earlier this week an appeals court in Chicago turned the same tables onto the Illinois Department of Public Health.
An SNF appealed a Type A, serious type, violation. The IDPH fine was $10,000. The successful argument was not based on the merit of the deficiency tagged, but on the timing of the notice. The Department failed to notify the facility of the Type A violation within 60 days of the end of the annual survey. (Notice was actually given on the 66th day, though regulation requires it within 60 for violations of that type)
The facility’s lawyer successfully argued that the Department lost jurisdiction to prosecute a violation because the notice fell outside of the window prescribed by Administrative Rule.
This case highlights an important issue within the current regulatory scheme. 1) Such deadlines are essential if facilities are to learn from their mistakes. That is, prosecution of violations is not merely punitive, but compels facilities to do better next time. A deadline lets facilities know that, if there are changes to be made, you’ll be told about them in a reasonable time. This allows regulatory codes like IDPH’s and CMS’s to have what is known as a “channeling function.” Sure 66 days may be no more unreasonable than 60 in this respect, but for a deadline to have the necessary channeling function effect, it must have a definite cutoff. 2) The regulatory scheme is necessarily (and some would argue counter-productively) adversarial. It seems like the facility’s lawyer “gamed the system” or “won on a technicality.” This argument, incidentally, is the same as when facilities claim to have only received a “paperwork deficiency” or have been “caught without documentation.” At the end of the day, an adversary system creates incentive to “beat” the other side, but it also incentivizes winning on the margins. That is to say it discourages substantive change (which takes more energy and resources than winning on technicalities).
The ideal would be to marry the channeling function of deadlines and the innovation and energy created by the adversarial system while divorcing this kind of small ball, winning on the margins attitude. That kind of third way is, alas, tremendously difficult to find. However, I think cases like this one expose the issues that come along with decisions based on the letter, if not the spirit of the Law – – or in this case, Rule.
*Thanks goes to LSN’s Week’s News newsletter for source material.