RECENT TRENDS IN DPW SURVEYS
As many of you folks have had your first inspection by the Department of Public Welfare (DPW) under the new personal care home regulations, we have noted several things, both from feedback through the industry providers and through appeals we have litigated for personal care home clients before Department Of Public Welfare’s Bureau of Hearings and Appeals.
First, some of the survey reports have been long and very detailed (we have seen some in the 60-70 page range). This may be due to the fact that the surveyors want to be extra thorough during the first round of inspections under the new regulations. We are not sure if this type of surveying is a by-product of a new internal mandate. We will keep an eye on this trend. We have seen some cases, unfortunately, where we believe a facility has been unduly targeted and given a “hard time” by the surveyors for one reason or another. Essentially, we have seen surveys that have been both fair and unfair, an observation that has transcended regions of the Commonwealth. We have not noted one region of the Commonwealth being surveyed at a tougher standard than other regions.
However, we have trended several individual surveyors, mostly through the legal appeals process through the Bureau, that have been unduly aggressive, burdensome and have placed comments in violation reports that amount to a narrative, simultaneously making legal and medical conclusions within the violation report itself. In this sampling, these surveyors have made legal (i.e., you were “negligent,” or “reckless”) and medical conclusions without any citation to law, interviews with staff or residents, nor the attachment of any supporting documentation. In our opinion, this type of surveying is irresponsible, and to a degree, unprofessional. Considering the April 2006 Amendment to the LMI now requires the most recent violation report to be posted in the community, providers must be aware of its contents. It is not unreasonable to assume that resident’s family members, prospective residents or visitors may take note of its contents.
To be clear, this is not a knock on good surveying that helps a community by pointing out deficiencies in a professional manner, backed by citation and fact. However, to the extent surveyors feel the need to needlessly criticize the administrator or make unfounded conclusions of law or medicine; we believe this to be harmful to the community, the community’s reputation and the assisted living industry as a whole
We are attempting to push the envelop with respect to legal appeals before the BHA. As it stands now, the contents of a violation report itself cannot be appealed.
However, we now represent several personal care home clients who are appealing the contents of violation reports themselves given the outlandish nature of surveying. It should be noted that the violation reports in issue also contained legitimate citations that were properly responded to by the community through a carefully drafted plan of correction.
The question is: how does a community respond, in a plan of correction, to violation reports that contain scandalous, unfounded accusations based upon little or no factual basis?
We offer this a food for thought and a reminder to keep an eye on the contents of your violation reports.
Have a Happy Holiday Season from the folks at McCumber Daniels.
