March 10, 2005

Accompanying Surveyors

In a recent letter, CMS laid out the "rights" of surveyor’s to move throughout the facility without being "hindered" by facility staff. The letter threatens such penalties as Termination:

“The surveyors may allow, or refuse to allow, facility personnel to accompany them during a survey. Each case is at the SA and the surveyor’s discretion and is to be worked out with the facility management.”

The letter asserts that while the participation of staff is often helpful to surveyors, it can also be a hindrance, sometimes causing arguments about observed problems and making the survey more difficult.

"Interfering behavior" on the part of facility staff will result in suspension of the survey, contact with the regional office, and possible termination of the Medicare-certified provider (as is the case when the surveyors are not permitted to photocopy records on behalf of CMS).

Jerri Lynn Ward, J.D. says:

Providers have an absolute right to bring information that would exonerate the facility to the surveyors . The problem with surveyors disallowing facility staff from accompanying them--is that if you aren't contemporaneously seeing their concern--you may be unable to provide such information in an efficient or timely manner.

It is understandable that surveyors would not want the investigation to turn into a running argument. However, one would think that they recognize the need to have sufficient information in order to discern the whole picture as it is unfolds.

Also, some surveyors adopt an aggressive and intimidating manner of interrogation. Though it is understandable that they would want privacy when interviewing staff to avoid possible intimidation by employers--your staff needs to understand that such interviews can become the basis of a criminal charge against that employee if criminal neglect or abuse is allegedly found. It may be in that employee's interest to have a third person present to verify what is actually said in the interview should charges be brought against the employee based on the surveyor's version of the interview.

So what can you do? Here are some suggestions:

  • When the surveyors come in, start accompanying them. Be extremely courteous and undefensive. If an issue comes up and you would like to give them more information--say things like "may I provide more information?" If they say no or ignore you--make a note about the issue and have the information available at exit. Do not display anger, contempt or disgust--not matter how warranted. The easier you are to work with--the less inclined they may be to tell you not follow them.
  • If you are not allowed to follow them--catch up with them frequently to see what issues they are encountering so that you can gather additional information.
  • Your employees should all be made aware (well before a survey) that they have a right to have someone present during interviews. Let them know their statements could be used against them, individually, if abuse or neglect by them is allegedly found.
  • If you are not allowed to be present during interviews--try to be aware of with whom the surveyors are talking in order to debrief facility staff later. Be very careful and gentle during such debriefings to avoid any appearance of retaliation.

I get the impression that the CMS letter was provoked by incidents where anger was displayed. The initial outcome of this letter may be that surveyors refuse to let anyone accompany them for a while. Gently and politely persist in your attempts to accompany them so that you will have the opportunity to protect the facility from misunderstandings and misinformation.

It never hurts to ask--as long as you ask nicely.