Incident Reports, Surveys and Privilege: Protecting QA Material from Enforcement Action

Imagine that a survey is occurring at your facility. The director of nursing just informed you that the survey team asked to see all incident reports for the past three months. Not knowing whether or not the incident reports had to be disclosed to the surveyors, the nursing home administrator called the facility’s attorney. In turn, the attorney advised that the incident reports are shielded by a “quality assurance privilege.” When the DON informed the surveyors of this, they contacted their supervisor for guidance and afterwards said they would cite a deficiency at the “immediate jeopardy” level and possibly terminate the facility if the incident reports were not disclosed.

The incident reports were reluctantly turned over and a number of deficiencies were later cited. The most serious deficiency had a scope and severity at a G-level, an isolated instance of actual harm. Weeks later, after the facility received notice of imposition of a civil money penalty (CMP), it filed an appeal with an administrative law judge (ALJ) at the Departmental Appeals Board (Board). In its appeal, the facility asserted that the Centers for Medicare and Medicaid Services (CMS) may not cite the deficiencies and impose a CMP since it relied on information contained in the facility’s incident reports. The ALJ would have to address the thorny question of whether there is a quality assurance privilege that shields incident reports from surveyors.

If the above scenario sounds far-fetched, it shouldn’t. That is precisely what happened in a case that recently made new binding law for the Third Circuit. It would be the first time any federal court addressed that specific issue.

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