In an article published by McKnight’s Long-Term Care News on May 1, 2023, AGG Healthcare of counsel Alan C. Horowitz shared that while skilled nursing facilities (“SNFs”) have historically not fared well when appealing enforcement actions taken by the Centers for Medicare & Medicaid Services (“CMS”), important developments have altered the legal landscape and given providers a more equitable chance of prevailing.
“As part of its survey process, the Centers for Medicare & Medicaid Services is authorized to take several enforcement actions, including but not limited to imposing civil money penalties (“CMP”), denials of payment for new admissions, and/or termination from the Medicare program,” Alan explained. “The latter is the equivalent of a financial kiss of death.”
“But what can a SNF do if it believes that the alleged deficiencies have no factual or legal basis, and the surveyors got it wrong?” Alan added. “Unfortunately, SNFs have not fared well in the formal appeals process. For example, of the 47 cases that were appealed and decided last year, CMS prevailed 46 times with only one provider victory.”
The shift in the legal landscape that gives providers a better chance of prevailing relates largely to two U.S. Supreme Court decisions — Kisor v. Wilke and Azar v. Alina Health Services — that limit deference to agencies like CMS when it comes to interpreting their own regulations.
“Providers want — and deserve — to have an impartial and level playing field when they legitimately challenge CMS’ enforcement actions,” Alan said. “Only time will tell how much these recent cases will impact providers’ enhanced opportunity to prevail at appeals. Stay tuned, the issue has already been briefed and is currently before the board with future federal court review likely.”
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