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Surveyors and "Light Bulb" Experiences

Guest Article: Elizabeth E. Hogue, Esq.


Surveyors continue to issues deficiencies that may not be supported by applicable requirements. Recently, for example, Saint Francis Health System in Tulsa, Oklahoma, received a deficiency based on a sacred candle burning in one of its hospitals. Surveyors found the burning candle dangerous and in violation of safety policies of the Centers for Medicare & Medicaid Services (CMS). The Hospital was threatened with loss of reimbursement from the Medicare, Medicaid and Children’s Health Insurance Programs unless it snuffed out the flame.

The Hospital argued that a sacred candle remained lighted at all times inside the Hospital’s chapel with appropriate safeguards. The Hospital argued that the government was trampling on the Hospital’s religious duty to maintain a burning flame and was trying to separate the health system’s religious activities from its mission to provide care for patients. On May 5, 2023, an attorney for the Hospital sent a letter to CMS that said, “If we go to court, you will lose.” The federal government ultimately discontinued all attempts to force the Hospital to snuff out the sacred candle.

This is an example of a “light bulb experience” on the part of surveyors. It sometimes seems that surveyors wake up in the morning and have bright ideas that are not necessarily supported by applicable requirements! Consequently, it is important for providers to know how to contest deficiencies that they believe are inappropriate. 

The first action providers should take when they disagree with deficiencies is to contest them in Plans of Correction (PoCs) submitted in response to Statements of Deficiency. Surveyors in some states have reacted negatively to this practice, especially in those states that have what may be described as “bad survey culture.” Some surveyors have even demanded that any language expressing disagreement in PoCs must be removed before PoCs will be accepted.

It is important for providers to know that CMS has instructed providers to include disagreements in PoCs when they wish to contest deficiencies. Specifically, Chapter 3 of the State Operations Manual 3016E - Disagreement over Deficiencies states as follows:

"A provider that disagrees with an SA finding regarding a cited deficiency or an acceptable PoC should be advised to annotate its position on the PoC, and should specify why the SA’s citation is not correct…"

In other words, providers that want to be heard regarding contested survey findings should express their disagreement in PoCs, including the reasons for their disagreements. They may also wish to request specific actions in PoCs, such as withdrawal of deficiencies.

Providers must, however, be meticulous about how they contest deficiencies in PoCs. Even though providers have expressed disagreement with deficiencies and perhaps have asked that the deficiencies be withdrawn, they must also submit a PoC for each contested deficiency. If providers do not also submit PoCs for each contested deficiency and the challenges to deficiencies are rejected, providers may suffer adverse actions, including decertification, because they did not submit a PoC for every deficiency.

In addition to challenging inappropriate deficiencies, providers should also utilize independent dispute resolution (IDR) processes that may be available to them. The processes for IDR may vary from state to state, so providers should identify state requirements and follow them.

Using these two ways to protest inaccurate or inappropriate survey deficiencies has produced excellent results for many providers. Providers must prepare to stand up for themselves during the survey process by contesting deficiencies using the mechanisms available to them.


©2023 Elizabeth E. Hogue, Esq. All rights reserved.

No portion of this material may be reproduced in any form without the advance written permission of the author.

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