Posted by: Robert Markette
January 26, 2006

Over the last few years, I have had a recurring conversation with a number of my clients.  Generally, this conversation occurs during or immediately after a survey.  Most providers dread surveys.  In most cases, this is a result of previous survey experiences.  There is nothing like having the state agency come into your offices, review your files, accuse you of not doing something the way you are supposed to be, demanding you fix it and giving you little or no recourse to challenge the findings. 

There is one particular facet of the survey process that many providers find more irritating being cited for doing something a surveyor told them to do in the past.  Let me explain.  During a survey, the surveyor will point out an area in which she feels the provider is deficient.  Occasionally, the surveyor will then offer her “advice” (by advice I mean that the surveyor will tell the agency “this is how you ought to do it”) on what the agency should do to correct this problem. The agency, in turn, makes the changes as recommended by the surveyor.  Having done what the surveyor told them to do, the agency is quite surprised when, during the next survey, they are cited for doing what the surveyor told them to do in the first place.

This is not as uncommon as you might think and illustrates a few key points.  First, the survey process is rather subjective.  The same agency can be surveyed by two different surveyors and obtain wildly varying results.  This can be the result of a number of things.  The surveyors may have focused on different areas; the surveyors may have different understandings of the rules; or the surveyors may simply have different understandings of the what they are looking at when they review the agency’s files.

More importantly, you cannot rely on the advice of surveyors.  Yes, the surveyor should have a solid understanding of the regulatory requirements, but they do not have any authority to speak on behalf of the state agency or CMS.  A surveyor may be offering you advice based upon what she has done when working in home care or hospice, she may be offering you advice based upon what she has seen in previous surveys, or she may simply be offering you her opinion on how this particular area ought to be handled.  Regardless, if the surveyor is wrong, you cannot later say, well the surveyor told us to do it this way. 

I have seen clients change a form or procedure to please a surveyor only to cited for the same issue during the next survey.  I have also had clients cited by a surveyor for doing something the surveyor told them to do.  Neither the state agency nor CMS cared that a surveyor had told them to do what they were cited for doing.  In fact, the usually response is that surveyors are not supposed to be giving advice. 

Another issue is communication.  You  may think you understand what the surveyor wants you to do, but either you or the surveyor may be misunderstanding each other.  This can lead you to implement a process that was not actually what the surveyor recommended.  (That is why CMS and states with licensure publish regulations and policy documents.)

Finally, you may implement exactly what the surveyor wanted, but your next surveyor may feel there is a more appropriate way to implement the standard.  In other words, the next surveyor may have different preferences. 

I always tell clients to take what the surveyor says with a grain of salt.  Wait until you receive the survey report and then decide what action needs to be taken, without relying upon what the surveyor said during the survey.  (This is also good advice, because what they surveyor mentions during the survey and what you are actually cited for are not always the same.)

Ah, the survey process.  Lots of subjectivity, no right to appeal.  But I am not even going to start talking about that today.

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