In a move that has taken hospitals across the country by surprise, the Centers for Medicare & Medicaid Services (CMS) this past weekend released the content of hundreds of Statement of Deficiencies CMS-2567 forms (Form 2567) with the surveyor findings from acute care and critical access hospital surveys to a nonprofit organization it has partnered with, the Association of Health Care Journalists (AHCJ). Ostensibly, the purpose of the release is to make the documents easier to review and analyze.
The AHCJ, which describes itself as “an independent, nonprofit organization dedicated to advancing public understanding of health care issues” with a mission to “improve the quality, accuracy and visibility of health care reporting, writing and editing,” suggests its journalist members use the Form 2567 in their reporting efforts. Form 2567 information is now searchable on the AHCJ website by state, city and keyword (such as “wrong site” or “transfusion”). A link to each hospital’s CMS Hospital Compare profile also is provided.
CMS provides similar Form 2567 information on nursing homes on its own website.
Historically, Form 2567 information for hospitals, and the related corrective action plan prepared by the hospitals (each a “Plan of Correction”), have been accessible through requests made by the public (including journalists) to CMS and state agencies under the Freedom of Information Act (FOIA) and similar state laws. (See CMS State Operations Manual, Section 3308A.) The time period for disclosure set forth in CMS guidance permits release 30 days after the provider receives the Form 2567, or when CMS or the state agency receives the Plan of Correction, whichever comes first. If no Plan of Correction is received within 30 days, the Form 2567 can be released without it. (See CMS State Operations Manual, Section 3314, and July 2, 2010, CMS Transmittal to State Survey Agency Directors.) This timing permitted a requesting individual to be provided with both the survey findings and the response of the involved hospital. The AHCJ admits the data on its website is incomplete, noting “At this time, this data should not be used to rank hospitals within a state or between states,” but that “[i]t can be used to review issues identified at hospitals during recent inspections.” However, the association downplays an aspect of its disclosure efforts that places hospitals at a significant disadvantage: Namely, a hospital’s response to survey findings are not available on the site due to a number of “technical” difficulties in doing so, per the AHCJ. This means AHCJ members and the public searching the website do so without the benefit of clarification, corrections and information on actions taken by a hospital in response to survey findings, which results in a one-sided (or at least unanswered) view of the issues raised and risks potential mischaracterization of the survey findings by those searching the site.
For example, if the survey findings reflect factual errors on the part of the survey team, a hospital can correct those errors through the completion of a Plan of Correction that addresses the issues raised in the Form 2567 and inputs those responses on to the same form. Similarly, if the survey findings are incomplete or missing information, the hospital would provide this further clarification in its Plan of Correction. Where corrective actions are taken in response to survey findings, that information is also included in the Plan of Correction. Omitting this information from the searchable database and noting only that it is available through additional requests, such as those under FOIA, may create a disincentive for journalists and members of the public to get the “full story” before reporting on an issue or reaching a conclusion based solely on the surveyor information in the Form 2567.
Hospitals were not provided an opportunity to provide input or comments to CMS regarding the planned release of information to AHCJ.
Some hospitals and health care systems are considering taking a proactive approach to the availability of the Form 2567 information on the ACHJ website by posting on their own websites the Plans of Correction related to the surveys, in order to avoid a potential flood of inquiries from the public regarding what was done in response to the survey findings available on the ACHJ website, while others are taking a more laid-back approach, hoping that CMS will reconsider releasing information they view as “incomplete” on a going-forward basis.
* * *
Hospitals that wish to voice their concerns to CMS regarding the release of information to the AHCJ may contact the CMS Central Office in Baltimore, Maryland. State hospital associations and other organizations also may be collecting comments on this policy shift to share with CMS, and might serve as a resource for hospitals that desire to join their peers in commenting on this matter.
If you have any questions regarding this On the Subject, please contact the author or your regular McDermott Will & Emery lawyer.