HHSC Claims Against Nursing Homes and Nursing Facility Administrators

Centers for Medicare and Medicaid (CMS) contracts with State nursing facility licensing agencies (in Texas, the HHSC) to staff and educate agency personnel to function on its behalf.  CMS issues regulations imposing upon the State legislature and agencies the requirement for adopting the federal regulations verbatim or with broader/greater restrictions, as a condition for receiving payment for taking on oversight responsibilities on behalf of CMS. This includes implicit CMS expectation that HHSC is meeting CMS requirements if surveyors “find” and impose violations on nursing facilities.

In Texas HHSC is the licensing agency for long term care facilities, Nursing Facility Administrators, and related functions, such as education and certification of Certified Nurses Aides, Medication Aides, and technicians.  Nursing care is to be under the direction of Registered Nurses and licensed professional nurses (LVN/LPN) and explicitly stated to be governed by “evidence based standards of care”.   The Texas Board of Nursing (BON) collaborates with HHSC, so that Nursing Facilities and Administrators must be aware of and institute procedures that comply with the Texas Board of Nursing.  This includes institution of Nurse Peer Review Committee requirements, on-going review of practice “incidents”,  reporting to the BON according to 22 TAC 217.19,  annually assure  that LVN and R.N licensure is not encumbered, meets continuing education requirements (inclusive of their area of practice); and evaluate nurses for compliance with 22 TAC 217.11 and Position Statements (e.g. 15.27, 25,28  RN, LVN Scope of Practice: 15.20 Registered Nurses in the Management of an Unwitnessed Arrest in a Resident in a Long Term Care Facility and many other Positions Statements that impact facility  job descriptions.  Most important 22 TAC.12(3) “(2) Failure of a chief administrative nurse to follow standards and guidelines required by federal or state law or regulation or by facility policy in providing oversight of the nursing organization and nursing services for which the nurse is administratively responsible.”

Nursing facilities are required to function under mandates issued by CMS and through monitoring of in-facility operations, so that staff must enter data into the federal computer system regarding residents (MDS), staffing, nursing functions, resident conditions, facility operations, quality measures (QIPP), on an ongoing basis.   Data entry is governed by regulations and government imposed deadlines.  HHSC and CMS directly monitor and control facilities through HHSC established regional offices and supervisors under which investigators/surveyors function to monitor and provide local oversight, in cooperation with CDC, local and State health departments. HHSC centralized (Austin) Supervisory Personnel control and direct  facility surveys, communicate with regional HHSC surveyors during a facility investigation and survey;  then prepare/author the survey report to control ‘evidence’ that supports violations (F-tags).    

CMS regulations adopted by HHSC contain directives for Surveyor terminology by which facility violations and monetary penalties are assigned.   CMS regulations allow a facility to obtain a second “independent review” of HHSC findings.   Should the Independent Review (IDR) differ with HHSC survey report evidence and cite violations, it is HHSC who decides whether to accept the results of the “independent review” that are favorable to the Facility.   The Facility’s remedy is to file a formal Administrative Appeal, and provide timely notice of appeal within regulatory deadlines. The appeal is an administrative appeal – a lawsuit in Texas state court that challenges HHSC administrative requirements.   However, if immediate jeopardy – and monetary penalties are at issue, the administrative appeal is generally filed through the Federal CMS administrative court system and prosecuted out of the Dallas, Texas  CMS office, in Federal Courts. In such instances, all judicial discretion is assigned to the HHSC/CMS. 

Defense of Nursing Facility Administrator

It is important for the Nursing Facility Administrator (NFA) to realize the breadth of charges that may be filed by HHSC against the NFA licensee primarily arise from facility investigations and HHSC investigations and surveyors which assign “immediate jeopardy”.   The NFA is responsible for all functions occurring within the facility – inclusive of Quality of Care, even though Quality of resident care must be overseen by a Registered Nurse, carried out through licensed LVN Charge nurses, a licensed therapist, dietician, social worker, or even a contract/3d party licensed providers (therapists, Hospice RN, etc.)  The allegations against the NFA mirror the allegations against the facility – whether grounded in vicarious or direct liability.   Defense of the Administrator must demonstrate the NFA’ administrative duties inclusive of ensuring that qualified supervisory functions, policies and procedures, federal and state statutes and law are in place, utilized, staff are educated and evaluated for use and requisite credentialed supervisory functions are effective and comply with “evidence based standards of care” in the facility.   Of course, decisions as to the NFA’s allegations and defense are determined by the same HHSC that authored the survey report and assigned immediate jeopardy.

Although HHSC provides a telephone number for reporting complaints against surveyors, investigators and HHSC personnel, reporting is only to HHSC; no independent oversight source for reporting HHSC errors exists at this time.

One of the most important and substantial defenses for the NFA is  compliance and active use with administrative committees,   a very diligent and medically  oriented Director of Nursing that stringently complies with BON mandates,  uses staff education to ensure, evaluate and institute policies and procedures based medical and nursing “evidence based standards of care”, and judiciously uses measures to maintain clinical practice currency. It is important to recognize that surveyors are not required to meet or even know “evidence based standards of care”, let alone credentialed clinical practice providers.   Mere passive use of State or Federal “education means” is not a sufficient defense.  Immediate Jeopardy is most frequently related/incentivized by HHSC allegations of violations of the Quality of Care and Administrative F-tags; as each allegation must support “patient injury” which HHSC merely alleges is potential.