During annual certification surveys, nursing homes are routinely faced with surveyor requests for incident reports, audits, tracking logs, and other records analyzed by the provider’s quality assurance (QA) committee, as part of the QA process.

Historically, these documents have been considered privileged communications.

An ever-present concern has been that if a nursing home discloses such QA records to surveyors, the privilege will be destroyed and they may become discoverable in future litigation, or worse, form the basis for additional survey deficiencies.

In short, the ability of facility staff to engage in frank, meaningful QA discussion and analysis, and even to conduct thorough investigations, is at risk when QA records are disclosed.

Recent interpretations of F-Tag 520, Quality Assessment and Assurance (QAA), by state and federal courts, as well as the Departmental Appeals Board (the independent review for the Department of Health and Human Services), warrant revisiting this often-sticky issue.

F-Tag 520, which contains the requirements for nursing facility QAA committees, defines not only the composition and meeting requirements of the QAA committee, but also its function.

Specifically, a QAA committee “meets at least quarterly to identify issues with respect to which quality assessment and assurance activities are necessary, and it must develop and implement appropriate plans of action to correct identified quality deficiencies.”

The QAA privilege plainly states: “The State or the Secretary [of Health and Human Services] may not require disclosure of the records of the committee except insofar as such disclosure is related to the compliance of [the quality assessment and assurance] committee with the regulatory requirements.”

That is, is the QAA committee comprised of the appropriate individuals, meeting quarterly as required, and is it identifying issues and developing plans to address problematic areas? The CMS investigative protocol for F-Tag 520 further clarifies that “the facility is not required to release the records of the QA committee to the surveyors for review, and the facility is not required to disclose records of the QA committee beyond those that demonstrate compliance with the regulation.” 

The critical question is then, what constitutes the “records of the QAA committee” that are not required to be released or disclosed? While a broad definition has often been used, the Centers for Medicare & Medicaid Services (CMS) and the federal courts have narrowed the definition over the past several years.

In fact, CMS recognizes that nursing home providers collect and analyze data about their performance in various forms and from various sources that may help them to identify quality deficiencies.

The agency’s interpretive guidelines for F-Tag 520 specifically reference “facility logs and tracking forms, incident reports, and consultant reports” as part of the data collection process.

But the F-Tag 520 interpretive guidance, labeled “Identification of Quality Deficiencies,” goes on to clarify that while records of the QAA committee meetings that identify quality deficiencies “may not be reviewed by surveyor,” unless the facility chooses to provide them, “the documents the committee uses to determine quality deficiencies are subject to review by the surveyors.” 

Therefore, logs, tracking forms, and incident reports may be reviewed by surveyors, at least according to CMS’ interpretation.

As existing case law makes clear, CMS takes the position that incident reports authored contemporaneously with an accident or incident are subject to review by surveyors, and these reports are not privileged under the statute.

Incident reports, according to CMS, are simply fact-gathering documents and are separate and distinct from the QA process.   

With regard to QA committee minutes, internal deliberations, analyses, and good faith attempts by the QA committee to identify and correct quality deficiencies “will not be used as a basis for sanctions.”

Furthermore, as found in F-Tag 520, the facility is “not required to release the records of the [quality assurance] committee to the surveyors to review, and the facility is not required to disclose the records of the QA committee beyond those that demonstrate compliance with the regulation.”

The interpretive guidelines at F-Tag 520 suggest that viewing QA records is appropriate “if it is the facility’s only means of showing the composition and functioning of the QA committee.”

In other words, surveyors should exhaust alternative investigative measures to assess compliance with the F-Tag before the surveyors request that the facility disclose QA records. Alternative investigative measures may include interviews with QA committee members and review of QA policies, meeting schedules, and blank or redacted QA committee forms.

Under no circumstances should copies be required to be turned over to surveyors.

What seems most problematic is when surveyors demand disclosure of QA records when investigating a resident fall or another accident. Incident reports and their corresponding investigatory information can demonstrate that an appropriate investigation has occurred and may be requested by, and reviewed by, the survey team.

But a subsequent request to review additional analytical materials prepared by or at the request of the QA committee should be resisted. Where data compilations such as monthly fall logs, weight-tracking reports, or other similar analyses are compiled at the request of and distributed to the QA committee for review and analysis, the best approach is to avoid disclosure. 

Based on the above Medicare requirements, surveyor requests to review QA records for the purpose of investigating a particular incident are inappropriate.

Instead of reviewing QA records to investigate resident falls and accidents, surveyors should review resident medical records and other records kept as a part of the resident’s medical record in the ordinary course of treatment. And if a facility feels compelled to allow surveyor review based on a particular situation, the reviewed documents cannot be used as a basis for sanctions.

Any attempt by CMS to do so should be challenged.

Jeannie Adams, director at Hancock, Daniel, Johnson & Nagle, Richmond, Va., advises long term care providers on state and federal reporting requirements and Medicare certification and survey requirements. Adams is a frequent speaker and contributor to written publications involving the long term care industry. She can be reached at (804) 967-9604 or at jadams@hdjn.com.