CHALLENGING COMPLAINT INVESTIGATION DECISIONS
OF THE MI BUREAU OF HEALTH SYSTEMS
One option for addressing concerns about nursing home care is filing a formal complaint with the Bureau of Health Systems (BHS). BHS is the state agency that licenses nursing homes and determines if they meet state and federal standards. If you file a complaint with BHS, it must investigate your concerns and report its findings to you and the nursing home. This Fact Sheet explains your options if you are concerned about the quality of a complaint investigation or if you disagree with the results. If you need information about how to file a complaint with BHS, please contact your Local Long Term Care Ombudsman.
Evaluating BHS complaint investigation findings.
If you have filed a complaint with BHS, your hope is that it will confirm your concerns and problems will be corrected. Unfortunately, not all complaints are confirmed by BHS. If, after investigating, BHS cannot determine that an incident occurred and there is no indication of a deficient practice, then your complaint will not be substantiated. If BHS does not substantiate your complaint, the nursing home will not be required to take any corrective actions.
There may be a good reason why BHS cannot confirm your complaint. On the other hand, BHS may not substantiate your complaint because a poor investigation was conducted. An investigation is inadequate if:
- BHS gives the nursing home advance notice of the investigation. State law prohibits BHS from giving nursing homes advance notice of any investigation or inspection.
- It doesn’t take place soon enough to evaluate current evidence of the problem. Investigations of possible criminal acts or residents’ deaths should begin within 24 hours of your complaint, but no later than within 2 days. For other types of complaints, investigations should begin within 15 days and be completed within 30 days.
- It doesn’t take place at the appropriate time. For example, an investigation of lack of staff on the weekend should be conducted on the weekend, not during the week.
- It accepts the nursing home’s claims and there is only a limited investigation or no evaluation of all the facts.
- You were not contacted during the investigation and interviewed or others you identified as having relevant information were not carefully interviewed.
- It relies exclusively on nursing home documentation. You may submit supporting documents with your complaint and the investigator must review and evaluate them as part of the investigation.
- Evidence of the problem is ignored or discounted without proper evaluation.
- The conclusions don’t match the facts.
- It confirms the problem existed but the problem is allowed to continue without appropriate citations, corrective action by the nursing home or monitoring by BHS.
What to do if you believe BHS conducted a poor investigation.
If you are dissatisfied with how the investigation by BHS was conducted, you may want to request a formal hearing. Your copy of BHS’s investigative report will include a cover letter explaining your right to appeal. Many complainants find the appeal process frustrating, so we have identified other options for raising concerns about poor investigations.
Reinvestigation: If BHS did not investigate all of your concerns or failed to evaluate relevant evidence, you can ask for a reinvestigation. If you ask BHS for a reinvestigation, it is important to specifically identify the concerns or evidence that was overlooked, or to show how the conclusions reached by the investigator do not match the relevant facts.
Formal Hearing: You have 30 days from receipt of BHS’s findings to request a formal hearing. Administrative law judges conduct these hearings. The nursing home and its attorney will probably participate. BHS staff may also be present. Although you are not required to have a lawyer, it is best to have legal representation, since legal rules of evidence apply at formal hearings. Your Local Long Term Care Ombudsman can assist you in finding legal representation.
Informal Conference: In your letter to request a formal hearing, you may request an informal conference prior to the actual hearing date. The administrative law judge will decide whether or not to permit the conference. If the informal conference is permitted, you are given an opportunity to discuss your concerns about the investigation and the findings. You may bring others to help you present your information. Your local Long Term Care Ombudsman can help you present your concerns. If the initial findings are upheld, you may chose to go forward with a formal hearing.
Before you request a formal hearing it is important for you to understand that the outcome of the investigation is not subject to review and the hearing judge cannot issue a citation against the nursing home. The hearing will determine whether the investigation was inadequate and the judge can only order a reinvestigation.
If you request a formal hearing, you will have the burden of proving that the investigation by BHS was inadequate. In order to do that you must show that:
- The investigation was incomplete and
- BHS failed to consider relevant and substantive information, and
- A reinvestigation would uncover new evidence that might lead to findings different from those of the initial investigation.
You may present evidence as well as the testimony of witnesses.
Creative Advocacy: In addition to (or instead of) the appeal process, you can make your concerns known by writing key officials and sharing your concerns about the quality of the investigation. Officials you may want to contact are the Director of the Department of Community Healath, the department that over sees the Bureau of Health Systems, the governor, and you state senator or representative. In addition, you may want to contact the Center for Medicare & Medicaid Services. This is the federal agency that oversees the state investigation units, as well as makes Medicare and Medicaid payments to the nursing homes. Sharing your experience with these officials and agencies is a good way to let them know that the complaint system needs improvement and may result in a review of your complaints.
Write these officials at:
Janet Olszewski, Director
MI Department of Community Health
P.O. Box 30664
Lansing, MI 48909
Governor Jennifer Granholm
State Capitol State Capitol
Lansing, MI 48913 Lansing, MI 48913
Lansing, MI 48913
Associate Regional Administrator
Center for Medicare & Medicaid Services
233 North Michigan Avenue, Suite 600
Chicago, IL 60601
Please send us a copy of your letters to your Local Long Term Care Ombudsman.
Media: The media may be interested if BHS does not respond appropriately to serious problems you have identified. Media stories can bring substantial attention to a problem. However, you should be cautious since you cannot control what the media reports or the reactions of others to their stories.
Resident and Family Councils: If you talk with other residents and family members, you may find they share your same concerns about problems you see in the nursing home. If your nursing home has a Resident or Family Council, you might ask them to join you in protesting BHS’s determination. A petition describing your concerns could be developed and sent with resident and family signatures to the administrator, BHS, or other government officials.
If you don’t like any of these approaches, try something else, but don’t give up! Please call your Local Long Term Care Ombudsman if you would like to discuss any options you are considering.