Avoiding the Trap: Why your Plan of Correction Could Become a Legal Liability

In Ohio, skilled nursing facilities are facing an emerging legal risk that has little to do with actual care delivery, and everything to do with how they respond to citations. While CMS Form 2567 (Statement of Deficiencies) is not admissible in civil litigation under Ohio law, plaintiff attorneys are increasingly using a workaround: citing the facility’s Plan of Correction (POC) as evidence of wrongdoing or as a proxy to establish a heightened standard of care.

This shift marks a troubling trend. What was once a purely regulatory document submitted solely to demonstrate compliance can now become a weapon in litigation if not carefully worded. Language that suggests acknowledgment of fault or broad systemic failure can be twisted out of context, exposing providers to unintended liability.

Legal Review Before Submission

To minimize legal risk while satisfying CMS expectations, we strongly recommend that facilities involve legal counsel in the drafting, or at least the review, of any POC prior to submission. This isn’t about deflecting responsibility or “lawyering up.” It’s about ensuring that your response:

• Includes the requisite elements and appropriately captures your corrective actions
• Avoids phrasing that could be interpreted as an admission of liability
• Preserves protections for quality assurance and peer review materials under Ohio law
• Includes disclaimers as appropriate

Compliance and Risk Management Go Hand-in-Hand

Our firm routinely assists providers in developing Plans of Correction that aim to satisfy regulatory requirements while thoughtfully managing potential legal exposure. While no language can eliminate all risk, a proactive legal review helps ensure the POC is both compliant and carefully worded to avoid unnecessary admissions or implications.

In short, before submitting your next Plan of Correction, consider how it might be interpreted, not just by surveyors, but by a future plaintiff’s attorney.