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A lighter CMS survey won't shield you in court; the evidence sits in your own records
Skilled Nursing News reported in August 2026 that CMS's new risk-based survey process, due to begin in September, uses fewer survey activities and a smaller resident sample than the traditional model. Ricky A. LeBlanc, managing attorney at Sokolove Law, said he does not expect "an immediate increase in litigation" from the change alone. His concern is a serious problem developing at a facility that recently had a focused survey. The model is meant for higher-performing facilities that meet specific criteria. LeBlanc said CMS's pilot found noncompliance and resident-safety risks at rates comparable to traditional surveys.
Does a clean risk-based survey protect my facility in a lawsuit?
No. Surveys capture one moment in time, and a facility with no citations can still have been negligent in one resident's case, because regulatory findings and civil liability are decided separately.
The practical issue is what a thinner survey leaves unseen. LeBlanc's examples were repeated complaints about slow call-light response, a pattern of falls on one shift, internal concerns about an employee's conduct, incompletely implemented care plans, and staffing that swings by day or time. Any of these could matter in a negligence case without ever producing a citation.
Our read is that every item on that list is something a DON's office can see and a surveyor sampling fewer residents may not. A good survey result tells you little about whether your own tracking would hold up if a case arose.
Which problems are most likely to draw scrutiny?
If litigation rises, LeBlanc expects attention on recurring or systemic failures rather than isolated clinical errors, naming falls, pressure injuries, elopements, preventable infections, abuse or neglect, medication errors and staffing failures.
Staffing runs through nearly all of them. He said inadequate staffing can affect repositioning, fall prevention, call-light response, medication administration, supervision of residents with cognitive impairment and recognition of changes in condition. He also stressed that whether staffing contributed to an injury depends on the facts of each case.
For a DON that cuts both ways, because you hold the schedules and the reasons behind gaps. Our earlier video, "Watch: Nurse leadership in times of pressure, crisis and scrutiny," covers the leadership side.
Can I trust the claim that focused surveys catch as much?
Treat it as unverified. The comparable-rate finding reaches us through a lawyer's account, with no figures published in the coverage, so the metric, the sample and the measurer are all unknown.
That finding underpins the whole model, yet "comparable" is undefined. It could mean citation counts, severity or something else. The coverage doesn't say whether the pilot drew only on higher-performing facilities. If it did, it says less about how a smaller sample performs elsewhere.
The safeguards also matter. Facilities with serious citations, certain pending complaints or facility-reported incidents, or other risk factors can be moved back to the traditional process. Your complaint and incident history therefore helps decide which survey you get. The coverage doesn't spell out the criteria, so get them from CMS or your state agency, not from a law firm's paraphrase.
What should I ask my vendors and advisers?
Ask your counsel and insurer how they treat a focused survey result, and ask your records and staffing-software vendors whether they can show falls, call-light response and staffing by shift and day.
Those are the patterns LeBlanc flagged. If your systems only roll results up monthly, you can't answer questions about a bad shift or a thin weekend. Ask your state survey agency, ideally in writing, which criteria apply to your building and what would trigger a switch back to a traditional survey. Nothing in the coverage suggests the standard of care changed. The survey changed, and the exposure didn't.
Frequently asked questions
Will lawsuits against nursing homes rise because of the new process?
LeBlanc does not expect an immediate increase from the process change alone. He sees implications when a serious problem develops at a facility that recently had a focused survey.
Can a facility be moved back to a traditional survey?
Yes. Serious citations, certain pending complaints or facility-reported incidents, or other identified risk factors can disqualify a facility from the risk-based process.
Do survey findings decide civil liability?
No. CMS surveys assess compliance with federal requirements for Medicare- and Medicaid-certified nursing homes. Civil cases can ask different questions.
Sources: Skilled Nursing News, "Inside the Litigation Impact of CMS' New Risk-Based Survey Process on Nursing Homes," by Zahida Siddiqi.