A 10-year-old case that started over a bowl of spilt soup has led to a sweeping confirmation that state survey teams do not have to include registered nurses when investigating complaints or monitoring nursing home compliance.
The US District Court for the Southern District of New York last week upheld a 2017 Health and Human Services rule that states RNs need to be included only on teams conducting standard and extended surveys.
The ruling comes as a loss to the New York nursing home chain that fought the new standard, but also more broadly to providers who had seen the case as a promising way to challenge changes in Medicare and Medicaid regulations.
The rule at the center of the case was adopted in 2017, following an administrative law judge’s ruling reversing a civil monetary penalty issued to Avon Nursing and Rehabilitation, just south of Rochester, NY. The facility had self-reported a 2013 incident in which a resident tipped a bowl of hot soup in her lap, resulting in a burn. The New York State Department of Health then conducted an “abbreviated standard survey” at the facility, using a survey team composed of two dieticians, neither of whom was a registered nurse.
Hit with the CMP, Avon appealed the survey findings to the ALJ. That judge in 2016 ruled that the lack of a nurse on the survey team violated Medicaid requirements and invalidated the fine.
Following HHS’ adoption of the 2017 final rule, Avon prepared a legal challenge calling the change “arbitrary and capricious.” A 2021 federal ruling allowing the case to move forward was seen as a victory for all providers because it created a new pathway to contest regulations established by federal agencies believed to violate the Medicare and Medicaid Acts.
But Chief US District Court Judge Laura Taylor Swain on March 31 ruled that the 2017 HHS rule was “unambiguous.” That rule requires annual standard surveys and extended surveys to be conducted by an interdisciplinary team that must include a registered nurse.
“The Court concludes that Plaintiffs’ challenge to the Final Rule is meritless because the language, structure, and context of the Medicaid Act all demonstrate that the statute’s language is unambiguous, and that Congress clearly intended to require the presence of a registered nurse only on those surveys arising under 42 U.S.C. § 1396r(g)(2),” Swain wrote. “In the alternative, even if the statutory language were deemed ambiguous, the Final Rule represents a reasonable interpretation of the statute.”
Investigations of complaints and the monitoring nursing facility compliance “are not subject to the registered nurse requirement” but instead can be conducted by a specialized team that “may” include appropriate healthcare professionals, the judge noted.
Avon is operated by Hurlbut Care Communities, which has 11 skilled nursing facilities. A receptionist for Hurlbut said the owner and company president, Robert Hurlbut, was out of the office, and no one else returned a request for comment by deadline.
But attorney Brian M. Feldman, partner at Harter Secrest & Emery LLP, told McKnight’s Long-Term Care News late Tuesday that he intends to appeal the decision on his clients’ behalf.
“Just as Congress mandated that nursing homes maintain registered nurses on facility staff, Congress also mandated that the government maintain registered nurses on survey staff. The court’s decision allows government agencies to craft a wholly different rule, one in which surveys could be staffed with any manner of non-nurses — dietitians, lawyers, or others. This lowers the quality of surveys and is unfair to facilities and the public,” Feldman said in an email. “We do not believe the law is so permissive as to allow agencies to brush aside acts of Congress. The Second Circuit agreed with us last time we made a similar argument on appeal, and we look forward to convincing the appellate court here, too.”
