Nursing home complaint investigations do not require a registered nurse to be part of the on-site inspection team, a federal appeals court ruled Thursday.
In a 2-1 decision, a US Court of Appeals panel decided that complaint investigations are not technically surveys as determined by Congress, and therefore can be made up of a less representative group of investigators.
In doing so, the judges leaned on the Supreme Court’s Loper Bright decision from earlier this year, citing their new ability to determine how Congress meant its statutory language to be interpreted. In this case, the panel’s majority backed the right of the Department of Health and Human Services and the Centers for Medicare & Medicaid Services to set different requirements for different types of surveys.
Providers have raised concerns that without the expertise of a clinically trained inspector who understands the context in which nursing home residents are treated, survey teams may err in their findings to the detriment of operators and patients.
Thursday’s ruling differentiates between standard certification surveys — meaning the annual inspections due every 15 months — and site visits made in response to a specific complaint or other, short surveys intended to monitor compliance.
HHS published a 2017 rule requiring RNs only on standard and “extended” surveys. That, according to court documents, came in response to an earlier federal ruling in which an administrative law judge threw out a civil monetary penalty given to a New York nursing home following a complaint survey conducted by a nurse-less team.
In that original case, Avon Nursing and Rehabilitation 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.
Thursday’s ruling affirms a March 2023 District Court decision over the objection of the providers, who argued that Congress required the presence of an RN in the Medicaid Act and meant to do so for all kinds of inspections and surveys.
In a ruling highly focused on semantics and paragraph placement, the Second Circuit panel insisted that by leaving complaint surveys out of a specific subsection of the law — and referring to them as “investigations” rather than surveys — Congress made clear its intent to treat them differently.
Attorney Alan C. Horowitz of Arnall Golden Gregory had filed a brief in support of the plaintiffs on behalf of AMDA — The Society for Post-Acute and Long-Term Care Medicine (now operating as PALTMed). He called last week’s ruling “illogical” and potentially detrimental to patients, given how often complaints are related to clinical conditions such as falls, infection or wounds.
“Let’s say there’s a complaint from a family member that their loved one just develops a Stage IV pressure ulcer and has uncontrollable diabetes. If the survey team goes out and there’s not a registered nurse on the survey team to investigate that complaint, it just seems illogical,” Horowitz told McKnight’s Long-Term Care News Friday. “Not having an RN on the team that is going to validate or not substantiate the complaint, that seems to be doing a disservice to the residents.”
A licensed nurse, Horowitz said, would have the clinical expertise and a deep understanding of the latest practice guidelines, which would often fall outside the scope of a dietitian, social worker or other non-nursing survey team member. An incorrect finding of resident harm or Immediate Jeopardy could cost providers thousands of dollars to appeal, Horowitz argued.
Conversely, he said, a survey team without an RN could also miss a legitimate serious deficiency, leaving a facility out of compliance longer and leaving patients more vulnerable.
“It affects the quality of the survey in measurable ways,” he added. “Either way, residents will lose.”
Future survey implications
Still, Horowitz says he’s seen “more and more” survey teams without nurses, especially since COVID began.
CMS and its state agency partners have struggled to hire in recent years, citing lagging budgets and the inability to pay competitive wages, as well as a national shortage of RNs across healthcare sectors. Those issues have not just delayed annual surveys; they have increasingly changed the makeup of inspection teams.
For now, it appears the 2017 HHS rule will stand. There is no Circuit Court split on the issue, which makes the odds of an appeal being accepted by the Supreme Court less than 1%, Horowitz said. Attorneys for the plaintiffs — who were joined in their arguments by the American Health Care Association and New York State Health Facilities Association, as well as AMDA — could also ask the full Circuit to consider the case.
“Our clients are reviewing their options,” Brian M. Feldman of Aurelian Law, attorney for Hurlbut Care and other healthcare facilities that challenged the legality of the 2017 rule, told McKnight’s in a statement Friday “This opinion merits close scrutiny. It marks the Second Circuit’s first application of Loper-Bright — but the Circuit used Loper-Bright’s framework to uphold an agency interpretation that may have failed under Chevron. Our clients are considering whether that is what the Supreme Court intended in overruling Chevron.”
Judge Michael Park’s dissent in Thursday’s ruling shows there may be an opening for providers. He argues that his colleagues misinterpreted Congress’ rule-making intentions by failing to recognize the hierarchy that Congress traditionally uses in wording its statutes.
“Our job in this case is to determine whether a challenged agency action is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,’” Park wrote. “The Medicaid Act states that all surveys must include a registered nurse on survey teams. The Final Rule says the opposite and is thus invalid.”
