After two previous attempts to inspect a New York nursing home, the state Department of Health (DOH) announced it was planning to try again three days before the current COVID-19 outbreak that began October 3, 2020. The county executive continued to assert that he would allow the inspectors to enter, but they must provide proof of a negative COVID-19 test. The inspectors provided documentation from DOH attorneys stipulating that state inspectors are tested weekly based on the same executive orders applying to nursing home staff.
Consequently, on October 8, the DOH issued a statement of deficiency to the facility that outlined the federal regulation violated by the facility’s refusing to give inspectors access and gave the facility 10 days to respond with a plan of correction. The nursing home submitted a plan within the specified timeframe and that plan is under review by the DOH.
New York regulations require that persons planning to visit a nursing home resident must be screened for COVID-19 symptoms and provide proof of a verified negative test result occurring within the past seven days.
DOH does not consider its health inspectors to be visitors, but surveillance staff that are treated in the same way as nursing home staff who are tested weekly and screened for symptoms prior to any field work.
The Centers for Medicare & Medicaid Services (CMS) enters into contracts with states requiring all nursing homes participating in Medicare and Medicaid to be inspected. The denial of admission to state inspectors may violate the terms of the state’s agreement with CMS and jeopardize the facility’s ability to participate in federal funding.
A spokesperson from the DOH indicated that the state would be attempting another inspection, but due to the CMS requirement that inspections be unannounced, the date of that inspection is unknown.
Compliance Perspective
Failure to acknowledge the authority of CMS contracted state inspectors to enter a facility may be considered a violation of CMS regulations requiring facilities to be screened at least annually on an unannounced basis to determine their status as a participant in Medicare and Medicaid programs. This could result in the facility being issued a statement of deficiency requiring a plan of correction to be submitted.
Discussion Points:
- Review policies and procedures to develop a plan of action for responding to a statement of deficiency.
- Train staff regarding implementing and sustaining any plan of correction the facility submits after receiving a statement of deficiency.
- Periodically audit to ensure that the facility’s plan of correction is being implemented and monitored through the QAA/QAPI process.
