Nursing Home Survey Teams Need Not Always Have an RN, Federal Court Rules

A nursing home’s Medicaid survey team doesn’t always have to include a registered nurse (RN), according to a federal district court decision concerning a New York-based facility.

The U.S. District Court for the Southern District of New York last week entered into a summary judgment in favor of the U.S. Department of Health and Human Services (HHS), stating that the Medicaid Act unambiguously gives the agency authority to allocate an RN to survey teams based on survey type, according to the decision made by Chief Justice Laura Taylor Swain.

This includes giving HHS authority over whether an RN is required to be part of a survey team assessing a nursing home’s compliance with federal regulations. However, it restricts the agency’s authority over other regulations, especially those pertaining to non-clinical situations.

“As noted in the official commentary accompanying the Final Rule, the interpretation embodied in the Final Rule enables HHS ‘to determine which professional would be most appropriate [on a team] to investigate complaint allegations based on the nature of the complaint allegation received,’” Swain said.

The ruling was first reported by Bloomberg Law on Monday.

The underlying case involved a resident at Avon Nursing and Rehabilitation in 2013 spilling soup on her lap, resulting in burns. The New York State Department of Health responded to the incident, sending two dieticians as part of a survey team who found Avon was out of compliance with two participation requirements.

The Centers for Medicare & Medicaid Services (CMS) issued a civil monetary fine to Avon for the violation, which was later rescinded since there wasn’t an RN as part of the survey team. HHS later issued a rule in May 2017 that didn’t specify health care professionals on a survey team needed to be nurses, depending on what was being investigated.

The federal district court ruled that RN involvement in survey teams is dependent on what subsection a complaint might fall under, which is dictated by the nature of the complaint.

“State agencies receive a wide variety of complaints regarding nursing facilities — some of which involve health or medical issues, but some of which do not (e.g., complaints about a broken heater, or poor food quality),” according to court documents. “In many such cases the skills of a registered nurse are not necessary.”

More specifically, the participation of an RN is only required in surveys conducted pursuant to 42 U.S.C. section 1396r(g)(2) of the Medicaid Act. Complaint investigations arising under section 1396r(g)(4) need not have an RN on the responding survey team.

Avon, which owns facilities in New York and Rhode Island, challenged the HHS rule, arguing it was contrary to the Medicaid Act.

The case was put before the Southern District after the Second Circuit in 2021 dismissed the case for lack of subject matter jurisdiction. Swain disagreed with the challenge in an issued opinion on March 31.