Neville M. Bilimoria

I read recently that the Centers for Medicare & Medicaid Services is back at it again.  Instead of reasonably mandating surveyors be vaccinated, just as CMS has required nursing homes to be vaccinated, the agency has stated that nursing homes cannot turn away surveyors at the door for not being vaccinated. 

This contradicts CMS’ own mandatory vaccine policy, and places residents and staff at risk.

Specifically, the updated CMS guidance says:

State survey agencies and CMS are ultimately responsible for ensuring surveyors are compliant with the applicable expectations. Therefore, LTC facilities are not permitted to restrict access to surveyors based on vaccination status, nor ask a surveyor for proof of his or her vaccination status as a condition of entry.” (Emphasis added.)

CMS is not seeing the forest for the trees. When the agency fines facilities for failing to have proper COVID-19 protocols, or proper infection control in the face of this pandemic, instead of helping facilities navigate through the often conflicting and onerous guidelines, it only adds insult to injury by not allowing facilities to engage in their standard infection control protocols.  On top of that, CMS holds facilities to one strict standard for infection control in facilities but then doesn’t hold itself to the same standard. What’s worse is that CMS’ own failings (which some would call hypocritical) can endanger residents and staff.  

Do facilities have rights to protect against someone who endangers their residents? Well, yes, facilities have to protect the health, safety and welfare of their residents pursuant to their state licensure requirements, and CMS’s long-standing Medicare and Medicaid certification rules. But can facilities then turn away a non-vaccinated or untested surveyor? CMS surprisingly says “no.”

If a facility found a CMS surveyor was infected with MRSA, wouldn’t the facility have a right to restrict access to that surveyor? Of course! Similarly, when we are dealing with a life-threatening pandemic, why should the rules be any different for facilities to protect their residents and staff when an unvaccinated surveyor shows up? Why don’t facilities have the right, nay, duty, to ask the vaccination status of government workers who seek entry into the facility?

Under its guidance, CMS is delegating responsibility of surveyor compliance to each state’s public health department. So are nursing homes supposed to trust health departments regarding vaccination status, testing or protocols that are to be followed by their own surveyors?  Remember, it was these same departments that were allowing individual surveyors last year to visit, enter and survey multiple facilities in a day, and enter facilities to survey before the vaccine was available — posing a daunting COVID-19 health risk to facilities and staff. So why should facilities continue to trust public health departments to police their own surveyors?

What can you do?

Since CMS seems so quick to punt the ball to state departments of public health for the “responsibility” of making sure their surveyors are compliant with state and federal safety infection control protocols, while CMS says you cannot “restrict access,” then perhaps you can work with the state agencies to mitigate risk.  One way to do so is to allow surveyors to enter, and if vaccination status is uncertain, perhaps quarantine surveyors in the facility during a survey. This is one of many possible, reasonable protocols to reduce risk. Work with your state agencies to set expectations and raise any safety concerns.  

In the end, CMS and public health officials have to work with facilities to keep residents and staff safe, even during the survey process. Speaking with and working with your state department of public health reasonably and rationally about state surveyors entering your facility is a fair way to meet your state licensure requirement of protecting the health, safety and welfare of your residents and staff.    

 Neville M. Bilimoria is a partner in the Chicago office of the Health Law Practice Group and member of the Post-Acute Care And Senior Services Subgroup at Duane Morris LLP; [email protected].

The opinions expressed in McKnight’s Long-Term Care News guest submissions are the author’s and are not necessarily those of McKnight’s Long-Term Care News or its editors.