Garfunkel Wild has seen a significant increase in nursing homes being cited for Life Safety Code (LSC) deficiencies by the New York State Department of Health (DOH). These deficiencies are being cited either as part of a recertification survey or an LSC survey. The difficulty achieving substantial compliance or obtaining a waiver places nursing homes at risk for termination from Medicare and Medicaid, denial of payments, and monetary penalties. Many of the deficiencies require expensive facility renovations which are proving hard to afford given the age of the nursing home facilities and the current climate in New York. Nursing homes face an uphill battle recovering the costs of the renovations as part of the capital component of their Medicaid rate.
Medicare and Medicaid providers are required to comply with National Fire Protection Association (NFPA) fire protection requirements. On behalf of the Centers for Medicare and Medicaid Services, DOH surveys nursing homes and assesses compliance through LSC inspections. Over the past six months, there has been a significant uptick in citations issued by DOH, in which a litany of LSC deficiencies are being cited. Nursing homes face the substantial hurdles of a short statutory timeframe to submit a plan of correction that is acceptable to DOH. Should DOH determine that a nursing home has not come into compliance, termination from Medicare or Medicaid, as well as civil monetary penalties and denial of payment for new admissions, looms.
In addition to termination and monetary penalties, renovations required to come into compliance with LSC requirements are costly and disproportionately impact nursing homes housed in older facilities. Historically, residual equity rules permitted a nursing home to continue receiving money in the capital component of their Medicaid rate that would enable them to make improvements to the facility, despite the building being past its useful life. In 2020, however, New York State eliminated this residual equity rule through a budgetary provision. Nursing homes in newer buildings also face challenges because Governor Hochul proposed a reduction in the capital component of the Medicaid reimbursement rate in this year’s Executive Budget, which would limit their ability to recoup the costs of renovations.
While nursing homes can apply for waivers to ease the burden after receiving an LSC deficiency, these waivers do not apply to all deficiencies and they still can be costly and time consuming. Accordingly, it is crucial that nursing homes take the proper steps after receiving a citation to avoid Medicare and Medicaid termination and penalties.
Garfunkel Wild has assisted numerous nursing home operators with these issues.
Should you have any questions regarding the above, please contact the authors, the Garfunkel Wild attorney with whom you regularly work, or contact us at [email protected].