DOH Issues Deficiencies for Late HERDS Reports and PPE Stockpile Shortfalls

As reported last week, many nursing home members received notices of deficiency from the Department of Health (DOH) identifying failures to satisfy State personal protective equipment (PPE) stockpile requirements, and many adult care facility (ACF) and nursing home members received notices alerting them to failures to file timely Health Emergency Response Data System (HERDS) surveys, including filings that were only one minute late. Members with legitimate reasons or mitigating factors in relation to PPE shortfalls or late HERDS filings may want to seek reconsideration from DOH. The process for doing so varies depending on whether the facility is a nursing home or an ACF.

Nursing homes that received the initial notice of PPE deficiency, and that subsequently submitted a HERDS survey reporting the required 60-day inventory of PPE based on April use rates, should be in compliance and should not have received a proposed stipulation and order from DOH. Nursing homes that did not report the required amount on their current HERDS surveys will be receiving a proposed stipulation and order imposing a fine.

Nursing homes that received the stipulation and order concerning the PPE shortfall or that received the late HERDS filing notice may want to consider seeking reconsideration. If the facility has a legitimate reason for the PPE shortfall or mitigating factors justifying it, such as an inadvertent error in reporting, excessive projections of April use rates (in facilities that did not have actual April use rates), or delays in PPE deliveries, the facility may want to consider seeking reconsideration of the enforcement. Facilities may email Mark Fleischer in the DOH Bureau of Administrative Hearings to seek reconsideration. In deciding whether to sign the stipulation and order, facilities should weigh the risk that the Department may not accept their request and that the fine ultimately imposed may increase if the proposed stipulation is not accepted. In addition, any applications pending before the Department will be put on hold until the enforcement is resolved.

Similarly, nursing homes that received the late HERDS filing notice may want to consider seeking reconsideration if there are legitimate reasons for the late filing and the facility has been consistently compliant with HERDS submission requirements. For example, if the facility's submission was minutes late due to staffing challenges and the need to attend to resident health and safety issues on the day in question, or if HERDS system technology problems prevented the submission, the facility may want to explain the situation in an email to Mark Fleischer.

ACFs' notices of deficiency in relation to HERDS filings appear to be proceeding through standard deficiency processes, rather than through DOH counsel's office. Members with a legitimate reason for the delay and consistent compliance may want to appeal the determination through the Inspection Review Process (IRP).

Contact: Karen Lipson, klipson@leadingageny.org, 518-867-8838 or Diane Darbyshire, ddarbyshire@leadingageny.org, 518-867-8828