SUBJECT:

Shiawassee County Medical Center,

Petitioner,

Centers for Medicare & Medicaid Services

DECISION

On December 17, 2001 the Centers for Medicare & Medicaid Services (CMS) ⁽¹⁾ filed a memorandum in support of summary judgment pursuant to a previously approved briefing schedule (CMS Br.). Petitioner filed an undated memorandum in opposition (P. Br.) and CMS submitted a response brief on February 11, 2002 (CMS Response Br.). CMS's brief was accompanied by 14 proposed exhibits. Petitioner's brief in opposition was accompanied by eight proposed exhibits. I am admitting CMS's exhibits into evidence without objection, as CMS exhibits 1-14 (CMS Exs. 1-14). I also admit Petitioner's exhibits into evidence without objection, as Petitioner's exhibits 1-8 (P. Exs. 1-8).

After consideration of the written arguments and documentary evidence submitted by the parties, I grant CMS's motion for summary judgment.

I. Standard for summary judgment

Summary judgment is appropriate when there is no genuine issue as to any material fact and the proponent is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. If the moving party meets this burden, the onus shifts to the opposing party to establish that a genuine issue does exist. The opposing party will have shown that genuine issues of fact are present "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 249 (1986). To accomplish this, the opposing party must go beyond mere allegations and come forward with factual evidence that creates a genuine issue of material fact. All reasonable inferences are to be drawn in the opposing party's favor. Pollock v. American Tel. & Tel. Long Lines, 794 F.2d. 860, 864 (3^rd Cir. 1986). I have considered all the evidence set forth in the papers submitted and conclude that all inferences drawn from such evidence casts no doubt as to the propriety of granting CMS's motion for summary judgment inasmuch as there is no issue of material fact to be tried. CMS's motion is properly supported by documentary evidence.

Petitioner is considered a long-term care facility under the Social Security Act (Act) and regulations promulgated by the secretary of Health and Human Services (Secretary). The statutory requirements for participation by a long-term care facility are found at sections 1819 and 1919 of the Act and Title 42 C.F.R. Part 483.

Sections 1819 and 1919 of the Act invest the Secretary with authority to impose a civil money penalty (CMP) against a long-term care facility for failure to comply substantially with participation requirements.

Pursuant to the Act, the Secretary has delegated to CMS and the states the authority to impose remedies against a long-term care facility that is not complying substantially with federal participation requirements. 42 C.F.R. Part 483 provides that facilities which participate in Medicare may be surveyed on behalf of CMS by state survey agencies in order to ascertain whether the facilities are complying with participation requirements. 42 C.F.R. §§ 488.10-488.28. The regulations contain special survey conditions for long-term care facilities. 42 C.F.R. §§ 488.300-488.335. Under Part 488, a state or CMS may impose a CMP against a long-term care facility where a state survey agency ascertains that the facility is not complying substantially with participation requirements. 42 C.F.R. §§ 488.406, 488.408, 488.430. The penalty may start accruing as early as the date that the facility was first out of compliance until the date substantial compliance is achieved or the provider agreement is terminated. 42 C.F.R. § 440(a), (b). 42 C.F.R. § 488(f) sets forth the factors in determining the amount of the CMP imposed for each day of noncompliance.

The Act and regulations make a hearing available before an Administrative Law Judge to a long-term care facility against whom CMS has determined to impose a CMP. Act, section 1128A(c)(2); 42 C.F.R. §§ 488.408(g), 498.3(b)(12), (13). The hearing before an Administrative Law Judge is a de novo proceeding. Anesthesiologists Affiliated, DAB CR65 (1990), aff'd, 941 F2d. 678 (8^th Cir. 1991).

Petitioner is a licensed long-term care facility located in Corunna, Michigan, certified to participate in the Medicare and Medicaid programs. The deficiency at issue in this case arises from an incident that occurred at approximately 8:00 p.m. on November 24, 2000. As is reflected at P. Ex. 2, on that occasion Employees 1 and 2 ⁽²⁾ were in the process of toileting Resident 1. As Employee 2 was bent over to remove the resident's shoes, the resident slapped Employee 1 in the face. According to Employee 2, Employee 1 became livid, red faced, and her eyes glared. As Employee 2 continued to assist the Resident, she heard him yell. At that point, Employee 1 had a hold on Resident 1's right hand and was twisting it toward his body with the thumb bent down to the wrist, and Employee 2 felt compelled to leave the room because she felt sick to her stomach upon witnessing this event. Employee 2 stated it was late in the evening and there was no one to report the incident to, so she went home. However, she was unable to get any sleep, knowing she would not be able to live with herself if she did not turn Employee 1 in. The following day, Employee 2 reported the incident to the charge nurse, Connie Freeborg, and signed a statement at 11:45 p.m. Ms. Freeborg summarized Employee 2's statement on November 25, 2000 (P. Ex. 3) and it was received by Linda Burns, director of nursing (DON), on November 29, 2000. CMS Ex. 2.

The DON completed a Resident Abuse Report on December 7, 2000 (P. Ex. 3) and submitted her findings and notice of actions taken to the Michigan Department of Consumer and Industry Services (MDCIS). P. Ex. 6.

The DON noted that she received a report of suspected abuse on November 29, 2000 involving a staff nurse aide who was observed holding a resident's thumb down toward his wrist. The resident, who had been admitted to the facility on February 21, 2000 with diagnoses that included dementia Alzheimer's type, was found to suffer no mental or physical injuries. However, Ms. Burns concluded that the nurse aide did commit an act of abuse toward the resident. Consequently, Employee 1was not permitted to provide direct care for Resident 1 effective November 25, 2000 and she was placed on administrative leave beginning December 4, 2000. The nurse aide was eventually terminated on December 7, 2000. The aide who witnessed the incident (Employee 2) was given a three-day unpaid disciplinary suspension for failing to make a report immediately. The charge nurse was counseled for not initiating an investigation promptly, and the shift nurse was counseled as to prompt investigations. P. Exs. 5, 6.

The incident described above served as a basis for a finding of noncompliance by the State Agency as a result of a complaint survey conducted on February 8, 2002. CMS concurred and notified Petitioner on March 21, 2001 that it was imposing the following remedies:

•per instance CMP in the amount of $1000.00 for a level "G" violation under F Tag 223. CMS Ex. 13.

•denial of payment for new admissions (DPNA), effective May 8, 2001. ⁽³⁾

IV. Issues

The issues in this case are:

1. Whether Petitioner was out of substantial compliance on November 24, 2000 as determined by the survey conducted on February 8, 2001.

2. Whether the imposition of a $1000.00 per instance CMP was reasonable.

 

V. Findings and discussion

I make findings of fact and conclusions of law (Findings) to support my decision to uphold CMS's finding of noncompliance and imposition of a CMP. Each finding is noted below, in bold face and italics, followed by a discussion of the findings.

1. Petitioner was out of compliance with Medicare/Medicaid participation requirements for long- term facilities on November 24, 2000.

CMS's contentions

CMS contends that the occurrence of a single instance of abuse establishes a violation under 42 C.F.R. § 483.13(b). The conduct exhibited by the facility's nurse aide, says CMS, falls within the definition of abuse pursuant to 42 C.F.R. § 488.301:

Abuse means the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.

According to CMS, the staff member was so enraged at being slapped by the resident that she reacted inappropriately in an attempt to restrain him and administer punishment. CMS relies on the statement of Employee 2 to conclude that when Employee 1 took hold of the resident's hand, she twisted it toward his body with the thumb bent down to the wrist. P. Ex. 2. Thus, her response resulted in an intentional infliction of corporal punishment causing pain.

Finally, CMS argues that Petitioner knew or should have known about the resident's combative behavior and the staff member's propensity for being rough with residents but took no measures directed at preventing potentially abusive incidents from occurring.

Petitioner's contentions

Petitioner contends that the allegations of abuse in this case are unsubstantiated. It says that nothing in Employee 1's work history reveals that she was potentially abusive to patients. Additionally, the only evidence of wrongdoing, claims Petitioner, rests upon the word of Employee 2. Employee 1 admitted to restraining the resident in self-defense but asserts that she did not intend harm. Petitioner also relies on the language of the compromise settlement with the Michigan State Agency to show that the facility has not admitted any wrongdoing.

Discussion

42 C.F.R. § 483.13(b) provides that a resident has a right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion. Subsection (c)(2) requires that a facility must ensure that all alleged violations involving mistreatment, neglect, or abuse are reported immediately to the administrator of the facility and to other officials (including the state survey and certification agency). Additionally, subsection (c)(4) states that the results of all investigations of allegations of abuse must be reported to the administrator or a designated representative and to other officials (including the state survey agency and certification agency) within five working days of the incident, and if the alleged violation is verified, appropriate corrective action must be taken.

In the case before me, a staff member of Petitioner's facility was physically assaulted by a resident afflicted with dementia. The staff member retaliated with anger by twisting the resident's hand and thumb. P. Ex. 2. The staff member reacted with such force to the slap when she grabbed the resident's hand, that the resident cried out in pain. Such response, whether intended as corporal punishment, or as a restraint, amounted to willful abuse and infliction of pain upon a vulnerable resident. In a statement dated December 4, 2000 the staff member stated that when the resident slapped her in the face she grabbed his hand. P. Ex. 4. She added that if she did hurt him, it was not her intention. Id. But, what did she think would be the possible outcome if she twisted the resident's hand and thumb back to the wrist? The inescapable answer to that query is that pain would ensue. As described by Employee 2, who witnessed the incident, the staff member's livid and angered countenance was very telling as to her intentions. P. Ex. 2.

When Employee 1 was interviewed by telephone on February 13, 2001 she slightly modified previous accounts by indicating that she did not recall holding Resident 1's thumb back. CMS Ex. 7 at 4. I note that she did not deny bending the resident's thumb. Id. Her testimony, therefore, fails to contradict that of Employee 2, who distinctly observed the staff member twist the resident's hand and thumb back to the wrist and heard him cry out in pain. Contrary to Petitioner's contention, the testimony of Employee 2 remains uncontradicted. I find, therefore, that a willful infringement of Resident 1's right to be free from corporal punishment occurred. Statements by Petitioner that the staff member acted in self-defense, did not intend to harm the resident, and that abuse did not occur, do nothing to diminish its culpability. P. Br. at 6. ⁽⁴⁾

CMS determined that Petitioner failed to ensure that the incident involving the alleged abuse of Resident 1 was reported to the administrator and to the State certification agency as required [by 42 C.F.R. § 483.13]. CMS Ex. 7 at 8. Petitioner does not dispute this. It merely says that the facility disciplined the charge nurse for failing to act timely and that the facility can only report what it knows occurred. In this case, adds Petitioner, the facility self reported (italics in original) an unsubstantiated event and took corrective measures the same day that the DON was informed. P. Br. at 7.

A more candid view of the events following the incident subject of these proceedings reveals that the facility acknowledged that:

•the nurse aide who witnessed the incident failed to report the event for a day;

•the charge nurse delayed in initiating an investigation; and

•the shift supervisor did not investigate promptly.

P. Ex. 6.

I must add that the DON was derelict herself in not immediately reporting the alleged violation of abuse nor the results of the investigation within five days of the incident to the administrator and the State certification agency. There is no evidence that she reported the incident to the State Agency immediately nor was the report of investigation submitted within five days of the occurrence of the abuse incident. The facility's failure to act timely with respect to an incident involving potential abuse to a resident is evident at all levels. The knowledge of all individuals who comprise the various personnel layers in the organization is knowledge attributable to the facility. The facility is not an amorphous entity having no life form through which it carries out its functions. The facility conducts the business of resident care through its staff. Consequently, the staff, in essence, is the facility. Therefore, Petitioner's claim that the facility is not responsible for reporting what it does not know is misplaced. Moreover, the failure to take timely action regarding a report of resident abuse, places that individual at risk for additional acts of abuse. It is not relevant whether further incidents of that nature in fact occurred. I find, therefore, that by not taking immediate corrective action to remove the resident from the potential for additional harm, the facility failed take reasonable steps to protect the resident from abuse. In the statement of deficiencies the State surveyor noted that staff member #6, who was familiar with Employee 1's work, stated that she was known to be rough with residents. CMS Ex. 7 at 6. Additionally, Resident 1 had been assessed as having the potential for violence and being combative with care. In this regard, CMS's suggestion that an incendiary situation was created is well taken. CMS Ex. 7a at 1; CMS Br. at 10,11. As a result, Petitioner is now in no position to claim that it took reasonable measures to prevent the incident of abuse at issue here. It was only after Employee 1 mistreated the resident that she was barred from providing any care to him. Moreover, no plan on how to care for Resident 1 consistent with his potential for being combative was instituted until after the abuse took place. CMS Ex. 7a at 1.

Petitioner argues that in keeping with the holding in Oakwood Manor Nursing Center, DAB CR818 (2001) that it does not suffice, as posited by CMS, to show that an act of abuse occurred, but that the facility engaged in deliberate or neglectful conduct which failed to protect the resident from abuse. CMS, on the other hand, relies on the language in Greenery Extended Care Center, DAB CR707 at 5 (2000) to argue that the facility could be found out of compliance based upon a single incident of abuse. CMS adds that adjudicators must give deference to this regulatory construction as set forth in New York State Dep't of Social Services, DAB No. 1429 (1994). In view of my finding that Petitioner was neglectful in failing to take every reasonable measure to protect the resident from abuse, I need not resolve the apparent conflicting views present in Oakwood and Greenery, supra.

Finally, Petitioner contends that the facility's admission of abuse and untimely reporting is canceled by the language in the compromise settlement with the State agency. P. Br. at 5. Furthermore, says Petitioner, by taking action in the face of an unsubstantiated claim of abuse in order to protect the resident, it was forced to admit that abuse occurred. However, by admitting abuse and dismissing the employee, it placed itself at risk of being sued for wrongful termination. P. Br. at 5, 6. None of these arguments are availing. The litigation posture strategically assumed by Petitioner cannot make a nullity of the legal framework devised to protect residents from the wrongdoing of long-term care facilities. Also, Petitioner knows or should know that neglectful acts that amount to noncompliance has its price. Once the facility allows wrongdoing to occur it is not surprising that it will find itself in a quandary regarding the choices it must make. Once the facility fails to fulfill its duty of care to its residents, the law and regulations have no easy way out for the entity to shirk its responsibility.

2. The amount of CMP imposed is reasonable.

As discussed above, I uphold CMS's determination that Petitioner failed to prevent an incident of abuse to Resident 1. Thus, the per instance CMP of $1000.00 is reasonable as a matter of law because it is the lowest amount possible under the regulations. 42 C.F.R. § 488.438(a)(2). Petitioner does not dispute this.

VI. Conclusion

Based on the applicable law and undisputed facts, I conclude that CMS correctly determined that Petitioner was not in substantial compliance on November 24, 2000. I further find that the per instance CMP of $1000.00 is not unreasonable.

Jose Anglada

Administrative Law Judge

1. When these proceedings began, CMS was known as the Health Care Financing Administration (HCFA).

2. The statement at P. Ex. 2 mentions the employees involved in the incident by name, but I will refer to them as Employees 1 and 2 in keeping with the way they are referenced by the parties in their briefs.

3. The DPNA was rescinded on June 12, 2001.

4. Petitioner failed to number the pages of its brief, so one must count them in order to locate references.