Health Law Daily $20k penalty for failure to protect nursing home residents appropriate
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Tuesday, December 17, 2019

$20k penalty for failure to protect nursing home residents appropriate

By Rebecca Mayo, J.D.

An ALJ sustained a CMS determination to impose a per-instance civil money penalty of $20,000 against a nursing home that failed to protect residents from sexual abuse.

A nursing home resident who was blind, unable to communicate, and unable to move without assistance was utterly vulnerable to assault when she was left unsupervised with a resident who had a history of inappropriate sexual behavior. An Administrative Law Judge (ALJ) found that the helplessness of blind resident in the face of the other resident’s sexual abuse graphically evidenced the seriousness of the nursing home’s noncompliance. Thus, the $20,000 per-instance civil money penalty was commensurate with the risks posed by allowing the resident to reside in the facility without adequately assessing the resident’s proclivity for inappropriate behavior and without taking reasonable measures to protect other residents (Benbrook Nursing & Rehabilitation Center v. CMS, Docket No. C-18-1038, Decision No. CR5351, June 19, 2019).

Resident. An 88-year-old male was admitted to a nursing home with diagnoses that included dementia with behavioral disturbance. Six days prior to his admission, a nurse practitioner evaluated the resident to identify services that he potentially needed. At that time, the resident’s daughter-in-law mentioned that the police had been called out to the resident’s home because he exposed himself in public and to a cable lady who came into his home. The nurse practitioner included this information in the report to the nursing home. However, there was no record that any further investigation was done into the matter or that nursing home staff was informed that the resident may engage in inappropriate behavior.

Abuse. Four days after the resident was admitted, a certified nursing assistant observed him sitting next to a 70-year-old female resident in the television viewing area and the female resident attempting to push the male resident’s hand away from her. Upon closer inspection, the nursing assistant realized that the male resident had his hand down the female resident’s pants. The nursing assistant then left the two residents unattended while she reported the incident to a licensed vocational nurse. The staff decided to monitor the male resident throughout the nursing shift, however the resident was still left unmonitored for approximately an hour after the nursing assistant reported the sexual abuse incident. It wasn’t until the resident attempted to elope the facility when the staff commenced one-to-one monitoring of the male resident’s behavior. The resident was discharged four days later.

Penalty. CMS determined that the nursing facility failed to comply with Medicare participation requirements by allowing a resident of its facility to perpetrate sexual abuse against another resident. CMS alleged that the nursing home knew or should have known that it admitted into its facility a resident who had a proclivity for inappropriate sexual behavior and that it failed to assess the resident for the risks that he posed to other residents before housing him with the residential population, failed to develop interventions in order to protect other residents from sexual abuse, and did not adequately supervise the resident in a situation in which the resident had the opportunity to abuse another resident and exercised that opportunity. CMS imposed a per-instance civil money penalty of $20,000 against the nursing home.

Decision. The nursing home claimed that its staff conducted a reasonable investigation and found no basis to conclude that the resident posed a threat to other residents in the facility. In support of this claim it presented an affidavit of the Marketing/Admissions Director who processed the resident’s admission and claimed that she spoke with the resident’s granddaughter. The granddaughter assured her that the exposure incident was a onetime occurrence that took place when the resident was alone in his private bedroom when the cable lady entered the room without knocking. However, the ALJ felt that this was not sufficient information to determine that the resident was not a risk because it did not settle the issue of what happened that day or whether he posed a continued risk. There was nothing in the record that indicated how the granddaughter came to know this information and the nursing home should have done further investigation by speaking to parties with first-hand knowledge of the incident.

The nursing home further claimed that the surveyor who identified the abuse at the facility failed to do her job properly because she failed to conduct further investigation or interview parties with firsthand knowledge of the situation. The ALJ found it ironic that the nursing home alleged that the surveyor should have conducted a thorough investigation when the nursing home itself failed to conduct a thorough investigation before admitting the resident. Further, the ALJ noted that the surveyor was only required to establish a prima facie case of noncompliance and the burden then shifted to the nursing home to rebut it. The surveyor obtained powerful proof of the nursing home’s noncompliance that was not rebutted.

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