Health Law Daily Long-term facility placed residents in jeopardy
Monday, September 30, 2019

Long-term facility placed residents in jeopardy

By George Basharis, J.D.

Sanctions imposed for noncompliance were appropriate.

The Departmental Appeals Board (DAB) has determined that provider The Bridge at Rockwood, a long-term care facility (LTC), was in substantial noncompliance with a number of Medicare program requirements that placed residents in immediate jeopardy. Findings by the Administrative Law Judge (ALJ) were supported by substantial evidence, and there was no legal error in the ALJ’s conclusions. Sanctions therefore were appropriate and upheld by the DAB (The Bridge at Rockwood, Docket No. A-18-25, Decision No. 2954, July 15, 2019).

After a state survey agency received complaints about a nurse at the LTC facility failing to properly distribute medications and falsifying medication records, a complaint survey, submitted in March 2015, resulted in a number of noncompliance findings, eight of which CMS concluded constituted immediate jeopardy to facility residents. The immediate jeopardy findings stemmed from the behavioral issues of a resident suffering from dementia and depression (R10) who disturbed and injured another resident (R2) and inflicted injuries on a certified nurse aide. Based on the Statement of Deficiencies relating the events, the state surveyor found that the facility’s handling of the resident and its response to the incidents described demonstrated multiple failures to comply with applicable requirements for LTC facilities. CMS agreed with the surveyor and proposed sanctions. Based on a later visit to the facility in June 2015, CMS determined the facility became substantially compliant. CMS imposed civil money penalties (CMPs) for 85 days of immediate jeopardy and for 67 days of substantial noncompliance not including immediate jeopardy. The LTC requested review of the immediate jeopardy findings, and the ALJ conducted a hearing in 2017, upholding the CMPS imposed by CMS.

The DAB found that the ALJ’s factual findings were supported by substantial evidence and that where evidence in the record potentially conflicted with or detracted from a finding, the ALJ adequately indicated why the evidence was less credible and why it was given less weight. The DAB noted that the investigative report related to the injuries received by R2 were the only injuries discovered, but the report was "simply wrong." Facility staff had found other injuries of undetermined origin. The ALJ also found evidence that the facility knew or should have known, before the reported incidents, that R10 was capable of aggression and violence and R2 was especially vulnerable. Further, the follow-up was inadequate.

The DAB determined that the relevant question relating to a LTC facility is whether the facility did what it reasonably could to ensure that all residents received supervision necessary to mitigate the foreseeable risks of harm based on what it knew about the residents, their care needs, and the conditions of the facility. While specific resident needs, foreseeable risks, and reasonable preventive measures may vary in different LTC facilities and are judged by the corresponding standards of care, the underlying regulatory responsibilities are defined no differently for secure or special units, the DAB stated. The ALJ could reasonably infer that the provider had, or should have had with due diligence, sufficient information to be on notice to plan for a resident whose physical and mental condition posed a risk of abuse to other residents. The ALJ was correct in stating that the requirement is that a facility undertaking LTC must take reasonable steps to forestall and mitigate foreseeable harm when caring for potentially aggressive and physically strong residents suffering from dementia. The ALJ noted, and the DAB agreed, that the facility had access to information before admission that R10’s behavior could be a danger to others, but even if had not had such access, there was "considerable additional evidence that put the facility on notice of that fact after admission." The DAB determined that the ALJ’s findings as to R10’s attack on R2, the aide and the aftermath were supported by substantial evidence in the record and the investigation of the incidents was "minimal."

Finally, the DAB determined that the provider’s remaining legal arguments were without merit and showed no error of law in the ALJ decision. The provider argued that the noncompliance findings were based on imposing obligations on nurses that are indistinguishable from the "strict liability" and "clairvoyance" (foreseeable) theories of liability the DAB has held are not incorporated into the compliance regulations. The DAB noted that the concept of strict liability is inapplicable to regulatory enforcement involving LTC facilities that receive federal funding for participating in Medicare and Medicaid. The provider argued that the ALJ imposed strict liability because she referred to the facility’s "obligation to keep all of their residents safe." But the DAB noted that the ALJ did not conclude that if a resident experienced any mishap, "the facility perforce violated regulatory standards." Rather, the ALJ made findings about the actions and inactions of the facility and its staff, concluding they "fell short in multiple ways." The ALJ correctly analyzed these multiple failures in terms of the regulatory requirements. In relation to 42 C.F.R. § 483.25(h), the DAB has clarified that a facility must "take ‘all reasonable steps to ensure that a resident receives supervision and assistance devices that meet his or her assessed needs and mitigate foreseeable risks of harm from accidents.’"

Petitioner’s reliance on a causation requirement also was found inapplicable. The DAB noted that it does not determine whether a facility "caused" a manifestation of a resident’s illness or a particular incident but whether the facility met the regulatory requirements for providing compliant care to the resident to maximize as much as practicable the well-being of all residents.

Finally, the DAB affirmed the ALJ’s determination that the provider was required to report R10’s attack on R2. The provider admitted the attack was never reported to the state agency. Regulations require facilities to report all allegations of abuse, whether or not they are substantiated, including injuries of unknown sources. Facilities also are required to fully investigate in order to prevent further potential abuse. The provider’s argument that the incident did not have to be reported to the state because R10 was incapable of forming the intent to abuse was rejected. The DAB noted that a resident with cognitive deficits or dementia may still be capable of directing aggressive actions toward another person by will, and the record contained evidence that R10 did in fact act with deliberate will to hurt R2 even if the intent may have been symptomatic of R10’s underlying mental condition.

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