Health Law Daily Penalties upheld for nursing facility’s failure to protect resident from sexual abuse
Monday, August 27, 2018

Penalties upheld for nursing facility’s failure to protect resident from sexual abuse

By Rebecca Mayo, J.D.

A nursing facility’s failure to follow federal requirements and its own policies for preventing and responding to abuse, which resulted in the abuse of one resident by another, constitutes a deficiency at the immediate jeopardy level. A HHS Departmental Appeals Board (DAB) affirmed an Administrative Law Judge’s (ALJ’s) decision to sustain CMS’s finding of deficiencies and imposition of civil money penalties (CMPs) totaling $168,500 (Maysville Nursing and Rehabilitation v. CMS, Docket No. A-17-101, Decision No. 2874, May 31, 2018).

Non-compliance. A complaint survey of a Medicare nursing facility found evidence that one resident (R2) began displaying aggressive or otherwise inappropriate sexual behavior toward another resident (R1). After R2 was found inappropriately touching R1, two nurses reported the incident to the facility administrator, who told staff to conduct 15-minute checks of R2 but to not document the incident. R2 continued to attempt to inappropriately touch R1 over the next two days and was finally examined by the facility administrator. The facility administrator contacted R2’s physician, on the third day, who had him transferred to a hospital for a psychiatric evaluation. The resident was readmitted to the facility less than a week later and the behavior continued.

Based on these findings CMS imposed CMPs of $4,300 per day for 39 days of immediate jeopardy and $100 per day for 8 days of substantial noncompliance below the immediate-jeopardy level. The facility requested a hearing to challenge the survey findings, the immediate jeopardy determination, and the CMPs. The ALIJ sustained CMS’s actions.

Decision. The facility argued that it did substantially comply with the requirements because R2 was already suffering from dementia therefore he did not undergo a significant change and there were no life-threatening conditions or clinical complications. However, the DAB agreed with the ALJ that although the change did not entail life threatening conditions, the sudden change in R2’s behaviors and mental status represented both a significant change in his mental, psychosocial, and perhaps physical status and a need to alter treatment significantly, which triggers the requirement for immediate physician consultation. Further, the facility did not update R2’s care plan after every verified incident.

The DAB also agreed with the ALJ’s finding that the facility failed to keep R1 free from sexual abuse and failed to investigate the abuse as required by the facility’s policies. For 4 days R2 stalked and harassed R1, at times managing to lay hands on her, which constituted abuse as defined in the regulations and the facility’s policy. The facility argued that no resident was harmed because R1 did not appear to be upset, however the facility did not have social services or any other department carefully observe R1 as required by the facility policy. The ALJ found it immaterial whether R1 experienced actual harm because the facility had failed to protect her from reasonably foreseeable risks of abuse, placing it out of substantial compliance.

Finally, the facility did not implement its own policies for preventing abuse, including investigating all allegations of abuse by completing concrete tasks such as interviewing witnesses and staff and obtaining signed, written witness reports. The facility’s failure to follow federal requirements and its own policies for preventing and responding to abuse support CMS’s determination that the facility’s noncompliance posed immediate jeopardy.

Companies: Maysville Nursing and Rehabilitation

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