Decision No. CR653 Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Beverly Health and Rehabilitation of Williamsburg |
DATE: Mar. 8, 2000 |
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Health Care Financing Administration | Docket No.C-98-238 |
DECISION | |
I find that Health Care Financing Administration (HCFA)
failed to state a prima facie case to establish a basis to impose civil
money penalties against Petitioner. Therefore, I enter a decision in favor
of Petitioner. This decision resolves all issues in this case. Therefore,
the parties are not obligated to comply with orders I have issued previously
directing them to make prehearing exchanges. Background and undisputed material facts
A. Background
Petitioner is a long-term care facility that is located
in Little Rock, Arkansas. On March 5, 1998, HCFA notified Petitioner that
it had determined to impose civil money penalties against Petitioner in
the amount of $5,000 for each day of the three-day period which began
on January 16, 1998 and which ended on January 18, 1998. The total amount
of the proposed civil money penalties is $15,000.
Petitioner requested a hearing and the case was assigned
to me for a hearing and a decision. Petitioner moved for summary disposition.
HCFA opposed Petitioner's motion. Petitioner attached three exhibits (P. Ex. A - P. Ex.
C) to its motion for summary disposition. HCFA did not submit any exhibits.
HCFA did not oppose my receiving Petitioner's exhibits into evidence.
Therefore, I receive P. Ex. A - P. Ex. C into evidence.
B. Undisputed material facts
There are no disputed issues of material fact in this
case. The relevant facts are as follows. On February 25, 1998, surveyors from the Arkansas Department
of Human Services (Arkansas State survey agency) conducted a survey of
Petitioner's facility. P. Ex. C. The surveyors issued a written survey
report in which they concluded, at Tag 223 of the survey report, that
Petitioner failed to comply substantially with the requirements of 42
C.F.R. � 483.13(b). The surveyors asserted, specifically, that Petitioner
failed to protect one of its residents (Resident # 1) "from life threatening
actions by the resident's roommate." P. Ex. C at 1 - 2. The fact allegations
which the surveyors made to support their assertion emanated from the
interactions between Resident # 1 and another resident, Resident # 2,
during the three-day period which ran from January 16 through January
18, 1998. The surveyors drew their fact allegations essentially from a
review of resident care records. Id. at 1.
Petitioner's records established that Resident # 1 had
pulmonary illness and was connected to machinery to support her breathing.
P. Ex. C at 2. On January 16, 1998, Resident # 1 was transferred into
a room which was occupied by Resident # 2. Id.
Resident # 2 had previously been diagnosed with dementia.
P. Ex. C at 2. The resident was known to have short- and long-term memory
problems and had moderately impaired cognitive skills. Id. The
resident's mental functioning varied during the course of the day. The
resident experienced episodes of restlessness. Id. The resident's
mood had deteriorated. Resident # 2 manifested socially disruptive and
behavioral symptoms. Id. The resident was reported as asking repetitive
questions and voicing repetitive anxious complaints and concerns. Id.
Resident # 2 was ambulatory and engaged in repetitive physical movements.
At 1:10 a.m. on January 17, 1998, Resident # 2 was observed
by a nurse to be standing by the bedside of Resident # 1. Resident # 2
was unplugging Resident # 1's breathing equipment. P. Ex. C at 3. The
nurse asked Resident # 2 what she was doing. The resident replied by stating:
"I don't want this thing on, it's making a noise." Id. at 4. The
nurse took the plug away from Resident # 2 and replaced the plug in its
outlet. Id. At the time of this incident, Resident # 1 stated that
she was fine but that she was scared of her roommate. P. Ex. C at 4. At
6:00 a.m. on January 17, 1998, Resident # 1 requested that she be moved
to another room. Id. at 3. The resident averred that she had been
up all night. She voiced concern about her roommate's behavior. Id.
On the morning of January 18, 1998, Resident # 1 again asserted that she
had been up all night. The resident continued to express fears about her
roommate and to request a transfer to another room. Id. At 2:00
p.m. on January 18, 1998, Resident # 1 was transferred to another room
in Petitioner's facility.
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FINDINGS OF FACT AND CONCLUSIONS OF LAW | |
Issues The issue in this case is whether HCFA adduced facts sufficient to establish a prima facie case that Petitioner failed to comply substantially with federal participation requirements. Findings of fact and conclusions of law
I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below as a separately numbered heading. I discuss each Finding in detail. 1. Summary disposition is
appropriate in this case Summary disposition is appropriate in a case where there
are no disputed issues of material fact and where the only outstanding
issues are issues of application of law to the undisputed facts. That
is plainly the case here. The exhibits offered by Petitioner present a
complete statement of the facts that are at issue in this case.
HCFA has not disputed any of the facts as described in
the three exhibits that Petitioner offered in support of its motion. See
P. Ex. A - P. Ex. C. Nor has HCFA suggested that it possesses additional
evidence that it wishes to offer in this case. Indeed, it has offered
no exhibits to rebut the evidence offered by Petitioner. Moreover, it
is apparent from the exhibits that Petitioner offered that these exhibits
describe all of the facts that are material to this case. The finding
of deficiency that the surveyors made at the February 25, 1998 survey
of Petitioner was based on a "closed record" review of Petitioner's records
along with an interview of one of Petitioner's employees. P. Ex. C at
1 - 4. There is no suggestion in the report of the survey that the surveyors
relied on any evidence that was not summarized in the survey report.
2. The gravamen of HCFA's
allegation that Petitioner failed The report of the February 25, 1998 survey of Petitioner
plainly charges that Petitioner was not complying substantially with participation
requirements because it allowed Resident # 2 to abuse Resident # 1. The
report specifically avers, as a basis for the deficiency citation, that
Petitioner failed to comply with the requirements of 42 C.F.R. � 483.13(b).
This regulation states that: [t]he resident [of a long-term care facility]
has the right to be free from verbal, The word "abuse" is defined elsewhere in the regulations.
"Abuse" is defined to mean: the willful infliction of injury, unreasonable
confinement, intimidation, 42 C.F.R. � 488.301. When 42 C.F.R. � 483.13(b) is read
along with the definition of "abuse" that is stated in 42 C.F.R. � 488.301,
it becomes evident that what is alleged here is that Petitioner allowed
a resident (Resident # 1) to be injured willfully by another resident
(Resident # 2). Understandably, Petitioner has premised its motion on
arguments that the undisputed material facts of this case do not establish
either that Resident # 2 abused Resident # 1 or that Petitioner allowed
abuse of Resident # 1 by Resident # 2. However, in opposing Petitioner's
motion, HCFA now contends that it is not alleging that Petitioner permitted
abuse to occur. Rather, according to HCFA, it has alleged all along that
Petitioner neglected to attend to the needs of Resident # 1.
This, according to HCFA, is the gravamen of its allegations against Petitioner.
HCFA concedes that it is relying on 42 C.F.R. � 483.13(b)
as the basis for its assertion that Petitioner was deficient in complying
with participation requirements. It does not aver that it or the Arkansas
State survey agency surveyors erroneously cited this section of the regulation
as the basis for its deficiency finding. HCFA does not deny that, on its
face, 42 C.F.R. � 483.13(b) addresses only willful infliction of injury.
Nor does HCFA assert that Petitioner might be found to be deficient under
some other section of the regulations than 42 C.F.R. � 483.13(b). Rather,
HCFA contends that the term "abuse" in the regulation actually means "abuse
or neglect." Therefore, according to HCFA, Petitioner is deficient in
complying with 42 C.F.R. � 483.13(b), not because it tolerated the abuse
of Resident # 1 by Resident # 2, but because it "neglected" to care for
the needs of Resident # 1. What HCFA seems to be arguing is that 42 C.F.R. � 483.13(b)
prohibits any act or omission by a facility that is in the nature of neglect
or negligence. Under HCFA's apparent theory, this case does not involve
any issue of whether Resident # 2 abused Resident # 1. Rather, HCFA seems
to be saying that Petitioner is liable under 42 C.F.R. � 483.13(b) if
Petitioner negligently allowed Resident # 1 to be physically or emotionally
injured by Resident # 2 regardless of the intent or motivation of Resident
# 2. I find this argument to be fanciful. There is not the
slightest ambiguity in 42 C.F.R. � 483.13(b). The regulation prohibits
a facility from allowing a resident to be subjected to abuse. Any doubt
as to what the regulation might mean is more than resolved by the definition
of abuse in 42 C.F.R. � 488.301 as constituting "willful mistreatment."
There is no way that the plain meaning of the regulation could be stretched
to include conduct or care that does not contain an element of willfulness.
HCFA asserts, however, that the regulation has a hidden
meaning which is made apparent in the State Operations Manual (SOM). It
argues that the SOM interprets 42 C.F.R. � 483.13(b) as prohibiting not
only abuse, but also prohibiting practices and omissions, neglect and
misappropriation of property that, if left unchecked, would lead to abuse.
HCFA brief at 10. HCFA concedes that the SOM is not a legally binding official
interpretation of the regulations. HCFA brief at 11. I take notice that
the SOM is a document which HCFA distributes to State survey agency surveyors
as a guide for conducting facility surveys. I take further notice that
the SOM has never been published pursuant to the notice and comment provisions
of the Administrative Procedure Act. Nor has the Secretary of this Department
ever announced that the SOM is an official interpretation of regulations.
And, the SOM has never been offered by HCFA to the general public as its
official interpretation of the regulations. The SOM may not be relied on to change or alter the plain
meaning of a regulation where the regulation is unambiguous as is the
case with 42 C.F.R. � 498.13(b). Moreover, I do not find that the SOM
actually suggests an interpretation of the regulation which is in conflict
with the regulation's plain meaning. The SOM states that the regulation
prohibits acts or omissions that may cause a resident to be abused. The
SOM acknowledges that there would still need to be some willful infliction
of injury - or at least the potential for some willful infliction of injury
- in order for there to exist a failure by a facility to comply with the
requirements of 42 C.F.R. � 483.13(b). Of course, 42 C.F.R. � 483.13(b) is not limited to prohibiting
a facility from actively participating in abusive conduct. HCFA
does not have to make a showing that a facility willfully inflicted injury
on a resident in order to make a prima facie case that the facility failed
to comply substantially with the regulation. Under the regulation - and
pursuant to the SOM as well - a facility is deficient if it negligently
fails to prevent abuse from occurring. A facility will be liable if it
knows or should know that a potentially abusive event may occur and does
nothing to prevent it from happening. But, ultimately, what the regulation
addresses is acts of abuse. 42 C.F.R. � 483.13(b) is not a general prohibition
against neglect of a resident's needs as HCFA seems to assert. It is a
prohibition against negligent failure by a facility to prevent abuse.
3. HCFA failed to establish
a prima facie case that HCFA failed to establish a prima facie case that Petitioner
Resident # 1 was abused by Resident # 2. That is because there is no evidence
in this case from which I reasonably might infer that Resident # 2 abused
Resident # 1. What is clearly lacking here is any evidence that Resident
# 2 intended to harm Resident # 1. And, absent such evidence, I cannot
find that the requisite element of abuse exists in this case.
The undisputed material facts of this case are that Resident
# 2 is a demented individual who has moderately impaired cognitive skills
and who engages in irrational conduct. I could reasonably infer from this
evidence that the resident lacks the capability to engage in willfully
injurious conduct. However, it is not necessary for me to draw that inference
here. Even assuming that Resident # 2 might have the mental capacity to
willfully inflict injury on another resident there is nothing in the record
to show that Resident # 2 ever intended to injure Resident # 1. The undisputed
facts are that, in the early morning hours of January 17, 1998, Resident
# 2 attempted to unplug Resident # 1's breathing equipment because Resident
# 2 thought that the equipment made an annoying noise. P. Ex. C at 4.
There is nothing to show that Resident # 2 knew that the equipment had
anything to do with Resident # 1 or that she intended to cause harm to
Resident # 1. 4. HCFA did not establish
a prima facie case that Petitioner I have considered carefully whether Petitioner's care
of Resident # 1 might be characterized as neglectful conduct which led
to or which potentially might have led to abuse of the resident. I find
that there is not evidence in this case which supports such a conclusion.
It is evident that, from the vantage point of hindsight,
placing Resident # 1 in the room that had been assigned previously to
Resident # 2 was a decision that caused Resident # 1 to experience considerable
emotional distress and anxiety. Had Petitioner known in advance that Resident
# 2's disruptive behavior would have caused Resident # 1 to experience
the emotional distress that she experienced then, obviously, placing the
two residents together in the same room would have been a poor choice.
However, HCFA has not alleged - and there is no evidence
to establish - that Petitioner knew or should have known in advance of
placing Resident # 1 and Resident # 2 together that Resident # 2 posed
a threat to the emotional well-being of Resident # 1. It is true that
the record establishes that Resident # 2 had a history of irrational conduct,
restlessness, and cognitive impairment. But, there is nothing in the record
to show that the resident had in the past disturbed other residents or
caused them to suffer from anxiety or emotional distress. There is nothing,
for example, to show that Resident # 2 previously had interacted inappropriately
with roommates other than And, HCFA has neither alleged nor offered prima facie
evidence to establish that Resident # 2 posed any threat to the well-being
of Resident # 1 after the single episode in the early morning hours of
January 17, 1998 in which Resident # 2 attempted to unplug Resident #
1's breathing equipment. The survey report does not document any further
disruptive conduct by Resident # 2. Nor does it suggest that Petitioner's
staff was remiss in observing and monitoring the residents after the January
17, 1998 episode. Finally, there is no evidence to show that Petitioner
delayed unreasonably in moving Resident # 1 away from Resident # 2 after
Resident # 1 requested a change of room. Resident #1 first voiced her
request to be moved at 6:00 on the morning of January 17, 1998. Petitioner
moved Resident # 1 to another room at 2:00 on the afternoon of January
18, 1998. I do not find a lapse of 32 hours between the resident's first
voicing her request that she be moved and the facility's acting on that
request to be an unreasonable delay. More importantly, I do not find that
the undisputed facts show that Petitioner was indifferent to the possibility
that Resident # 1 might be abused by Resident # 2 during the interval
between the resident's first voicing her request and Petitioner's action
in response. As I find above, there is no prima facie evidence that Resident
# 2 ever abused Resident # 1, and there is no allegation, much less is
there evidence, that Petitioner failed to monitor the situation in the
period between the episode in which Resident # 2 attempted to unplug Resident
# 1's breathing equipment and the relocation of Resident # 1 to another
room. HCFA asserts that Petitioner should be found liable for
neglecting to care for the needs of Resident # 1 even as the facility
was found to be liable in the case of Woodstock Care Center, DAB
CR623 (1999). HCFA asserts that the Woodstock case is on all fours
with the present case. I disagree. In Woodstock, I found the facility to be liable
for failing to comply with 42 C.F.R. � 483.25(h)(2), which requires a
facility to assure that each of its residents receives adequate supervision
and assistance devices to prevent accidents. I found that the facility
was indifferent to the possibility that its residents might sustain accidents.
I found that the facility had not prevented recurring resident-on-resident
assaults and resident elopements. What I found to be most significant
in establishing the facility's liability in Woodstock was that
the facility failed to take action to prevent assaults and elopements
even though there were repeated episodes of assaults and elopements
at the facility. I held that I might have reached a different conclusion
about liability had the record established only isolated incidents of
assaults or elopements and had the evidence established that the facility
reacted to isolated events by acting to prevent their recurrence. DAB
CR623 at 15. This case plainly is distinguishable from Woodstock. Here, there is no evidence of neglectful conduct by the facility. There is no evidence that Petitioner tolerated circumstances that might have led to repeated injurious acts to Resident # 1. As I discuss above, the undisputed material facts do not show that Petitioner failed to take steps to assure that Resident # 1 remained protected from Resident # 2.
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JUDGE | |
Steven T. Kessel
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