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CASE | DECISION | FINDINGS OF FACT AND CONCLUSIONS OF LAW | JUDGE
Decision No. CR653
Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
IN THE CASE OF  


SUBJECT:

Beverly Health and Rehabilitation of Williamsburg

Petitioner,

DATE: Mar. 8, 2000
                                          
             - v -
 
Health Care Financing Administration Docket No.C-98-238
DECISION
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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.

FINDINGS OF FACT AND CONCLUSIONS OF LAW
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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
because there are no facts in dispute.

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
to comply substantially with participation requirements is that
Petitioner allowed Resident # 1 to be abused by Resident # 2.

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,
sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion.

The word "abuse" is defined elsewhere in the regulations. "Abuse" is defined to mean:

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

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
Resident # 1 was abused by Resident # 2.

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
neglected to care for the needs of Resident # 1 thereby resulting
in abuse or potential abuse of Resident # 1 by Resident # 2.

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
Resident # 1.

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.

 

JUDGE
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Steven T. Kessel
Administrative Law Judge

 

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