Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
|
IN THE CASE OF | |
Greenery Extended Care Center, |
DATE: October 30, 2000 |
- v - |
|
Health Care Financing Administration
|
Docket No.C-98-077 Decision No. CR707 |
DECISION | |
I decide that the Health Care Financing Administration
(HCFA) properly imposed a civil money penalty (CMP) in the amount of $500
per day for one day, March 7, 1997, against Petitioner, Greenery Extended
Care Center. I. Background and Undisputed Material Facts
On September 5, 1997, HCFA notified Petitioner that it
was not in substantial compliance with requirements for nursing homes
participating in the Medicare and Medicaid programs. HCFA determined to
impose a CMP against Petitioner in the amount of $500 per day for one
day, March 7, 1997, and to deny payments for new admissions, effective
September 26, 1997. On October 20, 1997, HCFA rescinded the denial of
payment for new admissions because Petitioner was found to be in substantial
compliance, effective August 26, 1997. Petitioner requested a hearing and the case was assigned
to me for a hearing and decision. The parties filed cross motions for
summary judgement. The parties agreed that no genuine issues of material
fact existed and that summary judgment was appropriate and will be dispositive
in this case. The parties filed a Stipulation of Facts (SOF). Petitioner
submitted a brief in support of its motion for summary judgment accompanied
by10 exhibits, P. Exs. 1 - 10. HCFA submitted a brief in support of its
motion for summary judgment accompanied by eight exhibits, HCFA Exs. 1
- 8, and two attachments. Both parties submitted reply briefs. In addition,
Petitioner submitted a supplemental brief with one accompanying exhibit,
which I have marked as P. Ex. 11. Neither party objected to my receiving
into evidence any of the exhibits submitted for my attention. Therefore,
I receive P. Exs. 1 - 11 and HCFA Exs. 1 - 8 into evidence.
On March 8, 1999, the parties filed a SOF and the following
is a summary of those facts. Petitioner is a nursing home located in Farmington,
Michigan, and is certified to participate in the Medicare and Medicaid
Programs. SOF, Paragraph 1. On March 7, 1997, the date of the incident
at issue, Resident "C" was a resident at Petitioner's facility. SOF, Paragraph
2. On that date, Petitioner utilized the services of a certified nurse
aide (CNA), CNA #3, who was an employee of Nursing Care Agency (NCA),
an outside "pool" agency in the business of providing nurses and nurse
aides to skilled nursing facilities on a temporary basis. SOF, Paragraph
3. On that date, CNA # 3 worked the afternoon shift and was assigned to
Resident C. SOF, Paragraph 3. Petitioner's contract with NCA required
that NCA "screen" all CNA's provided to Petitioner to ensure that each
CNA had both the training and the certification required pursuant to State
and federal law. The contract also required that NCA provide verification
of each CNA's training and certification to Petitioner. SOF, Paragraph
4. The regulations governing a long term care facility's participation
in Medicare and Medicaid prohibit a facility from employing individuals
who have either been found guilty of abusing, neglecting, or mistreating
residents or have had a finding entered into the State nurse aide registry
concerning abuse, neglect, or mistreatment of residents. 42 C.F.R. � 483.13(c)(1)(ii).
Petitioner's contract with NCA required that NCA screen all CNA's for
compliance with these regulations and provide verification of compliance
to Petitioner. On March 7, 1997, a Licensed Practical Nurse (LPN) employed
by Petitioner responded to yelling coming from Resident C's room. SOF,
Paragraph 5. Resident C informed the LPN that CNA #3 had hit him. SOF,
Paragraph 5. The LPN summoned the Nurse Supervisor on duty and Resident
C repeated the allegation to the Nurse Supervisor. SOF, Paragraphs 5 and
6. Pursuant to Petitioner's policy, the Nurse Supervisor immediately relieved
CNA #3 of his duties and ordered him to leave Petitioner's facility. SOF,
Paragraph 6. Thereafter, the Nurse Supervisor notified both the Director
of Nursing and the Interim Administrator of
the incident. SOF, Paragraph 6. The Nurse Supervisor also documented Resident
C's complaint in the Nurse's Notes for that date and in a memorandum to
the Interim Administrator and notified Resident C's daughter of the incident.
SOF, Paragraphs 6 and 7. As a result of Resident C's complaint, Petitioner promptly
began an investigation, as required by Petitioner's policy, which was
monitored by the Interim Administrator. SOF, Paragraph 7. As part of the
investigation, the Nurse Supervisor completed an incident report and took
a statement from Resident C. SOF, Paragraph 7. Petitioner's Social Worker
also interviewed Resident C. Petitioner's Social Worker also interviewed
Resident C's roommate and Petitioner's staff members. SOF, Paragraph 7.
Petitioner documented the investigation and the Director of Nursing made
a final report. Petitioner also notified NCA of Resident C's complaint.
SOF, Paragraph 8. Pursuant to Petitioner's policy, Petitioner promptly notified
all proper authorities of the incident, including the Michigan Department
of Consumer and Industry Services (MDCIS). SOF, Paragraph 10. As a result
of Petitioner's report to MDCIS, a State surveyor visited Petitioner's
facility on June 5, 1997, for the purpose of investigating Resident C's
complaint. SOF, Paragraph 12. Based solely on the actions of CNA #3, MDCIS
recommended, and HCFA agreed, that Petitioner was not in substantial compliance
with 42 C.F.R. � 483.13(b), violations of which are typically cited at
survey tag F 223. SOF, Paragraph 17. However, because MDCIS investigated
the complaint three months after the incident occurred, it cited Petitioner
under survey tag F 698, which is a tag designation used to indicate past
non-compliance. SOF, Paragraph 17. Nevertheless, the parties are in agreement
that the substantive basis for the citation is an alleged violation of
42 C.F.R. � 483.13(b), as found at survey tag F 223. SOF, Paragraph 17.
As a result of the deficiency citation, HCFA imposed a civil money penalty
in the amount of $500 per day against Petitioner, effective for one day,
March 7, 1997, when the incident involving Resident C occurred. SOF, Paragraph
18. In this matter, HCFA does not deny that Petitioner has
developed, implemented, and had in effect at the time of the incident,
adequate and reasonable written policies and procedures that prohibit
mistreatment, neglect, and abuse of residents. SOF, Paragraph 19. HCFA
also does not deny that Petitioner had in effect adequate and reasonable
written policies and procedures for preventing incidents of abuse to its
residents. SOF, Paragraph 20. HCFA does not deny that Petitioner adequately
screened CNA #3 before he was assigned to the facility and does not contend
that Petitioner failed to monitor CNA #3's activities while he was on
duty on March 7, 1997. SOF, Paragraph 21. HCFA does not dispute that,
at the time of the incident,
Petitioner had taken all reasonably appropriate measures to assure that
its residents were free from verbal, sexual, physical and mental abuse,
corporal punishment and involuntary seclusion. SOF, Paragraph 25. Moreover, HCFA does not contend that Petitioner failed
to report the incident which occurred on March 7, 1997, to its interim
administrator and other governmental authorities required pursuant to
State and federal Law. SOF, Paragraph 22. HCFA does not contend that Petitioner
failed to adequately investigate the March 7, 1997 incident, or that Petitioner
failed to report the results of such investigation to the appropriate
governmental authorities. SOF, Paragraphs 22 and 23. Similarly, HCFA does
not dispute that Petitioner took adequate steps to ensure that such an
incident would not recur and took appropriate corrective action. SOF,
Paragraph 24. II. Issue The parties agree that the sole issue is whether federal
statutes and regulations require that a nursing care facility which has
adopted and implemented a reasonable system regarding the prevention of
resident abuse by facility staff be deemed noncompliant with the federal
requirements of participation in the event an incident of resident abuse
is committed by a nurse aide on its premises and, therefore, whether the
factual circumstances described above in which a nurse aide struck a resident
constitutes sufficient basis for the one day civil money penalty imposed
by HCFA in this case. If a sufficient factual and legal basis for the
imposition of the CMP exists, Petitioner does not contest the amount or
reasonableness of the CMP that was imposed. III. Applicable Law The Medicare and Medicaid statutory provisions at issue
in this matter are 42 U.S.C. � 1395i-3(c) and 42
U.S.C. � 1396r(c), which set forth the "Requirements Relating to Residents'
Rights." The relevant portions of these virtually identical provisions
state that a facility must "protect and promote the rights of each resident,
including . . . the right to be free from physical or mental abuse, corporal
punishment, involuntary seclusion, and any physical or chemical restraints
imposed for purposes of discipline or convenience and not required to
treat the residents' medical symptoms." The regulatory provisions which
implement 42 U.S.C. � 1395i-3(c) and 42 U.S.C. � 1396r(c) are 42 C.F.R.
� 483.10 (Resident Rights); 42 C.F.R. � 483.12 (Admission, Transfer and
Discharge Rights); 42 C.F.R.
� 483.13 (Resident Behavior and Family Practices); and 42 C.F.R. � 483.15
(Quality of Life). With respect to a resident's
right to be free from abuse, 42 C.F.R. � 483.13(b) states:
The word "abuse" is defined elsewhere in the regulations.
"Abuse" is defined to mean:
42 C.F.R. � 488.301. IV. Discussion HCFA contends that an instance of abuse such as occurred
in this case gives rise, without more, to a violation of 42 C.F.R. � 483.13(b).
Petitioner maintains that an isolated instance of abuse does not, in the
absence of further circumstances, result in a violation of its regulatory
obligations. Based upon my review of the record and the statutory provisions
at issue, along with the implementing regulations, I conclude that HCFA's
imposition of a civil money penalty was proper. 42 C.F.R. � 483.13(b)
states that "[t]he resident has the right to be free from verbal, sexual,
physical, and mental abuse, corporeal punishment, and involuntary seclusion."
Obviously, where even a single instance of abuse has occurred, the resident's
right to be free from abuse has been violated and, by implication, the
facility has not complied with the requirements of 42 C.F.R � 483.13(b).
This conclusion is further supported by the State Operations Manual (SOM)
under tag F 223. The SOM, in interpreting the requirements of 42 C.F.R.
� 483.13(b), provides:
SOM, Appendix P, at PP-48. It is also settled that deference is due the agency's
interpretation of its regulations and that the proper construction of
42 C.F.R. � 483.13(b) is not an issue that is to be decided de novo by
this tribunal. Rather the Departmental Appeals Board (DAB) and its Administrative
Law Judges are required to
uphold an agency construction of a regulation so long as the agency's
construction is a permissible reading of the provision involved. As was
held in New York State Department of Social Services, DAB No. 1429
(1994):
Id. at 5. Petitioner argues, however, that HCFA, in reality, interprets
the federal regulation at issue in a manner that is in conformance with
Petitioner's own interpretation of this same regulation. Petitioner bases
this argument on its Exhibit 11. Petitioner submitted, as P. Ex. 11, a
copy of a letter dated January 13, 2000, from Robert P. Daly, Ohio Wisconsin
Operations Branch, Division of Survey and Certification, HCFA Region V,
in which HCFA's Central Office clarified HCFA's policy in such cases.
The letter directly refers to other facilities that were cited for resident
abuse when in fact the facilities had taken all possible steps to prevent
abuse. In those cases, as here, the facilities had properly screened and
trained nurse aides, and had also properly investigated reports of abuse
and disciplined or terminated the employees involved. These facilities
were cited with a deficiency because the nurse aides actually committed
acts of abuse against residents. The letter states, in relevant part:
In light of this letter, which states HCFA Central Office's
position on this issue, Petitioner is arguing that I should give deference
to the interpretation of the regulation that is evidenced by this letter
and not to the interpretation of this regulation that HCFA argues in its
briefs. Petitioner seems to be implying that HCFA's right hand is unaware
of what its left hand proposes as the proper interpretation of this regulation. Petitioner's argument is unpersuasive, because the January
13, 2000 letter only states HCFA's policy, not its interpretation of the
regulation. HCFA can decide to have a policy that, in certain circumstances,
a regulation is not to be enforced. That is not to say that HCFA's interpretation
of its regulation, as stated in its brief, is not reasonable and consistent
with the controlling statute. In this case, however, HCFA has chosen to
enforce this regulation and has clearly stated its interpretation of the
regulation. I find that HCFA's interpretation is reasonable and consistent
with the controlling provisions. 42 U.S.C. �� 1395i-3(c) and 1396r(c)
provide that a nursing facility must "promote and protect the rights of
each resident . . . to be free from . . . abuse." Petitioner contends
that the use of the term "protect and promote" rather than the use of
the word "prevent" reveals that Congress did not intend to make a nursing
facility liable for any and all instances of resident abuse without regard
to the surrounding circumstances. Rather, Petitioner maintains that a
nursing facility is under a requirement to take only those steps which
are reasonable and within its control to prevent any violation of resident's
rights. The statutory language and the language of the implementing regulations
is broad enough to permit HCFA's interpretation that a CMP is warranted
in this case, however, and, as stated above, the relevant section of the
SOM supports HCFA's interpretation. Petitioner asserts that HCFA's strict interpretation is
inconsistent with the regulatory scheme. Specifically, Petitioner maintains
that if it is held strictly non-compliant for any instance of abuse committed
by its employees against one of its residents, such strict interpretation
renders superfluous its obligations under 42 C.F.R. � 483.13(c). This
regulation provides that "the facility must develop and implement written
policies and procedures that prohibit mistreatment, neglect and abuse
of residents and misappropriation of resident property." Section 483.13(c)
further specifies that:
Petitioner argues that the requirements imposed on a facility
under section 483.13(c) are reflective of Congress's intension to require
a facility to "protect and promote" a resident's right to be free of abuse
by taking those preventative steps that are within its control.
This argument misapprehends the purpose of both 42 C.F.R.
� 483.13(b) and 42 C.F.R. � 483.13(c). The plain meaning of those regulations
respectively requires that the residents be free from abuse (section 483.13(b))
and that the facility must take measures to prevent abuse (section 483.13(c)).
It is, therefore, not sufficient for a facility to demonstrate absence
of abuse under subpart (b) because subpart (c) imposes the additional
requirement that the facility implement polices and procedures to prevent
abuse. Additionally, the implementation of such policies and procedures
does not insulate a nursing home from the requirement of subpart (b) because
such interpretation would make subpart (b) superfluous. Moreover, it may
be that nursing facilities, having implemented such policies and procedures,
would make no further efforts to prevent abuse under Petitioner's interpretation.
Clearly, an interpretation that recognizes the liability in this case
of the nursing facility under 42 C.F.R. � 483.13(b) would serve to make
such facility very vigilant to protect the right of its residents to be
free from abuse. Such interpretation is underscored by the SOM provision
regarding 42 C.F.R. �� 483.13(b) and (c), which states concerning both
provisions that "[t]hese requirements specify the right of each resident
to be free from abuse, corporal punishment, and involuntary seclusion,
and the facility's responsibilities to prevent not only abuse but also
those practices and omissions, neglect and misappropriation of property,
that if left unchecked, lead to abuse." SOM, Appendix P, at PP-48. As a final argument in support of its contentions, Petitioner
asserts that if HCFA is permitted to assess a CMP in this instance, such
policy in effect affords more substantial rights to a nurse aide who commits
abuse than to a facility which has, through its policies and procedures,
attempted to minimize such event from occurring. This is so, according
to Petitioner, because the nurse aide would be entitled to a hearing on
the issue of whether he committed abuse. Petitioner asserts that, under
HCFA's interpretation in this case, a facility is to be held strictly
non-compliant for abuse. It is clear that even under Petitioner's interpretation
of HCFA's action in its case, Petitioner is entitled to a hearing on a
number of issues, including whether abuse occurred and whether Petitioner
had violated 42 C.F.R. � 483.13(c), a charge not alleged in this case.
For example, Petitioner would be entitled to a hearing on whether the
necessary element of willfulness was present to meet the definition of
abuse. Here, however, the way in which the parties agreed to frame the
issue before me leaves no doubt that CNA #3 willfully abused Resident
C. In fact, Petitioner concedes that CNA #3's action constituted abuse.
P. Reply Br., at 2-3. I, therefore, do not find Petitioner's argument
on this issue persuasive. V. Conclusion I uphold HCFA's assessment of a CMP in the amount of $500 per day for one day, March 7, 1997, against Petitioner. |
|
JUDGE | |
Joseph K. Riotto Administrative Law Judge
|
|