Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Oakwood Manor Nursing Center, |
DATE: September 14, 2001 |
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Centers for Medicare & Medicaid
Services
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Docket No.C-00-059
Decision No. CR818 |
DECISION | |
DECISION The Centers for Medicare & Medicaid Services (CMS)(1)
determined to impose a per-instance civil money penalty in the amount
of $10,000 against Oakwood Manor Nursing Center (Petitioner). CMS premised
this penalty on the determination that Petitioner manifested an immediate
jeopardy level failure to comply with the requirements of 42 C.F.R. �
483.13(b). I decide that Petitioner was in substantial compliance with
the cited participation requirement. Consequently, CMS is not authorized
to impose a per-instance civil money penalty in the amount of $10,000
against Petitioner. I. Background Petitioner is a 180-bed skilled nursing facility located
in Little Rock, Arkansas. By letter dated August 24, 1999, CMS notified
Petitioner that it was imposing a per-instance civil money penalty in
the amount of $10,000 based on an immediate jeopardy level deficiency
identified by a complaint survey completed by the Missouri Division of
Aging on August 2, 1999. The August 24, 1999 notice letter also advised
that Petitioner had implemented measures that adequately addressed the
immediate jeopardy by the time of the exit conference. Petitioner requested a hearing and the case was assigned
to Administrative Law Judge (ALJ) Cynthia A. Josserand for a hearing and
decision. ALJ Josserand issued an order scheduling the case for hearing
and establishing deadlines for the parties to complete prehearing exchanges.
The case was subsequently reassigned to me for hearing and decision, and,
at the request of the parties, I rescheduled the hearing and established
new deadlines for completion of the prehearing exchanges. The parties timely filed and exchanged proposed exhibits
and other prehearing documents. Petitioner submitted 24 exhibits which
I identify as P. Exs. 1 - 24. CMS submitted nine exhibits which I identify
as CMS Exs. 1 - 9. Prior to the date of the hearing, the parties informed
this office that they had agreed to submit the case on briefs in lieu
of an in-person hearing. On January 31, 2001, I convened a telephone conference.
During the conference, the parties confirmed that they wished this case
to be decided based on a written record in lieu of an in-person hearing.
Both parties indicated that they would rely on the documentary evidence
already submitted in this case and that they did not intend to submit
additional documentary evidence. In addition, both parties stated that
they did not need to rely on in-person testimony of witnesses and that
they both waived the right to cross-examine witnesses. Based on this,
I established a schedule for the parties to submit joint stipulations,
if any, and to file briefs. February 15, 2001 Order and Schedule for Filing
Briefs. The parties subsequently submitted joint stipulations
and simultaneously filed initial briefs. CMS's brief was accompanied by
two documents which I mark as CMS Attachments 1 - 2. Petitioner submitted
a response brief, but CMS waived its right to submit a response brief.
The parties did not object to each other's proposed exhibits. In the absence
of objection, I admit P. Exs. 1 - 9 and CMS Exs. 1 - 24 into evidence. CMS and Petitioner have rested their cases on their written
submissions. Neither party has indicated any desire to have additional
proceedings in this case. Consequently, I have decided this case based
on the parties' written submissions without scheduling additional evidentiary
proceedings. II. Stipulations In a document captioned Joint Stipulations which was received
by this office on March 5, 2001, the parties stipulated as follows: 1. Petitioner is a 180-bed Skilled Nursing Facility located
in Kansas City, Missouri. At the time of the events at issue and at the
present time, Petitioner is certified to participate in both Medicare
and Medicaid. 2. A resident, who is identified as Resident #1, was initially
admitted to Petitioner's facility on 11/6/98. The resident was placed
in Petitioner's facility by a caseworker from the Missouri Division of
Aging ("MDA"). There is no written documentation that substantiates what
Petitioner was told about the reason for the placement. According to Petitioner's
staff, the MDA caseworker advised the facility that a neighbor had seen
the son slap the resident in the home the mother and son shared. According
to MDA, there had been allegations that the son was sexually abusing the
mother at home. 3. Resident #1 was 90 years old at the time of her admission
and had diagnoses that included hypothyroidism, weakness, and dementia.
She was dependent on Petitioner's staff for meeting all her care needs
and was confused. 4. Criminal charges were filed against the son in Kansas
City Municipal Court. There was a police report dated November 17, 1998,
filed concerning the alleged criminal activity, but that report is a "Closed
record" under Missouri law and neither Petitioner nor Respondent have
been able to obtain a copy of the report. On December 2, 1998, the criminal
case was continued until March 3, 1999, and a "Stipulated Order of Continuance"
[Pet. Ex. 14] was entered, which was agreed to by the son's attorney,
the prosecuting attorney, and attorneys for the mother (Resident #1).
The Order stated, in part, that the son "shall be allowed supervised weekly
visitation with (Resident #1) at such places as (Resident #1's attorneys)
may determine and with such persons supervising the visitation as (Resident
#1's attorneys) may designate in writing["]. During the period of time
this court order was in effect, the MDA and Respondent do not dispute
that the facility directly supervised all of the son's visits with the
mother, in accordance with this Order and the directions of Resident #1's
attorneys. 5. On June 16, 1999, Petitioner received a letter [Pet.
Ex.15] from the attorney for Resident #1's son stating: "This is to inform
you that (Resident #1's son) has been cleared of all charges against him.
On June 15, 1999, (Resident #1's son) was found not guilty in a jury trial
before the Honorable Michael L. Midyett. If verification of this verdict
is needed, you may contact the clerk of Division Nine of the Circuit Court
. . . . ." Thereafter, Petitioner sought verification from the Court and
received a letter dated June 17, 1999 [Pet. Ex. 16], which stated: "Please
consider this letter formal notice that the above-entitled cause of action
has been disposed as of June 15, 1999. We will consider our record closed
as of that date . . . ." 6. After receiving a copy of the June 17, 1999 [letter]
from the Court, Petitioner began allowing private, unsupervised visits
between Resident #1 and her son. 7. On July 22, 1999, Resident #1's roommate reported to
facility staff that approximately two to three weeks before, the son had
been visiting Resident #1. According to the roommate, the son pulled the
privacy curtain during the visit, but the roommate saw the son unzip his
pants and put his mother's hands on his penis and cause her to manipulate
it, and that he put his hand on his mother's crotch area. 8. The Administrator immediately directed that the son
should not be allowed to be alone with his mother and that the facility
staff were to notify her immediately if they observed any behavior by
the son that they believed to be inappropriate, and that they should immediately
direct the son to stop the behavior. 9. Federal regulations require that facilities assure
that each resident "has the right to personal privacy" (42 C.F.R. �483.10(e)),
which HCFA has interpreted as meaning that "the resident has the right
to privacy with whomever the resident wishes to be private and
that this privacy should include full visual, and, to the extent, desired,
for visits or other activities, auditory privacy . . . " (HCFA "Guidance
to Surveyors", F164, emphasis in the original). Federal regulations also
require that "the resident has the right and the facility must provide
immediate access to any resident by the following: . . . subject to the
resident's right to deny or withdraw consent at any time, immediate family
or other relatives of the resident". (42 C.F.R. � 483.10(j)(1)(vii). HCFA
interprets this as requiring that "(i)mmediate family or other relatives
are not subject to visiting hour limitations or other restrictions not
imposed by the resident" (HCFA "Guidance to Surveyors", F172). 10. By letter dated August 24, 1999 ("August 24, 1999
Notice"), Respondent HCFA notified Petitioner that the MDA had completed
a complaint survey at Petitioner on August 2, 1999, and that the complaint
survey had found the facility not in substantial compliance with participation
requirements and that the conditions in Petitioner's facility constituted
immediate jeopardy to resident health and safety. However, according to
the August 24, 1999 Notice, Petitioner had implemented measures that adequately
addressed the immediate jeopardy by the time of the exit conference. 11. The August 24, 1999 Notice also advised that Respondent
HCFA was imposing a per instance civil monetary penalty ("CMP") in the
amount of $10,000, and further advised that HCFA was imposing a denial
of payment for new Medicare and Medicaid admissions effective September
8, 1999. The August 24, 1999 Notice also advised Petitioner that federal
law prohibits approval of nurse aide training and competency evaluation
programs ("NATCEP") and competency evaluation programs ("CEP") offered
by or in a facility which has been subjected to certain remedies, including
denial of payment. 12. By letter dated September 16, 1999, Respondent HCFA
notified Petitioner that HCFA had confirmed with the MDA that a August
19, 1999 revisit had determined Petitioner to be in substantial compliance,
and that denial of payments for new admission would not be imposed. Joint Stipulations received March 5, 2001. III. Issues, findings of fact and conclusions of law
The principal issue in this case is whether Petitioner was in substantial compliance with 42 C.F.R. � 483.13(b), which concerns a resident's right to be free from verbal, sexual, physical, and mental abuse. If not, further issues are whether the noncompliance resulted in immediate jeopardy and whether the $10,000 per-instance civil money penalty imposed against Petitioner is reasonable under the circumstances.
I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below in bold as a separately numbered heading. I discuss each Finding in detail.
The report of the August 2, 1999 survey of Petitioner 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:
The word "abuse" is defined elsewhere in the regulations. "Abuse" is defined to mean:
42 C.F.R. � 488.301. CMS asserts that the undisputed material facts of this
case establish that Resident #1 was sexually abused by her son, and argues
that "even a single incident of abuse requires a finding that
the facility is not in substantial compliance" with the requirement at
42 C.F.R. � 483.13(b). CMS Brief at 8 (emphasis added). CMS reasons that
where "even a single instance of abuse has occurred, the resident's 'right
to be free' from abuse has been violated, and the facility has not complied
with the requirements of 42 C.F.R. � 483.13(b)." Id. CMS appears
to be arguing that no matter what steps a facility has taken and no matter
how unexpected or unpreventable an instance of abuse may be, a facility
is strictly liable for an instance of abuse. In support of this argument,
CMS cites the ALJ decision in Greenery Extended Care Center, DAB
CR707 (2000). I disagree with CMS's argument and I disagree with the
Greenery Extended Care Center decision to the extent that it supports
the proposition that an isolated instance of abuse occurring at a facility
is per se a failure by the facility to comply with the requirements of
42 C.F.R. � 483.13(b). Although 42 C.F.R. � 483.13(b) states that a resident
has a right to be free from abuse, I do not read this to mean that where
an isolated instance of abuse has occurred, the facility is automatically
deficient under this regulation because a resident's right to be free
from abuse has been violated. A more reasoned approach is set forth by an appellate
panel in Beverly Health and Rehabilitation Center - Williamsburg,
DAB No. 1748 (2000). In formulating a test for determining whether a facility
is deficient under 42 C.F.R. � 483.13(b), the appellate panel read 42
C.F.R. � 483.13(b) in conjunction with 42 C.F.R. � 483.10 which states
that a facility "must protect and promote the rights of each resident."(2)
When these sections are read together, the appellate panel concluded that
a finding of noncompliance with 483.13(b) "implies a failure (deliberate
or negligent) by a facility to protect a resident from abuse." Beverly
Health of Williamsburg at 6. Thus, the core issue is not whether abuse occurred, but
rather whether the facility engaged in deliberate or neglectful conduct
which failed to protect a resident from abuse. The regulatory scheme contemplates
that the emphasis is on ensuring adequate care to meet the specified goal
(freedom from abuse). I find that 42 C.F.R. � 483.13(b) does not impose
a strict liability standard on a facility for any and all instances of
resident abuse without regard to the surrounding circumstances. The regulation
instead imposes a requirement on a facility to take all necessary steps
to prevent a violation of a resident's right to be free from abuse. While a conclusion that a facility has failed to comply
with 42 C.F.R. � 483.13(b) does not automatically flow from the mere fact
that an isolated instance of abuse has occurred, this is not to suggest
that an occurrence of abuse has no significance in deciding whether a
facility is deficient under 42 C.F.R. � 483.13(b). An occurrence of abuse
creates a presumption of noncompliance with the requirements of 42 C.F.R.
� 483.13(b) which a facility is obliged to rebut. A facility will rebut
that presumption by proving that it did indeed take all necessary steps
to prevent the abuse from occurring. On the other hand, just as an occurrence of abuse is not outcome-determinative on the issue of compliance with 42 C.F.R. � 483.13(b), the absence of an occurrence of abuse is not outcome-determinative on this issue either. A facility may be found to be deficient under 42 C.F.R. � 483.13(b) even if there is no showing that a resident has actually been abused. Proof of actual abuse is not a necessary prerequisite to a deficiency finding under 42 C.F.R. � 483.13(b). In Beverly Health of Williamsburg, the appellate panel interpreted 42 C.F.R. � 483.13(b) to extend beyond the prevention of actual abuse. Under the test articulated by the appellate panel in Beverly Health of Williamsburg, a facility is deficient under 42 C.F.R. � 483.13(b) if it either deliberately or negligently acts in some way that presents either actual abuse or the potential for abuse. Beverly Health of Williamsburg at 8, 11. Thus, a facility will be deficient under 42 C.F.R. � 483.13(b) if it knows or should know that a potentially abusive event may occur and does not take reasonably necessary steps to prevent it from happening. As support for this interpretation, the appellate panel cites language contained in CMS's guidelines to surveyors which states that 42 C.F.R. � 483.13(b) covers a:
State Operations Manual, at Appendix PP (Guidelines to
Surveyors for 42 C.F.R. � 483.13(b)). In view of the foregoing, I find that in deciding whether a facility has complied with 42 C.F.R. � 483.13(b), the ultimate issue is not whether an incident of abuse has occurred, but whether there is a failure (deliberate or negligent) of care by a facility to protect a resident from abuse or the potential for abuse. An inquiry on the issue of whether an incident of abuse actually occurred, however, is relevant to deciding the issue of compliance with 42 C.F.R. � 483.13(b) insofar as an affirmative finding that abuse actually occurred creates a presumption of noncompliance. This presumption can be overcome by a showing that the facility did not deliberately or negligently fail to prevent the abuse. I turn now to address the issue of whether the evidence establishes that abuse actually occurred in this case.
CMS takes the position that "it is undisputed that sexual
abuse occurred at least once." CMS Brief at 8. In support of this assertion
CMS cites Joint Stipulation 7. In its response brief, Petitioner makes
it clear in no uncertain terms that it does not agree with CMS's interpretation
of Stipulation 7. Petitioner states that Joint Stipulation 7 can not be
read to mean that Petitioner agrees that sexual abuse occurred, but that
this stipulation simply recites what the resident's roommate reported
to facility staff on July 22, 1999, concerning her observations of alleged
sexual abuse of Resident #1. Petitioner argues also that the evidence
of record is insufficient to support a finding of sexual abuse. Petitioner
Response Brief at 1 - 2. I agree with Petitioner that Joint Stipulation 7 does
not support CMS's assertion that it is undisputed that sexual abuse occurred.
In Joint Stipulation 7 Petitioner agrees only to the fact that Resident
#1's roommate reported to facility staff that she saw the son sexually
abuse his mother. Joint Stipulation 7 does not state that the parties
are stipulating that the sexual abuse actually occurred. Accordingly,
I must make a finding on this disputed issue of
fact based on the evidence of record. I find that the evidence fails to
establish that Resident #1 was sexually abused by her son. The assertion that sexual abuse occurred rests on the
hearsay allegations of Resident #1' s roommate. According to the survey
report, a "witness" reported to a staff member that a few weeks before,
on an unspecified date, Resident #1's son was seen with his penis out,
putting Resident #1's hands on it, and he had his hands on her vagina.
CMS Ex. 4 at 6. A report dated July 31, 1999 of an interview with this
witness by an investigator with the Missouri Office of the Attorney General,
Medicaid Fraud Control Unit, states that this witness identified herself
as the roommate of Resident #1. Resident #1's roommate reportedly told
the investigator that she witnessed this incident sometime in late June,
1999, and that she kept the information to herself for two to three weeks
until she was asked by Camilla Hill, Certified Nurse's Assistant, whether
she had ever seen anything out of the ordinary between Resident #1 and
her son. Resident #1's roommate reportedly relayed what she had seen to
Ms. Hill and later on to police officers when they asked to interview
her. The investigative report also indicated that Resident #1's roommate
expressed reluctance at testifying about the incident in court. CMS Ex.
9. An affidavit by Ms. Hill states that the roommate told
her about the incident on July 20, 1999 after Ms. Hill asked her if Petitioner's
son had done anything wrong. She seemed reluctant to get involved. Ms.
Hill did not report the incident to Karen McKinley, Director of Nursing,
until July 22, 1999, after Ms. Hill had ascertained that Resident #1's
roommate was ready to report it to someone else. P. Ex. 2. An affidavit
by Ms. McKinley states that Resident #1's roommate reported the incident
of sexual abuse to her on July 22, 1999. P. Ex. 4. The evidence in the record pertaining to the roommate's
allegations of sexual abuse consists of hearsay evidence. I routinely
admit hearsay evidence in cases involving CMS. But, the fact that I admit
hearsay does not mean that I assume it to be reliable. As a general consideration,
I do not accord much, if any, weight to hearsay evidence unless there
is other evidence which I can rely on which establishes the hearsay to
be credible. Hearsay evidence is inherently less reliable than is evidence
which can be tested through cross-examination. It is generally not admissible
in federal civil trials under the Federal Rules of Evidence precisely
because of its inherent unreliability. Traditionally, it is barred from
admission in jury trials because jurors might be misled into assuming
that it is more reliable than, in fact, it is. The hearsay evidence regarding the alleged incident of
sexual abuse is inherently unreliable because it is difficult to discern
whether Resident #1's roommate's statements were reported accurately.
Even assuming that the statements were accurately reported, it is also
difficult to determine whether the hearsay statements are credible. Although
Tracey Bohrer, the Administrator, stated in an affidavit that Ms. McKinley
believed Resident #1's roommate to be a credible witness, there is no
other evidence in the record pertaining to her credibility, such as evidence
related to her mental status. P. Ex. 3. In addition, the evidence extrinsic to Resident #1's roommate's
hearsay allegations fails to support these allegations. A July 28, 1999
report by the Missouri Department of Social Services states that Resident
#1's son denied the allegations of sexual abuse. CMS Ex. 5 at 6. There
is no evidence of any prosecution resulting from these allegations. While
a July 22, 1999 report of the Missouri Department of Social Services states
that Resident #1 has a sexually transmitted disease, CMS does not assert
this in its brief and it is not supported by the medical evidence of record.
CMS Ex. 5 at 1. The medical evidence shows that in late April, 1999, Resident
#1 developed an upper respiratory infection which was treated with an
antibiotic. In May, she developed a urinary tract infection which was
treated with another antibiotic. During the first half of June, prior
to the time when her son was allowed unsupervised visits with her, Resident
#1 developed redness on the buttocks, the perineal area, and on her face.
Based on these symptoms, a physician diagnosed a yeast infection which
was treated with Diflucan. Yeast infections are a relatively common side
effect following the administration of antibiotics. P. Ex. 4 at 2; P.
Ex. 6 at 1, 3, 12, 13. On June 27, 1999, Janel Lockerby, Licensed Practical Nurse., noted on the nursing progress notes that Resident #1 had been crying and stated, "I'm hurting where I pee from." When asked by Ms. Lockerby what happened, Resident #1 stated that "one guy touched me down there." The Department of Social Services was notified. Resident #1 was examined, and no abnormalities were noted. There were no tears in her vagina, no swelling, bruising or bleeding and no change in appearance. P. Ex. 1 at 2; P. Ex. 6 at 14. Ms. Lockerby also reported Resident #1's statements to
Ms. McKinley. The next day Ms. McKinley and Ms. Lockerby questioned Resident
#1 further, but her responses were confused and rambling. Resident #1
started talking about her son making no effort to see her. Ms. McKinley
and Ms. Lockerby examined Resident #1 and concluded that the pain she
referred to related to her yeast infection, and that her comment about
being touched by a man may have referred to a male Certified Nurse's Assistant
who had cleaned her up after an incontinent episode.
Ms. McKinley and Ms. Lockerby did not find any credible reason to suspect
that Resident #1 had been sexually abused. P. Ex. 1 at 2 ; P Ex. 4 at
2 - 3. On July 1, 1999, Resident #1 was placed on another course
of antibiotics for a urinary tract infection. On July 20, 1999, Ms. Hill
reported to Ms. McKinley that Ms. Hill had asked Resident #1 if her son
had ever touched her anywhere that he shouldn't have, and that Resident
#1 responded by saying "my vagina." In addition, Ms. Hill reported that
Resident #1 had a vaginal discharge. Ms. McKinley and Ms. Lockerby again
examined Resident #1 and noted copious amounts of yellowish-greenish discharge,
but there was no sign of trauma to her vaginal area. Her symptoms were
reported to a physician who diagnosed a yeast infection. Her symptoms
were consistent with a yeast infection that may have developed as a side
effect to the antibiotic usage. When questioned about her comment about
being touched by her son, Resident #1's answers were not responsive. Petitioner
Ex. 4 at 3; P. Ex. 6 at 15, 17, 18. While the foregoing evidence shows that Resident #1 made
statements indicating that a male had touched her in her vaginal area,
these statements are shown to be unreliable by evidence showing that Resident
#1 has a tenuous grasp of reality. It is undisputed that at the time of
her admission, this 90-year-old resident was diagnosed with dementia.
Joint Stipulation 3. Resident #1 had long and short term memory problems,
and she often was confused and spoke in a nonsensical manner. P. Ex. 1
at 4. In addition, repeated physical examinations showed no physical manifestations
of sexual abuse or trauma. Her medical symptoms were consistent with a
yeast infection secondary to antibiotics administered for respiratory
and urinary tract infections. None of the members of the facility's staff reported that
they ever saw Resident #1's son touch her on the breasts, genitals or
buttocks. Although some of the staff saw the son kiss Resident #1 on the
lips in a manner that personally made them feel uncomfortable, CMS has
not made a showing that conduct of this nature constitutes sexual abuse.
Moreover, it cannot be inferred from this conduct that Resident #1 was
sexually abused by her son. Resident #1 did not express displeasure at having her
son visit her. Although the receptionist at the facility noted that Resident
#1 was crying when her son left after visiting her on June 26, 1999, she
could have been crying for any number of reasons. CMS Ex. 8. It would
be far too speculative to conclude that this episode of crying was due
to the alleged sexual abuse, particularly since the date of the alleged
abuse is unknown. While Resident #1's son was ordered by a court to have
supervised visits with his mother in December, 1998 due to pending criminal
charges against him, the record shows that Resident #1 was cleared of
all criminal charges against him in June, 1999. I do not find that these
criminal charges, which were ultimately dismissed, corroborate a finding
that Resident #1 was sexually abused by her son. Moreover, the exact nature
of these charges is unclear from the record. In view of the foregoing, I conclude that hearsay allegations of Resident #1's roommate are not corroborated by reliable evidence extrinsic to the hearsay evidence, and that the uncorroborated hearsay allegations are not sufficient to conclusively establish that Resident #1 was sexually abused by her son.
As I stated above, a facility may still be found to be
deficient under 42 C.F.R. � 483.13(b) even if there has not been a showing
of actual abuse. A facility is deficient under 42 C.F.R � 483.13(b) if
it either deliberately or negligently acts in some way that presents the
potential for abuse. I have considered carefully whether Petitioner's
care of Resident # 1 might be characterized as a deliberate or negligent
failure to protect Resident #1 from the potential for abuse, and I find
that the evidence in this case fails to establish such a conclusion. Moreover,
even if I were to find that there was a showing of actual abuse in this
case, which I do not, I would still find that the evidence fails to establish
that Petitioner deliberately or negligently failed to protect Resident
#1 from actual abuse. In evaluating all of the evidence in this case,
what strikes me is my difficulty in determining what, if anything, Petitioner
should have done differently with regard to its care of Resident #1. Resident #1 was initially admitted to Petitioner in November,
1998. The resident had been placed in Petitioner by a caseworker from
the Missouri Department of Aging. There is no written documentation that
substantiates what Petitioner was told about the placement. According
to Petitioner's staff, the Missouri Department of Aging caseworker told
Petitioner that a neighbor had seen the son slap Resident #1 in the home
the mother and son shared. According to the Missouri Department of Aging,
there had been allegations that the son was sexually abusing the mother
at home. However, Petitioner claims that it was not advised the there
were any suspicions that the son had sexually abused his mother prior
to her admission at Petitioner. Joint Stipulation 1; CMS Ex. 5 at 18.
In the absence of evidence to the contrary, I find that Petitioner was
not aware of any information the Missouri Department of Aging had regarding
allegations that Resident #1 was sexually abused by her son prior to her
admission to Petitioner. Instead, it appears that Petitioner had limited
information concerning the allegations against Resident #1's son. Criminal charges were filed against the son in Kansas
City Municipal Court. When the criminal case was continued on December
2, 1998, the court conditioned the continuance on the son being allowed
only supervised visits with his mother at Petitioner. It is undisputed
that during the period that the order was in effect, Petitioner directly
supervised all of the son's visits with Resident #1, in accordance with
the court order and the direction of Resident #1's attorneys. Joint Stipulation
4; CMS Ex. 5 at 18. On June 15, 1999, Resident #1's son was found not guilty
in a jury trial, and the court verified this in a letter to Petitioner
dated June 17, 1999. The son's attorney also sent a letter to Petitioner
stating that the son had been cleared of all charges. After receiving
copies of these letters, Petitioner began allowing private, unsupervised
visits. Joint Stipulation 5, 6. It was during one of these unsupervised
visits that the sexual abuse allegedly occurred. On July 20, 1999, Resident #1's roommate, in response
to questioning from Ms. Hill, reported that she had seen the son sexually
abuse his mother a couple of weeks before. On July 22, 1999 the roommate
agreed to tell what she had seen to Ms. McKinley. P. Ex. 2. Ms. McKinley
reported the allegations to the Administrator who immediately reported
the allegations to appropriate authorities. P. Ex. 3. The Administrator
also directed that the son should not be allowed to be alone with his
mother, that staff report any inappropriate behavior, and that the son
be told to stop the behavior. Joint Stipulation 8. CMS contends that Petitioner did not take reasonable precautions
to prevent Resident #1 from being sexually abused by her son. CMS points
out that Petitioner was aware of the circumstances of Resident #1's admission
to Petitioner - that her son may have physically abused her. CMS points
out also that the son's criminal case could have been dismissed for any
number of reasons, and asserts that the dismissal of that case did not
absolve Petitioner from the responsibility to protect Resident #1 from
abuse. CMS states that in addition, several employees observed the son
inappropriately kissing his mother. According to CMS, the fact that the
son pulled the privacy curtain during the unsupervised visits also raised
the possibility that he was having inappropriate sexual contact with his
mother. Under these circumstances, CMS argues that Petitioner should have
continued to supervise the son's visits, even after the criminal case
was dismissed. CMS Brief at 7 - 9. The weight of the evidence belies any assertions that
Petitioner was remiss in its care of Resident #1. I am not persuaded that
Petitioner's failure to continue supervised visits after the criminal
case was dismissed was a dereliction of Petitioner's responsibilities
to Resident #1. It is true that Petitioner was aware that there were allegations
that Resident #1 was slapped by her son prior to her admission to Petitioner
and that the criminal case could have been dismissed for any number of
reasons. However, CMS seems to be taking the untenable position that Petitioner
should have assumed that the son had physically abused his mother, even
though the son was cleared of the criminal charges. In addition, CMS seems
to be taking the untenable position that Petitioner should have assumed
that Resident #1 was at risk for being sexually abused by her son based
the fact that Petitioner was aware of charges of physical abuse. Moreover, there are legal limitations on the extent to which a facility can restrict visits between a resident and a family member. Federal regulations require that the:
42 C.F.R. � 483.10(j)(1)(vii). CMS has interpreted this
as requiring that members of the immediate family are not subject to visiting
restrictions not imposed by the resident. Joint Stipulation 9. Federal regulations also require that facilities ensure
that each resident "has the right to personal privacy." 42 C.F.R. � 483.10(e).
CMS has interpreted this to mean that the resident has the right to privacy
with whomever the resident wishes to be private, and that this privacy
should include full visual, and to the extent desired, auditory privacy.
Joint Stipulation 9. When the criminal case against Resident #1's son was dismissed,
and the court order was no longer in effect, Petitioner no longer had
any legal authority to continue to supervise Resident #1's visits. Resident
#1 had the same right as any other resident to private visits with her
son. It is noteworthy that there is not indication that Resident #1's
attorneys sought to continue to limit or otherwise restrict visits between
the son and his mother after the criminal case was dismissed. In addition,
Resident #1 did not was not reluctant to participate in visits with her
son. The fact of a prior criminal charge that was dismissed
did not give Petitioner the right to ignore its legal obligation to allow
unrestricted visits between a resident and her son. In the absence of
credible evidence that unsupervised visits between Resident #1 and her
son posed a risk to Resident #1, Petitioner did not have a right to restrict
the visits between mother and son. Moreover, given that CMS has interpreted
federal regulations as requiring that a resident have full visual privacy
during visits, Petitioner could not infer that improper sexual contact
was occurring between Resident #1 and her son merely from the fact that
the son pulled the privacy curtain. I find also that the credible evidence pertaining to Resident
#1's son's expressions of affection towards his mother during the supervised
visits is insufficient to establish that the son posed a threat to his
mother. CMS asserts that Petitioner should have continued to supervise
visits between Resident #1 and her son after the court order for supervised
visits was lifted because Petitioner's staff had observed "lover type"
kisses between mother and son during the court-ordered supervised visits.
In support of this assertion, CMS relies on two written reports of an
investigator who interviewed Ms. Hill and Ms. Lockerby. According to one of the investigative reports, Ms. Lockerby
described the kissing as the son "placing his hands on his mother's cheeks
and kissing her with an open mouth for a long duration while moving his
head around in a manner similar to a lover's kiss." CMS Ex. 7. There is
no indication that Ms. Lockerby had any opportunity to review this investigative
report to verify that it accurately reflected her statements to the investigator.
I find that more credible evidence of Ms. Lockerby's observations of the
kissing between Resident #1 and her son are set forth in a sworn affidavit
in which she reports:
P. Ex. 1. Ms. Lockerby's sworn statement directly contradicts the
statement that the investigator claims that she made about the nature
of the son's kisses. The investigator reports that she observed open mouth
kissing similar to a lover's kiss, while her sworn statement states that
the son did not kiss his mother with an open mouth or use his
tongue. I find the description contained in the sworn affidavit to be
more reliable than the statements attributed to her by the investigator
because she reviewed the statements contained in the affidavit and attested
to their accuracy. The investigative report of the interview with Ms. Hill
reported that Ms. Hill reported that during the court-ordered, supervised
visits, she observed "lover-type kisses of a sensual nature" between mother
and son. CMS Ex. 6. In her sworn statement, Ms. Hill stated that although
the son's behavior made her personally uncomfortable, she never saw him
hurting his mother or sexually abusing her in any way. P. Ex. 2. Moreover, while recorded observations of the son's behavior,
which were prepared at the time of the son's supervised visits with his
mother, indicate that the son greeted his mother with numerous hugs and
kisses on the lips, they do not describe open-mouthed kissing. CMS Ex.
3. In a sworn affidavit, Mindy O'Neil, Director of Social Services, stated
that she personally supervised visits between Resident #1 and her son
while the court order was in effect, and she confirmed that the "kissing
wasn't open mouthed or with [the son's] tongue." P. Ex. 5. Ms. O'Neil
stated also that Resident #1 was always very glad to see her son, and
that the son would kiss his mother on the lips when he came and when he
left. Ms. Neil indicated that although the kissing made her uncomfortable,
she did not believe that it was something that should be reported. Instead,
she "chalked it up to simply the way this family showed affection" and
she stated that she "never saw [the son] abuse his mother or do anything
that made me think he might harm [his mother] in any way." P. Ex. 5. Based on this evidence, I find that the Director of Social
Services personally observed the behavior of the son toward his mother
during the supervised visits and made a professional assessment that the
son did not pose a threat to his mother based on her observations. Under
these circumstances, it was not unreasonable for Petitioner to rely on
the expert judgment of its Director of Social Services. The regulation
does not require a facility to challenge or second guess the expert judgments
of its professional staff. CMS also faults Petitioner because two days elapsed between
the time that Resident #1's roommate first reported her allegations of
sexual abuse to Ms. Hill on July 20, 1999 and the time that these allegations
were reported to proper authorities on July 22, 1999. CMS Brief at 9.
I am not persuaded that this delay shows that Petitioner was deficient
because the record shows that July 22, 1999 is the earliest date that
the roommate agreed to tell anyone other than Ms. Hill what she had allegedly
seen. P. Ex. 2. Since the allegations of sexual abuse emanated from Resident
#1's roommate, the incident could not be reported unless Ms. Hill cooperated
and agreed to report what she had allegedly witnessed. In view of the foregoing, I conclude that the derelictions
of responsibilities by Petitioner alleged by CMS are not evidence of failure
by Petitioner to protect Resident #1 from abuse or the potential of abuse.
On the contrary, the evidence shows that Petitioner took aggressive measures
to address the possibility that Resident #1 was abused. Petitioner diligently
responded to suspicious statements by Resident #1 by questioning and physically
examining her. Indeed, Resident #1's roommate's allegations of abuse surfaced
because a vigilant staff member took the initiative in questioning the
roommate. Once the roommate agreed to report the allegations to the authorities,
Petitioner acted with dispatch and took appropriate steps to prevent future
abuse. I do not find that the evidence shows that Petitioner was indifferent
to the possibility that Resident #1 might be abused by her son during
the period that Resident #1 was in Petitioner's care. The allegations of sexual abuse of Resident #1 by her son are appalling and horrific. However, I find that there is no evidence of neglectful conduct by Petitioner. The evidence fails to establish that Petitioner failed to take steps to assure that Resident #1 was protected from abuse or that it negligently tolerated conditions that might have led to the abuse of Petitioner. In view of the foregoing, I conclude that Petitioner was in substantial compliance with 42 C.F.R. � 483.13(b) and CMS is therefore not authorized to impose a per-instance civil money penalty in the amount of $10,000 against Petitioner. |
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JUDGE | |
Marion T. Silva Chief Administrative Law Judge
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FOOTNOTES | |
1. The Health Care Financing Administration (HCFA) has been renamed Centers for Medicare & Medicaid Services. For purposes of this decision, reference to either name will constitute reference to the same entity. In this regard, I point out that the CMS exhibits contained in the record are marked with the acronym "HCFA." I refer to these documents in this decision as CMS exhibits. 2. As the appellate panel points out, section 483.10 contains a list of a number of specific rights of residents in long-term care facilities. The duty to protect and promote rights expressly includes but is not limited to those rights listed in this section. | |