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From Health Law Daily, June 27, 2014

Nursing facility subject to big fines for resident neglect

By Lisa A. Weder

The HHS Appeals Board upheld an Administrative Law Judge's (ALJ) decision that supported CMS's finding that a Honey Grove Nursing Center was not in compliance with Medicare participatory requirements, that it posed serious health risks to its patients, and that CMS' imposed daily civil fines were acceptable. The decision came in response to the nursing home's appeals for a reconsideration decision (Honey Grove Nursing Home v CMS, Docket No. A-14-51, Decision No. 2570, May 8, 2014).

Nursing facility requirements. Honey Grove Nursing Home (Honey Grove) is a Medicaid/Medicare participating long-term care facility located in Texas. Participation in both Medicaid and Medicare programs carries the weight of heavy compliance standards, which mandate that any facility deficiency must not pose any substantial harm to patients. A site survey conducted by a Texas state agency found that on March 3, 2012, through March 9, 2012, Honey Grove was in serious violation of Medicare facility requirements, which include providing an environment free of any type of mental or physical abuse, involuntary seclusion, and mistreatment as well as maintaining a healthy psychosocial atmosphere, and that established written policies exist to support such an environment.

The site survey's findings. The site survey found that on March 8, 2012, a 77-year-old male resident suffering from Alzheimer's and anxiety, who had been known to refuse prior treatment and preferred female nursing personnel, had been subjected to forced incontinence care by a male nurse assistant (CNA). The patient physically fought the CNA, who used excessive force on the patient resulting in arm bruises and skin tears. The incident was overlooked by the Honey Grove's administrator, who knew of other incidences in which the patient refused care; however, other staff members were not aware of the resident's preference for female CNAs. The site surveyors found that the abuse was not reported and that staff failed to document earlier comments from the nurse about the patient's refusals of care. The surveyors reported Honey Grove as being in noncompliance.

Arguments. Honey Grove appealed the survey's findings to an ALJ. Both parties allowed the ALJ to rule on written documentation. The ALJ agreed with CMS that the male patient sustained injuries and therefore, this constituted abuse. Though Honey Grove acknowledged the incident, it did not agree that the CNA's actions were abusive, stating that the nurse was not willfully trying to harm the patient, and argued that a resident’s rights are limited by various anti-discrimination requirements, that facilities need only to serve residents in a "practicable" manner, and that it is practical that any personnel regardless of gender be allowed to treat a resident. The ALJ refuted these arguments and ruled that the facility should have known this particular resident could be subject to other incidences of abuse based on his past refusals of treatment, and the facility did not take steps to prevent such situations regardless of which gender provided care.

Decision. HHS ruled that there was substantial evidence that Honey Grove had not provided psychosocial well-being for this resident and did not properly administer its policies. HHS further noted that Honey Grove misinterpreted the ALJ's rulings about gender discrimination and provided no evidence as to why the Administrator did not do more to protect the resident from abuse. Therefore, a daily civil fine of $5,550 per day was upheld for the six-day period.

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