Health Law Daily Wrap Up, ADMINISTRATION OF MEDICARE/MEDICAID PROGRAMS—DAB DECISIONS: DAB upholds penalties against Texas nursing facility, (Oct 15, 2024)

By Jody Coultas, J.D.

The facility put a resident in danger by discharging him without a housing or treatment plan.

The HHS Departmental Appeals Board (DAB) upheld a decision by CMS finding that a Texas nursing facility failed to comply with Medicare regulations requiring that nursing facilities to protect its residents against abuse and neglect and which articulates residents' admission, transfer, and discharge rights. The facility discharged a patient that had mental health issues and had become disruptive while he was away from the facility on a pass. The CMS found, and the DAB agreed, that the nursing facility abused the resident and put him in immediate danger (Park Valley Inn, DAB No. CR6470, Doc. No. C-22-285 (May 8, 2024)).

Park Valley Inn Health Center is a Medicare-participating skilled nursing facility in the State of Texas. A resident of the facility that suffered from bipolar disorder with mania and depression became too difficult to handle. The staff began the process of having the resident readmitted to an inpatient psychiatric facility. The resident left Park Valley, and the police refused to force him to return or to admit him to a facility. Park Valley decided to treat the resident as having discharged himself from the facility against medical advice without first discussing the matter with the resident and without first consulting with the resident's treating physician. The resident was denied reentry into Park Valley when he returned, and caused damage to the property outside.

CMS alleged that Park Valley failed to comply substantially with a Medicare participation requirement that requires participating facilities to protect its residents against abuse and neglect, and a separate requirement regarding residents' admission, transfer, and discharge rights. Based on those violations, CMS imposed a per-instance civil money penalty of $15,000; a civil money penalty of $7,000 for each day of a period that began on September 7, 2021, and that ended on September 20, 2021; a civil money penalty of $250 for one day, September 21, 2021; and denial of payment for new Medicare admissions for a period that began on September 18, 2021, and that ended on September 21, 2021. Park Valley opposed those findings and penalties.

The DAB found that Park Valley violated the resident’s right to be free from abuse at a nursing facility. Abuse is defined as willful infliction of injury, unreasonable confinement, intimidation, or punishment, with resulting physical harm, pain, or mental anguish. There was no question that the decision to bar the resident’s reentry to the facility caused the resident to suffer mental anguish. Whether Park Valley intended to punish the resident, its eviction of that resident certainly was a form of punishment. It was also a form of seclusion in that it isolated the resident from the staff and other residents with whom he lived. The judge rejected Park Valley’s contention that the resident decided to leave the facility and that this decision absolved the facility from any responsibility for his discharge. Even though the resident refused to return to the facility when he was interviewed by the police on the afternoon of September 7, 2021, he clearly wanted to return when he presented himself at the facility shortly after the interview and demanded to be admitted to the premises. No reasonable person would assume that the resident had discharged himself from the facility at any point.

There was no evidence to contradict the finding that CMS's immediate jeopardy determination was erroneous. Regulations define immediate jeopardy as noncompliance that causes or is likely to cause a resident or residents of a facility to experience serious injury, harm, impairment, or death. It is not necessary that a resident experiences serious injury, harm, impairment, or death to be in immediate jeopardy. It suffices that there is a likelihood of such consequences. The undisputed facts establish that Petitioner locked out of its facility an individual who was in the throes of a manic episode and who was extremely irrational and agitated. None of the steps that Petitioner alleged that it took – calling the police, attempting to arrange a transfer of the resident, providing him with water, and watching him through the windows and glass doors of its facility – gainsay the failure to provide the resident with food, shelter, and medication.

The judge found that the penalties imposed by the CMS were reasonable in light of the seriousness of Park Valley’s noncompliance and its compliance history.

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