Health Law Daily Wrap Up, CIVIL MONEY PENALTIES—DAB DECISIONS: Neglect ruling upheld where Petitioner failed to follow own policy leading to Resident injury and death, (Jul 25, 2025)

By Jeffrey H. Brochin, J.D.

Resident care plan called for monitoring Activities of Daily Living (ADL) to ensure that Resident had bowel movements at least every 3 days, yet the Petitioner’s records showed that no such monitoring took place, leading to severe fecal impaction and death.

The Department of Health and Human Services Departmental Appeals Board, Appellate Division (Board) has affirmed the decision of the ALJ which found that CMS correctly ruled that Pennsylvania Nursing and Rehabilitation Center (Petitioner) was in substantial noncompliance with CMS regulations based on a survey conducted by the Texas Department on Aging and Disability Services (State Agency). The surveyors determined resident neglect based on one resident (Resident 1) being lifted from a chair to his bed via Hoyer lift with only one staff member handling the procedure when Resident 1 fell and broke his clavicle. They also determined resident neglect after Resident 2 died from severe fecal impaction resulting from a failure to monitor his bowel movements each shift as per his care plan. The CMP totaling $248,731 was also upheld (Pennsylvania Nursing and Rehabilitation Center, DAB No. 3185, Docket No. A-21-69 (May 12, 2025)).

Petitioner’s neglect policy. The Petitioner operates a facility in Fort Worth, Texas, and participates in Medicare as an skilled nursing facility (SNF) and in Medicaid as a nursing facility (NF). The Petitioner had a policy in place stating that they would not “condone any form of resident abuse or neglect.,” and among the categories of neglect was: “failure to provide goods and services as necessary to avoid physical harm, mental anguish, or mental illness” and as “failure to provide goods or services, including medical services that are necessary to avoid physical or emotional harm, pain, or mental illness.” They had also recognized that they were subject to the definition of neglect as defined at 42 CFR § 488.301.

Resident 1’s fall and injury. Resident 1 was a 39 year old male admitted to Petitioner’s facility on December 15, 2005, suffering from various conditions such as unspecified psychosis, lack of coordination, unspecified convulsions, and muscle weakness. As a result, his care plan called for “total care from staff” for all bed mobility and transfers, and use of a Hoyer lift for all transfers. The care plan also noted his risk for falls. On March 27, 2017, while a certified nurse aide (CNA) was transferring Resident 1 from chair to bed using the lift, one of its straps broke and the resident fell about two feet to the floor, landing on his right shoulder and fracturing his clavicle.

The ALJ recognized that the parties cited no federal or state statute or regulation specifying the use of two or more facility staff to perform a transfer by way of the lift, but nevertheless determined that Petitioner failed to follow its own policy, which “states that two or three staff members are required to safely operate and accomplish a lift with a mechanical or hydraulic lift,” and, that Petitioner’s failure “caused Resident 1 to suffer a fractured clavicle.”

Resident 2’s care plan requirements. Resident 2, a 46 year old male was admitted to the Petitioner’s facility on February 1, 2012, suffering from traumatic brain injury resulting from an auto accident, along with paraplegia, unspecified dementia and psychosis. He was totally dependent on assistance for toileting and was incontinent of bowel and bladder. His care plan documented his history of constipation and risk for fecal impaction and bowel obstruction, and as a result he was to have a bowel movement “at least every three days.” Petitioner was to monitor the amount, and if the resident had no bowel movement after three days Petitioner was to perform a bowel assessment and report abnormal findings to his physician.

Petitioner documented certain changes in Resident 2’s condition during February 2017, and although monthly summaries of his condition for October 2016 through January 2017 recorded a regular bowel pattern, but the summary for February 2017 did not. Furthermore, his percentage of meals consumed generally declined and he throughout February 2017, and, he began to experience a significant weight loss, dropping from 175 pounds to 148 pounds between December 1, 2016 and February 1, 2017, and dropping further to 140 pounds by February 22, 2017.

Failure to monitor and record. Despite the requirements of his care plan, Petitioner’s documentation of Resident 2’s ADL during February 2017 was incomplete, with bowel function recorded for only 34 of the 69 daily shifts. From February 16 through 23 of 2017, staff made such documentation for only nine of 24 shifts, noting for each shift that was documented, Resident 2 had no episodes of bowel function.

On February 24, 2017, he was transferred by physician’s order, to a hospital emergency room for evaluation, and a medical history taken that day stated that ‘he had not had a BM in an unknown amount of time and admitted to abdominal pain” among other symptoms, including constipation. A CT scan revealed a “severe amount of stool” in his rectum and colon that “raised the concern of fecal impaction.” Although disimpaction was ordered, various efforts including enemas failed, and Resident 2’s family agreed that he was too frail and malnourished to undergo more invasive procedures. He was deemed to be terminally ill, and transferred to hospice where he died on March 6, 2017. The certifying physician wrote on his Death Certificate that the immediate cause of death was sepsis due to large bowel obstruction and the approximate interval from onset to death was “weeks.”

Appeal from CMS ruling. Concerning Resident 1, the State Agency surveyors learned from the CNA who transferred Resident 1 on March 27, 2017, that “it was normally difficult to find other staff to help assist him” with Hoyer lift transfers and that “he had not asked for assistance” with Resident 1 that day. Regarding Resident 2, the surveyors recorded information from interviews and from documents including his Minimum Data Set assessment, comprehensive plan of care, ADL Flow Record. Furthermore, Petitioner’s previous director of nursing (DON) reportedly checked Resident 2’s ADL documentation after his transfer to the hospital and found the documentation to be “horrible.” Based on the survey, CMS found substantial noncompliance with Petitioner’s policy and CMS regulations based on neglect, and imposed CMP’s totaling $248,731 from which Petitioner took the instant Board appeal.

Definition of neglect. The Petitioner challenged the definition of neglect as relied upon by the ALJ, arguing that it did not commit neglect because pertinent regulations define “neglect” as “failure to furnish goods or services necessary for the resident’s well-being,” and documents and testimony in evidence ‘confirmed that Resident 2 was not deprived of any service he needed at the nursing home,’ being ‘frequently monitored’ with ‘pain assessment every day, every shift.’ The Board disagreed, finding that the ALJ properly applied the regulatory definition of “neglect” as the “the failure of the facility, its employees or service providers to provide goods and services to a resident that are necessary to avoid physical harm, pain, mental anguish, or emotional distress.”

Here, the facility’s failure to provide Resident 2 with the care required by his care plan supported the conclusion that the resident was neglected, and they upheld CMS’s and the ALJ’s rulings. As to Resident 1, the Board noted potentially conflicting evidence as to when Petitioner first adopted its policy requiring two-person Hoyer lift transfers, however, they concluded that substantial evidence supported the ALJ’s finding that the policy already was in effect by March 27, 2017, the date of Resident 1’s accidental injury: while the Administrator asserted that Petitioner first adopted the policy after the April 2017 survey, CNAs and two LVNs acknowledged that the Hoyer lift required ‘minimum two persons to assist’ and they were unaware of any incident in which staff had transferred a resident inappropriately other than the incident involving Resident 1.

Based on the foregoing, the Board affirmed CMS’s finding of substantial noncompliance with Medicare and Medicaid regulations as to resident neglect, and they also found the cumulative CMP of $248,731 to be not unreasonable.

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