Health Law Daily Wrap Up, SKILLED NURSING FACILITIES—DAB DECISIONS: Abuse can occur even where the perpetrator has cognitive deficits, (Jan 24, 2022)

By Jeffrey H. Brochin, J.D.

Despite SNF Resident having an “affable nature,” and being normally relaxed, friendly, cheerful, and gentle, such traits were irrelevant because they did not negate his abusive outbursts towards other residents.

The Department of Health and Human Services Departmental Appeals Board (DAB) Civil Remedies Division has granted the motion for summary judgment filed by CMS after finding that the Petitioner, Providence Mount St. Vincent, a skilled nursing facility (SNF) was in substantial noncompliance with Medicare rules and regulations regarding protecting residents from abuse. The finding was based on the conduct of Resident1 who allegedly injured other residents of the facility, and, that the Petitioner did not take sufficient action to protect those other residents (Providence Mount St. Vincent v. CMS, Docket No. C-21-271, Decision CR5904, July 13, 2021).

Resident 1’s abusive outbursts. CMS alleged that the SNF failed to prevent one of its residents, identified as Resident 1, from abusing other residents through intimidation. The agency identified a series of abusive acts by Resident 1 transpiring over a period of about 17 months, which CMS contended caused actual harm to other residents. CMS further asserted that the Petitioner’s staff employed inadequate measures in response to the abuse, thereby allowing the abuse to continue.

Among the episodes of abuse cited by CMS were instances of Resident 1 shoving his walker into other residents who were sitting on his “favorite” chair, and grabbing a resident’s arm with both hands, squeezing it so tightly that the resident cried out in pain, and the SNF’s staff had to pry Resident 1’s hands from the resident’s arm. The resident was injured, suffering a skin tear of about 1.5 inches on her arm. Several similar instances of abusive behavior by Resident 1 were cited by CMS.

Resident 1 not abusive by nature. The SNF argued that Resident 1 was not abusive by nature and that his personality was in fact characterized as “relaxed, friendly, cheerful, and gentle.” Although they conceded that he “acted out” from time to time, this was possibly because he was unable to express his thoughts in English due to his only being a speaker of Cantonese. Furthermore, the SNF asserted that Resident 1 had never posed a meaningful threat to other residents and it contended that whatever measures its staff took more than adequately protected those residents from Resident 1.

Perpetrator’s cognitive defects. The Board found that the undisputed facts supported CMS’s contentions and established that Resident 1 repeatedly acted aggressively towards other residents and that residents were harmed on more than one occasion. Although the ALJ accepted as true the SNF’s description of Resident 1’s personality and its explanation for the motivation of his aggression, those facts did not negate the reality that Resident 1 was aggressive repeatedly and predictably. Whether he intended to harm other residents was also irrelevant because his actions were found to be willful. The ALJ also cited precedent holding that “abuse can occur even where the perpetrator has cognitive deficits and where the abusive act is the consequence of those deficits.”

Accordingly, the ALJ concluded that the SNF was in substantial noncompliance with the requirements of 42 C.F.R. §483.12(a)(1), and the Board entered summary judgment in favor of CMS. They also sustained CMS’s imposition of civil money penalties consisting of $6,525 for each day of a period that began on June 23, 2020, and ran through July 12, 2020; and $515 for each day of a period that began on July 13, 2020, and ran through September 17, 2020.

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