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Does staff member’s kiss of resident violate CMS regulations? 

After a survey by the state department of public health of a skilled nursing facility, violations of Medicare and Medicaid’s regulations were discovered.

These included a failure to protect a resident from abuse and failure to implement adopted policies on abuse/neglect. The Centers for Medicare and Medicaid Services (CMS) held that these deficiencies placed residents in “immediate jeopardy.”

CMS assessed a monetary civil penalty against the nursing facility. An administrative law judge and the Departmental Appeals Board upheld the $6,050 per day penalty.

The facility petitioned the 7th Circuit Court of Appeals for a review of the order by the U.S. Department of Health and Human Services, arguing the amount could not be supported by substantial evidence, according to Rosewood Care Center of Swansea v. Thomas Price.

Pertinent facts of the case … and the kissing

Resident 6 (R6) was receiving physical therapy at the nursing home. As he was leaving his therapy session one day, an unknown female staff member “put her hands on his cheeks and kissed him on one side then the other, then kissed [R6’s] forehead and allegedly said ‘I have always loved you.’”

Both R6 and his wife alleged that he had been mentally abused. His wife also emphasized that R6 knew the difference between a “caring kiss and someone who is trying to ‘really kiss’ him.”

The wife reported the incident to the facility administrator before the state survey took place. The wife was clear on the date that the kissing occurred but could not identify the staff member who did it nor the therapy staff member.

The facility administrator began his investigation of the incident by interviewing staff members, residents who resided in the hall where R6 did and physical therapy staff.

No one recalled the incident and no resident reported advances from staff. R6 was not interviewed since he said he did not recall it, nor was his wife.

The administrator concluded since there was no evidence of the incident, it was not reported to the state agency.

Resident’s wife is not satisfied

Because R6’s wife believed the facility had not addressed her concerns adequately and was “covering up this ‘harassment,’” she contacted the state agency herself about the incident.

Her complaint prompted the survey discussed here. During the survey, and 12 days after the incident was alleged, the administrator filed his report. Two days later, he filed a follow-up report with statements from many staff members who said they had not seen anyone kiss R6.

Ten days later, the administrator filed a second follow-up report, indicating a facility RN did kiss R6. The RN said she had kissed him on the forehead while he was walking in the therapy hall with a walker and a therapist.

The RN shared that she had talked with R6’s wife on his admission about his medical history. About one week later, the facility’s physical therapist asked that the RN talk with R6 and encourage him to try out therapy in the therapy room. The RN did document that interaction in R6’s medical record.

About a week later, the RN observed R6 walking with a walker with the therapist in the therapy hall. She kissed him on the forehead and told him “You are doing a great job!” The RN recalled that R6 smiled, did not say anything and did not seem upset.

Court of Appeals decision applies CMS regulations

The court, after evaluating CMS regulations and rules, opined that neither the facility nor R6’s wife claimed the incident was actual abuse, but that was not known at the time his wife reported the incident to the administrator.

Clearly, his wife shared with the administrator that her husband felt uncomfortable with the interaction. This type of conduct could have been included within the rule prohibiting mental and/or sexual abuse, requiring a report at the onset.

The administrator’s initial investigation was not thorough enough to have determined the incident was not abuse. In fact, the court continued, the administrator’s initial report did not contain any information from R6 himself, which is required by the applicable regulation. The facility then had no authority to assume the staff members’ responses to being interviewed “was the end of the matter.”

The facility also failed to implement its adopted policies against abuse and neglect in “significant ways, resulting in serious jeopardy to the welfare and safety of its residents.”

The court upheld the appeals board decision on all violations, and the facility’s petition was denied.

Implications for your practice

The kissing incident was an innocent expression of an RN’s happiness with the progress of one of her patients, but its result could have been avoided.

If you work in a nursing home certified by CMS regulations, you need to consider the following guidelines:

  • Know and follow the policies and procedures of your facility that are based on CMS.
  • Always document interactions with a resident and/or family member.
  • Take a resident or family member’s expressed concerns seriously, document them and notify the administrator or another designated administration member.
  • Carefully demonstrate your concerns for a resident or praise for resident accomplishments.
  • You may face a professional disciplinary action by your state board of nursing if a “kissing incident” results in a violation of your nurse practice act or rules. 

Take these courses about CMS regulations:

MACRA 201: Operationalizing CMS’s Merit-Based Incentive Payment System in Clinical Practice
(1 contact hr)
The Medicare Access and CHIP Reauthorization Act of 2015 (MACRA) is a comprehensive change to how Medicare Part B pays for NP, CRNA, CNS, physician, and physician assistant services. These changes, which update the Physician Fee Schedule, include a new Merit-Based Incentive Payment System (MIPS) as well as incentive payments for participation in alternative payment models (APMs). With payments in 2019 based off of 2017 data, it is imperative that providers learn how to operationalize MIPS into the practice.

Nurses Critical Since Reimbursement Dried Up for Catheter-Associated UTIs
(1.5 contact hrs)
Catheter-associated urinary tract infections (CAUTIs) are one of the most common hospital-acquired infections in the U.S. The Centers for Medicare & Medicaid Services discontinued reimbursing hospitals for the additional costs associated with treating patients for CAUTIs that are deemed to be hospital acquired. A CAUTI can add an extra two to four days of hospitalization and cost hundreds of dollars to treat. There are proven methods to reduce CAUTIs. This course informs nurses about CAUTIs in various settings, their causes, and prevention techniques.

HCAHPS Series: Value-Based Purchasing
(2.5 contact hrs)
With the passage of the Affordable Care Act of 2010, the healthcare system underwent a transformation from the pay-for-service to pay-for-performance model. The ACA established the hospital value-based purchasing program, or simply VBP. The VBP is an initiative from the Centers for Medicare & Medicaid Services to reward acute-care hospitals with incentive payments to create better clinical outcomes and lower cost for the care they provide to Medicare beneficiaries. This module discusses the VBP program and provides historical context of healthcare reform initiatives. 

 

 

 

 

By | 2019-05-20T16:32:46+00:00 May 20th, 2019|Categories: Nursing careers and jobs|19 Comments

About the Author:

Nancy J. Brent, MS, JD, RN
Our legal information columnist Nancy J. Brent, MS, JD, RN, received her Juris Doctor from Loyola University Chicago School of Law and concentrates her solo law practice in health law and legal representation, consultation and education for healthcare professionals, school of nursing faculty and healthcare delivery facilities. Brent has conducted many seminars on legal issues in nursing and healthcare delivery across the country and has published extensively in the area of law and nursing practice. She brings more than 30 years of experience to her role of legal information columnist. Her posts are designed for educational purposes only and are not to be taken as specific legal or other advice. Individuals who need advice on a specific incident or work situation should contact a nurse attorney or attorney in their state. Visit The American Association of Nurse Attorneys website to search its attorney referral database by state.

19 Comments

  1. Avatar
    Donna Rioux June 1, 2019 at 10:24 pm - Reply

    It’s a really sad day that caregivers cannot display pride, happiness and compassion physically. Having been in Oncology for 26 years, touch and a hug or kiss have provided meaning and acceptance…and it’s naturally human and soulfully expressive. Why does everything have to come down to the handful that are obsessed with making things more than they are? Are we losing out to social and political correctness?!?!?

    • Avatar
      Dawn Tucker Smith June 7, 2019 at 6:56 pm - Reply

      Amen! I personally went into nursing because of my love and compassion for people! What a sad sad day we live in!

  2. Avatar
    Vic J June 2, 2019 at 11:45 am - Reply

    This is so sad. It’s regrettable that a patient’s spouse felt uncomfortable with this interaction, and I would encourage any patient who feels that way to speak up so staff can immediately cease. But I wonder, where do we draw the line? Should I not hold a patient’s hand while they cry over a new diagnosis? Not rub a back or provide a hug when a loved one is lost? Are we supposed to remove all emotional responses of joy and sorrow from our work out of fear that a patient (or customer as our hospital now refers to them) who appears open to the gesture may be uncomfortable. That cheek kiss, hug, or hand hold is so important to so many people. I am thrilled when I see the nursing home staff share genuine emotion with my grandmother. It would be a shame to see the last of humanity drained from the art of nursing. Nursing is caring.

  3. Avatar
    Paul Price June 2, 2019 at 12:31 pm - Reply

    Our society has degenerated to the point that any display of affection is prohibited and viewed as abuse. We are now safer being enemies of one another. SAD! After 25 years of nursing I am leaving ASAP.

  4. Avatar
    LANETTE HYLE June 2, 2019 at 1:03 pm - Reply

    Pathetic!!!!! Obviously the Wife had issues and not the Patient!!!! Kiss to express what a good job an elderly patient is doing on his therapy!!!!! Take away the morning prayer, take away Christmas, Take away Easter and now take away innocent encouragement is appalling!!!! Glad I am retired now for as a Geriatric Nurse I have kissed many patients forehead, May be the only affection they get!!!! Sick if you think that is even close to fondling!!!!

  5. Avatar
    Terry Powell June 2, 2019 at 1:37 pm - Reply

    Good Information.

  6. Avatar
    Cyndy Taylor, R.N. June 2, 2019 at 3:47 pm - Reply

    In the near future, no sane person is going to want to be a nurse. We spend years, a great deal of money & time getting our education. Yet we are many times unappreciated, neglected & overlooked for our contributions. Patients may & do physically & verbally abuse us, including throwing feces, urine, etc. at us. We are sexually harassed at times by patients & staff. We are stretched enough to risk our patients’ safety, our licenses & our families’ futures. Yet we continue to try & do more with less, abuse our bodies, overload our minds & wound our spirits. I am grateful for my years of nursing. I am more grateful to be retired.

    • Avatar
      Vivian Smith June 4, 2019 at 11:04 pm - Reply

      So true Cyndy! I’m very ready to retire!!

  7. Avatar
    Toni June 2, 2019 at 6:47 pm - Reply

    This is really devastating, as kissing a persons cheek that has no one sometimes means the world to them, it means they are cared for. People are so ignorant sometimes. Giving nurses a bad name over caring is foolish. I would love to go back to the good old days, when nursing was wonderful and it meant something to people. Now it is just a way to get money. Makes me sick

  8. Avatar
    J. Shelton June 2, 2019 at 8:11 pm - Reply

    There is no excuse for this type of contact with a patient. He’s a client and not your grandfather. Are you a professional or are you a sitter?

  9. Avatar
    Alan Ailles June 2, 2019 at 10:07 pm - Reply

    What a bunch of nonsense. Shame on the courts!

  10. Avatar
    Wendy June 2, 2019 at 10:24 pm - Reply

    Another – Ring around the Rosey! Another way to get money!!!
    How about my right – when I’ve been hit, scratched, touched inappropriately, spit at and pulled in for a kiss!!!
    I would have been able to retire years ago!!!
    Litigation is why – health care costs soooooo much!!!

  11. Avatar
    Doug Goodman June 2, 2019 at 11:04 pm - Reply

    As a gay male, and a former RN, I have always been surprised that unwarranted touching, hugging, kissing, and the frequent use of “honey”, “sweetie”, etc., by female staff and nurses toward patients and male staff are viewed as normal and acceptable; behaviors that would have resulted in my termination or a lawsuit.
    Nursing schools and healthcare facilities need to educate better and enforce proper behavior for all staff members, male and female.
    As a nurse I was able to provide caring, empathetic, and professional care without hugs, kisses, etc.
    I’m glad these issues are now being addressed.

  12. Avatar
    Cecilia June 3, 2019 at 12:35 pm - Reply

    The world has gone a muck!

  13. Avatar
    jackie June 3, 2019 at 1:01 pm - Reply

    there is far too little human contact / compassion these days. I am weary of everything being labeled sexual harassment, even a supportive, albeit demonstrative, show of support for a resident of a nursing home. You can bet that some LTC residents are hungry for human interaction, considering the sterile environment they exist in.

    I am soooooo glad I don’t have to be politically correct with my dog, who I shower with kisses when the mood hits. she does the same to me when she is so inclined.

    jeez, what the world needs now is LOVE !!!

    PS I believe that Joe Biden is a touchy feely person, not a sexual stalker. The world sometimes makes mountains out of molehills.

  14. Avatar
    Melanie Gibson June 4, 2019 at 1:54 pm - Reply

    J.Shelton- I am a professional but I am also human! I show affection, kindness, and empathy. If you do not have these qualities and you are a nurse.. I suggest you find a new vocation. You sound like you’d be better suited to a desk. How many patients complain their doctors never touch them? Many I can assure you. Touch is an important part of this job. A hand to hold, a hug to support, a shoulder to cry on. You are wrong.

    • Avatar
      J. Shelton June 4, 2019 at 8:59 pm - Reply

      Touch IS important. But kissing is out of line.

  15. Avatar
    Dan June 4, 2019 at 3:28 pm - Reply

    I’m profoundly saddened by the ultimate ruling in this case! As an RN with almost 35 years in healthcare, reading this article literraly sickens my heart and soul; where are we headed as a society? Nursing is (or shall I say was) an empathetic, humanistic and altruistic calling to provide highly specialized care to those in need – the entire person – spirit, mind, body and soul. Sadly, societal norms are rapidly shifting away from the very root of humanity and nursing care has been denegrated to computer clicks and mechanical tasks without meaning or substance. Many from the new generation of nurses are more concerned with social media posts than critical alarms and patient “care” (whatever that looks like today). What a sad time for our profession….what would Florence Nightingale think? Ask many new-generation nurses that question today and you’ll likely be asked “What room is she in”?

  16. Avatar
    Connie C June 9, 2019 at 5:49 am - Reply

    I am a practicing RN for 40+ years and I love my job! I love working, I love being a nurse. I have always had great pride in being a nurse; it meant good things for 40 of those 46 years. With the poor quality of Nurses that are being pumped out of the Nursing schools, the hospitals turning into hotels calling patients “guests” or “clients”, and who are more worried about their “image” and health care grades, Medicare decreasing reimbursement causing hospitals to find ways for nurses and staffing in all departments, to do more with less, I am more recently ashamed of how health care and nursing has changed. I rarely admit I am a nurse anymore. It was once a well respected profession. Not so anymore. Quality of care is mediocre at best. I have done Neonatal ICU, heart / lung transplant nurse, ICU, flight nurse, case manager, clinical trials & research nurse, department director, and so much more and completely content with my career. I just think society is broke. Medicine is broke. All comments have valid points worthy of long discussions and debates. Nursing now is more about data collection instead of patient care, spending more time at the computer than at bedside. Very sad. So many more discussions need to happen.

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