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.
