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3-0900-17003-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF HEALTH
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In the Matter of Survey Date: November 28, 2005 |
RECOMMENDED DECISION |
The above matter was the subject of an informal dispute resolution
meeting conducted by Administrative Law Judge Kathleen D. Sheehy on March 30,
2006, at 9:30 a.m. at the Office of Administrative Hearings. The OAH record closed that day.
Marci Martinson, Unit Supervisor, Division
of Facility and Provider Compliance (DFPC),
Jo Ann Beard, General Counsel, Beverly
Enterprises, 381 South Lexington Drive, Suite 100, Folsom, CA 95630, appeared
on behalf of Moorhead Health Care Center (the facility). The following persons made comments on behalf
of the facility: Timothy Bush, Regional
Director of Operations; Peggy Fossen, Professional Services Consultant; Dave
Ericson, Administrator; and Kelly Danielson, Director of Nursing.
Under
Minn. Stat. § 144A.10, subd.16(d)(6), this recommended decision is not binding
on the Commissioner of Health. Under
Department of Health Information Bulletin 04-07, the Commissioner must mail a
final decision to the facility indicating whether or not the Commissioner
accepts or rejects the recommended decision of the Administrative Law Judge
within 10 calendar days of receipt of this recommended decision.
FINDINGS OF FACT
1. Resident
#1 is an 88-year-old woman who was admitted to the facility on April 1,
2000. Her diagnoses included
multi-infarct dementia, agitation, depression, diabetes, hypertension, and
hypothyroidism.[1]
2. Resident #2 is an 87-year-old woman who was admitted to the
facility on January 7, 2000. Her
diagnoses included psychosis and senile dementia. She was known to be combative and resistive
to care and physically and verbally abusive with staff.[2]
3. Resident
#4 is a 94-year old woman who was admitted to the facility on August 14, 2002,
with diagnoses including severe osteoarthritis in her shoulders and knees. Resident #4 has no cognitive impairments, but
was known to be difficult at times when interacting with staff and other
residents, verbally abusive, and difficult to redirect.[3] To transfer Resident #4 in and out of the
bathroom, facility staff must use a PAL lift.
4. Employee D is a nursing assistant who was born in
5. On July 6, 2005, at about 5:30 a.m., Employee D was
transferring Resident #2 from a recliner chair in the resident’s room into the
resident’s bed. Employee D reported to
the nurse on duty that as she transferred the resident to the bed, the length
of which was pushed against a wall, the resident fell against the wall and hit
her forehead. When the nurse went to
check her, the resident had a bruise above her right eye. The injury was documented in the resident’s
medical record as a hematoma about 1.5 cm in size; her physician and family
were notified; and a Minnesota Incident Report was completed, which contained
the conclusion that Employee D was instructed to use caution with resident
transfers and to use a gait belt at all times for control.[6]
6. In July or August 2005, a new licensed practical nurse (LPN)
who was caring for Resident #4 found the resident crying in her room. Resident #4 reported that Employee D had
abused her by using the PAL lift too roughly when moving her into the bathroom. The LPN wrote up this complaint on a
grievance form and left it in the mailbox of the director of nursing. The director of nursing has no record of
receiving this complaint; however, after this time, Employee D was not
scheduled to work with Resident #4 again.
In addition, the staffing coordinator knew of the incident and believed
the director of nursing had informed her that this resident did not want
Employee D working with her.[7]
7. On
September 9, 2005, at about 5:30 a.m., the night shift nurse requested that Employee
D wake up Resident #1 so that the nurse could give the resident some
medication. Employee D was irritated by
this request because she was not assigned to work with Resident #1, but
eventually she did awaken Resident #1.
The nurse gave Resident #1 the medication at about 5:45 a.m. and noticed
nothing unusual on Resident #1’s hands.
At about 6:15 a.m., Employee D came to the nurse and reported that Resident
#1 had a big bruise on her hand and was saying that someone had hit her. Upon examination, the nurse found a large
deep purple bruise about 14 cm by 10 cm on the top of Resident #1’s left hand
and wrist. The resident reported that
the “black girl” hit her. The resident
made a fist and a motion of striking with a fist. The day shift nurse reported the bruise to
the director of nursing, who immediately suspended Employee D during
investigation of the incident. The
resident’s family was notified about the bruise that morning.
8. The night shift nurse completed a Minnesota Incident Report
concerning this incident. The day shift nurse interviewed the night shift nurse
and spoke to the facility’s staffing person and another staff person. The director of nursing completed a
verification of investigation form indicating that she had interviewed Employee
D and that Employee D denied hurting Resident #1. The director of nursing noted there were no
complaints about Employee D. She
reviewed her performance evaluation, which indicated she provided good care,
and noted that no other staff saw or heard anything. The director of nursing made no reference to
the previous complaint of rough handling by Resident #4. Based on her assessment, the director of nursing
thought the bruise appeared to be traumatic in nature, as if the resident hit
her hand on the bed, wheelchair, or a railing in the hall. The director of nursing further indicated in
the resident interview/summary section of the form that the resident’s report
was “unpredictable” due to dementia and her cognitive impairments.[8]
9. The
facility’s policy, which is consistent with the Vulnerable Adult Act, requires
the executive director immediately to make an oral report to the common entry
point of any physical injury to a vulnerable adult that is not reasonably
explained. All investigative results are
to be reported to the executive director and the state agency within five days.[9] Although it concluded the cause of the bruise
was unknown, the facility did not report either the injury or the results of
its investigation to the common entry point.
10. On
September 21, 2005, Resident #1 told her psychiatrist that a nursing student
“hit me yesterday.” The psychiatrist
noted that she had obvious confabulation, was partially oriented to time but
not to place and was very limited in orientation to person.[10]
11. On
November 2, 2005, someone called the DFPC and complained that Employee D was
abusing residents at the facility. The
next day, DFPC visited the facility and interviewed a number of staff persons
and residents. When DFPC investigators
interviewed Resident #1 about the cause of her hand injury, she reported that
she did not know much about it. She also
said it was not a staff person who did it, it was a Negro girl. She said it happened in daylight while they
were on the way home from school. She
said the girl in question “looked like she was about my age—a school girl.” She demonstrated a karate-chop type motion on
her hand.[11]
12. DFPC investigators
interviewed Employee D. She denied
hurting Resident #1. She said she
noticed the bruise on Resident #1’s hand after she got Resident #1 up; in the
same interview she also said she noticed the bruise when Resident #1 was in bed. Investigators viewed these statements as
contradictory. With regard to Resident
#2, she said the bruise occurred when she was changing Resident #2 and turned
her against the wall. Investigators also
viewed this statement as contradicting information in the medical record, which
was that the injury occurred during the course of a transfer.
13. DFPC issued
tags F223 and F225 on November 4, 2005, with a scope and severity level of
immediate jeopardy.[12] The Department also made substantiated
maltreatment determinations against Employee D with respect to Residents #1,
#2, and #4.
14. The facility terminated Employee D’s
employment that day. The Immediate
Jeopardy tag was removed after she was terminated.
15. On
December 1, 2005, a speech therapy evaluation noted that Resident #1’s recent
memory was severely impaired.
16. On February 11, 2006, between 5:45 and 7:19
a.m., staff found another bruise on Resident #1’s right hand. It was smaller, but similar to the one found on
the left hand in September, measuring about 7 by 6 by 3 cm. The swelling was slightly indented, and
appeared to be due to contact with the corner of a table. When asked how it happened, Resident #1 said
“a black girl hit me.” When asked to
describe the person, she described a dark person with dark black hair, frizzy
and short. She said it had happened the
day before, after lunch, at the nurse’s station. No one of that description worked at the
facility. The only remaining black
nursing assistant at the facility was not working at the time.
17. The director of nursing completed a
Minnesota Incident Report regarding this injury. The resident’s room was modified so that no
sharp edges were within her reach while she was in bed, and her headboard was
padded.[13]
Tag F 225
18. A facility must ensure that all alleged
violations involving mistreatment, neglect, or abuse, including injuries of
unknown source, are reported immediately to the administrator of the facility
and to other officials in accordance with State law through established
procedures. The facility must have
evidence that all alleged violations are thoroughly investigated, and must
prevent further potential abuse while the investigation is in progress. The results of all investigations must be
reported to the administrator or his designated representative and to other
officials in accordance with State law within five working days of the
incident, and if the alleged violation is verified, appropriate corrective
action must be taken.[14] An injury should be classified as an injury
of unknown source when both of the following conditions are met: (1) the source of the injury was not observed
by any person or the source of the injury could not be explained by the
resident, and (2) the injury is suspicious because of the extent of the injury,
the location of the injury, the number of injuries at one particular point in
time, or the incidence of injuries over time.[15]
19. The
20. The source of the injury to Resident #2 in
July 2005 was observed and reported by Employee D to appropriate staff. There was no allegation of mistreatment,
neglect, or abuse, and it was not an injury of unknown source that was immediately
reportable to the common entry point.
21. The
facility documented the injury to Resident #2 and completed an incident report
in conformance with its policy.
22. In
July or August 2005 Resident #4 complained that Employee D was too rough in
using the PAL lift, and this complaint of abuse was put into writing and
provided to the Director of Nursing.
23. The
facility failed to keep the records concerning the complaint Resident #4 made
about Employee D and failed to ensure that the complaint of abuse was
thoroughly investigated. The facility
did not report this allegation of abuse to the common entry point.
24. The
source of the injury to Resident #1’s hand in September 2005 was not observed
by any person, and it was suspicious because of its size and the degree of
swelling. To comply with F 225, the
facility should have reported this injury immediately, and the results of its
investigation within five days, to the common entry point.
Tag F 223
25. A resident has the right to be free from
physical abuse.[17] The DFPC found that by failing to adequately
investigate and report the alleged abuse, the facility failed to ensure that
Residents #1, 2, and 4 were free from abuse.
26. In July 2005, when Employee D reported the
bruise on Resident #2’s forehead, there was no history that linked her in any
way to any previous injury to a resident.
Additional investigation or reporting at that time would not have prevented
the injury to Resident #2.
27. The
DFPC has not proved that additional investigation or reporting of alleged abuse
would, more likely than not, have prevented the complaint of rough handling by
Resident #4 or prevented the bruise to Resident #1’s hand.
Immediate Jeopardy
28. Immediate
jeopardy is a situation in which the provider’s noncompliance with one or more
requirements of participation has caused, or is likely to cause, serious
injury, harm, impairment, or death to a resident.[18]
29. The
facility’s failure to investigate the complaint of Resident #4 and the failure
to report the injury to Resident #1 to the common entry point created the
potential for serious injury, harm, impairment, or death to other residents in
the facility.
Based upon the exhibits submitted and the arguments made and for the reasons set out in the Memorandum that follows, the Administrative Law Judge makes the following:
RECOMMENDED
DECISION
1. That the citation with regard to F-tag 225
is supported, except with regard to Resident #2. The scope and severity determination of K, immediate
jeopardy, is supported.
2. That the citation with regard to F-tag 223 is not supported by the facts and should be deleted.
Dated: April 14, 2006.
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s/Kathleen D. Sheehy |
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KATHLEEN D. SHEEHY |
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Administrative Law Judge |
Reported: Tape-recorded (two tapes, no transcript)
MEMORANDUM
The Department based its findings of noncompliance on tag F223 on the assumption that Employee D had committed maltreatment with regard to all three residents, and its determination of immediate jeopardy was based on the fact that Employee D was still working there in November 2005. The merits of the maltreatment determinations are not reviewable in this proceeding, as the DFPC correctly pointed out at the commencement of the IIDR meeting. The appropriate focus in determining both the facility’s compliance with the F223 participation requirement and the immediate jeopardy determination is on the facility’s conduct and whether it could have prevented the harm that occurred.
The DFPC seems to be saying that in July 2005 when the bruise to Resident #2 was documented, the facility should have interviewed more staff and been in general more critical of the facts represented by Employee D, and that if the facility had done so it may have prevented the later incidents. If the facility had done more interviews of staff then, it may have learned that certain employees (F, J, and L) had “concerns” about Employee D, but no personal knowledge of any abusive treatment by Employee D toward residents. Or, the facility may have learned that many other employees, later identified by the facility, believe Employee provided quality care and would never harm a resident.[19]
The explanation provided by Employee D as to how the injury occurred was not so patently unbelievable that it should have been rejected outright, a maltreatment determination made, and Employee D fired on the spot. Employee D had no history of any complaints, and she had a glowing performance evaluation that praised her caring demeanor. None of the many employees who later were questioned by DFPC and the facility from November 2005 through January 2006 had witnessed any abusive care by Employee D toward a resident. It is unfounded assertion to say that if the facility had interviewed more staff at this time, it would have prevented future harm.
The facility clearly should have documented and investigated the complaint of rough treatment made by Resident #4 in July or August 2005. If the facility had done so, it might again have learned that employees F, J, and L had “concerns,” or it might have learned from other employees that Resident #4 frequently complained that facility staff were “mean” to her when they used the PAL lift correctly, and that she always complained about it because it caused her some discomfort under her arms and shoulders.[20] In either event, the record would have been better documented; it is speculative, however, to say that the facility should immediately have identified substantiated maltreatment and terminated Employee D based on these facts.
There were clearly significant failures in the facility’s investigation and reporting of the bruise to Resident #1’s hand in September 2005; however, no further incidents involving Employee D occurred after this time. And although DFPC maintains that events occurring after it issues citations are not relevant, Resident #1’s later statement that “the black girl” struck her other hand, months after Employee D had been terminated, is important. It provides some support to the facility’s conclusion that Resident #1 was not a reliable reporter and that Employee D was credible in denying that she had harmed Resident #1.
K.D.S.
[1] DFPC Ex. K-1.
[2] Facility book, Tab 9.
[3] Facility book, Tab 9, Social Service Quarterly note dated February 14, 2005.
[4] Facility book, Tab 11.
[5] Facility book, Tab 5.
[6] Facility book, Tab 8; DFPC Ex. M-56.
[7] DFPC Ex. O-103, O-105. See also O-101.
[8] Facility book, Tab 1.
[9] DFPC Ex. R-3; Facility book, Tab 10.
[10] DFPC Ex. K-5.
[11] DFPC Ex. K-38.
[12] DFPC Ex. G-1.
[13] Facility book, Tab 7.
[14] 42 C.F.R. §§ 483.13(c)(2) -(4).
[15] DFPC Ex. H-3.
[16]
[17] 42 C.F.R § 483.13.
[18] 42 C.F.R. § 489.3.
[19] DFPC Ex. G-8; Facility book, Tab 5.
[20] Facility book, Tab 9.