HEALTH FACILITIES DIVISION Lucas State Office Building 321 East 12th Street Des Moines, IA 50319-0083 (515) 281-4115 Phone (515) 242-5022 Fax TERRY E. BRANSTAD GOVERNOR RODNEY A. ROBERTS, DIRECTOR KIM REYNOLDS LT. GOVERNOR June 28, 2016 Via Electronic Mail Ms. Angela Kuda-Bruns Administrator Hubbard Care Center 403 South State Street Hubbard, IA 50122 INFORMAL DISPUTE RESOLUTION [IDR/IC] DECISION On the 8th day of June, 2016, an Informal Dispute Resolution [IDR] and informal conference [IC] was held in person before Ellen Akst Jones, Independent Reviewer, at the request of Hubbard Care Center (“the facility”). RE: FC # 6129 ATTENDING FOR FACILITY: Angela Kuda-Bruns, Administrator; Mary Knutson, RN, Director of Nursing; Deb Myhre, RN, Nurse Consultant; Kendall Watkins, Esq. ATTENDING FOR DEPARTMENT: Kathy Keiler, RN, Bureau Chief; Jolyn Meehan, RN, Program Coordinator; Hema Lindstrom, Compliance Officer BRIEF SUMMARY OF FACTS: This IDR/IC arises from the Department of Inspection & Appeals (“DIA”) issuance of a deficiency statement for violation of  Federal rules 483.13(b) and 483.13(c)(1)(i) (F 223), with a scope and severity of G level; together with corresponding state rule violations 58.43 and 58.43(1); and the imposition of a Class I Citation with a fine of $5,000; and  Federal rules 483.15(a) (F 241), with a scope and severity of G level; together with corresponding state rule violations 58.45 and 58.45(1); and the imposition of a Class I Citation with a fine of $3,500; The cited deficiencies were identified as a result of the Department’s investigation, concluded on April 22, 2016, of a self-reported incident. Telephone Number for the Hearing Impaired: (515) 242-6515 The F 223 tag is a deficiency founded upon the failure to ensure a resident’s right to be free from verbal, sexual, physical, mental abuse, corporal punishment, and involuntary seclusion; and violation of the requirement that a facility must not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion. The corresponding state rule provides that each resident shall receive kind and considerate care at all times and shall be free from mental, physical, sexual and verbal abuse, exploitation, neglect, and physical injury. Specifically, the Department concluded that the facility failed to ensure that each resident received kind and considerate care at all times and had been free from mental abuse. The F 241 tag is a deficiency founded upon the failure to promote care for residents in a manner and in an environment that maintains or enhances each resident’s dignity and respect in full recognition of his or her individuality. The corresponding state rules provide that residents shall be treated with consideration, respect, and full recognition of dignity and individuality, including privacy in treatment and in care for personal needs; and that staff shall display respect for residents. This incident arose from an event on March 16, 2016, when a staff member, Staff B, posted and distributed to approximately six co-workers a humiliating photo of a resident on Snapchat. The facts are not significantly in dispute. The resident had been admitted to the facility two weeks prior to the incident with dementia, among other diagnoses, and a BIMS score of zero out of 15. The resident could not advocate for himself/herself. The photo, taken with Staff B’s cell phone, showed an individual with his/her pants around his/her ankles covered with feces. The individual was recognized as a resident of the facility even though the face was not in the photo. The resident’s private parts were covered by his/her long shirt. The photo was titled “Shit Galore.” Upon receipt of the Snapchat photo, another employee called the Director of Nursing (“DON”), who was still on site. The DON immediately checked on the resident, removed Staff B from the resident area, and, together with the Administrator on the phone, interviewed Staff B. Staff B admitted that she had taken the photo with her cell phone (which was supposed to be kept in her locker), and indicated that she knew of the facility’s dependent adult abuse policy and the mandatory reporting requirements, and that this action was dependent abuse or neglect. She characterized it as a “stupid thing to do.” The facility notified the local sheriff’s office and police department. The facility suspended Staff B shortly after the incident occurred, and terminated her employment the following day. The termination document indicated that the employee’s behavior had been immoral, improper, or inappropriate, and violated the resident’s HIPAA privacy and security; that the employee had failed to maintain the confidentiality of resident information; and that the employee used her cell phone while on duty in the clinical area, which was also in violation of the facility’s policy. The facility’s Abuse Prevention and Identification policy stated that residents have the right to be free from abuse and must not be subject to abuse by facility staff. The facility updated this policy shortly after the incident to cover the situation that had just occurred. The facility’s Resident Rights policy indicated that residents would be treated with dignity. During the IDR/IC, the facility also outlined its policies and actions to prevent abuse and promote dignity of its residents, and its follow-up after the incident in question. These included, among others, appropriate screening of Staff B prior to employment; orientation and training of Staff B regarding abuse prevention and other policies; monitoring the Staff B’s performance over two years 2 of employment with no performance issues identified; immediate reporting of the inappropriate Snapchat photo by other staff to the DON; immediate initiation of an investigation and follow-up by the DON and Administrator, who reportedly cut her vacation short to address the situation; prompt suspension of Staff B; reports to the Department, sheriff’s office, and police department and notification of the resident’s physician; report to the resident’s wife and follow-up; and termination of Staff B one day after she was suspended. The facility had a detailed dependent abuse policy in effect at the time of the incident; the policy was updated subsequent to the incident to specifically define “exploitation” to include “transmission, display, taking of electronic images of the dependent adult by a care taker in a private or compromised situation (i.e. using the bathroom, changing clothes, personal cares) for a purpose not related to treatment or diagnosis or as part of an ongoing investigation.” In addition, regarding its survey history, the facility pointed out that it had three deficiency-free and four one-deficiency surveys in the past eight years, including a deficiency-free annual survey on March 10th, just prior to the incident at hand. The facility filed a timely report of the incident to the Department and the sheriff’s office as an Elder Justice Act report as well as a report of dependent adult abuse. The Department’s Health Facilities Division Abuse Coordinating Unit conducted a separate investigation of this incident. On May 17, 2016, it issued a finding that the dependent abuse allegation based on sex exploitation was unfounded because the photo the CNA transmitted “did not display any unclothed body parts specifically required in Iowa law to meet the definition of sexual exploitation.” The Abuse Unit did not identify any other basis for supporting a finding of dependent adult abuse, including a finding of unreasonable punishment, based on the statutory provisions regarding such abuse. Consequently, the perpetrator of this admittedly willful and “stupid” misconduct is not barred from working in other facilities. During the IDR/IC, the facility expressed outrage as a result of this outcome. The IDR/IC Process During the IDR/IC, both the facility and the Department were in complete agreement that the action by Staff B was highly egregious. The difference in perspective between the Department and the facility revolves around whether or not the facility should be held responsible for the actions of its employee, Staff B, regardless of the nature of the act, its foreseeability, and whether it falls within the scope of employment. The facility strenuously argued that the action of Staff B was totally outside the scope of employment and completely unforeseeable, and there was nothing the facility could have done to prevent it from happening. The facility presented several judicial opinions and Departmental Appeals Board decisions in support of its position that the Department effectively imposed vicarious liability for all actions of its employees, regardless of the nature of the act and whether it was in the scope of employment. The facility cited Oakwood Manor Nursing Center v. CMS,CR 818 (2001), in which the ALJ dismissed the deficiency under F 223, rejecting a prior opinion “to the extent that it supports the proposition that an isolated instance of abuse occurring at a facility is per se a failure by the facility to comply with requirements of 42 C.F.R. 483.13(b).” The judge concluded “…in deciding whether a facility has complied with 42 C.F.R. 483.13(b), the ultimate issue is not whether an incident of abuse has 3 occurred, but whether there is a failure (deliberate or negligent) of care by a facility to protect a resident from abuse or the potential for abuse.” The facility also cited Gateway Nursing Center v. CMS, CR1963, a 2009 case in which the ALJ removed the F223 deficiency, stating in part “The Board’s prior holdings reflect the conclusion that 42 C.F.R. 483.13(b) does not make a facility strictly liable for all incidents of abuse that may occur. In this case, I find that Petitioner did take reasonable steps to protect its residents…from abuse.” In addition, the facility cited Senior Care Beltline v. CMS, CR2592 (2012), in which the ALJ stated, citing earlier cases, “A limited number of defenses have been recognized for specific noncompliance, such as unavoidability, unforeseeability, and reasonableness. The Board has recognized, based mostly on interpretation of the regulations, that SNFs are not subject to enforcement remedies for unavoidable negative outcomes, or unforeseen or unpreventable circumstances that produce a risk for or an actual negative outcome.” Notwithstanding the cases presented, the Department strenuously asserted that the facility did not meet its duty to ensure the resident received kind and considerate care at all times, remaining free from mental abuse. The Department also stated that the facility verified resident abuse or neglect; that an employee is an extension of the facility; and that CMS considers staff and the facility as one and the same. The Department argued that the foreseeability concept should be discarded; otherwise facilities would not be responsible for their employees’ actions. The Department reiterated that the expectation is that residents should be free from abuse, and that the facility has to ensure that residents are treated with kind and considerate care. Two recent DAB decisions support the Department’s position. In Raphael Convalescent Hospital v. CMS, DAB CR4548, decided on March 17, 2016, the facility made similar arguments to those made by Hubbard Care Center: the actions of the employee were unprecedented by any conduct or actions which could remotely constitute physical or mental abuse of any resident; the employee’s actions were not foreseeable or avoidable; and the Director of Nursing acted swiftly and effectively, and made the appropriate reports. Nonetheless, the ALJ stated “Even assuming the CNA’s behavior was not foreseeable, Petitioner is still responsible for the actions of its employees. For the purposes of evaluating a facility’s compliance with the Medicare and Medicaid participation requirements, a facility acts through its staff and cannot dissociate itself from the consequences of its employees’ actions” (citing other DAB cases). The ALJ also rejected Petitioner’s strict liability argument. He then concluded “Although the DON acted quickly and effectively to address the abuse,… I find Petitioner culpable because a member of its staff abused an elderly resident, for which Petitioner was cited at the actual harm level.” The judge also noted that the facility had been out of compliance for the previous three recertification surveys, which is not the case with Hubbard. In another recent case, Talmadge Park, Inc. v. CMS, DAB CR4603, decided on May 6, 2016, the ALJ considered physical abuse of a resident by an employee. The Petitioner argued that it should not be held accountable because it properly trained and supported its staff to ensure appropriate interaction with residents, and it did “’everything it was required to do’ and should not be cited for abuse “simply because an abusive act allegedly occurred.’” The ALJ rejected these arguments, stating “Most dispositive, section 483.13(b) is unequivocal and means exactly what it says: each resident must be free from physical abuse. A single instance of abuse puts the facility out of substantial compliance with 42 C.F.R 483.13(b). The fact of the abuse, by itself, puts the facility out 4 of substantial compliance….” The ALJ also noted that in Talmadge, the facility had not established that it had adequately implemented its policies and adequately trained its employees, which differs from Hubbard Care Center. Classification of State Violations: The facility also argued that, even if the deficiencies are sustained, they do not amount to Class I violations. Correction of Factual Errors: The facility also requested a correction of certain factual errors in the 2567 and state statement. These included (1) the census of the facility, which was listed as 40 residents, when it should have been listed as 59; and (2) a notation that the survey was also conducted on March 30, 2016. DECISION OF INDEPENDENT REVIEWER: With regard to the deficiencies cited for violation of Federal rules 483.13(b) and 483.13(c)(1)(i) (F 223): Federal rule 483.13(b) provides that “[T]he resident has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion.” Federal rule 483.13(c)(1)(i) provides that “[T]he facility must not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion” (emphasis added). State rule 58.43 provides that “Each resident shall receive kind and considerate care at all times and shall be free from mental, physical, sexual, and verbal abuse, exploitation, neglect, and physical injury” (emphasis added). State rule 58.43(1) provides that “mental abuse includes, but is not limited to, humiliation, harassment, and threats of punishment or deprivation.” Careful review of all the documents provided and statements made at the IDR/IC lead to the conclusion that the resident’s right to be free from mental abuse was violated; the facility, acting through its employee, used mental abuse; and the resident did not receive kind and considerate care at all times and was not free from mental abuse. After thoughtful consideration, I respectfully find that the facility failed to show by a preponderance of the evidence reasons that would overturn the findings of a deficiency. Therefore, the F-223 tag, with a scope and severity of G level, together with corresponding state rule violations at 481-58.43 and 58.43(1) is AFFIRMED. Strict application of the regulations dictate this finding even though (1) the facility apparently took all reasonable measures to prevent resident abuse; (2) there is no evidence that the facility knew or should have known that Staff B might engage in such outrageous actions; (3) the facility promptly followed protocol after the incident was reported to ensure the safety of the resident, to complete the investigation in a very timely manner, to suspend and then terminate the employee; and to make all the necessary reports; (4) the facility has an excellent track record with respect to survey findings; and (5) the Administrator and Director of Nursing addressed the situation with a high degree of professionalism, competence, and compassion toward the resident and his/her family, qualities also evident at the IDR/IC. However, I believe the Department erred in classifying these violations as Class I. Section 481-56.12 of the Iowa Administrative Code provides that the Department may issue a citation for a Class I 5 violation “when a physical condition or one or more practices exist in a facility which are a result of multiple lesser violations of the statutes or rules, but which taken as a whole constitute an imminent danger or a substantial probability of resultant death or physical harm to the residents of the facility. “ The actions giving rise to this violation, as egregious as they were, do not amount to an imminent danger or a substantial probability of resultant death or physical harm. In addition, the state rules cited indicate that they are subject to Class II violations. The facility has demonstrated by a preponderance of the evidence that the violations cited do not amount to imminent danger or physical harm. Therefore, the Class I violation for rule violations at 481-58.43 and 58.43(1) and fine of $5,000 should be MODIFIED to be a Class II violation with a fine of $500. With regard to the deficiencies cited for violation of Federal rule 483.15(a) (F 241): Federal rule 483.15(a) provides that “[T]he facility must promote care for residents in a manner and in an environment that maintains or enhances each resident’s dignity and respect in full recognition of his or her individuality” (emphasis added). State rule 58.45 provides that “The resident shall be treated with consideration, respect, and full recognition of dignity and individuality, including privacy in treatment and in care for personal needs” (emphasis added). State rule 58.45(1) provides that “Staff shall display respect for residents when speaking with, caring for, or talking about them, as constant affirmation of their individuality and dignity as human beings” (emphasis added). A review of the documentation provided and statements made at the IDR/IC leads to the conclusions that (1) the resident was not treated with consideration, respect, and full recognition of dignity; and (2) staff (in this case Staff B) did not display respect for the resident whose photo she took and distributed via Snapchat. After careful consideration, I respectfully find that the facility failed to show by a preponderance of the evidence reasons that would overturn the findings of a deficiency. Therefore, the F-241 tag, with a scope and severity of G level, together with corresponding state rule violations at 481-58.45 and 58.45(1) is AFFIRMED. Again, strict application of the regulations dictate this finding even though the facility apparently used its best efforts to promote the dignity and respect of its residents. However, as with the F-223 tag, I believe the Department erred in classifying these violations as Class I. For the reasons outlined above, I find that the Class I violation for rule violations at 48158.45 and 58.45(1) and fine of $3,500 should be MODIFIED to be a Class II violation with a fine of $500. With regard the conclusion of the Department’s Abuse Unit that the allegation of dependent adult abuse by Staff B was unfounded: Both the Department and the facility expressed strong concern that Staff B is now free to work anywhere because there was no finding of abuse by the Department based on the statutory definitions. Apparently a revision of the statute (Iowa Code 235B) is warranted to cover the type of abuse that occurred in this case. During the IDR/IC, there was no mention of pursuing a charge of wanton neglect of a dependent adult under section 726.8 of 6 the Iowa Code. This section provides at subsection 1 “ A caretaker commits wanton neglect of a dependent adult if the caretaker knowingly acts in a manner likely to be injurious to the physical, mental, or emotional welfare of a dependent adult. Wanton neglect of a dependent adult is a serious misdemeanor.” While this discussion may be outside the scope of this IDR/IC, a desired outcome of this case is the prevention of further opportunities for dependent adult abuse in other facilities by Staff B or others who have been found to engage in equally egregious activities even though they do not meet the existing definition of dependent adult abuse. With regard to the factual errors in the 2567 and state citation: Both documents should be corrected to reflect the correct census of 59 residents and the correct dates of the survey, which included March 30, 2016. The enclosed amended 2567 report and the SOD (State Statement of Deficiencies) is reflective of the changes brought about by the IDR. Please submit a new plan of correction for the amended 2567 to Jolyn Meehan, RN, Program Coordinator with the Division of Health Facilities, within 10 days. The information may be the same as that contained in your original plan of correction. Please remit the amount of the penalty to the Department within five (5) working days after the date of receipt of this letter. Please send a check or money order for $1000 as the facility did not request the 35% reduction: Attention: Sue Bradley Iowa Department of Inspections and Appeals Division of Health Facilities Lucas State Office Building 321 E. 12th Street Des Moines, Iowa 50319-0083 If you wish to proceed with a formal evidentiary hearing before an Administrative Law Judge, please notify Hema Lindstrom, Compliance Officer, within five (5) working days of receipt of this letter. The CMS-2567 had no Federal enforcement actions; therefore, there is no further appeal available. CMS OVERSIGHT OF IDR’s Section 7212C of the State Operations Manual reads, “Since CMS has ultimate oversight responsibility relative to a State’s performance, it may be appropriate for CMS to examine specific informal dispute resolution decisions or the overall informal dispute resolution process to determine whether a State is arriving at a correct result. For dually participating or Medicare only facilities, informal dispute findings are in the manner of recommendations to CMS, and, if CMS has reason to disagree with those findings, it may reject the conclusions from informal dispute resolution and make its own binding determinations of noncompliance”. If CMS reviews the IDR decision, you will receive notification directly from CMS. 7 Respectfully, Ellen Akst Jones Independent Reviewer cc: Kendall Watkins, Esq., Davis Brown Law Firm Angela Kuda-Bruns, Administrator, Hubbard Health Care Jolyn Meehan, RN, Program Coordinator Hema Lindstrom, Compliance Officer Mindla White, Bureau Chief DeAnna Clingan-Fischer, Long-Term Care Ombudsman Katie Mulford, Long-Term Care Ombudsman Pam Railsback, Long-Term Care Ombudsman 8