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 …read more

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