Court upholds $84,000 fine for SNF that failed to report, investigate abuse

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Fines imposed by the Centers for Medicare & Medicaid on a skilled nursing facility that failed to report alleged abuse and neglect was “reasonable,” a federal court ruled last week.

In its opinion, the U.S. Court of Appeals for the Fifth Circuit upheld CMS' decision to fine Brenham Nursing and Rehabilitation Center for an incident involving a 101-year-old resident found covered with bruises from an unknown source.

Brenham didn't comply with Medicare participation requirements when it failed to report and investigate the resident's potential mistreatment, and implement policies to avoid future mistreatment, the court ruled. The facility wrongly assumed it had implemented abuse and neglect policies by training staff on the existence of the policies, according to the ruling.

“In its argument to the contrary, Brenham fails to recognize that ‘implement' is not limited to training ... the cited deficiency was largely grounded in Brenham's failure to effectuate its policies,” the ruling reads.

Two certified nursing assistants discovered the “extensive” bruising and swelling on the resident on April 22, 2013. The facility's director of nursing originally thought the bruising was caused by a medical condition, then concluded it had been caused by a lifting device. Brenham's management staff accepted the lift theory and didn't report any potential abuse or neglect to CMS, despite the fact that neither CNA admitted to using a lifting device and the device wasn't included in her care plan.

CMS originally fined Brenham $8,500 in “per instance” Immediate Jeopardy fines, but later replaced those fines with a per day penalty that lasted from when surveyors discovered the residents' bruising until almost a month later when the violations were corrected. By the end of that time, Brenham's fines totalled $84,400.

Brenham appealed the CMS and Department of Health and Human Services' decision to uphold the fines to the Fifth Circuit, citing a lack of evidence behind the violations. The facility also argued the CMS' decision to up the fines from a per instance basis to per day violated its right to due process.

The evidence behind the alleged abuse or neglect, as well as Brenham's violation of Medicare regulations by not reporting the incident, made the additional fines reasonable, the court said.