Barbourville Nursing Home v. United States HHS, 174 Fed. Appx. 932 (6th Cir. 2006)

The Court affirmed a $24,300 civil penalty after a U.S. Departmental Appeals Board found that a nursing home violated regulations creating immediate jeopardy to residents’ safety. In this case, the nursing home was found to be non-compliant with minimum standards of care based on unsanitary conditions in a manner that created immediate jeopardy.

“Federal regulations impose significant requirements on skilled nursing facilities, such as BNH, that choose to participate in Medicare and Medicaid. “Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care.” 42 C.F.R. § 483.25. “Substandard quality of care means one or more deficiencies related to participation requirements under . . . [42 C.F.R.] § 483.25, . . . which constitute either immediate jeopardy to resident health or safety; a pattern of or widespread actual harm that is not immediate jeopardy; or a widespread potential for more than minimal harm, but less than immediate jeopardy, with no actual harm.” 42 C.F.R. § 488.301.”

On appeal, the facility challenged the finding that its noncompliance created immediate jeopardy for residents. The Court cited Appendix Q, Guidelines for Determining Immediate Jeopardy, where CMS notes that only one individual need be at risk and that serious harm, injury, impairment, or death does not have to occur before considering immediate jeopardy. At the ALJ hearing, the finding of immediate jeopardy was justified in view of the observation that fecal material was pulled into or left in wounds. The facility’s defense that any infection would be treated was rejected after the government introduced evidence that even local infections can cause wounds to be slow to heal and involve more pain, which qualifies as severe harm. The facility also argued that an absence of infectious outbreaks in the past constitutes dispositive evidence that its program was effective. “Whatever the merits of the Facility’s past practices, the fact that behavior was directly observed that violated BNH’s own policies on infection control, as well as generally accepted medical techniques, simply overwhelms any circumstantial evidence of proper behavior in the past that BNH has mustered. Future injury caused by present mistreatment is simply not cured by claims of past virtue.”

Other Department Appeals Board decisions are at: http://www.hhs.gov/dab/decisions/browsedab.html.