604 F.3d 445 (7th Cir. 2010), 09-3485, Fal-Meridian, Inc. v. U.S. Dept. of Health and Human Services

Docket Nº:09-3485.
Citation:604 F.3d 445
Opinion Judge:POSNER, Circuit Judge.
Party Name:FAL-MERIDIAN, INC., Petitioner, v. U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Respondents.
Attorney:J. Michael Grubbs (argued), Barnes & Thornburg LLP, Indianapolis, IN, for Petitioner. C. Douglas Ferguson, argued, Department of Health and Human Services, Office of the Chief Counsel, Chicago, IL, for Respondents.
Judge Panel:Before CUDAHY, POSNER, and EVANS, Circuit Judges.
Case Date:May 06, 2010
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 445

604 F.3d 445 (7th Cir. 2010)

FAL-MERIDIAN, INC., Petitioner,

v.

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Respondents.

No. 09-3485.

United States Court of Appeals, Seventh Circuit.

May 6, 2010

Argued April 12, 2010.

Page 446

J. Michael Grubbs (argued), Barnes & Thornburg LLP, Indianapolis, IN, for Petitioner.

C. Douglas Ferguson, argued, Department of Health and Human Services, Office of the Chief Counsel, Chicago, IL, for Respondents.

Before CUDAHY, POSNER, and EVANS, Circuit Judges.

POSNER, Circuit Judge.

The Meridian nursing home asks us to set aside a final decision by the Department of Health and Human Services that imposed a civil penalty of $7,100 on the nursing home for having violated a regulation under the Medicare and Medicaid provisions of the Social Security Act. 42 U.S.C. §§ 1302, 1395hh. The regulation requires a skilled nursing facility to " ensure that-(1) the resident environment remains as free of accident hazards as is possible; and (2) each resident receives adequate supervision and assistance devices to prevent accidents." 42 C.F.R. § 483.25(h). The size of the penalty was based on the Department's further determination that Meridian's violation of the regulation was " likely to cause ... serious injury, harm, impairment, or death to a resident." 42 C.F.R. §§ 488.301, 488.438(a)(1)(i).

It may seem odd that the nursing home would be seeking judicial review of such a tiny penalty, when its lawyer told us that the Department's determinations would not jeopardize the nursing home's license to serve Medicare and Medicaid patients. But the episode (which we're about to narrate) giving rise to those determinations has also incited a tort suit for wrongful death against the nursing home, and the home does not want the finding used to bolster a claim of negligence. Regulatory violations are not negligence per se but they are evidence of negligence. Beta Steel v. Rust, 830 N.E.2d 62, 73-74 (Ind.App.2005); Zimmerman v. Moore, 441 N.E.2d 690, 696-97 (Ind.App.1982). Meridian may also fear that the imposition of a civil penalty for an accidental death may make it harder to attract new residents.

A resident of the nursing home identified only as " B" (the Medicare administration tries to maintain patient anonymity in enforcement actions) was a 60-year-old woman covered by Medicare despite her relative youth. (The likeliest explanation for her coverage is that she had been receiving social security disability benefits for at least two years, which would entitle her to Medicare benefits. 42 U.S.C. § 426(b). In effect, a finding of total disability accelerates one's entitlement to federal old-age benefits, including Medicare.) B suffered from schizophrenia (perhaps other mental illness or impairments as well) and dysphagia, which means difficulty in swallowing. Her dysphagia was so serious that she could not safely consume

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any food or liquid (including water)-her attempt to do so might result in her inhaling it (" pulmonary aspiration" -the breathing of foreign matter into the trachea or lungs) and as a result strangling. And so a feeding tube, called a " PEG" (percutaneous endoscopic gastrostomy), had been inserted into her stomach through the wall of her abdomen.

Readmitted to the nursing home on February 22, 2008, after the implant of the feeding tube and with a " strict NPO" ( nil per os -" nothing by mouth" ) order by the hospital to the nursing home, B was placed in a room with another resident. That resident was required to take all her regular meals, plus snacks, in her bed in the room she shared with B. This placement of B turned out to be a serious error. For she had an irresistible, and possibly insane, compulsion to consume food and drink in the usual way. The conjunction of schizophrenia and dysphagia is not uncommon, and is extremely dangerous. See, e.g., J. Regan, R. Sowman, and I. Walsh, " Prevalence of Dysphagia in Acute & Community Mental Health Settings," 21 Dysphagia 95 (2006); T.K.S. Tan, " Dysphagia and Chronic Schizophrenia: A Case Report," 34 Singapore Med. J. 356 (1993). Had B been compos mentis, she could have eaten and drunk to her heart's content despite the danger; for a competent person has a right to refuse treatment. Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261, 278-79, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990). But her mental illness made her incompetent to make decisions about her health.

Between the date of B's readmission and her death two and a half weeks later, the nursing home's staff repeatedly witnessed her trying to eat and drink, including her roommate's food and drink, and sometimes succeeding. In fact on 18 occasions before B's death, she was observed by the staff to be eating or drinking (mainly the latter); and doubtless there were occasions, maybe many occasions, on which her infractions went unobserved or unrecorded. Yet apparently, as Meridian emphasizes, she had no untoward effects from her episodes of eating and drinking.

At some point in B's stay the staff revised her care plan to...

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