Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
Aurora Chicago Lakeshore Hospital
Centers for Medicare & Medicaid Services.
Docket No. C-18-1331
Decision No. CR5480
The Centers for Medicare & Medicaid Services (CMS) terminated Aurora Chicago Lakeshore Hospital’s (Aurora or Petitioner) Medicare provider agreement because Aurora failed (1) to promote and protect its patients’ right to be free from abuse because Aurora did not conduct timely and/or complete investigations into multiple patient abuse allegations over a period of nearly a year and (2) to track and use data concerning those allegations to improve the quality of the care it provided to its patients. Aurora, which is a psychiatric hospital, requested a hearing to dispute the termination. Because I conclude that Petitioner was not in compliance with the Medicare conditions of participation applicable to psychiatric hospitals, I affirm the termination of Petitioner’s Medicare provider agreement.
I. Legal Framework
The Medicare program “provides basic protection against the costs of hospital . . . care” for individuals over the age of 65 who are eligible for Social Security retirement benefits and for individuals under 65 who meet other criteria. 42 U.S.C. § 1395c. In the Medicare program, a hospital is a “provider of services.” 42 U.S.C. § 1395x(u).
As such, each hospital seeking to participate in the Medicare program must file a provider agreement with the Secretary of Health and Human Services (Secretary) that meets certain statutory requirements. 42 U.S.C. § 1395cc(a).
In addition to the terms in the provider agreement, the Social Security Act (Act) provides other requirements for hospitals. See 42 U.S.C. § 1395x(e). Although psychiatric hospitals are distinct from hospitals generally, the Act makes most of the requirements for hospitals applicable to psychiatric hospitals. 42 U.S.C § 1395x(f)(2). The Act also specifies some requirements only applicable to psychiatric hospitals. 42 U.S.C § 1395x(f). Finally, the Act provides that the Secretary may establish “such other requirements as the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services in the institution.” 42 U.S.C. § 1395x(e)(9), (f).
The Secretary promulgated regulations establishing Medicare conditions of participation for hospitals. Each condition is composed of standards. The conditions and the standards reflect both the Act’s requirements as well as those imposed by the Secretary. See 42 C.F.R. part 482. Psychiatric hospitals must comply with the specific conditions of participation for psychiatric hospitals as well as all of the conditions of participation for hospitals, except for the condition found at 42 C.F.R. § 482.24. 42 C.F.R. § 482.60(b).
The Secretary contracts with state agencies to conduct periodic surveys to determine whether hospitals meet the conditions of participation. 42 U.S.C. § 1395aa(a); 42 C.F.R. § 488.10(a)(1). “The State agency will certify that a provider or supplier is not or is no longer in compliance with the conditions of participation . . . where the deficiencies are of such character as to substantially limit the provider’s or supplier’s capacity to furnish adequate care or which adversely affect the health and safety of patients.” 42 C.F.R. § 488.24(b). “The decision as to whether there is compliance with a particular requirement, condition of participation, or condition for coverage depends upon the manner and degree to which the provider or supplier satisfies the various standards within each condition.” 42 C.F.R. § 488.26(b).
Under delegated authority from the Secretary, CMS may terminate a hospital’s provider agreement if CMS determines that the hospital no longer meets the conditions of participation or the requirements of the provider agreement. 42 U.S.C. § 1395cc(b)(2); 42 C.F.R. § 489.53(a)(3). If CMS terminates a hospital’s provider agreement, the hospital may request a hearing before an administrative law judge (ALJ) to dispute the termination. 42 U.S.C. §§ 405(b), 1395cc(h)(1)(A); 42 C.F.R. §§ 488.24(c), 489.53(e), 498.3(b)(8), 498.5(b), 498.40(a)(1). Such an appeal is adjudicated under the provisions in 42 C.F.R. part 498. 42 C.F.R. §§ 488.24(c), 489.53(e). In a proceeding before an ALJ under 42 C.F.R. part 498, CMS must make a prima facie case that a provider failed to comply with a condition of participation, and, if this occurs, the provider has the burden of proving compliance by a preponderance of the evidence. Nightingale Home Healthcare, Inc., DAB No. 2784 at 11 (2017); Hillman Rehab. Ctr., DAB No. 1611 at 8
(1997); see Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004); Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004); Emerald Oaks, DAB No. 1800 (2001); Edison Med. Labs., Inc., DAB No. 1713 (1999); Cross Creek Health Care Ctr., DAB No. 1665 (1998).
II. Background and Procedural History
Aurora is a behavioral health hospital located in Chicago, Illinois, which has participated in the Medicare program as a psychiatric hospital.
The procedural history for this case is complex.
On July 27, 2018, the Illinois Department of Public Health (IDPH or state agency) conducted a survey of Aurora based on a complaint that Aurora was not in compliance with the condition of participation involving patient rights. CMS Ex. 7. IDPH concluded that Aurora failed to ensure that a patient’s complaint was documented and investigated, patients were informed that they were going to receive psychotropic medications, patient rooms were free of ligature risks, and safety rounds were completed as required. CMS Ex. 7 at 1-2. As a result, CMS issued an August 1, 2018 notice that Aurora was not in compliance with the Patient Rights condition of participation at 42 C.F.R. § 482.13 and “that the deficiencies are so serious they constitute an immediate threat to patient health and safety.” CMS Ex. 8 at 1. CMS indicated that it would terminate Aurora’s provider agreement on August 24, 2018, but allowed Aurora to submit a plan of correction (POC) to return to compliance. CMS Ex. 8. Petitioner timely submitted a POC. P. Ex. 2.
On August 23, 2018, IDPH surveyors conducted a revisit survey at Aurora but concluded that Aurora continued to be out of compliance with the condition of participation involving patient rights because Aurora failed to ensure that patients were free of ligature risks, doors were kept locked when not in use, and adequate monitoring was provided to a suicidal patient. CMS Ex. 9 at 1-2. On August 28, 2018, CMS extended the date of termination in order to review the results of the August 23 survey. CMS Ex. 10. On September 12, 2018, CMS issued an initial determination in which CMS concluded that Aurora was not in compliance with the patient rights condition of participation at 42 C.F.R. § 482.13. CMS Ex. 11. CMS noted that both surveys identified deficiencies that constituted immediate jeopardy to the health and safety of patients. CMS Ex. 11 at 1. CMS stated that it was terminating Petitioner’s provider agreement on September 28, 2018, and that Petitioner could appeal the initial determination by requesting an ALJ hearing. CMS Ex. 11 at 1-2.
On September 17, 2018, Aurora requested a hearing to dispute the termination. The Civil Remedies Division docketed the case under the number appearing in the caption of this decision and assigned it to Judge Bill Thomas. On September 24, 2018, Judge Thomas
issued an Acknowledgment and Pre-hearing Order establishing a prehearing submission schedule.
Petitioner submitted an unsolicited POC, dated September 22, 2018, to CMS related to the August 23, 2018 survey. P. Ex. 3. In a September 27, 2018 notice, CMS extended the date of termination to permit IDPH to conduct a revisit survey. CMS Ex. 12. On October 10, 2018, IDPH conducted another revisit survey and determined that, while Aurora’s deficient conduct no longer posed immediate jeopardy, Aurora was still not in compliance with the patient rights condition of participation at 42 C.F.R. § 482.13. CMS Ex. 13. On October 18, 2018, CMS set November 30, 2018, as the date for termination; however, CMS gave Aurora an opportunity to submit a POC. CMS Ex. 14. Aurora timely submitted a POC. CMS Ex. 2 at 2.
On November 20, 2018, I was assigned as the ALJ to hear and decide Aurora’s case.
On November 21, 2018, IDPH concluded another revisit survey as well as a new complaint survey. CMS Ex. 1. The complaint survey was based on complaints IDPH received and on published newspaper accounts concerning allegations of sexual and physical abuse of child patients at Aurora. CMS Ex. 19; CMS Ex. 61 ¶ 8. In a November 29, 2018 initial determination, CMS summarized its conclusions based on the survey.
On November 13, 2018, [IDPH] began a post complaint revisit survey to determine compliance with Medicare Conditions of Participation. Concurrently, IDPH began a substantial allegation survey at Aurora Chicago Lake [sic] Hospital based on complaints of sexual and physical abuse of child patients received since the October 10, 2018 survey. Based on our review of IDPH’s survey findings, we have determined that Aurora Chicago Lakeshore Hospital remains out of compliance with the following Medicare Conditions of Participation for psychiatric hospitals:
42 C.F.R. § 482.13 Patient Rights
42 C.F.R. § 482.21 Quality Assessment and
Performance Improvement Program
CMS Ex. 2 at 2. CMS also “determined that the deficiencies are so serious they constitute an immediate threat to patient health and safety. The deficiencies limit the capacity of [Aurora] to render adequate care and ensure the health and safety of [Aurora’s] patients.” CMS Ex. 2 at 2. CMS extended the date of termination to December 15, 2018, and advised Aurora that it could dispute the termination by requesting an ALJ hearing.
The Statement of Deficiencies (SOD), drafted by the IDPH surveyors, provided specific allegations in support of the two condition-level deficiencies. In regard to the condition involving patient rights, the SOD indicated that Petitioner failed to meet its obligation to ensure that its patients were kept free from all forms of abuse (42 C.F.R. § 482.13(c)(3)). The SOD specified that Petitioner’s compliance with that standard was sufficiently poor that Petitioner failed to be in compliance with the condition of participation at 42 C.F.R. § 482.13. The SOD provided detailed factual allegations concerning complaints of sexual and physical abuse made by patients in the Children’s Pavilion against other patients and Aurora staff, and Petitioner’s failure to investigate or take timely action in response to the complaints. CMS Ex. 1 at 1-13.
The SOD further identified that Aurora was deficient in the condition concerning a quality assessment and performance improvement program (42 C.F.R. § 482.21). Under this condition, the SOD indicated that Aurora failed to comply with the following standards within that condition:
42 C.F.R. § 482.21(a) Program Scope
42 C.F.R. § 482.21(b) Program Data
42 C.F.R. § 482.21(c) Program Activities
42 C.F.R. § 482.21(e) Executive Responsibilities
CMS Ex. 1 at 14-27.
On December 7, 2018, Aurora filed an amended hearing request to appeal the November 29, 2018 initial determination. Aurora also requested that I expedite the hearing because its provider agreement was due to be terminated on December 15, 2018.
On or about December 8, 2018, Aurora submitted an unsolicited POC to CMS. CMS Ex. 4. CMS responded in a December 11, 2018 letter that it had not requested the POC and that CMS would not conduct another revisit survey. CMS Ex. 3.
On December 12, 2018, Aurora requested that the United States District Court for the Northern District of Illinois (District Court) issue a temporary restraining order and a preliminary injunction to halt the termination of Aurora’s provider agreement while Aurora disputed CMS’s refusal to consider its December 8, 2018 POC before the District Court. CMS Ex. 53. Due to Aurora’s filing in the District Court, on December 14, 2018, CMS moved the date for the termination of the provider agreement to December 22, 2018. CMS Ex. 5.
On December 19, 2018, I held a prehearing conference with counsel for the parties and established an expedited briefing schedule with the expectation that I would hold a hearing on February 13-15, 2019.
On December 21, 2018, the District Court enjoined CMS from terminating the provider agreement until further order of the District Court. CMS Ex. 56. The District Court also ordered CMS to closely monitor Aurora and to “swiftly initiate termination proceedings should it find that a recurring violation of Medicare’s Conditions of Participation has occurred.” CMS Ex. 56 at 16-17. On December 26, 2018, in conformance with the District Court’s order, CMS stayed the termination of Aurora’s provider agreement until further notice. CMS Ex. 6.
On January 18, 2019, CMS filed its prehearing exchange in the present case, which included a Prehearing Brief, a motion for summary judgment, and 78 proposed exhibits (CMS Exs. 1-78). Of the 78 exhibits, four were written direct testimony for the following CMS witnesses who were all IDPH surveyors: Donna Boyle, RN (CMS Ex. 61); Terry Jones, RN (CMS Ex. 63); Rita Schubert, RN (CMS Ex. 65); and Heather Sizemore, RN (CMS Ex. 67). On February 1, 2019, Aurora filed its Prehearing Brief and opposition to CMS’s summary judgment motion, request to cross-examine CMS’s witnesses, and 21 proposed exhibits (P. Exs. 1-21). Aurora identified the following five witnesses from whom declarations were submitted: Niama Malachi, Psy.D. (CMS Ex. 57 and P. Ex. 7); Carol Peart (CMS Ex. 58); David Fletcher-Janzen (CMS Ex. 59); Peter Nierman, M.D. (CMS Ex. 60); and Genève Hein, M.D. (P. Ex. 1). On February 6, 2019, CMS filed objections to P. Exs. 4 and 5, and requested to cross-examine all of Petitioner’s witnesses.
On February 8, 2019, the parties filed a Joint Motion to Extend Hearing in which the parties requested that I vacate the hearing scheduled for February 13-15, 2019, for a variety of reasons, including to allow time for the parties to settle this case or to determine if the parties wanted to submit the case for decision based on the written record. On February 11, 2019, I issued an order in which I: denied CMS’s motion for summary judgment; sustained CMS’s objections to P. Exs. 4 and 5; admitted CMS Exs. 1 through 56, 62, 64, 66, and 68 through 78, and P. Exs. 2, 3, 6, and 8 through 21 into the record; provisionally admitted the written direct testimony for the parties’ witnesses into the record pending the cross-examination of the witnesses or the withdrawal of the request to cross-examine the witnesses (CMS Exs. 57 through 61, 63, 65, and 67, and P. Exs. 1 and 7; vacated the hearing set for February 13-15, 2019; and directed the parties to submit a joint status report by no later than March 1, 2019.
On March 1, 2019, the parties filed a Joint Status Report in which they reported that they were still in settlement discussions. The parties also provided new potential hearing dates. On March 6, 2019, I reset the hearing for May 29-30, 2019.
In an April 1, 2019 Joint Status Report, the parties stated that IDPH conducted a complaint survey from March 13, 2019 through March 21, 2019, and issued a SOD on March 26, 2019. On April 26, 2019, Aurora requested a hearing based on the March 26 SOD and sought consolidation of that matter with the present case. The Civil Remedies Division docketed the case under C-19-733. CMS moved for dismissal of the hearing
request because CMS had not yet issued an initial determination based on the SOD. CMS stated that it was seeking permission from the District Court to issue an initial determination to terminate Aurora’s provider agreement based on the deficiencies indicated in the SOD.
On May 23, 2019, the parties filed a Joint Withdrawal of Requests to Cross-Examine Witnesses & Petitioner’s Waiver of In-Person Hearing in which the parties requested that I cancel the hearing scheduled for May 29-30, 2019, permit the parties to file reply briefs, and decide this case based on the written record. On May 23, 2019, I issued an order in which I stated: “I accept Petitioner’s waiver of oral hearing. I grant the parties’ request that I decide this case based on the written record. See 42 C.F.R. § 498.66(a), (b). Therefore, the hearing scheduled for May 29-30, 2019, is cancelled.” I also provided the parties with the opportunity to file briefs and proposed findings of fact and conclusions of law. 42 C.F.R. § 498.66(d), (e). I informed the parties that these briefs must present their entire arguments and that any matters not raised and argued in the briefs was waived.
On May 30, 2019, I dismissed Aurora’s hearing request related to docket number C-19-733 because Aurora had no right to a hearing until CMS issued an initial determination.
In the present case, CMS and Petitioner timely filed their closing briefs (CMS Br. and P. Br., respectively) and their proposed findings of fact and conclusions of law. Petitioner also filed objections to CMS’s proposed findings of fact and conclusions of law.
On August 2, 2019, with permission from the District Court, CMS issued an initial determination based on the March 26, 2019 SOD, in which CMS stated that it would terminate Aurora’s provider agreement on August 19, 2019. On August 5, 2019, Aurora requested a hearing and the Civil Remedies Division docketed this case under C-19-1001. On August 15, 2019, IDPH surveyed Petitioner again, and on August 30, 2019, CMS issued another initial determination terminating Aurora’s provider agreement. Aurora requested a hearing to dispute that initial determination on October 23, 2019. That case was docketed under C-20-43. On October 25, 2019, I consolidated those cases together. Because this case is ready for decision, I did not consolidate it with those other cases.
The general issue in this case is whether CMS had a legal basis to terminate Petitioner’s Medicare provider agreement. The parties have agreed that the specific issue is: “Was Aurora in substantial compliance with the Medicare conditions of participation as of November 21, 2018?” May 20, 2019 Joint Stipulation of Facts and Issues at 1.
IV. Findings of Fact
My findings of fact are in italics and bold.
- Aurora has 161 licensed beds and treats patients in two buildings, one for adults and one for children. The “Children’s Pavilion has sixty (60) beds total among three separated units: (i) children under age 12 years of age, (ii) boys ages 12 and up, and (iii) girls age 12 and up.” May 20, 2019 Joint Stipulation of Facts and Issues at 1.
- Aurora is the largest provider of children’s mental health services in the Chicago area and is one of the few facilities in Cook County that serves children who are in the care of the Illinois Department of Child and Family Services (DCFS). CMS Ex. 58 at 2.
- Aurora’s policies regarding allegations of sexual and physical abuse require Aurora’s personnel to promptly document, report, thoroughly investigate those allegations, and send alleged sexual abuse victims to a hospital for appropriate medical care and the collection of evidence of the alleged abuse.
Aurora had several written policies in place related to sexually acting out behavior, sexual and physical abuse, and investigations and staff actions taken in response to allegations of such matters.
Aurora Policy # NS – 64 on Sexually Acting Out Behavior prohibits patients from participating in sexual acts while receiving treatment in Aurora’s facility and states that Aurora will “protect all patients from sexual advances, intimidation, or abuse from other patients. Evidence, including reports of any sexual intimidation or abuse will be dealt with as soon as possible.” CMS Ex. 25 at 1. The policy provides detailed procedures that Aurora staff must follow and, in emphatic bolded text, requires the following actions “[f]or all alleged incidents involving sexual behavior”:
- Aurora staff who receive “any information regarding alleged inappropriate sexual behavior” must report it “immediately” to the Charge Nurse and the Charge Nurse will notify the Nursing Supervisor;
- The Charge Nurse and/or the Nursing Supervisor will interview the patients involved in the alleged sexual behavior using specific questions to determine the exact behavior involved and whether it was voluntary or coerced;
- The Charge Nurse or Nursing Supervisor must notify Aurora’s Director of Clinical Services, Hospital Administrator, Risk Manager, Clinical Director, Medical
Director, and Chief Nursing Officer, and the attending physician for each patient “if indicated”;
- The attending physician or a designee will inform the patients’ families or guardians;
- The incident is documented in the patient’s medical record;
- An “occurrence report” is completed; and
- If the sexual behavior involves a minor, the Program Director/Nursing Supervisor calls the DCFS hotline to report the incident and completes a DCFS reporting form.
CMS Ex. 25 at 1-2. Aurora Policy # NS – 64 indicates that when there is alleged coerced sexual behavior:
- The alleged victim is to be taken to a hospital “as soon as possible”;
- If possible prior to taking the patient to the hospital, the Chicago Police Department must be contacted so there is an official report;
- If possible prior to taking the patient to the hospital, the patient is not to bathe, shower, or wash their genital area, or change their clothes; and
- If possible prior to taking the patient to the hospital, female patients should avoid voiding, but if necessary, the specimen should be saved in a clean catch container and taken to the hospital.
CMS Ex. 25 at 2-3.
Aurora Policy # NS – 79 on Patient Complaint and Grievance Process defines a patient grievance and complaint to include written or verbal complaints regarding abuse. CMS Ex. 27 at 1, 2. All verbal or written complaints regarding abuse or patient harm “are to be considered a grievance that requires immediate attention.” The policy aims toward resolution of any investigation into a grievance to be completed within 24 hours. CMS Ex. 27 at 3.
Aurora Policy # RI – 200 04 on Abuse, Neglect and Exploitation Reporting, Investigation and Response requires that “all allegations of abuse . . . will be investigated, rectified and reported to the indicated regulatory, credentialing or law enforcement agency as may be appropriate.” CMS Ex. 28 at 1. This policy requires Aurora’s Director of Risk
Management to promptly and objectively investigate all allegations of patient abuse “by interviewing individuals involved or witnessing the event and conducting a thorough review of the case and situation.” CMS Ex. 28 at 2; see also CMS Ex. 57 ¶¶ 7-8. Aurora’s Chief Executive Officer oversees that investigations are completed in a timely manner. CMS Ex. 28 at 2.
Aurora Policy # RM 01 on Occurrence Reporting states that an occurrence report will be completed for any happening that is not consistent with routine care of patients, including any adverse event involving a patient. CMS Ex. 29 at 1. For all occurrences, Aurora staff must complete an Occurrence Report and submit it to Aurora’s Risk Manager. CMS Ex. 29 at 1. Further, “[a]ll Occurrence Reports should be initiated during the shift in which the incident occurs.” CMS Ex. 29 at 1. Finally, the Risk Manager will review all Occurrence Reports to ensure accuracy and completeness of the information provided, and will log the incidents and provide monthly reports and data to the Performance Improvement Committee. CMS Ex. 29 at 2. The Performance Improvement Committee will review the information from the Risk Manager and “make recommendations for changes/follow up and report to other committees as warranted by type of occurrence.” CMS Ex. 29 at 2.
Finally, Aurora has a Sexually Acting Out Risk Reduction Mitigation Plan that provided for a plan involving a number of reforms, implemented as of November 10, 2017. CMS Ex. 32.
Aurora’s policies make it clear that staff are to react promptly to all allegations of abuse, physical or sexual, that investigations of all of the allegations will be swift and thorough, and that Aurora’s Performance Improvement Committee will evaluate data related to abuse and abuse allegations, and report the results of its analysis on a regular basis to the Medical Executive Committee to improve Aurora’s performance with regard to patient safety. CMS Ex. 31 at 5, 9.
- On December 11, 2017, Patients # 17, 19, 20, 21, 22, and 23 (P17, P19, P20, P21, P22, and P23) reported that Patient # 18 (P18) engaged in unwanted sexual touching and sexual advances; however, Aurora neither has written records that it conducted an investigation into these allegations, nor did it document any conclusions based on an investigation.1
P17 was a 12-year-old boy who was admitted to Aurora on November 26, 2017. P. Ex. 13 at 1.
P18 was a 17-year-old boy who was admitted to Aurora on December 3, 2017. P. Ex. 13 at 1.
P19 was a 17-year-old boy who was admitted to Aurora on September 28, 2017, with a diagnosis of major depressive disorder, recurrent severe without psychotic features. CMS Ex. 41 at 3.
P20 was a 17-year-old boy who was admitted to Aurora on December 6, 2017, with a diagnosis of major depressive disorder, recurrent severe without psychotic features. CMS Ex. 42 at 3.
P21 was a 15-year-old boy who was admitted to Aurora on December 3, 2017, with a diagnosis of major depressive disorder, recurrent, moderate. CMS Ex. 43 at 3.
P22 was a 15-year-old boy who was admitted to Aurora on December 7, 2017, with a diagnosis of major depressive disorder, recurrent severe without psychotic features. CMS Ex. 44 at 2.
P23 was a 16-year-old boy who was admitted to Aurora on October 28, 2017, with a diagnosis of intermittent explosive disorder. CMS Ex. 45 at 3.
On December 11, 2017, Aurora staff completed an Occurrence Report that documented allegations from P17, P19, P20, P21, P22, and P23 concerning unwanted sexual actions directed at them by P18. The report indicates that:
- P17 said P18 tried to touch P17’s penis during “free time.” Although P17 evaded the first attempt, P18 “went in [P17’s] pants” the second time.
- P19 said that P18 touched “all of us” on the buttocks in the day room.
- P20 alleged that P18 asked him to be his boyfriend and “tried to touch me down there.”
- P21 stated that P18 tried to touch his penis in the day room twice.
- P22 stated that P18 asked P22 to engage in a sexual act with him and, when P22 declined, P18 threatened to physically beat P22.
- P23 thought that P18 had touched P23 sexually while P23 was asleep.
P. Ex. 13 at 2. The report indicates that these events occurred on December 10, 2017; however, notations made on the report indicate that they actually took place on
December 11, 2017. P. Ex. 13 at 1-2. Finally, the report indicates that DCFS, therapists assigned to the patients, the patients’ guardians, and Aurora management were informed of the allegations.
Many of the patients’ progress notes also record the allegations of P18’s misconduct. In regard to P19, a December 11, 2017 progress note indicates that he reported being slapped on the buttocks by another patient and that both P19’s caseworker and DCFS were informed. CMS Ex. 41 at 54. There is also a December 11, 2017 progress note for P20 stating that P20 alleged that he was sexually touched by another patient and that P20’s parents as well as the DCFS hotline were informed. CMS Ex. 42 at 13. Further, a December 11, 2017 progress note for P22 states that P22 alleged that he was touched inappropriately by another patient, and that P22’s case worker as well as the DCFS hotline was called. CMS Ex. 44 at 10. Finally, a December 11, 2017 progress note recorded that P23 alleged that his roommate possibly touched him inappropriately and that P23’s case manager, a social worker, and the DCFS hotline were informed of the allegation. CMS Ex. 45 at 58.
Employee # 5 (E5), Aurora’s Director of Performance Improvement, Risk Management and Quality Improvement, testified that on December 11, 2017, she received a verbal report from Aurora’s Director of Clinical Services that there were multiple allegations that P18 engaged in inappropriate sexual conversations and touching with other patients. E5 further testified that she initiated an investigation and, on December 12, 2017, she spoke to each patient and “specifically inquired about the date of the incident(s), the location of the incident(s), the approximate time of the incident(s), whether or not someone else witnessed the incident(s), where staff were at the time of the incident(s), and whether there was any physical contact made during the incident(s). E5 also testified that none of the staff witnessed any of the alleged occurrences and, although E5 tried to review video surveillance footage to corroborate the allegations, due to “some outages” in the surveillance system, she was unable to do so. P. Ex. 7 ¶¶ 3, 50-53.
E5 testified to the content of her interviews with the patients on December 12, 2017. She indicated that she could not speak with P18 because he was discharged from Aurora on December 11, 2017. Further, based on her interviews, P18’s alleged conduct took place on December 3, 9, and 10, 2017, and not all on December 10 or 11, 2017, as the Occurrence Report indicates. P. Ex. 7 ¶ 51; P. Ex. 13 at 3.
Although E5’s testimony indicates that she completed all tasks required of her under Aurora Policy # RI – 200 04 on Abuse, Neglect and Exploitation Reporting, Investigation and Response, the record provides little support that she conducted prompt and thorough investigations into the allegations of P18’s misconduct, as required under that policy. CMS Ex. 28 at 2. Further, as CMS points out, although E5 testified that she “met with each patient on December 12 to verify that the allegation [she] received was true . . .,” and E5 testified in some detail to what P21 said, E5 did not explain how she met with
P21 on December 12, given that P21 had been discharged from Aurora on December 11, 2017. CMS Br. at 19; CMS Ex. 43 at 3, 17; P. Ex. 7 ¶ 51. Interestingly, Aurora indicated that P21 was either unavailable or uncooperative with the investigation, which contradicts E5’s testimony. P. Br. at 22. Ultimately, there is no documentation, other than E5’s testimony, that she interviewed anyone. In addition, the dates given by E5 as to when P18’s alleged inappropriate behavior occurred is inconsistent with the somewhat emphatic statements in the Occurrence Report that the inappropriate behavior all occurred on December 11, 2017. P. Ex. 13 at 1-2.
Because E5’s testimony is not supported by the record, including the investigative file Aurora produced at P. Ex. 13, I do not credit E5’s testimony of the detailed investigation she supposedly conducted. Consequently, I find that Aurora did not conduct complete investigations of six allegations of sexual abuse, which was required by Aurora policy. CMS Ex. 28 at 2.
- On January 21, 2018, P58 and another patient were in an altercation that caused P58 to bleed from her nose. Aurora has modest handwritten notations at the bottom of an Occurrence Report to substantiate the investigation into this matter; however, that investigation was limited to reviewing video footage and did not include witness interviews. There is no documentation as to the conclusions drawn from the investigation and no evidence that Aurora’s management evaluated this incident to improve its overall performance related to the prevention of physical abuse between patients.
P58 was a 16-year-old girl who was admitted to Aurora on January 19, 2018, with a diagnosis of disruptive mood dysregulation disorder. CMS Ex. 50 at 2.
A progress note from 3:10 p.m. on January 21, 2018, indicates that P58 was involved in a “physical altercation” with another patient that resulted in “bleeding from the nose. Ice was placed on [P58’s] nose and bleeding eventually stopped. [P58] was put in MD’s book to evaluate . . . [P58] is stable.” CMS Ex. 50 at 5. Shortly after this note was written, staff completed an Occurrence Report providing the same information as the progress note. P. Ex. 15 at 2. A second progress note entry on January 21, 2018, at 4:30 p.m. indicates that although P58 was separated from the other patient during the fight, P58 continued to threaten the other patient and indicated that she would fight her again. CMS Ex. 50 at 5. That note also indicated that P58’s mother was informed of the incident and medication was given to P58. CMS Ex. 50 at 5.
E5 testified that she reviewed the incident involving P58, which appears to have been limited to viewing video footage of the altercation and ensuring that there had been adequate staff present. P. Ex. 7 ¶¶ 71-74. The only documentation of E5’s inquiry are brief handwritten notes at the bottom of the Occurrence Report; however, neither those
notes nor E5’s testimony provides a date on which she reviewed the video footage.2 P. Ex. 7 ¶ 73; P. Ex. 15 at 2. The record neither shows that E5 conducted interviews with the witnesses nor contains findings from an investigation. Further, while E5 testified that she discussed P58’s altercation with another patient at Aurora’s daily management Flash meeting (P. Ex. 7 ¶ 72), there is no evidence of this or that Aurora’s Performance Improvement Committee evaluated this matter. Therefore, E5 did not conduct a prompt, objective, and thorough investigation as required by Aurora policy. CMS Ex. 28 at 1-2.
- On March 7, 2018, Patient # 1 (P1) informed his therapist that an Aurora employee had grabbed his neck and choked him. The therapist reported the allegation and the employee and two other witnesses were interviewed or made statements denying that P1 was choked. E5 issued an Investigation Report on April 28, 2018, concluding that P1’s allegation was unfounded.
P1 was a ten-year-old boy who was admitted to Aurora on March 2, 2018, with a diagnosis of disruptive mood dysregulation disorder. CMS Ex. 46 at 2.
During a therapy session with his parents on March 7, 2018, P1 alleged that an Aurora employee previously had grabbed him by the neck and choked him. Although his parents were skeptical of the allegation, P1 persisted that it was true. CMS Ex. 46 at 12. The therapist called the DCFS hotline and reported the allegations. CMS Ex. 46 at 14.
In a handwritten document dated March 7, 2018, there are statements obtained from individuals, including the employee that P1 accused of choking him, indicating that the employee had not choked P1. CMS Ex. 46 at 15. However, signed statements from the witnesses were not obtained until March 19 and April 24, 2018. CMS Ex. 46 at 4, 7. An Aurora Investigation Report dated April 28, 2018, indicates that P1’s allegation was unfounded based on witness statements and DCFS’s investigation. CMS Ex. 46 at 3; see CMS Ex. 46 at 5.
- On March 26, 2018, Patient # 3 (P3) and her father complained that on March 25, 2018, another female patient hit P3 and, in a separate incident on the morning of March 26, 2018, Aurora staff slammed P3 onto a bed, causing P3’s head to hit a headboard, while the staff gave P3 an injection. Documentation shows that Aurora’s investigation was sufficiently prompt and thorough under
its policies, although the documentation is very informal and, at times, difficult to read. Further, E5 did not complete a Critical Incident Review form for the March 25, 2018 incident, even though P3’s allegation of a physical assault was clearly substantiated. However, following the investigation, Aurora’s management required staff to take additional training from the Crisis Prevention Institute (CPI) on techniques related to physical holds and verbal de-escalation of agitated patients.
P3 was a 17-year-old girl who was admitted to Aurora on March 8, 2018, with a diagnosis of bipolar disorder, current episodic manic without psychotic features. CMS Ex. 47 at 2. P3 was discharged on the morning of March 21, 2018, but readmitted to Aurora in the afternoon of that same day. CMS Ex. 47 at 2-3.
On March 25, 2018, Aurora staff completed an Occurrence Report indicating that, on that date, another patient hit P3 in the face after P3 had been agitated, screaming, and yelling. P. Ex. 8 at 1-2. Staff “stopped the fight,” assessed P3 and determined that she was not injured, and informed a supervisor and P3’s mother. P. Ex. 8 at 2. In the part of the report entitled “For Risk Manager Use ONLY,” there is a note that this incident “Requires Investigation.” P. Ex. 8 at 2. A progress note for P3 written at 6:00 p.m. on March 25, 2018, provided similar information as the Occurrence Report. CMS Ex. 47 at 4. A March 26, 2018 progress note states that at 5:40 a.m., P3 left her room screaming and yelling that she had a headache and, after P3 refused ibuprofen, staff escorted her “downstairs to intake to avoid waking up and agitating other patients on the unit.” CMS Ex. 47 at 4. A progress note for P3 written at 1:27 p.m. on March 26, 2018, indicates that P3 told staff at the nursing station: “I’m sick and tired of being in this hospital and getting punched by sluts like her!” CMS Ex. 47 at 5.
A Patient Advocate Complaint/Grievance Form and a Patient Advocacy Report Form, both dated March 26, 2018, indicate that P3’s father was very angry and complained to the hospital that P3 “was attacked by another female patient.” CMS Ex. 47 at 9-10. P3’s father also alleged that a male Aurora staff member forcibly held P3 down to give her a shot, slamming P3 on the bed, where she hit her head on the headboard.” CMS Ex. 47 at 9-10. The Patient Advocacy Form indicates that the Patient Advocate will investigate both matters with staff who were on duty, watch the video of the assault incident, visit P3 to find out what happened, and meet with the nurse manager. CMS Ex. 47 at 9-10. E5 was present with the Patient Advocate and P3’s father. P. Ex. 7 ¶ 58.
E5 testified that she met with P3 on March 26, 2018. P3 told E5 that, in the morning, Aurora staff slammed her onto a bed when restraining her to administer an injection. This caused P3 to hit her head and elbow on the bed. P3 could not name or describe the staff involved in this incident. E5 further testified that the staff from the morning had left for the day; therefore, E5 could not interview them. Further, E5 concluded from P3’s medical records that P3 had been involved in an altercation with another patient that
morning and could not calm herself. Therefore, P3’s physician ordered an injection. E5 was able to identify staff present for the injection from the medical records. E5 also concluded from the medical records that P3 had bruising prior to her admission to Aurora, and the bruising reported on March 26 “was consistent” with the prior bruising; therefore, E5 concluded that she did not know whether P3 had new bruising. E5 testified that she later interviewed all staff who were involved with P3 on the morning of March 26, from the time that P3 had the altercation with the other patient until after the injection. Staff denied seeing anyone slam P3 onto a bed when injecting her, although one staff member stated that P3 tripped on the bed when trying to attack him just before the injection. E5 stated that there was no video footage because the “Seclusion Room” did not have a camera. E5 testified that as a result of this incident, Aurora’s senior leadership directed comprehensive CPI retraining for employees on techniques for physical holds of patients and verbal de-escalation. P. Ex. 7 ¶ 59-61.
Later on March 26, 2018, P3 was discharged from Aurora at request of P3’s parents, and P3 was transferred to another facility. CMS Ex. 47 at 3, 6.
In the present case, and unlike many of E5’s investigations that are discussed in this decision, E5 and/or the Patient Advocate appear to have several handwritten notes, including interviews with multiple staff members, to corroborate her efforts to investigate the allegations of employee abuse. CMS Ex. 47 at 11-16, 29; P. Ex. 8 at 5-11. Although these notes are not always easily read, dated, or signed, and E5 never comes close to compiling a formal investigation report, other than completing a Critical Incident Review form (CMS Ex. 47 at 30-31), they are sufficient to support E5’s testimony that a relatively complete and prompt investigation occurred. P3’s father was described as particularly enraged when he met with the Patient Advocate and E5, and such a meeting may have provided an impetus for action.
Although not discussed in detail in her testimony, the record indicates that there was also an investigation into the March 25, 2018, incident where another patient hit P3. CMS Ex. 47 at 11-15. However, it is unknown how quickly this investigation was accomplished because the record contains three documents entitled “Employee Statement,” which were signed by Aurora employees on June 16, 2018, nearly three months after the incident. CMS Ex. 47 at 24-26; P. Ex. 8 at 12-14. The record contains an undated handwritten note that seven employees, including the aforementioned three, need to “re-do their witness statement,” but the reason for this need is not stated. CMS Ex. 4 at 27. Further, the record does not contain the original statements from these witnesses or when they made those statements. However, one of the statements provides useful information from an eyewitness to the March 25 incident, indicating that P3 had been upset and another female patient went to P3’s room to talk, but P3 did not want to talk and pushed the other patient and staff out of the way to leave her room. The other patient was offended and “started attacking [P3] in the hallway.” CMS Ex. 47 at 24; P. Ex. 8 at 12. Despite such evidence, there is no record that E5 completed a Critical
Incident Review form for this situation, despite the fact that P3’s allegation of physical assault by another patient was substantiated.
- On June 13, 2018, Patient # 49 (P49) was pushed to the ground, punched, and kicked by another patient, but Aurora did not formally report this matter to any other entity, conducted a limited investigation, and took limited action in response to the attack.
P49 was an 11-year-old boy who was admitted to Aurora on June 4, 2018, with a diagnosis of disruptive mood dysregulation disorder. CMS Ex. 49 at 3.
A patient record indicates that at 2:00 p.m. on June 13, 2018, “[P49] was also attacked by another peer for no reason. Patient was assessed by the nurse and Dr. J. [P49] denies pain . . . . [E]ducation was done.” CMS Ex. 49 at 10. On June 13, 2018, staff completed an Occurrence Report indicating that another patient “pushed [P49] to ground and began punching and kicking him. [P49] covered his head with arms.” P. Ex. 14 at 1-2. E5 reviewed the Occurrence Report on June 14, 2018. P. Ex. 14 at 2.
E5 testified that she reviewed video footage of the incident. P. Ex. 7 ¶ 66. Her review of this footage is corroborated by notes jotted on a piece of paper that shows she first tried to view the video on June 18, 2018, but had to do so on June 19, 2018, because the video system was not functioning. P. Ex. 14 at 3. E5’s impression of the video were that the assailant committed an unprovoked attack on P49, but that staffing had been sufficient. P. Ex. 14 at 3. In her testimony, E5’s assessment was that the patient who attacked P49 had aggression that needed to be handled with an updated treatment plan. P. Ex. 7 ¶ 65. E5 also testified that she discussed this incident at a Flash meeting (i.e., a daily meeting of hospital management) the day after it occurred, which was days before she reviewed the video footage. P. Ex. 7 ¶ 66.
With the exception of what appears to be a handwritten scrap of paper, there is no evidence that E5 conducted a prompt and thorough investigation of the incident with P49. There is no Critical Incident Review form in the record and E5’s actions, as indicated on her written note, show limited and untimely review of video footage. Finally, although E5 testified that she suggested that the Chief Nursing Officer make sure “the patients’ treatment plans had all appropriate precautions and were updated based on the occurrence on June 13,” (P. Ex. 7 ¶ 69), the record neither shows that this request was made nor that the Chief Nursing Officer did as requested.
- On June 15, 2018, Patients # 8, # 9, # 13, and # 15 (P8, P9, P13, and P15, respectively), girls between the ages of 10 and 11 years old, reported unwanted sexual touching and sexual advances by Patient # 6 (P6), but Aurora did not formally report these matters until June 19, 2018, or investigate and implement precautions concerning P6 until June 20-21, 2018. Aurora’s investigation was cursory and limited.
P6 was an eleven-year-old girl who was admitted to Aurora on June 13, 2018, with a diagnosis of disruptive mood dysregulation disorder. CMS Ex. 33 at 2.
P8 was a ten-year-old girl who was admitted to Aurora on April 5, 2018, with a diagnosis of disruptive mood dysregulation disorder. CMS Ex. 37 at 2.
P9 was an 11-year-old girl who was admitted to Aurora on June 13, 2018, with a diagnosis of disruptive mood dysregulation disorder.3 CMS Ex. 48 at 3.
P13 was a ten-year-old girl who was admitted to Aurora on May 31, 2018, with a diagnosis of major depressive disorder, recurrent severe without psychotic features. CMS Ex. 39 at 2.
P15 was a 10-year-old girl who was admitted to Aurora on May 11, 2018. P. Ex. 9 at 21.
On June 15, 2018, an Aurora therapist heard multiple allegations against P6, one of which was that P6 touched P8’s buttocks and made her feel unconformable. P. Ex. 7 ¶ 34; P. Ex. 9 at 1-2, 12-14. In addition, the therapist heard from P9 and P13 that P6 asked them both to have sex. P. Ex. 9 at 1-2. Significantly, P13 shared a room with P6. CMS Ex. 39 at 20-22. P15 also reported that P6 touched her genital area. P. Ex. 9 at 2, 21, 23.
The therapist informed her supervisor, the Director of Clinical Service, but it was not until four days later, on June 19, 2018, that Aurora staff formally reported these allegations. P. Ex. 7 ¶ 34; P. Ex. 9 at 1-2, 8-9, 12-13, 15-16, 18-19, 21-22; CMS Ex. 33 at 22-24; CMS Ex. 37 at 3-4; CMS Ex. 39 at 20-22. The therapist indicated that P6 confirmed that she asked two other patients to have sex with her, but also stated that one
of the other patients engaged in touching with P6. CMS Ex. 33 at 24. At this point, an investigation still had not taken place because the reporting forms indicate that an investigation is to occur. P. Ex. 9 at 9, 13, 16, 19, 22; CMS Ex. 33 at 23-24; CMS Ex. 37 at 4; CMS Ex. 39 at 22. Although Aurora’s reporting of the allegations was slow, Aurora was a little faster in obtaining room block orders from a physician for P6 starting on June 17, 2018, and renewed through June 21, 2018. CMS Ex. 33 at 32, 34-35. A room block order means that P6 was given a private room. CMS Ex. 60 ¶ 15.
The Director of Clinical Service did not report the allegations to E5 until June 20, 2018. P. Ex. 7 ¶ 34; see P. Ex. 9 at 13. E5 testified that, on June 20, 2018, Aurora moved P6 to a new room, which did not have a roommate, and initiated sexual acting out precautions, including daily renewed orders for blocking P6’s room. P. Ex. 7 ¶ 35; P. Ex. 9 at 2, 11, 14, 17, 20. E5 testified that she “conducted an investigation that included Patients 6, 8, 9, and 13 and [E5’s] investigation efforts included: interviewing all involved patients and witnesses, interviewing all staff members present on the evenings of the alleged occurrence.” P. Ex. 7 ¶ 36. E5 testified that she “took notes regarding her investigation,” “attempted to review surveillance camera footage . . . .” P. Ex. 7 ¶ 36-37.
The record provides scant documentation to show that such an extensive investigation took place. P. Ex. 9 at 5-7. On June 21, 2018, a patient advocate appears to have questioned P6, P8, and P9, but was unable to question P13 and P15 because the latter was discharged and the former was unwilling to discuss the matter and later discharged. P. Ex. 9 at 10- 11, 14, 17, 20, 23. However, despite waiting until June 21, 2018, to conduct interviews, Aurora staff indicated that all complaints had been resolved by June 18, 2018, a day before an investigation was initiated. P. Ex. 9 at 10, 11, 14, 17, 20, and 23.
The record in this case shows that Aurora failed to timely report the allegations of inappropriate sexual conduct by a patient and to promptly and thorough investigate those allegations, as required by Aurora policy. CMS Exs. 25-28.
- Patient # 10 (P10), a 12-year-old girl, informed Aurora staff on August 27, 2018, that Employee # 2 (E2) had sexually touched her while in her room, and Aurora failed to conduct a complete inquiry into the allegations in violation of Aurora’s policies concerning the handling of sexual abuse allegations.
P10 was a 12-year-old girl who was admitted to Aurora on June 9, 2018, and discharged on September 11, 2018. Her diagnosis on admission was disruptive mood dysregulation disorder. CMS Ex. 38 at 2.
E2 was a mental health worker at Aurora who worked at the Children’s Pavilion through August 27, 2018. CMS Ex. 17; P. Ex. 7 ¶ 21.
On August 27, 2018, at 7:50 p.m., P10 reported to a counselor at Aurora that over the weekend of August 25-26, 2018, E2 closed the door to P10’s bedroom, placed her arm on his lap and touched her breast as she pulled away. CMS Ex. 38 at 12-15; P. Ex. 11 at 2. P10 stated that, on a previous occasion, E2 had told her that “he has a ‘big dick.’” CMS Ex. 38 at 15; P. Ex. 11 at 2. E2 was with P10 because he was on 1:1 observation of P10. CMS Ex. 38 at 15. The counselor reported P10’s statement and Aurora staff documented P10’s allegations within the next few hours. CMS Ex. 38 at 12-15; P. Ex. 11 at 1-2.
By August 28, 2018, various Aurora officials were notified of P10’s allegations, including E5. P. Ex. 7 ¶ 28; P. Ex. 11 at 2. DCFS interviewed P10 on August 28, 2018. P. Ex. 11 at 2. Also on August 28, 2018, E2 was moved from the Children’s Pavilion to Aurora’s building for adult patients. P. Ex. 7 ¶ 28; P. Ex. 11 at 2.
E5 conducted Aurora’s investigation. On August 28, 2018, E5 spoke with P10, who provided the same allegation to E5 that she had previously told staff. P. Ex. 7 ¶ 28; P. Ex. 11 at 7. Also on that date, E5 spoke with a staff member that P10 identified as a witness, but the staff member did not hear the conversation between P10 and E2. P. Ex. 7 ¶ 28; P. Ex. 11 at 6.
On August 29, 2018, E5 spoke with E2 over the telephone and he denied P10’s allegations. P. Ex. 11 at 4.
E5 attempted to review video surveillance footage, but the video system was not available. P. Ex. 7 ¶¶ 6, 29.
On September 3, 2018, E5 interviewed E2 again by telephone with DCFS Division of Child Protection investigators present because the investigators informed E5 that E2 had admitted to closing P10’s door. E2 stated to E5 that he closed the door but stood outside P10’s room to prevent P10 leaving her room. P. Ex. 7 ¶ 29.
Based on the investigation, E5 determined on September 7, 2018, that P10’s allegations against E2 were unsubstantiated. P. Ex. 11 at 2. E5 based her conclusion on “Staff denied allegation,” there were “no witnesses” and the video surveillance system was done. P. Ex. 11 at 2.
On September 21, 2018, E5 spoke again to the staff member that P10 identified as having heard E2 make inappropriate comments to her. This time, the staff member could not remember the incident between P10 and E2. P. Ex. 11 at 5.
In November 2018, E5 completed a Critical Incident Review form in which she stated that P10’s allegations were unsubstantiated. P. Ex. 7 ¶ 10; P. Ex. 11 at 3.
I find that Aurora’s investigation of P10’s allegations of sexual abuse was not a complete investigation. Aurora policy on investigating abuse required E5 to conduct an investigation that included interviewing the individuals involved and witnesses, and to thoroughly review the case and the situation. CMS Ex. 28 at 2. According to E5’s records from the investigation, it appears that E5 only asked a few questions to each potential witness and the alleged perpetrator. P. Ex. 11 at 4, 6, 7. In addition, E5 interviewed E2 twice by telephone and not in person, even though he continued to work at Aurora’s facility, albeit in another building. Further, E5’s documentation of the investigation is brief and unprofessional, and is mostly composed of informal notes. See P. Ex. 11. In fact, she admitted that it was due to the scrutiny of the news media that she completed a “re-review” of this and other investigations and finally filled out a Critical Incident Review form concluding that P10’s allegations were unsubstantiated. P. Ex. 7 ¶ 10; P. Ex. 11 at 3.
- Patient # 7 (P7), a seven-year-old girl, informed Aurora staff on September 8, 2018 and September 9, 2018, that Patient # 12 (P12), a 12-year-old boy, had sexually assaulted her, and Aurora did not send P7 to the hospital, initiate an inquiry into the allegations until September 11, 2018, conduct a complete inquiry into the allegations, or report the allegations to IDPH and the police until September 11 and 12, 2018, in violation of Aurora’s policies concerning the handling of sexual abuse allegations. While at the hospital, P7 also informed hospital staff that E2 had sexually assaulted her prior to the incident with P12, and Aurora, upon learning of this allegation, did not conduct a complete inquiry into the allegations.
P7 was a seven-year-old girl who had been voluntarily admitted to Aurora’s Children’s Pavilion on July 4, 2018. P7, who was in foster care, had an admitting diagnosis of disruptive mood dysregulation disorder. CMS Ex. 34 at 2, 55.
Patient # 12 (P12), a twelve-year-old boy, was a patient at Aurora in the same unit at the Children’s Pavilion as P74 . CMS Ex. 16 at 1; CMS Ex. 35 at 16.
Employee # 6 (E6) was a registered nurse who worked at Aurora and interacted with P7 in September 2018. CMS Ex. 17; P. Ex. 7 ¶ 13.
On July 26, 2018, P7 told an Aurora charge nurse that P12 came into P7’s doorway and exposed his genitals to her. An Aurora staff member counselled P7 on July 26, 2018, concerning this incident and explained to P7 the importance of telling adults when someone makes P7 feel unsafe. CMS Ex. 34 at 14-15, 53.
On September 8, 2018, P7 reported to an Aurora hospital aide that she was sexually assaulted by P12 when P7 went to P12’s room to tell him to be quiet. The hospital aide did not report P7’s allegation of abuse because the hospital aide thought he had seen P7 asleep in the dayroom during the time when the reported incident would have occurred. P. Ex. 7 ¶ 13.
A progress note from September 9, 2018, at 3:45 p.m., documents that P7 again reported to Aurora staff that P12 touched P7 improperly. The staff person with whom P7 spoke was E6. P7 stated that she went to P12’s room to tell him to shut up and P12 pulled P7 in, pulled P7’s pants down, and stuck his finger in P7’s vagina. CMS Ex. 34 at 20.
On September 9, 2018, at 4:42 p.m., E6 completed an Aurora Occurrence Report and at 4:45 p.m., E6 completed a Suspected Abuse/Neglect Reporting Form. CMS Ex. 34 at 7-8; P. Ex. 10 at 1-2. E6 stated on the forms that P7 said she went to P12’s room to tell him to shut up, but P12 pulled P7’s pants down and stuck “his finger in her vagina.” CMS Ex. 34 at 7, 9. E6 did not report the allegation of sexual abuse until September 10, 2018, at 8:30 a.m. CMS Ex. 34 at 8.
On September 11, 2018, E5 reviewed E6’s report and took steps to have P7 sent to the hospital. P. Ex. 7 ¶ 14. E5 testified that, on that same date, she initiated an investigation and reported the allegation to IDPH. P. Ex. 7 ¶¶ 15, 18. It was not until September 12, 2018, that E5 reported P7’s allegation to the police department. P. Ex. 7 ¶ 19.
On September 11, 2018, a physician ordered P7 transferred from Aurora to a hospital “for evaluation of reported sexual assault.” CMS Ex. 34 at 4, 11-12, 48. P7 arrived at the University of Illinois Hospital & Health Sciences System Emergency Department (ED) at 4:21 p.m. on September 11, 2018, three days after P7 first reported the abuse. CMS Ex. 35 at 3. An ED physician evaluated P7, noting that P7 was an inpatient at Aurora, a facility “that houses boys and girls aged 4-14 years in a shared unit with staff supervising.” CMS Ex. 35 at 1. An Aurora staff member accompanied P7 to the ED. CMS Ex. 35 at 1.
The ED physician summarized what P7 said:
Pt states that on Saturday 9/8/18, “[P12] sticked [sic] his finger in my private area.” [P12] is a 12 [year old] boy who is also a client at the facility. She stated he tried to drag her into his room. She then stated he pulled her into his room, and kicked her in the stomach. She kicked him back and pushed him back and ran. When asked if he touched her on any other part of her body, she shook her head no. When asked if he made her touch any part of his body, she said no.
She states it hurt when he touched her. She states she was “bleeding a little.” Pt states this has never happened before.
On Saturday, after it happened, she states she told a staff member (Miss Debbie). Pt states Miss Debbie and Mr. Shea (sp?) were in the day room; Mr. Nick was in the med room. She states she stayed in the day room after telling Miss Debbie until [P12] went to sleep. Pt states she is having pain in her stomach and pain in her private area. She states she feels like she has to throw up but has not vomited. She denies any difficulty peeing or pain with peeing. Denies bowel symptoms.
Interviewed the [Aurora] staff member alone. She was not present at the time of the event. She states that [P7] did report what happened on Saturday. She is unsure if a report was made or if it was reported to police or [the Illinois Department of Children and Family Services (DCFS)] at that time, but states it “is the protocol to make a report.” She is unsure if a written report was filed. When asked why the patient did not have a medical evaluation on Saturday, she states there is no doctor available on weekends; it is only a nurse. Staff member states Mr. Nick is a nurse. Miss Debbie and Mr. Shea are mental health workers.
CMS Ex. 35 at 1. After the initial assessment, P7 also told an ED nurse that: “[E2] touched her private area and ‘put his finger in my butt.’” CMS Ex. 35 at 16. The ED physician stated further:
Pt states she does not remember exactly when this happened, but maybe a week ago. She states she was taken to Ingalls Hospital for evaluation. DCFS updated with this information. Contacted by police regarding case. Police officer stated to nurse that report was made today at 1827. [ED social worker] involved. DCFS case worker in E[D] to evaluate and determine dispo.
CMS Ex. 35 at 16.
The ED physician noted during the examination that P7 had been in no distress, and was cooperative and answered questions. CMS Ex. 35 at 2. However, in preparation for discharge, P7’s attitude changed. DCFS personnel, with an ED social worker present, asked P7 if she felt safe returning to Aurora. The social worker noted:
Pt. stated “No, I don’t feel safe.” In writer’s opinion pt. appeared anxious and likely fearful of returning to [Aurora] after this incident. Pt. made several comments to multiple ED staff that she would not feel safe returning to [Aurora].
CMS Ex. 35 at 20. DCFS personnel contacted Aurora and arranged for a safety plan to be implemented, which included reassignment of E2 to the adult section of Aurora and 1:1 supervision of P12 while remaining in the same unit as P7. CMS Ex. 35 at 20, 23. Significantly, the social worker stated:
Writer expressed concern for this plan as the facility making this safety plan was the same facility that waited 3 days to seek care for the patient who reported sexual assault had occurred.
CMS Ex. 35 at 23. Despite the social worker’s best efforts, she was unable to secure a new facility to take P7. Given the situation, DCFS expressed that the only option was for P7 to return to Aurora. CMS Ex. 35 at 22, 23.
The ED discharged P7 in the early hours of September 12, 2018. The ED discharge document showed a diagnosis of sexual assault and noted that P7 had been cleared to return to Aurora “with a plan for safety.” CMS Ex. 35 at 14. The ED physician noted that she had “[c]oncern for delay in medical evaluation of patient, despite sexual assault being reported at the time it occurred. Pt with pain in vaginal area and abdominal pain. Concern for potential intra abdominal injury due to history of being kicked.” CMS Ex. 35 at 16.
At Aurora, on September 12, 2018, a physician signed a “Special Order” that there would be 1:1 supervision of P7 due to the allegation of sexual assault. CMS Ex. 34 at 13. Further, Aurora staff conducted 15-minute interval observations of P7 from September 12-16, 2018, and for part of September 18, 2018. CMS Ex. 34 at 21-25, 29. Aurora also placed P12 on 1:1 supervision. P. Ex. 10 at 2. P7 was discharged from Aurora on September 18, 2018. CMS Ex. 34 at 3, 149.
According to E5, after she learned of P7’s allegation against E2, E5 added this new allegation to her investigation of P12. E5 testified that she spoke with P12 and E2 and both denied P7’s allegations. E2 denied the allegation and denied working in the Children’s Pavilion on September 8, 2018. E5 confirmed that E2 had last worked in the Children’s Pavilion on August 27, 2018. P. Ex. 7 ¶¶ 16, 21.
By September 15, 2018, Aurora personnel’s inquiry showed that P7’s complaint was resolved because they found no evidence to substantiate that allegation from P7. P.
Ex. 10 at 17. During this inquiry, Aurora took statements from P12 and E2 that simply state they deny the allegations. P. Ex. 10 at 19, 21. There is a handwritten notation that video footage was reviewed and there were no occurrences where P7 entered P12’s room. P. Ex. 10 at 23; see P. Ex. 10 at 19. However, E5 admitted Aurora had limited video capabilities in September 2018. CMS Ex. 57 ¶¶ 29, 34.
According to E5, on September 11, 2018, she also “immediately began an investigation into the allegation, as well as a root cause analysis regarding the fact that two staff members had not sent [P7] to the emergency room for a rape evaluation.” P Ex. 7 ¶ 15. Aurora’s Root Cause Analysis indicated the flaws in the manner in which Aurora personnel responded to P7’s allegation of sexual abuse. P. Ex. 10 at 47-57. Although P7 reported the incident to a staff member and later spoke with a nurse, and a psychiatrist was informed, there was no subsequent order for P7 to be seen by a physician. Further, P7 was not sent to the ED immediately in accordance with Aurora’s policy. P. Ex. 10 at 49, 52. Aurora’s plan of action was to reeducate relevant staff on following the sexually acting out policy. P. Ex. 10 at 49, 56. On September 12, 2018, E6 received training on reporting patient allegations of inappropriate behavior and sexual abuse of a minor. P. Ex. 10 at 59.
The Aurora policies that E5 found staff violated would seem to include Policies # NS-64 on Sexually Acting Out Behavior, # NS – 79 on Patient Complaint and Grievance Process, and # RI – 200 04 on Abuse, Neglect, and Exploitation Reporting, Investigation and Response. I find that the record supports E5’s assessment that Aurora staff did not follow its policy in regard to P7’s allegations.
- Aurora policy requires that “reports of any sexual intimidation or abuse will be dealt with as soon as possible.” CMS Ex. 25 at 1. Neither the hospital aide on September 8, 2018, nor E6 on September 9, 2018, acted to deal with P7’s report of sexual assault quickly.
- Aurora policy required the hospital aide on September 8, 2018, to report P7’s allegations involving P12 “immediately” to the charge nurse, which did not happen, resulting in a breakdown of the entire abuse reporting process. CMS Ex. 25 at 1.
- Although P7 reported the incident with P12 again on September 9, 2018, to a nurse, that nurse, E6, failed to comply with the requirement that a patient subject to alleged coerced sexual behavior “will be taken to a hospital . . . as soon as possible.” CMS Ex. 25 at 2-3.
- Further, since E6 did not even report P7’s allegations until the next day, on September 10, 2018, E6 would have had time to contact the Chicago Police Department, as required by the policy, although by September 9, E6 could no
longer ensure that P7 preserved evidence of the alleged sexual assault by not changing her clothing or taking a shower. CMS Ex. 25 at 3.
- P7’s oral report of abuse to the hospital aide on September 8 and to E6 on September 9, 2018 “are to be considered a grievance that requires immediate attention,” which means that her report should have received “immediate priority and [been] investigated with efforts made toward resolution within 24 hours.” CMS Ex. 27 at 3. Further, Aurora’s Director of Risk Management was required to promptly and objectively investigate all allegations of abuse and report them to IDPH. CMS Ex. 28 at 2. However, due to Aurora’s staff not acting promptly, E5 did not commence her investigation and did not report P7’s allegations to IDPH until September 11, 2018.
Further, the record does not support that E5 conducted a prompt and complete investigation. E5 appears to have placed much confidence in deciding that P7’s allegations were not proven by reviewing videotape from September 8. P. Ex. 10 at 11, 23. However, as mentioned above, E5’s testimony shows that the video footage is hardly comprehensive or conclusive. Further, E5 seemed to accept a statement from E6 that P7 allegedly recanted her allegation when E6 asked P7 questions. P. Ex. 7 ¶ 13. However, E6 failed to document that alleged recantation, making E6’s statement suspect, especially since E6 was later subjected to discipline for violating Aurora’s procedures. In any event, E5’s acceptance, without documentation, that P7 recanted may have reduced her interest in fully investigating the matter.
In addition to accepting E6’s statements at face value, E5 appears to have done the same thing with her interviews of P12 and E2. E5 testified that she interviewed P12, who denied the allegations. P Ex. 7 ¶ 16. And the documentation in the record reflects simply that P12 and E2 denied the allegations. P. Ex. 10 at 19, 21. It does not show that she asked any probing questions of these individuals. In short, the record reflects less than complete interviews with the alleged perpetrators.
In regard to E2, E5 testified that E2 denied P7’s allegation and denied working in the Children’s Pavilion on September 8, 2018. E5 also testified that she confirmed that E2 had last worked in the Children’s Pavilion on August 27, 2018, due to allegations of sexual abuse by P10. P. Ex. 7 ¶¶ 21, 28; P. Ex. 11 at 2. However, P7 did not say E2’s conduct happened on September 8, but instead said she did not remember when it happened, “but maybe a week ago” (from September 11). CMS Ex. 35 at 16. E5 should have considered the fact that it was well within the realm of possibility that a seven-year-old psychiatric patient could have mistaken a week ago for two weeks ago, when E2 was still at the Children’s Pavilion. Instead, E5 appears to have accepted the fact that E2 was not in the Children’s Pavilion on September 8, 2018, as conclusive that P7’s allegation was unfounded.
I find that the record supports the conclusion that Aurora’s staff, at nearly every turn, failed to properly handle P7’s complaint of sexual assault. The ED physician and social worker both expressed concerns over Aurora’s conduct, and those concerns were substantiated by the fact that Aurora failed to follow its own policies regarding complaints of sexual assault, including the conduct of an appropriate investigation. Further, P7 had previously informed Aurora staff that P12 had exposed himself to her and Aurora staff told P7 that reporting that conduct was correct. Two months later, P7 reported P12’s alleged sexual assault, which was consistent with P7’s previous complaint, yet Aurora’s staff acted with disbelief and indifference.
- Aurora exposed patients to potential abuse by E2 because Aurora did not suspend him from working at Aurora until October 8, 2018, and only did so at DCFS’s insistence.
On August 27, 2019, P10 alleged that E2 had touched her inappropriately. Aurora transferred E2 from its Children’s Pavilion to its adult building. However, P7 also alleged sexual abuse by E2, which could have taken place during approximately the same timeframe as the alleged incident with P10. However, Aurora continued to allow E2 to work in the adult building of Aurora, heavily based on E2’s denial of the two separate complaints made against him. Aurora ultimately suspended E2 in October 2018, but only because DCFS requested that action. CMS Ex. 24 at 1; P. Ex. 7 at ¶¶ 23, 28; P. Ex. 11 at 2.
- Patient #16 (P16), a 16-year old teenager, informed Aurora staff on September 25, 2018, that P16 had sexual intercourse with another patient on August 27, 2018. Aurora failed to conduct a complete inquiry into the allegations in violation of Aurora’s policies concerning the handling of sexual abuse allegations.
P16 was a 16-year-old transgender teenager, who was admitted to Aurora’s adolescent boys unit on August 29, 2018, with a diagnosis of disruptive mood dysregulation disorder. CMS Ex. 40 at 2. During a therapy session on September 25, 2018, P16 alleged that P16 had sexual intercourse with another patient on the second day of P16’s admission. P. Ex. 12 at 4. An Aurora occurrence report was prepared by Aurora staff on September 25, 2018, and E5 reviewed the report on the morning of September 26, 2018. P. Ex. 12 at 3-4. On September 26, 2018, staff completed another Aurora occurrence report, which provided essentially the same allegation, but indicated that P16 was placed on precautions for a patient who was sexually acting out, and on 1:1 observation. P. Ex. 12 at 2.
E5 interviewed P16 on September 27, 2018, but P16 would only confirm the original allegation he made and would neither provide the time and location of the sexual encounter nor the name of the other person involved. P. Ex. 12 at 11; P Ex. 7 ¶ 45;
see CMS Ex. 40 at 3 (duplicate at 10, 14). Aurora had informed DCFS and an investigator from the agency was unable to learn any additional information from P16. P Ex. 7 ¶ 46. However, P16 provided the name of the other patient with whom P16 had intercourse to another DCFS investigator in December 2018, and the investigator corroborated P16’s allegation with the other patient. P. Ex. 7 ¶ 47. In the interim, E5 had attempted to review video surveillance footage, but the system did not work and the footage could not viewed. P. Ex. 7 ¶ 47.
Aurora policy is that “no patient shall participate in any sexual acts while undergoing treatment . . . .” CMS Ex. 25 at 1. While P16’s alleged sexual intercourse may have been consensual, that was not known or determined. E5’s investigation was limited to trying to obtain information from P16, and did not include further inquiry of others who might know information. As with most of E5’s investigations, there is limited documentation and none showing that she questioned Aurora staff to learn what they might know. See CMS Ex. 40 at 11 (duplicate at 15).
- Patient # 92 (P92), a 19-year-old woman, informed Aurora staff on November 14, 2018, that she had been raped by a male patient and, although Aurora staff documented the allegations and reported the allegation to various internal personnel and external agencies, Aurora failed to conduct a complete inquiry into the allegation in violation of Aurora’s policies concerning the handling of sexual abuse allegations.5
P92 was a 19-year-old woman who was admitted to Aurora on November 2, 2018, with a diagnosis of bipolar disorder, current episodic manic severe with psychotic features. CMS Ex. 51 at 20.
On the morning of November 14, 2018, P92 reported to staff that approximately a week or two weeks earlier, she was raped in her hospital room by a male patient. P. Ex 7 ¶ 76; P. Ex. 16 at 11. Aurora staff completed an Occurrence Report at 11:35 a.m. on November 14, 2018, and informed the Chief Nursing Officer of P92’s allegations. Staff stated in the Occurrence Report that P92 alleged that another patient raped her after she had fallen asleep. Staff asked P92 to write a statement about the incident. P. Ex. 16 at 2.
In what appears to be P92’s statement, P92 indicated that a patient named Terrence forced P92 to have sex with him. P92 alleged that he had entered her room when she was away and, when P92 tried to take a nap, he grabbed her, removed her pants, and had sex with her on the bed. P. Ex. 16 at 12-13. The Chief Nursing Officer informed E5 of P92’s allegations on November 14, 2018. P. Ex 7 ¶ 76.
Progress notes for P92 dated November 14, 2018, indicated that she reported a sexual assault/rape and that a physician gave an order to send P92 to the hospital. An Aurora staff member accompanied P92 to the hospital. CMS Ex. 51 at 39. P92 appears to have been taken to the hospital on or before 2:50 p.m. CMS Ex. 51 at 40; see also P. Ex 7 ¶ 77.
By 7:40 p.m. on November 14, 2018, Aurora staff completed a Suspected Abuse/Neglect Reporting Form in which staff stated P92’s allegation of being raped. Staff indicated on the form that P92 “was sent for examination.” CMS Ex. 51 at 25.
P92 returned from the hospital later in the day on November 14, 2018. At 9:42 p.m., P92 was discharged from Aurora. CMS Ex. 51 at 20, 40. Although P92 was scheduled for discharge from Aurora on November 15, 2018, P92 instead transferred “to another inpatient psychiatric unit at [another hospital] in the context of the patient stating that she was not feeling safe in this hospital.” CMS Ex. 51 at 22, 40.
E5 testified that she initiated her investigation on November 14, 2018, by obtaining P92’s written statement concerning her allegation and checking the dates that her alleged assailant was admitted and discharged from Aurora. P. Ex 7 ¶ 79. The alleged assailant was admitted from November 2, 2018 to November 8, 2018, which meant that E5 could not interview that former patient. P. Ex 7 ¶¶ 79-80.
Although P92 returned to Aurora on the evening of November 14, 2018, before being discharged, E5 did not interview her as part of her investigation. P. Ex 7 ¶ 84.
On November 15, 2018 at 3:23 p.m. and 4:01 p.m., E5 informed IDPH and the Chicago Police Department of P92’s rape allegation, respectively. CMS Ex. 51 at 7-19; CMS Ex. 67 ¶ 4; P. Ex. 7 ¶¶ 82, 83; P. Ex. 16 at 9.
According to an investigation check list that E5 completed, by November 17, 2018, E5 and Aurora’s CEO reviewed video from November 2, 2018 through November 8, 2018, i.e., the dates of admission for the alleged assailant. They did not find footage of a male patient entering P92’s room during those dates. P. Ex. 7 ¶ 81; P. Ex. 16 at 5. The investigation check list also indicates that E5 viewed the video again with a DCP investigator. P. Ex 7 ¶ 85; P. Ex. 16 at 5.
E5 stated that staff were to be reeducated on Aurora’s sexually acting out policy and its policy on reporting abuse. CMS Ex. 67 ¶ 5; P. Ex. 16 at 2. E5 noted on the November 17, 2018 investigation checklist that all clinical staff will complete sexually acting out training. P. Ex. 16 at 5.
Despite E5’s indication on the November 17, 2018 investigation checklist that video footage had been viewed, Heather Sizemore, RN, one of the state surveyors at the November 2018 survey, testified that she interviewed E5 and that “as of November 19, she had not yet started an investigation of the assault. Additionally, at the time of our interview on November 19, she had not yet looked for video to substantiate the allegation.” CMS Ex. 67 ¶¶ 2, 5.
There is limited documentary support for E5’s testimony concerning her investigation into P92’s allegations. Her written testimony did not expressly provide the dates when she allegedly viewed the video recordings. There is a handwritten record, which is difficult to decipher. It is possible that it supports review of the video by November 17, but the page also notes dates of November 20, 21, and 26. P. Ex. 16 at 7. Most of the documentation is cursory and simply restates P92’s allegations. Further, there is no documentary evidence of interviews conducted with Aurora personnel concerning the rape allegation, despite an Aurora employee being identified on Aurora’s Investigation Checklist as a witness. P. Ex. 16 at 5. Therefore, the record supports the finding that Aurora did not conduct a prompt and thorough investigation of P92’s rape allegation in violation of Aurora’s policy. CMS Ex. 28 at 2.
- Aurora’s Performance Improvement Committee neither tracked nor discussed data regarding allegations/incidents where patients had been sexually acting out.
According to Aurora’s policy on its Performance Improvement Plan, “the organizational Performance Improvement Plan allows for a systematic, coordinated, continuous data driven approach to improving performance . . . .” CMS Ex. 31 at 1. “The program consists of these focus components: performance improvement, patient safety, quality assessment/improvement and quality control activities. Collaborative and specific indicators of both processes and outcomes of care are designed, measured and assessed by all appropriate departments/services and disciplines of the facility in an effort to improve patient safety and organizational performance.” CMS Ex. 31 at 3. The scope of the organizational performance improvement program includes, among other topics, “Adverse Events” and “Safety Management.” CMS Ex. 31 at 3-4. Through the policy, Aurora “delegates the oversight responsibility for performance improvement activity monitoring, assessment, and evaluation of patient care services provided throughout the facility to the Performance Improvement Committee.” CMS Ex. 31 at 5. There is also a Safety/Environment of Care Committee that operates independently, although with authority designated by the Performance Improvement Committee, to “us[e] internal and
external knowledge and experience, to prevent error occurrence, [and] maintain and improve patient safety.” CMS Ex. 31 at 6. Ultimately, the Performance Improvement Committee’s “findings, conclusions, recommendations, actions taken to improve performance and the results of actions taken are documented and reported through established channels” and “will report to the Medical Executive Committee on a monthly basis, their analysis of the quality of patient care and services provided throughout the facility.” CMS Ex. 31 at 9.
As mentioned earlier, Aurora Policy # RM 01 on Occurrence Reporting states that the Risk Manager will review all Occurrence Reports to ensure the accuracy and completeness of the information provided, and will log the incidents and provide monthly reports and data to the Performance Improvement Committee. CMS Ex. 29 at 2. E5 testified that “for each investigated incident, an occurrence report is completed. The occurrence report describes the allegations, summarizes the information that was obtained during the initial aspects of the investigation and summarizes the action taken to ensure patient health and safety, both individually and system wide.” P. Ex. 7 ¶ 8. The Performance Improvement Committee will review the information from the Risk Manager and “make recommendations for changes/follow up and report to other committees as warranted by type of occurrence.” CMS Ex. 29 at 2.
Finally, Aurora has a policy on Clinical Adverse Events that requires all clinical Adverse Events that could result in litigation to be reported to Aurora’s Corporate Office. CMS Ex. 30 at 1. Examples of Clinical Adverse Events include: “Sexual abuse or assault including rape (unconsented sexual contact involving a patient and another patient, staff member, or other perpetrator while being treated or on the premises of the hospital) or alleged sexual abuse or assault, including rape” and “Sexual encounter or alleged sexual encounter between minors.” CMS Ex. 30 at 2.
There is little doubt that Aurora policy requires the Performance Improvement Committee to consider serious issues, such as sexually acting out behavior and sexual abuse, because the performance improvement program includes areas such as “Adverse Events” and “Safety Management.” CMS Ex. 31 at 3. However, while Aurora’s Clinical Risk Management Report tracks a variety of events, including “Assaultive Episode with Injury” and “Assaultive Episode without Injury,” it does not specially track instances of patients sexually acting out. CMS Ex. 21. Donna Boyle, RN, one of IDPH’s surveyors, testified that E5 said during an interview that instances where patients sexually act out are placed in the “other” category on the Clinical Risk Management Report. CMS Ex. 61 ¶ 15; see also CMS Ex. 24 at 6 (Surveyor Boyle recounting that E5 stated during an interview that “Inappropriate sexual behavior is monitored as adverse events, however they are indicated.”). As CMS points out, despite this statement, the Clinical Risk Management Report does not have an “other category.” CMS Ex. 21; CMS Br. at 29. Further, Aurora’s Occurrence Report has a box to indicate if the incident involved sexually acting out, making Aurora’s choice not to track that information difficult to
understand given that Aurora’s policy on Occurrence Reporting indicates that monthly reports and data will be provided to the Performance Improvement Committee. CMS Ex. 29 at 2; e.g., P. Ex. 8 at 1; P. Ex. 9 at 1.
The Performance Improvement Committee meets monthly and maintains minutes of those meetings. CMS Ex. 22. In regard to instances of patients sexually acting out or sexual abuse allegations, the minutes have sparse information showing that the Performance Improvement Committee even discussed those matters. Surveyor Boyle testified that E5 conceded the Performance Improvement Committee did not consider those matters:
In an interview on November 15, [E5] stated that incidents of abuse are monitored and discussed in Aurora’s Performance Improvement meetings. We showed her minutes of those meetings and noted that the minutes do not show any discussion of abuse complaints or efforts to reduce the risk of physical or sexual assaults. About an hour later, [E5] returned to our workroom. I specifically recall that she put her hands in the air and said “I concede” that patients who were sexually acting out and patient abuse allegations were not discussed in the Performance Improvement meeting, as summarized in my notes (CMS Ex. 24 at 7). [E5] did assert that incidents were discussed in unidentified “corporate” meetings.
CMS Ex. 61 ¶ 16. I credit Ms. Boyle’s testimony because she documented E5’s statements, Rita N. Schubert, RN, another surveyor, corroborated Ms. Boyle’s testimony, and E5 did not contradict Ms. Boyle’s testimony in her own testimony. CMS Ex. 24 at 5, 7; CMS Ex. 65 ¶ 4; P. Ex. 7.
There are meeting minutes from March, April, May, June, and July 2018, that contain monthly “Dashboard” data provided by E5 on “Assaultive episode[s]” with and without injury. CMS Ex. 22 at 20-21, 33-34, 46-47, 60-61, and 71. However, there is no evidence that this information was discussed because the columns next to this information, with the heading of “Action Taken/Follow-up Required,” is blank. Further, these are the same categories of information tracked on the Critical Risk Management Report; therefore, sexually acting out behavior was not included in those assault categories. The minutes from the August 16, 2018 and September 27, 2018 meetings mention the following “Action Item” regarding the “Dashboard Report”: “Follow up to assaultive injuries to patients need to be added to the report.” CMS Ex. 22 at 81, 93. Significantly, Aurora staff’s multiple violations of policy with regard to the handling of P7’s allegation of sexual abuse in early September merited no discussion at the September meeting. CMS Ex. 22 at 85-96.
Although in 2018 the Performance Improvement Committee did not concern itself with allegations of sexually acting out behavior and only collected certain information regarding assaults, E5 testified that she reviewed the investigations that she was conducting with Aurora’s CEO weekly. When E5 completed an investigation, E5 would present the entire investigation for the CEO to determine if any further investigation was needed. E5 testified that she reviewed with the CEO the investigations into allegations of abuse related to P3, P6-P10, P13, P16-23, P49, P58, and P92. P. Ex. 7 ¶ 5.
E5 also testified that Aurora’s leadership had daily, i.e., Monday through Friday, “FLASH” meetings at which they discussed administrative issues, events, and occurrences at the hospital, and created plans of action to address issues requiring attention. CMS Ex. 57 ¶ 38. According to E5, the leadership “always reviewed incidents, accidents and allegations” and “address[ed] situations and monitor[ed] interventions to ensure trends are being addressed.” CMS Ex. 57 ¶ 36. Some of the senior leadership who attended the FLASH meetings included the CEO, Chief Nursing Officer, Chief Financial Officer, Medical Director, Clinical Director, and E5. CMS Ex. 57 ¶¶ 37, 39. E5 stated that she took notes at these FLASH meetings but, if she did, Aurora did not submit copies of those notes for the record in this case. CMS Ex. 57 ¶ 42.
Aurora’s CEO and Chief Financial Officer testified that they regularly attend FLASH meetings and described them in similar terms as E5. CMS Ex. 58 ¶¶ 27-32; CMS Ex. 59 ¶¶ 16-24. The Chief Financial Officer stated that she takes notes at FLASH meetings and attached copies of her notes from various dates between early November and early December 2018. CMS Ex. 58 ¶ 32. These notes are brief in the extreme, what information they convey is unclear, and they relate to a period of time that overlaps with only one of the allegations of abuse discussed in this case; therefore, these notes do not shed any light on how Aurora leadership handled that matter. CMS Ex. 58 at 7-19.
V. Conclusions of Law and Analysis
My conclusions of law are in italics and bold.
- Aurora did not comply with the condition of participation at 42 C.F.R. § 482.13 (Patient’s rights).
Hospitals that participate in Medicare “must protect and promote each patient’s rights.” 42 C.F.R. § 482.13. This condition contains eight standards requiring hospitals to safeguard various rights (e.g., development and implementation of plans of care, use of patient restraints, confidentiality of patient records, patient visitation).
In the present case, the surveyors and CMS charge that Petitioner violated the condition regarding patient rights because Aurora failed to protect and promote its patients’ right to privacy and safety. 42 C.F.R. § 482.13(c). Specifically, CMS alleges Aurora’s numerous
instances of failing to properly investigate and take proper action after receiving complaints of sexual and physical abuse show that Aurora failed to make certain that its patients were “free from all forms of abuse or harassment.” 42 C.F.R. § 482.13(c)(3).
As discussed below, Aurora’s noncompliance with the requirement to ensure its patients’ right to be free from abuse and harassment is severe enough to put Aurora out of compliance with the patient’s rights condition of participation at 42 C.F.R. § 482.13.
- Aurora did not comply with the Privacy and Safety standard at 42 C.F.R. § 482.13(c) because Aurora did not safeguard its patients’ right to be free from abuse and harassment.
Although Congress specified a number of statutory requirements with which psychiatric hospitals must comply, Congress also required that they “meet such other requirements as the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services in the institution.” 42 U.S.C. § 1395x(e)(9), (f)(2). In fulfilling his duty to create requirements to ensure the health and safety of patients in hospitals, the Secretary promulgated a regulation on privacy and safety, and included in that regulation the requirement that hospitals promote and protect patients’ right to be free from all forms of abuse or harassment. 42 C.F.R. § 482.13(c)(3).
Because it appears that there are no previous decisions interpreting 42 C.F.R. § 482.13(c)(3), it is useful to consider the Secretary’s responses to public comments when he promulgated that regulation. The following outlines the Secretary’s purpose for this regulation.
We believe that patient respect, dignity, and comfort are the foundation of the expectations outlined by the regulation—freedom from all forms of abuse and harassment, the right to privacy, and the right to care provided in a safe setting. As we have noted earlier, these standards are intended to provide protection for the patient’s physical and emotional health and safety.
64 Fed. Reg. 36,070, 36,075-76 (July 2, 1999) (emphasis added).
As to the specific language used in § 482.13(c)(3), the Secretary chose to say that patients will be “free” from abuse, rather than just “protected” from abuse (as some commenters suggested) because “[w]hile the patient is under the hospital’s care and on its property, the hospital is responsible for ensuring the patient’s health and safety and his or her physical, emotional, and psychological well-being.” 64 Fed. Reg. 36,076 (emphasis added). In response to a comment that “hospital personnel will not always be able to anticipate the potential for harassment and harm inflicted by another patient,” the
Secretary stated in clear terms that “[w]e recognize that any sort of abuse, including verbal, physical, psychological, sexual, and emotional, is unacceptable.” 64 Fed. Reg. 36,076 (emphasis added). I view such a statement to mean that hospitals have little leeway when failing to ensure patients are free from all forms of abuse.
The Secretary’s uncompromising position that hospitals are responsible for keeping their patients free from abuse led CMS to consider how this should be accomplished. CMS said in its guidance to state agency surveyors that “[t]he hospital must have mechanisms/methods in place that ensure patients are free of all forms of abuse” and “suggested as necessary [the following] for effective abuse protection:
- Prevent. A critical part of this system is that there are adequate staff on duty, especially during the evening, nighttime, weekends and holiday shifts, to take care of the individual needs of all patients. (See information regarding meaning of adequate at those requirements that require the hospital to have adequate staff. Adequate staff would include that the hospital ensures that there are the number and types of qualified, trained, and experienced staff at the hospital and available to meet the care needs of every patient.)
- Screen. Persons with a record of abuse or neglect should not be hired or retained as employees.
- Identify. The hospital creates and maintains a proactive approach to identify events and occurrences that may constitute or contribute to abuse and neglect.
- Train. The hospital, during its orientation program, and through an ongoing training program, provides all employees with information regarding abuse and neglect, and related reporting requirements, including prevention, intervention, and detection.
- Protect. The hospital must protect patients from abuse during investigation of any allegations of abuse or neglect or harassment.
- Investigate. The hospital ensures, in a timely and thorough manner, objective investigation of all allegations of abuse, neglect or mistreatment.
- Report/Respond. The hospital must assure that any incidents of abuse, neglect or harassment are reported and analyzed, and the appropriate corrective, remedial or disciplinary action occurs, in accordance with applicable local, State, or Federal law.
State Operations Manual (SOM), Appendix A, § A-0145. Significantly, the SOM’s survey procedures direct surveyors to determine “[w]hat evidence is there that allegations of abuse . . . are thoroughly investigated?” Id.
Consistent with the above, the SOD in the present case indicates that Aurora failed to promote and protect its patients’ right to be free from all forms of abuse based on: 1) one particularly egregious incident involving a single patient, P7, where Aurora delayed for days sending P7 to an ED even though P7 told staff that an older boy had sexually assaulted her; 2) Aurora’s failure to complete appropriate investigations into allegations of abuse over the course of 11 months (13 times the SOD states “[a] complete investigation was not conducted to determine if the allegation was substantiated or not,” a substantially similar statement, or “[t]here was no evidence of sufficient investigation to unsubstantiate the allegation”); and 3) Aurora’s Performance Improvement Committee’s failure to consider the allegations or abuse in order to consider taking measures to prevent further potential abuse of patients. CMS Ex. 1 at 5-13.
Therefore, the SOD identified deficient practices concerning the SOM’s suggested criteria of Identify, Investigate, and Report/Respond. Importantly, Aurora’s policies, summarized earlier, are largely consistent with these criteria from the SOM. Ultimately, it is those polices that the SOD identifies as having been violated and not the SOM.6
In its defense, Aurora acknowledges that the SOM indicates that hospitals must have policies and procedures to protect and promote each patient’s rights, including from all forms of abuse. Aurora asserts that CMS, in this case, does not question Petitioner’s policies, but rather whether Aurora followed its policies. P. Br. at 3.
Aurora argues that it followed its policies and complied with 42 C.F.R. § 482.13. P. Br. at 3. Aurora asserts that many of its patients, due to their mental illnesses, make false allegations, although Aurora is also quick to state that it does not view all patient allegations skeptically. P. Br. at 4. Aurora is concerned that CMS ignores the reality of the patients whom Aurora serves and is making Aurora “strictly liable for ensuring that
no patient ever exhibits the very behavior for which they have been admitted to Aurora for treatment.” P. Br. at 4-5.
Aurora vows that when it is confronted with allegations that could constitute abuse, it “investigates each and every allegation objectively to determine whether the evidence supports or contradicts the allegation.” P. Br. at 5. However, Aurora states sometimes it knows allegations are false, based on “first-hand knowledge” and “additional information,” and, therefore, is under no obligation to investigate those allegations. P. Br. at 6. To illustrate this point, Aurora points to the situation with P7 and says that the first staff member to whom P7 reported an assault by P12 “knew that [P7’s] allegations were false because the staff member saw [P7] sleeping in the day room during the time in question.” P. Br. at 6.
Excepting allegations that Aurora “knew” to be false, Aurora claims to have otherwise conducted thorough investigations into all patient allegations cited in the November 2018 survey. P. Br. at 7. For this startling proposition, Aurora points to the testimony of E5. P. Br. at 7-8. Aurora concedes that its investigations were not always timely, but they “were completed as quickly as possible given the large number of patient grievances that required investigation.” P. Br. at 9. “Where Aurora was able to substantiate allegations of abuse (and even where it did not), Aurora took appropriate actions to ensure a complete investigation was done, to prevent further abuse and to protect patients . . . . [E5] reviewed all of the incidents and occurrence reports with hospital leadership during Flash meetings, and would follow-up on any additional investigation efforts or corrective actions discussed in that meeting.” P. Br. at 11.
As an initial matter, the record clearly supports that P3, P49, and P58 were subjected to physical abuse from other patients. Therefore, Aurora did not safeguard the right of those patients to be free from physical abuse.
In addition, with the possible exception of the incidents involving P1 and P3, Aurora’s investigations were untimely and/or incomplete. As the SOM indicated, surveyors should look for evidence of thorough investigations. Aurora’s own policies require prompt and thorough investigations. However, as found above, over the course of 11 months, Aurora failed to timely and/or thoroughly investigate sexual and physical abuse allegations from P7, P8, P9, P10, P13, P15, P16, P17, P19, P20, P21, P22, P23, P49, P58, and P92. Therefore, the record shows a sustained period of time over which numerous patients’ allegations of abuse were not properly investigated under Aurora’s policies.
Aurora’s failure to conduct prompt and thorough investigations related to abuse reflects an indifference about those matters which appears to be shared by the leadership at Aurora. Under the SOM, hospitals need to Identify and Report/Respond in relation to abuse, which means that hospitals should take a “proactive approach to identify events
and occurrences that may constitute or contribute to abuse and neglect” and “assure that any incidents of abuse, neglect or harassment are reported and analyzed, and the appropriate corrective, remedial or disciplinary action occurs, in accordance with applicable local, State, or Federal law.” SOM, Appendix A, § A-0145. The SOM’s position is consistent with the regulatory requirement that hospitals must not only protect each patient’s rights, but must “promote” those rights (42 C.F.R. § 482.13), and with Aurora’s policies regarding its Performance Improvement Committee’s role in improving patient safety based on review of incidents that take place at Aurora. CMS Ex. 29 at 2; CMS Ex. 31 at 3-5. As found above, Aurora has presented no documentation showing that Aurora took steps to properly collect and analyze data concerning incidents of patients sexually acting out or other allegations of sexual abuse.
In regard to the egregious situation involving P7, Aurora’s primary defense is based on alleged statements from two of its employees, as retold by E5 in her testimony. P. Br. at 12. One of these employees was the first person to whom P7 reported her sexual assault by P12. According to E5, this employee said that he saw P7 sleeping during the time of the assault. Another employee, E6, allegedly stated that P7 recanted her story. Significantly, there is no documentation from Aurora confirming that these employees ever said anything of the sort. Further, Aurora did not submit written testimony from either employee. Instead, Aurora relies exclusively on testimony from E5 as to what these other employees allegedly said. As discussed above, I have generally not credited E5’s testimony where she was unable to produce documentation to support her claims, and I see no reason to credit testimony about what two crucially important witnesses said during an investigation when it was not documented. Aurora’s conduct regarding P7, a seven-year-old girl, showed Aurora’s indifference and inability to respond to extremely serious situations in an efficient and professionally competent manner. In stark contrast, the personnel at the ED who examined and treated P7 exemplify how hospital staff must react to small children who allege sexual assault. ED staff took P7’s allegations very seriously and tried to ensure that she would be protected in the future by attempting to have P7 placed at another psychiatric facility. Aurora’s failure to accept responsibility for its significant shortcomings with regard to P7 indicates that Aurora is not committed to promoting and protecting patients’ right to be free from abuse.
- Aurora’s noncompliance rose to the condition level because its violation of 42 C.F.R. § 482.13(c)(3) posed a great potential for harm to its patients.
A provider is not in compliance with the conditions of participation if its “deficiencies are of such character as to substantially limit the provider’s . . . capacity to furnish adequate care or which adversely affect the health and safety of patients.” 42 C.F.R. § 488.24(b). Deficiencies that pose a “great potential for harm” meet this legal standard. Angel Kidney Care of Inglewood, Inc., DAB No. 2795 at 9 (2017).
There is no doubt that the record in this case supports CMS’s conclusion that Aurora has conducted itself in a manner that poses a great potential for harm to its patients. Aurora has failed to abide by its own policies to promptly and thoroughly investigate allegations of abuse, and then to compile and analyze data on that subject in order to perform better in the future. Instead, Aurora has abdicated its responsibility and embraced the notion that “[a]llegations of physical and sexual abuse occur frequently in behavioral health hospitals” and “[i]t is impossible to prevent every allegation of abuse at a behavioral health hospital.” Petitioner’s Proposed Statement of Facts and Conclusions of Law at 2. As indicated above, the Secretary rejected this reasoning and instead made hospitals responsible for ensuring that patients were free from all forms of abuse.
However, even accepting that it is impossible to control every situation all of the time, Aurora was still obligated to ensure that its patients were free from all forms of abuse as best it possibly could. Aurora could have achieved this by following its own policies. When P7 informed an Aurora employee that she had been sexually assaulted by another, older male patient, that employee was obligated under Aurora policy to report the allegation to Aurora officials and they, in turn, were obligated to immediately send P7 to the hospital. That employee circumvented the policy because he allegedly believed that P7 was lying about the allegation. As a result of the significant delay, any chance of the ED obtaining evidence of the alleged sexual assault was lost and P7 failed to receive a timely medical evaluation. As stated above, the P7 incident showed how Aurora is unprepared for dealing with allegations of abuse.
Just as significant is Aurora’s failure to timely and fully investigate allegations of abuse. Given that Aurora expects abuse to occur and that it cannot stop or prevent the abuse, then Aurora ought to have been prepared to promptly and thoroughly investigate allegations of abuse and learn from the cumulative data it derived from those investigations. Instead, Aurora had no interest in bettering itself by improving its processes to better protect its patients. This is not acceptable, particularly given that Aurora has made it clear that it handles a large number of children who are wards of the state. See CMS Ex. 58 ¶ 13; CMS Ex. 60 ¶¶ 13, 16; P. Ex. 1 ¶ 8. These are some of the most vulnerable people in our society and Aurora has shown it is not up to the task of keeping these children safe.
Aurora sees abuse as an inherent aspect of psychiatric care that it cannot stop. See CMS Ex. 60 ¶ 17. However, psychiatric patients go to Aurora to be healed. As the Secretary indicated, healing can only be done in a safe environment. 64 Fed. Reg. at 36,075-76. Aurora appears either unwilling or unable to provide such an environment. As a result, CMS was justified in determining that Aurora’s conduct amounts to a condition-level deficiency, subjecting Aurora’s provider agreement to termination.
- Aurora did not comply with the condition of participation at 42 C.F.R. § 482.21 (Quality assessment and performance improvement (QAPI) program).
Hospitals must “develop, implement, and maintain an effective, ongoing, hospital-wide, data-driven quality assessment and performance improvement program” which “reflects the complexity of the hospital’s organization and services” and “focuses on indicators related to improved health outcomes . . . . The hospital must maintain and demonstrate evidence of its QAPI program for review by CMS.” 42 C.F.R. § 482.21. The Secretary explained the purpose behind the QAPI requirement:
The fundamental purpose of the QAPI [condition of participation] is to set a clear expectation that hospitals must take a proactive approach to improve their performance and focus on improved patient care. We stress improvement in systems in order to improve processes and patient outcomes. This is not meant to suggest that we plan to abandon our regulatory role. In fact, this approach reinforces our primary responsibility for assuring patient safety and protection through our delegated regulatory authority.
68 Fed. Reg. 3435, 3436 (Jan. 24, 2003) (emphasis added).
The SOD and CMS assert that Aurora failed to comply with four of the five standards under the QAPI condition. I agree with CMS that “[w]hile Aurora may have collected some data relating to incidents and adverse events generally, it did not measure, analyze and track these events and outcomes, and it certainly did not document such QAPI activities for CMS’s review.” CMS Br. at 23.
The Program Scope standard indicates that “[t]he hospital must measure, analyze, and track quality indicators, including adverse patient events . . . .” 42 C.F.R. § 482.21(a)(2). However, as explained earlier, the record shows that Aurora simply did not track incidents that involved sexual acting out behavior by patients, despite the fact that Aurora’s Occurrence Reports specifically provided a place to indicate if the occurrence involved sexually acting out behavior. Also as pointed out above, Aurora’s policy required that information from the Occurrence Reports be logged so it could be compiled
as data that E5 was to provide to the Performance Improvement Committee. CMS Ex. 29 at 2. Aurora failed in this regard.
The Program Data standard indicates that the hospital’s QAPI program “must incorporate quality indicator data . . . and other relevant data” and use the collected data to “[m]onitor the effectiveness and safety of services . . . .” 42 C.F.R. § 482.21(b)(1), (2)(i). As found above, Aurora collected limited data regarding assaults at Aurora and made those part of the Clinical Risk Management Report. Although E5 told surveyors that sexual assault information was collected under an “other” category on the Clinical Risk Management Report, the report contains no such category. CMS Ex. 21. However, even if it had, such an amorphous category, which could encompass disparate types of data, would not have been usable by Aurora for data analysis. The regulation expressly requires hospitals to collect relevant data to monitor the effectiveness of the safety of its services. Safety clearly includes protecting patients from sexually acting out behaviors/sexual abuse.
The Program Activities standard states that the hospital must set priorities for its performance improvement activities that focus on problem-prone areas, consider the prevalence and severity of the problems, track adverse patient events, analyze their causes, and implement preventative actions and mechanisms, which include feedback and learning from the entire hospital. 42 C.F.R. § 482.21(c)(1)-(2). “The hospital must take actions aimed at performance improvement and, after implementing those actions, the hospital must measure its success, and track performance to ensure that improvements are sustained.” 42 C.F.R. § 482.21(c)(3). Assaults and sexual assaults were clearly a problem-prone area for Aurora based on the number of allegations made by patients. Even for the assault data Aurora kept for 2018, it shows that there were over a hundred assault-related events, including assaults with and without injury. CMS Ex. 21. This is sufficiently significant for a hospital with 161 beds (CMS Ex. 58 ¶ 6) that all potential assault-related incidents ought to have been tracked. However, despite this, as discussed earlier in this decision, there is no evidence that Aurora tracked these adverse events, analyzed their causes, and implemented preventative actions.
Finally, the Executive Responsibilities standard places responsibility on the hospital’s governing body, medical staff, and administrative officials for defining, implementing, and maintaining an ongoing program for quality improvement and patient safety, that clear expectations for safety are established, and adequate resources are allocated for improving and sustaining performance and reducing risk to patients. 42 C.F.R. § 482.21(e). In the present case, although Aurora had a Performance Improvement Committee, it failed to properly collect and analyze data, and implement changes related to sexual acting out behavior/sexual abuse. Although some of Aurora’s top officials testified that they were kept informed of these matters at daily FLASH meetings, these individuals still did not ensure that, under the Performance Improvement Program, Aurora's leadership properly considered data to determine if improvements at Aurora could be made with regard to sexually acting out behavior/sexual abuse.
Aurora argues in this proceeding that a preponderance of the evidence supports that Aurora properly collected data, reviewed it appropriately, addressed patient safety/adverse events appropriately, and documented all of this. P. Br. at 23. Aurora’s position is that the regulation permits hospitals to create their own QAPI program, and CMS simply does not have the authority to mandate that Aurora track and analyze data that Aurora did not think was necessary to track and analyze. P. Br. at 24. Aurora also asserts that CMS confuses the data it wants collected, sometimes referring to allegations of sexual abuse and, sometimes, to actual sexual abuse. P. Br. at 24. This is confusing to Aurora because “there should be different actions taken in response to actual patient abuse and untrue or unfounded patient allegations.” P. Br. at 25. Aurora also asserts that the regulations do not require that it keep specific types of documentation regarding the QAPI program and that the FLASH meetings, along with the Dashboard data included in the Performance Improvement Committee meeting minutes, show that Aurora fulfilled its obligations related to QAPI. P. Br. at 25-28. Aurora posits that it must first determine which allegations are true and which are false by looking at the underlying cause. P. Br. at 24.
Although the regulations permit Aurora to design its own QAPI program, the regulations lay out parameters for doing so. As explained in the discussion above concerning the QAPI standards implicated in this case, Aurora failed to properly collect and analyze data regarding sexually acting out behavior. While Aurora determines the measures that its QAPI program will consider, surveyors will “assess the hospital’s success in its own efforts to improve its performance” and “[t]he surveyor should, at a minimum, expect a hospital to have documentation that describes the program; assessment information (data); the rationale for prioritized improvement projects; and the progress that has been achieved.” 68 Fed. Reg. at 3443. Aurora’s own Occurrence Reports require its staff to indicate if the occurrence in question involved sexually acting out behavior, and Aurora’s policy concerning the use of those reports indicates that the data from those reports is to be compiled and provided to the Performance Improvement Committee, which would review the data, make recommendations for changes/follow up, and “ensure that all recommendations are implemented.” CMS Ex. 29 at 2. CMS certainly has the authority to inquire into and find a deficiency in the QAPI program when a hospital is not following is own policies directly related to performance improvement. Further, Aurora’s disagreement that unconfirmed allegations of sexual abuse should not be tracked is especially problematic in this case because, as found above, Aurora was simply failing to conduct timely and thorough investigations of sexual and physical abuse. In effect, Aurora was rarely confirming allegations of sexual acting out behavior or abuse, probably because it was doing a poor job investigating them. Aurora’s failure to promptly and thoroughly investigation allegations of abuse cannot serve as a defense to its deficient behavior related to the QAPI condition.
Aurora’s video surveillance capability is an example where Aurora was slow to react to a problem that the Performance Improvement Committee should have been able to remedy,
had it known of the problem. Aurora’s inability to investigate allegations of abuse due to regular outages of the surveillance system for a year, between November 8, 2017 and November 6, 2018, was documented by E5. See P. Ex. 7 ¶ 6. E5 testified that “these outages impacted [E5’s] ability to view surveillance footage for [E5’s] investigations of the allegations of abuse that involved Patients #6, 8, 9, and 13, as well as Patients # 10, 16.” P. Ex. 7 ¶ 6; see also CMS Ex. 57 ¶ 34. It is clear that Aurora knew that such a lengthy period without a fully functioning surveillance system would negatively impact its ability to ensure an environment free of abuse because Aurora’s Sexually Acting Out Risk Reduction Mitigation plan, effective November 10, 2017, indicates that Aurora planned to install cameras in Unit 4W by November 23, 2017. CMS Ex. 32. Aurora’s CEO testified that a new surveillance system was installed and operational on November 6, 2018. CMS Ex. 59 ¶ 26. However, this was after all but one of the incidents described in this decision had already taken place.
If Aurora’s Performance Improvement Committee had properly considered incidents of sexually acting out behavior by patients, Aurora would not have been able to put off the replacement of its surveillance system. That system was clearly needed to properly investigate allegations of sexual and physical abuse.
I conclude that Aurora failed to meet four standards under the QAPI condition of participation. Therefore, Petitioner is deficient with that condition.
- Petitioner’s condition-level noncompliance with 42 C.F.R. §§ 482.13 and 482.21 furnishes a legal basis for CMS to terminate Petitioner’s Medicare provider agreement.
CMS may terminate a hospital’s Medicare provider agreement where the hospital is not in substantial compliance with Medicare requirements. 42 U.S.C. §§ 1395cc(b)(2)(B), 1395x(e). Failure to comply with a single condition of participation constitutes lack of substantial compliance and justifies terminating a hospital’s provider agreement. 42 C.F.R. § 489.53(a)(3); see, e.g., Profound Health Care, DAB No. 2371 at 3 (2011). As stated above, I have concluded that Aurora has two condition-level deficiencies. Therefore, CMS had the legal authority to terminate Aurora’s Medicare provider agreement.
In this proceeding, CMS also asserts that the Act required CMS to terminate Petitioner’s provider agreement because CMS found that Aurora’s non-compliance immediately jeopardized its patients. The Act states, in pertinent part:
If the Secretary determines that a psychiatric hospital which has an agreement in effect under this section no longer meets the requirements for a psychiatric hospital under this subchapter and further finds that the hospital’s deficiencies—
(A) immediately jeopardize the health and safety of its patients, the Secretary shall terminate such agreement; or
(B) do not immediately jeopardize the health and safety of its patients, the Secretary may terminate such agreement, or provide that no payment will be made under this subchapter with respect to any individual admitted to such hospital after the effective date of the finding, or both.
42 U.S.C. § 1395cc(i)(1).
The SOD indicated, and CMS concurred, that Aurora immediately jeopardized its patients due to its failure to ensure their right to be free from all forms of abuse. Under the regulations that establish the need for a condition-level violation for termination, I do not need to review whether CMS correctly determined that there was immediate jeopardy. It is simply not relevant.
However, the provision at 42 U.S.C. § 1395cc(i)(1) does not appear to be considered by the regulatory rubric involving conditions of participation. Given this is the case, I review the immediate jeopardy finding by CMS in the event that such review is necessary under § 1395cc(i)(1).
The regulatory definition for “Immediate jeopardy” is “a situation in which the provider’s or supplier’s non-compliance with one or more Medicare requirements, conditions of participation, conditions for coverage or certification has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident or patient.” 42 C.F.R. § 488.1. There is no doubt that Aurora’s failure to send P7, a seven-year-old girl, to the ED immediately after she alleged that an older male patient penetrated her with his fingers is noncompliance that was likely to cause serious harm to a patient. Aurora took days to send her for a medical evaluation. Had P7 suffered internal injuries from the alleged incident, she would have been deprived of medical care to detect and treat such injuries. As mentioned above, Aurora’s inexcusable tardiness also ensured that any evidence to prove that P12 had attacked her was lost. Further, there is no evidence that Aurora took any action to protect other patients from P12. P7’s situation demonstrates that Aurora placed its patients in immediate jeopardy.
Further, as indicated above, P7 and numerous others reported sexual and physical assaults, only for Aurora to fail to promptly and thoroughly investigate those allegations, in violation of its own policies. A failure to properly conduct investigations certainly supports a finding of immediate jeopardy. See Neighbors Rehab. Ctr., LLC v. Dep’t of Health & Human Servs., 910 F.3d 919, 926 (7th Cir. 2018) (upholding immediate jeopardy finding when long term care facility “took no steps to investigate whether any of the residents had been the subject of a non-consensual interaction.”); Rosewood Care Ctr. of Swansea v. Price, 868 F.3d 605, 618-20 (7th Cir. 2017) (concluding that substantial
evidence supported finding that long term care facility’s failure to fully investigate three incidents supported a determination that immediate jeopardy occurred.). Therefore, because Aurora failed to comply with 42 C.F.R. § 482.13(c), a requirement promulgated by the Secretary pursuant to 42 U.S.C. § 1395x(e)(9) and (f)(2), and Aurora’s failure immediately jeopardized the health and safety of its patients, CMS was obligated to terminate Aurora’s provider agreement. 42 U.S.C. § 1395cc(i)(1).
I affirm CMS’s determination to terminate Aurora’s Medicare provider agreement. The decision is limited to determining whether CMS had a legitimate basis for terminating Aurora’s provider agreement based on the November 2018 survey. As to whether and when CMS may effectuate the termination, CMS must await completion of the litigation before the District Court, and this decision should not be construed as requiring CMS to take any action inconsistent with the District Court’s preliminary injunction. Further, this decision is an initial decision that is subject to appeal by the parties to the Departmental Appeals Board. 42 C.F.R. §§ 498.80-498.82.
Scott Anderson Administrative Law Judge
- 1.In the SOD, the IDPH surveyors designated Aurora’s patients and employees with a numerical identifier (e.g., P5 and E13) in order to keep their identities confidential. CMS Exs. 16, 17. I use those designations in this decision for the same reason.
- 2.It states at the bottom of the second page of the Occurrence Report: “Video Reviewed 1·21·18 2-4PM.” P. Ex. 15 at 2. I interpret this statement to mean that E5 reviewed the video recording for that date and time period, and not that E5 reviewed the video on that date and at those times. This interpretation is consistent with E5’s notation on the Occurrence Report that she did not even review the Occurrence Report until January 22, 2018 at nine o’clock in the morning. P. Ex. 15 at 2.
- 3.Documents in the record and E5’s testimony indicate that P9 was one of the patients who complained of P6’s conduct and those matters are discussed here. P. Ex. 7 ¶ 39; P. Ex. 9. However the SOD indicates that on June 17, 2018, another patient grabbed P9’s hair and shirt, and hit her in the lip, resulting in a bloody lip. CMS Ex. 1 at 12. In this proceeding, CMS restates this allegation and only cites the SOD. CMS’s Proposed Findings of Fact and Conclusions of Law at 31. E5 testified that while P9 was involved in an altercation with another peer on June 17, 2018, P9’s medical record did not show any injury or bleeding by P9. P. Ex. 7 ¶ 64. My review of the record did not disclose an incident in which P9 was physically injured on June 17, 2018. See CMS Ex. 48 at 12-14. Petitioner asserts that I should strike from the SOD the allegation that P9 was injured and had a bloody lip because the incident was witnessed, P9 and another patient were redirected successfully, and there was no need to conduct an investigation. P. Br. at 8. I find there is insufficient evidence to make any findings concerning the allegation that P9 was injured as alleged in the SOM. However, I also cannot strike portions of the SOD.
- 4.The record is not clear why a 12-year-old boy was in the same unit as a seven year-old-girl, given that boys aged 12 and over had a separate unit. May 20, 2019 Joint Stipulation of Facts and Issues at 1.
- 5.Although the SOD does not discuss P92, CMS added P92, stating it was an additional allegation that the state surveyors learned about during the November 2018 survey. CMS’s Motion for Summary Judgment and Prehearing Brief at 12. Petitioner did not object to the inclusion of P92 in this matter, but addressed the merits of CMS’s argument, asserting that E5 investigated that allegation. Petitioner’s Pre-hearing Brief and Opposition to CMS’s Summary Judgment Motion at 14. In its brief, CMS may add new bases to support CMS’s initial determination. See Access Foot Care, Inc. & Robert Metnick, D.P.M., DAB No. 2752 (2016); Dinesh Patel, M.D., DAB No. 2551 at 8 (2013); Green Hills Enters., LLC, DAB No. 2199 at 8 (2008); 42 C.F.R. § 498.56(a).
- 6.The SOM is not a regulation and does not create legally enforceable rules for hospitals. However, its provisions are useful to review because they provide a sound approach to compliance with the regulations. Aurora must have agreed since its own policies, to a great extent, mirror the SOM’s provisions quoted above.