SNF Fined $400,000 for Blindly Following the Surrogate

Earlier this week, I wrote about a recent CMS investigation in which a hospital wrongly looked to a surrogate even though the patient still had capacity to make her own healthcare decisions.  Today, I summarize a similar case from the DHHS Departmental Appeals Board in which the facility was fine nearly $400,000.



NMS Healthcare of Hagerstown is a skilled nursing facility.  It confined one of its residents and restricted her access to members of her family and others.  NMS did this at the request of the resident's daughter even though there was no medical or other basis for doing so.



The ALJ observed:  "A skilled nursing facility is not excused of its obligations to provide care by the
fact that a resident or someone on the resident’s behalf demands that the facility
provide a certain type or level of care. The regulations governing skilled nursing
facilities do not allow facilities to abdicate their responsibilities to residents in
order to cater to the whims of residents’ family members, whether or not they have
POAs."



"Moreover, a facility is not inherently a neutral arbiter. There can be a conflict of interest between a facility and its resident. . . . Resident # 4 generated a steady stream of revenue to Petitioner . . . .  Given that potential conflict of interest it was incumbent on Petitioner to be scrupulously neutral in dealing with the resident. Simply going along with JF’s wishes in this case – without independently assessing the resident to determine whether confining her and restricting her access to visitors was appropriate – was anything but neutral."