Rosewood Care Center of Swanse v. Thomas E. Price
868 F.3d 605
| 7th Cir. | 2017Background
- Rosewood Care Center, a Medicare/Medicaid skilled nursing facility, was cited by Illinois surveyors and CMS for failures related to abuse, timely reporting/investigation, and implementation of abuse-prevention policies concerning residents R34, R6, and R28.
- Specific incidents: R34 (92, severe dementia) allegedly verbally and physically mistreated during a shower by CNA Tara Schlesinger; R6 allegedly kissed inappropriately by a staff member (reported by wife Z4); R28’s rings reported missing and reported to facility late.
- IDPH surveyors found multiple regulatory violations and categorized F223 (abuse of R34) as immediate jeopardy (J, isolated) and F225/F226 (reporting/investigation and policy implementation) as immediate jeopardy (L, widespread).
- CMS imposed civil monetary penalties: $6,050/day for the immediate jeopardy period and $200/day thereafter; ALJ and Departmental Appeals Board affirmed.
- Rosewood petitioned for judicial review arguing lack of substantial evidence for the immediate-jeopardy findings and flaws in the state survey process; the Seventh Circuit reviews only whether CMS’s determinations are supported by substantial evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether substantial evidence supports immediate-jeopardy finding for abuse of R34 (F223) | Rosewood: record incomplete (surveyors didn’t interview Schlesinger) and Schlesinger’s account does not amount to abuse | CMS: multiple staff statements, roommate report, supervisor corroboration, and ongoing staff feud supported abuse and risk of harm | Held: Substantial evidence supports abuse finding and immediate jeopardy due to rough handling, verbal abuse, and unaddressed staff feud |
| Whether failure to report/investigate (F225) warranted immediate jeopardy | Rosewood: delays and failures did not cause or likely cause serious harm; some allegations equivocal | CMS: regulations require immediate reporting and thorough investigation; cumulative failures created systemic risk | Held: Substantial evidence supports immediate jeopardy based on cumulative failures to report, investigate, and prevent further abuse |
| Whether Rosewood failed to implement its anti-abuse policies (F226) | Rosewood: had written policies, trained staff, and employees signed acknowledgments | CMS: implementation was deficient — failures to report, investigate, document, and remove alleged perpetrators pending investigation | Held: Substantial evidence shows systemic failure to implement policies that increased resident risk |
| Whether inadequate state survey invalidates penalties | Rosewood: surveyors’ process was incomplete and biased | CMS: inadequate survey performance does not invalidate adequately documented deficiencies; remedies against state exist separately | Held: Survey imperfections do not negate well-documented deficiencies; penalties stand |
Key Cases Cited
- Fairfax Nursing Home, Inc. v. U.S. Dep’t of Health & Human Servs., 300 F.3d 835 (7th Cir.) (immediate-jeopardy inquiry considers facility’s overall state of readiness)
- Bryn Mawr Care, Inc. v. Sebelius, 749 F.3d 592 (7th Cir.) (context on categorization of survey deficiencies)
- Dana Container, Inc. v. Sec’y of Labor, 847 F.3d 495 (7th Cir.) (standard for substantial-evidence review and deference to agency credibility findings)
- Golden Living Ctr.-Frankfort v. Sec’y of Health & Human Servs., 656 F.3d 421 (6th Cir.) (immediate jeopardy can rest on likelihood of serious harm without actual harm)
- Grace Healthcare of Benton v. U.S. Dep’t of Health & Human Servs., 603 F.3d 412 (8th Cir.) (allegations that prove unfounded still must be reported and thoroughly investigated)