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Sunday, September 22, 2019

Seventh Circuit upholds $60K Rosewood fine finding it failed to investigate kiss

By Record News | Aug 29, 2017

CHICAGO – Rosewood Care Center of Swansea must pay a $60,500 penalty for abuse including failure to separate employees too angry at each other to help a helpless person, Seventh Circuit appellate judges ruled on Aug. 22. 

They denied Rosewood’s petition to review an order of the U.S. Department of Health and Human Services, imposing a daily penalty of $6,050 for 10 days. 

The federal agency found Rosewood failed to protect a resident from abuse, failed to report or thoroughly investigate allegations, and failed to follow policies. 

An investigation was sparked on May 8, 2014, when the wife of a resident told the Illinois Public Health Department that a staff person kissed her husband. 

The Seventh Circuit opinion identified the husband as R6, the wife as Z4. 

The wife told the department that Rosewood covered up the harassment. 

As compliance regulator for Medicare and Medicaid, the state agency sent surveyors Christiane VonRonnakirk and Teresha Viverette to Rosewood. 

The husband told them a staff person kissed him on both cheeks. 

He told them that she said, “I really, really love you.” He said it shocked him and made him very uncomfortable. 

His wife said she reported it to administrator Ken Kabureck, who later told her he didn’t know who did it and wouldn’t investigate it. 

VonRonnakirk and Viverette questioned Kabureck, who said the wife was upset. 

He told them the wife said it happened in physical therapy, so he asked physical therapy staff about it, and staff didn’t know anything. 

He said he didn’t talk to the husband because he believed the husband made it up. 

On May 12, 2014, with the survey in progress, nursing assistant Tara Schlesinger lost her temper in a shower with a resident 92 years old. 

The opinion didn’t identify the resident, who suffered from end stage dementia and needed two assistants for a shower. 

According to the other assistant, Emily Schmidtling, Schlesinger cursed the resident and told him to sit down several times. 

Schmidtling said Schlesinger asked, “Why do I always get your shower?” 

They finished his shower and put him to bed, where his bowels moved. 

Schlesinger shoved him so hard in turning him over that she had to grab him back, according to Schmidtling. 

Schmidtling walked to the licensed practical nurse on duty, Jennifer Schmidtling. 

The Seventh Circuit opinion didn’t indicate any relation. 

Nurse Schmidtling didn’t respond, and assistant Schmidtling returned to work. 

Nurse Schmidtling would later say she didn’t see any merit in the report. 

She said the two assistants had been “snipping and sniping” behind each other’s backs for the better part of three weeks. 

She said each complained about the other not helping the resident. 

Nurse Schmidtling didn’t report the allegation or relieve Schlesinger. 

Assistant Schmidtling then reported Schlesinger’s conduct to registered nurse Jennifer Haukap, who reported it to Kabureck. 

Rosewood would later fire Schlesinger. 

The kissing complaint returned to the foreground on May 14, 2014, when Kabureck reported it to the state health department. 

He submitted statements of staff members who hadn’t seen any kissing. 

As it turned out, the husband told the truth. 

On May 24, 2014, Kabureck informed the department that a registered nurse kissed the husband while he walked with a walker and a therapist. 

Kabureck reported that at the request of a therapist, the nurse had encouraged the husband to leave his bed for therapy. 

Her log dated the interaction on April 28, 2014. 

She said that about a week later, she saw him with a walker and a therapist. 

She said she kissed him on the forehead and told him he was doing great. 

She said he smiled but said nothing. 

She said he wasn’t upset. 

The Seventh Circuit opinion didn’t identify the registered nurse. 

On May 28, 2014, the department recommended to Medicare and Medicaid Services a finding that Rosewood placed residents in immediate jeopardy of abuse. 

Such a finding raised the possible daily penalty from a normal range between $50 and $3,000 to a range between $3,050 and $10,000. 

The department specifically held that Rosewood failed to protect the 92 year old. 

The department generally held that Rosewood failed to investigate allegations thoroughly and failed to follow its abuse prevention policy. 

The department set the daily penalty at $6,050, for 10 days. 

Medicare and Medicaid Services adopted the recommendation. 

Rosewood appealed to an administrative law judge, who upheld the penalty. 

The law judge wrote that the 92 year old was “caught in the direct line of fire” between the assistants. 

The law judge found Rosewood’s investigation of the kiss “palpably incomplete,” because no one took a statement from husband or wife. 

Rosewood lost an appeal before a board in the U.S. Department of Health and Human Services, and lost again at the Seventh Circuit. 

Justice Kenneth Ripple wrote that nurse Schmidtling’s failure to take Schlesinger off duty pending an investigation put the 92 year old at risk of additional harm. 

“The fact that two certified nursing assistants would not assist each other in rendering his care clearly placed him in jeopardy of continued abuse,” Ripple wrote. 

He wrote that evidence about the kiss was equivocal. 

“That, however, was not known to Rosewood at the time that R6 and his wife complained,” he wrote. 

“The regulations did not permit Rosewood to assume that the version offered by its own employees was the end of the matter.” 

Justices Richard Posner and Diane Sykes concurred. 

Mark Brooker, regional counsel of the U.S. Department of Health and Human Services in Chicago, represented the department. 

Daniel Maher of Springfield and Mark Deming of Chicago represented Rosewood.  

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