the term abuse to sustain a sanction in this case was arbitrary capricious and disregard of the record evidence regarding the context of the interaction involved if you look at the transcript of the hearing it's pretty clear that the surveyors inspectors concluded that touching a resident plus injury equals abuse without consideration of intent context or anything else and and that's what comes through in the against the resident we agree we concluded that the c n a use of force against the resident here was defined in federal law and indeed in the sort of policies of abuse the age subjective intent does not remove the inappropriate use of force is nice teen what the board actually said is that abuse can encompass deliberate acts not intended to inflict injury right and the and that seems to me the problem here is that i think there's a certain a couple places where the rule is stated more expansively but isn't well here's my here's what i want to respond to but the board actually said that abuse can occur without intent to injure but just because there's been an injury doesn't mean there was abuse in this case i think what the board is really sustaining is that i think that the bar was really sustaining is that this particular maneuver was used in an inappropriate circumstance stance because they could have just waited out decision is not entirely crystal clear about this but what the because it sort of addresses in shorthand with the board is seldom as they say the willful means the liberal as opposed not you can't read that out of the regulatory definition for the purpose of being able to characterize an intervention as something that would trigger imposition of sanctions but see how silly it is that i agree with you this is an incredibly broad definition of abuse but we run into this in the criminal arena in determining willfulness to mean deliberate physical action and and it doesn't necessarily have to involve an evil intent it just has to involve a conscious decision to employ physical action in this case that the decision to employ the control technique of i guess what bending the fingers correct that that's not correct the record pretty clear on that point because that was a technique used as a self defense technique and under these circumstances really in context the problem was there wasn't any reason that they couldn't just wait out this resident eventually is going to these circumstances was compliant with your own facilities policies the best starting to is that the is that it is twofold one is nobody disputes that this resident was an appropriate mission to this that is when the incidents happen they happen quickly require the staff to make judgments in real time quickly about how to respond to the to the instance to deescalate them can remember this  he at the same time is pressing down is trying to he's pressing down trying to escape so when he loses the ability to can role residents behavior by the way he's positioned residents pinning him the residence he's now behind the resident he testifies that that's an emergency that requires him to make a judgment what sort of intervention is necessary right and and our bottom line is this is not the sort of  an ongoing issue there are designs of cases bubbling up through the process that address this issue and the facilities position is pretty straightforward and that is we have to make an initial determination when facts are reported to us what is the nature of the incident what is the nature of the interaction if it could in our view possibly constitute abuse as defined even regulation or in our policies then we have certain obligations we have to suspend the staff first and we have to by counsel you're getting ready to tell me what you did in your brief writing which is that because it was an abuse you didn't have to report it and of course that's very circular so what's your best response to that oh no i'm not going to tell you that was what you didn't your bra what i said was when they staff makes an initial determination that the facts who did not constitute abuse because they've identified as something of forgive me for interrupting but here's the problem there may be a case where that fits but in this case there was a broken bone there was a finger that had to get surgically repaired and so it's a very tough argument to make in this case that there wasn't any possibility of allegation of abuse that needed to be investigated to report this case that's a very tough sell i disagree with ok why is that because they determined quickly that it was an accident and i think they properly determined that there is a distinction between injuries caused by accident and injuries  by abuse they didn't say we don't have to be investigated at all they said we have to investigate it enough to find out to figure out what it is and if it is abuse and we have further hoops to jump  probably go back to the definition of of abuse if if the control technique was wilfully employed and i don't think there's any any question that it produced a broken finger then how can you say that was an accident you can say the eight didn't intend to break his finger when he employed the control technique but he did and that was willful in a health care setting i mean there are plenty twenty of the remember there are some sound bites i think that are really concerning about the burden of proof that a page twenty what the board is saying none of these materials establish that wintry crests management had recognized that ada been acting under the mistaken understanding that abuse cannot occur unless the actor intends abuse or injury again that requires you to accept the definition of abuse that does not include any element of intent the reason  arguing that no matter how severe the harm was in a different case perhaps not a broken finger but you know at a much more serious circumstance that if the individual responsible didn't have the requisite level intent that that couldn't be then has to take into effect contact has taken effect context and so in this situation the facility knew that there were likely to be incidents that would require physical intervention and obviously couldn't spell out exactly what every one  context and i think the administrators made this point exactly she was criticized for saying well you thought that they kept him safe what he was actually injured she said no they kept him safe in the in the context they were in which is that he could have been seriously injured or seriously injured somebody else again given the location where it happened you know residents not so forth and in that context the fact that he suffered a fractured but instead of breaking a finger the patient broke a shoulder with the reporting investigation obligations under your theory be any different i can't answer that because again we're taking what if the attendant said oh my goodness i didn't mean to do anything would you think that you wouldn't need to report investigate i'm silly tophet it again because in this sort of facility this sort of thing does happen so i'm fairly confident that given all the facts a circumstances even if this resident has suffered a significant injury broken leg broken shoulder whatever that at the end of the day the facility would have concluded that it wasn't abusive under the circumstances right but it's not that the end of the day i think you may have a very argument about this not having been abusive but i don't know how it didn't her duty to investigate or report that's my problem with your position counsel but there is some obligation in this case does pose the question what is that  there is some obligation for the administrator to do some level of inquiry and some level of decision making about the nature of an incident before that in the that other series of of reporting suspension investigating a sofa and it has taken within five days well there's various hoops that have to be jumped through though it's concerning that your view is that a broken bone doesn't trigger that threshold that we need to report and investigate that's very concern report abuse or injuries of unknown but now you're back to new york to the circular part where if you're going to decide internally that you're that broken bones not abusive therefore because it wasn't intended therefore it doesn't need to be investigated really well that somebody has to make that initial determination that the regulation doesn't say nor want to see a message that anytime something unusual happens you have to treat it as if you have some somebody has to make the initial determination so my question we keep coming back to this but i haven't heard the answer my question is on in this case given that there was a broken bone that needed surgical repair in this case why doesn't the trigger the duty to report and investigate because under the circumstances we think the administrators conclusion that this the case but i think the plot issue that's just on all fours because you have exactly the same thing you have a deficiency that could have supported at least part of the of the sanctions only that the action taken be deliberate here a resident had immobilized themself in the shower room area by grabbing onto a door handle with each hand when a petitioner staff admitted that he used the self defense technique to try and force the residents release his grip on the door handle and doing so he broke the residence finger there's no dispute that he applied the technique deliberately contends that the reson it was and that the president's injury was an accident that occurred  staff are trying to protect the president from hurting himself or others but what the circus position is it is it doesn't matter right now other words if willful deliberate physical action constitutes abuse then as soon as an aid lays a hand on a patient the aide has abused the patient that's i mean it's a very broad definition of the term that i thought i understood before i started reading this regulation facto abuse i don't think that it rises to the level of strict liability standard and i think you do have to look at the contacts in which you know the injury occurred and supposedly incident just  y bring a guy bruised  bruised but it wasn't broken i think i think we're in the duty to report i think so yes because based on the context in which it occurred this was not an emergency situation in which a staff member had to make a split second decision about what to do this event unfolded in the course of several minutes and at the time the c n a made the decision to apply the salt the south defense technique to try and get the residents hand out the door handle there are three other c n a certified nursing assistant present now petitioners contention has been all along that you know we we were afraid that this resident was going to reach into you know a cubby and grab a shower  three or door no no bruises no furniture was out of use if there were no injury whatsoever then i don't i don't think it would've i don't think we would have known about it because i think of a release if you did know about it if there's someone standing there looking at it sort of use if so you don't need an injury in order for there to be a violation of  inflicting an infliction of injury on reasonable confinement or intimidation right and then there's a poor punishment with resulting physical harm pain or mental and anguish so nobody is talking about punishment with resulting physical harm pain or mental anguish we're talking about willful infliction of injury or intimidation right which is why i mean is that your theory that this was intimidation or confinement right so you can have it you can have abuse where there's not will anguish there's no physical injury there no abuse under this definition as i read it would have to be punishment i willful infliction of of injury so it does on that theory an injury is required that's why we started about two minutes ago right judge parker asked whether or not your case away by case by saying yes to your question it does in this case it does require an injury because that was the theory on which the violation was predicated yes under these facts yeah ok all right but let me ask you a different question there was evidence in the record that during the scuffle certainly i think staff have a right to defend themselves if they're being attacked however here the the self defense technique employed was not done for that reason it was not done by the resident b staff member who was apparently but the testimony was that it occurred contemporaneously with all of the other conduct going we've got not only that he's grabbing ahold of the door frames but he's also reaching into what they call the cubbies which i assume are open story places where other residents keep their shaving kits and toiletries and so on and he was trying to grab things out of there which the c n a testified he was concerned about because he'd previously tried to put things in his mouth and perhaps to drown himself in the shower or basically take steps to harm himself isn't that all part of the context in which this alleged abuse occurred well be there present only struck out at staff members after they tried to visit after they began to try and remove his hands from the door handles so it's i don't think it's fair to take categorize it as this all happening in the split what second you used up there and you told us at the beginning that context is is considered here in determining abuse but yet you seem to want to do what we see all the time in other cases you want to break the action down into who injure the resident employed the technique that he did at the scene and they testified that that was part of all call it that outburst of the patient at the time when the prom i'm having with the application of this broad definition of abuse is you've got a very difficult patient population here you've got someone who seriously mentally ill who's bipolar and schizo phrenic who's assigned to a locked behavioral unit and who has a history of acting out and yet you want to say that every time an aide touches one of these patients when they're acting out and some injury results that is by definition abuse under your regulation no i don't know how you operate a nursing home and care for these kinds of patients under those kinds of rules and it is not the secretary's position that you know when you're touching plus injury equals abuse but if you look at the context in which the the facilities premises well we you know had to try and force some other room so we couldn't grab saddam's or hurt himself the secretary found that one physical intervention was not necessary and in this context not just because of resin has a long history and of cognitive and and mental issues and granted he certainly does does not give the saudis have a blank check to employ whatever techniques they they want and then after the fact say well he's a difficult resident so you know we just did what we had to do and at the time that the c n a made the decision to employ that technique there were four people there so the secretary thought that you didn't in that situation you use it in the wrong circumstance that is not strict liability that's a much more nuanced judgment call that's a much more nuanced general call than the notion that just because someone's injured whether you intended or not that is quote unquote on these issues you do look at contact but here you know you look at there were four people there who could have actually prevent the president by you know the fucking his hands or simply standing between him and the coveys he was trying to reach into purportedly if he actually let go with one hand and reached into all and one of the problems and there was testimony on this is one risk you run by physically intervening in situations that you actually ask the late the situation and that's in fact what happened here it was after staff began to try and forcibly remove the residence hands that he struck out and i think it is relevant that you know as a result of physically intervening they did break the residence finger concert i get you to focus on the other part of your time's ticking so i think i understand your argument on why this was it was not abuse at least at least in the context of this case i do and then i think we've talked about the allegation that there was there are separate violations for failure to report and investigate and then and then train basically adopt new new policies and that was all true as i think december the december five six but by the time we get to february they  what the agency found is that these are the violations were ongoing and yet at that point they had reported and they had investigated and so it's not clear to me why there's a finding that they continued to be out  compliance all the way through to april five because the are they entitled to some kind of abatement or something that was a three part violation that was alleged to be ongoing through till april five than it you know and it wasn't after between february and april they had certainly reported and certainly investigated right the problem was is they were still operating under the misconception that you need a specific intent to harm the resident i get that part that's the one they weren't in compliance  with they had they still were operating under the misunderstanding that you had to have an intent to harm and if you didn't there couldn't be a abuse but my question is really a lot more technical than that basically it's a three parter right violation and they were in compliance with two parts they had by april five they had reported and they had investigated so is it the law that there that the agency is still going to levy the same per day violation all the way between april and sorry between february and april even though they were partially in compliance during that time but they have returned substantial compliance on all three prongs that's my point right that the finding from the national survey you know you got the initial noncompliance and the presumption is that instances the facility can allege that is returned to substantial compliance and and has been it's is but counsel here's the deal it's substantial compliance with what the duty to report they'd done that the duty to investigate they were insubstantial compliance with that also but they weren't in compliance with his recognition of that they were using the wrong definition or and or perhaps they had the wrong they hadn't trained on the correct use of that technique that still justify an ongoing finding that they were respond to this other allegation about plot at the time of maybe that's shorthand enough for you to know what i want you to talk about there's another another allegation a violation i think it hasn't been either dismissed or pursued and after plot that's not possible right anything further just you and i do much or i understand fully understand your response your christians question so they reported and they investigated but they still got sanction for not reporting and not investigating how do we how does the government justify that but they were also cited for failing to you implement their own policies and procedures and the issue there again is i can compliance with part was implementing their own policies and procedures again because they're laboring under your run your interpretation of what constitutes aren't you hadn't done that but they've done the other things and looks from the record like you sanction them for you still that information i don't mean i don't know or you know i apologize if i've come off as annoyed i've certainly your body language is so indicating let me ask it this way here's what i'm trying to get maybe ice caused the problem by sending us down this road but i don't think the per day penalty was abated was reduced at all between february and april and i wonder if it shouldn't be so if we have three man this anyway on plots we should be out that another look be taken at whether or not that was the appropriate per day penalty between february and april and if not why not here and double punishing the facility for something that had been corrected at least as to reporting and investigating by february and to continue punishing them for that when they've done it seems to us role i don't know how to say it any clearer than they are and i take the court's point i would just reiterate that there is also under the regulation that the facility was cited with that the revisit survey you know the obligation to well the implementor right now i understand your point is until they got it and understood what abuse constitutes how could they properly train their staff in the continuing care of the residents so that staff would understand that you can't do this in that situation that that's the basis for your continued validation that's not what we're concerned about w we're concerned about is by february they've investigated they've reported they've been punished for the period from december to february for that violation but you kept punishing them at the same rate at the same rate that just  that seems wrong and i think that is that it would be would then then splodge requires to remount on an review deficiency and the issue there that the basis i understand it is because the sounds to me like you might be able after we have journeyed today to sit down and talk with one another about perhaps resolving these unresolved issues so that we can put an end to this thing on the  yeah but i have not yet that the parties have not spoke about what would you be willing to do that i mean we do have i mean we do have court mediators that are standing by who would be happy to facilitate that process and if you're both willing to take a shot at that we can certainly enter an order vacating submission so we don't issue a ruling to allow you guys to see if you can work out now i mean the government would be willing to you know this guy  engage in those efforts yes particularly on your client interested in the need to talk touchin sure oh ok well why don't you do this why don't you send us a letter within a week and let us know after you've had a chance to confer with your respective clients and if you do wish to pursue mediation we'll make a mediator either here in pasadena up in san francisco available to assist you in that effort and we won't issue anything for the next week until we hear from  when when the surveyors came back the spectre's came back they of course came back and re cited a new deficiency that was based on this notion that these staff person you know had been convicted which which was not correct so the a l j sort of came up with the but in fact the board is more a last correct and that is it's because we were disagreeing that this incident was abuse is why they reach that conclusion so it really goes back as you suggest to the regional deficiency basically continues because we disagree with them right and the risk just so your clients understand the risk that you're running with us is that we may very well have to rule as to whether or not the government's interpretation of abuse means what the government says it means and it was lying chevron deference whether or not the agency is entitled to take this broad definition of abuse and that gives me my second point which is to addressed judge parker so i thought i'd go and it really highlights the difficulty of applying this broad definition to every circumstance particularly in a case where the staff thinks it's an emergency and that's something we haven't really talked about but i don't think anybody disputes including the government that the staff thought it was an emergency after the fact you know there's assessment and analysis and second guessing and so forth so forth and so on well i think we made the point in our brief quickly that ninety nine out of one hundred servers were never cited this and that's the a p a problem here how is a regulated entity supposed to figure out what the regulation means when it really comes down to second guessing by a surveyor after the fact as of what's in the stands head so our suggestion was that you can very easily apply the regulation if you use commonsense definitions of abuse to include one of i think three sort of overlap overlapping factors one is touching a resident whether and intended to control behavior or otherwise either in a manner or in circumstances that has no legitimate clinical or therapeutic reason this would this would catch the forcing somebody to take a bath case which is sort of the second circumstance that is touching them in a real in a way that's unreasonably intrusive or excessive under the circumstances so they could have argued that here but didn't really or third would be touching a resident when they refused to be touched except in an emergency but you know this is your offer is intriguing but it's just quintessential rulemaking i mean we were not very good at that well but as i said you know if you if we presume that  most surveyors would not have cited this then we have a problem because we're here because somebody did in a way that the staff didn't anticipate and couldn't anticipate that the only problem i'm having with your argument i counted ten surveyors i think on the on the visit in february and then it got reviewed by three by any old day and then three members of the board and i don't know how many other people in the agency it seems that there are a lot of people on the sixteen agencies getting ready to adopt this definition so you're asking is a very heavy lift if you're asking us to impose a different rule a different definition for something that happened several years ago when you is there any backstory here one of the reading of these records is that this is seems to be lots and lots of substantial regulatory over one and the back story is is that there is a lot of litigation over the question what is abuse and what is reportable and i mean i don't want to go too far out the side the record either but there it usually comes up in the context the administrator properly decide that something should be treated like a grievance because there's also regulation it requires you to address grievances as opposed to an allegation of abuse and so you have lots of second guessing that gets vast majority of them get settled but this one poses a question that's very important to caregivers and that is can they get cited for abuse because a survey or whether it's eighty percent of the surveyors or one out of a thousand has a different view of what they should have done than what they did in a circumstance that they thought was an emergency and then again you get the cascade of ok well if it was abuse then you should have  said no i don't think it falls into that category and in just one final comment to respond to your comment judge that right the surveyor cited c m s imposed somebody must of prove that the a etc but on the other hand the administrator has an obligation to apply these regulations as well every day and so does the state survey agency and they reported these nurses and the nursing boards that this is an abuse