UNITED STATES DISTRICT COURT 
 FOR THE DISTRICT OF NEW MEXICO


UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

v.

)

)

THE STATE OF NEW MEXICO; and

)

Michelle Lujan Grisham, Secretary, )

Department of Health, in her

)

official capacity only,

)

)


Defendants.

)


_____________________________________) 


Civil No. _________

COMPLAINT

PLAINTIFF, THE UNITED STATES OF AMERICA (“Plaintiff”), by

its undersigned attorneys, hereby alleges upon information and

belief:

1. The Attorney General files this Complaint on behalf of

the United States of America pursuant to the Civil Rights of

Institutionalized Persons Act, 42 U.S.C. § 1997, to enjoin the

named Defendants from egregiously and flagrantly depriving

residents of the Fort Bayard Medical Center (“Ft. Bayard”) of

rights, privileges, or immunities secured and protected by the

Constitution and laws of the United States.

JURISDICTION AND VENUE

2. This Court has jurisdiction over this action under

28 U.S.C §§ 1331 and 1345.

3. The United States is authorized to initiate this action

pursuant to 42 U.S.C. § 1997a.

-2-
 4. The Attorney General has certified that all pre-filing requirements specified in 42 U.S.C. § 1997b have been met. The Certificate of the Attorney General is appended to this Complaint and is incorporated herein. 5. Venue in the District of New Mexico is proper pursuant to 28 U.S.C. § 1391.
DEFENDANTS 6. Defendant State of New Mexico owns and operates Ft. Bayard, and as such has responsibility for the services and supports provided to individuals residing there. 7. Defendant Michelle Lujan Grisham is the Secretary of the New Mexico Department of Health, which has responsibility for overseeing the operation of Ft. Bayard. 8. Ft. Bayard Medical Center is a state nursing home located in Bayard, New Mexico, which provides skilled and longterm nursing care and related services for residents who require medical or nursing care, and rehabilitation services for injured, disabled, or sick persons who require such services. Ft. Bayard Medical Center also includes any facility constructed as a replacement to the facility in place at the time of entry of this Settlement Agreement as an Order of the Court. 9. The individual Defendant named in paragraph 7 above is an officer of the State of New Mexico and is sued in her official capacity only.

-3FACTUAL ALLEGATIONS 10. Defendants are legally responsible, in whole or in part, for the operation of Ft. Bayard and for the health and safety of the persons residing in Ft. Bayard. 11. Ft. Bayard is an institution within the meaning of 42 U.S.C. § 1997(1). Ft. Bayard is a nursing home that provides custodial or residential, intermediate or long-term, skilled nursing care. 12. The State has the authority to prevent a Ft. Bayard resident from leaving State custody if it determines that the resident’s leaving Ft. Bayard endangers the resident. 13. Certain Ft. Bayard residents have such great physical and/or mental disabilities that New Mexico State courts have appointed guardians to oversee their care. One of these courtappointed guardians has obtained court orders requiring placement of their ward at Ft. Bayard. 14. Defendants are obligated to operate Ft. Bayard in a manner that does not infringe upon the federal rights of individuals residing in Ft. Bayard, as protected by the Fourteenth Amendment to the Constitution of the United States and by other federal law. 15. Defendants are obligated to provide services and activities to individuals residing in Ft. Bayard in a manner and environment consistent with Title XVIII and Title XIX of the

-4Social Security Act and implementing regulations. 42 U.S.C. § 1395i-3, 42 U.S.C. § 1396r, 42 C.F.R. § 483.
16. Defendants are obligated to provide services, programs, and activities to individuals residing in Ft. Bayard consistent with the Americans with Disabilities Act and implementing regulations. 42 U.S.C. § 12132, 28 C.F.R. § 35.130(d).
17. Defendants are obligated to provide services, programs, and activities to individuals residing in Ft. Bayard in a manner consistent with Section 504 of the Rehabilitation Act of 1973 and implementing regulations. 29 U.S.C. § 794, 45 C.F.R. § 84.4.
18. At all relevant times, Defendants have acted or failed to act, as alleged herein, under color of state law.
19. Individuals are admitted to Ft. Bayard because they require skilled and long-term nursing care and related services and/or rehabilitation services for injuries, disabilities or sickness and require residential medical or nursing care, rehabilitation services, or health care and services for the treatment of such conditions.
20. Ft. Bayard’s supports and services substantially depart from generally accepted professional standards of care, thereby exposing individuals residing at Ft. Bayard to significant risk and, in some cases, to actual harm.

-521. Ft. Bayard’s supports and services substantially depart from generally accepted professional standards of care in the following specific respects, among others:
a. the implementation and review of comprehensive healthcare plans;
b. the proper use of psychotropic medication; c. the appropriate management of pain and suffering; d. the implementation of adequate measures to ensure
a safe environment and to prevent injury from falls or resident-on-resident violence; e. the provision of adequate nutritional and hydration services; and f. the provision of adequate activities for physical and mental stimulation. 22. Ft. Bayard’s supports and services substantially depart from generally accepted professional standards of care in the provision of a sufficient number of adequately trained staff to render appropriate treatment, supports, and services and to protect residents from harm. 23. Defendants have failed to assess individuals residing in Ft. Bayard to ascertain whether these individuals are receiving adequate treatment, supports, and services in the most integrated setting appropriate to their individual needs; to ensure that those individuals whom professionals determine should

-6-
 be placed in community programs are placed in such programs, when appropriate; and to make certain that these individuals are served in the most integrated setting appropriate to their needs.
VIOLATIONS ALLEGED
 COUNT ONE:

Violations of the Due Process Protections of the Fourteenth
 Amendment to the United States Constitution 

24. The United States incorporates by reference the allegations set forth in Paragraphs 1 through 23 as if fully set forth herein.
25. The egregious and flagrant acts and omissions alleged in paragraphs 20 through 22 constitute a pattern or practice that violates the federal rights of individuals residing in Ft. Bayard, as protected by the Fourteenth Amendment to the Constitution of the United States and by other federal law.
26. Unless restrained by the Court, Defendants will continue to engage in the egregious and flagrant acts and omissions set forth in paragraphs 20 through 22 that deprive Ft. Bayard residents of rights, privileges, or immunities secured or protected by the Constitution of the United States and federal law, and will cause irreparable harm to these residents.

-7COUNT TWO:
 Violations of the Social Security Act 
 27. The United States incorporates by reference the allegations set forth in Paragraphs 1 through 23 as if fully set forth herein. 28. The egregious and flagrant acts and omissions alleged in paragraphs 20 through 22 violate Titles XVIII and XIX of the Social Security Act and implementing regulations. 42 U.S.C. § 1395i-3, 42 U.S.C. § 1396r, 42 C.F.R. § 483. 29. Unless restrained by the Court, Defendants will continue to engage in the egregious and flagrant acts and omissions set forth in paragraphs 20 through 22 that deprive Ft. Bayard residents of rights, privileges, or immunities secured or protected by federal law, and will cause irreparable harm to these residents. COUNT THREE:
 Violations of the Americans with Disabilities Act 
 30. The United States incorporates by reference the allegations set forth in Paragraphs 1 through 23 as if fully set forth herein. 31. The egregious and flagrant acts and omissions alleged in paragraph 23 violate the Americans with Disabilities Act and implementing regulations. 42 U.S.C. § 12132, 28 C.F.R. § 35.130.

-832. Unless restrained by the Court, Defendants will continue to engage in the egregious and flagrant acts and omissions set forth in paragraph 23 that deprive Ft. Bayard residents of rights, privileges, or immunities secured or protected by federal law, and will cause irreparable harm to these residents.
COUNT FOUR:
 Violations of the Rehabilitation Act of 1973 
 33. The United States incorporates by reference the allegations set forth in Paragraphs 1 through 23 as if fully set forth herein. 34. The egregious and flagrant acts and omissions alleged in paragraph 23 violate Section 504 of the Rehabilitation Act of 1973 and implementing regulations. 29 U.S.C § 794, 45 C.F.R. § 84.4. 35. Unless restrained by the Court, Defendants will continue to engage in the egregious and flagrant acts and omissions set forth in paragraph 23 that deprive Ft. Bayard residents of rights, privileges, or immunities secured or protected by federal law, and will cause irreparable harm to these residents.
PRAYER FOR RELIEF 36. The Attorney General is authorized under 42 U.S.C. § 1997 to seek equitable relief.

-9-
 WHEREFORE, the United States prays that this Court enter an order:
a. Declaring that the acts, omissions, and practices set forth in paragraphs 20 through 23 above constitute a pattern or practice of resistance to Ft. Bayard’s residents’ full enjoyment of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, and that those acts, omissions, and practices violate the Constitution and laws of the United States; and
b. Permanently enjoining Defendants, their officers, agents, employees, subordinates, successors in office, and all those acting in concert or participation with them from continuing the acts, omissions, and practices set forth in paragraphs 20 through 23 above, and that this Court require Defendants to take such actions as will ensure that lawful conditions of institutionalization are afforded to Ft. Bayard residents, including the provision of adequate treatment in the most integrated setting appropriate to their individual needs; and

-10-
 c. Granting such other and further equitable relief as Court may deem just and proper.
Respectfully submitted,
/s/ Alberto R. Gonzales ALBERTO R. GONZALES Attorney General of the United States
Date: May 14, 2007

-11-


LARRY GOMEZ Acting United States Attorney District of New Mexico
/s/ Jan Elizabeth Mitchell JAN ELIZABETH MITCHELL Assistant U. S. Attorney P.O. Box 607 Albuquerque, NM 87102 (505) 346-7274 jan.mitchell@usdoj.gov

/s/ Wan J. Kim WAN J. KIM Assistant Attorney General Civil Rights Division
/s/ Shanetta Y. Cutlar SHANETTA Y. CUTLAR Chief Special Litigation Section
/s/ Judy Preston JUDY PRESTON Deputy Chief Special Litigation Section

/s/ Verlin H. Deerinwater VERLIN H. DEERINWATER JOSHUA C. DELANEY Trial Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section 601 D. St., NW Room 5928 Washington, DC 20004 (202) 514-6255 (202) 514-6273 (fax)

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

)

v.

)

)

THE STATE OF NEW MEXICO; and

)

Michelle Lujan Grisham, Secretary,

)

Department of Health, in her

)

official capacity only,

)

)

Defendants.

)

)

SETTLEMENT AGREEMENT

I. INTRODUCTION

1. On April 18, 2005, the United States notified New Mexico

officials of its intent to investigate conditions of resident

care and treatment at the Fort Bayard Medical Center

(“Ft. Bayard”), a nursing home in Bayard, New Mexico, pursuant to

the Civil Rights of Institutionalized Persons Act ("CRIPA"),

42 U.S.C. § 1997.

2. In July and September 2005, the United States toured

Ft. Bayard with consultants in the fields of geriatric medical

care, geriatric nursing, nursing home administration, and

community placement.

3. Throughout the course of the investigation, the United

States received complete cooperation and access to Ft. Bayard

-2and documents from the State of New Mexico.
4. On May 1, 2006, the United States issued a findings letter pursuant to 42 U.S.C. § 1997(a)(1), which concluded that certain conditions at Ft. Bayard violated the constitutional and federal statutory rights of residents of the nursing home.
5. The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1345. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b).
6. The Defendants are the State of New Mexico; and Michelle Lujan Grisham, Secretary, Department of Health, in her official capacity only. The Defendants are responsible, in whole or in part, for the operation and conditions at the Ft. Bayard Medical Center. The Defendants also acknowledge they have the authority and responsibility to implement all requirements of this Settlement Agreement, including implementation at Ft. Bayard and with regard to the State’s responsibilities under Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132 et seq., and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. Accordingly, the Defendants shall ensure that all state agencies take any action necessary to comply with the provisions of this Settlement Agreement.
7. This Settlement Agreement is not intended to have any preclusive effect except between the parties. Should the issue of the preclusive effect of this Settlement Agreement be raised

-3in any proceeding other than this civil action, the parties agree to certify that this Settlement Agreement was intended to have no such preclusive effect.
8. This Settlement Agreement is not intended to impair or expand the right of any person or organization to seek relief against the State, or its officials, employees, or agents for their conduct or the conduct of state employees; accordingly, this Settlement Agreement does not alter legal standards governing any such claims, including those under New Mexico law.
9. Nothing in this Settlement Agreement shall prevent the State from modifying or closing Ft. Bayard or from developing alternative community placements for the residents currently at Ft. Bayard.
10. This Settlement Agreement resolves the CRIPA investigation conducted by the United States Department of Justice (“DOJ”) and addresses the corrective measures set forth by DOJ in its May 1, 2006 letter to the State (“Findings Letter”). This Settlement Agreement does not serve as an admission by the State that corrective measures are necessary to meet the constitutional and statutory rights of the residents of Ft. Bayard.
11. In conformity with CRIPA, this Settlement Agreement represents a voluntary effort by the State to meet the concerns

-4raised by DOJ’s investigation. See 42 U.S.C. § 1997b(a)(2)(B) and § 1997g.
12. This Settlement Agreement is binding upon the parties, by and through their officials, agents, employees, and successors. No person or entity is intended to be a third party beneficiary of the provisions of this Settlement Agreement for purposes of any civil, criminal, or administrative action, and accordingly, no person or entity may assert any claim or right as a beneficiary or protected class under this Settlement Agreement in any civil, criminal, or administrative action. Similarly, this Settlement Agreement does not authorize, nor shall it be construed to authorize, access to state documents by persons or entities not a party to this Settlement Agreement.
13. This Settlement Agreement shall constitute the entire integrated Settlement Agreement of the parties. With the exception of the Findings Letter referenced in Paragraph 10 hereof, no prior contemporaneous communications, oral or written, or prior drafts shall be relevant or admissible for purposes of determining the meaning of any provisions herein in this litigation or in any other proceeding.
14. Since the DOJ initiated the investigation and issued the Findings Letter, the State has made significant progress in remedying the problems the DOJ identified in the Findings Letter. The parties agree that it is in their mutual interests to avoid

-5litigation. The parties further agree that resolution of this matter pursuant to this Settlement Agreement is in the best interests of Ft. Bayard residents.
15. All parties shall bear their own costs, including attorneys’ fees, in this and any subsequent proceeding.
16. The signatures below of officials representing the DOJ and the State signify that these parties have given their final approval to this Settlement Agreement.
17. This Settlement Agreement shall take effect on the day it is entered as an Order of the Court by the United States District Court, District of New Mexico.
II. DEFINITIONS As used in this Settlement Agreement, the following definitions apply to the terms below: 18. “Adequate” shall mean that level of service required for compliance with all applicable federal, state, and local laws, regulations, and codes, and with generally accepted professional standards. 19. “Appropriate” shall mean that which is suitable for a particular purpose. 20. “Care plan” shall mean a formal written individualized plan of treatment and activities, based upon comprehensive assessments performed by an appropriately-comprised interdisciplinary team of qualified professionals, and which

-6describes the medical, nursing, and psychosocial needs of the individual resident, how such needs will be met, and sets timetables for meeting those needs in order that each resident attains or maintains the highest practicable physical, mental, and psychosocial well-being, and which is periodically reviewed and revised, as appropriate.
21. “Dietician” shall mean a person registered by the American Dietetic Association qualified to supervise the nutritional care of residents, including meal planning, dietary counseling, monitoring of health changes related to nutrition, including weight loss, decubitus ulcers, and nutritional care for residents with special needs such as tube-feeding, diabetes, and other health needs requiring therapeutic diets.
22. “Fall” shall mean an uncontrolled, unintentional, downward displacement of the body to the ground or other object.
23. “Ft. Bayard” shall mean the Fort Bayard Medical Center, a nursing care facility owned and operated by the State of New Mexico and located in Fort Bayard, New Mexico, which provides skilled and long-term nursing care and related services for residents who require medical or nursing care; and rehabilitation services for injured, disabled, or sick persons who require such services. “Ft. Bayard” shall also mean any facility constructed as a replacement to the facility in place at the time of entry of this Settlement Agreement as an order of the Court.

-724. “Highest Practicable” shall mean the highest level of function and well-being possible consistent with generally accepted standards, limited only by the individual’s presenting functional status and potential for improvement or reduced rate of functional decline. 25. “Incident” shall mean any unusual or unexplained occurrence that results in actual or potential physical harm, pain or mental anguish to a resident; any known, alleged or suspected event of abuse, neglect, or exploitation of a resident; or any unexpected death of a resident. 26. “Physician” shall mean a medical doctor lawfully entitled to practice medicine in the State of New Mexico. 27. “Psychotropic Medication” shall mean a controlled substance or dangerous drug that may not be dispensed or administered without a prescription and whose primary indication for use has been approved by the U.S. Food and Drug Administration for the treatment of mental disorders and is listed as a psychotherapeutic agent in drug facts and comparisons or in the American hospital formulary service. 28. “Qualified Professional or Qualified Staff” shall mean an individual who is competent, whether by education, training, or experience, to make the particular decision at issue. 29. “RNs” shall mean individuals licensed as Registered Nurses by the State of New Mexico.

-830. “Resident” shall mean any person residing at Ft. Bayard during the operation of this Settlement Agreement. 31. “Substantial Compliance” shall mean a level of compliance that does not significantly deviate from the terms of this Settlement Agreement, provided that such deviation poses no significant risk to resident health or safety. Noncompliance with mere technicalities, or temporary failure to comply during a period of otherwise sustained compliance, shall not constitute failure to maintain substantial compliance. At the same time, temporary compliance during a period of otherwise sustained noncompliance shall not constitute substantial compliance. III. SUBSTANTIVE REMEDIAL MEASURES 32. The intent and purpose of this Settlement Agreement is to ensure that each Ft. Bayard resident is provided the necessary care and services to allow the resident to attain or maintain the highest practicable physical, mental, and psychosocial well-being in accordance with comprehensive assessments and a plan of care. The requirements of this Settlement Agreement shall be interpreted according to this intent and purpose.
A. TIMELY ASSESSMENTS AND CARE PLANS 33. The State shall ensure that qualified health professionals adequately assess and document each resident’s medical, functional, and psychological needs, and identify all interventions necessary for each resident to maintain or improve

-9his or her medical status, functional abilities, and psychological status.
34. Each resident shall be provided, and have implemented by qualified staff, a care plan, developed by an appropriately comprised interdisciplinary team of qualified professionals, including a physician, a registered nurse, and a dietician, and where appropriate, a psychiatrist, a pharmacist, and rehabilitation/restorative therapist(s), which describes the medical, nursing, and psychosocial needs of the resident and how such needs will be met. The care plan shall be based upon a comprehensive assessment of each resident’s functional capacity and shall be prepared within timelines established by federal law. The care plan shall include, to the maximum extent possible, input from the resident or, for cognitively impaired residents who are not competent to make decisions about their care and treatment, from the resident’s guardian, legal representative, or other legally designated or appointed surrogate decision maker. The care plan shall comply with 42 C.F.R. § 483.20, and include, at a minimum, assessments addressing:
a. Medically defined conditions and prior medical history; b. Medical status measurement; c. Physical and mental functional status; d. Sensory and physical impairments;

-10e. Nutritional status and requirements; f. Special treatment or procedures (including special
rehabilitative services); g. Mental and psychosocial status; h. Discharge potential; i. Dental condition; j. Activities potential; k. Rehabilitation potential; l. Cognitive status; m. Pain management needs; n. Behavioral and mental health diagnosis and treatment
needs; and o. Medication therapy. 35. The State shall evaluate adequately residents’ acute and ongoing medical status to ensure that residents’ health status is monitored accurately, and that residents who experience a significant change of status are evaluated and treated adequately. 36. The State shall ensure that Ft. Bayard staff are trained adequately in evaluating, monitoring, and treating the needs of Ft. Bayard residents, particularly with regards to conditions such as diabetes, seizure disorders, and pain management.

-1137. The State shall require all staff to use all available data in their assessments (such as lab/diagnostic studies, other health professions’ data, etc.) to identify each resident’s problems/conditions and prepare professionally acceptable care plans to address the problems/conditions. 38. The State shall ensure that there are sufficient numbers of adequately trained staff, particularly RNs, LPNs, and Certified Nursing Assistants, present and on duty on each shift to ensure adequate supervision of residents, to provide routine and preventative care, and to ensure that residents’ care plans are implemented adequately. 39. For every resident who requires transfer to an acute care setting, qualified staff shall conduct a review to determine if adequate care was provided to the resident by Ft. Bayard staff prior to the transfer. 40. To the full extent that Ft. Bayard’s access to residents’ medical records permits, mortality reviews shall be conducted for every resident who dies at Ft. Bayard or who dies at an acute care facility after being transferred there from Ft. Bayard. This mortality review shall be conducted by a physician and a registered nurse, qualified to conduct such reviews, to determine if adequate care was provided to the resident by Ft. Bayard prior to the death. If a mortality review identifies any deficiencies in care provided by Ft. Bayard, Ft. Bayard shall

-12institute reasonable and appropriate corrective measures to address any such deficiency.
41. Ft. Bayard shall implement adequate quality assurance mechanisms to monitor the delivery of medical, nursing, and all other health care services to residents.
B. USE OF PSYCHOTROPIC MEDICATION 42. The State shall provide adequate psychiatric and psychosocial care to Ft. Bayard residents to ensure that each resident attains or maintains the highest practicable physical, mental, and psychosocial well-being possible. The use of psychotropic medication shall comply with 42 C.F.R. § 483.25(l). The use of psychotropic medications shall be safe and appropriate. The care shall include, at a minimum: a. Prescribing psychotropic medications only in accordance with generally accepted professional judgment and standards and ensuring that such medication is used appropriately; b. Ensuring that there is adequate oversight by qualified professionals of the psychotropic medication practices in place for the residents of Ft. Bayard; c. Ensuring there is adequate consultation from psychiatric and pharmacy consultants as appropriate to the resident needs; d. Ensuring that psychotropic medications are not used in ways that threaten the health or well-being of residents and that

-13particular attention is paid to the use of psychotropic medications with residents who are at risk of aspiration.
e. Ensuring that psychotropic medications are not used as a form of chemical restraint to control resident behavior in the absence of less-intrusive treatment modalities; and
f. Ensuring that there are sufficient psychological and psychosocial services to meet the needs of residents, particularly those residents with a diagnosis of depression.
C. PAIN MANAGEMENT 43. The State shall immediately ensure that Ft. Bayard residents do not experience unnecessary and undue pain and suffering. 44. The State shall pay particular attention to ensuring that residents with compromised cognitive functioning receive adequate pain management assessments and care. 45. The State and Ft. Bayard shall implement policies, procedures, and protocols to ensure that medications are appropriately stored and secured, and are administered to residents in accordance with the residents’ physician’s orders. 46. The State and Ft. Bayard shall implement policies, procedures, and protocols, to ensure the adequate tracking of medication use and to investigate and follow-up on any lost, stolen, unaccounted for, or potentially misused medications, with particular emphasis on the tracking of opiate medications.

-1447. The State shall initiate appropriate disciplinary action against, and report to the appropriate state and/or federal law enforcement agency for potential criminal prosecution, any employee or agent of the State who is found to have diverted medication from Ft. Bayard residents.
D. PROTECTION FROM HARM 48. The State shall ensure that Ft. Bayard residents are adequately protected from harm. 49. The State shall immediately provide adequate supervision of Ft. Bayard residents to protect them from harm to the extent reasonably possible, including instances of residenton-resident assaults. 50. The State shall ensure that there are sufficient numbers of adequately trained staff, particularly RNs, LPNs, and Certified Nursing Assistants, present and on duty on each shift to ensure adequate supervision of residents and to prevent otherwise preventable injuries and incidents, including residenton-resident assaults. 51. The State shall identify Ft. Bayard residents who are at risk of harm, or who pose a risk of harm to other residents, based upon residents’ cognitive impairments or dangerous behaviors, and develop and implement measures to protect residents from the potential of self-harm or harm to other residents.

-1552. The State shall identify residents who are at risk of being victimized and take adequate steps to protect them. 53. Anytime a resident suffers an injury or experiences any event that exposes the resident to harm, such as an elopement, the resident shall receive adequate medical evaluation and treatment, including but not necessarily limited to the following items discussed in this paragraph. An incident report shall be completed at the time of the occurrence and submitted to the Medical Director and the Director of Nursing. The Medical Director and the Director of Nursing shall review and sign all incident reports and initiate any appropriate administrative and/or clinical action. At the time of the occurrence, a Registered Nurse shall assess the resident to determine if there is actual or suspected injury and implement necessary and appropriate care to prevent further complications. A physician shall be notified immediately of any change in the resident’s condition as a result of the incident and shall evaluate the resident’s condition and the circumstances surrounding the incident and prescribe medical care as needed. The resident’s family shall be promptly notified of the incident whether the resident suffers an injury or not. All incidents shall be investigated by the Director of Nursing or a competent designee.

-1654. If the investigation reveals that a staffing issue contributed to the incident, the State shall take those measures necessary to resolve the issue. 55. Upon completion of the investigation, the Director of Nursing, in conjunction with other staff, including the Administrator, where appropriate, shall determine if further action should be taken. Further action may include, but is not necessarily limited to: education with the staff, resident, and/or others involved; referral of the resident to an appropriately comprised interdisciplinary team for evaluation and implementation of preventive measures; or appropriate disciplinary action of any staff involved. The family of the resident(s) involved in the matter shall be kept advised and informed of the outcome and subsequent action of the investigation, where appropriate and where provided by law. 56. The Administrator and the Director of Nursing shall meet daily to discuss any incidents as well as any measures that should be taken to prevent further occurrences (the Administrator and Director of Nursing may appoint designees to serve this function for weekends and holidays only). The Administrator shall implement measures to prevent, to the extent possible, recurrence of incidents involving neglect, abuse, resident-onresident assaults, and other unusual occurrences. Further, the Administrator shall ensure that such incidents, including

-17incidents of unknown origin, be reported appropriately to state authorities in accordance with state statutes and regulations. See 42 C.F.R. § 483.13(c)(2).
57. For any resident who sustains more than one injury during any three-month period of time, the Director of Nursing, or the Director’s designee, shall refer the record(s) of each incident to an appropriately comprised interdisciplinary team for review. The State shall implement all corrective measures necessary to avoid future injuries, to the extent possible. The team’s evaluation shall include reviewing the resident’s medical record, current Minimum Data Sets (MDS), the current care plan, and interviewing direct caregivers.
E. FALL PREVENTION 58. The State shall ensure that Ft. Bayard residents are not exposed to unreasonable risk of harm associated with falling. 59. The State shall assess each resident, upon admission and periodically thereafter, to determine whether the resident is at risk for falls. Because many falls occur as a result of the need to use the bathroom, such assessments shall pay particular attention to the need for bowel and bladder training or continence maintenance. For all residents who are identified to be at risk of falls, the State shall: a. Develop and implement a proactive, individualized fall prevention plan;

-18b. Include the residents’ fall prevention plans in their care plans; c. Provide each resident with adequate supervision to prevent falls to the extent reasonably possible; d. Ensure that each resident receives adequate and appropriate assistive devices to prevent falls; e. Utilize adequate safety devices to prevent falls; and f. Take actions to ensure that the residents’ environment remains as free of fall hazards as is possible. 60. Anytime a fall occurs, the State shall, in a timely manner: a. Assess the resident’s health status and take any measure necessary to ensure the health and well-being of the resident; b. Complete an incident report and submit it to the Director of Nursing and/or her designee; c. Notify the resident’s family/responsible party; d. Investigate the fall and determine the possible cause(s) of the fall, and identify and implement any appropriate measures to prevent similar falls from occurring in the future; e. Maintain records of all falls at Ft. Bayard, including: the date and time of the fall; the specific cause of the fall, if known; the identity of the nursing staff member or members who were involved in the treatment of the resident at the time of the

-19fall; and any follow-up education provided to these staff members; and
f. Analyze the data on a monthly basis, and take actions to eliminate, to the extent possible, the causes of falls.
F. NUTRITION, HYDRATION, AND ASPIRATION PREVENTION 61. The State shall provide each resident with sufficient nutritional and hydration services and aspiration prevention and care to ensure that each resident’s health care needs are met. 62. The State shall conduct adequate individual nutrition and hydration assessments, by staff trained adequately to do so, and develop and implement appropriate interventions which shall be reviewed and updated as required by 42 C.F.R. § 483.23(i)-(j). In accordance with these assessments, the State shall ensure that each resident’s diet meets his or her daily nutritional and special dietary needs. 63. The State shall ensure that residents who need assistance in eating are assisted by adequately trained staff. 64. The State shall ensure that adequate fluids are available and accessible to residents at all times. 65. The State shall provide adequate care to prevent aspiration. Utilizing an interdisciplinary approach, Ft. Bayard shall properly assess and appropriately treat, in accordance with generally accepted professional procedures, residents with

-20swallowing problems and residents who need assistance to eat orally safely. To this end, Ft. Bayard shall:
a. Provide adequate care for those residents at risk of aspirating, take any appropriate steps to ameliorate the individual’s aspiration risk, and develop and implement an individualized feeding and positioning plan for each individual identified as at risk of aspirating;
b. Provide competency-based training to staff in how to properly implement the feeding and positioning plans, and develop and implement a system to regularly monitor the progress of the residents who are at risk of aspirating to ensure that the staff are adequately taking the appropriate assessment, diagnostic, supervision, and treatment steps necessary to ameliorate the individual’s risk; and
c. Ensure that residents’ medication regimens do not pose undue risk of aspiration.
G. ACTIVITIES PROGRAM 66. Each Ft. Bayard resident shall be provided, in accordance with the resident’s comprehensive assessments and care plan, an ongoing program of activities, with a special emphasis on recognizing and treating depression, that meets the residents’ needs consistent with federal regulations. 67. The activities program shall be directed by a qualified therapeutic recreation specialist or a qualified activities professional.

-2168. The State shall provide sufficient supplies and staff to facilitate resident participation in, or at, activity programs. Activities shall be of sufficient duration to have a positive impact on the resident’s well-being and shall involve interaction with others. 69. The State shall ensure that each resident is out of bed for the maximum amount of time possible in accordance with the resident’s care plan and the wishes of the resident. 70. The State shall ensure that adequate and appropriate activities shall take place on weekends and evenings, as well as during the weekdays. 71. The State shall give all residents sufficient advance notice of all available activities and events, and residents shall be offered and provided assistance to attend or participate in such activities and events.
H. ENVIRONMENT 72. The State shall maintain the environment at Ft. Bayard in a manner that promotes care for the residents and maintains or enhances dignity, respect, and individuality of residents. 73. The State shall ensure that residents’ rooms and the physical environment of Ft. Bayard provide residents with an adequate amount of privacy within the limits of the current physical plant.

-22I. MOST INTEGRATED SETTING 74. Qualified professionals shall evaluate each resident on a quarterly basis to determine whether the resident is being served in the most integrated setting appropriate to the resident’s needs in accordance with the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq.; 28 C.F.R. § 35.130(d). 75. The State shall implement professional decisions that a resident can be served in a more integrated setting by transferring the resident to the alternative setting when the resident is advised of and does not oppose an alternative setting. 76. Before any resident is transferred to a more integrated setting, the State shall determine that the setting is capable of meeting the resident’s needs. 77. The State shall make reasonable efforts to redress barriers that prevent individual Ft. Bayard residents, particularly those residents with mental illness, from being served in an alternative setting. J. FEDERAL STATUTORY COMPLIANCE 78. In the operation and management of Ft. Bayard and in providing services to Ft. Bayard residents, Ft. Bayard shall achieve compliance with all applicable federal statutes and applicable implementing regulations, including but not limited to

-23the following laws, to the extent they apply to Ft. Bayard: Title XVIII of the Social Security Act, 42 U.S.C. §§ 1395i-3 et seq.; Title XIX of the Social Security Act, 42 U.S.C. §§ 1396r et seq.; Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12132 et seq.; and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794.
K. IMPLEMENTATION OF THE SETTLEMENT AGREEMENT 79. The effective date of this Settlement Agreement will be the date the Settlement Agreement is entered as an order of the Court. 80. Except where otherwise specifically indicated, the State shall achieve compliance with all of the provisions of this Settlement Agreement within one year of its effective date. 81. The State contends that, as of the effective date of this Settlement Agreement, the State is in compliance with each and every requirement of the Settlement Agreement. For the purposes of this Settlement Agreement, “provision” shall be defined as each complete Paragraph of Section III of the Settlement Agreement (e.g., Section III. A. subparagraphs 33-41). Sub-paragraphs are not severable. 82. Within one month of the effective date of this Settlement Agreement, the State shall communicate to Ft. Bayard employees and independent contractors involved in providing resident care of the requirements set forth in this Settlement Agreement that are applicable to their respective job duties.

-2483. The DOJ and its expert consultants and agents may, at their discretion, tour Ft. Bayard to assess compliance with this Settlement Agreement. 84. Prior to any tour, the DOJ shall provide reasonable notice to the State. Within a reasonable time in advance of the tour, the DOJ shall identify any expert consultants it plans to use on the tour. 85. The DOJ and its attorneys, expert consultants, and agents shall have full and complete access to the facility, facility records, resident records, staff records, state records relating to this Settlement Agreement, residents, and employees of the State and Ft. Bayard upon reasonable notice to the State for the purpose of ascertaining compliance with this Settlement Agreement. The DOJ shall have the right to conduct confidential interviews with residents. Such access shall continue until this Settlement Agreement is terminated. 86. Ft. Bayard shall promptly forward to the DOJ any mortality reviews, including incident reports, conducted in accordance with Paragraph 40 above. 87. The State shall respond to any written questions from the DOJ concerning the State’s compliance with this Settlement Agreement, within 30 days of receipt of such written questions. The State shall provide the DOJ with access to any requested documents regarding the State's compliance with the requirements of this Settlement Agreement.

-2588. The State shall maintain sufficient records to document its compliance with all of the requirements of this Settlement Agreement, for the duration of the Settlement Agreement. 89. The State shall designate a single point of contact to coordinate and oversee this Settlement Agreement. 90. The parties agree to defend the provisions of this Settlement Agreement. The parties shall notify each other of any court challenge to this Settlement Agreement. In the event any provision of this Settlement Agreement is challenged in any local or state court, removal to a federal court shall be sought. 91. This Settlement Agreement shall be binding on all successors, assignees, employees, agents, and all those working for or on behalf of the State. 92. In the event any provision of this Settlement Agreement is declared invalid for any reason by a court of competent jurisdiction, said finding shall not affect the remaining provisions of this Settlement Agreement. 93. Throughout the duration of the Settlement Agreement, the DOJ and its expert consultants and agents shall maintain the confidentiality of all information provided pursuant to this Settlement Agreement consistent with state and federal law and consistent with the law enforcement responsibilities of the DOJ. In addition, throughout the duration of this Settlement Agreement, letters between counsel for the DOJ and counsel for the State shall be confidential.

-2694. Within a reasonable period of time after the conclusion of any tour, the DOJ shall make available to Ft. Bayard any posttour reports prepared by its expert consultants. V. COMPLIANCE AND TERMINATION 95. The purpose of this Settlement Agreement is that the State will be able to achieve desired outcomes for and provide the necessary protections, supports, and services to Ft. Bayard residents. 96. In its monitoring role, the DOJ will periodically tour Ft. Bayard to determine the status of the facility’s compliance with the Settlement Agreement. As part of this monitoring, the DOJ will conduct a tour of Ft. Bayard approximately six months after the effective date of the Settlement Agreement to determine the status of Ft. Bayard’s compliance with the terms of this Settlement Agreement. At that time, should the DOJ find the facility in compliance with any or all provisions (as defined in Paragraph 81) of the Settlement Agreement, the parties agree, as expeditiously as possible upon such finding(s), to jointly move the Court to terminate jurisdiction over, and close those Settlement Agreement provisions, including the entire Settlement Agreement if so agreed upon by the parties. 97. For the remainder of the time that this Settlement Agreement remains in effect and the DOJ continues its monitoring, should the DOJ find the facility in compliance with any or all provisions (as defined in Paragraph 81) of the Settlement

-27Agreement not terminated pursuant to Paragraph 96, the DOJ will notify the State of such findings and shall cease monitoring of such provision(s) for the remainder of the Settlement Agreement.
98. Regardless of the above, this Settlement Agreement shall nevertheless terminate and the case dismissed two years after the effective date of the Settlement Agreement. The Settlement Agreement may terminate prior to the two-year date if the parties agree that the State is in substantial compliance with each of the provisions of this Settlement Agreement. The burden will be on the State to demonstrate substantial compliance.
IV. ENFORCEMENT OF THE SETTLEMENT AGREEMENT 99. This Settlement Agreement is enforceable only by the parties and is binding upon the parties, by and through their officials, agents, employees, assigns, and successors. 100. In the event of failure by the State to comply with this Settlement Agreement in whole or in part, the DOJ retains the right to seek appropriate judicial relief in federal court. Prior to seeking such relief, the DOJ will provide the State written notice of the breach. The DOJ may seek judicial relief if the State fails to cure such breach within 60 days from receipt of the written notice of the breach. However, in the case of an emergency posing an immediate threat to the health and safety of Ft. Bayard residents, the DOJ may omit the notice and cure requirements herein before seeking judicial action.

-28101. Failure by any party to enforce this entire Settlement Agreement or any provision thereof with respect to any deadline or any other provision herein shall not be construed as a waiver of its right to enforce other deadlines and provisions of this Settlement Agreement. 102. To the extent that any of the legal authorities cited in this Settlement Agreement (e.g., federal statutes, regulations, or case law) are amended or superceded, this Settlement Agreement shall be amended accordingly. VII. MODIFICATION OF THE SETTLEMENT AGREEMENT 103. If, at any time, any party to this Settlement Agreement desires to modify it for any reason, that party will notify the other party in writing of the proposed modification and the reasons therefor. No modification will occur unless there is written agreement by the parties. If the parties are not able to reach an agreement, the party seeking the modification may petition the Court for a modification.

AGREED TO: FOR THE UNITED STATES:
LARRY GOMEZ Acting United States Attorney

/s/ Wan J. Kim WAN J. KIM Assistant Attorney General Civil Rights Division

/s/ Elizabeth Mitchell JAN ELIZABETH MITCHELL Assistant U. S. Attorney P.O. Box 607 Albuquerque, NM 87102 (505) 346-7274 jan.mitchell@usdoj.gov

-29-
/s/ Shanetta Y. Cutlar SHANETTA Y. CUTLAR Chief Special Litigation Division
/s/ Judith C. Preston JUDITH C. PRESTON Deputy Chief Special Litigation Section

/s/ Verlin H. Deerinwater VERLIN H. DEERINWATER JOSHUA C. DELANEY Attorneys Special Litigation Section 601 D. St. NW - Room 5928 Washington, DC 20004 (202) 514-6260 (202) 514-6273 (fax)

FOR THE STATE OF NEW MEXICO:
/s/ Michelle Lujan Grisham Michelle Lujan Grisham Cabinet Secretary New Mexico Department
of Health

-30-
/s/ Kathyleen M. Kunkel Kathyleen M. Kunkel Office of General Counsel New Mexico Department of Health 1190 St. Francis Drive Santa Fe, NM 87502 (505) 827-2997

SO ORDERED: This

16th

day of May

, 2007

__________________________________ UNITED STATES DISTRICT COURT JUDGE

 
 Case 1:07-cv-00470-WJ-DJS Document 4 Filed 02/05/08 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA

)

)

Plaintiff,

)

)

v.

)

) No. CV-07-470 WJ/DJS

)

THE STATE OF NEW MEXICO;

)

and Alfredo Vigil, Secretary, )

Department of Health, in her )

official capacity only,

)

)

)

Defendants.

)

)

ORDER ENTERING JOINT MOTION AND STIPULATION FOR PARTIAL DISMISSAL OF SETTLEMENT AGREEMENT

For good cause shown, and in consideration of the parties’

Joint Motion and Stipulation for Partial Dismissal of the

Settlement Agreement, the Court hereby GRANTS the Joint Motion

and dismisses the following provisions of the May 16, 2007,

Settlement Agreement:

Provision III-H (Environment); and

Provision III-I (Most Integrated Setting.

All other provisions of the Settlement Agreement remain in

force and effect.

SO ORDERED

UNITED STATES DISTRICT COURT JUDGE

Case 1:07-cv-00470-WJ-DJS Document 4 Filed 02/05/08 Page 2 of 2
-2Submitted by Email 1/28/2008 JAN ELIZABETH MITCHELL Assistant United States Attorney
Approved 1/25/2008 KATHYLEEN M. KUNKEL Office of General Counsel New Mexico Department of Health
C:\Temp\notes6ED8F7\stipulation partial dismissal order final to state 01 14 07.wpd

 
 Case 1:07-cv-00470-WJ-DJS Document 10 Filed 08/04/09 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA,

Plaintiff,

vs.

CIV 07-00470 WJ/DJS

THE STATE OF NEW MEXICO, and ALFREDO VIGIL, Secretary, Department of Health, in his Official Capacity, only

Defendants.

JOINT MOTION TO ACCEPT CORRECTIVE ACTION PLAN AS ORDER OF THE COURT

Pursuant to Paragraph 3 of the Court’s Order of May 28, 2009, the Plaintiff, the

United States of America, and the Defendants, the State of New Mexico, and Alfredo

Vigil, Secretary, Department of Health, hereby jointly present for the Court’s approval

the attached Corrective Action Plan (“CAP”). The CAP addresses areas of non-

compliance with the Court’s May 16, 2007 Settlement Agreement concerning conditions

of resident care and treatment at the Ft. Bayard Medical Center (“Ft. Bayard”).

The CAP sets forth actions, identifies the Ft. Bayard staff responsible for

implementing those actions, and provides the current status of the State’s efforts to

implement those actions. Attached to the CAP are a series of policies and procedures

and other documents that relate to, and provide further detail, about the action steps

required by the CAP and are incorporated into the CAP by reference. The Parties

recognize that these policies and procedures may be further refined and have agreed to

work cooperatively on any further refinements.

Case 1:07-cv-00470-WJ-DJS Document 10 Filed 08/04/09 Page 2 of 2

The United States and its expert consultants have reviewed the CAP and

attachments and agree that they are appropriate to address the areas of deficiency at

Ft. Bayard.

Therefore, the Parties respectfully request the Court to enter the CAP as an

order of the Court. A proposed Order will be provided by email.

Respectfully submitted,

FOR THE STATE OF NEW MEXICO

FOR THE UNITED STATES

Approved 7/30/2009 KATHLEEN M. KUNKEL General Counsel New Mexico Department of Health 1190 St. Francis Drive Santa Fe, New Mexico 87502 (505) 231-9148

LORETTA KING Acting Assistant Attorney General
SHANETTA Y. CUTLAR Chief, Special Litigation Section
JUDITH C. PRESTON Deputy Chief, Special Litigation Section

VERLIN DEERINWATER KENYAN R. McDUFFIE Attorneys, Special Litigation Section Civil Rights Division 601 D Street, NW, Room 5928 (202) 514-6260 Verlin.deerinwater@usdoj.gov

GREGORY J. FOURATT United States Attorney

Filed electronically 8/4/09 JAN ELIZABETH MITCHELL Assistant United States Attorney P.O. Box 607 Albuquerque, NM 87103 (505) 346-7274 E-mail: jan.mitchell@usdoj.gov

N:\JMitchell\Ft. Bayard\Joint Motion CAP.wpd

2

 
 Case 1:07-cv-00470-WJ-DJS Document 13 Filed 10/17/11 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA,
Plaintiff,
vs.
THE STATE OF NEW MEXICO; and Catherine Torres, Secretary, Department of Health, in her official capacity only,
Defendants.

Civil No. 07-470 WJ-DJS

ORDER DISMISSING COMPLAINT AND COURT ORDERS Upon a Joint Motion to Dismiss the Complaint and Court Orders submitted by the Parties and for good cause shown, it is hereby ORDERED: 1. That the Joint Motion to Dismiss the Complaint and Court Orders in this case is GRANTED: 2. That the May 14, 2007 Complaint filed in this action is DISMISSED; and 3. That the May 16, 2007 Settlement Agreement and all subsequent Court Orders entered in this case are DISMISSED.

UNITED STATES DISTRICT JUDGE

Case 1:07-cv-00470-WJ-DJS Document 13 Filed 10/17/11 Page 2 of 2
SUBMITTED BY:
/s/ by AUSA Jan Elizabeth Mitchell for VERLIN DEERINWATER Senior Trial Attorney United States Department of Justice Civil Rights Div. Washington, DC 20004 (202) 514-6260 verlin.deerinwater@usdoj.gov

 
 U.S. Department of Justice Civil Rights Division
Special Litigation Section - PHB 950 Pennsylvania Avenue, NW Washington, DC 20530
May 1, 2006
The Honorable Bill Richardson Governor of New Mexico Office of the Governor State Capitol Room 400 Santa Fe, NM 87501
Re: CRIPA Investigation of Fort Bayard Medical Center, Bayard, New Mexico
Dear Governor Richardson:
I am writing to report the findings of the Civil Rights Division’s investigation of conditions and practices at the Fort Bayard Medical Center (“Ft. Bayard”) in Bayard, New Mexico. On April 18, 2005, we notified you of our intent to conduct an investigation of Ft. Bayard pursuant to the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997. CRIPA gives the Department of Justice authority to seek remedies for any pattern and practice of conduct that violates the constitutional or federal statutory rights of nursing home residents who are served in public institutions.
In July and October 2005, we conducted on-site inspections of Ft. Bayard with expert consultants in various disciplines. Our first tour focused on the general care and treatment of residents, while our second tour examined the facility’s discharge planning and community integration practices. Before, during, and after our site visits, we reviewed a wide variety of relevant facility documents, including policies and procedures, and medical and other records relating to the care and treatment of Ft. Bayard residents. During our visits, we also interviewed Ft. Bayard administrators, professionals, staff, and residents. In keeping with our pledge to share information and to provide technical assistance where appropriate regarding our investigatory findings, we conveyed our preliminary findings to

- 2 -

counsel for the State of New Mexico (“State”) and Ft. Bayard administrators during verbal exit presentations at the close of each of our on-site visits. We conveyed our deep concerns about the life-threatening conditions at the facility. Shanetta Y. Cutlar, Chief of the Special Litigation Section, sent a July 25, 2005 letter to counsel for the State of New Mexico memorializing our concerns and documenting the nursing home’s inadequate medical care and dangerous psychotropic medication usage and requesting that the State take immediate remedial action to address the most serious deficiencies.1
Before outlining our findings, we would like to express our appreciation to the State and to Ft. Bayard staff and administration for the extensive cooperation and assistance provided to us throughout our investigation. We particularly appreciated the assistance of Secretary Michelle Lujan Grisham and Aging and Long-Term Services Secretary Deborah Armstrong. We hope to continue to work with the State and officials at Ft. Bayard in the same cooperative manner going forward.
Consistent with our statutory obligations under CRIPA, I now write to advise you formally of the findings of our investigation, the facts supporting them, and the minimal remedial steps that are necessary to remedy the deficiencies set forth below. 42 U.S.C. § 1997b(a). Specifically, we have concluded that numerous conditions and practices at Ft. Bayard violate the constitutional and federal statutory rights of its residents. In particular, we find that residents of Ft. Bayard suffer significant harm and risk of harm from the facility’s inadequate medical and nursing care services; improper and dangerous psychotropic medication practices; failure to provide adequate safety; inadequate nutritional and hydration services; and inadequate restorative care and specialized rehabilitation services. Youngberg v. Romeo, 457 U.S. 307 (1982); Title XIX of the Social Security Act, 42 U.S.C. §§ 1395, 1396r and implementing regulations, 42 C.F.R. § 483 Subpart B (Medicaid and

1

Department of Health Secretary Michelle Lujan Grisham

responded to Ms. Cutlar’s letter on August 12, 2005. In her

letter, Secretary Grisham set forth the actions the State pledged

to take on an immediate basis to address the dangerous

conditions. We appreciate the State’s willingness to address

these issues on an expedited basis. During our September 2005

tour of Ft. Bayard, we spoke with Secretaries Grisham and

Armstrong about our findings and the State’s response. We were

pleased to note during this tour that the State had taken several

steps to begin to remedy the deficiencies we identified.

- 3 -

Medicare Program Provisions). The deficiencies are evidenced through preventable injuries, illnesses, and deaths. In addition, we find that the State fails to provide services to certain Ft. Bayard residents in the most integrated setting, as required by the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132 et seq.; 28 C.F.R. § 35.130(d); see also Olmstead v. L.C., 527 U.S. 581 (1999).
I. FACILITY DESCRIPTION
Ft. Bayard is a state-owned and -operated nursing home in the southwestern part of the state. The nursing home is a threestory 1920s building located on an old military facility. Although the facility is licensed to provide care for 210 residents, at the time of our tour, the facility was only serving 169 residents. The majority of residents are age 65 or older, but the nursing home admits a significant percentage of younger residents – almost a third – who bring with them an accompanying set of behavioral management issues and a wide diversity of interests. At the time of our tour, about 60 residents had a mental health diagnosis and four residents were diagnosed with developmental disabilities. About 90 residents had dementia and 112 were diagnosed with depression.
The facility is divided into six “neighborhoods.” One neighborhood provides nursing services to veterans only. There are few private rooms. Most rooms can house three residents, although there are several rooms housing two residents. The average length of stay at Ft. Bayard is a little more than four years.
II. FINDINGS
A. INADEQUATE MEDICAL AND NURSING CARE
Residents of publicly-operated institutions, such as Ft. Bayard, have a Fourteenth Amendment due process right to adequate health care. Youngberg, 457 U.S. at 315; Yvonne L. v. New Mexico Dep’t of Human Services, 959 F.2d 883 (10th Cir. 1992) (persons with developmental disabilities committed to State institutions have a Fourteenth Amendment substantive due process right to reasonable care and safety); see also 42 U.S.C. § 1396r(b)(4)(A), 42 U.S.C. § 1395i-3(b)(4)(A) (facility must provide nursing and medical services to “attain or maintain the highest practicable physical, mental, and psycho-social well-being of each resident”).

- 4 -

Our investigation revealed a wide range of dangerously deficient medical and nursing care practices. These practices not only failed to comply with federal regulations or meet professional standards, but were in fact aiding and contributing to the needless suffering and untimely deaths of Ft. Bayard’s residents. We found numerous situations where residents’ last days of life were spent in miserable pain as they died from the effects of what appeared to be reckless and almost willful disregard to their health and safety. In fact, in practically every record we reviewed of deceased or current Ft. Bayard residents, we discovered life-threatening omissions and commissions of treatment. In every medical record we reviewed, our consultants found substantial departures from the generally accepted standards in nursing home care.
The pervasive medical and nursing care deficiencies we identified tend to fall into three areas. First, the nursing home fails to adequately assess, plan for, or care for the residents’ healthcare needs. Second, the nursing home’s use of psychotropic medications is dangerous. And third, the nursing home subjects its residents to undue and unnecessary pain and suffering.
1. Inadequate Healthcare Plans
Ft. Bayard is required by federal regulations to establish a comprehensive care plan for each resident that specifically addresses individualized needs. 42 C.F.R. § 483.20. Assessments must be conducted upon admission and periodically thereafter to ensure there is a comprehensive, accurate, and standardized record of each resident’s functional capacity. 42 C.F.R. § 483.20. These assessments are then used by staff to develop a comprehensive care plan specific to the needs of each resident. 42 C.F.R. § 483.20(a)(1). Adequate assessments include measurable objectives and timetables to assist the clinical and mental health staff in ensuring that all of the resident’s needs are met in a timely manner. 42 C.F.R. § 483.20(k)(i). The physician is required by federal regulations to take an active role in the care of each resident by reviewing, at each visit, the resident’s total program of care, including medications and treatments. 42 C.F.R. § 483.40(b). This care plan must be periodically reviewed and revised, using the results of the resident’s regular assessments, to assure continued accuracy. 42 C.F.R. § 483.20(k)(2)(iii).
In our judgment, Ft. Bayard fails to comply with every one of the above regulations. Ft. Bayard staff fail to assess adequately, plan, and respond to the serious medical and nursing

- 5 -


needs of its residents. We highlight below a few examples where these failings have resulted in needless suffering and untimely, and in some deeply distressing cases, preventable deaths.

C

On July 20, 2005, a 71-year-old resident with diabetes died.

The resident’s medical chart revealed numerous instances of

abnormal blood-sugar findings during the six-month period

preceding his death. Indeed, on June 25, 2005, the

resident’s blood-sugar was so low that it was life-

threatening. Neither medical nor nursing staff at Ft.

Bayard responded. No one at Ft. Bayard developed a

healthcare plan to respond to this life-threatening

situation. Staff appeared to ignore obvious “red flags,”

and the resident died. There is a strong possibility that

the resident died as a result of Ft. Bayard’s improper care

planning and failure to implement an adequate response to

the resident’s diabetes and diabetic emergencies.

C

Another startlingly similar example of Ft. Bayard’s failure

to develop and implement adequate care plans in the face of

abnormal test results involves the case of a 56-year-old

resident who, on at least two separate occasions, had

laboratory tests that revealed the resident was not

receiving an adequate amount of his needed anti-convulsant

medication. Despite these findings, no plan was developed

or implemented to correct the seizure mediation regimen. As

a result, the resident subsequently suffered continuous

uncontrolled seizures and had to be admitted to an acute-

care hospital. The resident died shortly thereafter. Ft.

Bayard’s failure to develop and implement an adequate

seizure management program directly contributed to this

resident’s death and represents a gross departure from

generally accepted professional standards. If Ft. Bayard

staff had adequately monitored and responded to the changes

in the resident’s condition, the resident would not have

died at the time and in the manner he did.

C

Another Ft. Bayard resident died in April 2005, within a

week after being admitted for rehabilitation following hip

fracture surgery. Upon admission, this 92-year-old resident

was recognized as being at high risk for aspiration due to

his Parkinson’s disease, and Ft. Bayard staff developed a

special diet and a plan for feeding precautions for him.

Part of the feeding plan required that he be fed liquids

either with a spoon or by being given “very small sips.” Two

days later, despite these precautions, nursing staff

attempted to feed him greater quantities of liquid than they

should have. Because the resident was “not swallowing,” the

- 6 -


liquid had to be "removed" from his mouth. Two days after that, he was noted to be coughing and choking during meals, became delirious (likely due to the fact that he had developed aspiration pneumonia, an infection or inflammation in the lungs caused by the inhalation of food or fluid), and was "call[ing] out for help." He soon became lethargic, but nursing staff continued their dangerous practice of feeding him the liquid improperly. The resident died two days later of chronic aspiration - one week after being admitted to Ft. Bayard. Ft. Bayard never assessed his respiratory status or adequately followed-up on his choking and coughing episodes. If his feeding plan had been appropriately implemented, the resident would not have died at the time or in the manner that he did. Thus, this resident’s care was a substantial departure from generally accepted professional standards.

C

Another untimely death occurred in the case of a 94-year-old

resident who died of aspiration pneumonia in May 2005 after

just over a year’s stay at Ft. Bayard. She was admitted due

to progressive confusion, Alzheimer’s Disease, agitation,

and a number of other medical conditions. Her condition

declined during her stay at Ft. Bayard, and during the last

several months of her life, she had problems swallowing.

She was seen on multiple occasions by Ft. Bayard’s staff

responsible for diagnosing swallowing difficulties.2 Those

staff identified the swallowing difficulty and made specific

recommendations to the nurses to address the risk of

aspiration pneumonia for this resident. However, nursing

staff failed to implement the recommendations, which is a

stark departure from generally accepted professional

standards. The resident aspirated numerous times,

ultimately contributing to her untimely death.

C

Yet another untimely death involved a 67-year-old resident

admitted to Ft. Bayard in January 2005. He was diagnosed

with advanced Alzheimer’s Disease, hypertension, coronary

artery disease, and peripheral vascular disease. He also

had significant behavioral problems and was easily agitated.

He died just over three months after being admitted to the

nursing home. During his stay at Ft. Bayard, he was

described as “consistently agitated,” for which he was

prescribed psychotropic medications. Staff also noted that

he “ate poorly,” and “spent most of his day in a wheelchair

2

Residents with swallowing difficulties are at risk of

developing life-threatening aspiration.

- 7 -

attempting to remove the lap buddy.”3 In February 2005, x-rays of bones in one of the resident’s feet revealed that, due to a combination of infection and the resulting loss of bone calcium, the bone had developed a “moth eaten appearance.” The resident’s entire foot remained swollen and painful until his untimely demise. According to Ft. Bayard records, the resident continued to do poorly until April 4, 2005, when he suffered what a Ft. Bayard physician described as a “classic....massive right-sided aspiration.” The resident died four days later of aspiration pneumonia. This is another case of multiple failings of medical and nursing care staff to assess and address a resident’s declining condition. If this resident had had adequate and professionally acceptable care plans in place and implemented for his various needs, this resident most likely would have lived several additional years.
2. Dangerous Psychotropic Medication Practices
Federal regulations require nursing home residents to be free from unnecessary anti-psychotic medication. 42 C.F.R. § 483.25(l)(1). Federal law defines an unnecessary medication as any medication that is excessive in dose; excessive in duration; without adequate monitoring or indication for use; or without specific target symptoms. Id. Federal law also requires that residents receive gradual dose reductions and unless contraindicated, behavioral interventions aimed at reducing medication use. 42 C.F.R. § 483.25(l)(2)(ii).
Ft. Bayard prescribes psychotropic medications at more than double the rate of nationwide nursing home averages. At the time of our July 2005 visit, 50% of Ft. Bayard’s residents were on psychotropic medications, as compared to the national average of 23%. In nearly every record we reviewed where psychotropic medication was prescribed, there were often multiple failings, including: the absence of a diagnosis justifying the use of the medication; the absence of behavioral indications warranting the administration of the medication; the absence of any evidence that non-medication interventions were tried and/or considered and found ineffective; the absence of monitoring of the medication’s efficacy; the absence of side-effect monitoring; the

3

A “lap buddy” is a restraining device which is attached

to the armrests of a wheelchair, covering the lap of a resident

and preventing a resident from getting up from a wheelchair.

When used appropriately, the device can be a useful tool to

minimize falls and serious injuries.

- 8 -

absence of appropriate response to medication side-effects; and the absence of informed consent for the use of the medication. Medications are also prescribed in excessive dosages. Each of these failures violate federal law governing psychotropic medication practice in nursing homes and has contributed to significant harm to Ft. Bayard’s residents. See 42 C.F.R. § 483.25(l)(1).
Ft. Bayard’s use of psychotropic medication deviates so far from the requirements of federal law and generally accepted professional standards of care that it is shocking. So deviant are Ft. Bayard psychotropic medications practices that residents have suffered and died premature deaths that can be attributed, at least in part, to the nursing home’s psychiatric medications practices. We reviewed ten current residents’ records because the residents were being prescribed psychotropic medication. In nine of those ten cases, the psychotropic drugs were inappropriately prescribed and administered. In 15 of the 20 death charts that we reviewed, we found significant violations with respect to the prescription and administration of psychotropic medications.
Because of the risks that psychotropic medications pose to nursing home residents in particular, their use is highly regulated and scrutinized under federal law. See 42 C.F.R. § 483.25(l)(1). We found many violations of these federal regulations. For example, the interaction of the medications’ side-effects and the sedation resulting from psychotropic medication are known to cause swallowing difficulties in elders. Residents with swallowing disorders are particularly at risk for aspiration pneumonia4, a life-threatening condition in elders, because they are unable to protect their airways adequately while eating or drinking. Our consultant reviewed six records of residents who had died at Ft. Bayard of aspiration pneumonia. In every case, the resident had been given psychoactive or sedating medications without an appropriate justification or diagnosis and without appropriate side-effects monitoring. Care plan interventions were not carried out or were absent. Signs of medication side-effects and/or aspiration were present but were ignored by both nursing and medical staff prior to the development of the final aspiration event leading to death. Consider the following examples:
4 Aspiration pneumonia is a condition where food or fluid enters the lungs rather than remaining in the esophagus. Once in the lungs, this food or fluid can lead to the development of pneumonia.

- 9 -


C

In June 2005, a 66-year-old resident died of aspiration

pneumonia. He had a long history of behavioral disturbances

while at Ft. Bayard and had been treated with several

different anti-psychotic drugs. Prior to his death, he was

on a daily regimen of anti-psychotic medication nearly ten

times the maximum recommended dosage under federal

guidelines. The resident’s medical record showed no

systematic evaluation of the side-effects of the various

medications, nor did it contain an adequate justification

for the combinations of medications. Ft. Bayard’s dangerous

medication practices contributed to this resident’s death

from aspiration pneumonia.

C

Another untimely death occurred in December 2004, when a

90-year-old resident died less than two months after being

admitted to Ft. Bayard. His death was attributed to

aspiration pneumonia. During his stay at Ft. Bayard, he was

prescribed and administered excessive doses of anti-

psychotic drugs without adequate indications for use of the

medications, informed consent, side-effects monitoring, or

the use of behavioral programming. The anti-psychotic drugs

may have been causing the aspiration. The cause and manner

of this resident’s death was likely preventable.

C

In November 2004, a 56-year-old resident died after

developing aspiration pneumonia. He was being treated

with large amounts of psychotropic medications without

clinical indications. Shortly before his death, he had

“lost his gag and swallow reflex completely,” but nurses

gave him two cartons of a nutritional supplement to drink.

He was subsequently observed to have been unable to swallow

the supplement. Death from aspiration pneumonia occurred

two days later. This resident’s death was also discussed

under the section of this letter addressing Ft. Bayard’s

dangerous medication practices.

C

In June 2005, an 89-year-old resident died of aspiration

pneumonia after a nine month stay at Ft. Bayard. The

resident was taking a number of psychotropic medications,

including at least one known to have severe side effects in

elders. Indeed, at one point the resident reported to

nurses that he was having trouble walking and talking

because he “felt drunk.” The nurse’s response to this red

flag was to restrain the resident in his wheelchair with a

lap buddy. This resident was often restrained for his

behaviors and suffered another common side effect for elders

taking psychotropic medication – constipation. Three months

before he died, the resident went for a 22 day period

without a bowel movement. Constipation can cause increased

- 10 -


aggression, and this resident became increasingly combative, which led to an increase in his psychotropic medications. He died shortly thereafter, of aspiration pneumonia.

C

In May 2005, a 94-year-old resident suffered an untimely

aspiration pneumonia death after just over a year’s stay at

Ft. Bayard. As with many other residents, Ft. Bayard had

placed her on multiple psychoactive medications without

adequate assessments for the need of such medications or

plans to monitor adequately the effects of the medications.

According to Ft. Bayard documents, she was prescribed these

medications for “irritable mood.” She suffered recurrent

bouts of aspiration pneumonia during the last months of

her life, and was seen by Ft. Bayard’s speech therapy staff

on multiple occasions. However, nursing staff failed to

implement and monitor the recommendations made by the speech

therapy staff. This resident’s death was also discussed

under the section of this letter addressing Ft. Bayard’s

failure to develop and implement adequate healthcare plans.

3. Undue and Unnecessary Pain and Suffering

The diagnosis and treatment of pain is integral to the practice of medicine. Generally accepted professional standards mandate that patients with pain, acute or chronic, be treated through aggressive and appropriate means. Treatment of pain is especially urgent for patients who experience pain as a result of a terminal illness, and treatment of pain is an especially important issue in the medical treatment of the elderly. It has been estimated that over 50% of elderly persons in the community, and 80% of those in nursing homes, live with persistent or recurring pain that must be treated. Examples of the causes of chronic pain conditions in older people include osteoarthritis5, various forms of cancer, post-stroke pain, joint pain and peripheral neuropathy6 in diabetes. Federal regulations require nursing homes to assess residents for pain as part of the comprehensive care planning process. 42 C.F.R. § 483.20(d).

In practically every case we reviewed where pain management was an issue, the facility failed to either assess pain

5 Osteoarthritis is a degenerative joint disease that is especially prone to affecting weight-bearing joints and is very common in older persons.
6 Peripheral neuropathy is damage to the nervous system, particularly in the fingers and feet, and is frequently seen in older people with diabetes.

- 11 -


adequately, prescribe appropriate medication, or monitor the effectiveness of pain medication. The nursing home failed to manage pain adequately in long term residents, post-operative residents, and dying residents alike. Also, agitated residents with dementia were often not adequately assessed for pain, but were medicated with psychotropic drugs instead. As a result, residents of Ft. Bayard suffer undue and unnecessary pain and suffering. Consider the following examples:

C

A 66-year-old resident with metastatic breast cancer was

admitted to Ft. Bayard in June 2004. She was admitted from

an acute care hospital following surgery for a fracture to

her thigh bone caused by cancer that had spread to that

bone. It was known at the outset that the resident was

admitted to receive care until she died from cancer. No

further treatment was possible for her cancer, which had

spread to many of her bones and elsewhere in her body. In

an outrageous departure from accepted professional

standards, nurses failed to list pain management in her plan

of care. Pain management should have been the first item in

her care plan, and nurses should have focused on relief of

pain at least once every single shift. During the early

part of her stay, she was given pills for pain in an amount

equal to 600 mg of morphine per day - a very high dose. The

resident’s condition deteriorated, and she became unable to

swallow the oral medication. In mid-July 2004, she was

changed from the oral medication to a liquid form of

morphine. In a gross mismanagement of pain, staff at Ft.

Bayard prescribed a dose one-tenth the equivalent of the

pills she had been taking. The resident died three days

later. Allowing a human being to die under such

circumstances is unconscionable.

C

A 91-year-old resident was admitted to Ft. Bayard in

December 2004 for rehabilitation therapy to recover from hip

surgery. At the time of her admission, she was screaming in

pain due not only to the surgery but to a large bed sore on

the posterior of her pelvis. Ft. Bayard’s nurse rated her

pain at a 10 on a 0-to-10 scale, yet the resident received

no pain medication at that time. For the next two weeks,

Ft. Bayard prescribed only minimal pain medication. At two

weeks, the resident was given morphine and was noted to be

“less tearful.” In early February 2005, the resident’s pain

appeared to get worse and she was noted to be "grimacing,

moaning and crying in pain." The facility made no changes

to her pain regimen. The resident became combative with

staff, possibly as a result of delirium brought on by

untreated pain. Rather than adequately assessing and

alleviating the resident’s pain, Ft. Bayard responded by

- 12 -


chemically restraining her with psychotropic medications. The combination of pain and psychotropic medications contributed to her decreased appetite and food intake. At one point, the resident lost almost 20 pounds in one month’s time. Again, Ft. Bayard failed to develop a healthcare plan to address this serious weight loss. The resident lived only a few months after admission to Ft. Bayard and died on March 1, 2005. The combination of Ft. Bayard’s failures to develop adequate healthcare plans to address the resident’s pain, behaviors, or nutritional needs resulted in the resident suffering unnecessarily and contributed to her untimely death.

C

Another example of Ft. Bayard’s allowing a resident to

suffer needless pain is the case of a 94-year-old woman who

was admitted to Ft. Bayard in January 2004. Among other

conditions, she had a spinal condition and osteoporosis,

which caused her chronic back pain. During the last week of

her life in May, 2004, after having experienced increasing

pain, she was observed as being "confused," "agitated,"

"paranoid," and "restless." During this time, she made the

statement, "I’d rather be dead than let them get me" before

falling to the ground while attempting to get in her

wheelchair. Among other failings, such as Ft. Bayard’s

failure to assess and treat her delirium, the resident’s

pain was not assessed or adequately treated.

C

Another resident of Ft. Bayard, at various times over a

period of about 18 months, suffered a fractured collar bone;

complained of pain in one of his front teeth; had his penis

inflamed so badly that he could not retract the foreskin;

suffered swollen and contused joints in his hand; had

abrasions on his left index and middle fingers; fell off the

toilet; fell two other times in the bathroom; suffered a

black eye from a fall; and fell on his left hip. Pain was

not appropriately assessed, evaluated, managed, or

documented in any of these incidents.

C

On the day before he died, one resident was murmuring “I

hurt. I hurt.” Yet, Ft. Bayard failed to respond

adequately to his pain, causing unnecessary suffering.

C

A resident died at Ft. Bayard after a year’s stay. At the

end of her life, she was not provided adequate pain or

comfort measures and was allowed to suffer needlessly

prior to her death.

- 13 -

Furthermore, the nursing home systemically fails to ensure that pain medications (which are controlled substances) are adequately administered or safeguarded. Specifically, unlicensed medication aides are allowed to administer pain medication to residents without direct supervision by nurses. Indeed, we reviewed two instances where staff charted that pain medication had been “refused” by a resident, but the refused medication could not be accounted for. In another case, a bottle of liquid morphine had been “dropped,” although the broken bottle was never produced. Opiate medications are stored en masse in the narcotics drawers of the medication carts without individuals’ names or prescriptions.
Added to these two unsafe practices is the fact that Ft. Bayard staff are not adequately monitoring residents to determine exactly how much pain medication residents are, in fact, receiving. We found many residents complaining of being in pain even though the facility was prescribing large amounts of narcotic pain killers to these residents. Ft. Bayard was overrelying on residents to report whether or not they had received their medications. Residents with cognitive impairments, such as residents with dementia, are often not be able to remember or state whether they have received pain medication. Thus, this practice further allows for the possibility of opiate medications not being given to residents as prescribed.
Finally, we asked the managers at Ft. Bayard how many of the staff at Ft. Bayard likely take illegal drugs and were told it was a significant percentage. We were also told that staff at Ft. Bayard are not tested for drugs unless they are in special positions that place others at risk.
This combination of deficient practices and evidence has led us to the disquieting possibility that certain Ft. Bayard staff are purloining opiate medications away from residents. Thus, as unconscionable as it may seem, Ft. Bayard staff may very well be allowing residents to suffer needless pain while they themselves take (or sell) medication intended for residents. Obviously, if this is occurring, it is a gross departure from accepted professionals standards of practice and is likely a violation of federal and state criminal law.
B. INADEQUATE PROTECTION FROM HARM
Residents of Ft. Bayard have the constitutional right to live in reasonably safe conditions and to be provided the essentials of basic care. See Youngberg, 457 U.S. at 315. Federal statutes governing the operation of nursing homes create

- 14 -


similar rights. See, e.g., Grants to States for Medical Assistance Programs (Medicaid), 42 U.S.C. § 1396r; Health Insurance for Aged and Disabled (Medicare), 42 U.S.C. § 1351i-3; and their implementing regulations, 42 U.S.C. § 483 Subpart B. However, Ft. Bayard is failing to ensure that residents are kept free from harm or unnecessary risk of harm. Specifically, the facility is failing to ensure that residents are free from harm at the hands of other residents; that residents are protected adequately from the risk of falling; and that care is provided in an environment that comports with federal regulations.

1. Resident-on-Resident Violence

During our tours of Ft. Bayard, State officials told us that Ft. Bayard acts as a “safety net” for the State of New Mexico. As a result, Ft. Bayard accepts residents that private nursing homes refuse. Consequently, Ft. Bayard admits a significant number of residents, both elderly and not, with serious mental health and behavioral issues. These residents are often aggressive, combative, and prone to physical aggression against other residents, who are often very vulnerable, as well as staff members.

We uncovered significant evidence, in chart after chart, where residents would repeatedly become combative with other residents or staff without adequate interventions from staff to ameliorate the harm or risk of harm. For example, the following is taken from one resident’s chart in early 2005:

January 29

Resident struck nursing assistant in the face;

February 11 Resident punched another resident;

February 20 Resident threatened to hit staff member;

March 3

After being punched in the mouth by another resident, resident scratched the aggressor on the chest;

March 4

Resident punched another resident in the mouth;

March 12

Resident was struck by another resident in the mouth;

April 3

Resident struck another resident twice in the face;

- 15 -


April 6

Resident struck another resident in the face, cutting the resident’s lip; and

April 18

Resident was hit by another resident in the face.

Another resident’s chart told a similar story:

January 6

Resident grabbed another resident on the arm and the other resident possibly hit the resident on the arm and hands;

January 8

Resident attempted to hit staff and other residents;

January 13

Staff noticed bump above resident’s right eye;

January 18

Resident aggressive and trying to spit and grab staff;

January 20

Resident aggressive with another resident; scratched resident on head, neck, and back;

January 29

Resident had altercation with another resident resulting in a bruise to right hand;

February 8

Resident aggressive with staff;

February 10

Resident aggressive; grabbed a nurse’s arm; hit another resident three times;

February 15 Resident combative with staff;

February 27 Resident aggressive;

March 3

Resident grabbed another resident by the forearm resulting in evident nail imprints;

March 30

Resident hit another resident twice in the face;

April 1

Resident struck another resident;

May through June (multiple dates) Resident combative with staff;

- 16 -


July 6

Resident kicked by another resident resulting in skin tear; and,

July 12

Resident attempted to grab other residents.

The frequency of repeated acts of aggression without appropriate staff intervention demonstrates the nursing home’s inability to adequately treat and manage residents with behavioral disorders and to keep those residents’ peers safe from harm.

We also reviewed situations where residents suffered injuries without an adequate investigation into the injury’s cause. For example, in one two-month period, a resident was found in one instance with blood on his wheelchair, lap tray, and sleeve and in a later instance was found with a skin tear above his eyebrow and bruising to his cheek. Yet, there is no evidence that either event was investigated for potential abuse of the resident. Our consultant found that Ft. Bayard also failed to have adequate quality assurance mechanisms in place to analyze assaults and implement measures to prevent further assaults.

2. Lack of Adequate Fall Prevention Program

Ft. Bayard staff fails to protect residents adequately from the risk of falling. Falls, and the injuries that can result from falls (particularly fractures), pose a serious risk to elderly persons. Generally accepted standards of practice require nursing homes to assess residents for risk of falls, make appropriate diagnoses related to fall risk, develop appropriate care plans to mitigate risk of falls, and supervise residents adequately to protect then from falling. 42 C.F.R. § 483.25(h)(1-2); 483.20(a-k).

According to the nursing home’s data, there were 108 resident falls in the first six months of 2005. Our nursing expert found that the vast majority of these falls were preventable. For example, inappropriate footwear (such as socks, which provide no traction on the slippery nursing home floors); the failure of staff to use a gait belt7 when helping residents, who are known to be at high risk of falling, ambulate; and the inadequate or improper use of electronic alarms contributed to a high risk of falls for several residents. The nursing home’s

7

A gait belt is a device worn around a resident’s waist

that staff can hold to assist staff in ambulating the resident

and prevent the resident from falling.

- 17 -

policy on falls is focused on reporting and follow-up of falls, but provides no guidance on how to prevent residents from falling in the first place. Further, the fall prevention program that Ft. Bayard offers to residents is limited to ten participants.
Care plans for residents who were known to be at risk of falls (because they had already fallen) failed to contain specific measures for fall prevention and did not address issues such as toileting, ambulation and mobility, dementia care, and monitoring. Addressing each of these issues in a care plan can help prevent falls.
For example, we reviewed the record of a resident who had fallen 15 times during the first half of 2005. When the resident was seated in his wheelchair, staff were instructed to hook an alarm to his clothing. The alarm was supposed to alert staff when the resident got out of his chair to ambulate on his own. However, staff continued to hook the alarm to the resident’s clothing in a position enabling the resident to remove the alarm before he attempted to get out of his chair. Thus, staff were not alerted that the resident was ambulating on his own so that they could help protect him from falling as he attempted to meet his needs to go the bathroom, get some water, or get a TV remote. The resident fell seven times in early 2005 trying to get out of his wheelchair unattended. Once his wheelchair tipped over, catching and injuring his finger; once he fell on and scraped his shoulder; once he tore the skin on his left elbow and scraped his right knee; and once he bruised his left hip. Nursing staff failed to implement simple corrective measures (like using an alarm that the resident could not see or placing a water pitcher and a TV remote within easy reach) to break the cycle of falls caused by an ineffective care plan.
The fall prevention plan for another resident who had fractured his collar bone due to a fall at Ft. Bayard in 2003 and who had fallen 10 times in the first six months of 2005 stated only "one-on-one observation to prevent repeat falls." Staff could "observe" this resident constantly, but simply looking at this man cannot prevent him from falling. Staff need a plan to anticipate the resident’s needs and specific interventions that staff can take to help prevent the resident from falling. Without that, the resident will continue to be at risk of further falls. And, indeed, this resident suffered again and again from falls. For instance, in May, June, and July 2005, this resident fell seven separate times in the restroom, mostly trying to transfer himself from his wheelchair to the toilet or from the toilet to his wheelchair. Our consultant found these repeated

- 18 -

preventable falls to be evidence of neglect, bordering on abuse, and a total disregard for human dignity.
3. The Ft. Bayard Environment
Ft. Bayard is a very old facility that is not appropriate for the provision of nursing home care. Residents’ rooms are dingy and ill-lit, presenting challenges to residents’ vision and efforts to prevent falls. Most rooms are multiple-resident rooms where curtains provide some privacy, but auditory privacy is nonexistent. Resident beds are antiquated and mattresses are hard, raising the risk of skin breakdown. Clothes cabinets have no doors and are thus not secure from wandering residents. There are only two communal bathrooms, one for men and one for women, per ward. However, access to both the male and female bathrooms is through a larger room that is also used for resident bathing, creating further privacy issues for residents being bathed.
Combined, these environmental conditions violate federal regulations that require nursing homes to provide a "safe, clean, comfortable and homelike environment." 42 C.F.R. 483.15(h)(1). State officials are well aware of these issues. Secretaries Grisham and Armstrong informed us that it is the State’s intention to replace the current structure with a newer facility in the near future.
C. INADEQUATE NUTRITIONAL AND HYDRATION SERVICES
Nursing homes such as Ft. Bayard are required by federal law to provide residents with adequate nutrition, including sufficient fluids, to maintain their health and well-being. See 42 C.F.R. § 483.25(i-j). Ft. Bayard’s failure to ensure that residents receive adequate nutritional services and that residents are fed in a safe manner has contributed to the death of residents.
During our visit to Ft. Bayard, we watched several mealtimes on various units, observing the manner in which food was served. We observed numerous instances where residents were improperly positioned and where staff were using inappropriate techniques to feed residents who needed assistance to eat. In addition, residents at risk of choking were left unattended. Further, necessary precautions were not taken for residents at risk of aspiration pneumonia. As noted above, numerous Ft. Bayard residents have died of aspiration pneumonia.
In addition to our observations, the medical charts of Ft. Bayard residents revealed case after case where residents with

- 19 -

known swallowing difficulties were fed in dangerous ways, often in contravention of specific care plans that had been written to protect the residents. We found that even in cases where residents had developed aspiration pneumonia, nursing staff failed to implement detailed instructions for feeding the residents. A primary cause for this failing is that Ft. Bayard staff have not been sufficiently and adequately educated to know how to assist residents with eating and drinking difficulties.
We also observed situations where Ft. Bayard failed to develop care plans to ensure that residents receive adequate fluids. This violates federal regulations. 42 U.S.C. 483.25(j). The facility failed to ensure that residents had access to adequate fluids during the course of the day and evening.
Ft. Bayard’s nutritional and hydration services substantially depart from generally accepted professional standards of care, and these departures are not only harming Ft. Bayard residents, they are also contributing, in some cases, to their deaths.
D. INADEQUATE ACTIVITIES
Federal regulations and generally accepted professional standards recognize the critical importance that activities and mental stimulation play in maintaining good psychological health among nursing home residents. See, e.g., 42 C.F.R. § 483.15(f)(a). A nursing home like Ft. Bayard “must provide for an ongoing program of activities designed to meet . . . the interests and the physical, mental, and psychosocial well-being of each resident.”
The nursing home offers grossly substandard activity programs for its residents. Our consultant rated the quality of Ft. Bayard’s activity program as between 0 and 1 on a scale of 0 to 10. Ft. Bayard’s activity calendars are sparse and often contain “activities” that are actually duties for the staff, such as “transporting residents to the dining room.” When there are scheduled activities, such as a movie off-ward, the majority of residents remain on the ward, where no activities are scheduled. Many other activities are not activities at all, such as “music” activities which amounted to staff playing music on the radio while transporting residents. We observed these patterns throughout the nursing home.

- 20 -

Because of the lack of activities, a cascade of undesirable consequences ensues. Residents experience greater levels of agitation, combativeness, hopelessness, withdrawal, and resistence to care. Frustrated residents become aggressive toward one another and to staff, so that, as discussed above, resident-to-resident and resident-to-staff assaults occur. There is an absence of effective behavior management programs at the facility. Staff, therefore, do not have the skills or guidance to prevent or properly manage this aggressiveness. As noted earlier, Ft. Bayard’s primary, and often only, response to residents’ behavior issues is to chemically restrain the residents with psychotropic medications, in violation of both federal regulations and generally accepted professional standards of practice, and placing the residents at great risk of harm.
E. FAILURE TO SERVE RESIDENTS IN THE MOST INTEGRATED SETTING APPROPRIATE TO RESIDENTS’ NEEDS
The State is failing to serve Ft. Bayard residents in the most integrated setting appropriate to their needs. Failure to serve residents in the most integrated setting appropriate to their needs is a violation of Title II of the Americans with Disabilities Act (“ADA”). See 28 C.F.R. § 35.130(d)(public entities must provide services in the most integrated setting appropriate to the needs of qualified individuals). The preamble to the ADA regulations defines “the most integrated setting” to mean a setting “that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” 28 C.F.R. pt. 35, App. A at 450.
In construing the anti-discrimination provision contained within the public services portion (Title II) of the ADA, the Supreme Court held that “[u]njustified [institutional] isolation ... is properly regarded as discrimination based on disability.” Olmstead v. L.C., 527 U.S. 581, 597, 600 (1999). Specifically, the Court established that States are required to provide community-based treatment for persons with disabilities when the State’s treatment professionals have determined that community placement is appropriate, provided that the transfer is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with disabilities. Id. at 602, 607.
Further, with the New Freedom Initiative, President George W. Bush announced that it was a high priority for his Administration to tear down barriers to equality and to expand opportunities available to Americans living with disabilities.

- 21 -

As one step in implementing the New Freedom Initiative, on June 18, 2001, the President signed Executive Order No. 13217, entitled “Community-Based Alternatives for Individuals with Disabilities.” Specifically, the President emphasized that unjustified isolation or segregation of qualified individuals with disabilities in institutions is a form of prohibited discrimination, that the United States is committed to communitybased alternatives for individuals with disabilities, and that the United States seeks to ensure that America’s community-based programs effectively foster independence and participation in the community for Americans with disabilities. Exec. Order No. 13217, §§ 1(a)-(c), 66 Fed. Reg. 33155 (June 18, 2001). The President directed the Attorney General to “fully enforce” Title II of the ADA, especially for the victims of unjustified institutionalization. Id. at § 2(c). As set forth below, the State is failing to comply with the ADA with regard to placing persons now living at Ft. Bayard in the most integrated setting appropriate to their individualized needs.
Based on our tours of the facility, review of residents’ records, and discussions with Ft. Bayard and State representatives, it is clear that most of the residents of Ft. Bayard are appropriately placed in the nursing facility and reintegration is not appropriate at this time. However, it is also clear that several Ft. Bayard residents could be, and wish to be, served in community-based placements – and their treating professionals concur. At this time, however, New Mexico does not have the capacity to serve these residents in the community. The Olmstead court specifically recognized the need for a state “to maintain a range” of placements to care for persons with disabilities. Olmstead, 527 U.S. at 597.
Further, the State has not sufficiently examined, or responded to, the reasons why Ft. Bayard residents with mental health or behavioral issues have not been reintegrated into the community. This problem is not addressed adequately in the State’s Olmstead planning. By failing to develop plan to address these issues, the State is failing to serve certain Ft. Bayard residents in the most integrated setting appropriate to their needs. Olmstead requires the development of plans to address the ADA’s integration mandate. See, e.g., Pennsylvania Protection & Advocacy v. Department of Public Welfare, 402 F.3rd 374, 382 (3d Cir. 2005).
As evidence of the ADA violations at Ft. Bayard, consider the following cases:

- 22 -


C

A 51-year-old resident of Ft. Bayard was admitted to the

nursing home in July 2001. She is diagnosed with

schizophrenia, an orofacial disorder, and a urinary tract

infection. She is independent in all activities of daily

living. She wants to live in the community and her treating

professionals agree that she could live in the community.

Staff at Ft. Bayard are trying to find an assisted living

facility for this resident.

C

A 57-year-old resident of Ft. Bayard was admitted to the

nursing home in March 2004. She has anemia and hypertensive

heart disease. She requires little assistance in performing

her activities of daily living. She wants to return to the

community and her treating professionals agree that she

could live in the community. Ft. Bayard staff are trying to

find a place for her to live in the community, but lack of appropriate housing is a major barrier.

C

A 43-year-old resident of Ft. Bayard was admitted to the

nursing home in May 2004. He has dementia, cerebral

degeneration, and renal insufficiency. He wants to return

to the community and his treating professionals agree that

he could live in the community. Staff at Ft. Bayard are

trying to find appropriate housing for this resident.

Our review of the nursing home’s efforts to place Ft. Bayard residents into more integrated settings raises several concerns. The single most problematic barrier to community placement is a lack of residential housing adequate to meet the needs of Ft. Bayard residents who wish to, and are appropriate for, return to the community, particularly those with mental health or behavioral issues. In particular, there is a lack of living situations in the community where administration of medications can be supervised and monitored. If a resident cannot be discharged back to his or her home, it his highly unlikely that an alternative residence will be found. For example, between July 2004 and July 2005, 106 residents were discharged from Ft. Bayard. Of these, 103 were discharged back to their own homes; only three were discharged to places other than their own homes.

Another barrier to community placement is the lack of supportive psychiatric services that many Ft. Bayard residents would need in the community. So, even if alternative living arrangements could be found, the necessary supportive services, such as counseling, may not be available.

- 23 -

On a related note, the Pre-Admission Screening and Resident Review (PASRR) is a process required by the federal government to determine if a resident of a nursing home who has mental illness or mental retardation actually needs the level of services provided in a nursing facility. The purpose of PASRR is to ensure that persons who need mental illness or mental retardation services get them in the most appropriate setting and are not placed in a nursing home inappropriately. We are concerned that the intent of the federally required PASRR reviews is not being met at Ft. Bayard. Many PASRR reviews are being completed without the thoroughness required to ensure that residents who need mental health or retardation services are served in the most appropriate setting.
We understand and applaud the fact that the State is taking measures such as developing an Aging and Disability Resource Center and is working to establish a Behavioral Health Collaborative that should help to identify and deliver services to New Mexico’s disabled and elderly. The State is also working to create a managed long-term care delivery system that may work to increase the utilization of community-based services.
III. MINIMAL REMEDIAL MEASURES
To remedy the identified deficiencies and protect the constitutional and statutory rights of Ft. Bayard residents, the State should implement promptly, at a minimum, the following measures set forth below:
1. Provide each resident with adequate medical and nursing care, including appropriate and on-going assessments, individualized care plans, and health care interventions to protect the resident’s health and safety. To accomplish this, Ft. Bayard should:
a. Ensure that each resident’s health status is adequately monitored and reviewed, and that changes in a resident’s health status are addressed in a timely manner;
b. Ensure that all Ft. Bayard medical and nursing staff members are adequately trained in generally accepted professional standards for their respective areas of responsibility, that policies are updated and reflect generally accepted professional standards of care, and that the staff are trained on those policies;

- 24 -

c. Ensure that medical and nursing staff address with particular attention residents’ conditions such as diabetes, seizure disorders, and pain management;
d. Design and implement appropriate interventions to assess and develop care plans for residents at risk of falling and re-evaluate those interventions as necessary;
e. Ensure that residents receive restorative care services in order to allow residents to attain and maintain their highest practicable level of functioning; and
f. Employ and deploy a sufficient number of consistent nursing staff to provide adequate supervision, routine care, preventative care, and treatment to each Ft. Bayard resident;
2. Psychopharmacological practices must comport with generally accepted professional standards. All use of psychoactive drugs should be professionally justified, carefully monitored, documented, and reviewed by qualified staff. Medications should be prescribed based on clinical need. Medications should not be used in manners that expose residents to undue risks to their health and safety.
3. Implement policies and procedures to ensure that residents actually receive the pain medications that are prescribed for them.
4. Institute policies, procedures, and practices to investigate adequately, and follow-up on, instances of potential resident abuse, neglect, and/or mistreatment, including injuries resulting from resident-on-resident abuse and from unknown causes. As an element of these practices, the Ft. Bayard Medical Director should review all incident reports and initiate appropriate administrative or clinical action.
5. Provide adequate and appropriate psychiatric, mental health, behavioral, and psychosocial services in accordance with generally accepted professional standards.

- 25 -
6. Provide adequate nutritional management services, including:
a. Conducting adequate nutritional assessments of individual residents’ specific nutritional needs;
b. Ensuring that residents receive appropriate diets, as medically necessary;
c. Monitoring residents’ nutritional status, weight, and food intake, as medically necessary;
d. Ensuring that residents who need assistance in eating are assisted by adequately trained staff;
e. Ensuring that residents are not exposed to undue risk of aspiration pneumonia; and,
f. Providing residents with adequate amounts of fluids to ensure proper hydration.
7. Provide sufficient, meaningful activities for all residents and make efforts to get residents involved in activities.
8. Provide an environment for residents that adequately provides and protects the residents’ health, comfort, and dignity.
9. Implement adequate quality assurance mechanisms that are capable of identifying and remedying resident quality of care deficiencies.
10. The State of New Mexico must ensure that Ft. Bayard residents who do not oppose placement in the community are being served in the most integrated settings appropriate for their needs.
11. The State of New Mexico must redress the barriers that are preventing Olmstead-eligible Ft. Bayard residents with mental illness from reintegrating into the community.
* * *
We hope to continue working with the State in an amicable and cooperative fashion to resolve our outstanding concerns with regard to Ft. Bayard. Provided that our cooperative relationship

- 26 -

continues, we will forward our expert consultants’ reports under separate cover. Although their reports are their work – and do not necessarily represent the official conclusions of the Department of Justice – their observations, analyses, and recommendations provide further elaboration of the relevant concerns and offer practical, technical assistance in addressing them. We hope that you will give this information careful consideration and that it will assist in your efforts at prompt remediation.
We are obligated to advise you that, in the unexpected event that we are unable to reach a resolution regarding our concerns, within 49 days after your receipt of this letter, the Attorney General is authorized to initiate a lawsuit pursuant to CRIPA, to correct deficiencies of the kind identified in this letter. See 42 U.S.C. § 1997b(a)(1). We would very much prefer, however, to resolve this matter by working cooperatively with you.
Accordingly, we will soon contact State officials to discuss this matter in further detail. If you have any questions regarding this letter, please call Shanetta Y. Cutlar, Chief of the Civil Rights Division’s Special Litigation Section, at (202) 514-0195.
Sincerely,
/s/ Wan J. Kim
Wan J. Kim Assistant Attorney General
cc: The Honorable Pat Madrid Attorney General
Michelle Lujan Grisham Secretary New Mexico Department of Health and Acting Administrator Fort Bayard Medical Center
Deborah Armstrong Secretary New Mexico Department of Aging
and Long-Term Services
David C. Iglesias United States Attorney District of New Mexico

 
 Case: 1:07-cv-470 As of: 05/09/2013 02:02 PM MDT 1 of 2
U.S. District Court District of New Mexico − Version 4.2 (Albuquerque) CIVIL DOCKET FOR CASE #: 1:07−cv−00470−WJ−DJS

CLOSED

United States of America v. State of New Mexico Department of Date Filed: 05/14/2007

Health

Date Terminated: 05/17/2007

Assigned to: District Judge William P. Johnson

Jury Demand: None

Referred to: Magistrate Judge Don J. Svet

Nature of Suit: 440 Civil Rights: Other

Cause: 42:1983 Civil Rights Act

Jurisdiction: U.S. Government Plaintiff

Plaintiff

United States of America

represented by Jan Elizabeth Mitchell United States Attorneys Office Civil Division P.O. Box 607 Albuquerque, NM 87102 505 346−7274 Fax: 505 346−7205 Email: jan.mitchell@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua C Delaney U.S. Department of Justice Civil Rights Division, Special Litigation Section 601 D Street NW, Room 5928 Washington, DC 20004 202−514−6255 Fax: 202−514−6273 Email: joshua.delaney@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Verlin Deerinwater 601 D Street NW, Room 5928 Washington, DC 20004 202−514−6260 Email: verlin.deerinwater@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant State of New Mexico
Defendant Michelle Lujan Grisham Secretary, Department of Health, in her official capacity only

Date Filed 05/14/2007
05/14/2007

# Docket Text
1 COMPLAINT against State of New Mexico Department of Health (Filing fee $ 350.), filed by United States of America. (Attachments: # 1 Exhibit Certificate of Attorney General)(Mitchell, Jan) (Entered: 05/14/2007)
Judge William P. Johnson and Don J. Svet assigned. (nm) (Entered: 05/14/2007)

Case: 1:07-cv-470 As of: 05/09/2013 02:02 PM MDT 2 of 2

05/16/2007 01/28/2008 02/05/2008 03/05/2008 08/25/2008 10/08/2008 04/02/2009 05/28/2009 08/04/2009
08/11/2009 10/13/2011 10/17/2011

2 SETTLEMENT AGREEMENT filed by the parties. (jm) (Entered: 05/17/2007)
3 Joint MOTION to Dismiss and Stipulation for Partial Dismissal of Settlement Agreement by United States of America. (Mitchell, Jan) (Entered: 01/28/2008)
4 ORDER by Judge William P. Johnson granting 3 Joint Motion and Stipulation for Partial Dismissal of the Settlement Agreement AS FURTHER DESCRIBED HEREIN. (mag) (Entered: 02/05/2008)
5 NOTICE by United States of America of Withdrawal of Appearance of Joshua Delaney (Mitchell, Jan) (Entered: 03/05/2008)
6 Joint MOTION to Extend (other) Dates of Settlement Agreement by United States of America. (Mitchell, Jan) (Entered: 08/25/2008)
7 ORDER by District Judge William P. Johnson granting 6 ORDER on Motion to Extend dates of settlement agreement (vv) (Entered: 10/08/2008)
8 Joint MOTION to Extend (other) Dates of Settlement Agreement and to Require Plans of Correction by United States of America. (Mitchell, Jan) (Entered: 04/02/2009)
9 ORDER by District Judge William P. Johnson granting 8 Motion to Extend dates of settlement agreement (vv) (Entered: 05/28/2009)
10 Joint MOTION for Order to Accept Corrective Action Plan by United States of America. (Attachments: # 1 Exhibit Corrective Action Plan (CAP), # 2 Exhibit CAP Exh 1, # 3 Exhibit CAP Exh 2, # 4 Exhibit CAP Exh 3, # 5 Exhibit CAP Exh 4a, # 6 Exhibit CAP Exh 4b, # 7 Exhibit CAP Exh 5, # 8 Exhibit CAP Exh 6, # 9 Exhibit CAP Exh 7, # 10 Exhibit CAP Exh 8, # 11 Exhibit CAP Exh 9, # 12 Exhibit CAP Exh 10, # 13 Exhibit CAP Exh 11, # 14 Exhibit CAP Exh 12, # 15 Exhibit CAP Exh 13, # 16 Exhibit CAP Exh 14 Pt 1, # 17 Exhibit CAP Exh 14 Pt 2, # 18 Exhibit CAP Exh 15, # 19 Exhibit CAP Exh 16, # 20 Exhibit CAP Exh 17, # 21 Exhibit CAP Exh 18, # 22 Exhibit CAP Exh 19, # 23 Exhibit CAP Exh 20, # 24 Exhibit CAP Exh 21, # 25 Exhibit CAP Exh 22, # 26 Exhibit CAP Exh 23, # 27 Exhibit CAP Exh 24, # 28 Exhibit CAP Exh 25, # 29 Exhibit CAP Exh 26, # 30 Exhibit CAP Exh 27, # 31 Exhibit CAP Exh 28, # 32 Exhibit CAP Exh 29, # 33 Exhibit CAP Exh 30, # 34 Exhibit CAP Exh 31)(Mitchell, Jan) (Entered: 08/04/2009)
11 ORDER entering Corrective Action Plan as an order of the court by District Judge William P. Johnson granting 10 Motion for Order (vv) (Entered: 08/12/2009)
12 Joint MOTION to Dismiss Complaint and Court Orders by United States of America. (Mitchell, Jan) (Entered: 10/13/2011)
13 ORDER dismissing complaint and court orders by District Judge William P. Johnson granting 12 Motion to Dismiss (vv) (Entered: 10/17/2011)