Odhuno v. Reed's Cove Health & Rehab., LLC

355 F.Supp.3d 1026

John Paul ODHUNO, Plaintiff,

v.REED'S COVE HEALTH AND REHABILITATION, LLC d/b/a Avita; Axiom Healthcare Services, LLC; Audrey Sunderraj; Carol Schiffelbein; Christan Rose; Teresa Fortney; Treva Banuelos; and Tim Keck, in His Official Capacity as Secretary of the Kansas Department for Aging and Disability Services, Defendants.

Case No. 15-1347-EFM-GEB

United States District Court, D. Kansas.

Signed December 14, 2018

Edward L. Keeley, Katy Elizabeth Tompkins, McDonald Tinker PA, Wichita, KS, for Plaintiff.

Forrest T. Rhodes, Jr., Foulston Siefkin LLP, Wichita, KS, Jessica F. Conrow, Kimberly M.J. Lynch, Kansas Department for Aging and Disability Services, Topeka, KS, for Defendants.

MEMORANDUM AND ORDER

ERIC F. MELGREN, UNITED STATES DISTRICT JUDGE

Plaintiff John Paul Odhuno was employed as a certified nurse aide ("CNA") at a long-term care facility owned by Defendant Reed's Cove Health and Rehabilitation, LLC d/b/a Avita ("Avita"). In late July 2014, the Kansas Department for Aging and Disability Services ("KDADS") investigated the facility after receiving an anonymous tip of alleged resident abuse.

During the investigation, Avita terminated Odhuno's employment. Odhuno now asserts claims against KDADS Secretary Tim Keck and five KDADS employees involved in the investigation: Audrey Sunderraj, Carol Schiffelbein, Christan Rose, Teresa Fortney, and Treva Banuelos (the "KDADS employees"). He alleges that they violated his Fourteenth Amendment rights to due process and equal protection. Additionally, he alleges that the KDADS employees committed the tort of outrage under Kansas law.

This matter comes before the Court on Defendants' Motion for Summary Judgment (Doc. 105). The KDADS employees assert the defense of qualified immunity, and Defendant Keck asserts that he is entitled to sovereign immunity under the Eleventh Amendment. In response to the motion, Odhuno decided not to oppose the summary judgment motion of Defendants Schiffelbein, Fortney, and Banuelos and filed a response only as to the summary judgment motion of Defendants Rose, Sunderraj, and Keck.¹ As explained in more detail below, the Court concludes that Defendants Rose and Sunderraj are not entitled to qualified immunity and that Defendant Keck is not entitled to sovereign immunity. Therefore, the Court grants in part and denies in part Defendants' motion.

I. Factual and Procedural Background

A. KDADS Relationship with Centers for Medicaid and Medicare Services ("CMS")

Under 42 U.S.C.A. § 1395a, the State of Kansas entered into an agreement (the "Agreement") with the Secretary of Health and Human Services (the "Secretary") to determine whether a provider or supplier meets specific standards of participation in the federal Medicare and Medicaid programs. The Agreement provides that the State of Kansas, through a KDADS surveyor, is required under § 1864(a) of the Social Security Act to survey providers or suppliers in Kansas that are participating in Medicare and/or Medicaid services. In addition, the Agreement defines the role of the surveyors as federal contractors surveying on behalf of the Secretary. The surveyors are required to make reports in the form and containing the information required by the Secretary. To complete the surveys, they generally follow forms created by CMS or Health and Human Services.

Long-term care facilities, such as Avita, must follow federal conditions of participation to obtain coverage under the Medicare program.² Included in these conditions are rules governing the reporting and investigation of resident abuse.³ Federal regulations define "abuse" as "the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish."⁴ If there is an allegation of resident abuse, a facility must (1) immediately report the allegation to "other officials in accordance with State law through established procedures";⁵ (2) thoroughly investigate all allegations of abuse, prevent further abuse while the investigation is in progress, and report the investigation findings within five days to the appropriate state officials;⁶ and (3) immediately report to KDADS if there is "reasonable cause to believe that a resident is being or has been abused, neglected or exploited."⁷

KDADS receives reports of alleged abuse through a hotline managed by the agency.⁸ KDADS will review the report and conduct a survey to determine whether the long-term care facility meets the conditions of participation in the Medicare program.⁹ It also makes recommendations to CMS, which will determine whether the long-term care facility is eligible to participate in the Medicare program.¹⁰

The final results of the survey and CMS' determination are provided to the long-term care facility.¹¹ If the facility is not in compliance with the conditions of the Medicare program, KDADS will provide a description of the specific deficiencies that resulted in that determination.¹² The long-term care facility may appeal the survey findings through the process set forth in the federal Medicare regulations.¹³

If the KDADS investigation substantiates that a CNA abused a resident, the investigation is forwarded to the KDADS legal department.¹⁴ In this situation, the KDADS surveyor is required to fill in a particular box on the "complaint processing form," which is sent to KDADS headquarters with all documents gathered during the investigation.¹⁵ The KDADS legal department then determines whether to initiate proceedings against the CNA and place a prohibition on the Kansas Nurse Aide Registry. After the investigation is completed, and if a finding of abuse, neglect, or exploitation is made, a Notice of Action is sent to the CNA.¹⁶ This Notice of Action may be appealed under the Kansas Administrative Procedure Act.¹⁷ If a CNA decides not to appeal the Notice of Action or if after an appeal the finding of abuse, neglect, or exploitation is upheld, then the finding of abuse is placed on the KDADS website¹⁸ and a prohibition against employment will be placed on the Kansas Nurse Aide Registry.¹⁹ Prospective employers must review the online CNA Registry before employing a CNA.

B. Complaint Investigation at Avita

Odhuno is a black male who is originally from Kenya. Odhuno was employed as a CNA at Avita—which is operated by Defendant Axiom Healthcare Services, LLC ("Axiom"). On July 31, 2014, KDADS began a complaint survey at Avita based on an anonymous complaint made to the KDADS hotline. The complaint stated that Avita failed to investigate and report an allegation of resident abuse purportedly committed by a black male nurse.

One of the KDADS surveyors was Defendant Rose. On the first day of the investigation, Rose spoke with the resident regarding the alleged abuse. She took notes and prepared a handwritten statement for the resident to sign, which states in part:

It hasn't happened for a while but it has gone on for the last couple of months, since the Spring. It is a black man and he tells me he is a nurse. My son stayed all night not too long ago and the black man tried to come in then, but I think it scared him away when he saw my son. For 3 days after that, he stayed away....He would come in my room late at night without knocking and say he was trying to see if my pants were wet and touch my bottom. I'm not making it sounds as bad as it actually was. One time on a weekend when there wasn't anyone else around, on a holiday, he took me outside and rolled me around on the ground. I don't know what he was trying to do. I hit him on the arms and it made him mad and he finally gave up. He has come back and tried to do it again and I have fought him off....It has gone on for a couple of months, and there were a lot of times he came in and messed with me. I was very scared every time I saw him. I have lost so much sleep over this.

Rose admits that there was no concrete evidence that the abuse occurred and that she did not find any evidence during her investigation that someone rolled the resident on the ground outside the facility. Rose testified, however, that the allegation was substantiated because "[r]egardless of whether abuse actually happened or not, [the resident] suffered emotional distress because of the facility's failure to protect her after she made an allegation of abuse. That substantiates the allegation."

Rose interviewed the resident's son, John Bertelson, during the investigation by phone. Bertelson told Rose that he had not seen any physical evidence of abuse; he had only heard his mother make the allegations. Bertelson further stated that his mother suffered from some memory loss, but that it had improved a lot and that she seemed to be the person he knew her to be. He also said that he had spoken with her several times about the incident and that the resident's story was always the same. Rose testified, however, that even if Bertelson had told Rose he didn't believe abuse had occurred, it would not have made a difference in Rose's investigation or findings. According to Rose, the facility would still have been cited for the failure to protect the resident after an allegation was made.

Rose had several phone conversations on July 31 with Defendant Sunderraj, who was the Director of Survey & Certification for KDADS. Sunderraj was not Rose's direct supervisor, but because Rose's immediate supervisor was unavailable that day, she discussed the investigation with Sunderraj instead. At some point, Rose and Sunderraj discussed whether to place the facility in "immediate jeopardy." As defined in the regulations, the term "immediate jeopardy" means "a situation in which the provider's ... non-compliance with one or more Medicare requirements, conditions of participation, conditions for coverage or certification has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident or patient."²⁰ Ultimately, Sunderraj determined that Avita should be in "immediate jeopardy" status and advised...