under Titles 18 and 19 of the Social Security Act. It receives approximately 400 applications for admission each year. Roughly 60% of the patients at Fair Acres suffer from Alzheimer's disease or other forms of dementia. It has a ratio of staff to patient of one to eight. Its stated mission and goal is to provide care primarily for the geriatric community. It is not staffed or equipped to handle psychiatric residents. If an applicant for admission poses a threat of injury to himself or others, the application is rejected. An applicant with a psychiatric history is reviewed individually to determine (a) if the applicant's primary diagnosis/condition is medical and warrants nursing home placement and (b) if the applicant can be absorbed comfortably and appropriately into Fair Acres geriatric population. (See policy statement Aug. 4, 1987. Deft. Ex. 11)
The plaintiff, Margaret Wagner, is a 65 year old married woman with three grown children, two daughters and a son. In 1988, she was diagnosed as having Alzheimer's disease. As time passed, she became very combative, breaking things and fighting with her husband to the extent that from time to time, he had to shut her in her room. Mr. Wagner was assisted in caring for his wife by his daughters and by visiting nurses, supplied through the County Office of Services to the Aging, who provided care for twenty-seven hours a week. Although the record is not specific as to time, it appears that Mrs. Wagner had been admitted to Haverford Community Hospital for Dilantin toxicity prior to her admission to the Dowden nursing facility in Newtown Square, Delaware County on August 23, 1992.
After ten days at Dowden, she was transferred to the Wills Geriatric Psychiatry Center operated by Thomas Jefferson University Hospital "in order to more effectively treat her agitation and psychotic symptoms" (Deft. Ex 1, page 14). The number of patients at Wills varies from 15 to 24 and its staff to patient ratio varies from three on four to two on one. During the first week at Wills, plaintiff became very assaultive with respect to the staff and other patients (Deft. Ex 1 at pp. 19, 21-23, progress notes of 9/4/92 and 9/8/92).
Thereafter, an application for admission to Fair Acres was made and as of September 16, 1992, the Admissions Committee at Fair Acres determined that plaintiff was not then suitable for admission, but placed her application on "hold" pending further information as to her condition. No further information was forthcoming as of October 5, 1992 and; accordingly, the admissions committee denied her application. The staff psychiatrist at Wills, Dr. Kim, agreed that plaintiff was not suitable for nursing home care at the time of the September 16, 1992 application. Later, in the middle of October, 1992, he concluded that she was suitable for such placement despite the fact that the progress notes do not show any significant change in her overall behavioral pattern. The timing of Dr. Kim's change of opinion coincided with the exhaustion of Mrs. Wagner's hospitalization benefits.
The plaintiff was again evaluated by the Fair Acres Admissions Committee on October 28, 1992. In the meantime, plaintiff had been turned down at several other nursing homes because of the behavioral problems. (N.T. 9/21/93 pp. 35,37 Deft. Ex. 2, p. 10 Wills' social worker's note).
The Admissions Committee, basically on the recommendation of its psychiatric consultant, Dr. Diwan, determined that the admission of plaintiff was not yet appropriate.
Entries in the Wills' records show that on October 9, 1992, the treating psychiatrist stated that the patient required 24 hour supervision and on October 14, 1992, it was noted that the patient required constant one-on-one care. A third note dated October 16, 1992 states that plaintiff "became combative in the hallway, grabbing another patient's shirt and attempting to hit and kick staff" and an attempt to place plaintiff in a geri-chair resulted in a staff member receiving a scratch which drew blood. Another scratching incident took place on October 20, 1992 when plaintiff was placed in a geri-chair for her own safety and to protect the staff. Additional incidents reflected in the Wills progress notes that pre-date Fair Acres' October 28, 1992 evaluation include:
10/10/92 - Nursing Staff note: patient labile-laughing to assaultive behavior to crying; one-half of shift in geri-chair, other half with staff walking the halls. 10/11/92 - Nursing Notes 6:00 P.M.: patient very agitated for past three hours, hollering vulgarities; 10/12/92 - 3:30 P.M., patient screaming loudly vulgarities, attempts to calm unsuccessful. Placed in geri-chair for safety. Ambulated with staff in attendance. 5:30 P.M., patient "escalated" became agitative and assaultive. 6:00 P.M., extremely agitated. Punched staff member when attempted to give her a drink. 10/17/92 - Attacked staff member by hitting, scratching, and spitting; 2.5 milligrams inapsine given. Ambulated within eye's view for safety. 10/19/92 - outbursts are angry, negative, labile. 10/21/92 - Patient screaming very loudly at times. Placed in a quite room. Patient became agitative and assaultive.
See Deft. Ex. 2, p.p. 8, 11; Deft. Ex. 3, p.p. 13, 20-23.
The Wills records also reflect that during her stay plaintiff received antidepressants and neuroleptics including increasing dosages by injection of the anesthetic inapsine, a drug that none of the other psychiatrists ever heard of for use on a geriatric patient. There was also a record of frequent use at Wills of a "quiet room" where a disruptive patient is confined so as not to distract or upset other patients. Fair Acres does not have a quiet room. All of its rooms have two or more residents in them.
Plaintiff was evaluated for a fourth time on January 6, 1993. The Wills record shows that her condition had not stabilized. She continued to exhibit the same agitated, assaultive and combative behavior.
The Admissions Committee's psychiatric consultant noted that plaintiff was still agitated, confused and irritable as late as December 29, 1992, but recommended a further evaluation in six to eight weeks.
On February 17, 1993, there was a fifth evaluation. Although plaintiff's behavioral problems improved slightly, the Wills records show that she continued to have episodes of combativeness, agitation and assaultiveness,
the same pattern of behavior that caused her transfer from Dowden to Wills in the first place. The records also reflect that she continued to receive 2.5 milligram of inaspine on an "as needed" basis throughout February 1993. Accordingly, Mrs. Wagner was denied admission to Fair Acres at that time.
There was no further updating of plaintiff's condition and there was no further request for admission to Fair Acres until Mrs. Wagner's counsel, in a telephone call, demanded that she be admitted, (N.T. 9/21/93, p. 75). When informed that Fair Acres could not meet her needs,
he threatened to file a lawsuit. Counsel made no effort to provide updated information concerning plaintiff's condition. (N.T. 9/21/93, p. 77).
On April 12, 1993, almost two months after her last evaluation by Fair Acres, the plaintiff was admitted to a special care unit for Alzheimer's patients at an Easton, Pennsylvania nursing facility, located approximately 85 miles from her home. One of the first reports emanating from the Easton facility showed that plaintiff, daily or more frequently, was physically abusive, "others were bit, shoved, scratched . . ." and engaged in other "socially inappropriate or disruptive behavior." (N.T. 9/21/93, p. 57, Ex. D 12, p. 4).
Defendant does not dispute that Alzheimer's disease rendered Mrs. Wagner a handicapped person within the meaning of the statute and that a person with Alzheimer's cannot be denied admission on that basis alone. Indeed, as noted above, approximately 60 percent of defendant's population suffer from Alzheimer's or some other form of dementia. Nor is there any dispute that the Fair Acres' staff has the expertise to handle the medical aspects of such patients and that they are even prepared to handle infrequent or occasional outbursts of severe agitation, aggressiveness or assaultive conduct.
But what distinguishes Mrs. Wagner is her behavioral pattern documented in the Wills records demonstrating a continuous course of aggressive, combative and socially inappropriate conduct which frequently required special monitoring and attention as well as increasingly larger doses of drugs including an anesthetic to calm her down.
The parties agree that, on occasion, nursing home residents have to be transferred to a psychiatric hospital in order to try to stabilize them and reduce the frequency of the periods of agitation, which is the precise reason Mrs. Wagner was at Wills. Indeed, the record shows that Fair Acres would transfer 25 to 30 patients per year for that reason.
It is also undisputed that such changes in environment are traumatic and have a deleterious effect on an Alzheimer's patient because it adds to the patient's confusion and exacerbates her condition. (See Gottlieb, N.T. 9/20/93, p. 42, Etemad, N.T. 9/21/93, p. 60). Accordingly, a person who exhibits such behavior within days prior to the Admissions Committee review, ought not to be admitted because the probability is that such person will have to be transferred or returned to a psychiatric facility within a short period of time, thus causing further aggravation of her condition. (See Etemad N.T. 9/21/93, p. 60).
Dr. Gottlieb testified that plaintiff would be suitable for Fair Acres because as he read the record of her stay at Wills, the periods of agitation were infrequent or occasional. (See plaintiff's brief p. 7) He conceded; nevertheless, that "to the extent she became uncontrollable, she would be a candidate for an acute short-term period of inpatient care at a psychiatric facility (2 to 4 weeks) for stabilization." id. With respect to the use of Inaspine, he testified that it is not commonly used with patients with behavioral difficulty, and in Mrs. Wagner's case, it was being used empirically to come up with some way of creating longer periods of calm because Wills had not been successful with other drugs. (N.T. 9/20/93, p. 73). The Wills records show that for five days in a row within ten days immediately preceding the February evaluation by Fair Acres, plaintiff had been injected with Inaspine and, consistent with Dr. Gottlieb's testimony, the Fair Acres Director of Admissions noted that continued use of Inaspine was a "tip-off" that the treating physician had not found the proper medicine for stabilizing her and was using Inaspine to "knock her out." (N.T. 9/21/93, pp. 114, 192).
Dr. Etemad did not examine Mrs. Wagner until two months after the last evaluation by Fair Acres. Nor did he examine the Wills records. He relied on Dr. Kim's summary in arriving at his opinion that it was appropriate to transfer her to Fair Acres. At the same time, however, he conceded that it is not unreasonable for a nursing home to want assurances that a patient has been stabilized before receiving that patient from a psychiatric facility. (N.T. 9/21/93, p. 60).
The treating physician at Wills, Dr. Kim, testified that in about the third week in October, 1992 he felt that she could be accommodated in a nursing home because "she was fairly calm, she was no longer agitated constantly as she had been upon admission." (N.T. 9/21/93, p. 9). But his own records show that as of October 21, 1992, he felt that she "could be managed with eyesight supervision when she is not agitated." (Ex. D. 3 - Summary - emphasis added). Dr. Kim also conceded that shortly after October 23, 1992 "she was experiencing some episodes of increased agitation" (N.T. 9/21/93, p. 11). At this same time, Dr. Kim noted "that multiple nursing homes have rejected her based on her intermittent agitation," and commended the efforts of the Wills social worker to place this "difficult" patient. (N.T. 9/21/93, p. 34).
Dr. Kim's sanguine view of Mrs. Wagner's condition is not only in conflict with his own notes, but with the notes made by those who were continuously in direct contact with her during her stay at Wills, the attending nurses. For example, on December 9, 1992, the nurse's notes state: "was assaultive pinching staff and kicking staff." On December 15, 1992, Dr. Kim's treatment team noted that Mrs. Wagner has not been assaultive at all towards staff and patients. But the nurse's note for December 13, 1992 states "patient was assaultive to staff, slapping one in the face and trying to kick others." Further, as of December 21, 1992, Dr. Kim notes "No assaultive behavior in quite some time", but two days before that, all three nursing shifts report that she was very combative, screaming in the hallways and pushing, kicking and scratching staff. (N.T. 9/21/93, p. 111, 112) An inconsistency with relation to medication was also noted by the Admissions Director. On October 21, 1992, Dr. Kim recommended that "No PRN [as needed] medication be given, as this would have an adverse effect on her cognitive functioning and would most likely result in increasing her confusion and furthering her agitation." (N.T. 9/21/93, pp. 113, 114). Nevertheless, as noted above, the records show that through February, 1993, she continued to receive inaspine as needed. These contradictions understandably raised serious concerns in the minds of the Admissions Committee about the true status of Mrs. Wagner's condition. (N.T. 9/21/93, p. 110-114).
It was not the fact that Mrs. Wagner suffered from Alzheimer's disease that caused her rejection but the pattern of agitation, assaultive and combative behavior that continued almost unabated from the time she entered Wills to, at least, the February 17th evaluation by the Fair Acres Admission Committee.
While each of plaintiff's experts testified that her treatment had progressed to the point where she could be managed in a nursing home, without a reallocation of its resources, that is not enough to show discrimination. The issue is whether she is an otherwise qualified handicapped person who was denied admission solely by reason of the handicap. It is patently clear that she was not denied admission because she has Alzheimer's disease. She was denied admission because the records indisputably showed that she exhibited psychotic symptoms throughout her entire stay at Wills manifested by periods of uncontrolled agitation which, from time to time, escalated into episodes of violence. In the judgment of the Admission Committee, such behavior is inappropriate in an institution dedicated to caring for nine hundred elderly and physically impaired individuals.
As Dr. Etemad testified, it is a qualitative subjective judgment on the part of the people who are involved in the care of the patient (N.T. 9/21/93, pp. 61-62) and that nursing homes make their own decisions based on their own individual philosophy. (Id. p. 60).
In order to establish a violation of the Act, the plaintiff must prove:
1. that the plaintiff is a "handicapped individual",
2. that the plaintiff is otherwise qualified for participation in the program,