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It was regular practice, it seems clear to me, for the nursing home to require the facility nurse and facility nurse aide to observe the resident in the high chair. Tr. at 252-53. If the nurse aide was not out observing the resident, she was advised to observe. Id. The facility nurse noted that this observation was important in the following reasons:
In the higher caregiver position, the facility nurse and facility senior nurse aide are assisted by a registered professional nurse employed at the facility who advises the nurse assistant on the best management of a given resident. Tr. at 258. In his experience, he has found that facility nurses cannot always meet this observation requirement. According to Mr. Baxter, another witness, many of the staff are not very good with a camera. Tr. at 258. He also explained that staff members have an interest in keeping their jobs at the facility and thus do not always follow the facility's procedures. Tr. at 259.
Ms. Tucker explained that "[t]he overall premise of this intent of this regulation is to restrict the potential exposure of health of residents to the risk of infection." Tr. at 349. A plaintiff would have been required to provide evidence of when exactly he or she became aware of the risk of infection, or would have been expected to plead mistake, ignorance or accident when answering the defense motion for summary judgment.
According to the plain language of the regulation, nursing home residents would have to be considered close and frequent contacts at or above 30-34 hours a week in order to satisfy this requirement. Thus, this regulation could apply to hours worked by some intermittent part-time workers.
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