participate in the medicare and medicaid program participation require medicare participation requirements and roadworks compliance with grammar checked on by eleanor department of public health surveyors becoming survey come to the facility and survey and determine whether or are the nursing home is in compliance with those facilities failure to follow its abuse and neglect policies for abusing a resident and for failure to report those as the ones to the department of public health in a timely manner the centers for medicare and medicaid services only have to pay when you screw up certainly we have to pay well you screwed up twice so you had to pay so what do you complain about but the screw ups judge that they complain of they say that's an indication that we failed to implement our contrary to that is we can service our first our policies and procedures both e mail j and the department appealed to morgan both indicated there was no problem with those so the question then becomes how do you implement those policies and procedures people and of course it's frustrating dealing with the scene now people but but they have to do it properly and if you don't do it you ought to be punished otherwise it could be going the total for the immediate jeopardy fine is six thousand or start sixty thousand five hundred dollars for the ten days of immediate jeopardy we were fined an additional two hundred dollars a day until we came in compliance with all the mistakes and there is between don't want to day i don't want to tell a very thousand dollars thirty thousand thank you judge back to the incident with our thirty four clearly that's the most serious incident that right becomes part of th between two nurses aides which is what the record reflects happened here clearly with regards to that that's not proper conduct on that c n n s part and it's not proper conduct on that in minute and the nurses were right and when you have a nurse's aide who has exhibited that behavior toward a resident it requires immediate intervention not a brush off and i think that's what was impelling the finding here and clearly it was but the analysis doesn't stop there because the appendix on our our grief has the up scope is very great there's a level of form that the department has to show the government has to show before they can impose an immediate jeopardy harm of that resident there's no actual harm to there and it doesn't depend on actual harm that that would be that kind of standard would not protect patients in these facilities if she's exhibited this behavior that he was not actually harmed but that doesn't mean that there isn't an imminent risk to other residents including the same resident that her behavior will be repeated if it's brushed off and not investigated and nurses aids rather than taken seriously and that exists that exposes these vulnerable residents to future harm by this judge and there's no evidence on the record other than this one incident that that was the reminded on rolls through the in service process in fact in this case the very nurses we're talking about nurses and so you know as we're talking about here we're in service on our abuse and i got policy in march of twenty fourteen less than two months before th you look at our facility history over that four year period that c m s exhibit eight shows there is no allegations of abuse and of what there are in that whole four year period that shows the efficacy of what we do in implementing our polic procedures no question are screwed up no question the question becomes does it rise to the level of immediate jeopardy and should we be forced to pay a fine of sixty sixty thousand dollars for that that's a disproportionate fine to us given our past history what we do to implement our policy and what we do to take care of our residents and i think the analogy should should always understand what you mean so so after the fact that we reported that to the department of public health and in that report it was clear that it was not started on the friday and not until the following monday when they never came out investigated that until looked through the linens to see if they were missing there we talked to staff to see if anybody had missed anything we look to see if there are other instances that we call the i want to say the bellville police department swansea billable or together but we called the police department and a thorough investigation was done within the five day period we sent our final report to the i want our department of public health inside we don't know what happened if it's unsubstantiated one way or another whether this residen invest i don't know what they would investigate in that part judge i guess they could go back and interview more staff they could talk to the overall police department but they didn't do any or they simply didn't have either i'm not saying they should all i'm saying  our investigation on our failure to do it for two days is a minor deviation from a policy that doesn't put any resident at risk for harm or is there a likelihood or probability of serious harm or injury in that situation if only a deviation that you're saying theft theft could not cost significant harm it certainly could judge and i thought about this on the way up on the train in perhaps this hypothetical will help and i know i'm getting into my time here but i suppose it's not theft or abuse suppose it's fair to give medications correctly so we have a resident that comes in with a kidney transplant and we fail to give abuse and rejection dr s well that's clearly an immediate jeopardy you know they've rejected the kidney there's no question about that but what if the allegations of noncompliance for medication are you you failed to give a person  antibiotic for the ten days that was ordered by the ship so we miss a day and there is their arm of the resident well that's not a stretch to say if you don't get your medications in a timely manner that might harm a resident what if the other is she didn't put the bacterial it went on a pressure so half hour before the person ate and that causes some reaction the medicine doesn't work correctly if those c m s comes to us and says that constitutes an immediate jeopardy you're not following your medication their policies it seems to me we have a right to come to th please the court my name is mark broker i'm appearing on behalf of the secretary of health and human services to respond in this case i think that what may be getting lost in the case is the potential harm from the abuse that the l j found to have occurred towards resident thirty four resident thirty four was a ninety two year old man who needed assistance of two people for all activities of daily living which which means that he was helpless that and that the person who yelled obscenities at him and was rough with him is one of the people that he has to depend on to eat to go to the bathroom to go anywhere and that's not someone that he could avoid rosewood statement of issues in its brief talks about whether or not these failures in investigation and reporting amounted to meet each opening and that's that's also what does been brought up today but it doesn't mention the harm or potential harm to this resident from the abuse that have credited the allegation but there's ample evidence in the record to support the judge's fighting and there's no reason to overturn his credibility  findings well you know your opponents his principal argument is that immediate chair pretty has been defined by the government in a way that's that's very narrow they have to you know endanger person's life or but we don't know that we don't know that either we just know that they went missing necessarily were endangered it's that these are illustrations of a systemic breakdown in the policies of the facility for investigating and reporting abuse  statement of deficiencies does not cite the facility for misappropriation of resident property for the rings and said the problem was that they waited they waited  days to start the investigation after the resident had died and it would be very difficult to find a potential thief also with regard to the with the kissing  incident again the import of that is that it was not reported and it was not there was not a proper investigation or something approaching a proper investigation until after the survey  was a report submitted and that report was just talking to some people and saying i don't see anyone cares who was with me that the report contains some ok the report from the facility said that he was alert and able to testify but another point i would like to mention and if he say that he was confused by another point i would like to make as far as the implementation of the policies go the numerous failures to follow the policy creates a reasonable inference the policies were not implemented and it's not just three incidents for instance with regard to resin thirty four there were a series of failures followed see it not being reported to the administrator immediately the c n a not being taken off duty pending investigation the second nurse it was reply ported to delaying and reporting it to the minute straight or the minute straight or not keeping the family apprised of the investigation there's a whole list of  i mean presumably you'd like me mistakes by staff to be corrected in some way that you know minimizes the consequence and you think if they just said to the nurse take care of it certainly under the facilities description of what happened where it was just a peck on the cheek but they kissing on both cheeks in the forehead that  training records it's in service records as far as showing that its policies were implemented we would argue that this that its arguments been waived rosewood did mention this in its pre hearing brief before the l j but not in the main rolls violations that ft sacha and a failure to promptly follow up on those reports and take them seriously that's certainly true and one of the reasons is that that argue argument was not brought up before the d a p it might have addressed it in that case but since it wasn't that the agency did not get a chance to to to speak out of but certainly the secretary position is that the multiple failures to follow the policy right and i'm not making a procedural point about waiver i'm making a point about and what the substantive basis for the findings by the agency that's why it is and it's not you don't have adequate in service it's that you don't follow up adequately when there's a report of some kind of conduct yes i mean that's the grabbing men of the i'm not i'm not sure that they have have a necessarily bad history but the question that's that's on appeal is whether this particular violation i i don't believe that there is that there's information in the in the record on that but that is something that the facility is supposed to introduce evidence on if  impact on its reputation if this is an otherwise well run facility well administered facility the getting tagged with a fine of this magnitude this category i'm talking about not the size of the fine but the category of the fine the immediate jeopardy classification has an impact on its reputation does it not yes it does because  we think it's accurate information that that people would take into consideration if they want to is this proportionate to other immediate jeopardy findings across the industry i mean you do this work regularly right yes i do i would say that this is that this the is that we case a strong case i would say in the middle i would say it's a strong case you know i've seen it certainly worse abuse  we think it's you know a solid example of abuse that that clearly could have cost especially this resident thirty for serious harm to be given these proceedings know plenary review of whether the evidence presented to the ale j at the hearing process gets enough evidence to support the findings except with regard to the severity level which  you we we would agree that with the truth that it's difficult to overturn severity levels and but we believe it's it's appropriate that it's natural for the agency to have  when that aspect becomes in a sense this is a violation and this is the severity level it's going to stick usually it does stick but not always the case that grace healthcare been cited spring this case and we're not pleading poverty if you want to point out that this waiver argument to be doesn't seem to have any merit c m s in their own exhibits which is exhibit a gives our facility history because that's something they have to neglect in our our exhibits which show how we implement that policy and how we constantly remind our employees about that abuse and our policy there in the record and have not been wa i want to go back to our thirty four because i agree with and i think the panel says that's the problem in this case what happened with our thirty four both judge counsel and the d a be sa uck at the ferias all we have to do is show some kind of harm and therefore our decision about immediate jeopardy is always warranted and that's why grace is important because it says the likelihood of those instances so any deviation to follow c m s absolute reasoning any deviation from an established policy and procedure has the potential to be cited immediate jeopardy lot while how do you how do you one stick that problem you say well wait a minute the harm you're complaining of is not really serious injury and it and it doesn't show you  you yourself said when you talk about immediate jeopardy you're talking about a likelihood so you can have you can have a head an action by a nurse or something that doesn't actually cause that injury a serious injury but there was a likelihood of an injury and the nurse and the patient were lucky it didn't materialize right but if the likelihood is the test  does not have to materialize it just has to be you know a significant danger judge let me answer it this way take a course on decision in fairfax fairfax there were a number incidents with residents on ventilator care residents and the decision was well look you've got so many incidence of problems when you're taking care of these persons with ventilators that it's clear that that poses the likelihood of harm to these residents what you have in this case is three isolated incidents which occurred over a five month period one of which was not investigated by the department of public health until they caved on one of the kissing them kissing i