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                              Golden Living Center - Morgantown, DAB CR5169 (2018)
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Golden Living Center - Morgantown, DAB CR5169 (2018)








  
  
    

  
      
Department of Health and Human Services 
    DEPARTMENTAL APPEALS BOARD
          Civil Remedies Division





Golden Living Center - Morgantown,
	(CCN: 51-5049),
	Petitioner,
v.
Centers for Medicare & Medicaid Services
Docket No. C-15-249Decision No. CR5169August 22, 2018

        
              
    

      DECISION
Golden Living Center – Morgantown (Petitioner or the facility) documented that one of its wheelchair-bound residents intentionally used her motorized wheelchair to strike other residents.  Yet, notwithstanding this history, Petitioner’s care plan for the resident did not set a goal of eliminating her abusive behavior, but only of reducing the frequency of such behavior to “less than monthly.”  Then, Petitioner failed to implement effectively the interventions it deemed necessary to meet even this minimal goal.  Petitioner now challenges the determination of the Centers for Medicare & Medicaid Services (CMS) that Petitioner’s actions with respect to this resident constituted noncompliance with the Medicare participation requirement at 42 C.F.R. § 483.13(c) and posed immediate jeopardy to resident health and safety.  Petitioner further challenges the civil money penalty (CMP) that CMS imposed based on this alleged immediate jeopardy noncompliance.
For the reasons that follow, I conclude based on the evidence submitted and the stipulations of the parties that:  (1) Petitioner did not substantially comply with the Medicare participation requirement at 42 C.F.R. § 483.13(c); (2) CMS did not clearly err in determining that Petitioner’s noncompliance with this requirement posed immediate jeopardy to the health and safety of Petitioner’s residents; and (3) the imposed immediate jeopardy level CMP is reasonable in amount and duration.  Furthermore, Petitioner has conceded that it was not in substantial compliance with other program requirements at a
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level not rising to immediate jeopardy and that the non-immediate jeopardy level CMP imposed for that noncompliance is reasonable in amount and duration.
I. Background and Procedural History
Petitioner is a skilled nursing facility (SNF) located in Morgantown, West Virginia.  CMS Exhibit (Ex.) 1 at 1.  Surveyors from the West Virginia Department of Health and Human Resources (state agency) surveyed Petitioner’s facility from June 2 through June 17, 2014.  *Id.*  The state agency found that the facility was not in substantial compliance with Medicare program participation requirements and that the noncompliance constituted immediate jeopardy.  CMS Ex. 3 at 1.  Based on the survey findings, CMS determined that the facility was not in substantial compliance with the following requirements:  42 C.F.R. §§ 483.10(b)(11) (Tag F157); 483.13(c) (Tag F224); 483.13(c)(1)(ii)-(iii), (c)(2)-(4) (Tag F225); 483.20(k)(3)(ii) (Tag F282); 483.25 (Tag F309); 483.25(f)(1) (Tag F319); 483.25(h) (Tag F323); 483.75 (Tag F490); and 483.75(o)(1) (Tag F520).1
  CMS Ex. 6 at 1-2; *see also*CMS Ex. 1.  CMS determined that Petitioner’s noncompliance with 42 C.F.R. §§ 483.13(c) (Tag F224) and 483.25 (Tag F309) posed immediate jeopardy to the health and safety of Petitioner’s residents from March 29, 2014 through June 11, 2014.  CMS Ex. 6 at 1-2.  Following a revisit survey completed on August 14, 2014, the state agency found that Petitioner finished correcting all cited instances of noncompliance on July 31, 2014.  CMS Ex. 8.  CMS imposed a CMP of $3,200 per day for the duration of the period of immediate jeopardy (March 29, 2014 through June 11, 2014) and a CMP of $200 per day for the duration of the remaining period of non-immediate jeopardy level noncompliance (June 12, 2014 through July 30, 2014).2
  CMS Ex. 6 at 2.
By letter postmarked October 17, 2014, Petitioner requested a hearing (P. RFH).  On November 10, 2014, Administrative Law Judge Scott Anderson issued an acknowledgment and prehearing order establishing a briefing schedule.  This case was reassigned to me on October 14, 2016.  In accordance with the schedule Judge Anderson set, CMS and Petitioner filed prehearing exchanges, including prehearing briefs (CMS
Page 3
Prehearing Br. and P. Prehearing Br., respectively), exhibit and witness lists, and proposed exhibits.  Ultimately, CMS submitted 29 exhibits (CMS Exs. 1-29), and Petitioner submitted 28 exhibits (P. Exs. 1-28).
On November 14, 2016, I held a prehearing conference with the parties to prepare this case for a hearing.  An order dated November 16, 2016, summarizes the substance of our discussion at the conference (PHC Order).  As explained in that order, Petitioner, through counsel, conceded that unchallenged deficiencies cited by CMS at the non-immediate jeopardy level supported both (1) a finding that Petitioner was not in substantial compliance with program requirements3
 from March 29, 2014 through July 30, 2014,4
 and (2) CMS’s imposition of a CMP of at least $200 per day for the duration of that period.5
  PHC Order at 2.
On January 24 and 25, 2017, I held a hearing by video teleconference.  At the hearing, CMS withdrew CMS Ex. 28, and I admitted CMS Exs. 1-27 and 29 without objection.  Transcript (Tr.) at 15.  CMS objected to P. Ex. 28 on relevance grounds.  Tr. at 15-19.
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I sustained CMS’s objection to P. Ex. 28 and did not admit it into evidence; I admitted P. Exs. 1-27 into the record without objection.  Tr. at 20.
After the hearing, CMS and Petitioner filed post-hearing briefs (CMS Br. and P. Br., respectively) and post-hearing replies (CMS Reply and P. Reply, respectively).
II. Issues
The issues remaining in this case are:
1. During the period March 29, 2014 through June 11, 2014, did the facility fail to comply substantially with the regulations at 42 C.F.R. § 483.13(c) (Tag F224) and 42 C.F.R. § 483.25 (Tag F309)?
2. If the facility was not in substantial compliance with the cited regulations, is CMS’s determination that the deficiencies posed immediate jeopardy to resident health and safety clearly erroneous?
3. Is the CMP imposed ($3,200 per day) reasonable?
III. Jurisdiction
I have jurisdiction to hear and decide this case.  Social Security Act (Act) §§ 1128A(c)(2), 1819(h)(2)(B)(ii) (codified at 42 U.S.C. §§ 1320a-7a(c)(2), 1395i‐3(h)(2)(B)(ii)); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13).
IV. Discussion
**A. Statutory and Regulatory Framework**
The Social Security Act sets requirements for SNF participation in the Medicare program.  The Act authorizes the Secretary of the U.S. Department of Health & Human Services (Secretary) to promulgate regulations implementing those statutory provisions.  Act § 1819 (42 U.S.C. § 1395i-3).  The Secretary’s regulations are found at 42 C.F.R. pt. 483.
A facility must maintain substantial compliance with program requirements in order to participate in the program.  To be in substantial compliance, a facility’s deficiencies may pose no greater risk to resident health and safety than “the potential for causing minimal harm.”  42 C.F.R. § 488.301.  A deficiency is a violation of a participation requirement established by sections 1819(b), (c), and (d) of the Act (42 U.S.C. § 1395i-3(b), (c), and (d)), or the Secretary’s regulations at 42 C.F.R. pt. 483, subpt. B.  “Noncompliance”
Page 5
means “any deficiency that causes a facility to not be in substantial compliance.”  42 C.F.R. § 488.301.
The Secretary contracts with state agencies to conduct periodic surveys to determine whether SNFs are in substantial compliance with the participation requirements.  Act § 1864(a) (42 U.S.C. § 1395aa(a)); 42 C.F.R. §§ 488.10, 488.20.  The Act and regulations require that facilities be surveyed on average every twelve months, and more often if necessary, to ensure that identified deficiencies are corrected.  Act § 1819(g)(2)(A) (42 U.S.C. § 1395i-3(g)(2)(A)); 42 C.F.R. §§ 488.20(a), 488.308.
**B. Findings of Fact, Conclusions of Law and Analysis**
***1. Petitioner was not in substantial compliance with 42 C.F.R. § 483.13(c) (Tag F224) because it tolerated foreseeable resident-on-resident abuse as long as that abuse occurred less than once per month and did not, in any event, implement all interventions designed to achieve this goal, all of which placed Petitioner’s residents generally at risk for more than minimal harm and caused actual harm to at least one of Petitioner’s residents**.6*
**Program requirement:  42 C.F.R. § 483.13(c) (Tag F224)**.  A facility must develop and implement written policies and procedures prohibiting mistreatment, neglect, and abuse of residents and the misappropriation of residents’ property.  42 C.F.R. § 483.13(c).  The regulations define “abuse” as “the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.”  42 C.F.R. § 488.301.  A finding of noncompliance with section 483.13(c) can be based on failure to develop policies or procedures adequate to prevent abuse or neglect, or it can be based on failure to implement such policies.  *See, e.g.*,*Mississippi Care Ctr. of Greenville*, DAB No. 2450 at 13-15 (2012) (finding noncompliance with section 483.13(c) where a facility that relied on its exit door lock code and security camera systems to prevent elopement failed to develop written policies and procedures that were adequate to protect residents at risk of elopement).
**The facility’s anti-abuse policy**.  At the time of the survey, Petitioner had a policy requiring it “to take appropriate steps to prevent . . . abuse.”  CMS Ex. 9 at 1.  As relevant here, Petitioner’s anti-abuse policy defined abuse to include “the willful infliction of injury . . . with resulting physical harm, pain or mental anguish.”  *Id.*  To aid in preventing abuse, Petitioner’s “executive director (ED) and director of nursing services (DNS) [must] identify, intervene and correct in situations in which abuse . . . is more likely to occur.”  *Id.* at 3.  In potential abuse situations where the suspected abuser is another resident, “the DNS or designee separates the residents so they do not have access
Page 6
to each other until the circumstances of the alleged incident can be determined.”  *Id.*  Following an incident of suspected abuse, the ED, DNS, or charge nurse is responsible for investigating the incident according to the investigation procedures given in the anti-abuse policy.  *Id.* at 4.  Following the investigation, Petitioner’s staff are required to “make[] reasonable efforts to determine the cause of the alleged violation and take[] corrective action consistent with the investigation findings and to eliminate any ongoing dangers to the resident.”  *Id.* at 5.
**Resident 71**.7
  At the time of the survey, Resident 71 was a quadriplegic, 70-year-old woman with a history of cerebrovascular accident (CVA or stroke) and diagnoses that included flaccid hemiplegia affecting unspecified side; cerebral thrombosis without mention of cerebral infarction; depressive disorder not elsewhere classified; anxiety state, unspecified; acute cerebrovascular disease; and aphasia, among others.  CMS Ex. 16 at 41, 67, 75; P. Ex. 9.8
  Petitioner assessed Resident 71 as having difficulty communicating due to her impaired cognition, aphasia, and past stroke.  CMS Ex. 16 at 19, 41; *see also id.* at 89-92.  Resident 71 was functionally dependent on Petitioner’s staff for all mobility except when using a motorized wheelchair.  *Id.* at 75.
Facility records document that Resident 71 exhibited behavioral problems at least as early as 2009.  A physical therapy plan of care for rehabilitation dating back to October and November 2009 reports that nursing staff temporarily removed Resident 71 from her motorized wheelchair because of increased safety issues.  *Id.*  Resident 71 was evaluated and trained on safe usage of the wheelchair before she was permitted to resume using it.  *Id.*  Following the training and evaluation, one of Petitioner’s physical therapists noted that Resident 71 had demonstrated safe mobility in the motorized wheelchair and that she had “[n]o episodes of impulsive, dangerous behavior.”  *Id.*  I infer from this note that Resident 71 was removed from her motorized wheelchair at least in part due to impulsive, dangerous behavior.
Two and a half years later, on May 22, 2012, Petitioner’s staff updated Resident 71’s care plan to include a focus on Resident 71’s “behaviors which include [b]umping into other people with the power wheelchair.”  *Id.* at 54.  Although the record does not include any
Page 7
evidence of a specific incident that occurred on or around May 22, 2012, I infer from the care plan that on or shortly before that date, Resident 71 had demonstrated a willingness to run into others with her motorized wheelchair.  This behavior was intentional.  *Id.* at 19, 21.  The goal of the care plan related to these behaviors was for Resident 71’s “behavior [to] stop with staff intervention to decrease [her] episodes to less than monthly thru the next review.”  CMS Ex. 16 at 54.  The initial interventions listed to achieve this goal were:  “Attempt interventions before [Resident 71’s] behaviors begin”;9
 “Do not seat [Resident 71] around others who disturb [her]”; “Give [Resident 71 her] medications as [her] doctor has ordered”; and “Help [Resident 71] to avoid situations or people that are upsetting to [her].”  *Id.*  Petitioner updated the care plan on August 31, 2012, to include an additional intervention of “keep[ing] resident from middle of halways [sic] and middle of lobbies to ensure other patient safety.”  *Id.*
On February 15, 2013, Resident 71 twice ran her motorized wheelchair into another resident’s wheelchair after the other resident looked at paper belonging to Resident 71.  CMS Ex. 1 at 16.10
  The record does not reveal whether the other resident was injured.  A progress note from February 17, 2013, states that Resident 71 used her motorized wheelchair to traverse the facility with “[n]o behaviors” and “no attempts to run over staff/residents this shift.”  CMS Ex. 16 at 25.  One of Petitioner’s nurses generated a therapy and nursing communication form, dated February 18, 2013, in which the nurse questioned whether the resident should still be using her motorized wheelchair, as she “continues to be [a] safety hazard to other residents.”  *Id.* at 79.  On February 20, 2013, a physical therapist assessed Resident 71 for continued use of her motorized wheelchair, finding that it was still appropriate for her to do so.  *Id.*  In the wake of this incident, Petitioner made no changes to Resident 71’s care plan related to her behavior of bumping into other people with her wheelchair.  *Id.* at 54.
About six months later, on August 18, 2013, Resident 71 “attempted to jam her electric [wheelchair] into another resident’s [wheelchair] . . . [because] she was angry with him . . . .”  *Id.* at 25.  Resident 71 was “easily redirected” at that time, and Petitioner’s staff provided distance between the two residents, with “no further occurrences noted.”  *Id.*  It
Page 8
does not appear that anyone was injured during this altercation.  As after the February 15 incident, Petitioner made no changes to Resident 71’s care plan related to her behavior of bumping into other people with her wheelchair following the August 18 incident.
About five months thereafter, on January 16, 2014, Resident 71 got into an altercation with another resident.  CMS Ex. 16 at 16.  The other resident was in Resident 71’s room “going through [Resident 71’s] things” when Resident 71 “hit [the other resident] with her motorized wheelchair.”  *Id.*  According to a handwritten statement from one of Petitioner’s nurses, Resident 71 was aiming her wheelchair at the other resident’s legs.  *Id.* at 18.  The other resident bit Resident 71’s right foot in response.  *Id.* at 16.  Petitioner’s staff separated the two residents, and “no other incidents occurred.”  *Id.*  The post-incident investigation report indicates that Resident 71 had a bite mark on her right foot, which was treated with first aid and Tylenol®, and Resident 71’s doctor and family were notified of the incident.  *Id.* at 16-17.  A handwritten note on the investigation report states that Resident 71 “has [history] of being confrontational [with] others and staff.”  *Id.* at 17.  The day after this incident, Resident 71’s interdisciplinary team (IDT) met and updated her care plan with the following additional intervention:  “encourage resident to utilize bell on her [wheelchair] to alert staff that she needs assistance.  When a potential confrontation may occur . . . staff to redirect her behavior and staff will intervene to ensure residents are kept safe.”  *Id.* at 17, 54.
A little over three months later, on April 28, 2014, Resident 71 again ran her motorized wheelchair into another resident’s wheelchair.  P. Ex. 10 at 2.  According to a progress note, Resident 71 “was upset because [the other resident] wandered over and ate some of [Resident 71’s] fruit.”  *Id.*  Resident 71’s response was to “r[u]n her [wheelchair] into [the other resident’s wheelchair] 3 times.”  *Id.*  Neither resident suffered injury from this altercation, and nursing staff separated the two and told Resident 71 “her reaction was not appropriate.”  *Id.*  Once separated, the two residents “did not have any more incidents.”  *Id.*  This incident also did not prompt Petitioner to update Resident 71’s care plan related to her behavior of bumping into other people with her wheelchair.
Four weeks later, on May 26, 2014, Resident 71 again ran her motorized wheelchair into another resident’s (Resident 20’s) wheelchair, this time knocking the other resident to the floor.  CMS Ex. 16 at 1, 10; P. Ex. 10 at 1.  Petitioner’s staff investigated the incident, writing initial and 5-day follow-up reports that were transmitted to the West Virginia Office of Health Facility Licensure & Certification and that included witness statements from staff who were in the vicinity of the incident.  CMS Ex. 16 at 1-11.  According to the reports, the incident occurred at about 2:30 p.m., starting when Resident 20 got too close and bumped his wheelchair into Resident 71’s wheelchair.  *Id.* at 7, 11; P. Ex. 10
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at 1.  Resident 71 began “beeping her horn,”11
 which got the attention of one of Petitioner’s staff members.  CMS Ex. 16 at 11, 85.  The staff member saw that Resident 20 “was backed up on [Resident 71’s left] side,” and as she walked over to them, Resident 20 “started rolling away.”  *Id.* at 11.  After telling Resident 71 that Resident 20 “was moving and it would be ok,” the staff member “walked away down the hall.”  *Id.*  She returned to find Resident 20 on the floor.  *Id.*  Another staff member observed Resident 71 “running into [Resident 20’s] chair,” but was unable to intervene before Resident 71 “had knocked him over.”  *Id.* at 10.  A behavior charting progress note generated at 9:41 p.m. on May 26, 2014, indicates that Resident 71 “was angry that [Resident 20] had bumped into her wheelchair” and “rammed her wheelchair into his wheelchair[,] knocking him over [and] causing him [to] hit his head on the ground.”  P. Ex. 10 at 1.  Resident 71 was uninjured during the altercation, while Resident 20 “was knocked out of his wheelchair,” suffered “skin tears to arms,” and “was sent to ER as a precaution for bumping his head.”12
  CMS Ex. 16 at 1, 7.
Immediately following the May 26, 2014 incident, Petitioner’s staff asked Resident 71 to relinquish her motorized wheelchair (*id.*at 7), and “ensured residents [71 and 20 had] no contact with each other” (*id.*at 1) to protect Resident 20.  The “Five Day Follow-Up” report documented that Petitioner continued to “ensure residents have no contact with each other” and also noted that Resident 71 was “on monitoring checks to ensure no further aggressive behaviors are demonstrated.”  *Id.* at 2.  Petitioner also “look[ed] into moving the residents so that the residents are further apart”13
 and placed Resident 71’s motorized wheelchair “on the lowest speed setting.”  *Id.*  The IDT met two days after the incident, noting that Resident 71 was “educated on appropriate behaviors while in her motorized [wheelchair],” that she was “currently being evaluated by therapy on appropriateness/safety of current [wheelchair],” and that, “until evaluation [was] completed[,] motorized [wheelchair was] not being utilized.”  *Id.* at 8.  The next day,
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Petitioner’s executive director met with Resident 71 and two of her children (one of whom was Resident 71’s power of attorney) to discuss the incident, Petitioner’s “expectations . . . for [Resident 71] to remain in the chair to ensure the safety of . . . other residents,” and proposed interventions, including “decreasing the speed of the chair, monitoring, evaluations of appropriateness, etc.”  *Id.* at 23.  Petitioner’s care plan for Resident 71 was updated twice following the May 26, 2014 incident.  First, on June 2, 2014, Petitioner added an intervention to “[t]urn down speed of [wheelchair] to medium.”  CMS Ex. 16 at 54.  Second, on June 6, 2014, Petitioner added:  “[e]ducate resident on importance of using bell on motorized [wheelchair] to alert staff that she needs assistance or that other residents are bothering her . . . .”  *Id.*  Ultimately, Petitioner removed Resident 71 from her motorized wheelchair on June 12, 2014, and placed her in a manual wheelchair.  CMS Ex. 1 at 7; P. Ex. 27 at 1.
Whether this case is viewed through the lens of failure to develop adequate anti-abuse policies and procedures or of failure to implement such policies and procedures, Petitioner’s actions (and inactions) with respect to Resident 71 violated 42 C.F.R. § 483.13(c) and caused actual harm to one of Petitioner’s residents while placing the remaining residents at risk of more than minimal harm.  On at least five separate occasions, Resident 71 intentionally used her wheelchair to run into or even ram other residents.  CMS Ex. 1 at 16; CMS Ex. 16 at 1-11, 16-18, 23, 25, 54, 79; P. Ex. 10 at 1-2.  The record is silent as to the effect this had on some of the residents, but on one occasion the facility documented that a resident (Resident 20) was physically harmed (sustaining skin tears and a bump to his head) by Resident 71’s aggressive behavior.  CMS Ex. 16 at 1.  This behavior fits the identical definitions of abuse provided in the regulations and in Petitioner’s own anti-abuse policy—Resident 71 was using her wheelchair willfully to inflict injury on other residents, leading in at least one instance to actual physical harm.  Yet, despite § 483.13(c)’s clear mandate that Petitioner develop written policies and procedures *prohibiting* abuse and Petitioner’s own anti-abuse policy requiring it to “take appropriate steps to prevent . . . abuse,” CMS Ex. 9 at 1, its care plan for Resident 71 provided only for limiting her “episodes” of intentionally running her wheelchair into other residents “to less than monthly,” CMS Ex. 16 at 54.  As CMS correctly points out, this “‘goal’ of limiting these incidents to [less than] once a month demonstrates [Petitioner’s] tolerance of abuse towards its residents.”  CMS Reply at 5.  Despite occasionally adding interventions to Resident 71’s care plan after episodes of this abusive behavior, there is no evidence that Petitioner ever modified the goal of the care plan to prohibit her abusive behavior outright—even after an escalating series of incidents14
 that
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culminated in her knocking over another resident and causing him to bump his head on the floor and suffer skin tears.  On its face, therefore, Petitioner’s care plan for Resident 71 violated 42 C.F.R. § 483.13(c), which led to one resident suffering actual harm and placed potentially all of Petitioner’s other residents at risk of similar, more than minimal harm.
However, even assuming that Petitioner’s care plan for Resident 71 was adequate to satisfy Petitioner’s obligation to *develop* policies prohibiting abuse, Petitioner failed to *implement* the care plan effectively to prevent her from abusing other residents.  On January 17, 2014, Petitioner updated Resident 71’s care plan to initiate the following intervention:  “encourage resident to utilize bell on her [wheelchair] to alert staff that she needs assistance.  When a potential confrontation may occur . . . staff to redirect her behavior and staff will intervene to ensure residents are kept safe.”  CMS Ex. 16 at 54.  Given Resident 71’s demonstrated history of at least attempting to abuse other residents by hitting them with her wheelchair, this intervention clearly was a step Petitioner thought appropriate to prevent abuse, in conformity with its anti-abuse policy.  *See*CMS Ex. 9 at 1.  Yet it does not appear that Petitioner ensured its staff was familiar with this intervention.15
  The incident on May 26, 2014 began as a “potential confrontation” when Resident 20 bumped his wheelchair into Resident 71’s wheelchair.  CMS Ex. 16 at 1, 7, 11; P. Ex. 10 at 1.  But when Resident 71 rang her bell and got the attention of a staff member, the staff member did not redirect Resident 71 or intervene to ensure Resident 20 was kept safe.  CMS Ex. 16 at 11.  Instead, she merely walked towards Resident 71 until she saw Resident 20 begin to move away, then walked away after telling Resident 71 that “it would be ok.”  *Id.*  Only moments later, Resident 71 “rammed her wheelchair into [Resident 20’s] wheelchair[,] knocking him over [and] causing him [to] hit his head on the ground.”  P. Ex. 10 at 1.  Thus, Petitioner failed to implement its anti-abuse policies effectively to prevent Resident 71 from abusing other residents, including Resident 20, which caused actual harm to Resident 20 and placed Petitioner’s other residents at risk of similar, more than minimal harm.
None of Petitioner’s arguments persuades me that Petitioner substantially complied with 42 C.F.R. § 483.13(c).  For example, Petitioner argues that all of Resident 71’s “altercations occurred in circumstances where it was impossible or impracticable for staff to intervene.”  P. Prehearing Br. at 19; P. Br. at 15.  Not so.  It was neither impossible nor impracticable for staff to intervene in the May 26, 2014 incident, had the staff member who witnessed the outset of the altercation followed Resident 71’s care plan.
Page 12
Petitioner also asserts that Resident 71 did not injure any other residents.  P. Br. at 16; P. Reply at 21.  This assertion materially misstates Petitioner’s own records, which demonstrate that Resident 20 bumped his head on the floor and suffered one or more skin tears as a consequence of Resident 71 ramming him with her motorized wheelchair.  CMS Ex. 16 at 1.  In any event, even if Resident 20 was not injured by falling and bumping his head on the ground, Petitioner would not be absolved of its noncompliance.  As explored in greater detail in the next section, the vast majority of Petitioner’s residents were individuals who have reduced capacity to withstand falls and head injuries.  Even if Resident 71 did not injure Resident 20 by knocking him out of his wheelchair to the floor, this result was sheer luck.  Many of Petitioner’s other residents might not have been so lucky had they fallen victim to Resident 71’s dangerous behaviors.  These residents were at risk of suffering more than minimal harm should they have been targeted by Resident 71.  Consequently, even if Petitioner were not wrong in asserting that Resident 71 did not injure any other residents, that fact would be irrelevant in assessing Petitioner’s compliance, or not, with 42 C.F.R. § 483.13(c).
Elsewhere, Petitioner argues that the IDT’s assessments of Resident 71’s “possible misuse of the power wheelchair” and provision of “interventions in her care plan to reduce and address such behaviors” represented an adequate balance of Resident 71’s need and right to be independent and autonomous to the maximum extent possible with the rights of other residents to be free from abuse.  P. Br. at 16-17, 24; *see also* P. Prehearing Br. at 18-20; P. Reply at 21-23.  In a similar vein, Petitioner argues that it actually was successful in implementing Resident 71’s care-planned goal of reducing the frequency of her behavior of bumping into others to less than once per month.  P. Br. at 24.  These arguments are both unpersuasive and ultimately irrelevant.  The care plan the IDT generated explicitly sanctioned resident-on-resident abuse, so long as it occurred less often than monthly.  CMS Ex. 16 at 54.  Section 483.13(c) does not permit a facility to tolerate resident-on-resident abuse, regardless of whether the facility is “successful” in limiting the frequency of such episodes.  The care plan thus did not adequately balance Resident 71’s needs and rights with the rights of other residents.  Putting that aside, the remaining problem is that Petitioner’s staff failed to maintain that care-planned balance of resident needs and rights by failing to implement the interventions initiated by the IDT in Resident 71’s care plan.  Petitioner may have “succeeded” in limiting Resident 71 to striking or attempting to strike other residents with her motorized wheelchair less frequently than monthly, consistent with the care-planned goal.  Nevertheless, the fact that such incidents did not occur more often may have been only a fortunate happenstance, considering Petitioner’s staff failed to implement the specific interventions listed as necessary to achieve that goal.
Petitioner also argues that while “resident-to-resident behaviors and altercations should be prevented to the extent possible, . . . it is not possible to ensure that no such behavior or consequences ever will occur.”  P. Prehearing Br. at 20; *see also* P. Br. at 24 (“[N]o regulation requires that nursing facilities accomplish the impossible result of assuring that
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no unwanted behaviors (or consequences) ever occur.”), P. Reply at 25 (“[A]bsolute success is not the regulatory standard . . . .”).  While this argument may have some surface appeal, it ultimately serves only to distract from the real issues in this case.  Just because it is not possible to prevent all altercations between residents does not mean a facility should permit, as a matter of policy, some number of altercations, so long as they occur infrequently enough (e.g., less than monthly, as in this case).  Moreover, even within the confines of Petitioner’s care plan for Resident 71, Petitioner did not prevent resident-to-resident altercations “to the extent possible,” given that Petitioner’s staff might have prevented the May 26, 2014 altercation between Resident 71 and Resident 20 had they implemented the interventions the IDT identified as necessary to limit Resident 71’s behaviors.
In sum, the evidence shows that Petitioner violated 42 C.F.R. § 483.13(c) both in its creation and implementation of the care plan for dealing with Resident 71’s unwanted behavior of bumping into other people with her wheelchair.  As a result, Resident 20 suffered actual harm when Resident 71 rammed his wheelchair and knocked him from the wheelchair to the floor, and many (if not all) other residents were placed at risk of suffering similar, more than minimal harm.  Consequently, I conclude that Petitioner was not in substantial compliance with 42 C.F.R. § 483.13(c).
***2. CMS’s immediate jeopardy determination was not clearly erroneous because Petitioner’s failure to protect its residents from potential abuse by Resident 71 could have caused serious injury to any of the fragile elderly residents cared for by Petitioner.***
Immediate jeopardy exists if a facility’s noncompliance has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.  42 C.F.R. § 488.301.  The regulation does not require that a resident *actually*be harmed.  *Lakeport Skilled Nursing Ctr.*, DAB No. 2435 at 8 (2012).  I must uphold CMS’s determination as to the level of a facility’s substantial noncompliance (which includes an immediate jeopardy finding) unless it is “clearly erroneous.”  42 C.F.R. § 498.60(c)(2).  The “clearly erroneous” standard imposes on facilities a heavy burden to overcome a finding of immediate jeopardy.  Appellate panels of the Departmental Appeals Board (DAB) have sustained determinations of immediate jeopardy where CMS presented evidence “from which ‘[o]ne could reasonably conclude’ that immediate jeopardy exists.”  *See, e.g.*,*Barbourville Nursing Home*, DAB No. 1962 at 11 (2005) (citing*Florence Park Care Ctr.*, DAB No. 1931 at 27-28 (2004)), *aff’d*,*Barbourville Nursing Home v. U.S. Dep’t of Health & Human Servs.*, 174 F. App’x 932 (6th Cir. 2006); *see also, e.g.*, *Easley v. Cromartie*, 532 U.S. 234, 242 (2001) (“In applying [the clearly erroneous] standard, . . . a reviewing court must ask whether, ‘on the entire evidence,’ it is ‘left with the definite and firm conviction that a mistake has been committed.’”).
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In this case, CMS’s finding of immediate jeopardy is not clearly erroneous.  Testimony from Petitioner’s Director of Nursing (DON), Tammy Livingston, and from Surveyor Thomas Clevenger is particularly instructive on this point.  DON Livingston testified at the hearing that “about 85 percent” of Petitioner’s residents were “frail elderly” who have reduced capacity to withstand falls and head injuries and experience more difficulty recovering from such accidents.  Tr. at 406-07.  She also testified that falls can be very harmful to elderly individuals, who may suffer a number of injuries from falling, such as “broken bones,”  “skin tears,” and other injuries, which “can debilitate them to where they may need physical therapy . . . .”  Tr. at 409.  Surveyor Clevenger testified credibly, without rebuttal, that although Petitioner reduced the speed of Resident 71’s motorized wheelchair in response to the incident with Resident 20, “[t]he power wheelchair is heavy and can inflict damage such as knocking someone from their chair or off their feet regardless of the speed that it’s traveling at.”  Tr. at 214-16.
As I have described in the previous section of this decision, Resident 71 had a history of hitting other residents with her motorized wheelchair.  At a minimum, this behavior had the potential to injure other residents by knocking them over.  And, on May 26, 2014, that potential became a reality when Resident 71 knocked Resident 20 onto the floor.  Yet, no evidence suggests that Resident 71’s motorized wheelchair was placed on a low speed setting until *after* the May 26, 2014 incident.  In the immediate aftermath of the incident with Resident 20, Petitioner documented that it placed Resident 71’s motorized wheelchair “on the lowest speed setting.”  CMS Ex. 16 at 2.  However, when the IDT updated her care plan on June 2, 2014, it added as an intervention “[t]urn down speed of [wheelchair] to medium.”  *Id.*at 54.  I draw two inferences based on the cited notes.  First, because the IDT stated that the speed setting on Resident 71’s wheelchair would be turned down, I infer that Resident 71’s motorized wheelchair was on a speed setting higher than “medium” prior to the incident involving Resident 20.  Second, because the care-planned intervention was to set the wheelchair speed to medium (and not to “low” or “slow”), I infer that Resident 71’s wheelchair was set to the lowest speed setting only from on or after May 26, 2014 until on or about June 2, 2014.
In view of the foregoing facts, I cannot say I have a “firm conviction” that the declaration of immediate jeopardy was a mistake.  *Easley*, 532 U.S. at 242.  To the contrary, I find the declaration of immediate jeopardy to be eminently reasonable, given the circumstances.  Resident 71’s ability to knock other residents to the floor using her motorized wheelchair posed a serious threat to the health and safety of the approximately 85 percent of Petitioner’s residents that DON Livingston characterized as “frail elderly,” who were especially vulnerable to head injuries and injuries from falling.  Surveyor Clevenger’s testimony shows that Resident 71 continued to pose such a threat even after Petitioner reduced the speed setting of her motorized wheelchair.  Petitioner nonetheless countenanced the possibility that Resident 71 would run into other residents, albeit less than monthly, and failed to implement effectively the interventions it deemed necessary to reduce Resident 71’s dangerous behavior.  Petitioner is fortunate that Resident 20 was
Page 15
not seriously injured when Resident 71 knocked him out of his wheelchair, but this good fortune does not convince me that CMS made a mistake in declaring immediate jeopardy in this case.  Had Resident 71 gotten into an altercation with another, more frail resident, where she “rammed her wheelchair” into the other resident’s wheelchair, “knocking [the other resident] over [and] causing [the other resident to] hit his [or her] head on the ground,” P. Ex. 10 at 1, it is plain that serious harm could have occurred.
Petitioner argues that “the record evidence does not support a finding that any *noncompliance* was ‘likely’ *to cause* ‘death or serious harm’ . . . .”  P. Br. at 25 (emphasis in original).  Specifically regarding Resident 71, Petitioner asserts that its “acts or omissions certainly did not *cause* the Resident to bump into other residents (or not to stop doing so) . . . .”  *Id.* (emphasis in original).  The facts belie this argument.  A member of Petitioner’s staff had an opportunity to stop Resident 71 from ramming into Resident 20, had the staff member simply followed Resident 71’s care plan by intervening to redirect her.  Petitioner cannot avoid its responsibility for protecting Resident 20 (and all its other residents) by deflecting blame to Resident 71.  Petitioner may not have been controlling Resident 71’s motorized wheelchair directly, but it did have a plan in place (deficient though it was) to try to prevent Resident 71 from using her wheelchair to harm other residents.  Petitioner’s failure to implement that plan significantly contributed to, even if it did not directly cause, the injuries that Resident 20 suffered.  Had Resident 71 struck one of Petitioner’s more vulnerable residents, Petitioner’s failure to prevent this abusive behavior might well have led to much more serious injuries, although fortunately it did not.
Elsewhere, Petitioner asserts that “there actually is no record evidence regarding how hard [Resident 71] ever hit anyone (other than that the wheelchair was set to its lowest power)” and that, “while any bumping by a power wheelchair might be bad, it would seem to be obvious that being bumped by a slowly-moving chair would be less likely to cause injury than being bumped by a full-powered chair.”  P. Reply at 21, 24-25.  Petitioner does not explicitly argue that these assertions refute CMS’s finding of immediate jeopardy.  Nevertheless, it is possible to infer from these assertions a contention that the immediate jeopardy citation was erroneous because Resident 71 was not truly capable of causing serious injury to anyone using her motorized wheelchair.  These assertions and the argument implicit within them appear to be based on a misunderstanding of the factual record.
I agree with Petitioner that the record is unclear precisely how fast Resident 71’s wheelchair could go or how much force it could generate at various speeds.  Nevertheless, as I have found above, prior to May 26, 2014, Resident 71’s wheelchair was on a setting higher than medium and not, as Petitioner suggests, at its lowest-speed setting.  Further, the record shows that Resident 71 was capable of hitting other residents hard enough to knock them out of their wheelchairs.  She was, therefore, capable of causing very serious injury to Petitioner’s vulnerable population.  Resident 71’s
Page 16
motorized wheelchair was only on the lowest speed setting temporarily in the immediate aftermath of the May 26, 2014 incident with Resident 20.  CMS Ex. 16 at 2.  By about June 2, 2014, the setting had been changed to “medium,” which by definition in this context means a setting between a higher and lower setting.  *See id.*at 54.  Thus, Resident 71’s motorized wheelchair was only in the “lowest setting” for approximately a week.  Moreover, Surveyor Clevenger’s credible, unrebutted testimony establishes that Resident 71 posed a risk of harm to other residents even when her motorized wheelchair was placed on a low speed setting.  Tr. at 214-16.  Consequently, I find no basis to conclude that the declaration of immediate jeopardy was clearly erroneous even for the period when the motorized wheelchair was placed on the lowest speed setting.
***3. The immediate jeopardy level CMP imposed is reasonable in amount and duration.***16
To determine whether a CMP is reasonable, I examine the factors listed in 42 C.F.R. § 488.438(f):  1) the facility’s history of noncompliance; 2) the facility’s financial condition; 3) the factors specified in 42 C.F.R. § 488.404; and 4) the facility’s degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort, or safety.  The absence of culpability is not a mitigating factor.  The factors listed in § 488.404 include:  1) the scope and severity of the deficiency; 2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and 3) the facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies.  Unless a facility contends that a particular regulatory factor does not support the CMP amount that CMS imposed, the administrative law judge must sustain it.  *Coquina Ctr.*, DAB No. 1860 at 32 (2002).
Page 17
The regulations specify that a per-day CMP will fall into one of two ranges of penalties.  42 C.F.R. §§ 488.408; 488.438.  CMS imposes a CMP in the upper range, $3,050 per day to $10,000 per day, for deficiencies that pose immediate jeopardy to a facility’s residents and, in some circumstances, for repeated deficiencies.  42 C.F.R. § 488.438(a)(1)(i), (d)(2).  CMS imposes a CMP in the lower range, $50 per day to $3,000 per day, for deficiencies that do not pose immediate jeopardy, but either cause actual harm to residents, or cause no actual harm but have the potential for causing more than minimal harm.  42 C.F.R. § 488.438(a)(1)(ii).  In assessing the reasonableness of a CMP amount, an administrative law judge looks at the per-day amount, rather than the total accrued CMP.  *See Kenton Healthcare, LLC*, DAB No. 2186 at 28 (2008).  The regulations leave the decision regarding the choice of remedy to CMS, and the amount of the remedy to CMS and the administrative law judge, requiring only that the regulatory factors at §§ 488.438(f) and 488.404 be considered when determining the amount of a CMP within a particular range.  42 C.F.R. §§ 488.408; 488.408(g)(2); 498.3(d)(11); *see also*42 C.F.R. § 488.438(e)(2) and (3); *Alexandria Place*, DAB No. 2245 at 27 (2009); *Kenton Healthcare, LLC*, DAB No. 2186 at 28-29.
CMS decided to impose per-day CMPs in this case, and I have found that the declaration of immediate jeopardy was not clearly erroneous.  For the period of Petitioner’s immediate jeopardy level noncompliance (March 29, 2014 through June 11, 2014), CMS imposed a CMP of $3,200 per day, which is at the lower end of the range for immediate jeopardy level noncompliance.
Petitioner does not argue that any particular regulatory factor supports a reduction of the CMP amount proposed by CMS.  For that reason alone, I could conclude the CMP is reasonable in amount and duration.  *See Coquina Ctr.*, DAB No. 1860 at 32.  However, Petitioner does argue generally that Resident 71’s behaviors did not pose a serious risk of harm to other residents.  P. Br. at 25; P. Reply at 21, 24-25.  Although Petitioner does not explicitly argue that the alleged lack of potential harm to other residents supports a reduction in the amount of the CMP or bears on any of the related regulatory factors, I treat this argument as an assertion that Petitioner’s noncompliance was not particularly severe, per the factor found at §§ 488.438(f)(3) and 488.404.
**Amount**.  As I have described above, Petitioner’s failure to implement effective interventions to prevent Resident 71 from abusing other residents constituted immediate jeopardy noncompliance that was very serious.  Petitioner’s attempts to minimize the seriousness of its noncompliance with 42 C.F.R. § 483.13(c) (Tag F224) either ignore the evidence or attempt to deflect blame away from Petitioner onto Resident 71.  P. Br. at 25; P. Reply at 21, 24-25.  Clearly, Resident 71 was not acting appropriately when she intentionally ran her motorized wheelchair into other residents, but Petitioner had already identified this behavior as a problem that it needed to address.  The care plan Petitioner created to address the problem was deficient on its face, and Petitioner did not implement the plan properly, which directly contributed to the injuries Resident 20 suffered.
Page 18
Fortunately, those injuries were minor, but had Resident 71 rammed her motorized wheelchair into another, more vulnerable resident, her abusive behavior likely would have caused more serious injuries.  These facts reveal the seriousness of Petitioner’s noncompliance.  The facts also demonstrate that Petitioner’s culpability for its noncompliance was high, in that it tolerated Resident 71’s abusive behavior over a lengthy period of time, spanning approximately two years.  CMS imposed a CMP of $3,200 per day, which is near the bottom of the immediate jeopardy range.  The regulatory factors of seriousness and culpability amply support the CMP amount.
**Duration**.  Petitioner notes that the state agency only recommended that CMS impose an immediate jeopardy level CMP for four days, from March 29, 2014 through April 1, 2014, and CMS has not explained why it rejected this recommendation and imposed the immediate jeopardy level CMP for much longer.  P. Prehearing Br. at 4 n.1; P. Br. at 3.  Regardless of the state agency’s recommendation, the facts support the duration of the immediate jeopardy level CMP imposed by CMS.  Petitioner’s care plan for Resident 71 was deficient from its inception in May 2012, and the deficiency should have been plain, at a minimum, no later than March 29, 2014.17
  *See*CMS Ex. 16 at 54.  Moreover, Petitioner never corrected the facial deficiency, which supports a finding that Petitioner’s noncompliance continued until Petitioner removed Resident 71 from her motorized wheelchair on June 12, 2014.  CMS Ex. 1 at 7.  Further, the specific intervention that Petitioner’s staff failed to implement in the prelude to the May 26, 2014 incident—“encourage resident to utilize bell on her [wheelchair] to alert staff that she needs assistance.  When a potential confrontation may occur . . . staff to redirect her behavior and . . . intervene to ensure residents are kept safe.”— was initiated on January 17, 2014, well before March 29, 2014.  Petitioner had over four months between the addition of that intervention and the incident with Resident 20 to ensure that staff were familiar with Resident 71’s care plan; yet, it failed to do so.  Petitioner has presented no evidence that the May 26, 2014 incident was an isolated occurrence and that Petitioner’s staff otherwise were implementing the interventions that the IDT deemed necessary to minimize Resident 71’s unwanted behaviors.  These facts support a finding that Petitioner’s immediate jeopardy level noncompliance with 42 C.F.R. § 483.13(c) began no later than March 29, 2014, and continued through at least May 26, 2014.  Furthermore, Petitioner has presented no evidence that, prior to June 12, 2014, it effectively implemented Resident 71’s care plan by, for example, (re)training all staff on the interventions listed to
Page 19
ensure they would implement those interventions when necessary.18
  The record thus supports the reasonableness of the duration of the immediate jeopardy level CMP.
***4. Other defenses and issues raised by Petitioner are without merit or are not within my authority to decide.***
**a. Allocation of the Burden of Persuasion**
Petitioner argues that the allocation of the burden of persuasion in this case, according to the rationale of appellate panels of the DAB in the prior decisions cited above, deprives Petitioner of its property without due process of law and violates the Administrative Procedure Act, 5 U.S.C. § 551 *et. seq.*, specifically 5 U.S.C. § 556(d).  P. Prehearing Br. at 24; P. RFH at 9.  Pursuant to the scheme for the allocation of burdens adopted by the appellate panels of the DAB in prior cases, CMS bears the burden to come forward with the evidence and to establish a prima facie showing of the alleged regulatory violations in this case by a preponderance of the evidence.  If CMS makes its prima facie showing, Petitioner has the burden of coming forward with any evidence in rebuttal and the burden of showing by a preponderance of the evidence that it was in substantial compliance with program participation requirements.  Petitioner bears the burden to establish by a preponderance of the evidence any affirmative defense.  The allocation of burdens suggested by the Board is not inconsistent with due process or the requirements of 5 U.S.C. § 556(d), as CMS is required to come forward with the evidence that establishes its prima facie case.
In this case, I see no reason to upset the allocation of the burden of persuasion as described by appellate panels of the DAB, given that I am satisfied that CMS established a prima facie case of noncompliance by a preponderance of the evidence and Petitioner has not rebutted the CMS case by a preponderance of the evidence or established an affirmative defense.
**b. Regulatory Factors Related to Enforcement Remedies Are Reviewed De Novo**
Petitioner also argues that the Medicare Act is violated and Petitioner is deprived of due process if CMS is not required to submit evidence to prove it considered the regulatory criteria established by 42 C.F.R. §§ 488.404 and 488.438(f) in determining enforcement remedies.  P. RFH at 9; P. Prehearing Br. at 24-25.  I reviewed the evidence related to the regulatory factors de novo and perceive no prejudice to Petitioner because I did not require CMS to submit evidence related to its consideration of the regulatory factors.
Page 20
V. Conclusion
For the reasons set forth above, I sustain CMS’s determinations.  Petitioner did not substantially comply with program requirements from March 29, 2014 through July 30, 2014, and the $200 per day CMP that CMS imposed from June 12, 2014 through July 30, 2014, a total CMP of $9,800, is reasonable in amount and duration.  Further, Petitioner was not in substantial compliance with the participation requirement at 42 C.F.R. § 483.13(c), CMS did not clearly err in determining that Petitioner’s noncompliance with § 483.13(c) posed immediate jeopardy to the health and safety of Petitioner’s residents, and the imposed CMP of $3,200 per day effective March 29, 2014 through June 11, 2014, a total CMP of $240,000, is reasonable in amount and duration.


          /s/
        Leslie A. Weyn

                      Administrative Law Judge
      1. Effective November 28, 2016, CMS revised and reorganized many of the participation requirements codified in 42 C.F.R. pt. 483. 81 Fed. Reg. 68,688 (October 4, 2016). I cite to the October 1, 2013 codification of the regulations that was in effect during the period March through July 2014, when the findings of substantial noncompliance were issued. back to note 1
                      2. Although CMS’s notice stated that the CMP continued through August 13, 2014, CMS now agrees with the state agency’s conclusion that Petitioner corrected all noncompliance as of July 31, 2014, and returned to substantial compliance on that date. CMS Prehearing Brief at 1 n.1. The non-immediate jeopardy level CMP of $200 per day thus ceased accruing effective July 30, 2014. back to note 2
                      3. In its prehearing brief, CMS noted that Petitioner in its hearing request had not challenged the following non-immediate jeopardy level deficiencies: Tags F224, F282, F319, and F323, specifically as they related to certain of Petitioner’s residents. CMS Prehearing Br. at 4. Petitioner did not dispute CMS’s characterization of these deficiencies as they related to the residents listed by CMS. P. Prehearing Br. back to note 3
                      4. The order correctly identifies July 31, 2014, as the date CMS found Petitioner had returned to substantial compliance, but later includes that date as a date on which CMS imposed a CMP and as a date on which Petitioner concedes it was not in substantial compliance with program requirements. PHC Order at 2. The latter references should read July 30, 2014, as both parties agree that July 31, 2014, is the date on which Petitioner returned to substantial compliance. back to note 4
                      5. Petitioner now asserts that the duration of the non-immediate jeopardy level CMP is “uncertain.” P. Br. at 3 n.2. In my November 16, 2016 order, I explicitly noted that during the November 14, 2016 prehearing conference, Petitioner, through counsel, conceded that uncontested non-immediate jeopardy level deficiencies supported a finding that Petitioner was not in substantial compliance with program requirements from March 29, 2014 through July 30, 2014, and also supported the imposition of a $200 per day CMP during that period. PHC Order at 2. I gave Petitioner an opportunity to object to the order (PHC Order at 4), but Petitioner did not object, and Petitioner has presented no facts to suggest its concession was unreasonable or inequitable. Therefore, Petitioner has waived its challenge to the duration of the non-immediate jeopardy level CMP. 42 C.F.R. § 498.50(c). back to note 5
                      6. My findings of fact and conclusions of law appear as headings in bold italic type. back to note 6
                      7. After complete review of the entire record, I conclude that it is only necessary to discuss the example of Resident 71 to determine that the alleged violation of 42 C.F.R. § 483.13(c) (Tag F224) was correctly cited and that CMS did not clearly err in determining that this violation posed immediate jeopardy to resident health and safety. Therefore, I conclude it is unnecessary to discuss any other example cited under this deficiency citation. back to note 7
                      8. The facts related to Resident 71 are mostly undisputed, as they primarily are found in Petitioner’s records, as offered in evidence by CMS, and testimony from Petitioner’s witnesses. back to note 8
                      9. This intervention was revised twice, with the final revision occurring on July 13, 2012. As modified, the intervention called for staff to “[a]ttempt interventions before [Resident 71’s] behaviors begin such as reminding [her] that [she] could hurt someone or talk to [her] about things [she] like[s] such as [her] family.” CMS Ex. 16 at 54. back to note 9
                      10. I cite to the statement of deficiencies (SOD) rather than Resident 71’s records for this incident because the SOD purports to recite verbatim a “general note” that neither party produced in any of Resident 71’s records. Petitioner does not dispute that this incident occurred, and other evidence in the record, which I discuss above, confirms that it occurred. back to note 10
                      11. The record is not entirely clear on whether Resident 71’s wheelchair was equipped with a horn or a bell. One of the surveyors testified at the hearing that he thought “it was more of a bell,” Tr. at 217, and one of Petitioner’s witnesses described it as a “call bell,” Tr. at 444. back to note 11
                      12. It appears Resident 20 did not suffer a serious head injury from the bump, as his CT scans and imaging were negative. CMS Ex. 16 at 1. Petitioner treated his skin tears and monitored them for signs or symptoms of infection. Id. Although his injuries appear to have been minor, they belie Petitioner’s repeated assertion that the resident was uninjured. P. Prehearing Br. at 16; P. Br. at 16; P. Reply at 21. back to note 12
                      13. Petitioner’s staff offered to change Resident 71’s room, but she declined because the new room was “too far away from the dining room and front entrance.” CMS Ex. 16 at 19. back to note 13
                      14. Resident 71’s episodes of running into or ramming other residents were steadily increasing in frequency leading up to the incident with Resident 20. The first two incidents are separated by six months; the second and third incidents by five months; the third and fourth incidents by three months; and the last two incidents by less than one month. CMS Ex. 1 at 16; CMS Ex. 16 at 1-11, 16-18, 23, 25, 54, 79; P. Ex. 10 at 1-2. back to note 14
                      15. Furthermore, Petitioner’s anti-abuse policy required that its executive director and director of nursing services intervene in situations where abuse is likely occur. CMS Ex. 9 at 3. But, there is no evidence that either of these individuals intervened to prevent Resident 71’s potentially abusive behavior. back to note 15
                      16. I am permitted, “in the interests of judicial economy,” to review “only those deficiencies that have a material impact on the outcome of the dispute.” Claiborne-Hughes Health Ctr. v. Sebelius, 609 F.3d 839, 847 (6th Cir. 2010). I conclude in the previous section and in this section that Petitioner’s noncompliance with 42 C.F.R. § 483.13(c) (Tag F224) suffices to establish the existence of immediate jeopardy and the reasonableness of the immediate jeopardy level CMP imposed by CMS. Therefore, Petitioner’s compliance (or not) with 42 C.F.R. § 483.25 (Tag F309) does not “have a material impact on the outcome” of this case. Consequently, in the interest of judicial economy, I do not address Petitioner’s alleged noncompliance with § 483.25. For the same reason, because unchallenged, non-immediate jeopardy level noncompliance supports the reasonableness of the non-immediate jeopardy level CMP imposed by CMS (see supra notes 3 and 5 and accompanying text), I do not address other contested, non-immediate jeopardy level instances of Petitioner’s alleged noncompliance with other program requirements. back to note 16
                      17. Arguably, the deficiency was obvious even prior to this date, but CMS does not allege, and therefore I make no finding, that Petitioner was not in substantial compliance with 42 C.F.R. § 483.13(c) with regard to Resident 71 prior to March 29, 2014. back to note 17
                      18. In fact, Petitioner’s own plan of correction notes that it “[r]etrained the IDT/nursing staff on 7/24/14 to implement effective interventions to assure residents do not pose a risk to other residents.” CMS Ex. 1 at 8. back to note 18 Back to top
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