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                              Schowalter Villa, DAB CR5738 (2020)
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Schowalter Villa, DAB CR5738 (2020)








  
  
    

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





Schowalter Villa,
(CCN: 175386),
Petitioner,

v.

Centers for Medicare & Medicaid Services.
Docket No. C-18-447Decision No. CR5738October 16, 2020

        
              
    

      DECISION

The issue before me involves a long-term care facility’s responsibility to timely report and investigate all allegations of abuse.

Petitioner, Schowalter Villa, is a skilled nursing facility (SNF) in Hesston, Kansas, that participates in the Medicare program. Following a complaint investigation, completed on August 18, 2017, the Centers for Medicare & Medicaid Services (CMS) determined that the facility was not in substantial compliance with participation requirements and that the conditions in the facility constituted immediate jeopardy to resident health and safety. CMS imposed a per-instance civil money penalty (CMP) of $13,500 for an incident related to abuse.

I find that the facility was not in substantial compliance with 42 C.F.R. § 483.12(c) and that the penalty imposed is reasonable.

**Page 2**

I. Procedural Background

By letter dated January 16, 2018, Petitioner appealed the determination of CMS and requested a hearing before an Administrative Law Judge (ALJ). In an Acknowledgment and Pre-Hearing Order that issued on January 23, 2018, the presiding ALJ1
 set deadlines for the parties to file pre-hearing briefs in this matter. The Order further set deadlines for the parties to submit their written request and intention to cross-examine the opposing party’s witnesses. CMS submitted its Pre-Hearing Brief (CMS Brief) on May 23, 2018. Petitioner filed its Pre-Hearing Brief (P. Pre-Hearing Brief) on June 25, 2018.

With their briefs, CMS filed three proposed exhibits (CMS Exs. 1-3) and Petitioner filed 34 proposed exhibits (P. Exs. 1-34). Neither party objected to the opposing the party’s exhibits and so I admit them into the record. Jan. 23, 2018 Pre-Hearing Order at ¶ 6.

The Social Security Act (Act) sets forth requirements for nursing facilities to participate in the Medicare program and authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations implementing those statutory provisions. Act § 1819. The Secretary’s regulations are found at 42 C.F.R. Part 483. To participate in the Medicare program, a nursing facility must maintain substantial compliance with program requirements. 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.

The Secretary contracts with state survey agencies to survey skilled nursing facilities in order to determine whether they are in substantial compliance. Act § 1864(a); 42 C.F.R. § 488.20. Each facility must be surveyed annually, with no more than fifteen months elapsing between surveys, and must be surveyed more often, if necessary, to ensure that identified deficiencies are corrected. Act § 1819(g)(2)(A); 42 C.F.R. §§ 488.20(a), 488.308. The state agency must also investigate all complaints. Act § 1819(g)(4).

In this case, the Kansas Department of Aging and Disability Services (state agency or KDADS) conducted a complaint investigation that concluded on August 18, 2017. Based on their findings, and citing the regulatory sections below, CMS determined that the facility was not in substantial compliance with multiple program requirements:

42 C.F.R. § 483.12(a)(1) (Failure to keep residents free from sexual abuse) cited at scope and severity level D2
 (Tag F223);**Page 3**

42 C.F.R. § 483.12(a)(3)-(4), (c)(1)-(4) (Failure to report and investigate allegations of abuse; failure to prevent further abuse; and failure to properly report investigation results) cited at scope and severity level K (Tag F225); and
	42 C.F.R. §§ 483.12(b)(1)-(3), 483.95(c)(1)-(3) (Failure to develop/implement abuse policies) cited at scope and severity level F (Tag F226).CMS has imposed a $13,500 per-instance penalty for failing to report and investigate allegations of abuse in violation of 42 C.F.R. § 483.12(a)(3)-(4) and (c)(1)-(4) (Tag F225).

II. Issues

The issues before me are:

Whether Petitioner is entitled to summary judgment.
	Whether the facility was in substantial compliance with 42 C.F.R. § 483.12(c).
	If the facility was not in substantial compliance with 42 C.F.R. § 483.12(c), is the imposed $13,500 penalty reasonable.Both parties address the deficiency cited under section 483.12(a)(1) (Tag F223), and Petitioner also challenges the deficiency cited under sections 483.12(b)(1)-(3) and 483.95(c)(1)-(3) (Tag F226). I have no authority to review those deficiencies because CMS did not impose a penalty for them; CMS imposed a per-instance CMP for the deficiency cited under section 483.12(a)(3)-(4) and (c)(1)-(4) (Tag F225) only.3
 A facility may challenge a finding of noncompliance for which CMS imposes one of the penalties specified in 42 C.F.R. § 488.406. 42 C.F.R. § 498.3(b)(13); *see* 42 C.F.R. § 498.3(a). A facility has no right to a hearing unless CMS imposes one of the specified remedies. *The Lutheran Home – Caledonia,* DAB No. 1753 (2000); *Schowalter Villa,* DAB No. 1688 (1999); *Arcadia Acres, Inc.,* DAB No. 1607 (1997); *see San Fernando Post Acute Hosp.,* DAB No. 2492 at 7-8 (2012). The remedy, not the citation of a deficiency, triggers the right to a hearing. *Schowalter Villa,* DAB No. 1688; Arcadia Acres, DAB No. 1607. Where CMS does not impose a remedy, Petitioner has no hearing right. *See Fountain Lake Health & Rehab., Inc.,* DAB No. 1985 (2005).

III. Findings of Fact and Conclusions of Law

*1. Summary judgment is denied.*

On June 25, 2018, Petitioner filed a Motion for Summary Judgment (P. Memorandum in Support of Motion for Summary Judgment). CMS filed a Reply to Petitioner’s motion on July 10, 2018, and Petitioner filed its Reply Memorandum in Support of Motion for Summary Judgment on July 17, 2018. To obtain summary judgment, the moving party

**Page 4**

must show that there is no genuine dispute of material fact requiring an evidentiary hearing and it is entitled to judgment as a matter of law. *Mission Hosp. Reg’l Med. Ctr.,* DAB No. 2459 at 5 (2012). To show that there are no genuine issues of a material fact, the movant must show that there is no evidence in the record that supports a judgment for the non-movant. *Celotex Corp. v. Catrett,* 477 U.S. 317, 322-25 (1986). In other words, where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no “genuine issue for trial.” *Matsushita Elec. Indus. Co. v. Zenith Radio, Ltd.,* 475 U.S. 574, 586 (1986).

I need not consider whether the standards for summary judgment are met here. The pre-hearing order directed the parties to not only list their witnesses and to provide the written direct testimony of any proposed witness, but to also indicate whether they wanted to cross-examine an opposing witness. Neither CMS nor Petitioner requested to cross-examine any opposing party witness. Thus, I find that this matter may be decided on the written record without further consideration of whether the standards for summary judgment are satisfied.4

Accordingly, I deny Petitioner’s motion for summary judgment and I proceed on the merits.

*2. The facility violated section 483.12(c) because it did not timely report the allegation of abuse.*

42 C.F.R. § 483.125
 provides that a resident of a nursing care facility has the right to be free from abuse. Section 483.12(c)(1) further provides that in response to allegations of

**Page 5**

abuse, the facility must ensure that all alleged violations involving abuse are reported immediately, but not later than 2 hours after the allegation is made if the events that cause the allegation involve abuse or result in serious bodily injury. Even if the events that cause the allegation do not involve abuse and do not result in serious bodily injury, the allegation must nevertheless be reported within 24 hours to the administrator of the facility and to other appropriate officials including the state agency. 42 C.F.R. § 483.12(c)(1).

Circumstances prior to the July 29, 2017 incident

Resident 2 (R2) is a 91-year-old man who lived in assisted living from November 2014 until July 2017. On June 28, 2017, progress notes indicated the resident had an emergency room visit, with overnight observation related to dizziness, slurred speech, and mild dehydration. The resident returned to the assisted living facility on June 29, 2017, with a diagnosis of post-concussive syndrome suspected due to a June 18, 2017 head injury (hit in head with a baseball at a ballgame). On July 3, 2017, the resident was admitted to Petitioner’s facility because the assisted living facility was unable to manage the resident’s care needs (wandering). The doctor noted the estimated length of stay to be less than 30 days. CMS Ex. 1 at 4. On July 29, 2017, R2 occupied Room 707. Prior to her death, R2’s wife occupied Room 708, the room across the hall from 707. P. Ex. 5 at 1-2; CMS Ex. 2 at 4.

R2’s admission Minimum Data Set dated July 11, 2017, identified the Brief Interview for Mental Status score as 10 out of 15, indicating moderately impaired cognition. CMS Ex. 1 at 3. A comprehensive care plan dated July 14, 2017, notes that R2 sometimes disrobes in public areas, placing his personal dignity at risk. *Id.*

Nursing notes on July 18, 2017, at 3:30 a.m., document that the licensed staff assisted R2 with toileting. During the toileting, the resident reached out and stroked the licensed nurse’s inner thigh. The staff member removed the resident’s hand and instructed the resident that the behavior was inappropriate. The resident continued to reach out to the staff member, and when the nurse assisted the resident to lie down in bed, the resident requested the nurse to lie down with him. The staff member instructed the resident she was not his spouse. CMS Ex. 1 at 4-5.

Nursing notes dated July 20, 2017, at 4:05 p.m., recorded that the resident exhibited wandering and exit-seeking behaviors. The family requested the facility contact the physician for medication for dementia and memory problems. The physician declined the request, indicating the resident was experiencing delirium (sudden severe confusion, disorientation, and restlessness). CMS Ex. 1 at 5.

**Page 6**

On July 24, 2017, the facility faxed the physician regarding R2’s increasingly inappropriate sexual behavior becoming more aggressive. The physician ordered Keflex, 500 milligrams, three times a day for five days, for a urinary tract infection. CMS Ex. 1 at 5. Nursing notes reflect that on July 28, 2017, at 4:41 a.m., staff found the resident up multiple times throughout the night. During one of those times, the resident wandered the hall naked, reportedly looking for the restroom. The staff assisted the resident to the toilet and then returned the resident back to bed. On July 28, 2017, at 9:53 p.m., per nursing notes, the resident continued with inappropriate sexual comments. However, staff easily redirected the resident. CMS Ex. 1 at 5.

The events of July 29, 2017

At approximately 6:50 a.m. on Saturday, July 29, 2017, R2 entered room 708, occupied by Resident 1 (R1), an 82-year-old woman. CMS Ex. 2 at 83. When R2 entered the room, R1 was sleeping under the covers, and her face was turned away from the door. P. Ex. 1 at 1. R1 woke up to a noise, but she did not turn around to see who made the noise. Id. R1 assumed that it was one of the staff members, although she knew that staff always knocked and verbally announced when they were entering her room. *Id.* At some point, R2 moved R1’s walker, removed his pants (he left his undergarments on), and placed them on R1’s walker beside her bed. CMS Ex. 2 at 5; P. Ex. 5 at 2.

There is no dispute that R1 called for help. There are, however, contradictory accounts as to what R2 did after removing his pants. Nursing notes dated July 29, 2017, at 7:04 a.m., document that R1 called staff to her room and reported that R2 woke her up and had his hands under the blanket and asked her for sex. R1 stated that she was not hurt, but felt scared. CMS Ex. 1 at 12. In an affidavit submitted by Petitioner, R1 stated that R2 reached under the cover and touched her leg, but did not get into bed with her. P. Ex. 1 at 1. In an interview on August 11, 2017, at 1:20 p.m., the social worker recalled her conversation with R1 about the incident. R1 reported to the social worker that R2 came into her room and “touched her on the bottom.” It was at that point that the social worker initiated an investigation. CMS Ex. 2 at 72. Per the investigation conducted by the facility and dated July 31, 2017, R2 entered R1’s room at 6:50 a.m. on July 29, removed his outer pants, and crawled into bed with R1. At that time, R2 caressed R1’s leg and buttocks. *Id.* at 66. This account was further reiterated in an August 11, 2017 statement at 2:07 p.m., in which a licensed nurse reported that R2 crawled into R1’s bed at about 6:40 a.m. on July 29. *Id.* at 80.

An additional nursing note on July 31, 2017, at 8:58 a.m., confirmed that R2 asked the social worker what to do about dreams that suddenly come true. When asked to explain, R2 talked about the incident in which he had entered another resident’s room and he had begun to crawl into her bed. R2 said that he thought that he was dreaming until the other resident began screaming. R2 said that he went into the other resident’s room for “sex.” CMS Ex. 2 at 79.

**Page 7**

Petitioner’s underlying arguments concerning abuse

As noted above, CMS did not assess a penalty for the facility’s failure to protect a resident from abuse, and therefore I make no finding with respect to the alleged deficiency under 42 C.F.R. § 483.12(a)(1). Presenting a number of arguments, Petitioner submits that because there was no abuse, there was no deficiency in reporting and investigating the allegation of abuse. Thus, the underlying abuse allegation is the cornerstone for the facility’s obligation to notify and investigate. For that reason, it is necessary to briefly address Petitioner’s arguments concerning the alleged abuse deficiency.

Petitioner asserts that there was no sexual abuse and thus no noncompliance. Section 488.301 defines abuse as an infliction of injury, unreasonable confinement, intimidation, or punishment that is “willful.” Petitioner argues that R2 was not conscious and did not act willfully or deliberately.

Because of R2’s mental status, he may not have fully understood the implications of his actions. But so long as his actions were “deliberate” rather than accidental or inadvertent, they are considered “willful” within the meaning of the regulation. *Merrimack Cty. Nursing Home,* DAB No. 2424 at 5 (2011); *Britthaven, Inc.,* DAB No. 2018 at 4 (2006); *cf. Singing River Rehab & Nursing Ctr.,* DAB No. 2232 at 13 (2009) (suggesting that, so long as a mentally ill resident did not act “by accident” his conduct was abusive). Petitioner does not claim nor does the record reflect that R2 entered R1’s room and accidentally initiated a sexual contact. In fact, Petitioner does not dispute record evidence that R2 asked for sex.6
 CMS Ex. 1 at 2. Thus, R2’s actions appear anything but accidental or inadvertent.

Petitioner also proposes that there was no abuse because the “male resident gently asked for a sexual encounter.” P. Pre-Hearing Brief at 14. Petitioner asserts that “something much more is required as a matter of law for ‘abuse’ than a mere touch on a leg through pajamas.” *Id.*

The regulations prohibit verbal, mental, sexual, or physical abuse. 42 C.F.R. § 483.12(a)(1). 42 C.F.R. § 483.5 defines “sexual abuse” as “non-consensual sexual contact of any type with a resident.” Even accepting Petitioner’s premise that R2 “gently asked for a sexual encounter,” he proceeded to initiate that sexual contact. Whether it was only touching R1’s leg or crawling into bed with her, R2 did so without R1’s consent. The lack of consent is evidenced by R1’s comments weeks after the event.

**Page 8**

When interviewed by Petitioner’s staff on August 19, 2017, R1 reported that “a man came into my room and tried to get in bed with me.” She described the incident as “so scary” and she explained that she “had never been afraid like that before.” P. Ex. 1 at 3.

Contending that the entire event lasted one or two seconds prior to Petitioner’s staff arriving, Petitioner submits that even if R1 suffered any harm, it was at most “minimal harm” and there was no potential for more than minimal harm. P. Pre-Hearing Brief at 16. Petitioner does not cite nor do I find any authority to support the proposition that “abuse” is affected or determined by the length of time of the encounter.

CMS is not required to establish, and an ALJ is not required to find, that actual abuse occurred. *Golden Living Ctr.,* DAB No. 2937 at 13 (2019) (quoting *Holy Cross Vill. at Notre Dame, Inc.,* DAB No. 2291 at 7 (2009)). Proof that a deficiency created a “potential” to cause more than minimal harm is enough to find a facility out of substantial compliance. *Lakeport Skilled Nursing Ctr.,* DAB No. 2435 at 5 (2012). Thus, despite Petitioner’s arguments to the contrary, there is ample proof that R1 suffered abuse on July 29, 2017. Further, inasmuch as there was a valid allegation of abuse, Petitioner was required to give timely notice as required by the regulations as well as its own abuse, neglect, exploitation, and mistreatment (ANE) policy.

The facility’s failure to report the abuse allegation timely

As noted, section 483.12(c)(1) provides that in response to allegations of abuse, the facility must ensure that all alleged violations involving abuse are reported immediately, but not later than 2 hours after the allegations are made, if the events that cause the allegation involve abuse or result in serious bodily injury. If the events that cause the allegation do not involve abuse and do not result in serious bodily injury, the allegations must be reported to the administrator of the facility and to other officials (including the State Survey Agency and adult protective services where state law provides for jurisdiction in long-term care facilities) no later than 24 hours. Subsections 483.12(c)(2) and (3) further provide that the facility must have evidence that all alleged violations are thoroughly investigated and prevent further potential abuse while the investigation is in progress.

The facility’s written ANE policy, dated November 18, 2016, provides that the facility’s residents “have the right to be free from verbal, sexual, physical, or mental abuse, corporal punishment, and involuntary seclusion.” CMS Ex. 2 at 30. The facility’s ANE policy tracks the wording in 42 C.F.R. § 483.12(a)(1). The facility’s policy directs all alleged violations involving abuse, neglect, exploitation, or mistreatment to be reported immediately to the supervisor, charge nurse, Director of Nursing, or the Executive Director. Upon notification of a possible abuse situation, the supervisor will remove the suspected individual from the direct care area. CMS Ex. 1 at 18.

Prompted by R1’s calling out for help, the staff entered R1’s room, took R2 back to his room, and subsequently placed a “Stop” sign on R1’s door. Id. at 5-6. Additionally, the

**Page 9**

staff provided instructions to all staff on duty to monitor R2 and keep him away from this neighbor. *Id.*

In an interview at 2:07 p.m. on August 11, 2017, a member of the facility’s licensed nursing staff confirmed that R2 crawled into bed with R1 at 6:40 a.m. on July 29. Although the licensed nursing staff on duty at the time of the incident ensured that both residents were not injured, the staff member went off duty without calling the on-call staff member to report the incident. The state surveyor recorded: “Staff F stated, he/she had many different trainings on abuse and neglect, but at that time it did not even cross his/her mind [to report the incident].” CMS Ex. 2 at 86, 92. Thus, while the staff reported the incident to the oncoming staff, there was no report to the Director of Nursing or administrative personnel on July 29, 2017. *Id.* at 73.

When the social worker observed the “Stop” sign on R1’s door on July 31, the social worker went into R1’s room to ask about the sign. R1 reported what occurred on July 29 and stated that she had requested the sign. It was at that point that the social service staff reported the incident to the Director of Nursing, who was unaware of the incident. CMS Ex. 1 at 7-8. Finding out about the incident at 10:45 a.m. on July 31, 2017, the Director of Nursing reported it to the Administrator at 11:00 a.m. The state agency was notified at 1:00 p.m. P. Ex. 2 at 2. There is no dispute that no investigation of the incident began until at least 10:45 a.m. on July 31. CMS Ex. 2 at 73.

Petitioner maintains that there was no violation of section 483.12(c)(1)-(4) because there was no “allegation” of sexual abuse; thus, the event was not reportable. Petitioner contends that neither R1 nor R2, nor any of Petitioner’s staff members ever made an “allegation” that sexual abuse occurred on July 29, 2017, and that at the very most, R1 “requested help.” P. Pre-Hearing Brief at 21. In support of its position, Petitioner submits that “allegation” is not defined in the regulations, and, therefore, the ordinary meaning of “assertion, claim, declaration or statement” must apply. *Id.* (citing *Black’s Law Dictionary*(6th ed. 1991)). Petitioner’s argument is a distinction without a difference. There is no dispute that R1 called out for help and reported R2’s actions to staff. Applying Petitioner’s definition, I find that R1’s reporting of the incident to staff constitutes an allegation.

Petitioner additionally argues that if R1 had alleged sexual abuse, she would never have agreed to remain on the same floor as R2, let alone pay for the opportunity to return to that hall when she temporarily left. P. Pre-Hearing Brief at 21. The fallacy of this argument is that neither R1’s subsequent actions nor decisions have any bearing on what occurred at 6:50 a.m. on July 29, 2017. At that point in time, R1 sought help and reported what R2 had done to her. The fact that R1 remained in Room 708 has no bearing on the alleged abuse that occurred in the early morning on July 29, 2017.

Petitioner asserts that the “clock never began to run” on the regulatory reporting requirement because there was never an allegation of sexual abuse. P. Pre-Hearing Brief at 22. Further, Petitioner contends that even if there had been an allegation, the state

**Page 10**

representative was not available to receive or respond to reports made on non-business days, and the clock did not begin to run until 8:00 a.m. on Monday, July 31, 2017. Petitioner asserts that if a facility calls the state agency after 5 p.m. or on weekends or holidays, the state agency “does not do anything about the situation until they return to the office on the next business day.” Petitioner further opines that contacting the state agency during the evenings, nights, weekends, or holidays “does not provide additional protection for any vulnerable or at risk resident.” P. Request for Hearing at 17. Petitioner’s argument that it is relieved of the regulatory responsibility to report the incident because it occurred on the weekend is without merit. Petitioner’s Director of Nursing testified that messages for the state agency may be faxed or left on voicemail. P. Ex. 2 at 4. Furthermore, the facility’s ANE policy provides that events of reasonable suspicion of abuse must be reported “immediately” by the facility administrator or designee. The policy lists the Abuse Hotline telephone number, the fax number, and the choice of three email addresses to use for notification. CMS Ex. 2 at 31. The fact remains that after R1’s allegation of sexual abuse on Saturday morning, Petitioner’s nursing staff did not report the incident to the Director of Nursing or the administration, and no one from the facility attempted to notify the state agency until 1:00 p.m. on July 31. It was not until the social worker’s visit to R1’s room on Monday morning that the incident was reported to the administration, and only then, did Petitioner begin any kind of investigation. Petitioner’s duty to comply with regulatory requirements and its own policies cannot be suspended because of the inconvenience of weekend reporting.7

Even though the nursing staff on duty on the morning of July 29 failed to fully consider the ramifications of R2’s actions, the regulations and the facility’s own policies require the facility to timely report all allegations. CMS Ex. 2 at 31. The reporting requirements are triggered by any allegation of abuse, whether or not it is recognized as such by the facility. *Ill. Knights Templar Home,* DAB No. 2369 at 11-12 (2011).

Overall, I find that the facility was not in substantial compliance based on its failure to timely report R1’s allegation of abuse by R2.

**Page 11**

*3. The facility violated section 483.12(c)(3) when it failed to prevent further potential abuse while the investigation was in progress.*

The facility’s ANE policy was revised November 28, 2016. The policy defines abuse as the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish. CMS Ex. 2 at 29. The policy provides that “[a]ll alleged violations involving abuse, neglect, exploitation, or mistreatment *are to be reported immediately to the supervisor, charge nurse, Director of Nursing, or the Executive Director, designee or other officials in accordance with Kansas’s law.”* Id. at 30 (emphasis in original). When a staff member observes an incident with reasonable appearance of abuse, neglect, exploitation, or mistreatment, that staff member shall promptly report the incident to his or her supervisor. The policy further provides that “[u]pon notification of a possible abuse situation the supervisor will *remove the suspected individual from the direct care area.”* Id. at 31 (emphasis in original). All alleged violations are to be thoroughly investigated and documented. Precautions shall be taken to prevent further potential abuse while the investigation is in progress. *Id.* The policy directs that all employees will receive education regarding policies and prevention of abuse during orientation and annually during in-service training. *Id.* at 30.

In this case, there was no timely reporting of the investigation and no investigation was begun for over 48 hours after the allegation of abuse. Petitioner does not dispute that on July 29, 2017, R1 was one of eight female residents who occupied rooms on the same hall as R2 and in the area identified as the Progressive Recovery Academy (PRA). P. Pre-Hearing Brief at 17. CMS determined that the facility failed to timely and thoroughly investigate and report to the state agency, the July 29 incident of resident-to-resident sexual abuse, when the staff failed to notify the administration of the event. CMS further determined that the facility failed to ensure protection of all eight opposite gender residents of the PRA, when the facility’s policy for abuse was not followed. CMS Ex. 1 at 18. CMS maintains that, by the on-duty staff’s failure to notify the administration of the incident of sexual abuse, such deficient practice placed eight opposite gender residents in immediate jeopardy from July 29 at 6:40 a.m. until August 2 at 8:30 p.m. when the facility implemented corrective practices.8

**Page 12**

The facility’s late start to its investigation exposed its residents to additional risk of abuse because the “suspected individual” remained in the direct care area while the abuse allegation went unreported—a period of almost 52 hours. Even more troubling is the facility’s failure to remove R2 even after it began its investigation, which is contrary to its own policy. The facility’s failure to remove R2 placed the other female residents in the PRA at risk of abuse. Based on these facts, I conclude that the facility failed to prevent further abuse as required by section 483.12(c)(3).

Petitioner contends that there was no potential for more than minimal harm to R1 or any of the other residents at the facility. Petitioner submits that, when the state agency asked all of the female residents on the hall if they felt their safety or welfare was at risk, they all responded that they had no concerns and “realize he was just confused.” Petitioner asserts that this is consistent with what the residents told the Director of Nursing. P. Pre-Hearing Brief at 17.

Fortunately, there were no additional incidents involving R2 or the female residents in the PRA. The fact that there were no allegations of abuse during this two-day period, however, does not negate the vulnerability and potential risk of abuse for these eight female residents.

Petitioner asserts certain steps were taken in response to the incident. Petitioner points out that R1’s door was closed and a “Stop” sign placed on the door. Petitioner submits that the staff worked to have R2 “attend more life enrichment activities to help him stay busier and invited him to come out of his room for meals so there could be increased awareness of where he was and what he was doing.” P. Memorandum in Support of Motion for Summary Judgment at 6. While the staff may have placed a “Stop” sign on R1’s door and tried to keep R2 busy, there is no evidence that during this 52-hour period and during the investigation, Petitioner considered the possibility or likelihood that R2 might pursue sexual activity with the other female residents in the area. *See Countryside Rehab. & Health Ctr.,* DAB No. 2853 at 18 (2018). Furthermore, there is no evidence that, after placing the “Stop” sign on R1’s door, the staff made any attempt to explain to R2 the significance of the “Stop” sign or to put similar signs on the doors of the other female residents. Simply placing a sign on a door without further explanation did not address the potential for risk to R1 and other female residents.

While Petitioner had a policy in place to prevent and report abuse, the record contradicts the assertion that Petitioner’s staff acted in accordance with the provisions of that policy.9

**Page 13**

*4. The CMP imposed is reasonable.*

In appealing a determination of noncompliance, a SNF may challenge the reasonableness of the amount of any CMP imposed. *Crawford Healthcare & Rehab.,* DAB No. 2738 at 2 (2016). In deciding whether a CMP is reasonable, I may consider only the factors specified in 42 C.F.R. § 488.483(f). Those factors include: (1) the facility’s history of noncompliance; (2) the facility’s financial condition; (3) 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 in 42 C.F.R. § 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.

I must consider whether the evidence supports a finding that the amount of the CMP is at a level reasonably related to an effort to produce corrective action by a provider with the kind of deficiencies found and in light of the above factors. I am neither bound to defer to CMS’s factual assertions, nor free to make a wholly independent choice of remedies without regard for CMS’s discretion. *Barn Hill Care Ctr.,* DAB No. 1848 at 21 (2002); *Cmty. Nursing Home,* DAB No. 1807 at 22 *et. seq.* (2002); *Emerald Oaks,* DAB No. 1800 at 9 (2001); *CarePlex of Silver Spring,* DAB No. 1683 at 8 (1999).

The daily or per-instance penalty amount selected by CMS is presumptively reasonable based on the regulatory factors found in 42 C.F.R. § 488.438(f). *N. Las Vegas Care Ctr.,* DAB No. 2946 at 16 (2019) (citing *Crawford,* DAB No. 2738 at 19). The burden is on the SNF “to demonstrate, through argument and the submission of evidence addressing the regulatory factors, that a reduction is necessary to make the CMP amount reasonable.” *N. Las Vegas,* DAB No. 2946 at 16; *Crawford,* DAB No. 2738 at 19. Here, CMS imposes a per-instance penalty of $13,500.

Citing *Clermont Nursing and Convalescent Center,* DAB No. 1923 at 31 (2004), CMS asserts that it is not required to submit evidence regarding the § 488.438(f) factors as part of its *prima facie* case. CMS Brief at 12. CMS further contends that “[i]f a facility contends that a factor makes a CMP unreasonable, the facility must raise that contention on a timely basis before any question would arise as to CMS’s responsibility for producing evidence on that factor.” *Id.* CMS has not presented any evidence or asserted any claim that Petitioner has a history of noncompliance. As CMS points out, Petitioner challenges CMS’s determination of deficiencies, but does not challenge the CMP amount or offer argument or evidence in support of a reduced CMP amount. Thus, Petitioner has not asserted that its financial condition affects its ability to pay the CMP.

**Page 14**

As discussed above, Petitioner put residents at additional risk by failing to notify its administration and by failing to investigate the incident for two days after the incident. Petitioner not only failed to follow its own internal policies but also the regulatory requirements.

The facility is culpable for all of these serious failings. For these reasons, I find the relatively modest CMP amount reasonable.

IV. Conclusion

For the reasons set forth above, I conclude that Petitioner was not in substantial compliance with the participation requirements at 42 C.F.R. § 483.12(c). I further conclude that the CMP at issue, $13,500, is reasonable.


          /s/
        Margaret G. Brakebusch

                      Administrative Law Judge
      1. The case was initially assigned to a different ALJ and then later transferred to the undersigned. back to note 1
                      2. The al legation was initially determined to be at a scope and severity level of “K” and ultimately reduced to a scope and severity level of “D.” back to note 2
                      3. Although CMS did not impose penalties for the deficiency cited under section 483.12(a)(1) (Tag F223), the following discussion shows that there is compelling evidence to demonstrate that the facility also failed to substantially comply with that requirement. back to note 3
                      4. In its Memorandum in Support of Motion for Summary Judgment, Petitioner argues that CMS and KDADS violated a state statute by denying Petitioner’s request for a hearing before the state’s Secretary and by denying Petitioner the opportunity to submit a witness’s affidavit to the state’s Informal Dispute Resolution Panel (IDR). Petitioner also argues that its rights under state law and federal guidelines (State Operations Manual) are violated by the state’s failure to conduct a second IDR. Petitioner submits that CMS’s and KDADS’s violations of the state’s statute and regulations violated Petitioner’s due process rights under the Fifth and Fourteenth Amendments. Petitioner cites no authority to support the proposition that such alleged violations fall within the jurisdiction of the Departmental Appeals Board (Board). Furtheormre, Petitioner acknowledges that it is neither seeking a new hearing before the state’s Secretary nor is it seeking an additional IDR or other remedy under the state’s regulations. Instead, Petitioner asserts that “the only equitable remedy fair and appropriate under the facts is for this Court to award Petitioner summary judgment and its attorney[’s] fees and costs.” P. Memorandum in Support of Motion for Summary Judgment at 25. I find no basis to award summary judgment because of any alleged violations of state statutes and/or regulations. back to note 4
                      5. The regulations governing long-term care facilities were revised shortly before the survey here. 81 Fed. Reg. 68,688 (Oct. 4, 2016); 82 Fed. Reg. 32,256 (Jul. 13, 2017). However, the substance of the regulations (much of which is also statutory) has not changed. If anything, the new regulations make explicit requirements that the Board found implicit in the earlier regulations. For that reason, Board decisions that pre-date the regulatory changes generally remain valid. back to note 5
                      6. In its Pre-Hearing Brief, Petitioner argues “[n]or does CMS argue that Petitioner is deficient because the male resident gently asked for a sexual encounter.” Petitioner argues: “Resident [2]’s mere words in Room 708 cannot form the basis for an alleged deficiency especially since there is no evidence that they were delivered in a threatening or menacing manner.” P. Pre-Hearing Brief at 14. back to note 6
                      7. There is also no contemporaneous documentation showing that the facility considered the issue and decided not to report because it was the weekend. In any case, unlike subsection (c)(4) which allows facilities to report the results of an investigation within “five working days of the incident,” the plain language of subsection (c)(1) does not allow a facility to delay reporting an allegation because of the weekend (or during any period when a state agency may not be able to respond immediately). 42 C.F.R. § 483.12(c)(1), (4). Finally, although Petitioner argues that the state agency was not available to respond to a report on the weekend, Petitioner’s argument misses the point, as it is the facility’s responsibility, not the state agency’s, to prevent further abuse, under section 483.12(c)(3), while an investigation is in progress. back to note 7
                      8. The facility’s Quality Assurance and Assessment committee met on July 31, 2017, and developed an education plan, which the facility implemented on July 31, 2017. R2 was placed on 15-minute checks and a plan was developed to actively engage him in various activities, keeping him from being alone with the opposite gender residents. In-person education was provided to all related staff regarding the ANE policy. From July 31 through August 2, the facility educated the staff regarding the appropriate handling of inappropriate sexual behavior. On August 2, 2017, the on-duty charge nurse received one-to-one counseling regarding the importance of the ANE policy. back to note 8
                      9. As noted, CMS imposed a per-instance CMP in this case based on the facility’s noncompliance with Medicare participation requirements. P. Ex. 21 at 1. In its brief and in the statement of deficiencies, CMS specifically cited noncompliance with the requirements at 42 C.F.R. § 483.12(a)(3)-(4) and (c)(1)-(4) (Tag F225). CMS Brief at 8; CMS Ex. 1 at 9. My determination that the facility failed to substantially comply with section 483.12(c) provides a sufficient basis for CMS to impose an enforcement remedy in this case, and so I need not decide whether the facility also failed to substantially comply with subsections 483.12(a)(3)-(4). See 42 C.F.R. § 488.402(b)-(c). back to note 9 Back to top
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