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                              Forest City Rehab & Nursing Center, CR6281 (2023)
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Forest City Rehab & Nursing Center, CR6281 (2023)








  
  
    

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





Forest City Rehab & Nursing Center,
(CCN: 145937),
Petitioner,

v.

Centers for Medicare & Medicaid Services
Docket No. C-21-337Decision No. CR6281May 9, 2023

        
              
    

      DECISION

I grant summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS) and against Petitioner, Forest City Rehab & Nursing Center, a skilled nursing facility.  I sustain the imposition of the following remedies against Petitioner:

Civil money penalties of $9,705 for each day of a period that began on July 21, 2020, and that ended on August 13, 2020;Civil money penalties of $225 for each day of a period that began on August 14, 2020, and that ended on August 20, 2020; andLoss of authority to conduct a nurse aide training and competency evaluation program for a two-year period.I.    Background

This case was very recently transferred to me from the docket of another administrative law judge.  Upon reviewing the file, I discovered a fully briefed motion for summary

**Page 2**

judgment.  As I discuss below, I find that there exist no disputed issues of material facts in this case.

CMS offered a total of 51 exhibits as support for its motion, identified as CMS Ex. 1-CMS Ex. 51.  Petitioner replied with seven exhibits, identified as P. Ex. 1-P. Ex. 7.

Petitioner moved to strike two of CMS’s exhibits, CMS Ex. 41 and CMS Ex. 42.  CMS Ex. 41 is the affidavit testimony of Andrew Stott, a surveyor who was involved in the survey of Petitioner’s facility resulting in the remedy determinations that are at issue here.  CMS Ex. 42 is Mr. Stott’s curriculum vitae.  Petitioner objects to Mr. Stott’s testimony and qualifications on the ground that he is allegedly unqualified to offer an opinion as to Petitioner’s compliance with regulatory requirements.  CMS opposes Petitioner’s motion.

It is unnecessary that I rule on Petitioner’s motion to strike or admit the remaining exhibits that the parties filed.  That is because I base my decision in this case on undisputed material facts, facts that establish that Petitioner failed to take obvious and necessary measures to protect its residents against abuse and accidents.  Although I cite to some of the exhibits offered by the parties, I do so only to illustrate facts that are undisputed.1

II.    Issues, Findings of Fact and Conclusions of Law

**Issues**At issue is whether undisputed material facts establish that Petitioner failed to comply with Medicare participation requirements set forth at 42 C.F.R. §§ 483.12 and 483.25(d)(2).  Also at issue, is whether I may find from the undisputed facts that Petitioner’s noncompliance was so egregious as to comprise immediate jeopardy for residents of its facility.  Finally, there is a question of whether the undisputed material facts establish CMS’s remedy determinations to be reasonable.

**Findings of Fact and Conclusions of Law**I address these issues by applying the established criteria for summary judgment.  Summary judgment may issue in a case only where the issues are resolved by material facts that are not in dispute.  *Senior Rehab. & Skilled Nursing Ctr.,*DAB No. 2300 at 3 (2010), *aff’d*, *Senior Rehab. & Skilled Nursing Ctr. v. Health & Human Servs.,*405 F. App’x 820 (5th Cir. 2010).

**Page 3**

I discuss the facts of this case in detail, below.  As a preliminary finding, I conclude that there are no disputed facts in this case that prevent me from deciding it.  I make no credibility findings.  I accept as true all supported facts offered by Petitioner in response to CMS’s motion.  I have drawn whatever inferences that may be favorable to Petitioner from the undisputed facts.  As I discuss, these facts and inferences lead to only these conclusions:  that Petitioner failed to comply substantially with Medicare participation requirements; that Petitioner’s noncompliance was at the immediate jeopardy level; and that CMS’s remedy determinations are reasonable.

****Noncompliance****A skilled nursing facility that participates in the Medicare program must protect its residents from foreseeable harm.  That duty is spelled out by regulations.  Applicable here is the facility’s duty to protect its residents from abuse (42 C.F.R. § 483.12) and accidental injury (42 C.F.R. § 483.25(d)(2)).2  The precautions that a facility must take pursuant to these regulations are similar and overlapping.  A skilled nursing facility must protect its residents against any potential abuse that the facility knows might occur.  *The Bridge at Rockwood*, DAB No. 2954 at 24 (2019).  Likewise, a facility must take all reasonable precautions to protect its residents from foreseeable accidents.  *Woodstock Care Ctr. v. Thompson,*363 F.3d 583, 589 (6th Cir. 2003), *aff’g* *Woodstock Care Ctr.*, DAB No. 1726 (2000).

Whether the issue is abuse or accident prevention, the regulations impose on facilities the duty to ascertain the risks and hazards that might exist.  A facility must carefully review all information available to it to identify foreseeable problems.  A facility must act, not only to identify foreseeable risks and hazards, but to undertake all reasonable measures to protect its residents against those risks and hazards.

The undisputed material facts establish that Petitioner failed to discharge these obligations.

This case centers on the backgrounds and behaviors of two of Petitioner’s residents, identified as R-1 and R-2.  Petitioner housed these two individuals together as roommates.  On the evening of August 24, 2020, the two residents fought violently, with R-2 choking R-1 until that resident lost consciousness and eventually died.

Placing these two volatile individuals together was a recipe for explosive consequences.
Both residents suffered from severe mental illness.  R-2 had a lengthy history of criminal behavior and R-1 had also been charged with crimes.  Both residents had histories of

**Page 4**

aggressive and violent behavior.  As I discuss below, I find it unfathomable that Petitioner would house these two violence-prone individuals together in circumstances that left them unsupervised much of the time.

At bottom, this case is about failure to assess and failure to protect.  CMS alleges, and the undisputed facts establish, that Petitioner failed to assess these residents adequately for the risks and hazards that they might present when the two of them were housed together.  CMS argues additionally, and the undisputed facts also establish, that Petitioner’s staff created a highly dangerous and volatile situation when it housed these residents in the same room.  And CMS also asserts, and the undisputed facts further establish, that Petitioner’s staff failed to heed warning signs of possible explosive consequences when it housed R-1 and R-2 together.  The resulting violent confrontation between the two residents and subsequent death of R-1 were not only foreseeable, but avoidable.

**a. R-2**

R-2 has a lengthy history of severe mental illness, illness that caused the resident to be violent at times and that at least contributed to substantial criminal behavior by the resident.  Moreover, that evidence shows that R-2, even when he appeared outwardly to be relatively stable, could rapidly decompensate into floridly psychotic behavior.  At best, the resident had a tenuous hold on reality that could evaporate on very short notice.

R-2 was 25 years old when Petitioner admitted him to its facility on June 17, 2020, after the resident had been discharged from a psychiatric hospital.  CMS Ex. 21 at 1; CMS Ex. 24 at 1; CMS Ex. 27 at 9.  The resident had been hospitalized on multiple occasions previously.  CMS Ex. 23 at 11.  He manifested a variety of mental illnesses as of his admission to Petitioner’s facility, including a bipolar schizoaffective disorder, unspecified psychoses, and an anxiety disorder.  CMS Ex. 21 at 1; CMS Ex. 24 at 2; CMS Ex. 25 at 11; CMS Ex. 27 at 9.

A psychiatric examination dated June 17, 2020, found the resident to be unkempt with poor hygiene, suspicious, withdrawn, inattentive, and with a flat affect.  CMS Ex. 23 at 10.  He manifested a greatly impaired memory.  He admitted to hearing voices.  He exhibited poor reality contact and had no insight or judgment about the severity of his mental illness and resulting deficits.  *Id.*While R-2 was in the hospital, staff observed him to pace constantly, exhibit anxiety, hear voices, display inattentiveness, mumble, and appear devoid of emotion.  *Id.*at 11.  The hospital staff concluded that R-2 resisted therapy and medication.  His psychiatrist concluded that the resident showed minimal improvement even when he took his medication.  *Id.*The resident tended to rapidly decompensate (his mental illness would quickly worsen).  *Id.*

R-2 engaged in impulsive and irrational behaviors.  Among other things he had a fascination with guns and ammunition.  CMS Ex. 23 at 9.

**Page 5**

Petitioner’s staff knew when it admitted R-2 that, despite his relative youth, the resident had accumulated a substantial history of violent and destructive behavior.  His documented behaviors included starting fires at home and in hotel rooms, destroying property, and jumping out of a moving car.  CMS Ex. 23 at 11.

R-2 had a criminal record.  Petitioner’s staff knew that the resident had been convicted, not only of crimes against property including vehicle theft, but of battery against another individual or individuals.  CMS Ex. 23 at 17.

Petitioner’s facility is in Rockford, Illinois.  Illinois state law requires that a skilled nursing facility request a criminal history analysis report from the Illinois State Police and the Illinois Department of Public Health as a condition for admitting any individual who has a known criminal record.  Illinois Nursing Home Care Act, 210 Ill. Comp. Stat. 45/2-201.6(d)-(f).  Petitioner received a report concerning R-2 on July 15, 2020.  CMS Ex. 23 at 17.  The report, signed by a clinical psychologist, found that R-2 belonged to a category of individuals who posed a “moderate risk” to others in view of his history that included impulsive and destructive behavior.  *Id.*  The report specified that an individual who fell into the moderate risk category required closer supervision and more frequent observation than other facility residents.  *Id.*It directed that regular monitoring should be conducted and that staff should be aware of the possible need to increase supervision, as well as to assess the resident regularly to determine whether the level of supervision provided to the resident sufficed.  *Id.*

Petitioner and its staff thus were on notice that they had to deal with R-2 with extreme caution.  Petitioner’s staff could not treat him as if he suffered merely from emotional problems.  They knew – indeed, had been warned – that the resident was an extremely volatile, violence-prone individual who could lose self-control with very little, if any, warning.

Petitioner’s staff prepared a plan of care for R-2 that dutifully records most of the information that staff had received about the resident’s illness and history.  CMS Ex. 25 at 1-11.  The plan lists numerous interventions that the staff were instructed to utilize to deal with the resident’s behavior.  *Id.*These included an instruction to the staff that, considering the resident’s history of criminal behavior, staff should “[f]ollow appropriate standards when considering room assignment.”  *Id.* at 2.  However, the plan does not describe what were these standards, nor does it contain any instructions to staff about how to assess the possible risks that might exist if the resident was assigned to a particular room in the facility or housed with another individual.

Petitioner did not offer any evidence to show what standards it and its staff employed to determine residents’ room assignments.

**Page 6**

The plan of care alludes to R-2’s criminal history analysis report.  CMS Ex. 25 at 4; CMS Ex. 23 at 17.  However, the plan does not discuss any heightened supervision to be provided to R-2 notwithstanding that the report had identified the resident to be of moderate risk, requiring increased supervision.  CMS Ex. 25 at 4; CMS 23 at 17.  Nowhere in the plan of care is there any description of the resident’s need for closer than routine supervision.3

R-2 was at times aggressive while he resided at Petitioner’s facility.  For example, on June 30, 2020, the resident became verbally aggressive after using the phone at Petitioner’s nurse’s station.  CMS Ex. 27 at 5.  On that date, a psychiatrist examined R-2 and found him to be exhibiting mild paranoid delusional ideation.  *Id.*

**b. R-1**

Petitioner admitted R-1 to its facility on June 30, 2020.  Previously, the resident had resided at another skilled nursing facility.  The resident was 46 years old as of his admission.  CMS Ex. 11 at 1; CMS Ex. 13 at 1.

The resident had been transferred to Petitioner’s facility from his former skilled nursing facility – with an intervening hospital stay – because the former facility’s staff found his behavior there to be intolerable.  CMS Ex. 11 at 2-4, 46-50; CMS Ex. 12 at 1-3.  On May 11, 2020, and during his stay at his former facility, R-1 had become violent, throwing objects at a certified nursing assistant, kicking a nursing assistant, and slamming the door of his room.  CMS Ex. 11 at 41, 46, 50.

R-1 suffered from severe mental illness, including a schizoaffective disorder and major depression.  CMS Ex. 13 at 2; CMS Ex. 15 at 11.  He was diagnosed to have impaired impulse control and poor judgment.  He had a history of aggressive and violent behavior.  CMS Ex. 11 at 41, 46, 50, 53, 56, 59, 64.

Incidents involving the resident included altercations with other individuals.  In 2018, R- 1 had a physical altercation with the staff at a hospital at which he was being treated.  *Id.* at 46, 64.  In the spring of 2020, while housed in his previous skilled nursing facility, R-1 became involved in a physical altercation with his roommate after R-1 had asserted that he no longer wished to live with this roommate, complaining that this individual had body odor.  CMS Ex. 35 at 27.  When he transferred to Petitioner’s facility, documents related to the transfer noted that R-1 had been violent towards staff at his former facility and that he had behavior problems related to schizophrenia.  CMS Ex. 11 at 31, 46, 50.

**Page 7**

The resident had a history of criminal activity.  On more than one occasion, he was charged with evading the police.  CMS Ex. 12 at 3.

Petitioner’s staff knew that R-1 was potentially dangerous to staff and others because they had assessed R-1 and concluded that he had violent tendencies and a history of self-harm and violent behavior due to his suffering from severe mental illness.  CMS Ex. 15 at 2, 6-9.

R-1 was at times aggressive in the weeks following his transfer to Petitioner’s facility.  On July 8, 2020, the resident was verbally aggressive towards one of Petitioner’s nurses.  CMS Ex. 16 at 5.  Certified nursing assistants reported that the resident became aggressive when they attempted to provide care.  CMS Ex. 35 at 43-44.

**c. R-2 and R-1 housed together**

Petitioner’s staff initially housed R-2 in a single room.  On July 16, 2020, staff moved R- 2 to a room that was also occupied by R-1.  CMS Ex. 16 at 2; CMS Ex. 27 at 4; CMS Ex. 29.

Petitioner’s staff spoke separately with R-1 and R-2 prior to moving R-2 in with R-1 and both residents agreed to the transfer.  CMS Ex. 16 at 2; CMS Ex. 27 at 4.  However, there is nothing in the record to explain the reason for the transfer.  There is nothing to show that the staff thoroughly assessed these residents to determine whether it would be safe to house them together.  There is no analysis of the potential for violent confrontation between R-1 and R-2, nor is there any discussion of what might occur considering R-1’s history of physical altercation with a roommate.

Petitioner’s staff did not consider the possibility that these two residents might need more frequent room checks if they were housed together.  Petitioner’s policy was to check on residents in their rooms at two-hour intervals.  Petitioner’s brief at 3.  Petitioner did not check on these two residents more frequently than once every two hours.

Petitioner’s staff prepared a notice of room transfer for R-2.  CMS Ex. 29. The form gives the staff the options to check one or more of several possible reasons for the transfer:  the staff checked “other.” The only possible explanation for the transfer given on the form is a handwritten notation that states:  “07/15/20 Results – Roommate.” Possibly, that notation refers to the criminal history analysis report pertaining to R-2 that the staff had received on that date.  CMS Ex. 23 at 17.  The guidelines in the report suggest that an individual in the “moderate risk” category might be suitable for housing with a roommate.

If staff was referring to the criminal history analysis report, that report’s guidelines clearly aren’t carte blanche approval to house R-2, with his history of severe mental

**Page 8**

illness, paranoid behavior, sudden decompensation, and violent behavior, with another schizophrenic, paranoid, and violence-prone individual.  R-1’s and R-2’s histories and their behaviors demanded that Petitioner’s staff carefully consider the potentially explosive consequences of housing these two together.  There is no evidence that the staff did that.

The room in which the staff elected to house the two residents, Room 2310-1, was located at the far end of a corridor from Petitioner’s nurse’s station.  CMS Ex. 44 at 2.  As subsequent events proved, that room was out of earshot of the nurse’s station, further diminishing the supervision that Petitioner’s staff provided for R-1 and R-2.

**d. The fatal altercation**

Signs of discord between R-1 and R-2 emerged just days after the two were housed together.  On July 21, 2020, R-1 complained about R-2’s body odor.  CMS Ex. 16 at 1; CMS Ex. 35 at 46.  This was a warning to Petitioner’s staff, as R-1 had precipitated a violent confrontation with his former roommate at another skilled nursing facility after complaining about that individual’s body odor.  CMS Ex. 35 at 27.  R-1 demanded that R-2 be removed from his room.  CMS Ex. 35 at 15.  Staff offered R-1 a transfer to another room, which the resident apparently rejected.  *Id.* at 5, 15.  A social worker spoke with R-2, and this resident requested a room change.  *Id.*

The social worker did not believe, based on her observations, that it was necessary to separate R-1 and R-2.  *Id.* at 15.However, Petitioner’s staff did not address that possibility with a thorough analysis, nor did they refer the matter to a psychiatrist or clinical psychologist to consider the possible hazards of leaving R-1 and R-2 in the same room.

At about 11:00 pm on the evening of August 4, 2020, Petitioner’s staff observed R-2 pacing the facility’s corridors.  CMS Ex. 33 at 6.  At about 11:30 that evening, R-2 asked to use the phone at the nurse’s station.  CMS Ex. 34 at 1-2.  The resident declared that the staff needed to call 911.  CMS Ex. 27 at 2.  R-2 reported that he had been involved in a fight with R-1 after R-1 had jumped on him and punched him in the nose.  R-2 declared that he thought that he had killed his roommate.  CMS Ex. 16 at 1; CMS Ex. 35 at 31, 33, 38.

Staff rushed to the residents’ room.  There, they found R-1 nonresponsive, lying face down on the floor.  CMS Ex. 16 at 1; CMS Ex. 27 at 2.  R-1 was transported to a hospital where he was observed to be neurologically unresponsive.  CMS Ex. 19 at 8.  He expired eight days later.  The cause of death was a brain injury due to strangulation by R-2 during a physical altercation.  CMS Ex. 20.

**Page 9**

There is ample evidence of a violent altercation between R-1 and R-2 on the evening of August 4, 2020, aside from R-1’s strangulation and death at the hands of R-2.  Both residents had injuries in addition to R-1’s fatal injury.  R-2 had a red mark on his forehead, a bloody nose, blood on his right hand, and blood on his shirt.  CMS Ex. 30 at 1, 3; CMS Ex. 31 at 1; CMS Ex. 32 at 9-10; CMS Ex. 35 at 29.  R-1 had bruised knuckles and scabs on his left knee and contusions on his head.  CMS Ex. 10 at 1; CMS Ex. 18 at 3.

The condition of the residents’ room gives additional evidence of the violent struggle between the residents.  The room was in disarray.  R-2’s bed was pushed diagonally towards R-1’s bed.  CMS Ex. 16 at 1.  There was a hole in one of the room’s walls.  CMS Ex. 35 at 31; CMS Ex. 41 at 4.  The window was broken.  CMS Ex. 34 at 1.  There was a dented center of impact in the window, about the size of a person’s fist, with cracks radiating outward.  *Id.*; CMS Ex. 41 at 4.

There is no evidence that Petitioner’s staff had an inkling of a violent confrontation between the two residents prior to R-2 reporting it to the staff.  Evidently, no member of the staff heard or saw anything that would have alerted him or her to the confrontation that occurred.  *See*CMS Ex. 35.  That failure to be aware of the confrontation when it occurred can only be due to the remoteness of the residents’ room from the nurse’s station and the absence of facility staff in the vicinity of the room when the confrontation occurred.

**e.  Petitioner’s failure to address foreseeable hazards**

As I have explained, both 42 C.F.R. §§ 483.12 (abuse) and 483.25(d)(2) require skilled nursing facilities to assess comprehensively the risks and hazards that residents might face in order to identify all foreseeable issues and to implement plans to protect the residents.  Petitioner failed to do so in the case of R-1 and R-2.  The undisputed facts paint a picture of a facility staff that documented the behaviors and problems manifested by R-1 and R-2, but that failed to use the information that they accumulated to anticipate foreseeable hazards and to protect those residents against abuse and accidents.

The staff knew that both residents had severe mental illness that rendered them paranoid, impaired their judgment, and that caused them to decompensate at times and, in the case of R-2, with little or no warning.  The staff knew also that both residents had criminal histories and that they could become suddenly violent.  The staff knew also that one of the two residents, R-1, had been discharged from another facility because of his antisocial behavior that included a violent altercation with his roommate.

Despite this information, Petitioner’s staff opted to house R-1 and R-2 in the same room.  They did so without performing a comprehensive assessment of the risks and dangers that

**Page 10**

might ensue from such an arrangement.  They failed to foresee the potential for explosive consequences of housing together two individuals who exhibited antisocial behavior.

That failure to assess led not only to putting these two volatile individuals together, but to a failure to increase supervision and/or surveillance of them.  Petitioner’s staff failed to check on these residents more frequently than the facility standard bed check of once every two hours.  They put these residents in a room that was out of earshot of the staff, so much so that on the evening of August 4, 2020, no staff member overheard the violent confrontation between R-1 and R-2 that led to R-1’s death.

Furthermore, the staff failed to heed warnings of interpersonal conflict between the residents. The staff failed to consider that R-1’s complaints about R-2’s alleged body odor mirrored the complaints he lodged about a previous roommate shortly before getting into a violent confrontation with that individual.

I find to be without merits the arguments that Petitioner makes in opposition to CMS’s motion for summary judgment.

I reiterate that there are no disputes of material fact in this case.  Petitioner does not deny any of the facts that I have cited thus far.  Petitioner’s brief at 2-11.  It cites some additional facts in opposition to CMS’s motion.  *Id.*I accept Petitioner’s assertions as true – to the extent that they are supported by the record – but, as I explain, those facts do not detract from my findings of noncompliance.

Petitioner’s central argument is that CMS alleges that Petitioner is deficient “because something bad happened” – that is, that R-2 killed R-1.  Petitioner’s brief at 1.  Essentially, Petitioner contends that CMS seeks to hold Petitioner strictly liable for the altercation between the residents and R-1’s resulting death.

That is an incorrect statement of the issues.  Strict liability is not at issue here.  Petitioner’s deficiency lies in its staff’s failure to assess comprehensively the risks and hazards that R-1 and R-2 faced and to protect these residents from likely harm. Petitioner’s staff plainly failed to consider whether housing these two residents together put either or both at risk for harm considering these residents’ mental illnesses and their past behavior.  Had they assessed these residents and acted on their findings then there would be no deficiency even if unforeseeable adverse events had occurred.

Petitioner asserts that its staff provided enhanced supervision to R-2 that was consistent with staff’s assessment of the resident’s needs and problems.  It argues that this enhanced supervision consisted mainly of something that Petitioner refers to as “programming.”  Petitioner’s brief at 2.  Petitioner argues that programming consisted of enrolling the resident in behavioral and anger management programs (“New Beginnings” and “Anger Management”).  Petitioner’s brief at 3; P. Ex. 2 at 1.

**Page 11**

For purposes of deciding CMS’s summary judgment motion, I accept Petitioner’s representation that R-2 attended the two programs.  However, there are no facts before me that enable me to conclude that his attendance sufficed as supervision – particularly at times when he was not attending the New Beginnings and Anger Management programs.

Petitioner offered no evidence of the contents of its New Beginnings and Anger Management programs, nor has it offered any evidence to show how enrollment in these two programs would have provided supervision of the resident when he was housed with R-1.

The fact that R-2 attended these two programs has no bearing on my conclusion that Petitioner’s staff failed to assess the risks and dangers posed by housing R-1 and R-2 together.  Petitioner offered no evidence to explain how R-2’s enrollment in these programs served to ameliorate his paranoia, his delusional thinking, his irrational volatility, and his penchant for sudden decompensation.  Indeed, Petitioner offered no evidence to show that staff considered that enrollment in these programs made R-2 a suitable roommate for R-1.

Petitioner argues that checking on R-1 and R-2 more frequently than once every two hours would not have had any benefit and might have exacerbated their mental illness.  Petitioner’s brief at 7.  As support for this contention, Petitioner relies on the opinion of Dr. Jacob Fyda, a psychiatrist.  P. Ex. 6.  Dr. Fyda opines that checking on these residents at 15-minute intervals or keeping them under constant supervision might have been counterproductive.  *Id.*

I do not conclude that Petitioner needed to check on R-1 and R-2 at 15-minute intervals or that the staff should have kept these residents under constant supervision.4  Staff failed to conduct the assessment that might have supported that or some other conclusion, including the conclusion that these two residents were so incompatible as roommates that no amount of supervision would have sufficed to protect them.  Staff’s failure to make the necessary assessment led directly to their putting these volatile residents in the same room without any enhanced supervision or security.

Petitioner seems to argue that R-2 posed no threat during his stay at Petitioner’s facility because “his prior behaviors were attributed to medication noncompliance . . . .” Petitioner’s brief at 4.  Evidently, Petitioner suggests that staff appropriately considered R-2 not to be at risk for violent behavior because he was compliant with his medication regime.  *See*P. Ex. 4.

**Page 12**

That the resident took his medications as prescribed offered no guarantee that the resident would consistently behave in a socially acceptable manner.  Petitioner’s staff knew that a psychiatrist had concluded that the resident showed minimal improvement, even when he took his medications as prescribed.  CMS Ex. 23 at 10.

There is no evidence to show that Petitioner’s staff reviewed the resident’s behavior while he was medicated and concluded that he was no longer at risk for volatile outbursts.  There certainly is no indication that the staff considered whether the resident was at risk or not – due to medication compliance – when they determined to house him with R-1.

Petitioner contends, however, that the resident showed “improvement due to his medication regime,” evidently suggesting that taking his medication while residing at Petitioner’s facility significantly reduced the risk of volatile or dangerous behavior by R- 2.  Petitioner’s brief at 5; *see* CMS Ex. 22 at 14.

However, the exhibit relied on by Petitioner – CMS Ex. 22 at 14 – is not a record of the resident’s behavior during his stay at Petitioner’s facility.  It is a report from his hospital stay prior to his admission at the facility.  It states:

He is showing partial progress in improving safety and ensuring appropriate coping skills.  He is showing progress in medication compliance and understanding importance and partial progress in improving impulsive behaviors.

CMS Ex. 22 at 14.  This report leaves open the question of how much the resident’s condition had improved.  It does not define “partial progress.”  It certainly does not predict how the resident would react if housed with another paranoid, impulsive, and volatile individual.  The burden remained entirely on Petitioner’s staff to assess comprehensively R-1 and R-2 for suitability as roommates prior to housing them together, assessments that Petitioner’s staff never made.

Petitioner argues that it did assess both residents for suitability as roommates and found them to be compatible.  Petitioner’s brief at 6, 8-10.  As for its alleged assessment of R-2, Petitioner avers that R-2’s compatibility with R-1 is documented in its staff’s progress notes and in a room change form.  *Id.*at 6 (citing P. Ex. 2; CMS Ex. 27 at 4; CMS Ex. 29).

None of the exhibits cited by Petitioner show that its staff comprehensively assessed the risks and hazards that might attend housing R-2 with R-1.  P. Ex. 2 is an affidavit by Cecilia Valverde, who was employed as Petitioner’s social services director.  She avers that:

**Page 13**

Social Services did an assessment of both R1 and R2, which included looking at any recent behaviors exhibited at the facility, known personalities of residents (i.e. some resident[s] hate music and others like to play it all day; some residents are very social, others are reserved and quiet).  It was felt R1 and R2 would be compatible roommates.

P. Ex. 2 at 1-2.

For purposes of ruling on the motion for summary judgment, I accept as true Ms. Valverde’s assertion that some unidentified individual or individuals assessed R-1 and R- 2 for compatibility.  That said, I do not find that her testimony provides sufficient evidence from which I might conclude that this assessment comprehensively explored the possible risks and hazards of housing R-1 and R-2 together.  Ms. Valverde’s testimony lacks any detail from which I could infer that the assessment was adequate.  She does not identify who in “Social Services” performed this assessment nor does she identify any document containing it.  She does not identify what potential risks and hazards were identified and evaluated by whomever performed the assessment nor does she explain why staff found R-1 and R-2 to be compatible.  There is nothing in Ms. Valverde’s testimony to show how staff assessed the potential for explosive behavior exhibited by both residents.

Other documents cited by Petitioner provide no support for its claim that staff assessed the two residents for compatibility.  A nursing progress note, relied on by Petitioner, merely cites that staff had discussed with R-2 the possibility of a room change and that the resident didn’t object to it.  CMS Ex. 27 at 4.  It says nothing about whether the staff had assessed R-2 comprehensively for compatibility with R-1.  A notice of room transfer, also relied on by Petitioner, contains no assessment of the compatibility of R-1 and R-2.  CMS Ex. 29.

Nor is there anything in the record, other than Ms. Valverde’s affidavit, showing that any assessment was made of R-1’s suitability for rooming with R-2.  I have explained why her affidavit fails to provide facts sufficient for me to conclude that Petitioner’s staff thoroughly examined the possible risks and hazards associated with housing these residents together.

Petitioner argues that: “Social service notes clearly reflect that they interviewed R1, informed him of the room change, and provided him [with] a room change form.”  Petitioner’s brief at 9 (citing CMS Ex. 16 at 2; P. Ex. 7).

I accept this assertion as true for purposes of deciding whether to grant summary judgment.  But the fact that Petitioner’s staff discussed the room change with R-1 or that

**Page 14**

the resident initially consented to the change begs the question of whether Petitioner’s staff assessed the resident for possible risks and hazards of housing him with R-2.

Petitioner asserts that nothing about R-1’s history warned Petitioner’s staff that R-1 and R-2 might not be compatible roommates.  Petitioner’s brief at 9.  Petitioner omits discussing R-1’s long history of inappropriate, volatile, and at times violent behavior.  It contends that R-1’s physical altercation with a prior roommate in another facility did not serve as a warning to Petitioner about the perils of housing R-1 and R-2 together.  *Id.*According to Petitioner: “One incident months ago with an unknown roommate who had unknown medical/mental conditions over something unknown does not make R1 and R2 improper roommates[,] and certainly does not put . . . [Petitioner] on notice that R2 would choke R1 to death.”  *Id.*

I find this contention to be unpersuasive.  First, the prior incident – coupled with the fact that R-1’s prior facility had found him to be unsuitable to reside there due to his temper and explosive outbursts – put Petitioner’s staff on notice that it had to assess R-1 very carefully before housing him with any prospective roommate.  It certainly was a flashing warning light that R-1 was capable of violence if housed with an incompatible person.

Second, there is one striking similarity between the events leading up to the physical altercation between R-1 and his former roommate and his subsequent fatal confrontation with R-2.  In both instances R-1 had complained about his roommate’s body odor shortly before there was a physical confrontation.  Petitioner’s staff should have recognized R-1’s complaints about R-2’s body odor as a warning of imminent trouble.

Petitioner tries to minimize the significance of R-1’s history by asserting that his prior violent behavior at his previous facility was due to abnormal laboratory results.  Petitioner’s brief at 10.  There is nothing in the record to show that Petitioner’s staff assessed R-1 and concluded that he would be nonviolent so long as his laboratory results were within normal limits.  Furthermore, R-1 had a long history of inappropriate behavior that predated his residence at another facility.  Whatever may have contributed to the resident’s behavior at his prior facility, there clearly were many other factors associated with his mental illness that contributed to his at times violent behavior.

Petitioner also attempts to downplay the significance of R-1’s complaints about R-2’s body odor, asserting that: “R1 made no allegations or threats of physical harm or violence if R2 did not start smelling better.”  Petitioner’s brief at 10.  That may be true, but it does not diminish the warning of possible trouble signaled by R-1’s complaint.  As I have noted, R-1 preceded his previous physical altercation with a former roommate by complaining about that individual’s body odor.  Furthermore, both R-1 and R-2 were capable of violence without giving warnings.

**Page 15**

**Immediate jeopardy**CMS found Petitioner’s noncompliance with 42 C.F.R. §§ 483.12 and 483.25(d)(2) to be so egregious as to comprise immediate jeopardy.  The term “immediate jeopardy” means noncompliance that causes or is likely to cause serious injury, harm, impairment, or death to a resident.  42 C.F.R. § 488.301.

Where noncompliance occurs – as is the case here – a determination of immediate jeopardy must be sustained absent proof that the determination is clearly erroneous.  42 C.F.R. § 498.60(c)(2).  In a case in which I hold a hearing, I would weigh the evidence and decide whether Petitioner proved that the immediate jeopardy finding is clearly erroneous.  The test is a bit different when deciding a motion for summary judgment.  Here, I must decide whether Petitioner has offered facts from which I might reasonably infer that the immediate jeopardy determination is clearly erroneous.

Petitioner has not offered such facts.  It does not address the issue of immediate jeopardy in its brief.  Moreover, the undisputed material facts plainly support CMS’s immediate jeopardy determination.

It is not necessary to find that injury, harm, impairment, or death resulted from noncompliance to sustain a determination of immediate jeopardy.  The likelihood of such outcomes suffices.  Here, the undisputed facts support that conclusion.  The documented antisocial behavior of both R-1 and R-2, the failure of Petitioner to thoroughly assess these two residents for the risks and hazards they posed if housed together as roommates,  the staff’s inadequately justified decision to house these two residents in one room, the failure to provide these residents with additional supervision when they were housed together, and the staff’s decision to put these residents in a room that was out of earshot of Petitioner’s nurse’s station, suffice to establish the likelihood of an explosive event.

**Remedies**CMS imposed civil money penalties against Petitioner as remedies for its noncompliance.  These penalties included civil money penalties of $9,705 for each day of a period that began on July 21, 2020, and that continued through August 13, 2020, and of $225 for each day of a period that began on August 14, 2020, and that continued through August 20, 2020.

CMS imposed the larger penalty amount to remedy Petitioner’s immediate jeopardy level noncompliance.  This amount falls within the then-permissible range for immediate jeopardy level civil money penalties of $6,808 to $22,320.5  CMS determined the start

**Page 16**

date for these penalties to be the date when R-1 complained to Petitioner’s staff about his roommate.  It determined that immediate jeopardy ended when Petitioner began to implement remedial measures.

Petitioner characterizes the penalties as “ridiculously large,” without offering evidence or analysis to challenge them, aside from denying that it was deficient.  Petitioner’s brief at 12.

I find that the undisputed facts establish the immediate jeopardy level penalties to be reasonable, both in amount and duration.  These penalties are modest, comprising less than 50 percent of the maximum allowable immediate jeopardy penalty amount.

Regulations establish criteria for assessing the reasonableness of civil money penalties.  42 C.F.R. §§ 488.438(f)(1)-(4), 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)).  These criteria include the seriousness of noncompliance, a facility’s compliance history, a facility’s culpability for its noncompliance, and its financial condition.  Undisputed facts relating to these factors more than justifies the $9,705 per-diem penalty amount.

First, Petitioner’s noncompliance was extremely serious.  Petitioner’s staff’s failure to assess comprehensively R-1 and R-2 for suitability as roommates and to supervise them once they were housed together created a highly volatile situation, literally a recipe for explosive consequences.  The altercation between R-1 and R-2 was foreseeable, especially after R-1 voiced the identical complaint about R-2 that he had expressed just prior to engaging in an altercation with another roommate in a different facility.

Second, Petitioner has a compliance history that includes a prior citation for abuse, at the immediate jeopardy level, just months prior to the events that led to this case.  That prior citation involved facts that have similarities with the undisputed facts of this case – a resident with a history of criminal violations punched another resident in the face and pushed him to the ground, resulting in his victim being hospitalized with serious injuries that included a broken hip and ribs.  CMS Ex. 51 at 1-13.

Third, Petitioner was culpable for the noncompliance.  Petitioner’s staff knew of R-1’s and R-2’s history of and potential for violence, yet they failed to thoroughly assess these two residents for the risks and hazards they posed if housed together as roommates, failed to provide these residents with additional supervision when they were housed together, and decided to put these residents in a room that was out of earshot of Petitioner’s nurse’s station.  These evince Petitioner’s indifference or, even, disregard for the residents’ safety.  42 C.F.R. § 488.438(f)(4).

Petitioner offered no facts to show that it lacks the wherewithal to pay the penalties that CMS determined to impose.

**Page 17**

Nor has Petitioner challenged the duration of its immediate jeopardy level noncompliance except to deny that it was deficient at all.

As for the non-immediate jeopardy level per-diem penalties of $225, CMS imposed these to redress a period during which Petitioner had eliminated immediate jeopardy but was still in the process of completing its remedial action.  These penalties are minimal, comprising only a bit more than three percent of the maximum non-immediate jeopardy level penalty amount.  Petitioner has offered no facts or argument to challenge these penalties, and I find them to be reasonable.

CMS imposed an additional remedy consisting of loss of authority for two years for Petitioner to conduct a nurse aide training and competency evaluation program (NATCEP) at its premises.  This remedy must be imposed as a matter of law because Petitioner’s noncompliance with 42 C.F.R. §§ 483.12 and 483.25(d)(2) comprises providing care of substandard quality and because this noncompliance resulted in Petitioner being subject to a partial extended survey.  42 C.F.R. § 483.151(b)(2), (e).

Petitioner offered neither facts nor argument to challenge its loss of authority to conduct NATCEP at its premises.

Endnotes

1  Mr. Stott related some facts that Petitioner does not dispute. I do not rely on the opinions or conclusions expressed by Mr. Stott. See CMS Ex. 41.

2  “Abuse” is the willful infliction of injury with resulting harm, physical pain, or mental anguish.  42 C.F.R. § 483.5.

3   Petitioner argues that it provided R-2 with enhanced supervision through “programming.”  Petitioner’s Combined Response to CMS’s Combined Motion for Summary Judgment and Pre-hearing Brief (Petitioner’s brief) at 2-7.  I explain below why this intervention failed to protect R-1 and R-2 from abuse and accident hazards.

4  In his affidavit, Mr. Stott opines that more frequent bed checks of the two residents than once every two hours should have been considered.  CMS Ex. 41 at 4.  As I have stated, I do not rely on Mr. Stott’s opinion.

5  Civil money penalty amounts are adjusted annually.  45 C.F.R. § 102.3; 85 Fed. Reg. 2869, 2880 (Jan. 17, 2020).
  
          /s/
        Steven T. Kessel

                      Administrative Law Judge Back to top
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