-  Departmental Appeals Board (DAB) 
-  About DAB      -  Organizational Overview 
  -  Who are the Judges? 
  -  DAB Divisions 
  -  Contact DAB 
-  Filing an Appeal Online      -  DAB E-File 
  -  Medicare Operations Division (MOD) E-File 
-  Different Appeals at DAB      -  Appeals to DAB Administrative Law Judges (ALJs)         -  Forms 
    -  Procedures 
  -  Appeals to Board        -  Practice Manual 
    -  Guidelines 
    -  Regulations 
    -  National Coverage Determination Complaints 
  -  Appeals to the Medicare Appeals Council (Council)        -  Forms 
    -  Fully Integrated Duals Advantage (FIDA) Demonstration Project 
-  Alternative Dispute Resolution Services      -  Sharing Neutrals 
  -  ADR Training 
  -  Other ADR Services 
-  DAB Decisions      -  Board Decisions 
  -  DAB Administrative Law Judge (ALJ) Decisions 
  -  Medicare Appeals Council (Council) Decisions 
-  Stakeholder Feedback 
-  Careers      -  Open Career Opportunities 
  -  Internships & Externships 

                      -   
                      -   
                      -   
                      -   
                      -   

# Consulate Healthcare of Jacksonville, DAB CR5241 (2019)

----

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

### Consulate Healthcare of Jacksonville,

### (CCN: 10-5917),

### Petitioner,

### v.

### Centers for Medicare & Medicaid Services.

### Docket No. C-15-2339Decision No. CR5241February 4, 2019

### DECISION

Petitioner, Consulate Healthcare of Jacksonville, was not in substantial compliance with program participation requirements from February 9, 2015 through March 10, 2015, due to violations of 42 C.F.R. §§ 483.13(c), (c)(2), (c)(3), (c)(4), and 483.25(h) that posed immediate jeopardy, and 42 C.F.R. § 483.10(b)(11) which posed a risk for more than minimal harm.1 There is a basis for the imposition of enforcement remedies. The following enforcement remedies are reasonable: a civil money penalty (CMP) of $7,000 per day from February 9 through March 9, 2015, a CMP of $100 for March 10, 2015; and a discretionary denial of payments for new admissions (DPNA) effective March 5 through March 9, 2015.

**Page 2**

### I. Background

Petitioner is located in Jacksonville, Florida, and participates in Medicare as a skilled nursing facility (SNF) and the state Medicaid program as a nursing facility (NF). The Florida Agency for Health Care Administration (state agency) performed a complaint investigation on February 17, 2015. The state agency surveyors concluded that Petitioner was not in substantial compliance with program participation requirements due to five deficiencies, four of which allegedly posed immediate jeopardy and substandard quality of care beginning on February 9, 2015. Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1; Joint Stipulations (Jt. Stip.) ¶¶ 1-2; Request for Hearing (RFH) at 1; CMS Ex. 15 at 8-13.

CMS notified Petitioner by letter dated March 3, 2015, that it was imposing the following enforcement remedies: termination of Petitioner’s provider agreement effective March 12, 2015, if Petitioner did not abate immediate jeopardy before that date; a CMP of $7,000 per day beginning February 9, 2015, and continuing until termination or Petitioner’s return to substantial compliance; and a DPNA effective March 5, 2015, if Petitioner did not return to substantial compliance before that date. CMS also advised Petitioner it was ineligible to conduct a Nurse Aide Training and Competency Evaluation Program (NATCEP) for two years. CMS Ex. 15 at 8-11.

CMS notified Petitioner by letter dated April 6, 2015, that a revisit survey found that Petitioner abated immediate jeopardy as of March 10, 2015. However, the revisit survey determined that Petitioner remained out of substantial compliance with program participation requirements. CMS Ex. 15 at 3; CMS Ex. 18. CMS advised Petitioner that the proposed enforcement remedies were modified to a CMP of $7,000 per day effective February 9, 2015 through March 9, 2015, reduced to a CMP of $100 per day effective March 10, 2015, until Petitioner returned to substantial compliance or its provider agreement was terminated. CMS advised Petitioner that the DPNA that began on March 5, 2015 continued, and Petitioner was subject to mandatory termination on August 17, 2015, if it did not return to substantial compliance before that date. CMS Ex. 15 at 3-5.

On April 14, 2015, CMS notified Petitioner that a second revisit conducted on April 10, 2015, found that Petitioner returned to substantial compliance effective March 11, 2015. CMS advised Petitioner that the DPNA was in effect from March 5 through March 10, 2015, and the termination did not occur. CMS Ex. 15 at 1; Jt. Stip. ¶ 4.

Petitioner requested a hearing before an administrative law judge (ALJ) on May 1, 2015. The case was assigned to me for hearing and decision on May 21, 2015, and an Acknowledgement and Prehearing Order was issued at my direction. On October 19, 2015, the parties filed a joint settlement status report in which they waived an oral hearing and requested a decision on the written record. On October 23, 2015, I accepted

**Page 3**

the waiver of oral hearing and set a briefing schedule. On October 19, 2015, the parties filed prehearing briefs (CMS Br. and P. Br.). The parties filed reply briefs on December 11, 2015 (CMS Reply and P. Reply). CMS offered CMS Exs. 1 through 27, which are admitted as evidence. Petitioner offered Petitioner exhibits (P. Exs.) 1 through 24. Petitioner subsequently filed an amended P. Ex. 1, which is accepted as substituted for the originally filed P. Ex. 1.

CMS objected to my consideration of P. Exs. 2, 3, 13, 15, and 16. Centers for Medicare & Medicaid Services Objections to Petitioner’s Exhibits (CMS Obj.)

CMS objected to P. Ex. 2 on multiple grounds: that P. Ex. 2 is a transcript of the video testimony of Joan Terlecky and Petitioner did not offer the original recording to authenticate the transcript; P. Ex. 2 duplicates P. Ex. 1 – Terlecky’s declaration; P. Ex. 2 is not in the form of an affidavit or declaration; Petitioner should not be able to offer testimony of a single witness in two different exhibits; and the majority of the questions in P. Ex. 2 are leading making the testimony unfairly prejudicial. CMS Obj. 1-2. P. Ex. 2 is a transcript of a sworn video-recorded statement of Joan Terlecky made before one authorized to administer oaths. CMS points to no evidence that even suggests that the document is not what it purports to be. P. Ex. 2 reflects that the statement was given under oath or affirmation and, thereby, it meets the requirement of 42 C.F.R. § 498.62 for me to consider the statement as testimony. The Prehearing Order, para. II.B specifically informs the parties that audio and video recordings are not acceptable and must be prepared as transcripts as Petitioner did in this case. The statement preserved in P. Ex. 2 was not subject to cross-examination, but CMS specifically waived its right to cross-examination in this case by agreeing to waiver of oral hearing. Contrary to the assertion of CMS, most of the questions in the transcript are not leading, but are clearly properly framed non-leading questions. There is no rule of evidence or procedure that prevents Petitioner from offering the testimony of a witness in more than one document, except that cumulative evidence may generally be excluded. Although some of the testimony preserved in P. Ex. 1 and P. Ex. 2 is cumulative, CMS did not preserve that objection. However, even considering that some of the information in P. Ex. 1 and P. Ex. 2 is cumulative, I would not exclude P. Ex. 2 on that basis as there is no prejudice to CMS by admitting both P. Ex. 1 and P. Ex. 2 as I give no greater weight to the preserved testimony in this case simply because it is repeated by the witness. CMS does not object on grounds that P. Ex. 2 is not relevant. The objection to P. Ex. 2 is overruled.

P. Ex. 3 is the transcript of the video recording of testimony of Joan Myers. CMS objects to P. Ex. 3 on the same grounds as it objects to P. Ex. 2, except no other statement of Myers is offered as a separate exhibit. CMS Obj. at 2-3. The objection to P. Ex. 3 is overruled for the same reasons as the CMS objection to P. Ex. 2. 

CMS objects to P. Ex. 13, an email from Petitioner’s counsel to Kelley Foster with the state agency dated February 26, 2015, on grounds that it amounts to testimony by

**Page 4**

Petitioner’s counsel or argument that should be in Petitioner’s brief rather than offered as an exhibit. CMS Obj. at 3. Petitioner argues P. Ex. 13 is relevant to address whether Petitioner was timely provided sufficient evidence to abate immediate jeopardy. Petitioner points out that the email is referred to in CMS Ex. 24 at 12, and submission of the email as evidence effectively completes the record. Petitioner’s Response to Respondent’s Objections to Petitioner’s Exhibits (P. Obj. Resp.) at 5. CMS Ex. 24 at 11 to 12 contains an email from Chris Brookshire to Kelley Foster that briefly refers to and describes an email from Petitioner’s counsel to Foster that I conclude matches the content of the email in P. Ex. 13. P. Ex. 13 is relevant to an argument that Petitioner abated immediate jeopardy earlier than the surveyors and CMS found immediate jeopardy was abated. However, Petitioner’s position in that regard is well documented by the email of Brookshire that was placed in evidence by CMS as CMS Ex. 24 at 11-12. P. Ex. 13 remains with the record in case it becomes important for appellate review, but the contents of P. Ex. 13 are cumulative of CMS Ex. 24 at 11-12 and P. Ex. 13 is not admitted for that reason.

CMS objects to P. Exs. 15 and 16, two opinion pieces from different publications, on grounds that the authors express opinions without foundation related to either the qualifications of the authors or the bases for their opinions. CMS Obj. at 3-4. Petitioner responds that CMS failed to object to the authenticity or relevance of P. Exs. 15 and 16 and the adequacy of foundation thus affects the weight, not admissibility of P. Exs. 15 and 16. CMS has not argued that the articles are not what they purport to be. The articles clearly are relevant to the issue of consent to sexual contact by one suffering dementia or similar mental impairment. Therefore, the articles being both authentic and relevant are subject to being admitted and considered as evidence. 42 C.F.R. §§ 498.60(b)(1), 498.61. The CMS objections to P. Exs. 15 and 16 are overruled. However, I find that neither article merits any weight. The articles raise pertinent questions but provide no answers that affect the outcome of this case. To the extent either writer offers opinions regarding answers to questions they raise, there is an inadequate statement of the basis for those opinions and an inadequate statement of their individual knowledge and expertise for me to credit their opinions.

Accordingly, P. Exs. 1 through 12 and 14 through 24 are admitted and considered as evidence.

### II. Discussion

**A. Applicable Law**

The statutory and regulatory requirements for participation of a SNF in Medicare are at section 1819 of the Social Security Act (Act) and 42 C.F.R. pt. 483. Section 1819(h)(2) of the Act authorizes the Secretary (the Secretary) of Health and Human Services (HHS) to impose enforcement remedies against a SNF for failure to comply substantially with

**Page 5**

the federal participation requirements established by sections 1819(b), (c), and (d) of the Act.2 The Act requires that the Secretary terminate the Medicare participation of any SNF that does not return to substantial compliance with participation requirements within six months of being found not to be in substantial compliance. Act § 1819(h)(2)(C). The Act also requires that the Secretary deny payment of Medicare benefits for any beneficiary admitted to a SNF, if the SNF fails to return to substantial compliance with program participation requirements within three months of being found not to be in substantial compliance – commonly referred to as the mandatory or statutory DPNA. Act § 1819(h)(2)(D). The Act grants the Secretary discretionary authority to terminate a noncompliant SNF’s participation in Medicare, even if there has been less than six months of noncompliance. The Act also grants the Secretary authority to impose other enforcement remedies, including a discretionary DPNA, CMPs, appointment of temporary management, and a directed plan of correction. Act § 1819(h)(2)(B).

The Secretary has delegated to CMS and the states the authority to impose remedies against a SNF or NF that is not in substantial compliance with federal participation requirements. 42 C.F.R. §§ 488.400, 488.402(b). “*Substantial compliance*means a level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm.” 42 C.F.R. § 488.301 (emphasis in original). A deficiency is a violation of a participation requirement established by sections 1819(b), (c), and (d) of the Act or the Secretary’s regulations at 42 C.F.R. pt. 483, subpt. B. 42 C.F.R. § 488.301. The term “noncompliance” refers to any deficiency (statutory or regulatory violation) that causes a facility not to be in substantial compliance, that is, a deficiency that poses a risk for more than minimal harm. 42 C.F.R. § 488.301. Therefore, even if a facility violates a statutory or regulatory requirement, CMS may not impose enforcement remedies if the deficiency does not pose a risk for more than minimal harm. State survey agencies survey facilities that participate in Medicare on behalf of CMS to determine whether the facilities are complying with federal participation requirements. 42 C.F.R. §§ 488.10‐.28, 488.300-.335. The regulations specify the enforcement remedies that CMS may impose if a facility is not in substantial compliance with Medicare requirements. 42 C.F.R. § 488.406.

**Page 6**

Petitioner was notified in this case that it was ineligible to conduct a NATCEP for two years. Ineligibility to conduct a NATCEP is not an enforcement remedy that the state agency and CMS have the authority or discretion to impose. 42 C.F.R. § 488.406. Petitioner became ineligible to be approved to conduct a NATCEP for two years by operation of law. I have no authority to declare the ineligibility invalid except to the extent that I conclude that there was no trigger to the ineligibility. The two-year period of ineligibility began on February 17, 2015 and ended on February 16, 2017, in this case. 42 C.F.R. § 483.151(b)(2). Although the period of ineligibility has already expired, the ineligibility to conduct a NATCEP remains an issue as it triggers Petitioner’s right to request review of the scope and severity determinations and the determination of substandard quality of care that triggered the ineligibility to be approved to conduct a NATCEP. Pursuant to sections 1819(b)(5) and 1919(b)(5) of the Act, SNFs and NFs may only use nurse aides who have completed a training and competency evaluation program. Pursuant to sections 1819(f)(2) and 1919(f)(2) of the Act, the Secretary was tasked to develop requirements for approval of NATCEPs and the process for review of those programs. Sections 1819(e) and 1919(e) of the Act impose upon the states the requirement to specify what NATCEPs they will approve that meet the requirements that the Secretary established and a process for reviewing and re-approving those programs using criteria the Secretary set. The Secretary promulgated regulations at 42 C.F.R. pt. 483, subpt. D. Pursuant to 42 C.F.R. § 483.151(b)(2) and (f), a state may not approve and must withdraw any prior approval of a NATCEP offered by a skilled nursing or nursing facility that has been: (1) subject to an extended or partial extended survey under sections 1819(g)(2)(B)(i) or 1919(g)(2)(B)(i) of the Act; (2) assessed a CMP of not less than $5,000; or (3) subject to termination of its participation agreement, a DPNA, or the appointment of temporary management. Extended and partial extended surveys are triggered by a finding of “substandard quality of care” during a standard or abbreviated standard survey and involve evaluating additional participation requirements. “Substandard quality of care” is identified by the situation where surveyors identify one or more deficiencies related to participation requirements established by 42 C.F.R. § 483.13 (Resident Behavior and Facility Practices), § 483.15 (Quality of Life), or § 483.25 (Quality of Care) that are found to constitute either immediate jeopardy, a pattern of or widespread actual harm that does not amount to immediate jeopardy, or a widespread potential for more than minimal harm that does not amount to immediate jeopardy and there is no actual harm. 42 C.F.R. § 488.301. In this case, the alleged substandard quality of care triggered an extended or partial extended survey, which triggered the ineligibility to conduct a NATCEP and is a basis for ALJ review. 42 C.F.R. §§ 483.151(b)(2)(iii); 498.3(b)(14)(ii), (16) (finding of substandard quality of care that results in loss of approval of NATCEP is an initial determination subject to review). The CMP proposed by CMS also triggered ineligibility to be approved to conduct a NATCEP in this case.

The Act and regulations make a hearing before an ALJ available to a long-term care facility against which CMS has determined to impose an enforcement remedy. Act

**Page 7**

§§ 1128A(c)(2), 1866(h); 42 C.F.R. §§ 488.408(g), 498.3(b)(13). A facility has a right to appeal a “certification of noncompliance leading to an enforcement remedy.” 42 C.F.R. §§ 488.408(g)(1); 488.330(e), 498.3(b)(13). However, the choice of remedies, or the factors CMS considered when choosing remedies, are not subject to review. 42 C.F.R. § 488.408(g)(2). A facility may only challenge the scope and severity level of noncompliance determined by CMS if a successful challenge would affect the range of the CMP that may be imposed or impact the facility’s authority to conduct a NATCEP. 42 C.F.R. § 498.3(b)(14), (d)(10)(i). The CMS determination as to the level of noncompliance, including the finding of immediate jeopardy, “must be upheld unless it is clearly erroneous.” 42 C.F.R. § 498.60(c)(2); *Woodstock Care Ctr.*, DAB No. 1726 at 9, 39 (2000), *aff’d*, *Woodstock Care Ctr. v. Thompson*, 363 F.3d 583 (6th Cir. 2003). The Departmental Appeals Board (Board) has long held that the net effect of the regulations is that a provider has no right to challenge the scope and severity level assigned to a noncompliance finding, except in the situation where that finding was the basis for an immediate jeopardy determination. *See, e.g*., *Ridge Terrace*, DAB No. 1834 (2002); *Koester Pavilion*, DAB No. 1750 (2000). ALJ review of a CMP is subject to 42 C.F.R. § 488.438(e).

The hearing before an ALJ is a de novo proceeding, that is, “a fresh look by a neutral decision-maker at the legal and factual basis for the deficiency findings underlying the remedies.” *Life Care Ctr. of Bardstown*, DAB No. 2479 at 33 (2012) (citation omitted). The allocation of the burden of persuasion and the quantum of evidence required to meet the burden is not addressed by regulations.3 Rather, the Board has long held that the

**Page 8**

petitioner, the nongovernmental party, bears the burden of persuasion to show by a preponderance of the evidence that it was in substantial compliance with participation requirements or any affirmative defense. *Batavia Nursing & Convalescent Inn*, DAB No. 1911 (2004); *Batavia Nursing & Convalescent Ctr.*, DAB No. 1904 (2004), *aff’d*, *Batavia Nursing & Convalescent Ctr. v. Thompson*, 129 F. App’x 181 (6th Cir. 2005); *Emerald Oaks*, DAB No. 1800 (2001); *Cross Creek Health Care Ctr.*, DAB No. 1665 (1998); *Hillman Rehab. Ctr.*, DAB No. 1611 (1997) (remand to ALJ), DAB No. 1663 (1998) (after remand), *aff’d*, *Hillman Rehab. Ctr. v. United States*, No. 98-3789 (GEB), 1999 WL 34813783 (D.N.J. May 13, 1999). The Board has indicated that only when CMS makes a prima facie showing of noncompliance, is the facility burdened to show, by a preponderance of the evidence on the record as a whole, that it was in substantial compliance or had an affirmative defense. *Evergreene Nursing Care Ctr.*, DAB No. 2069 at 7 (2007). The Board has not specified how much evidence CMS needs to present to meet its burden of making a prima facie showing. The Board has stated that CMS must come forward with “evidence related to disputed findings that is sufficient (together with any undisputed findings and relevant legal authority) to establish a prima facie case of noncompliance with a regulatory requirement.” *Id.*; *Batavia Nursing & Convalescent Ctr.*, DAB No. 1904. “Prima facie” means generally that the evidence is “[s]ufficient to establish a fact or raise a presumption unless disproved or rebutted.” *Black’s Law Dictionary*1228 (8th ed. 2004). One might conclude that if the preponderance of the evidence is required in these proceedings, that standard would also apply to the requirement for CMS to make a prima facie showing; that is, CMS should be burdened to present evidence sufficient to establish a fact as more likely true and to raise a presumption. However, the Board has never ruled that CMS must establish its prima facie case by a preponderance of the evidence. Indeed, it is unclear from prior Board decisions whether CMS can make a prima facie showing with little more than mere allegations or a scintilla of evidence. In this case, I conclude that CMS has made its prima facie showing by a preponderance of the evidence.

**B. Issues**

Whether there is a basis for the imposition of an enforcement remedy; and, 

Whether the remedies proposed are reasonable.

**Page 9**

**C. Findings of Fact, Conclusions of Law, and Analysis**

My conclusions of law are set forth in bold text followed by my findings of fact and analysis. I have carefully considered all the evidence and the arguments of both parties, although not all may be specifically discussed in this decision. I discuss the credible evidence given the greatest weight in my decision-making.4 I also discuss any evidence that I find is not credible or worthy of weight. The fact that evidence is not specifically discussed should not be considered sufficient to rebut the presumption that I considered all the evidence and assigned such weight or probative value to the credible evidence that I determined appropriate within my discretion as an ALJ. There is no requirement for me to discuss the weight given every piece of evidence considered in this case, nor would it be consistent with notions of judicial economy to do so. Charles H. Koch, Jr., *Admin. L. and Prac.* § 5:64 (3d ed. 2013).

The complaint investigation and extended survey completed February 17, 2015, cited Petitioner for five regulatory violations (deficiencies) that amounted to noncompliance because they allegedly posed a risk for more than minimal harm. The regulations allegedly violated include: 42 C.F.R. § 483.10(b)(11) (Tag F157,5 scope and severity (s/s) level D);6 42 C.F.R. § 483.13(c) (Tag F224, s/s level J); 42 C.F.R. § 483.13(c)(1)(ii)-

**Page 10**

(iii),7 (c)(2), (3), and (4) (Tag F225, s/s level J); 42 C.F.R. § 483.13(c) (Tag F226, s/s level J); and 42 C.F.R. § 483.25(h) (Tag F323, s/s level J). CMS Ex. 1; Jt. Stip. ¶¶ 2, 3.

The surveyors allege noncompliance under Tag F157, based on Petitioner’s failure to notify the family and consult with the physician of Resident 1 of an alleged incident of sexual conduct between Residents 1 and 2, that may have constituted sexual abuse. CMS Ex. 1 at 1-4. The alleged noncompliance under Tags F224, F225, and F226, relate to the same incident of sexual conduct between Residents 1 and 2 and the action or inaction of Petitioner’s staff, specifically Petitioner’s director of nursing (referred to by Petitioner as its Director of Clinical Services (DCS)) in response to that incident. CMS Ex. 1 at 4-59. The surveyors alleged noncompliance under Tag F323 because the facility failed to adequately supervise Resident 1 who exhibited sexual behaviors and Resident 2 who allegedly sexually abused Resident 1. CMS Ex. 1 at 60-74.

A revisit survey was completed on March 10, 2015. The surveyors determined that the immediate jeopardy identified by the February 12, 2015 survey was abated effective March 10, 2015. CMS Ex. 18 at 1-2. However, the surveyors found that Petitioner remained out of substantial compliance under Tags F157, F224, F225, F226, and F323, all at scope and severity D, which indicates a risk for more than minimal harm without actual harm or immediate jeopardy. The citations of deficiency from the revisit survey all cite the incident of sexual conduct involving Residents 1 and 5. CMS Ex. 18; Jt. Stip. ¶ 2.

**Page 11**

A second revisit survey was completed on April 10, 2015. The surveyors found that Petitioner corrected the previously cited noncompliance under Tags F157, F224, F225, F226, and F323, as of March 11, 2015. CMS Ex. 20; Jt. Stip. ¶ 2.

CMS notified Petitioner of its initial determination based on the February 17, 2015 complaint investigation by letter dated March 3, 2015. CMS Ex. 15 at 8-13. CMS notified Petitioner by letter dated April 6, 2015, of the findings of the March 10, 2015 revisit survey. CMS Ex. 15 at 3-7. CMS notified Petitioner by letter dated April 14, 2015, that the second revisit on April 10, 2015, found Petitioner returned to substantial compliance effective March 11, 2015. CMS Ex. 15 at 1-2. CMS notified Petitioner by these notices that it proposed the following enforcement remedies: a discretionary DPNA effective from March 5 through 10, 2015, and a CMP of $7,000 per day effective February 9 through March 9, 2015, which was reduced to $100.00 for March 10, 2015. CMS Ex. 15 at 1, 4; Jt. Stip. ¶ 4.

In its request for hearing filed May 1, 2015, Petitioner specifically disputed the allegations of noncompliance from the complaint investigation completed on February 17, 2015. RFH at 3-4. Though not specifically mentioned, a fair reading of the request for hearing is that Petitioner also disputed the findings of continuing noncompliance cited by the revisit survey completed on March 10, 2015. Petitioner asserts that even if it was noncompliant, it returned to substantial compliance no later than March 9, 2015. RFH at 6. Petitioner asserts that if it was noncompliant, there was no immediate jeopardy; that there was no basis for any enforcement remedy; alternatively, if there is a basis for an enforcement remedy the remedies proposed by CMS are unreasonable; CMS is not entitled to hold the proposed CMP in escrow; and Petitioner is entitled to an award of attorney fees. RFH at 7.

I conclude that, based on the following findings of fact and analysis:

CMS made a prima facie showing Petitioner violated 42 C.F.R. §§ 483.10(b)(11), 483.13(c) and (c)(2), (3), (4), and 483.25(h) as alleged, and the violations posed a risk for more than minimal harm;

Petitioner has not rebutted the CMS prima facie showing or established an affirmative defense by a preponderance of the evidence;

Petitioner has not shown that the declaration of immediate jeopardy and the duration of immediate jeopardy is clearly erroneous for the violations of 42 C.F.R. §§ 483.13(c), (c)(2), (3), and (4) and 483.25(h);

The proposed enforcement remedies are reasonable;

**Page 12**

CMS has authority to hold the proposed CMP in escrow under controlling regulations;

Petitioner is not entitled to attorney fees, as Petitioner does not prevail upon any issue in this case.

The noncompliance under Tags F224, F225, and F226 is discussed first followed by F323 and F157. The following section titled “Facts” is applicable to all the deficiency citations.

**1. Petitioner violated 42 C.F.R. § 483.13(c) (Tag F224) and the violation posed a risk for more than minimal harm.**

**2. Petitioner violated 42 C.F.R. § 483.13(c)(2), (3), and (4) (Tag F225) and the violation posed a risk for more than minimal harm.**

**3. Petitioner violated 42 C.F.R. § 483.13(c) (Tag F226) and the violation posed a risk for more than minimal harm.**

**a. Facts**

As background for the following findings of fact, the cited noncompliance involves an alleged act of oral sex involving Resident 1 and Resident 2. CMS does not allege before me that it is unlawful under state or federal law for two adult residents of a nursing home to engage in sexual activity.

**(i.) The Incident**

An anonymous complaint filed with the state agency on February 11, 2015, triggered the complaint investigation and extended survey that began on February 12, 2015, and ended on February 17, 2015. The anonymous complainant called the state agency and made her complaint based on first-hand information. The complainant reported the incident described hereafter and indicated she felt she should report because Petitioner’s director of nursing, Director of Clinical Services (DCS) Joan Terlecky, took no action when the incident was reported. CMS Ex. 23. Based on my reading of the complaint and review of the other evidence in this case, the complainant was more likely than not Licensed Practical Nurse (LPN) Baldwin.

An interdisciplinary progress note dated February 9, 2015, at 1:40 p.m. signed by LPN Baldwin, states she saw Resident 1 performing oral sex on another resident (Resident 2). Nurse Baldwin states that she stopped the residents and separated them. She notified her supervisor and social services. Nurse Baldwin wrote that social services was to notify

**Page 13**

Resident 1’s family about the incident. She noted that the resident was alert. CMS Ex. 5 at 23, 24.

LPN Baldwin gave a sworn statement in which she stated that on February 9, 2015, at about 1:20 p.m., as she walked down the 200 hallway she looked into Resident 1’s room, Resident 1 was lying on her bed on her left side, propped-up on her elbow, performing oral sex upon Resident 2. LPN Baldwin testified she directed that they stop the act, they did, and she directed that Resident 2 leave the room, which he did. She then reported the incident to the unit manager and then DCS Terlecky. LPN Baldwin testified that she told DCS Terlecky that she did not think Resident 1 could consent because she had dementia. P. Ex. 6.

LPN Sheila Waters provided a sworn statement in which she states she was the unit manager to whom LPN Baldwin reported the incident. LPN Waters stated that at approximately 1:30 p.m. on February 9, 2015, LPN Baldwin reported to her that she witnessed Resident 1 performing oral sex upon Resident 2. She stated she saw LPN Baldwin walk from the vicinity of Resident 1’s room. LPN Waters testified that she referred LPN Baldwin to DCS Terlecky, who was Petitioner’s abuse coordinator; because LPN Waters knew it was DCS Terlecky’s job to assess potential allegations of abuse. She testified that she saw Resident 2 walk from Resident 1’s room and enter his own room. She testified she never heard Resident 2 express any sexual comments or observed him acting in a sexual manner. She was not aware of any interest of Resident 2 for Resident 1. She testified that she never observed Resident 1 acting out sexually or inviting sexual contact. She testified that she reviewed Resident 1’s chart and there was no declaration or certification that she lacked capacity. P. Ex. 9 at 1.

LPN Kameshia Watts gave a sworn statement in which she states she saw Resident 1 in Resident 2’s room the morning of February 9, 2015. Resident 2 was lying in his bed fully dressed and Resident 1 was sitting at the foot of the bed rubbing Resident 2’s leg with her hand. She removed Resident 1 from the room. She stated this was the only incident of Resident 1 in Resident 2’s room and she did not consider the activity sexual in nature. She denied that in speaking with the surveyors that she meant to suggest that there had been any past sexual behaviors or activity between Residents 1 and 2. P. Ex. 7.

Petitioner placed in evidence the transcript of the sworn video statement of Certified Nursing Assistant (CNA) Joan Meyers. CMS Ex. 3. CNA Meyers testified that she entered the hall from a resident’s room and headed toward the nurses station. LPN Baldwin was walking down the hall in front of her, perhaps three to four feet. CNA Meyers testified that both she and LPN Baldwin looked into Resident 1’s room. Residents 1 and 2 were standing by the door. Resident 1 was giggling with her hands folded and Resident 2 was standing talking. She testified that there was no sexual activity and both were dressed. CNA Meyers opined that less than a minute passed between the time LPN Baldwin looked into the room and she looked into the room. I

**Page 14**

infer from CNA Meyers’ testimony that LPN Baldwin did not stop and enter Resident 1’s room. She testified she saw LPN Baldwin go to the nurses station but she could not hear what she said. CNA Meyers was not specifically asked what day this event occurred. P. Ex. 3 at 6-12. The time of CNA Meyers’ observation was not clarified by the examiner. CNA Meyers first stated her observation of LPN Baldwin occurred a little after lunch, but then changed her mind and said before lunch. P. Ex. 3 at 6. It cannot be determined from CNA Meyers’ testimony the date and time that she testified that she observed LPN Baldwin walk down the hall and look into Resident 1’s room. Therefore, CNA Meyers’ statement has no probative value and it is given no weight.

**(ii.) Resident 1**

Resident 1 was a female. She was admitted to Petitioner in June 2014. She was 79 years old at the time of the survey on February 17, 2015. Her diagnoses at admission included, among other things: senile dementia, anxiety, unspecified psychosis, depressive disorder, memory loss, hypertension, cognitive communication deficit, and edema. CMS Ex. 5 at 1-2. Resident 2 received lorazepam as needed for acute agitation, melatonin for sleeplessness, Ranexa® for angina, sertraline HCL for depression, quetiapine fumarate for behavioral and psychological symptoms of dementia, namenda for dementia, and various medications for hypertension. CMS Ex. 5 at 3-4. She also had a WanderguardTM device on her lower extremity to help prevent elopement. CMS Ex. 5 at 5. February 2015 CNA-ADL Tracking forms show that she was independent with activities of daily living with supervision and setup help, except bathing, and she was continent of bowel and bladder. CMS Ex. 5 at 6-7.

A mental status examination on February 2, 2015, before the incident, shows: good general appearance; cooperative behavior; she was alert; reduced speech; slow thought process; poor insight/judgment; oriented to person; impaired immediate, recent, and remote memory; and a flat mood/affect. Her mental capability was not evaluated. Resident 1 was considered to be stable. CMS Ex. 5 at 10-11. The mental status evaluation on December 28, 2014, was the same. CMS Ex. 5 at 12-13. This evidence, though credible, does not help decide whether Resident 1 was capable of consenting to sexual activity or whether such activity was safe for her either mentally or physically.

A mental status examination dated February 16, 2015 (during the survey), was completed by Nurse Practitioner (NP) Kristin Jones that showed: good general appearance; hostile behavior; she was alert; reduced speech; slow thought process; poor insight/judgment; she was oriented to person; she had impaired immediate, recent, and remote memory; delusions; and irritable mood/affect. NP Jones evaluated Resident 1 as being incompetent. NP Jones noted that Resident 1 denied engaging in a sex act with Resident 2. However, the nurse practitioner also noted that staff reported other occasions of Resident 1 acting inappropriately in a sexual manner, but she states this is the first time she had heard such reports. CMS Ex. 5 at 8-9. NP Jones provided a written statement in

**Page 15**

which she explained that she had received psychiatric training and she provided such care to both Resident 1 and Resident 2. Resident 1 primarily required treatment for agitation. On February 16, 2015, she assessed Resident 1 as incompetent but her opinion was related to Resident 1’s ability to understand and make important financial or medical decisions, not whether she could decide to engage in sex acts. Given the fact that she was doing the mental status during the survey investigation of an alleged sex act involving Resident 1, one can only wonder why NP Jones did not evaluate whether Resident 1 was capable of consenting, casting doubt upon NP Jones’s credibility and the thoroughness of her evaluation. NP Jones testified that Resident 1 did not act or speak in an inappropriate sexual manner; given the resident’s dementia such behavior would probably recur; and because there were no reports of such behavior she did not believe Resident 1 had that problem. P. Ex. 24; CMS Ex. 5 at 8-9. NP Jones was, apparently, not familiar with the care plan for Resident 1 that addressed the problem of the resident’s sexual comments discussed in more detail hereafter. CMS Ex. 5 at 87, 88. The existence of the care plan is consistent with the staff reports that Resident 1 had previously engaged in sexually-oriented activity.

A mental status evaluation on February 24, 2015, shows: good general appearance; cooperative; reduced speech; slow thought process; poor insight/judgment; oriented to person; impaired immediate, recent, and remote memory; and irritable at times. Her mental capability was not evaluated. The note indicates that she was very cooperative, in good spirits, and pleasantly confused. P. Ex. 10 at 44-45.

A social services progress note from February 9, 2015, by Petitioner’s Social Services Director Debbie McCurdy, stated Resident 1 was interviewed on that date and Resident 1 denied seeing any man in her room. CMS Ex. 5 at 113-14. The note indicates that at about 2:30 p.m. on February 9, 2015, Ms. McCurdy left a message for the resident’s daughter, one of Resident 1’s listed emergency contacts, to call the facility. The note does not reflect that Ms. McCurdy attempted to call either of the other two emergency contacts listed in the resident’s record. CMS Ex. 5 at 1, 113-14. However, Ms. McCurdy entered a note at 4:00 p.m. on February 13, 2015, that shows that Resident 1’s daughter-in-law, another emergency contact for Resident 1, called and advised Ms. McCurdy that Resident 1’s daughter worked in another state, she had received Ms. McCurdy’s message to call, and she asked that the daughter-in-law call Ms. McCurdy. Ms. McCurdy noted that she advised the daughter-in-law of the incident. CMS Ex. 5 at 114. Resident 1 was interviewed again on February 16, 2015, and asked whether she was sexually abused. Resident 1’s response as recorded by Ms. McCurdy was: “I can find it in 2-3 days when I get my money.” Ms. McCurdy asked Resident 1 if she feared or was scared of any man in the facility and the response recorded was: “No why you see something, I didn’t see anything” and “I not scared of any man in this building even the one in the dining room.” Ms. McCurdy also recorded that Resident 1 said she was not sexually abused. CMS Ex. 5 at 114-15.

**Page 16**

Ms. McCurdy provided a sworn written statement. In her sworn statement she stated that Resident 1 was able to understand and respond in English. She opined that Resident 1 had some cognitive limitations, but she was capable of understanding circumstances and making choices. Ms. McCurdy testified that she notified both families of the alleged incident involving Residents 1 and 2, but she did not specify when. She testified that when she interviewed Resident 1, she denied that the incident with Resident 2 occurred. The interview with Resident 1 was conducted initially in English and subsequently in Spanish. P. Exs. 4-5. McCurdy also executed an unsworn statement on February 13, 2015, in which she states that both Residents 1 and 2 denied the incident. She also recorded attending an interview between the DCS Terlecky and LPN Baldwin. She recorded that LPN Baldwin stated she was walking down the hall, looked into Resident 1’s room and saw her performing oral sex on Resident 2, and she told them to stop. McCurdy recorded that DCS Terlecky commented that they were two consenting adults but directed LPN Baldwin to document the incident. CMS Ex. 11.

On February 10, 2015, before the February 11, 2015 complaint to the state agency and before the complaint investigation began on February 12, 2015, Resident 1’s care plan was updated to address the problem that Resident 1 was physically inappropriate in that she performed a sex act on a male resident. The interventions added to the care plan on February 10, 2015, were to redirect the resident if found performing sex acts but provide privacy if both residents are in agreement. CMS Ex. 5 at 85. This modification to the care plan shows it was more likely than not that someone at the facility believed that a sex act occurred with Resident 1 and, more likely than not, the act occurred between Resident 1 and Resident 2 based on the fact that a similar modification was made to Resident 2’s care plan. CMS Ex. 6 at 23-24. There is no evidence that these interventions were created by the interdisciplinary teams tasked with developing care plans for the delivery of care and services for these residents as required by 42 C.F.R. § 483.20(k); no evidence that either resident was assessed as being mentally and physically safe to engage in such activity; and no evidence of any need for safety precautions to prevent accidental injury. It was not until February 16, 2015, that NP Jones actually opined as to Resident 1’s competency and at that time she rated Resident 1 as incompetent. CMS Ex. 5 at 8-9. NP Jones subsequently denied that she intended to opine that Resident 1 did not have capacity to consent to sexual activity. P. Ex. 24. At any rate, NP Jones’ evaluation occurred on February 16, 2015, after the care plan was modified to give Resident 1 privacy when she consented to sex. Petitioner has not provided credible evidence that Resident 1 was actually evaluated and found capable of consenting to sexual activity before the care plan was modified; nevertheless, whoever modified Resident 1’s care plan assumed that she was capable of consenting. The modification of the care plan is also inconsistent with the assertions of DCS Terlecky that she investigated and concluded that no sex act occurred, making her testimony less credible. The modification of the care plan is also inconsistent with one of Petitioner’s theories that no sex act occurred. The modification of the care plan exemplifies that the failure to properly investigate an allegation of potential abuse may create a situation of

**Page 17**

greater risk for residents. Resident 1’s care plan was modified the day after the incident to affirmatively instruct staff to permit sex acts with Resident 1, if both parties were in agreement, without any medical determination that such acts were safe and in the best interest of the resident and without determining that the resident was capable of consenting.

On February 16, 2015, during the survey, the direction was added to Resident 1’s care plan to redirect the resident and notify the nurse immediately if a sex act was observed and the prior intervention added February 10, 2015 to permit the act if both parties agreed, was lined-through. CMS Ex. 5 at 86. Resident 1’s care plan also lists as a problem that Resident 1 makes sexual comments and the interventions listed are to redirect, change the subject, contact the physician as needed, and a psychiatric consult for possible medication change. The statement of the problem and intervention are not dated, but the care plan sheet shows an implementation date of October 20, 2014, and a target date of January 20, 2015, and another date with an unreadable digit in the position for the month. CMS Ex. 5 at 87, 88. Petitioner’s failure to ensure its staff make proper entries to medical records that are dated and show who made the entry, makes it difficult to assess the probative value of this document. However, the implementation date of October 20, 2014, and the target date of January 20, 2015, show it was more likely than not that Petitioner’s staff was aware that Resident 1 engaged in making sexually oriented comments as early as October 20, 2014.

The record contains other evidence of Resident 1’s capacity and judgment. A social service progress review, also by McCurdy dated January 1, 2015, before the incident, characterizes Resident 1 as moderately impaired for daily decision-making. The review indicates Resident 1 required assistance with activities of daily living but she ambulates independently. CMS Ex. 5 at 116-17. A Minimum Data Set (MDS) with an assessment reference date of January 1, 2015, assessed Resident 1 as: able to hear and comprehend verbal content; able to express ideas and wants; speech was clear; able to perform activities of daily living including walking with supervision, encouragement, cuing; she was rated as continuously inattentive and disorganized in her thinking but with no altered level of consciousness. CMS Ex. 5 at 122-23; P. Ex. 10 at 4, 7, 11-12. An activities evaluation dated January 1, 2015, rated Resident 1 as modified independence for decision-making; oriented to both person and time; adequate to good hearing; independent with ambulation but needed assistance; independent with eating; and continent of bowel and bladder. Her ability to understand and be understood and speech clarity were not evaluated. P. Ex. 10 at 39. A similar evaluation dated December 18, 2014, shows that Resident 1 was oriented to person, time, place, and situation; she was able to be understood and understand, and her speech was clear. P. Ex. 10 at 41. Petitioner presented no expert testimony to interpret this evidence to help me understand Resident 1’s capacity or whether this evidence shows it was safe physically and mentally for her to engage in sexual activity.

**Page 18**

DCS Terlecky testified that she knew Resident 1. Resident 1’s primary language was Spanish but she could communicate in English too. DCS Terlecky stated that she had no concern about Resident 1’s mental capacity or any sexual behaviors, but the bases for her opinions are not detailed. P. Ex. 2 at 7-8.

In her sworn statement, CNA Sheila Landaverde testified that she told the surveyors that Resident 1 walked the halls, entered others’ rooms, and touched people, but she did not mean to suggest that Resident 1 acted in a sexual manner. P. Ex. 8.

An interdisciplinary progress note dated February 9, 2015, at 1:40 p.m. does not show that Resident 1’s physician was contacted that day. CMS Ex. 5 at 23-24. Progress notes show that Resident 1 was seen by a physician on February 11 and 16, 2015. CMS Ex. 5 at 26-27, 33. Progress notes show she was also seen on February 8, 2015, at 9:35 a.m., which was before the incident. CMS Ex. 5 at 28. However, Dr. Chung, Resident 1’s physician, provided an unsworn statement dated February 13, 2015, in which he states he was notified of the incident on February 9, 2015. However, he does not state when on February 9, 2015, he was notified. CMS Ex. 13.

It is not disputed that Resident 1 was transferred to the locked dementia unit of another SNF on March 8, 2015, eliminating concern that Resident 1 might be abused by Resident 2 or another resident in Petitioner’s facility. CMS Ex. 19 at 4.

**(iii.) Resident 2**

Resident 2, a male, was admitted to Petitioner in June 2014. Resident 2 was 45 years old at the time of the incident and survey in February 2015. His diagnoses included cognitive communication deficit, subarachnoid hemorrhage (due to a motor vehicle accident (CMS Ex. 6 at 7)), hypertension, and paralysis agitans (Parkinson’s disease). CMS Ex. 6 at 1. He was prescribed oxycodone-acetaminophen as needed for pain, amantadine for Parkinson’s, and amlodipine besylate and metoprolol for hypertension. CMS Ex. 6 at 2. A progress note dated February 16, 2015, shows Resident 2 denied any sexual activity and stated that his “privates” had not worked for five months. CMS Ex. 6 at 7.

A social service progress note by Ms. McCurdy dated February 9, 2015, indicates Resident 2 denied sexual activity with Resident 1. CMS Ex. 6 at 8-9. A note at 2:35 p.m. on February 9, 2015, reflects that Ms. McCurdy informed Resident 2’s emergency contact about the alleged incident. CMS Ex. 6 at 1, 8-9.

A social service progress review by Ms. McCurdy dated December 30, 2014, reported that Resident 2 was oriented in two spheres, he had short-term memory deficits, and his decision-making was impaired with modified independence. He required assistance with activities of daily living and mobility, which was by wheelchair or walker. CMS Ex. 6 at 11, 90.

**Page 19**

Resident 2’s care plan was updated on an unspecified date to list the problem that he had sex acts performed on him by a female resident with interventions of redirection or provide privacy if both parties consent. The implementation date on the care plan is July 14, 2014, with target dates of October 14, 2014, January 5, 2015, and March 31, 2015. The intervention was subsequently stricken and one-to-one staff supervision was ordered during the investigation of the alleged sex act. The entry is also not dated. CMS Ex. 6 at 23-24. I infer that these entries on the care plan were made sometime after the incident with Resident 1 and were based on that incident. An undated “Nurse Tech Information Kardex” requires that Resident 2 be monitored for sexual behavior with a female resident, and if observed the residents were to be separated and redirected and the nurse was to be notified immediately. CMS Ex. 6 at 85. I also infer that this entry was made due to the February 9, 2015 incident with Resident 1. Petitioner’s failure to ensure that staff properly annotate medical record entries with the date and time of the entry and identifying the individual who made the entry, raises doubts as to the probative value of the medical records, making it more difficult for Petitioner show the delivery of required care and services.

A mental status examination on February 13, 2015, during the survey, notes an incident of inappropriate sexual behavior and depression. Resident 2’s behavior at the time of the examination was rated as cooperative and normal; he was alert; speech was normal; thought process was normal; insight/judgment was rated normal; he was oriented to person, place, time, and circumstances; his memory was intact; and his thought content and perceptions were normal. His mental capability was not evaluated. Resident 2 denied the incident with Resident 1 during the interview. The note indicates that Resident 2 did not have an impulse control problem due to his injury. CMS Ex. 6 at 97‐98. A follow-up evaluation done on February 16, 2015, showed similar results. A note indicates that Resident 2 continued to deny the incident with Resident 1, he denied any sexual contact with anyone in the facility and stated that his “privates” did not work right. His depression was reported to be worse. CMS Ex. 6 at 99-100.

An interdisciplinary progress note dated February 12, 2015, at 6:00 p.m., which was during the survey, shows that Resident 2’s physician was called to request a psychiatric consult. CMS Ex. 6 at 5. There is no record of a call to the physician on February 9, 2015, the day of the incident. Resident 2 was seen by NP Jones on February 13 and 16, 2015. CMS Ex. 6 at 97-100.

In her sworn statement, CNA Landaverde testified that she provides care to Resident 2. She stated she never heard him express any interest in Resident 1, sexual or otherwise. She also reported that Resident 2 liked to keep to himself. P. Ex. 8.

**Page 20**

**(iv.) Reporting of the Incident**

An incident report dated February 12, 2015, shows that DCS Terlecky reported the incident to Petitioner’s Executive Director (the title used by Petitioner rather than Administrator) who signed and dated the form on February 13, 2015. The report indicates the physician was informed on February 9, 2015, the date of the incident, and a message was left for the family. This form contains several inconsistencies. It indicates that the incident occurred on February 9, 2015, at approximately 10:00 a.m. The form indicates that Resident 1’s physician was contacted on February 9, 2015, and he responded at 10:30 a.m. on that day. The report shows that a message was left for Resident 1’s family member on February 9, 2015, at 10:30 a.m. CMS Ex 4. However, the preponderance of the evidence shows that the incident actually occurred around 1:30 p.m. on February 9, 2015. P. Exs. 1 at 2 ¶ 13; 2 at 10; 6; 8; 9 at 1 ¶ 3. Furthermore, Social Services Director McCurdy’s progress note records her call to Resident 1’s daughter at 2:30 p.m. CMS Ex. 5 at 113-14. The inconsistencies between the report and other evidence before me, may be because the report was not prepared until February 12, 2015, three days after the incident, and clinical records related to the incident are few. Due to the clearly erroneous entries on the form related to the timing of notice to family and physician, I conclude that this document is not reliable evidence of whether and when notice occurred. I also note that this form does not indicate any notice to Resident 2’s family or physician. The inaccuracies in this report, prepared during the complaint investigation, is additional evidence that the quality of Petitioner’s record keeping is suspect, making clinical records less weighty and making it more difficult for Petitioner to show what care and services were actually delivered.

CMS presented a form, purportedly from the Jacksonville Sheriff’s Office, dated February 13, 2015. The form provides no detail of the incident reported. CMS Ex. 7. I give this form no weight because there is insufficient foundation showing the report is related to this case.

Also in evidence is a state agency form titled “Federal Immediate / 5-Day Report.” The page of the form in evidence does not include a date when the form was completed. The form does reflect it was completed by DCS Terlecky. The form also reports that on February 12, 2015, DCS Terlecky reported the incident to the state abuse registry and she filed an “Immediate Federal Report.” CMS Ex. 9.

DCS Terlecky states in her sworn statement that she was Petitioner’s abuse investigation coordinator. She stated that if staff witnessed abuse or received an allegation of abuse, they were to report to her. DCS Terlecky believed that she was then responsible to validate the allegation of abuse, and if validated, residents were to be protected, and she had to report to the Administrator. P. Ex. 1 at 1 ¶ 3. She testified that once she received a validated report she filed a report with the state agency reporting the allegation of abuse

**Page 21**

and then she was to initiate an investigation to determine whether the allegation of abuse was substantiated. She would then prepare a report to the administrator and the state agency. P. Ex. 1 at 1 ¶ 4. She opined that the procedure as she understood it was consistent with regulatory and nursing requirements. P. Ex. 1 at 1 ¶ 5. As discussed hereafter her opinion as to what the regulations require is entitled to no weight because the approach she described is clearly violative of federal regulations. Furthermore, DCS Terlecky’s statements are strong evidence that Petitioner violated 42 C.F.R. § 483.13(c) and its various subsections.

DCS Terlecky describes in her statement her handling of the incident involving Residents 1 and 2. DCS Terlecky was Petitioner’s DCS on February 9, 2015, and Petitioner’s abuse coordinator. She knew both Residents 1 and 2. DCS Terlecky knew that Resident 1 had a diagnosis of dementia, she was occasionally confused, but she also had moments of lucidity, she was capable of expressing herself and her wants and needs, and capable of understanding others. Resident 1 had not been determined to be incapacitated or otherwise incapable of making decisions. In her opinion, Resident 1 had the capacity to consent to engaging in sexual activity. P. Ex. 1 at 1-2 ¶¶ 7-9, 12. LPN Baldwin reported to her at approximately 1:30 p.m. on February 9, 2015, that she saw Resident 1 performing oral sex on Resident 2. DCS Terlecky testified that she did not consider a reported observation of two residents engaging in sex to be an allegation of abuse, as consensual sex between residents is permitted. She stated it would only be an allegation of abuse if the circumstances indicated the sex was not consensual. She testified that she believed she needed to validate whether or not there was an allegation of abuse. Contrary to the assertions of LPN Baldwin (P. Ex. 6), DCS Terlecky testified that LPN Baldwin did not say she thought Resident 1 was incapable of consenting to sex due to dementia. DCS Terlecky testified that because she felt the incident was consensual sex, she began a further investigation immediately that she completed within an hour of receiving the report from LPN Baldwin. DCS Terlecky’s conclusion was that the incident never happened but, if it did, it was consensual. P. Ex. 1 at 2-3, ¶ 13-20. DCS Terlecky testified that because she concluded she did not receive an allegation of abuse, it was not necessary to notify either the family or physician of Resident 1 or to implement any protective measures for either resident. She also concluded it was not necessary to notify Petitioner’s administrator, the state agency, or the police. P. Ex. 1 at 3-4 ¶ 21. DCS Terlecky testified that the state agency and police were only notified after the surveyors arrived and informed her that there was an allegation of abuse. P. Ex. 1 at 4 ¶ 23. Petitioner also placed in evidence a transcript of a video recording of a sworn statement made by DCS Terlecky. P. Ex. 2. In her video statement, DCS Terlecky testified that she asked LPN Baldwin whether Resident 1 was alert and oriented because she wanted to figure out whether the act was consensual. She testified that LPN Baldwin stated that Resident 1 was sometimes confused but was alert and oriented, and Resident 2 was alert and oriented. P. Ex. 2 at 10-11. DCS Terlecky testified that she wanted to investigate the alleged incident to determine whether the residents consented and ultimately she decided nothing had occurred. P. Ex. 2 at 12, 17.

**Page 22**

CMS Ex. 10 is a copy of a document with the heading “Policies and Procedures,” subject “Resident Abuse,” with an effective date of November 30, 2014. I infer this document was obtained by the surveyors during the February 17, 2015 survey and that it is a copy of Petitioner’s policy and procedures. Acts of abuse, including sexual abuse, or permitting abuse to occur, are prohibited by the policy. CMS Ex. 10 at 1-3. An employee who witnesses or has knowledge of an act of abuse must report to the clinical nurse in charge, the DCS, and the Executive Director (administrator). CMS Ex. 10 at 5. The policy provides that all reported events will be investigated by the DCS and reported to the Executive Director, who is the facility abuse coordinator. The policy provides that incidents of resident abuse are to be reported immediately to the clinical nurse in charge, the DCS, and the Executive Director. The abuse coordinator (the Executive Director) is responsible to report to appropriate officials in accordance with state and federal regulations. CMS Ex. 10 at 7. The policy provides for a preliminary investigation and does not specify when the report to the state must occur relative to the investigation making the policy misleading and imprecise. The policy requires that the alleged perpetrator of abuse be segregated from the resident alleged to have been abused, neglected, or mistreated. The policy requires notification of the attending physician when a nursing assessment is completed. CMS Ex. 10 at 8. The policy provides that the abuse coordinator of the company “will refer any or all incidents and reports of resident abuse to the appropriate state agencies.” CMS Ex. 10 at 9. Following are specific findings of fact derived or inferred from the foregoing discussion of the facts and evidence:

On February 9, 2015, between about 1:15 p.m. and 1:30 p.m., LPN Baldwin reported to her Unit Charge Nurse, LPN Waters, that she had seen Resident 1 performing oral sex upon Resident 2. P. Exs. 6, 9. LPN Baldwin believed that Resident 1 had dementia and could not consent to sexual activity. P. Ex. 6 ¶ 5.

The Unit Charge Nurse, LPN Waters, directed LPN Baldwin to report to DCS Terlecky, who was the facility abuse coordinator (rather than the Executive Director as required by Petitioner’s policy) because LPN Waters knew DCS Terlecky would have to assess any potential allegation of abuse. P. Ex. 9 at 1 ¶ 3. I infer LPN Waters recognized LPN Baldwin’s report as a potential allegation of abuse of Resident 1 based on the fact she directed LPN Baldwin to report to DCS Terlecky.

DCS Terlecky heard LPN Baldwin’s report on February 9, 2015, at approximately 1:30 p.m. P. Exs. 1, 2, 6.

DCS Terlecky did not act on February 9, 2015, to segregate the two residents or otherwise provide for their protection pending reporting and investigation. P. Exs. 1, 2.

**Page 23**

DCS Terlecky decided based on her preliminary investigation that no allegation of abuse was made and no abuse occurred. P. Exs. 1, 2.

DCS Terlecky did not immediately report to the facility Executive Director (administrator). P. Exs. 1, 2.

The facility administrator did not immediately report to the state agency.

The incident was reported to Resident 1’s doctor on February 9, 2015, at an unknown time. CMS Ex. 13. The evidence does not show that any consultation occurred with Resident 1’s doctor on February 9, 2015.

The incident was not reported to Resident 1’s family until February 13, 2015. CMS Ex. 5 at 114.

The incident was not reported to Resident 2’s doctor until February 12, 2015. CMS Ex. 6 at 97-100. There is no evidence of any consultation with Resident 2’s doctor on February 9, 2015.

The incident was reported to Resident 2’s family on February 9, 2015. CMS Ex. 6 at 1, 8-9.

Petitioner has a policy that prohibits resident neglect, abuse, and mistreatment, and provides for investigation and reporting of reported incidents, however that policy lacks precision and clarity. CMS Ex. 10.

**b. Analysis**

This decision does not address the sensitive issue of whether residents in long-term care facilities have a right to engage in sexual activity. This decision does address what a SNF must do when sexual contact between two residents is alleged to be or may be potentially abusive.

Despite the parties’ focus, I make no findings of fact that Resident 1 was unable to consent to sexual activity or that Resident 2 and Resident 1 engaged in a sex act. Specific findings that Resident 1 did or did not have capacity to consent or that a sex act actually occurred is not necessary to decide this case. It is action or in-action of Petitioner’s staff that resulted in the noncompliance and posed the potential for more than minimal harm for Residents 1 and 2 and all similarly situated residents of Petitioner’s facility.

Section 1819(c)(1)(A)(ii) of the Act requires that a SNF protect its residents and promote their “right to be free from physical or mental abuse, corporal punishment, involuntary

**Page 24**

seclusion, and any physical or chemical restraints imposed for purposes of discipline or convenience and not required to treat the resident’s medical symptoms.” The Secretary has provided by regulation that a “resident has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion.” 42 C.F.R. § 483.13(b). The regulations require that a facility 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 surveyors allege in the Statement of Deficiencies (SOD) that Petitioner violated 42 C.F.R. § 483.13(c) and (c)(2)-(4). CMS Ex. 1 at 1, 4-60. The regulation requires:

(c) Staff treatment of residents. The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property.

* * * *

(2) The facility must ensure that all alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source, and misappropriation of resident property are reported immediately to the administrator of the facility and to other officials in accordance with State law through established procedures (including to the State survey and certification agency). 

(3) The facility must have evidence that all alleged violations are thoroughly investigated, and must prevent further potential abuse while the investigation is in progress.

(4) The results of all investigations must be reported to the administrator or his designated representative and to other officials in accordance with State law (including to the State survey and certification agency) within 5 working days of the incident, and if the alleged violation is verified appropriate corrective action must be taken.

42 C.F.R. § 483.13(c) and (c)(2)-(4). This regulation “explicitly requires reporting of the results of all investigations of abuse, not merely those that substantiate abuse.” *Singing River Rehab. & Nursing Ctr.*, DAB No. 2232 at 8 (2009). The regulation requires that all

**Page 25**

allegations of mistreatment, neglect, or abuse, including eyewitness accounts of possible sexual abuse, be **immediately** reported to the administrator and other officials in accordance with state law. 42 C.F.R. § 483.13(c)(2). Appellate panels of the Board have held that, “for reporting allegations of abuse to the state, ‘the salient question is not whether any abuse in fact occurred or whether [a facility] had reasonable cause to believe that any abuse occurred, but whether there was an allegation that facility staff had abused a resident.’” *Britthaven, Inc., d/b/a Britthaven of Smithfield*, DAB No. 2018 at 15 (2006) (quoting *Cedar View Good Samaritan*, DAB No. 1897 at 11 (2003)).

The terms “abuse,” “mistreatment,” and “neglect” are not defined in 42 C.F.R. § 483.13. Definitions for abuse and neglect are found in 42 C.F.R. § 488.301. Abuse is the “willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.” 42 C.F.R. § 488.301. Neglect is failure “to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness.” 42 C.F.R. § 488.301. Mistreatment is not defined in 42 C.F.R. pts. 483 or 488. I construe the term to have its common meaning.

The preponderance of the evidence shows that on February 9, 2015, between about 1:15 p.m. and 1:30 p.m., LPN Baldwin reported to her Unit Charge Nurse, LPN Waters, that she had seen Resident 1 performing oral sex upon Resident 2. P. Exs. 6, 9. LPN Baldwin believed that Resident 1 had dementia and could not consent to sexual activity. P. Ex. 6 ¶ 5. LPN Waters directed LPN Baldwin to report to DCS Terlecky, who was serving as the facility abuse coordinator; because LPN Waters knew DCS Terlecky would have to assess any potential allegation of abuse. P. Ex. 9 at 1 ¶ 3. I infer LPN Waters recognized LPN Baldwin’s report as a potential allegation of abuse of Resident 1 and she has not denied that she referred LPN Baldwin to DCS Terlecky for that reason. DCS Terlecky heard LPN Baldwin’s report on February 9, 2015, at approximately 1:30 p.m. P. Exs. 1, 2, 6. However, DCS Terlecky has testified that she did not believe that LPN Baldwin’s report was an allegation of abuse. DCS Terlecky did not act to segregate the two residents or otherwise provide for the protection of either resident pending reporting and investigation. P. Exs. 1, 2. DCS Terlecky decided based on her preliminary investigation that no allegation of abuse was made and subsequently she decided that no abuse occurred. P. Exs. 1, 2. Because she did not believe there was an allegation of abuse DCS Terlecky did not report to the facility administrator. P. Exs. 1, 2. There is no dispute that the facility administrator did not immediately report to the state agency because he was not informed by DCS Terlecky.

I conclude that CMS has made a prima facie showing of noncompliance under Tags F224 and F225 based on violations of 42 C.F.R. § 483.13(c) and (c)(2), (3), and (4). Petitioner is responsible to ensure that its residents are protected from abuse under 42 C.F.R. § 483.13(c). CMS is not burdened to show that abuse actually occurred, only that there was a potential for abuse or the occurrence of an abusive incident. Once the allegation of abuse was made by LPN Baldwin, Petitioner had the responsibility to protect Resident 1

**Page 26**

and Resident 2, immediately report, and investigate under 42 C.F.R. § 483.13(c)(2), (3), and (4). The fact that DCS Terlecky erroneously believed it was up to her to determine whether there was actual abuse, or whatever she thought she had to decide, prior to reporting the allegation of abuse to the administrator and state agency and taking action to protect the residents, is no defense. The regulatory violations posed a risk for more than minimal physical and emotional harm to the residents.

Petitioner argues that LPN Baldwin’s account of the alleged incident is not credible and the incident did not actually occur. P. Br. at 3-8; P. Reply at 2-3. Petitioner argues that Resident 1 was capable of consenting to sex acts with Resident 2. P. Br. at 11-13; P. Reply at 6-7. Petitioner argues that because Resident 2 was unable to achieve an erection due to erectile dysfunction he could not have sexually assaulted Resident 1. Petitioner Br. at 4-6. Petitioner argues that law enforcement did not investigate or prosecute Resident 2 as evidence that no assault occurred. Petitioner Br. at 8. Petitioner’s arguments do not rebut the CMS prima facie case and are no defense. Whether or not LPN Baldwin’s account of the incident is credible or not is not the issue. Once the allegation was made, Petitioner was required by 42 C.F.R. § 483.13(c) to ensure that the residents were protected, the alleged incident was reported to the administrator and the state agency, and a complete investigation was conducted. The evidence shows that Petitioner failed to take the required actions under the regulation until the surveyors entered the facility on February 12, 2015, prompted by LPN Baldwin’s complaint to the state agency. Whether Resident 2 could achieve an erection and the fact that he was not investigated by law enforcement or prosecuted, may be facts to be addressed in the detailed investigation required by 42 C.F.R. § 483.13(c)(4) and reported to the state agency within five working days. However, those facts, even if true, did not excuse Petitioner’s failure to act upon LPN Baldwin’s allegation of potential resident abuse.

Petitioner does not deny that DCS Terlecky did not document the findings of her investigation, report to the facility administrator, or report to the state agency. Petitioner argues that her investigation was to determine whether there was an allegation of abuse and there is no requirement that that inquiry be documented and no risk for harm due to her failure. Petitioner argues that the failure to report to the state agency should be excused because DCS Terlecky was reasonable in believing there was no allegation of abuse and the failure to report did not cause immediate jeopardy. P. Reply at 4-5. Petitioner’s arguments reveal a fundamental misunderstanding of its duties under 42 C.F.R. § 483.13(c). Petitioner’s duties to its residents under 42 C.F.R. § 483.13(c) are: to act promptly upon an allegation of abuse or neglect to ensure its residents are protected; to report the allegation to the administrator and state authorities; and to complete a thorough investigation that is delivered to the state within five working days, with a copy of the report retained to prove Petitioner complied with the regulatory requirements. DCS Terlecky’s failure to recognize a potential allegation of abuse and her failure to understand and execute her duties as required by the law are not excusable. Indeed, DCS Terlecky’s failures, particularly given her position, are good evidence that

**Page 27**

Petitioner had not adequately implemented its policy required by 42 C.F.R. § 483.13(c), and the failure was systemic in that DCS Terlecky was responsible for ensuring her staff was trained and that she was capable of fulfilling her role as the designated abuse coordinator for Petitioner.

The surveyors allege on the foregoing facts that Petitioner did violate 42 C.F.R. § 483.13(c) because Petitioner failed to implement written policies and procedures prohibiting abuse, neglect, and mistreatment of residents and the misappropriation of resident property. The violation is cited under Tag F226 and is alleged to have posed immediate jeopardy. The SOD indicates the Petitioner failed to develop and implement policies to report and investigate sexual abuse of a resident who was cognitively impaired (Resident 1). CMS Ex. 1 at 42-60.

In examining whether a facility has implemented policies and procedures prohibiting abuse, neglect, mistreatment, and misappropriation, the Board has held that the issue under 42 C.F.R. § 483.13(c) is, “whether the circumstances presented, viewed as a whole, demonstrate a systemic problem in implementing policies and procedures” to prevent abuse. *Columbus Nursing & Rehab. Ctr.*, DAB No. 2247 at 27 (2009) (citing *Liberty Nursing & Rehab Center – Johnston*, DAB No. 2031 at 14 (2006), *aff’d*, *Liberty Commons Nursing & Rehab Ctr. – Johnston v. Leavitt*, 241 F. App’x 76 (4th Cir. 2007)). There is no dispute that Petitioner had a policy. CMS Ex. 10. However, I conclude that the facts I have found related to the allegation of abuse based on the alleged incident involving Residents 1 and 2, clearly show that Petitioner had a systemic failure to implement the policies and procedures required by 42 C.F.R. § 483.13(c). The facts show that LPN Baldwin and LPN Waters understood that there was potential abuse, and that their obligation under Petitioner’s policy and the regulation was to report to DCS Terlecky. However, it was DCS Terlecky who failed to act in accordance with Petitioner’s policy and the federal regulation. DCS Terlecky failed to recognize an allegation of potential abuse and report and protect the residents involved. Considering DCS Terlecky’s positions as both the DCS and abuse coordinator, a preponderance of the evidence shows that Petitioner failed to adequately implement its policy and the failure was systemic.8 Petitioner’s failure to implement its policies and procedures posed a risk

**Page 28**

for more than minimal physical or mental harm due to potential abuse, neglect, and mistreatment of Petitioner’s residents.

**4. Petitioner violated 42 C.F.R. § 483.25(h) (Tag F323) and the violation posed a risk for more than minimal harm.**

The surveyors allege in the SOD that Petitioner violated 42 C.F.R. § 483.25(h) and the violation posed immediate jeopardy. CMS Ex. 1 at 60-74. The surveyors allege that Petitioner knew that Resident 1 exhibited “sexualized behaviors,” she was severely cognitively impaired, and Petitioner failed to protect her. CMS Ex. 1 at 60. The surveyors also allege that Petitioner failed to protect Resident 1 from accidental harm. The regulation requires:

(h) *Accidents*. The facility must ensure that—

(1) The resident environment remains as free of accident hazards as is possible; and

(2) Each resident receives adequate supervision and assistance devices to prevent accidents.

42 C.F.R. § 483.25(h).

The Board has provided interpretative guidance for adjudicating alleged violations of 42 C.F.R. § 483.25(h)(1):

The standard in section 483.25(h)(1) itself – that a facility “ensure that the environment is as free of accident hazards as possible” in order to meet the quality of care goal in section 483.25 – places a continuum of affirmative duties on a facility. A facility must determine whether any condition exists in the environment that could endanger a resident’s safety. If so, the facility must remove that condition if possible, and, when not possible, it must take action to protect residents from the danger posed by that condition. [Footnote omitted.] If a facility has identified and planned for a hazard and then failed to follow its own plan, that may be sufficient

**Page 29**

to show a lack of compliance with [the] regulatory requirement.  In other cases, an ALJ may need to consider the actions the facility took to identify, remove, or protect residents from the hazard. Where a facility alleges (or shows) that it did not know that a hazard existed, the facility cannot prevail if it could have reasonably foreseen that an endangering condition existed either generally or for a particular resident or residents.

*Maine Veterans’ Home – Scarborough*, DAB No. 1975 at 6-7 (2005).

The Board has also explained the requirements of 42 C.F.R. § 483.25(h)(2) in numerous decisions. *Golden Living Ctr. – Riverchase*, DAB No. 2314 at 7-8 (2010); *Eastwood Convalescent Ctr*., DAB No. 2088 (2007); *Century Care of Crystal Coast*, DAB No. 2076 (2007*), aff’d*, 281 F. App’x 180 (4th Cir. 2008); *Liberty Commons Nursing and Rehab. – Alamance*, DAB No. 2070 (2007); *Golden Age Skilled Nursing & Rehab. Ctr.*, DAB No. 2026 (2006); *Estes Nursing Facility Civic Ctr.*, DAB No. 2000 (2005); *Northeastern Ohio Alzheimer’s Research Ctr.*, DAB No. 1935 (2004); *Woodstock Care Ctr.*, DAB No. 1726 (2000), *aff’d**, Woodstock Care Ctr. v. Thompson*, 363 F.3d 583 (6th Cir. 2003). The regulation does not make a facility strictly liable for accidents that occur, but it does require that a facility take all reasonable steps to ensure that a resident receives supervision and assistance devices that meet his or her assessed needs and mitigates foreseeable risks of harm from accidents. *Woodstock Care Ctr. v. Thompson*, 363 F.3d at 589 (noting a SNF must take “all reasonable precautions against residents’ accidents”). A facility is permitted the flexibility to choose the methods of supervision it uses to prevent accidents, but the chosen methods must be adequate under the circumstances. Whether supervision is “adequate” depends in part upon a resident’s ability to protect him or herself from harm. * Id*. Based on the regulation and the cases in this area, CMS meets its burden to show a prima facie case, if the evidence demonstrates that the facility failed to provide adequate supervision and assistance devices to prevent accidents, given what was reasonably foreseeable. *Alden Town Manor Rehab. & HCC*, DAB No. 2054 at 5-6, 7-12 (2006). An “accident” is an unexpected, unintended event that can result in injury of a resident. It does not include adverse outcomes that are a direct consequence of treatment or care provided in accordance with current standards of practice (e.g., drug side effects or reactions). *Woodstock Care Ctr*., DAB No. 1726 at 4. Neither the regulations nor Board decisions suggest that a resident may not pose an accident hazard to himself or herself or others.

The parties expended fair energy arguing about whether Petitioner should have known that Resident 1 had the proclivity to engage in sexual activity and taken steps to protect Resident 1 from accidental injury associated with such activity. Resident 1’s care plan is evidence that Petitioner knew sometime prior to February 9, 2015, that she made sexual comments. CMS Ex. 5 at 87, 88. However, after LPN Baldwin’s report of alleged sexual

**Page 30**

activity by Resident 1, who was repeatedly evaluated as having poor insight and judgment and was evaluated as having modified independence for decision-making, Petitioner was on notice that there was a need to protect Resident 1 from accidental injury related to such activity. CMS Ex. 5 at 10-11, 12-13; P. Ex. 10 at 38-43. As of February 9, 2015, Petitioner was on notice of the need to assess Resident 1 and develop interventions to avoid accidental injury associated with sexual activity, both emotional and physical injuries. Further, on February 9, 2015, Petitioner was on notice that Resident 2 reportedly engaged in sexual activity with Resident 1. Petitioner’s staff could not know immediately whether the conduct actually occurred, whether it was consensual, or whether it was forced upon Resident 1 by Resident 2, or vice versa. Petitioner’s staff should have realized they lacked this information and taken steps to ensure that Resident 2 did not cause accidental injury to either Resident 1 or any other resident. Resident 2 was a potential accident hazard and Petitioner’s staff needed to take immediate action to ensure he did not cause accidental injury to any resident, including himself. Petitioner took no action to protect either Resident 1 or 2 or other residents until after the surveyors arrived on February 12, 2015, and began asking questions. CMS Ex. 5 at 24, 30-31, 34-35, 86-87, 112, 134-37; CMS Ex. 6 at 5-7, 9-10, 23-24, 85, 97-100.

I conclude that Petitioner violated 42 C.F.R. § 483.25(h)(2) and the violation amounted to noncompliance because it posed a risk for more than minimal harm for Petitioner’s residents as alleged by the surveyors.

**5. Petitioner violated 42 C.F.R. § 483.10(b)(11) (Tag F157) and the violation posed a risk for more than minimal harm.**

The surveyors allege in the SOD that Petitioner violated 42 C.F.R. § 483.10(b)(11) (Tag F157). CMS Ex. 1 at 1-4. I conclude that CMS made a prima facie showing that Petitioner violated 42 C.F.R. § 483.10(b)(11) in the case of Resident 1 and Resident 2 and that the violation posed a risk for more than minimal harm. I further conclude that Petitioner failed to rebut the prima facie showing.

A long-term care facility such as Petitioner is required to recognize certain resident rights specified by the Act and the Secretary’s regulations. The regulations require:

(11) *Notification of changes*. (i) A facility must immediately inform the resident; consult with the resident’s physician; and if known, notify the resident’s legal respresentative [sic] or an interested family member when there is –

(A) An accident involving the resident which results in injury and has the potential for requiring physician intervention;

**Page 31**

(B) A significant change in the resident’s physical, mental, or psychosocial status (i.e., a deterioration in health, mental, or psychosocial status in either life-threatening conditions or clinical complications);

(C) A need to alter treatment significantly (i.e., a need to discontinue an existing form of treatment due to adverse consequences, or to commence a new form of treatment); or

(D) A decision to transfer or discharge the resident from the facility as specified in Sec. 483.12(a).

42 C.F.R. § 483.10(b)(11)(i). The language of the regulation is very specific that the facility “must immediately inform the resident; consult with the resident’s physician; and . . . notify the resident’s legal respresentative [sic] or an interested family member.” 42 C.F.R. § 483.10(b)(11)(i). The regulation creates a distinction between informing the resident and family and the requirement that Petitioner “must immediately . . . consult with the resident’s physician” when there is: a significant change in the resident’s physical, mental, or psychosocial status (meaning a deterioration in the resident’s condition); an accident that may require physician intervention; a need to alter treatment; or a decision to transfer or discharge the resident to another facility or institution. *Id*. It is clear from the regulatory language that the requirement to consult is not discretionary and requires more than merely informing or notifying the physician. The preamble to the final rule reflects the drafters’ specific intent that the facility should “inform” the resident of the changes that have occurred but should “consult with the physician about actions that are needed.” 56 Fed. Reg. 48,826, 48,833 (Sept. 26, 1991).

Thus, it is clear from the language of the regulation and its history that the requirement of the regulation to consult with the physician means more than to simply notify the physician. Consultation implies the requirement for a dialogue with and a responsive directive from the resident’s physician as to what actions are needed; it is not enough to merely notify the physician. Nor is it enough to leave a message for the physician. The regulation also requires notification and consultation “immediately” upon perceiving a change in condition of the resident, the occurrence of an accident that may require physician intervention, or the occurrence of any of the other triggers in the regulation. The use of the term “immediately” in the regulatory requirement indicates that consultation is expected to be done as soon as the change is detected, without any intervening interval of time. It does not mean that the facility can wait hours or days before notification of the resident and his or her representative and consultation with the physician. The preamble to the final rule indicates that originally the proposed rule granted the facility up to 24 hours in which to consult with the resident’s physician and to notify the legal representative or family. However, after the receipt of comments that

**Page 32**

time is of the essence in such circumstances, the final rule amended that provision to require that the physician be consulted and the legal representative or family be notified immediately. 56 Fed. Reg. 48,826, 48,833 (Sept. 26, 1991). The point of using the word “immediately” is to recognize that in such situations, a delay could result in a situation where a resident is beyond recovery or dies. The Board has been consistent in its interpretation of the regulation that consultation with a physician must occur immediately; that is, without delay, after a significant change is detected or observed. *Magnolia Estates Skilled Care*, DAB No. 2228 at 9 (2009).

Furthermore, if we balance the relative inconvenience to a physician and the facility staff to consult with the possibility for dire consequences to the resident if the physician is not consulted, it seems that any inconvenience to the physician or facility certainly is inconsequential and outweighed by the potential for significant harm if the facility fails to consult the physician. The regulation is entitled “Resident rights,” and the requirements of this specific regulation provide that every resident has the right to a dignified existence and access to and communication with persons and services inside and outside the facility. Therefore, the regulatory requirements make inconsequential any inconvenience under the regulation to the resident’s physician or the facility staff when compared to the protection and facilitation of the rights of the resident. *See* 56 Fed. Reg. 48,826, 48,834. Finally, the regulation does not allow the facility to pick and choose whom to notify and whom to consult. Rather, it requires the facility to immediately inform the resident, consult the physician, and notify the resident’s legal representative or interested family member. The regulation also directly burdens the facility to consult and notify and does not permit a facility to rely upon a notification or consultation being accomplished by the resident or a third-party such as an emergency room.

The surveyors allege in the SOD for the survey completed on February 17, 2015, that Petitioner violated 42 C.F.R. § 483.10(b)(11), which amounted to noncompliance under Tag F157, because Petitioner’s staff failed to immediately consult the physicians and notify the families of Residents 1 and 2 of the alleged sexual activity between those residents. CMS Ex. 1 at 2.

The first question is whether the notice and consultation requirements of 42 C.F.R. § 483.10(b)(11) are even triggered in this case. The requirements of the regulation are only triggered by the four specific circumstances described in the regulation: (1) the resident was injured in an accident and potentially requires physician intervention; (2) there has been a significant change in the resident’s physical, mental, or psychosocial status that is either life-threatening conditions or involves clinical complications; (3) there is a need to significantly alter treatment; or (4) there is a decision to transfer or discharge the resident from the facility. This case does not involve a decision to transfer or discharge a resident, though there is evidence that Ms. McCurdy did discuss with Resident 2’s family the possibility of moving him to an assisted living facility (CMS Ex. 6) and Resident 2 was moved to the locked unit of another facility (CMS Ex. 19 at 4).

**Page 33**

I conclude however that it was appropriate to treat the incident like an accident with potential injury that required physician intervention. DCS Terlecky determined on February 9, 2015, that if a sex act occurred, it was between two consenting adults even though the resident files placed in evidence do not show that either resident had been evaluated physically or mentally to determine whether engaging in sexual activity could cause physical or mental injury. According to DCS Terlecky and Petitioner, there was no history of such activity by either resident. Therefore, when the allegation of such activity was made, Petitioner’s staff should have identified that such an act, if it did occur, could have resulted in physical or mental harm that required intervention by the residents’ physicians. I also conclude that the alleged incident, if true, could have marked a significant change in the residents’ conditions that could involve clinical complications. Immediate consultation with the residents’ physicians was necessary to evaluate whether the alleged act did reveal a significant change and whether alteration in either resident’s treatment was required. Based on the facts of this case, I conclude that 42 C.F.R. § 483.10(b)(11) was triggered and immediate consultation with the residents’ physicians and immediate notification of family or legal representatives was required.

The preponderance of the evidence shows that the residents’ physicians were not immediately consulted following the incident that occurred between about 1:15 p.m. and 1:30 p.m. on February 9, 2015. Accordingly, there was a violation of 42 C.F.R. § 483.10(b)(11).

Resident 1’s physician, Dr. Chung, in an unsworn statement dated February 13, 2015, states that he was notified of the incident on February 9, 2015, but he does not specify the time. CMS Ex. 13. The notification of Dr. Chung is not noted in the clinical record for Resident 1 in evidence. Dr. Chung’s statement was obtained during the survey. Furthermore, that is no evidence that Dr. Chung was actually consulted on February 9, 2015, about care and services Resident 1 might require for any mental or physical injury if sex acts actually occurred. There is also no evidence that Resident 1 was medically and psychologically evaluated by her physician or the interdisciplinary care team to determine whether engaging in sexual activity was consistent with enhancing her quality of life (42 C.F.R. § 483.15) or her attaining and maintaining the highest practicable physical, mental, and psychosocial well-being in accordance with her comprehensive assessment and plan of care (42 C.F.R. § 483.25). Nevertheless, Resident 1’s care plan was updated on February 10, 2015, to provide that she be redirected if found performing sex acts, unless both parties were in agreement. CMS Ex. 5 at 85.

Petitioner offered no evidence that Resident 2’s physician was consulted on February 9, 2015. There is no evidence that Resident 2’s physician assessed whether, if a sex act occurred, Resident 2 was mentally or emotionally injured. There is also no evidence that Resident 2 was medically and psychologically evaluated by his physician or the interdisciplinary care team to determine whether engaging in sexual activity was consistent with enhancing his quality of life (42 C.F.R. § 483.15) or his attaining and

**Page 34**

maintaining the highest practicable physical, mental, and psychosocial well-being in accordance with his comprehensive assessment and plan of care (42 C.F.R. § 483.25). Nevertheless, Resident 2’s care plan was updated to provide that he be redirected if found performing sex acts, unless both parties were in agreement. CMS Ex. 6 at 23-24.

The evidence shows that Resident 2’s family was notified of the alleged incident at about 2:35 p.m. on February 9, 2015, by Ms. McCurdy. However, the evidence shows that Ms. McCurdy called Resident 1’s daughter at about 2:30 p.m. on February 9, 2015, and had to leave a message, the content of which is not reflected in the evidence. Resident 1 had two other emergency contacts listed in her records but the evidence does not show that Ms. McCurdy attempted to contact them. CMS Ex. 5 at 1, 113-14. However, on February 13, 2015, a daughter-in-law who was also an emergency contact, called Ms. McCurdy who advised her about the incident. CMS Ex. 5 at 114. The regulation, 42 C.F.R. § 483.10(b)(11)(i), requires immediate notification of family or legal representative. The evidence shows notification of Resident 2’s family in just over an hour from the report of the incident, and I accept that as satisfactory under the regulation. However, the notice to Resident 1’s family was delayed roughly four days because Ms. McCurdy left a message on February 9, 2015, and failed to call other emergency contacts listed in Resident 1’s records. I do not accept that a four-day delay in notification is immediate notification as required by the regulation.

I conclude that the violation of 42 C.F.R. § 483.10(b)(11) posed a risk for more than minimal harm without actual harm or immediate jeopardy.

**6. Petitioner has not met its burden to show that the declaration of immediate jeopardy from February 9 through March 9, 2015, related to the noncompliance with 42 C.F.R. §§ 483.13(c) (Tags F224 and F226), and 42 C.F.R. § 483.13(c)(2), (3), (4) (Tag F225) and 483.25(h) (Tag F323), was clearly erroneous.**

The surveyors alleged in the SOD and CMS argues before me that the noncompliance under Tags F224, F225, F226, and F323 posed immediate jeopardy from February 9 through March 9, 2015. The CMS determination of immediate jeopardy must be upheld, unless Petitioner shows the declaration of immediate jeopardy to be clearly erroneous. 42 C.F.R. § 498.60(c)(2). CMS’s determination of immediate jeopardy is presumed to be correct, and Petitioner has a heavy burden to demonstrate clear error in that determination. *Yakima Valley Sch.*, DAB No. 2422 at 8-9 (2011); *Cal Turner Extended Care Pavilion*, DAB No. 2384 at 14 (2011); *Brian Ctr. Health & Rehab./Goldsboro*, DAB No. 2336 at 9 (2010) (*citing**Barbourville Nursing Home*, DAB No. 1962 at 11 (2005)), *aff’d, Barbourville Nursing Home v. U.S. Dep’t of Health & Human Servs.*, 174 F. App’x 932 (6th Cir. 2006); *Maysville Nursing & Rehab. Facility*, DAB No. 2317 at 11 (2010); *Liberty Commons Nursing & Rehab Ctr. – Johnston*, DAB No. 2031 at 18-19 (2006), *aff’d, Liberty Commons Nursing & Rehab. Ctr. – Johnson v. Leavitt*, 241

**Page 35**

F. App’x 76 (4th Cir. 2007). Once CMS presents evidence supporting a finding of noncompliance, CMS does not need to offer evidence to support its determination that the noncompliance constitutes immediate jeopardy. Rather, the burden is on the facility to show that that determination is clearly erroneous. *Cal Turner Extended Care Pavilion*, DAB No. 2384 at 14-15; *Liberty Commons Nursing & Rehab. Ctr. – Johnston*, 241 F. App’x 76 at 3-4.

Immediate jeopardy as used in the regulations refers to “a situation in which the provider’s noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.” 42 C.F.R. §§ 488.301, 489.3. In the context of survey, certification, and enforcement related to SNFs and NFs under the regulations, a conclusion by the state agency and CMS that noncompliance with program participation requirements poses immediate jeopardy to the facility residents, triggers specific regulatory provisions that require enhanced enforcement remedies, including authority for CMS to impose a larger CMP than may be imposed when there is no declaration of immediate jeopardy. 42 C.F.R. §§ 488.408(e), 488.438(a)(1)(i), (c), and (d). The regulations also require termination of the facility’s provider agreement on an expedited basis or the removal of the immediate jeopardy through appointment of temporary management. 42 C.F.R. §§ 488.410, 488.440(g), 488.456, 489.53(d)(2)(B)(ii).

Pursuant to 42 C.F.R. § 498.3(d)(10), a finding by CMS that deficiencies pose immediate jeopardy to the health or safety of a facility’s residents is not an initial determination that triggers a right to request a hearing by an ALJ or that is subject to review. Rather, a finding of noncompliance that results in the imposition of an enforcement remedy, except the remedy of monitoring by the state, does trigger a right to request a hearing and is subject to review. 42 C.F.R. §§ 488.408(g); 498.3(b)(8) and (13). Furthermore, the level of noncompliance, i.e., scope and severity, is subject to review only if a successful challenge would: (1) affect the amount of CMP that may be imposed, i.e., the higher range of CMP authorized for immediate jeopardy; or (2) affect a finding of substandard quality of care that rendered the facility ineligible to conduct a NATCEP. 42 C.F.R. § 498.3(b)(14) and (16). Pursuant to 42 C.F.R. § 498.60(c)(2), in reviewing a CMP, the ALJ must uphold the CMS determination of the level of noncompliance (i.e., the scope and severity), unless it is clearly erroneous.

Many appellate panels of the Board have addressed “immediate jeopardy.”9 In *Mississippi Care Ctr. of Greenville*, DAB No. 2450 at 15 (2012), the Board commented:

**Page 36**

CMS’s determination that a deficiency constitutes immediate jeopardy must be upheld unless the facility is able to prove that the determination is clearly erroneous. 42 C.F.R. § 498.60(c)(2); *Woodstock Care Center*. The “clearly erroneous” standard means that CMS’s immediate jeopardy determination is presumed to be correct, and the burden of proving the determination clearly erroneous is a heavy one. *See, e.g.,**Maysville Nursing & Rehabilitation Facility*, DAB No. 2317, at 11 (2010); *Liberty Commons Nursing and Rehab Center — Johnston*, DAB No. 2031, at 18 (2006), *aff’d*, *Liberty Commons Nursing and Rehab Ctr. — Johnston v. Leavitt*, 241 F. App’x 76 (4th Cir. 2007). When CMS issued the nursing facility survey, certification, and enforcement regulations, it acknowledged that “distinctions between different levels of noncompliance . . . do not represent mathematical judgments for which there are clear or objectively measured boundaries.” 59 Fed. Reg. 56,116, 56,179 (Nov. 10, 1994). “This inherent imprecision is precisely why CMS’s immediate jeopardy determination, a matter of professional judgment and expertise, is entitled to deference.” *Daughters of Miriam Center*, DAB No. 2067, at 15 (2007).

The Board’s statement that the CMS immediate jeopardy determination is entitled to deference is subject to being misunderstood to limit ALJ and Board review of immediate jeopardy beyond what was intended by the drafters of the regulations. In the notice of final rulemaking on November 10, 1994, the drafters of 42 C.F.R. § 498.60(c)(2), discussing the merits of the reviewability of deficiency citations, selection of remedy, and scope and severity, commented:

We believe that a provider’s burden of upsetting survey findings relating to the level of noncompliance should be high, however. As we indicated in the proposed rule, distinctions between different levels of noncompliance, whether measured in terms of their frequency or seriousness,

**Page 37**

do not represent mathematical judgments for which there are clear or objectively measured boundaries. Identifying failures in a facility’s obligation to provide the kind of high quality care required by the Act and the implementing regulations most often reflect judgments that will reflect a range of noncompliant behavior. Thus, in civil money penalty cases, whether deficiencies pose immediate jeopardy, or are widespread and cause actual harm that is not immediate jeopardy, or are widespread and have a potential for more than minimal harm that is not immediate jeopardy does not reflect that a precise point of noncompliance has occurred, but rather that a range of noncompliance has occurred which may vary from facility to facility. While we understand the desire of those who seek the greatest possible consistency in survey findings, an objective that we share, the answer does not lie in designing yardsticks of compliance that can be reduced to rigid and objectively calculated numbers. Survey team members and their supervisors ought to have some degree of flexibility, and deference, in applying their expertise in working with these less than perfectly precise concepts. **For these reasons, we have revised the regulations to require an administrative law judge or appellate administrative review authority to uphold State or HCFA findings on the seriousness of facility deficiencies in civil money penalty cases unless they are clearly erroneous.**

59 Fed. Reg. at 56,179 (emphasis added). It is clear from this regulatory history that the drafters of 42 C.F.R. § 498.60(c)(2) ensured that the state agency or CMS determination that there was immediate jeopardy would receive deferential consideration, by adopting the clearly erroneous standard of review. Thus, caution must be exercised to ensure that the Board’s decisions in *Mississippi Care Ctr. of Greenville*, *Daughters of Miriam Ctr.*, and other decisions that have mentioned deference relative to immediate jeopardy not be read to require deference for the determination that there was immediate jeopardy beyond that imposed by adoption of the clearly erroneous standard. DAB No. 2450 at 15; DAB No. 2067 at 15. Giving or requiring that the immediate jeopardy determination be given deference in addition to applying the “clearly erroneous standard” would be contrary to the intent of the drafters of the regulation; would significantly limit the review of the determination by an ALJ and the Board; and would impermissibly deny an affected party the due process right to review intended by the drafters of the regulation.

In the foregoing quotation from *Mississippi Care Ctr. of Greenville*, that panel of the Board states that the clearly erroneous standard means that “the immediate jeopardy

**Page 38**

determination is presumed to be correct, and the burden of proving the determination clearly erroneous is a heavy one.” DAB No. 2450 at 15. Similar formulations have been used in other Board decisions when referring to the “clearly erroneous standard.” However, the Board’s characterization of the “clearly erroneous standard” in *Mississippi Care Ctr.* and other cases does not define the standard. The “clearly-erroneous standard” is described in Black’s Law Dictionary as a standard of appellate review applied in judging the trial court’s treatment of factual issues, under which a factual determination is upheld unless the appellate court has the firm conviction that an error was committed. *Black’s Law Dictionary* 269 (8th ed. 2004). The Supreme Court has addressed the “clearly erroneous standard” in the context of the Administrative Procedures Act (APA). The Court described the preponderance of the evidence standard, the most common standard, as requiring that the trier-of-fact believe that the existence of a fact is more probable than not before finding in favor of the party that had the burden to persuade the judge of the fact’s existence. *In re Winship*, 397 U.S. 358, 371-72 (1970) (Harlan, J., concurring); *Concrete Pipe & Products of California, Inc. v. Construction Laborers*, 508 U.S. 602, 622 (1993). The “substantial evidence” standard considers whether a reasonable mind might accept a particular evidentiary record as adequate to support a conclusion. *Consolidated Edison Co. of New York v. Nat’l Labor Relations Bd.*, 305 U.S. 197, 229 (1938); *Dickinson v. Zurko*, 527 U.S. 150, 162 (1999). Under the “clearly erroneous” standard, a finding is clearly erroneous even though there may be some evidence to support it if, based on all the evidence, the reviewing judge or authority has a definite and firm conviction that an error has been committed. *United States v. United States Gypsum Co.*, 333 U.S. 364, 395 (1948); *Dickinson*, 527 U.S. at 162; *Concrete Pipe*, 508 U.S. at 622. The clearly erroneous standard has been characterized by the Court as being stricter than the substantial evidence test and significantly deferential. The Court stressed in discussing the clearly erroneous standard the importance of not simply rubber-stamping agency fact-finding. The Court also commented that the APA requires meaningful review.10* Dickinson*, 527 U.S. at 162 (citations omitted); *Concrete Pipe*, 508 U.S. at 622-23.

Various panels of the Board have recognized other principles applicable to the review of the immediate jeopardy issue. A finding of immediate jeopardy does not require a

**Page 39**

finding of actual harm, only a likelihood of serious harm. *Dumas Nursing & Rehab., L.P.*, DAB No. 2347 at 19, (citing*Life Care Ctr. of Tullahoma*, DAB No. 2304 at 58 (2010), *aff’d, Life Care Ctr. of Tullahoma v. Secretary of U.S. Dep’t of Health & Human Servs.*, 453 F. App’x 610)). The definition of immediate jeopardy at 42 C.F.R. § 488.301, does not define “likelihood” or establish any temporal parameters for potential harm. *Agape Rehab. of Rock Hill*, DAB No. 2411 at 18-19 (2011). The duration of the period of immediate jeopardy is also subject to the clearly erroneous standard. *Brian Ctr. Health & Rehab./Goldsboro*, DAB No. 2336 at 7-8. There is a difference between “likelihood” as required by the definition of immediate jeopardy and a mere potential. The synonym for likely is probable, which suggests a greater degree of probability that an event will occur than suggested by such terms as possible or potential. *Daughters of Miriam Ctr.*, DAB No. 2067 at 10. Jeopardy generally means danger, hazard, or peril. The focus of the immediate jeopardy determination is how imminent the danger appears and how serious the potential consequences. *Woodstock Care Ctr.*, DAB No. 1726.

What is the meaning of serious injury, harm, or impairment as used in the definition of immediate jeopardy found in 42 C.F.R. § 488.301? How does serious injury, harm, or impairment compare with “actual harm?” On the first question the Board recognized in *Yakima Valley Sch.*, DAB No. 2422 at 8, that the regulations do not define or explain the meaning of the term “serious” as used in the definition of immediate jeopardy.11 The Board suggested that the definitions may be unimportant because the Board has held that, under the clearly erroneous standard, once the state agency or CMS declares immediate jeopardy there is a presumption that the actual or threatened harm was serious and the facility can only rebut the presumption of immediate jeopardy by showing that the harm or threatened harm meets no reasonable definition of the term “serious.” *Id.* (citing*Daughters of Miriam Ctr.*, DAB No. 2067 at 9). In *Daughters of Miriam Ctr.*, the Board discussed that the ALJ attempted in that case to define “serious,” finding meanings such as dangerous, grave, grievous, or life-threatening. The Board noted that the ALJ stated

**Page 40**

that serious harm is outside the ordinary, requiring extraordinary care, or having lasting consequences. The Board further noted that the ALJ stated that a serious injury may require hospitalization, or result in long-term impairment, or cause severe pain, as opposed to harm, injury, or impairment that is temporary, easily reversible with ordinary care, does not cause a period of incapacitation, heals without special medical intervention, or does not cause severe pain. The Board did not endorse or adopt the ALJ’s definitional exercise but concluded that it was simply unnecessary in the context of that case. The Board reasoned, as already noted, that the facility bore the burden to rebut the presumption by showing that the actual or threatened harm met no reasonable definition of serious. *Daughters of Miriam Ctr.*, DAB No. 2067 at 9-10.

Applying the clearly erroneous standard to the record before me related to the noncompliance I have found based on the violations of 42 C.F.R. §§ 483.13(c), 483.13(c)(2)-(4), and 483.25(h), I have no definite and firm conviction that an error has been committed in the determination that immediate jeopardy existed from February 9, 2015, through March 9, 2015.

Petitioner has the burden to establish the declaration of immediate jeopardy was clearly erroneous, but Petitioner offered no qualified expert testimony or significant scientifically based evidence in support of its argument that there was no immediate jeopardy. On the facts of this case, expert or other credible scientific or medical evidence would have been required to show that the declaration of immediate jeopardy was clearly erroneous.

DCS Terlecky failed to recognize and treat LPN Baldwin’s report as a report of possible abuse of residents. Petitioner’s administrator and the state agency were not immediately notified. Petitioner’s residents were not protected from further potential abuse and were not provided supervision to ensure no abuse would occur. The residents’ physicians were not immediately consulted to determine what assessments and care and services were necessary to address either potential physical or emotional injury. Without proper assessment both resident care plans were modified to allow them to engage in sexual activity if they agreed and they were to be provided privacy to engage in such acts. Only after LPN Baldwin filed her complaint with the state agency and the agency surveyors entered the facility on February 12, 2015, three days after the alleged incident, did Petitioner’s staff begin the process of assessing the residents, developing interventions, and conducting an adequate investigation. Petitioner’s failures clearly created a situation that could foster abuse and serious injury or harm to residents. Petitioner’s failure to properly investigate and immediately report the abuse allegation prevented the state agency from conducting an independent investigation and taking any action necessary to protect the residents. Petitioner has not presented convincing evidence showing that there was no likelihood for serious injury, harm, impairment, or death on account of its violations. Accordingly, I conclude that Petitioner has failed to show that the declaration of immediate jeopardy based on the violations of 42 C.F.R. §§ 483.13(c), 483.13(c)(2)-(4), and 483.25(h) was clearly erroneous.

**Page 41**

Petitioner argues that if there was immediate jeopardy, it was abated as of February 18, 2015, rather than March 9, 2015, as determined by the surveyors. Alternatively, Petitioner argues that if it is concluded it failed to abate immediate jeopardy as of February 18, 2015, that was caused by the CMS failure to provide Petitioner adequate notice of the facts that were the bases for the immediate jeopardy determination. Petitioner asserts adequate notice was not given until Petitioner received the SOD on March 3, 2015. Petitioner admits it received a state agency letter on February 17, 2015, but it only mentioned noncompliance under Tags F225 and F226 at the level of immediate jeopardy and there was no summary of the facts upon which the allegations were based. Petitioner argues it is unreasonable to expect it to abate immediate jeopardy when it is not on notice of the facts underlying the allegation until March 3, 2015, when it received the SOD. P. Reply at 10-11. Petitioner’s argument that it could not abate immediate jeopardy until it was informed of the factual bases for the declaration of immediate jeopardy by receipt of the SOD is without merit in this case. The evidence shows significant if not extensive communication between Petitioner’s staff and surveyors during and after the survey including explanation of the bases for the surveyors’ decision to declare immediate jeopardy. CMS Exs. 24, 27.

**7. A CMP of $7,000 per day from February 9, 2015, through March 9, 2015; a CMP of $100 for March 10, 2015; and a DPNA from March 5 through March 10, 2015, are reasonable enforcement remedies.**

I have concluded that Petitioner violated 42 C.F.R. §§ 483.10(b)(11), 483.13(c), (c)(2), (3), and (4), and 42 C.F.R. § 483.25(h) and that the violations were noncompliance because they posed a risk for more than minimal harm to one or more facility residents. I have also concluded that Petitioner has failed to show that the declaration of immediate jeopardy for noncompliance with 42 C.F.R. §§ 483.13(c) and (c)(2), (3), and (4) and 483.25(h) was clearly erroneous during the period February 9 through March 9, 2015.

Petitioner was cited for continuing noncompliance with 42 C.F.R. §§ 483.10(b)(11), 483.13(c), (c)(2), (3), and (4), and 42 C.F.R. § 483.25(h) by the revisit survey completed on March 10, 2015. The surveyors found that Petitioner abated immediate jeopardy effective March 10, 2015, but continuing noncompliance posed a risk for more than minimal harm without actual harm or immediate jeopardy for one additional day. CMS Ex. 18.

Petitioner argues that, if found not to be in substantial compliance, it returned to substantial compliance with all regulatory requirements no later than March 9, 2015. Petitioner asserts that the revisit survey on March 9, 2015, reviewed only whether Petitioner abated immediate jeopardy and not whether there was continuing noncompliance. RFH at 6-7. Petitioner asserts that as of February 18, 2015, both residents were on one-on-one supervision, police and state authorities had been

**Page 42**

contacted, the residents’ families and physicians had been notified, DCS Terlecky was suspended, staff had received in-service training, and these actions were sufficient to eliminate any risk for harm. P. Br. at 21-24. Petitioner fails to address, however, that in its plan of correction for the revisit survey completed on March 10, 2015, Petitioner alleged it completed its plan of correction as of March 11, 2015. CMS Ex. 18 at 3, 7, 27, 46, 64. CMS accepted the allegation of compliance and determined that Petitioner returned to substantial compliance effective March 11, 2015. CMS Ex. 15 at 1. I accept Petitioner’s statement in its plan of correction that it did not complete correction of the deficiencies until March 11, 2015. The evidence does not persuade me that Petitioner returned to substantial compliance prior to that date.

Petitioner argues that the proposed CMP is unreasonable if there was noncompliance because there was no immediate jeopardy, an argument I have already resolved against Petitioner. Petitioner argues that, even if there was immediate jeopardy, a $7,000 per-day CMP is unreasonable. Petitioner argues that the CMP is a denial of its due process because immediate jeopardy was not declared until February 17, 2015, and then it was not informed of the basis for the declaration of immediate jeopardy so that Petitioner could immediately abate. Petitioner admits that the surveyors did verbally inform staff that the immediate jeopardy related to the incident involving Residents 1 and 2 and Petitioner’s failure to investigate and report. Petitioner also admits that on February 17, 2015, the state agency sent Petitioner a letter that informed Petitioner of two deficiencies that posed immediate jeopardy but not four, and the letter did not describe the factual bases. RFH at 6-7; P. Br. at 21-24. There is also evidence of significant communications between Petitioner’s staff and the surveyors beginning during the survey and thereafter about the deficiency citations and the bases for immediate jeopardy. CMS Exs. 24, 27. Petitioner asserts that it was not until March 3, 2015, that the state agency sent the facility the SOD, which described the factual bases for citing immediate jeopardy for four citations of noncompliance. Petitioner’s arguments that it was denied due process by delayed or late notice of the bases for the immediate jeopardy citation is not persuasive on the issue of the reasonableness of the enforcement remedies. The evidence shows that, while the SOD was not delivered immediately, Petitioner received the SOD within 15 days of the end of the survey and in the interim Petitioner’s staff and counsel were having extensive communications with the survey team. CMS Exs. 24, 27; P. Ex. 13.

When a facility is not in substantial compliance with program requirements, CMS has the authority to impose one or more of the enforcement remedies listed in 42 C.F.R. § 488.406, including a CMP. CMS may impose a per-day CMP for the number of days that the facility is not in compliance or for each instance that a facility is not in substantial compliance, whether or not the deficiencies pose immediate jeopardy. 42 C.F.R. § 488.430(a).

If I conclude, as I have in this case, that there is a basis for the imposition of an enforcement remedy and the remedy proposed is a CMP, my authority to review the

**Page 43**

reasonableness of the CMP is limited by 42 C.F.R. § 488.438(e). The limitations are, I may: (1) not set the CMP at zero or reduce it to zero; (2) not review the exercise of discretion by CMS in selecting to impose a CMP; and (3) only consider the factors specified by 42 C.F.R. § 488.438(f) when determining the reasonableness of the CMP amount. In determining whether the amount of a CMP is reasonable, the following factors specified at 42 C.F.R. § 488.438(f) must be considered: (1) the facility’s history of non-compliance, including repeated deficiencies; (2) the facility’s financial condition; (3) the seriousness of the deficiencies as set forth at 42 C.F.R. § 488.404(b), the same factors CMS and/or the state were to consider when setting the CMP amount; and (4) the facility’s degree of culpability, including but not limited to the facility’s neglect, indifference, or disregard for resident care, comfort, and safety and the absence of culpability is not a mitigating factor. The factors that CMS and the state were required to consider when setting the CMP amount and that I am required to consider when assessing the reasonableness of the amount are set forth in 42 C.F.R. § 488.404(b): (1) whether the deficiencies caused no actual harm but had the potential for minimal harm, no actual harm with the potential for more than minimal harm, but not immediate jeopardy, actual harm that is not immediate jeopardy, or immediate jeopardy to resident health and safety; and (2) whether the deficiencies are isolated, constitute a pattern, or are widespread. My review of the reasonableness of the CMP is de novo and based upon the evidence in the record before me. I am not bound to defer to the CMS determination of the reasonable amount of the CMP to impose but my authority is limited by regulation as already explained. I am to determine whether the amount of any CMP proposed is within reasonable bounds considering the purpose of the Act and regulations. *Emerald Oaks*, DAB No. 1800 at 10 (2001); *CarePlex of Silver Spring*, DAB No. 1683 at 14–16 (1999); *Capitol Hill Cmty. Rehab. & Specialty Care Ctr.*, DAB No. 1629 (1997).

Petitioner has a history of noncompliance prior to the surveys at issue with a noncompliance cited under Tag F323. CMS Ex. 22. Petitioner has not argued that its financial condition affects its ability to pay the proposed CMP. I conclude that Petitioner’s deficiencies are serious and that Petitioner was culpable. By failing to act in accordance with the law and its policy and procedure, Petitioner risked the physical, emotional, and mental health of all of its residents.

A CMP that is imposed against a facility on a per-day basis will fall into one of two ranges of penalties. 42 C.F.R. §§ 488.408, 488.438. The upper range of a CMP, $3,050 per day to $10,000 per day, is reserved 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). The CMP of $7,000 per day proposed by CMS for the 28 days of immediate jeopardy is in the middle of the authorized range, and I conclude it is reasonable based on my consideration of the regulatory factors. The lower range of CMPs, $50 per day to $3,000 per day, is reserved 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.

**Page 44**

§ 488.438(a)(1)(ii). I conclude that the $100 per-day CMP proposed for March 10, 2015, is reasonable based on the regulatory factors. I also conclude that CMS was authorized to impose a DPNA effective March 5, 2015, through March 10, 2015, and that the DPNA is a reasonable enforcement remedy.

**8. Other issues raised by Petitioner are without merit.**

a. CMS’s authority to collect and hold a proposed CMP in escrow.

Petitioner argues that there is no basis for CMS to hold the proposed CMP in escrow pending a completion of ALJ and Board review; the escrow requirement amounts to an unlawful deprivation of property without due process of law; CMS has made no showing of a risk of nonpayment by Petitioner; the independent informal dispute resolution (IIDR) process (42 C.F.R. §§ 488.331(a)(3), 488.431) is not sufficient due process because CMS frequently ignores the results; and the review process is too long to be effective due process. RFH at 5.

CMS is authorized by 42 C.F.R. § 488.431(b) to collect and place a CMP in escrow pending ALJ review and appeal to the Board. Prior to collection and placement of a proposed CMP amount in escrow, the regulation provides that CMS will offer Petitioner an opportunity for IIDR. 42 C.F.R. § 488.431(a). Petitioner does not argue that it was deprived of the regulatory process specified. Petitioner also does not argue that it received a favorable recommendation from IIDR that was ignored by CMS in proposing the CMP. I conclude that CMS has authority to collect and hold a proposed CMP in escrow. I further conclude that Petitioner was accorded the process due under the regulations. To the extent Petitioner’s goal is to invalidate the regulations, I have no authority to address that argument as I am bound to comply with the regulations. I have no authority to declare regulations of provisions of the Act invalid and refuse to follow them. *1866ICPayday.com, LLC*, DAB No. 2289 at 14 (2009).

b. The intentional withholding of the factual findings by CMS constituted a denial of due process.

Petitioner argues that CMS intentionally failed to timely notify Petitioner of the factual bases for the surveyors’ determination of immediate jeopardy. Petitioner argues that the intentional withholding of information was a violation of survey protocols and Petitioner’s due process because it was not possible for Petitioner to immediately abate immediate jeopardy and correct alleged deficiencies. RFH at 6. Petitioner also argues CMS took an unreasonably long time to review and approve Petitioner’s plan to abate immediate jeopardy. Petitioner argues that CMS acted in bad faith and the remedy is to approve no enforcement remedy and to award attorney fees. RFH at 6.

**Page 45**

Petitioner admits that the surveyors did verbally inform staff that the immediate jeopardy related to the incident involved Residents 1 and 2 and Petitioner’s failure to investigate and report. Petitioner also admits that on February 17, 2015, the state agency sent Petitioner a letter that informed Petitioner of two deficiencies that posed immediate jeopardy, but not four, and the letter did not describe the factual bases. RFH at 6-7, P. Br. at 21-24. There is also evidence of significant communications between Petitioner’s staff and the surveyors beginning during the survey and thereafter about the deficiency citations and the bases for immediate jeopardy. CMS Exs. 24, 27; P. Ex. 13. Petitioner asserts that it was not until March 3, 2015, that the state agency sent the facility the SOD, which described the factual bases for citing immediate jeopardy for four citations of noncompliance. Petitioner’s arguments that it was denied due process by delayed or late notice of the bases for the immediate jeopardy citation is not persuasive on the issue of the reasonableness of the enforcement remedies or as a basis for any reduction of the proposed CMP or other relief. The evidence shows that, while the SOD was not delivered immediately, Petitioner received the SOD within 15 days of the end of the survey, and in the interim Petitioner’s staff and counsel were having extensive communications with the survey team. CMS Exs. 24, 27; P. Ex. 13. Petitioner argues it was prejudiced but does not explain precisely how it was prejudiced by the 15-day delay. Petitioner implies that had it received the SOD sooner it could have abated the immediate jeopardy and possibly corrected the noncompliance sooner. However, Petitioner’s plan of correction for the revisit survey completed on March 10, 2015, alleges that Petitioner completed its plan of correction as of March 11, 2015. CMS Ex. 18 at 3, 7, 27, 46, 64. CMS accepted the allegation of compliance and determined that Petitioner returned to substantial compliance effective March 11, 2015. CMS Ex. 15 at 1. I accept Petitioner’s statement in its plan of correction that it did not complete correction of the deficiencies until March 11, 2015. The evidence does not persuade me that Petitioner returned to substantial compliance prior to that date or that Petitioner suffered any undue prejudice by the 15-day delay in receiving the SOD.

c. Attorney fees.

Petitioner’s request for attorney fees is without merit.

Pursuant to section 1128A(c)(4) of the Act, I may impose sanctions for misconduct of a party, including an award of attorney fees and costs. Petitioner has not specifically requested the imposition of sanctions against CMS or identified any grounds for imposing sanctions. Based on my review of the whole record, I find no misconduct by CMS that would justify the imposition of any sanction.

The only other possible source for attorney fees in this proceeding is under the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504. Attorney fees and expenses are available to a nongovernmental party who prevails in an adversarial adjudication such as this, if the position of the agency is not substantially justified. 5 U.S.C. § 504(a)(1). In this case,

**Page 46**

Petitioner does not prevail on any issue and the agency position was substantially justified for reasons already discussed. Accordingly, I conclude Petitioner is not entitled to an award of attorney fees and expenses.

### III. Conclusion

For the foregoing reasons, I conclude that:

Petitioner was not in substantial compliance with program participation requirements from February 9, 2015, through March 10, 2015, due to violations of 42 C.F.R. §§ 483.10(b)(11); 483.13(c), (c)(2), (3), and (4) and 483.25(h);

The declaration of immediate jeopardy was not clearly erroneous;

Reasonable enforcement remedies are a CMP of $7,000 per day from February 9 through March 9, 2015, a CMP of $100 for March 10, 2015; and a discretionary DPNA effective March 5, 2015, through March 10, 2015; and

Petitioner is not entitled to attorney fees.

Keith W. SickendickAdministrative Law Judge

                                              1. References are to the 2014 revision of the Code of Federal Regulations (C.F.R.), unless otherwise indicated. 
                            - back to note 1
                                                  2. Participation of a nursing facility (NF) in Medicaid is governed by section 1919 of the Act.  Section 1919(h)(2) of the Act gives enforcement authority to the states to ensure that NFs comply with their participation requirements established by sections 1919(b), (c), and (d) of the Act.  SNFs and NFs are commonly referred to as long-term care facilities. 
                            - back to note 2
                                                  3. Congress granted the Secretary authority to impose enforcement remedies for noncompliance.  Act § 1819(h)(2) (42 U.S.C. § 1395i-3(h)(2)).  The Secretary is authorized to impose CMPs as an enforcement remedy by section 1128A of the Act (42 U.S.C. § 1320a-7a).  CMPs are imposed by CMS with delegated authority of the Secretary.  42 C.F.R. § 488.2.  Pursuant to subsection 1128A(j) of the Act, section 205 of the Act (42 U.S.C. § 405) is applicable to the imposition of CMPs, and that section is applicable to the imposition of CMPs by both the Secretary and the Commissioner of Social Security under the authority of section 1128A of the Act.  The Inspectors General (IGs) for both HHS and the Social Security Administration also exercise delegated authority to impose CMPs pursuant to section 1128A of the Act.  Both IGs engaged in rulemaking to specify the allocation of the burden of persuasion and the quantum of evidence required when proceeding upon a case involving a CMP.  Both the SSA IG and the HHS IG imposed upon the government in CMP cases the burden of persuasion on all issues other than affirmative defenses and mitigating factors for which the burden is upon the nongovernmental party.  The regulations of the IGs for SSA and HHS provide that the burden of persuasion is to be judged by a preponderance of the evidence.  20 C.F.R. § 498.215(b), (c); 42 C.F.R. § 1005.15(b), (d).  CMS failed to promulgate a regulation similar to those of the HHS and SSA IGs and the Board has filled the gap with its interpretative rules allocating the burden of persuasion to the nongovernmental party, the party defending against the imposition of the CMP. 
                            - back to note 3
                                                  4. “Credible evidence” is evidence that is worthy of belief.  Black’s Law Dictionary 596 (18th ed. 2004).  The “weight of evidence” is the persuasiveness of some evidence compared to other evidence.  Id. at 1625. 
                            - back to note 4
                                                  5. This is a “Tag” designation as used in CMS Pub. 100-07, State Operations Manual (SOM), app. PP – Guidance to Surveyors for Long Term Care Facilities (http://www.cms.hhs.gov/Manuals/IOM/list.asp).  The “Tag” refers to the specific regulatory provision allegedly violated and CMS’s policy guidance to surveyors.  Although the SOM does not have the force and effect of law, the provisions of the Act and regulations interpreted clearly do have such force and effect.  Ind. Dep’t of Pub. Welfare v. Sullivan, 934 F.2d 853 (7th Cir. 1991); Nw. Tissue Ctr. v. Shalala, 1 F.3d 522 (7th Cir. 1993).  Thus, while the Secretary may not seek to enforce the provisions of the SOM, he may seek to enforce the provisions of the Act or regulations as interpreted by the SOM. 
                            - back to note 5
                                                  6. Scope and severity levels are used by CMS and a state when selecting remedies.  The scope and severity level is designated by an alpha character, A through L, selected by CMS or the state agency from the scope and severity matrix published in the SOM, ch. 7, § 7400E.  A scope and severity level of A, B, or C indicates a deficiency that presents no actual harm but has the potential for minimal harm, which is an insufficient basis for imposing an enforcement remedy.  Facilities with deficiencies of a level no greater than C remain in substantial compliance.  42 C.F.R. § 488.301.  A scope and severity level of D, E, or F indicates a deficiency that presents no actual harm but has the potential for more than minimal harm that does not amount to immediate jeopardy.  A scope and severity level of G, H, or I indicates a deficiency that involves actual harm that does not amount to immediate jeopardy.  Scope and severity levels J, K, and L are deficiencies that constitute immediate jeopardy to resident health or safety.  The matrix, which is based on 42 C.F.R. § 488.408, specifies which remedies are required and optional at each level based upon the frequency of the deficiency. 
                            - back to note 6
                                                  7. Subsection 42 C.F.R. § 483.13(c)(1)(ii) and (iii) prohibits Petitioner from hiring individuals found guilty by a court of abusing, neglecting or mistreating a resident; and require reporting to the state nurse aide registry and licensing authorities any knowledge of court action against an employee that would indicate unfitness for service as a nurse aide or facility staff.  The facts alleged in this case do not implicate these regulatory provisions and they are not addressed further. 
                            - back to note 7
                                                  8. The surveyors allege that Petitioner’s policy was inadequate.  CMS Ex. 1 at 42.  The surveyors allege that the policy failed to inform staff of their individual responsibility to report abuse to state authorities and there was no mention of a requirement to notify law enforcement.  CMS Ex. 1 at 58-59.  The regulation does not specifically require that either provision be specifically included in the policy required by 42 C.F.R. § 483.13(c).  However, because I have found that Petitioner failed to implement the policy it had, it is not necessary for me to analyze whether the policy was adequate in all respects.  I do note that the lack of clarity in the policy may explain, but not excuse, DCS Terlecky’s failure to act in accordance with 42 C.F.R. § 483.13(c). 
                            - back to note 8
                                                  9. Decisions often cited include:  Lakeport Skilled Nursing Ctr., DAB No. 2435 at 7 (2012); Liberty Health & Rehab of Indianola, LLC, DAB No. 2434 at 13, 18-19 (2011); Yakima Valley Sch., DAB No. 2422 at 8; Lutheran Home at Trinity Oaks, DAB No. 2111 (2007); Britthaven of Havelock, DAB No. 2078 (2007); Daughters of Miriam Ctr., DAB No. 2067; Koester Pavilion, DAB No. 1750; Woodstock Care Ctr., DAB No. 1726 at 39. 
                            - back to note 9
                                                  10. The Board’s characterization of the clearly erroneous standard as being highly deferential to the fact-finding by the state agency surveyor and CMS, and even triggering a rebuttable presumption, is entirely consistent with the Supreme Court’s characterization of the standard.  However, the Court’s cautions about ensuring meaningful review rather than rubber-stamping agency decisions shows it is important for the ALJ and the Board not to be tempted to simply defer to the surveyor, the state agency, or CMS on the immediate jeopardy issue. 
                            - back to note 10
                                                  11. Appendix Q of the State Operations Manual (SOM) also fails to provide surveyors a working definition of the term “serious” that they can use to determine whether harm, injury, or impairment is serious when deciding whether or not to declare immediate jeopardy.  The Act does not define the phrase “immediately jeopardize” and does not introduce the concept of serious harm, injury, or impairment as the basis for finding immediate jeopardy.  Thus, one is not in error concluding that absent a definition of the term “serious” in the Act, the regulations, the SOM, or decisions of the Board, it is essentially up to individual surveyors, and whatever unpublished guidance they receive from their superiors or CMS officials, to exercise their individual discretion and judgment to decide that there was immediate jeopardy, which subjects a facility to the maximum imposable CMPs. 
                            - back to note 11