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                              Pinnacle Health & Rehab Canton, DAB CR6143 (2022)
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Pinnacle Health & Rehab Canton, DAB CR6143 (2022)








  
  
    

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





Pinnacle Health & Rehab Canton,
(CCN: 205101),
Petitioner,

v.

Centers for Medicare and Medicaid Services.
Docket No. C-21-584Decision No. CR6143August 16, 2022

        
              
    

      DECISION

In this deeply disturbing case, a charge nurse in a long-term care facility punched a difficult and often disruptive resident in the face, drawing blood and blackening his eye.  The facility admits that the assault occurred but denies responsibility for it.

Petitioner, Pinnacle Health & Rehab Canton, is a long-term-care facility, located in Canton, Maine, that participates in the Medicare program.  Following a complaint investigation and survey, completed September 22, 2020, the Centers for Medicare & Medicaid Services (CMS) determined that the facility was not in substantial compliance with the Medicare regulation forbidding abuse and that its deficiencies caused actual harm to a resident.  CMS has imposed a civil money penalty (CMP) of $1,190 per day.

Petitioner appealed.

For the reasons set forth below, I find that from September 22 through October 30, 2020, the facility was not in substantial compliance with 42 C.F.R. § 483.12(a)(1) and that the penalty imposed is reasonable.

Page 2

Background

The Social Security Act (Act) sets forth requirements for long-term care facilities to participate in the Medicare program and authorizes the Secretary of Health and Human Services to promulgate regulations implementing those statutory provisions.  Act § 1819.  The Secretary’s regulations are found at 42 C.F.R. Part 483.  To participate in the Medicare program, a nursing facility must maintain substantial compliance with program requirements.  To be in substantial compliance, a facility’s deficiencies may pose no greater risk to resident health and safety than “the potential for causing minimal harm.”  42 C.F.R. § 488.301.

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

Here, in response to a report of resident abuse, surveyors from the Maine Department of Human Services (state agency) completed a complaint investigation and survey of the facility on September 22, 2020.  Based on their findings, CMS determined that the facility was not in substantial compliance with **42 C.F.R. § 483.12(a)(1) (Tag F600 – freedom from abuse, neglect, and exploitation)**,****cited at scope and severity level G (isolated instance of substantial noncompliance that causes actual harm but does not pose immediate jeopardy to resident health and safety).  CMS Exs. 1, 2, 3.

CMS subsequently determined that the facility returned to substantial compliance on October 31, 2020.  CMS Ex. 2.  It imposed against the facility a penalty of $1,190 per day for 39 days of substantial noncompliance (September 22 through October 30, 2020).  The total penalty would have been $46,410; however, because of a delay in releasing the statement of deficiencies, CMS lowered the total penalty to $41,650.  CMS Ex. 2 at 2.

Petitioner appealed.

The parties have filed cross-motions for summary judgment with pre-hearing briefs (CMS Br.; P. Br.).  CMS has submitted 13 exhibits (CMS Exs. 1-13), and Petitioner has submitted six exhibits (P. Exs. 1-6).

In the absence of any objections, I admit into evidence CMS Exs. 1-13 and P. Exs. 1-6.

**Decision on the written record**.  My standing order directed the parties to exchange, as a proposed exhibit and in the form of an affidavit or written declaration, the written direct testimony of any proposed witness.  Standing Order at 3 (¶ 4(c)(4)) (March 15, 2021).

Page 3

The order also directed each party to indicate whether it wanted to cross-examine the opposing party’s witnesses.  Order at 5 (¶ 9).  The order pointed out that a hearing would be necessary only if a party files admissible, written direct testimony, and, in compliance with the order, the opposing party asks to cross-examine.  Order at 5 (¶ 10).

Neither party has asked to cross-examine any witnesses.  Because the witnesses’ direct testimonies are already in the record, and no witnesses will be cross-examined, an in-person hearing would serve no purpose.  This matter may therefore be decided based on the written record.  *HeartFlow, Inc.*, DAB No. 2781 at 16-17 (2017) (citing *Vandalia Park*, DAB No. 1940 at 28-29 (2004), *aff’d, Vandalia Park v. Leavitt*, 157 F. App’x 858 (6th Cir. 2005)).1

Issues

The issues before me are:

from September 22 through October 30, 2020, was the facility in substantial compliance with 42 C.F.R. § 483.12(a)(1); and
	if the facility was not in substantial compliance, is the penalty imposed – $1,190 per day – reasonable?Discussion

***1. The facility was not in substantial compliance with section 483.12(a)(1) because a charge nurse physically assaulted one of the facility residents.2***

**Program requirements:  Act § 1819(c)(1)(A)(ii); 42 C.F.R. § 483.12 (Tag F600)**.  The Act requires that facility residents be free from “physical or mental abuse, corporal punishment, [and] involuntary seclusion . . . .”  Act § 1819(c)(1)(A)(ii).  Consistent with that provision, the regulation governing abuse mandates that each resident has the right to be free from abuse.  42 C.F.R. § 483.12.  Among other requirements, the facility must

Page 4

“not use verbal, mental, sexual, or physical abuse, corporal punishment or involuntary seclusion.”  42 C.F.R. § 483.12(a)(1).  Abuse is defined as “the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.”  It includes verbal, sexual, physical, and mental abuse.  “Willful” means that the individual acted deliberately, not that the individual must have intended to inflict injury or harm.  42 C.F.R. § 488.301.

In order to keep residents free from abuse, facilities must develop and implement written policies and procedures that prohibit and prevent abuse, neglect, and exploitation of residents.  42 C.F.R. § 483.12(b)(1).  It must establish policies and procedures to investigate allegations of abuse.  42 C.F.R. § 483.12(b)(2).  The facility must ensure that all alleged violations involving abuse are reported immediately, but not later than two hours after the allegation is made, to the facility administrator and appropriate state officials.  42 C.F.R. § 483.12(c)(1).

The facility must have evidence that all alleged violations are thoroughly investigated, and it must prevent further potential abuse while the investigation is in progress.  The results of all investigations must be reported to the administrator (or designated representative) and to the appropriate state officials within five working days of the incident.  If the violation is verified, the facility must take appropriate action.  42 C.F.R. § 483.12(c)(2), (3), and (4).

**Facility policy:  abuse, neglect, and exploitation.**The facility had in place a written policy for preventing resident abuse.  The policy declared that the facility would not condone any form of resident abuse.  Its goal was to achieve and maintain an abuse-free environment.  Among the facility’s specific programs were:

training staff to resolve conflict appropriately;
	allowing staff to express frustration with the job or working with difficult residents;
	assisting or rotating staff working with difficult or abusive residents;
	helping staff deal appropriately with stress and emotions;
	training staff to understand and manage a resident’s verbal or physical aggression;
	assessing, care planning, and monitoring residents with needs and behaviors that lead to conflict or neglect;
	assessing residents with signs and symptoms of behavior problems and developing and implementing care plans to address behavioral issues;
	striving to maintain adequate staffing on all shifts to ensure that the needs of each resident are met.CMS Ex. 4 at 7.

Page 5

**Resident 1 (R1)**.  R1 was a 69-year-old man, admitted to the facility on June 2, 1995, suffering from cerebral palsy, gastroesophageal disease (GERD), depression, paranoid schizophrenia, degenerative disease of the nervous system, mild cognitive impairment, psychosis, and chronic rhinitis.  CMS Ex. 7 at 2, 21; CMS Ex. 8 at 18.  Both his hearing and speech were seriously impaired.  CMS Ex. 7 at 6, 8.  He required extensive assistance with all activities of daily living.  CMS Ex. 7 at 6.  He required a wheelchair.  CMS Ex. 7 at 2.

R1 experienced hallucinations and delusions and exhibited severe behavior disorders.  He acted out physically and verbally, kicking and hitting staff during care and using abusive language.  His behaviors significantly interfered with his care and activities.  He was disruptive and intruded on the privacy of others.  CMS Ex. 7 at 1-2.  His speech and hearing impairments contributed to his behavior problems; he became frustrated when staff didn’t understand him.  CMS Ex. 7 at 6, 8.  R1’s medications may have contributed to both his stomach distress and to his behavior problems; there are many documented instances of his yelling and screaming at staff, while complaining about his stomach or nose.  CMS Ex. 7 at 8; *see* CMS Ex. 7 at 4 (citing unexpected medication side effects of mania, hostility, rage, aggressive or impulsive behavior, and hallucinations).

R1’s care plan identified, as a problem, his potential for verbal and physical aggression and poor impulse control.  The plan noted that he would “holler out, [especially] because his stomach [was] bothering him.”  CMS Ex. 7 at 3.  When he became agitated, staff were instructed to intervene before his agitation escalated.  If he became aggressive, staff were instructed to “walk calmly away and approach later.”  CMS Ex. 7 at 3-4.  Although the plan identifies R1’s verbal aggression, it does not mention that, when frustrated at night, he screams continually, disturbing the entire unit; it does not suggest how staff should respond.  *See* CMS Ex. 7 at 3-5.

**The September 14, 2020 assault**.  On September 11, 2020, several days prior to his altercation with the charge nurse, R1 spent much of the night yelling.  He attempted to tear down the privacy curtain near his bed.  He was agitated because the remote control for his bed was not working, and he could not adjust the elevation of his head.  CMS Ex. 7 at 7.  A member of the nursing staff attempted to fix the problem but could not.  When the staff member leaned in to explain the problem to the resident, the resident struck him in the chest.  In accordance with facility policies and R1’s care plan, the staff member removed himself from the situation.  CMS Ex. 7 at 7-8.

There were good reasons for elevating R1’s head.  Because of his GERD, his physician ordered that his head be elevated, particularly after meals.  CMS Ex. 7 at 6.  He also had difficulties breathing.  On the night of September 14, he had a problem breathing, possibly because of his sinuses.  CMS Ex. 7 at 13.

Page 6

In the early morning hours of September 14, 2020, R1 again started yelling and screaming, complaining that the head of his bed would not go up and that he couldn’t breathe.  CMS Ex. 9 at 3.  The Charge Nurse (referred to as LPN1) tried to elevate the head of his bed but could not.  LPN1 told R1 that he would have to wait until morning for the bed to be fixed.  When the nurse left the room, R1 “continued to holler, disrupting the whole unit.”  CMS Ex. 7 at 13, 22.  Two nurse aides went into his room and attempted to calm him, without success.  LPN1 then returned to the room and saw R1 sitting up on the side of his bed.  LPN1 told the resident to lie down so that he wouldn’t fall.3  As he was trying to lay R1 down, the resident hit him on the side of his chin.  The blow left no mark or bruising.  LPN1 responded by hitting R1 in the face with a closed fist.  Although he maintains that he hit the resident only once, in the forehead, R1 suffered a bloody forehead and a black eye.  CMS Ex. 3 at 2, 5; CMS Ex. 7 at 13, 22; CMS Ex. 9 at 3; CMS Ex. 10 at 2, 3; P. Ex. 1 at 2 (Hutchins Decl. ¶ 7) (describing “open wounds that were bleeding” and “bruising under his left eye.”).  A photograph shows significant injuries.  CMS Ex. 3 at 5.  LPN1 was also injured; he fractured his hand and required a cast.  CMS Ex. 7 at 10 (describing swelling on the “posterior lateral side” of LPN1’s right hand); CMS Ex. 7 at 13 (reporting, on September 23, 2020, that LPN1 suffered a “boxer’s fracture” to his hand, which was in a cast).

LPN1 remained in the room, cleaning the forehead wound and applying a bandage.  He subsequently left, called the facility’s Director of Nursing (DON), and reported what he had done.  The DON went to the facility, where she assessed and treated the resident.  She interviewed staff and terminated LPN1’s employment.  CMS Ex. 3 at 2; CMS Ex. 7 at 9; P. Ex. 1 at 1-2 (Hutchins Decl. ¶¶ 5-11).  She resolved the bed problem by replacing the malfunctioning bed with a functioning bed from an empty room.  CMS Ex. 7 at 9; CMS Ex. 9 at 4; P. Ex. 1 at 2 (Hutchins Decl. ¶ 10).

Later that morning, the facility reported the assault to the resident’s physician, law enforcement, the state survey agency, and adult protective services.  CMS Ex. 3 at 3.

**The facility’s substantial noncompliance**.  Without question, LPN1 abused R1, which puts the facility out of substantial compliance with section 483.12(a).  Petitioner, however, claims that “as a facility [it] did nothing wrong and everything right.”  P. Br. at 6.  According to Petitioner, the facility properly trained and supervised LPN1, “who nevertheless reacted reflexively to being struck by a resident.”  In Petitioner’s view, it should not be held accountable because the employee’s action was “reflexive and not preventable.”  *Id*.

Page 7

To reach this conclusion, Petitioner does not mention that the statute and regulation create for facility residents an absolute right “to be free from abuse.”  Act § 1819(c)(1)(A)(ii); 42 C.F.R. § 483.12.  Instead, it offers a strained reading of section 483.12(a)(1), which provides that the facility must “not use verbal, mental, sexual, or physical abuse, corporal punishment or involuntary seclusion.”

If the regulations . . . had intended to make the facility absolutely responsible for all incidents committed by staff, even when the facility was blameless, the regulations would have required the facility to *ensure* the absence of abuse.  Alternatively, the regulations could have required the facility to “prevent” abuse.  Instead, the regulations prohibit the facility from the “use” of abuse – that is, from taking action as a facility, in its capacity as such, that fosters abuse.

P. Br. at 7.  Thus, in Petitioner’s view, so long as the facility had no institutional policy authorizing physical abuse, and instead had policies that actively discourage abuse, it should not be accountable for its staff abusing residents.

The Medicare statute, regulations, and more than twenty years of Departmental Appeals Board decisions say otherwise.  In addition to granting facility residents the right to be free from abuse, the statute explicitly provides that “a principal is liable for penalties, assessments, and an exclusion under this section *for the actions of the principal’s agent acting within the scope of the agency*.”  Act § 1128A(*l*) (emphasis added).  Citing this and other provisions of the statute, the Departmental Appeals Board has repeatedly affirmed that facilities are responsible for any misconduct of their staff and agents that violate federal participation standards, “even that of which facility owners or management may not be aware.”  *Kindred Transitional Care & Rehab - Greenfield*, DAB No. 2792 at 10, 12 (2017) (holding that a facility may not disavow the wrongdoing of its staff and may properly be held responsible for its staff’s actions); *Madison Cnty. Nursing Home*, DAB No. 2895 at 8-9 (2018); *Springhill Senior Residence*, DAB No. 2513 at 15 (2013); *Gateway Nursing Ctr.*, DAB No. 2283 at 8 (2009).

[A]n employee’s deliberate wrongdoing – and even criminal misconduct – may properly be imputed to the facility where the employee had “the means and opportunity” to commit the misfeasance, by virtue of his or her assigned duties and facility access.

*Madison Cnty.*, DAB No. 2895 at 9 (citing *Kindred Transitional Care,* DAB No. 2792 at 14); *see also North Carolina State Veterans Nursing Home, Salisbury*, DAB No. 2256 (2009); *Beverly Health Care Lumberton*, DAB Ruling No. 2008-5 (Denial of Petition for Reopening Decision No. 2156) at 6-7 (2008); *Emerald Oaks*, DAB No. 1800 at 7 n.3

Page 8

(2001) (noting that the facility “cannot disown the consequences of the inadequacy of the care provided by the simple expedient of pointing the finger at [the employee’s] fault, since she was the agent of her employer, empowered to make and carry out daily care decisions.”).

Further, one episode of abuse is sufficient to support a finding of substantial noncompliance.  “Nothing in section 483.13’s [now 483.12] language contemplates that finding a violation turns on the number of incidents or perpetrators, or pervasiveness of abuse.”  *Kindred Transitional Care,* DAB No. 2792 at 15, 18-19.

Thus, here, because the charge nurse physically abused a resident, the facility was not in substantial compliance with section 483.12(a)(1).

Moreover, although not critical to my finding substantial noncompliance, I do not agree that the facility was blameless.  First, I reject Petitioner’s offensive and wholly unsupported suggestion that LPN1 assaulted the resident because LPN1 was a military veteran who acted reflexively.  P. Br. at 3, 8 (“Other than discriminating against military veterans, there was nothing that Pinnacle reasonably could have done to prevent the incident.”).

Second, LPN1 was not a rogue employee, operating outside the scope of his employment; *he was the charge nurse*, ultimately responsible for the unit.  By all accounts, he had a reputation as an excellent charge nurse, compassionate to the residents and liked by everybody.  CMS Ex. 7 at 11, 12 (nurse aide reporting “I have never seen [LPN1] get short with anybody.”); CMS Ex. 7 at 17 (Resident 3 reporting that he never had a problem with LPN1:  “They’re good on the night shift.”); CMS Ex. 7 at 18 (Resident 4 reporting that LPN1 “was very good to me.”).  He had no history of mistreating residents.  CMS Ex. 7 at 10, 11; *see* CMS Ex. 8.

He was, however, in an unrelentingly stressful situation, without any opportunity for respite.  It seems that he was solely responsible for the unit, assisted by only two nurse aides.  *See* CMS Ex. 3 at 1; CMS Ex. 9 at 4.  He could not ask to be reassigned when he was in distress because he was the only one there who was able to do his job.4  And the unit included at least one very difficult and disruptive resident.  Staff reported that R1 was “very aggressive to everyone,” and his kicks were powerful.  He regularly kicked and hit staff and other residents.  Staff were documenting his behaviors “so they could send him to a facility where he could be safer, and we [staff] could be safer.”  CMS Ex. 7 at 11.  In fact, according to staff, R1 had kicked another charge nurse “so hard in the chest, it acted up his a-fib.”  CMS Ex. 7 at 12.  Kicking, hitting, swearing, making

Page 9

obscene gestures were an “everyday thing for him” and, immediately prior to September 14, his behaviors had been escalating.  CMS Ex. 7 at 12; CMS Ex. 9 at 2.

Staff also reported that R1 was not the only violent resident.  Violent behaviors seem to have been an ongoing problem within the facility.  As LPN1 explained:

They need to get these violent residents under control, or they [nurse aides] are going to quit or end up getting hurt.  It’s getting to the point where people are getting hit by residents all the time.  They are going to start quitting.  There is one resident that got a boxer fracture who punched the wall because one of the violent residents was keeping him awake at 12:30 at night.  It happened about a week before my incident did.  It wasn’t [R1].  It was one of the other residents.

CMS Ex. 7 at 14.5

Moreover, the facility had frequent problems with beds and was on notice that R1 not being able to adjust his bed triggered his worst behaviors, causing him to disrupt the entire unit and, ultimately, to attack others physically.  *See* CMS Ex. 7 at 7, 9, 11.  Yet, the facility did not assure that his bed was in good working order.  Instead, when LPN1 arrived for the night shift, the bed was not working.  “The evening shift had left him flat” and had not mentioned the problem to LPN1 during report.  CMS Ex. 7 at 13.

The facility could have taken steps to foster a less stressful working environment (and apparently it subsequently did so).  Since the interventions it had in place were not successful, it could have increased its efforts to bring R1’s behaviors under control or transferred him to a facility better able to meet his needs.  It could have made sure that the resident equipment worked properly and repaired it immediately when it didn’t; in fact, knowing that its beds regularly malfunctioned, it could have had back-up plans in place to ensure that R1 had a functioning bed at all times.  Finally, the facility could have addressed the problem of staff “burn-out” by providing more support and back-up for its staff.  *See* CMS Ex. 8 at 4, 7, 9; *see* CMS Ex. 4 at 7 (facility policies calling for adequate staffing and support as well as care plans addressing resident behaviors).

But the facility did not take these steps, and one of its supervisory nurses, who was no doubt stressed out, physically assaulted a resident, for which it is accountable.  The facility was therefore not in substantial compliance with section 483.12.

Page 10

***2. CMS’s determination as to the duration of the substantial noncompliance is consistent with statutory and regulatory requirements.***

Petitioner complains about the duration of the penalty, claiming that the facility brought itself back into substantial compliance when it fired LPN1, so any noncompliance lasted only a single day.  P. Br. at 10.

Once a facility has been found to be out of substantial compliance (as Petitioner was here), it remains so until it affirmatively demonstrates that it has achieved substantial compliance once again.  *Ridgecrest Healthcare Ctr.*, DAB No. 2493 at 2-3 (2013); *Life Care Ctr. of Elizabethton*, DAB No. 2367 at 16-17 (2011); *Taos Living Ctr.*, DAB No. 2293 at 20 (2009); *Premier Living & Rehab Ctr.*, DAB No. 2146 at 3 (2008); *Lake City Extended Care Ctr.*, DAB No. 1658 at 12-15 (1998).  The burden is on the *facility* to prove that it is back in compliance, not on CMS to prove that deficiencies continued to exist.  *Asbury Ctr. at Johnson City*, DAB No. 1815 at 19-20 (2002).

The facility must show that the incidents of noncompliance have ceased *and* that it has implemented appropriate measures to ensure that similar incidents will not recur.  *Libertywood Nursing Ctr.*, DAB No. 2433 at 15 (2011) (citing*Life Care Ctr. of Elizabethton*, DAB No. 2367 at 16 (2011)); *accord*, 42 C.F.R. § 488.454(a) and (e); *Hermina Traeye Mem’l Nursing Home*, DAB No. 1810 at 12 (holding that, to be found in substantial compliance earlier than the date of the resurvey, the facility must supply documentation “acceptable to CMS” showing that it was in substantial compliance and *was capable of remaining in substantial compliance* on the earlier date); *Cross Creek Health Care Ctr.*, DAB No. 1665 (1998).  A facility’s return to substantial compliance usually must be established through a resurvey.  42 C.F.R. § 488.454(a); *Ridgecrest*, DAB No. 2493 at 2-3.

Further, if CMS accepts a deficient facility’s plan of correction, the facility must then timely implement all of the steps that it identified in the plan as necessary to correct the cited problems.  *Cal Turner Extended Care Pavilion*, DAB No. 2030 at 19 (2006); s*ee also Meridian Nursing Ctr.*, DAB No. 2265 (2009); *Lake Mary Health Care*, DAB No. 2081 at 29 (2007).

The facility promised to complete its corrections on October 31, 2020.  The state agency accepted that representation, and it ultimately verified that the corrections had been made when the facility was resurveyed.  CMS Ex. 11 (Welch Decl. ¶¶ 6-9); CMS Ex. 12 (Herrin Decl. ¶¶ 5-9); P. Ex. 6.  The Board has rejected the notion that a facility can claim to have achieved substantial compliance at a date earlier than alleged in its plan of correction.  *The Windsor Place*, DAB No. 2209 at 12 (2008) (citing *Cal Turner Extended Care Pavilion*, DAB No. 2030 at 19).

Page 11

For an abuse citation, it is unusual to accept a facility’s plan of correction instead of waiting for a follow-up survey.  Unlike a leaky roof or a broken dishwasher, deficiencies that might lend themselves to a quick fix, correcting abuse deficiencies generally requires a longer and more complicated response.  Here, for example, the facility’s deficiency went beyond the actions of one out-of-control employee.  The facility needed to consider why an otherwise reliable and competent nurse, whom it trusted with supervisory responsibilities, would assault a resident.  This is not a simple question.  It was not enough to tell staff not to abuse residents.  The facility needed to ensure that the environment would not promote abuse, which meant that it needed to address the very serious problem of ongoing assaults on staff.

The facility’s response included additional training, followed up by the Education Coordinator randomly observing staff’s interactions with cognitively-impaired residents, the results to be shared with the Quality Assurance Committee.  CMS Ex. 1 at 2-3.  I note that the training acknowledged that staff could become burned-out from dealing with difficult residents and encouraged them to ask to be reassigned if that happened.  CMS Ex. 8 at 4.6

If properly implemented, these interventions might help a facility achieve substantial compliance, but introducing them does not, by itself, establish substantial compliance.  Until the facility could demonstrate that its training and other interventions were effective, i.e., that staff capably followed the training, that management put effective monitoring tools in place, and that those interventions resolved the problem, the facility had not met its significant burden of demonstrating that it has alleviated the level of threat to resident health and safety.  *Oceanside Nursing & Rehab. Ctr.*, DAB No. 2382 at 19; *Premier Living and Rehab. Ctr.*, DAB CR1602 (2007), *aff’d* DAB No. 2146 (2008).

***3. The penalty imposed – $1,190 per day – is reasonable.***

To determine whether a civil money penalty is reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f):  (1) the facility’s history of noncompliance; (2) the facility’s financial condition; (3) factors specified in 42 C.F.R. § 488.404; and (4) the facility’s degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort, or safety.  The absence of culpability is not a mitigating factor.  The factors in 42 C.F.R. § 488.404 include:  (1) the scope and severity of the deficiency; (2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and (3) the facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies.

Page 12

I consider whether the evidence supports a finding that the amount of the CMP is at a level reasonably related to an effort to produce corrective action by a provider with the kind of deficiencies found, and in light of the section 488.438(f) factors.  I am neither bound to defer to CMS’s factual assertions nor free to make a wholly independent choice of remedies without regard for CMS’s discretion.  *Barn Hill Care Ctr.*, DAB No. 1848 at 21 (2002); *Cmty. Nursing Home*, DAB No. 1807 at 22 et seq. (2002); *Emerald Oaks*, DAB No. 1800 at 9 (2001); *CarePlex of Silver Spring*, DAB No. 1638 at 8 (1999).

I determine whether a penalty is reasonable based on the per-day penalty, not the total accrued penalty.  *Crawford Healthcare and Rehab.*, DAB No. 2738 at 20 (2016).

Penalties are inflation-adjusted and change annually.  The amount is determined as of the date the penalty is assessed, in this case, January 11, 2021.  CMS Ex. 2; 85 Fed. Reg. 2869, 2880 (Jan. 17, 2020).  CMS imposed a penalty of $1,190 per day, which is at the low end of the penalty range for findings of substantial noncompliance that do not pose immediate jeopardy ($112 to $6,695 per day).  42 C.F.R. §§ 488.408(d)(1)(iii), 488.438(a)(1)(ii); 45 C.F.R. § 102.3; 85 Fed. Reg. 2869, 2880 (Jan. 17, 2020).

Considering the relevant factors, the penalty is reasonable.

Petitioner points out that it has not previously been cited for abuse.  P. Br. at 3.  Although repeat deficiencies have special significance, the facility’s overall performance history must also be considered in determining whether the penalty is reasonable.  For the five years immediately preceding the September 2020 survey, the facility was consistently out of substantial compliance with health and life safety code requirements.  Notably, some of these deficiencies directly affected resident care, including:

The facility was cited twice for failing to develop and implement comprehensive care plans, in violation of 42 C.F.R. § 483.21(b) – Tag F279:  on March 19, 2015, the deficiency was cited at scope and severity level E (pattern of noncompliance that causes no actual harm with the potential for more than minimal harm); and again on May 8, 2019 (although the tag number was changed to F656), cited at scope and severity level D (isolated instance of substantial noncompliance that causes no actual harm with the potential for more than minimal harm).7
	The facility was cited twice for violating the quality-of-care regulation governing unnecessary drug regimens, 42 C.F.R. § 483.25(*l*) – Tag F329, cited at scope and severity level E on March 19, 2015, and at scope and severity level D on March 24, 2016.Page 13

On March 24, 2016, the facility was cited for violating the quality-of-care regulation governing accident prevention, 42 C.F.R.§ 483.25(d) – Tag F323, cited at scope and severity level E.
	On April 11, 2018, the facility was cited for violating the quality-of-care regulation, 42 C.F.R. § 483.25 – Tag F684, cited at scope and severity level D.CMS Ex. 13 at 1-2.

Petitioner has not claimed that its financial condition affects its ability to pay the CMP.

Applying the remaining factors, abuse is always a serious deficiency and was particularly serious in this case.  The abused resident was severely injured, suffering a black eye and bleeding forehead.  Indeed, the blow was powerful enough to break the assailant’s hand.  And the assailant was not just any staff member, but a staff member holding a position of authority.  Physically assaulting a resident shows a high degree of disregard for that resident’s comfort, or safety, for which the facility is culpable.

For these reasons, I find that the relatively low penalty imposed is reasonable.

Conclusion

For the reasons discussed above, I find that from September 22 through October 30, 2020, the facility was not in substantial compliance with 42 C.F.R. § 483.12(a)(1) and that the penalty imposed is reasonable.

Endnotes

1  Deciding a case based on the written record does not mean that it is decided without a hearing.  In reviewing administrative appeals, courts recognize that, by considering the evidence and applying the law, the ALJ has granted the petitioner a hearing, even if that hearing was not an “oral” or “evidentiary” hearing.  *See* *CNG Transmission Corp. v. FERC*, 40 F.3d 1289, 1293 (D.C. Cir. 1994) (holding that a “paper hearing” satisfies statutory requirements for “notice and opportunity for hearing.”).

2  My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision.

3  LPN1 described the events of September 14 multiple times.  In one version, he said that he also attempted to put a nasal breathing strip on the resident to help with his breathing.  CMS Ex. 9 at 3.

4  Indeed, after assaulting R1, he should not have remained in the room with him.  42 C.F.R. § 483.12(c)(3); *see* CMS Ex. 4 at 1.  However, the resident’s wounds required treatment, and he was apparently the only nurse available.

5  Although Petitioner claims that it has never before been cited for abuse, some evidence suggests that this was not the first time an employee hit one of the residents.  CMS Ex. 7 at 10.

6  The policy is sound, but it requires adequate staffing so that someone is there to relieve a stressed employee.

7  I cite to the regulations that were in effect at the times of these surveys.  The regulations changed, effective November 18, 2016.  81 Fed. Reg. 68,688 (October 4, 2016).
  
          /s/
        Carolyn Cozad Hughes

                      Administrative Law Judge Back to top
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