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                              Tonganoxie Nursing and Rehab, LLC, d/b/a Tonganoxie Nursing Center, DAB CR5394 (2019)
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Tonganoxie Nursing and Rehab, LLC, d/b/a Tonganoxie Nursing Center, DAB CR5394 (2019)








  
  
    

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





Tonganoxie Nursing and Rehab, LLC,
d/b/a Tonganoxie Nursing Center
(CCN:  175215)
Petitioner,
v.
Centers for Medicare & Medicaid Services
Docket No. C-17-65Decision No. CR5394August 13, 2019

        
              
    

      DECISION
We again consider a long-term-care facility’s obligation to protect vulnerable residents from sexual assault and other forms of unwanted contact by an aggressive and persistent resident.
Petitioner, Tonganoxie Nursing and Rehab, LLC, is a long-term-care facility, located in Tonganoxie, Kansas, that participates in the Medicare program. Following a complaint investigation, completed August 5, 2016, the Centers for Medicare & Medicaid Services (CMS) determined that the facility was not in substantial compliance with Medicare program requirements and that its deficiencies posed immediate jeopardy to resident health and safety. CMS imposed civil money penalties (CMPs) of $4,250 per day for 31 days of immediate jeopardy and $150 per day for seven days of substantial noncompliance that did not pose immediate jeopardy.
Petitioner appealed.
**Page 2**
The parties have filed cross-motions for summary judgment. In the alternative, CMS has asked for a decision based on the written record.
I agree that no material facts are in dispute, but, for the reasons set forth below, I decline to enter summary judgment and instead issue a decision based on the written record. I find that, from July 1 through August 7, 2016, the facility was not in substantial compliance with Medicare program requirements; that, from July 1 through 31, 2016, its deficiencies posed immediate jeopardy to resident health and safety; and that the penalties imposed are reasonable.
Background
The Social Security Act (Act) sets forth requirements for nursing facilities to participate in the Medicare program and authorizes the Secretary of Health and Human Services to promulgate regulations implementing those statutory provisions. Act § 1819. The Secretary’s regulations are found at 42 C.F.R. Part 483. To participate in the Medicare program, a nursing facility must maintain substantial compliance with program requirements. To be in substantial compliance, a facility’s deficiencies may pose no greater risk to resident health and safety than “the potential for causing minimal harm.” 42 C.F.R. § 488.301.
The Secretary contracts with state survey agencies to survey skilled nursing facilities in order to determine whether they are in substantial compliance. Act § 1864(a); 42 C.F.R. § 488.20. Each facility must be surveyed annually, with no more than fifteen months elapsing between surveys, and must be surveyed more often, if necessary, to ensure that identified deficiencies are corrected. Act § 1819(g)(2)(A); 42 C.F.R. §§ 488.20(a); 488.308. The state agency must also investigate all complaints. Act § 1819(g)(4).
In this case, responding to a complaint, surveyors from the Kansas Department for Aging and Disability Services (state agency) completed a complaint investigation survey on August 5, 2016. CMS Exs. 4, 5, 7. Based on the survey findings, CMS determined that the facility was not in substantial compliance with two program requirements aimed at preventing abuse:
42 C.F.R. §§ 483.13(b) and 483.13(c)(1)(i) (Tag F223) (staff treatment of residents: abuse) cited at scope and severity level K (pattern of substantial noncompliance that poses immediate jeopardy to resident health and safety); and
		42 C.F.R. §§ 483.13(c)(1)(ii)-(iii), and 483.13(c)(2)-(4) (Tag F225) (staff treatment of residents: investigate and report allegations of abuse) cited at scope and severity level K.
**Page 3**
CMS Exs. 4, 7.1
Based on a re-visit survey, completed September 30, 2016, CMS determined that the facility returned to substantial compliance on August 8, 2016. CMS Ex. 2.
CMS imposed against the facility CMPs of $4,250 per day for 31 days of immediate jeopardy (July 1-31, 2016), and $150 per day for seven days of substantial noncompliance that did not pose immediate jeopardy (August 1-7, 2016), for penalties totaling $132,800 ($131,750 + $ 1,050). CMS Ex. 2.
Petitioner timely requested review.
The parties have filed pre-hearing briefs (CMS Br.; P. Br.). They have also filed cross-motions for summary judgment. (CMS MSJ; P. MSJ). In the alternative, CMS asks for a decision based on the written record. Petitioner replied to CMS’s motion. (P. Reply). CMS has submitted 22 exhibits. (CMS Exs. 1-22). Petitioner has submitted nine exhibits (P. Exs. 1-9). I have admitted into evidence CMS Exs. 1-22 and P. Exs. 1-9. Order Summarizing Pre-hearing Conference at 3 (May 1, 2019).
Issues
The issues before me are:
From July 1 through August 7, 2016, was the facility in substantial compliance with Medicare program requirements?
		If, from July 1-31, 2016, the facility was not in substantial compliance, did its deficiencies then pose immediate jeopardy to resident health and safety? and
		If the facility was not in substantial compliance, are the penalties imposed – $4,250 per day for 31 days of immediate jeopardy and $150 per day for seven days of substantial compliance that did not pose immediate jeopardy – reasonable?
Petitioner complains that CMS raises issues (e.g., the facility’s failing to update R1’s care plan; its failing to investigate properly the allegations of abuse) that were not mentioned in the Statement of Deficiencies (form CMS-2567). *See*, *e.g*., P. Reply at 2. It is well-settled that CMS is not limited to the specific allegations included in the Statement of Deficiencies. As the Departmental Appeals Board has repeatedly explained, the
**Page 4**
Statement of Deficiencies is a notice document, not intended to “lay out every single detail in support of a finding that a violation has been committed.” *Alden Town Manor Rehab. & HCC*, DAB No. 2054 at 17 (2006), *citing Pacific Regency Arvin*, DAB No. 1823 at 9-10 (2002). So long as the facility knows what it must answer to – which, as here, was accomplished through pre-hearing record development – the facility has sufficient notice. In its pre-hearing brief and its motion for summary judgment/decision on the record, CMS laid out its positions. The issues were thus properly raised and Petitioner had ample notice and opportunity to respond. *See* 42 C.F.R. § 498.56(a) (allowing judge to add new issues).
Discussion
**Decision on the Written Record**. My initial order in this case directed the parties to exchange, as a proposed exhibit and in the form of an affidavit or written declaration, “the complete, written direct testimony of any proposed witness.” Acknowledgment and Initial Pre-hearing Order at 3 ¶ 4 (November 9, 2016). CMS listed one witness and submitted her written declaration. Petitioner declined the opportunity to cross-examine CMS’s witness. Order Summarizing Pre-hearing Conference at 3 (May 1, 2019).
Petitioner listed three witnesses and provided their written declarations. Initially, CMS asked to cross-examine one of those witnesses. However, CMS now indicates that the matter may be decided without its cross-examining Petitioner’s witness. Since 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, without considering whether the standards for summary judgment are satisfied.
***1. The facility was not in substantial compliance with 42 C.F.R. §§ 483.13(b) and (c) because staff did not prevent a sexually aggressive resident from attacking vulnerable ones; and they did not immediately report or thoroughly investigate instances of abuse or potential abuse.2***
**Program requirements: 42 C.F.R. § 483.13(b) and (c) (Tags F223 and 225)**. 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 resident behavior and facility practices mandates that each 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). Abuse is defined as “the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.” 42 C.F.R. § 488.301.
**Page 5**
In order to keep residents free from abuse, facilities must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse. 42 C.F.R. § 483.13(c). Among other requirements, the facility must ensure that all alleged violations are reported immediately to the facility administrator and appropriate state officials. 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. § 483.13(c)(2), (3), and (4).
**Facility policy: resident protection.** The record here includes just one written policy that was in place prior to the documented incidents of abuse: a document to “protect residents from harm during investigations of abuse allegations.” According to the policy, if the alleged abuser is a resident, the facility will notify the resident’s legal representative and his physician, and the accused will not be permitted to visit, unattended, the rooms of other residents. CMS Ex. 19. Even if properly implemented, this policy is hardly sufficient to satisfy the requirements of section 483.13.
On August 1, 2016, in response to the survey findings (*see* P. Reply at 8), the facility revised the written policy. The revised policy is more comprehensive. It directs staff to monitor residents for “aggressive/inappropriate behavior” toward others and to report incidents “immediately” to the nurse supervisor, director of nursing (DON), and the administrator. The policy lists specific interventions: 1) immediately remove the aggressor from the situation; 2) if there is a risk of recurrence, place the resident on 1:1 supervision “at minimum” until the investigation ends; 3) temporarily separate the resident from others until the interdisciplinary team develops a plan “to meet the needs of the resident”; 4) interview and evaluate the resident so that a qualified practitioner can determine the cause of the behavior; 5) notify each resident’s representative, attending physician, and the facility’s medical director; 6) develop a care plan to prevent recurrence; 7) inform care staff of the care plan and direct them to report promptly to the charge nurse any behavioral changes; 8) document in the resident’s clinical record all interventions and their effectiveness; 9) consult psychiatrist services “as needed”; 10) complete an incident report and document, in the clinical record, the incident, findings, and corrective measures; 11) as necessary, transfer the resident, providing 1:1 supervision until it can occur; 12) report to the appropriate agencies. CMS Ex. 20 at 1.
With respect to the investigations, the revised policy lists actions that must documented: 1) observations, interviews, and record reviews of all residents involved; 2) interviews of all witnesses; 3) notification of physicians and families/responsible parties; and 4) all relevant physical findings. CMS Ex. 20 at 1-2.
**Page 6**
The revised policy defines “reportable incidents” as those that result in: 1) physical injury requiring medical attention (excluding minor skin tears), or threat to health or safety; 2) resident psychological distress; 3) change in condition; 4) unwanted/unsolicited sexual contact where one or more persons is unable to consent; 5) any form of abuse. CMS Ex. 20 at 2.
The policy also dictates the facility’s response to reportable incidents; it must: 1) report the incident; 2) conduct and document a thorough investigation; 3) assess the residents involved; 4) implement a plan of action to prevent recurrence; and 5) supervise the residents according to their assessed needs. CMS Ex. 20 at 2.
Finally, to prevent recurrence, the facility is directed to: 1) remove the aggressor immediately, “ensure the resident is temporarily separated from other residents,” and update the resident’s care plan; 2) if the resident remains at the facility during the investigation and poses a risk, continue 1:1 supervision; 3) ensure placement is appropriate; 4) train staff to identify and intervene when there is resident-to-resident abuse; 5) recognize that the type and frequency of supervision may vary over time; and 6) place the resident on 1:1 monitoring if inappropriate sexual contact occurs.3
 CMS Ex. 20 at 2.
**Resident 1 (R1)**. R1 was an 86-year-old man, admitted to the facility in June 2015, suffering from atherosclerotic heart disease, hypertension, chronic obstructive pulmonary disease, and other ailments. He had a history of falling and used a wheelchair for mobility. P. Ex. 3 at 1; CMS Ex. 6 at 2. He scored 11 on his BIMS (Brief Interview for Mental Status) exam, indicating a moderate impairment.4
 CMS Ex. 6 at 2; CMS Ex. 13 at 4.
R1 had a significant history of behavior problems, including: verbal and physical *aggression toward staff and other residents*; entering, uninvited, the rooms of other residents; resisting care, especially showers and toileting; and *grabbing females in an inappropriate manner*. CMS Ex. 12; *see* CMS Ex. 13 at 6 (documenting a February 2, 2016 psychiatric referral for “inappropriate sexual behavior”); CMS Ex. 13 at 7 (indicating, on June 28, 2016, that R1 had been “repeatedly grabbing women
**Page 7**
inappropriately); P. Ex. 2 (indicating psychiatric referral for “inappropriately touching the ladies . . . .”).5
To address these behaviors, R1’s care plan directed staff to help him develop “more appropriate methods of coping and interacting”; provide him an opportunity for “positive” interactions; discuss his behavior with him, explaining why it is inappropriate and unacceptable; monitor his behavioral episodes and try to determine the underlying cause, considering and documenting location, time of day, persons involved, and situations; notify his daughter of the behaviors; and, when aggression occurs, redirect R1 in a calm voice. If not successful, leave the area (assuming that the resident can safely be left alone) and return later. CMS Ex. 12.6
**The incidents:**On **February 7, 2016**, R1 wheeled behind a female resident and “grabbed her bottom.” Staff separated the residents, notified R1’s daughter, and sent him for a psychiatric evaluation. CMS Ex. 6 at 4. The February 9 psych evaluation describes him as having recently “been more disinhibited, impulsive, sexually aggressive, inappropriate, and grabbing other residents . . . .” CMS Ex. 11 at 1. The record includes no evidence that the facility investigated or reported this incident to the state agency, but CMS has not pursued that apparent deficiency. *See* P. Ex. 6 at 2 (Huffman Decl. ¶ 11) (describing the facility’s response to the incident).
On March 14, 2016, the facility revised R1’s care plan to add, as a goal, that R1 would “not grab any females in an inappropriate manner . . . .” However, it made no changes to the interventions already in place to address his behaviors. CMS Ex. 12.
On **May 31, 2016**, R1 “hit female on butt,” which staff saw as evidence “that he was starting with his sexual behaviors.” CMS Ex. 6 at 4. No changes were made to his care plan. CMS Ex. 12. Again, the records contains no evidence that the facility investigated or reported, but CMS has not pursued the issue. *See* P. Ex. 6 at 3 (Huffman Decl. ¶ 14) (describing the facility’s minimal response to the incident).
**Page 8**
On **June 26, 2016**, a charge nurse (Stacy Puccinelli) and medication aide (Vickie Dohle) observed R1 sitting in the hall next to R3, a severely impaired female resident (BIMS score of 00). R3 had a blanket over her, and, when the Charge Nurse investigated, she saw that R1 had his hand under the blanket and was rubbing R3’s chest. The nurse asked what he was doing, and he replied, “[n]othing, baby,” and wheeled himself away. R3’s dress had been pulled down to her abdomen, exposing her chest. Charge Nurse Puccinelli reported the incident to R3’s charge nurse, Chelsea DeSoto, who contacted the DON. The DON instructed Charge Nurse DeSoto to place R1 on 15-minute checks. CMS Ex. 5 at 1; CMS Ex. 6 at 5- 7; CMS Ex. 10 at 12, 13-14; CMS Ex. 13 at 4; CMS Exs. 16, 17. The surveyors found no documentation – and Petitioner has produced none – showing that checks were implemented. No changes were made to R1’s care plan, which does not direct staff to implement the 15-minute checks. In fact, the record includes no written instructions to staff directing them to check on R1 every 15 minutes.
The facility did not “immediately” report the incident to the state agency, but delayed two days, reporting, by email on June 28, this and two subsequent incidents. CMS Ex. 6. In that initial report, the facility misrepresented the June 26 incident, claiming, falsely, that R3’s clothing was undisturbed and that R1 had been rubbing her chest on top of her clothing. CMS Ex. 6 at 2.
R1 appears to have been involved in two separate altercations on **June 27**.7
 According to one progress note, entered at 2:16 p.m. that day, R1 grabbed the hand of a severely cognitively impaired resident, R4 (BIMS score 04), who did not want her hand held. CMS Ex. 6 at 2; CMS Ex. 13 at 5.
A second progress note, entered at 2:21 p.m., indicates that R1 grabbed an even more severely impaired woman, R2 (BIMS score 01). CMS Ex. 13 at 1. According to the written statement from the nurse aide who witnessed the encounter, R2 was sitting at a window when R1 “came up beside her and put his arm around her.” CMS Ex. 14 at 1. She pushed his arm away. The nurse aide asked R1 to leave R2 alone. R1 ignored her and “went to grab [R2] around her back . . . .” She hit him, pushed him away, and wheeled herself away from him. The nurse aide reported the incident. CMS Ex. 14. In reporting this incident to the state agency, the facility said that a nurse aide witnessed R1 “pulling on” R2’s wheel chair; R2 tried to get away, but he kept pulling her toward him. When he grabbed her hand, she started to hit him. She pulled her hand away, and the nurse aide intervened. CMS Ex. 6 at 2.
**Page 9**
A social services note, dated June 27, reiterates R1’s “history of exhibiting sexual inappropriateness with females” and suggests that his physician prescribe the antipsychotic drug, Seroquel. Someone from social services also told R1 that he should not touch or grab others. CMS Ex. 13 at 4.
The 15-minute checks supposedly continued, although, again, no written instructions to do so were directed to staff, and no checks were recorded in the resident’s care plan or anywhere else. CMS Ex. 6 at 3; *see* CMS Ex. 13 at 4.
Petitioner dismisses the June 27 incidents as not constituting “sexual touching.” P. Reply at 5; CMS Ex. 10 at 22. Sexual or not, unwelcome advances from an inadequately-supervised aggressor are assaults, and section 483.13 mandates that facility residents should not be subject to them. That the victim of an assault manages to prevent the attack from escalating (as appears to have happened here) does not relieve the facility of its obligation to prevent the assault from happening in the first place. It’s the facility’s job to protect its residents; they should not be required to protect themselves.
On June 28, R1’s physician prescribed Seroquel. CMS Ex. 13 at 7.
On **June 29**, another resident, R5 (an 84-year-old woman, who was depressed and suffered from dementia), was sitting in the doorway to her room, dozing, when R1 approached and tried to pull her nightgown up. She woke, yelled, and staff intervened, separating them. R5 was left tearful and afraid, refusing to leave her room so long as R1 remained in the facility. CMS Ex. 5 at 1; CMS Ex. 10 at 1; CMS Ex. 13 at 3; CMS Ex. 15. The facility put R1 on 1:1 supervision and later transferred him to a psychiatric hospital for another evaluation of his behaviors. CMS Ex. 6 at 3.
It seems that the facility did not begin to investigate any of these incidents until sometime after the June 29 incident. Indeed, the written statements of witnesses are dated *July 8*, well after the incidents occurred. CMS Exs. 14, 15, 16, 17. And the witness statements are not uniformly consistent with the contemporaneous documentation. One nurse aide describes what appears to be the June 27 incident with R2, but has the date wrong, indicating that it occurred on *July* 29. The date is obviously in error. Assuming she meant June 29, she still had the date wrong. CMS Ex. 14. The facility should have taken her statement immediately following the June 27 incident, which is when it should have initiated its investigation.
The written statement from R3’s charge nurse, also dated July 8, describes the incidents with R4, R2, and R5. She is vague about the exact date (“June 2016”), but, according to her statement, all three incidents occurred on the same day, which – unless she is referring to additional, unreported incidents – is incorrect. CMS Ex. 15.
**Page 10**
The facility’s administrator, Cheryl Hoover, submitted the facility’s investigative report to the state agency on July 8, 2016 – missing the five-working-day deadline for reporting the results of its investigation. The results of the June 26 investigation should have been submitted no later than July 1. For the June 27 incidents, the report was due July 5 (June 27, 2016 was a Monday; the following Monday, July 4, was a federal holiday). Even the report of the July 29 incident was untimely; it should have been submitted to the state agency no later than July 7.
Facility residents were thus not free from physical and mental abuse. The facility’s policies, such as they were, were inadequate; they did not prohibit the mistreatment and abuse of residents. Violations were not timely and thoroughly investigated, and the facility made minimal efforts to prevent further abuse while it investigated. No new interventions were added to R1’s care plan. Although it claims that it imposed 15-minute checks, no documentation shows that staff carried out the intervention. Even assuming that they did, the intervention was obviously not effective. Yet, until more abuse occurred, the facility did not consider whether the intervention was working. The facility did not timely report the results of its investigations. For these reasons, it was not in substantial compliance with 42 C.F.R. § 483.13(b) and (c).
Citing the February 9, 2016 psych evaluation, Petitioner claims that R1’s assaults were “the result of uncontrollable impulses caused by his condition.” P. Reply at 10; *see* CMS Ex. 11; P. MSJ at 8. In fact, the psychiatric evaluation does not say that R1’s impulses were uncontrollable; it lists “impulse control disorder, unspecified,” as a potential diagnosis, which does not mean that the resident had no control. CMS Ex. 11 at 2; *see also* P. Ex. 3 at 2 (indicating no major mental disorder). Moreover, if this were true, facility staff were required to be hyper-vigilant to prevent him from approaching women residents. Yet, in each of these instances, R1 was able to approach and actively molest or assault the resident before staff intervened.
Similarly, Petitioner’s claim that R1 moved very slowly in his wheelchair, spent much of his time in public areas, and was therefore “effectively under the constant supervision of staff when he was not in his room” does not help its case. P. MSJ at 9; P. Reply at 7.8
 If, in fact, R1 moved that slowly and was adequately supervised, staff should have been able to intervene as soon as he approached a woman resident, particularly a defenseless one like R3, who was effectively unresponsive, or R5, who was sleeping. Instead, he was able to approach his victims and lay hands on them before anyone intervened. Not allowing an aggressive resident to approach a vulnerable one does not, as Petitioner suggests, compromise the “rights of the resident suffering from sexual disinhibition and
**Page 11**
engaging in sexually inappropriate behavior,” particularly where, as here, the potential victim does not or cannot consent to his approach. P. MSJ at 15, *citing Holy Cross Vill. at Notre Dame, Inc.*, DAB No. 2291 (2009).
Petitioner also suggests that, because R1 was so impaired, his actions did not constitute abuse. Again, Petitioner likely exaggerates R1’s level of impairment; a BIMS score of 11 shows moderate impairment. But putting that aside, it is settled that, so long as his actions were “deliberate” rather than accidental or inadvertent, they are considered “willful” within the meaning of the regulation. *Merrimack Cnty. Nursing Home*, DAB No. 2424 at 4-5 (2011); *Britthaven, Inc.,* DAB No. 2018 at 4 (2006); *cf. Singing River Rehab. & Nursing Ctr.*, DAB No. 2232 at 13 (2009) (suggesting that, so long as a mentally ill resident did not act “by accident,” his conduct was abusive).
***2. CMS’s determination that the facility’s substantial noncompliance posed immediate jeopardy to resident health and safety is not clearly erroneous.***
**Immediate jeopardy**. Immediate jeopardy exists if a facility’s noncompliance has caused or is likely to cause “serious injury, harm, impairment, or death to a resident.” 42 C.F.R. § 488.301. CMS’s determination as to the level of a facility’s noncompliance (which would include an immediate jeopardy finding) must be upheld unless it is “clearly erroneous.” 42 C.F.R. § 498.60(c). The Board has observed repeatedly that the “clearly erroneous” standard imposes on facilities a “heavy burden” to show no immediate jeopardy and has sustained determinations of immediate jeopardy where CMS presented evidence “from which ‘[o]ne could reasonably conclude’ that immediate jeopardy exists.” *Barbourville Nursing Home*, DAB No. 1931 at 27-28 (2004), *citing Koester Pavilion*, DAB No. 1750 (2000); *Daughters of Miriam Ctr.*, DAB No. 2067 at 7, 9 (2007).
Once CMS presents evidence supporting a finding of substantial noncompliance, it need not offer evidence to support its immediate jeopardy determination. The burden is on the facility to show that CMS’s determination is clearly erroneous. *Grace Healthcare of Benton*, DAB No. 2189 at 13 (2008), *citing* *Liberty Commons Nursing & Rehab Ctr.- Johnston*, DAB No. 2031 at 17-18 (2006), *aff’d*, *Liberty Commons Nursing & Rehab Ctr. – Johnston v. Leavitt*, 241 F. App’x 76 (4th Cir. 2007).
By their very nature, incidents of physical or sexual assault are likely to cause serious injury or harm to a vulnerable population. Indeed, any attack on an elderly and infirm individual – physical or verbal – can cause serious physical or emotional harm. Such individuals are susceptible to falls, broken bones, lacerations, hematomas, head injuries, fear, distress, and other traumas. *Grace Healthcare*, DAB No. 2189 at 13. (“[A]ny abuse of a frail nursing home resident can be lethal.”). Those residents who fought R1 off and managed to get away from him could easily have been injured in the process, or they
**Page 12**
could have injured him. And the facility’s records document actual harm. *See* CMS Ex. 13 at 3. (reporting that R5 was “tearful” and “afraid” following R1’s assault on her).
Petitioner has thus not met its burden of establishing that CMS’s immediate jeopardy determination is clearly erroneous.
***3. The penalties imposed are reasonable.***
To determine whether the CMPs are 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.
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 above factors. I am neither bound to defer to CMS’s factual assertions, nor free to make a wholly independent choice of remedies without regard for CMS’s discretion. *Barn Hill Care Ctr.*, DAB No. 1848 at 21 (2002); *Cmty. Nursing Home*, DAB No. 1807 at 22 *et seq*. (2002); *Emerald Oaks*, DAB No. 1800 at 9 (2001); *CarePlex of Silver Spring*, DAB No. 1638 at 8 (1999).
Here, CMS imposes a penalty of $4,250 per day for each day of immediate jeopardy, which is in the low range for a per day CMP ($3,050-$10,000). 42 C.F.R. §§ 488.408(e)(1)(iii); 488.438(a)(1)(i).9
 For the period of substantial noncompliance that was not immediate jeopardy, CMS imposes a penalty of $150 per day, which is at the very low end of the applicable penalty range ($50-$3,000). 42 C.F.R. § 488.408(d)(1)(iii); 488.438(a)(1)(ii). Considering the relevant factors, these penalties are reasonable.
CMS offers no evidence of the facility’s history.
Petitioner does not claim that its financial condition affects its ability to pay the CMP.
**Page 13**
Applying the remaining factors, I have discussed above the facility’s multiple failures to keep its residents safe from abuse. The facility had not developed or implemented policies adequate to keep them safe from attack. The facility well knew that R1 threatened its vulnerable women residents. Yet, he was able, repeatedly, to approach and molest them. When the attacks occurred, staff delayed investigating and reporting. It did not amend his care plan to address the problem and had no systems in place to assure that all staff were trained to respond appropriately to his behaviors. When it was apparent that the facility’s one intervention – 15-minute checks – was inadequate, the facility did not consider an alternative. The facility is culpable for all of these very serious failings.
For these reasons, I find that the relatively low per-day CMPs are reasonable.
***4. CMS’s determinations as to the duration of the facility’s substantial noncompliance and immediate jeopardy are consistent with statutory and regulatory requirements.***
Petitioner suggests that the duration of the penalty is unfair because it discharged R1 before the surveyors arrived at the facility.
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); *Taos Living Ctr.* , DAB No. 2293 at 20 (2009); *Premier Living & Rehab Ctr.*, DAB No. 2146 at 23 (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 insure 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. § 488.456(a) and (e); *Hermina Traeye Memorial 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 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.
Similarly, CMS’s determination that a facility’s ongoing noncompliance remains at the level of immediate jeopardy during a given period “is subject to the clearly erroneous standard of review under [42 C.F.R. §] 498.60(c)(2).” *Life Care of Elizabethton*, DAB
**Page 14**
No. 2367 at 16, *quoting Brian Ctr.*, DAB No. 2336 at 7-8 (2010). 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).
Petitioner’s problems were not limited to one aggressive resident. Where, as here, the facility’s policies have proven inadequate to prevent abuse, it must review those policies and procedures and amend them to insure that no other resident will be abused. Here, it did not do so until August 1. Staff then had to be trained to follow those procedures, and management had to ensure that the procedures were followed and that they were effective in keeping residents safe. Indeed, based on the inservice summary and attendance records, it appears that one staff person did not receive training until August 13, 2016, and it is questionable whether a few other staffpersons ever received the training. CMS Ex. 18 at 1-2.
The facility has thus not met its burden of establishing that it alleviated the immediate jeopardy prior to August 1 nor that it returned to substantial compliance any earlier than August 7, 2016.
Conclusion
From July 1 through August 7, 2016, the facility was not in substantial compliance with Medicare program requirements and, from July 1 through 31, 2016, its deficiencies posed immediate jeopardy to resident health and safety. The penalties imposed – $4,250 per day for the period of immediate jeopardy and $150 per day for the period of substantial noncompliance that was not immediate jeopardy – are reasonable.


          /s/
        Carolyn Cozad Hughes

                      Administrative Law Judge
      1. Since the time of the survey, CMS has amended its regulations governing nursing home participation in the Medicare program.  81 Fed. Reg. 68,688 (October 4, 2016).  I apply the regulations that were in effect at the time of the survey.  See Golden Living Ctr. – Mountain View, DAB No. 2953 at 1 n.1 (2019). back to note 1
                      2. My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision. back to note 2
                      3. In response to the survey, the facility admittedly amended its abuse policy to require that staff update the resident care plan and that staff investigate and report the abuse, which undermines its claim here that the surveyors did not identify these as problems. back to note 3
                      4. BIMS is a screening test used to assess cognition. back to note 4
                      5. This examining psychiatrist also noted that R1 was threatening to kill his roommate, but opined:  “I do not feel he is strong enough to harm his roommate.”  P. MSJ at 7, quoting P. Ex. 2 and CMS Ex. 13 at 6 (these exhibit cites together comprise the full text of the psychiatrist’s note).  The record includes no further details of R1’s relationship with his roommate.  I’m not sure how much strength it takes to kill a person (probably not much if the victim is sleeping), but it seems that this one-sentence assessment would provide cold comfort to the object of the threats.  back to note 5
                      6. R1 was also in the habit of kissing staff members’ hands and rubbing their backs.  CMS Ex. 10 at 22.  This seems inappropriate, but apparently staff allowed it and did not consider it a behavior problem. back to note 6
                      7. In her final report of the investigation, the facility’s administrator described these incidents as having occurred on June 29.  CMS Ex. 5 at 1.  Both the progress notes and the facility’s initial report to the state agency show that the incidents occurred on June 27.  CMS Ex. 6 at 2; CMS Ex. 13 at 1, 5. back to note 7
                      8. I’m not sure that the record includes much support for Petitioner’s claim that R1 was slow-moving.  He used a wheelchair for locomotion, although he was capable of walking.  CMS Ex. 6 at 2-3; P. Ex. 3 at 3.  One of Petitioner’s witnesses makes the claim, but no clinical evidence supports it.  P. Ex. 8 at 1 (DeKeyser Decl. ¶ 4).  back to note 8
                      9. Effective August 1, 2016, the CMP amounts increased substantially.  See 45 C.F.R. § 102.3.  CMS based its penalties on the lower amounts that were in effect at the time the survey began. back to note 9 Back to top
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