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                              Aristacare at Whiting, DAB CR6405 (2023)
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Aristacare at Whiting, DAB CR6405 (2023)








  
  
    

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





Aristacare at Whiting(CCN: 315309),Petitioner,v.Centers for Medicare & Medicaid Services.
Docket No. C-22-29Decision No. CR6405December 14, 2023

        
              
    

      DECISIONI grant summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS) and against Petitioner, Aristacare at Whiting, a skilled nursing facility doing business in New Jersey.  I sustain the imposition of the following per-diem civil money penalties against Petitioner:  $17,045, to remedy a day of immediate jeopardy level noncompliance, on November 21, 2020; and $225, to remedy non-immediate jeopardy level noncompliance during a period that began on November 22, 2020, and that continued through December 13, 2020.I. BackgroundThis case originally was assigned to another administrative law judge and was recently transferred to my docket.Reviewing the record, I found a pending motion by CMS, opposed by Petitioner, to amend its notice of noncompliance and imposition of remedies.  Additionally, the record contains CMS’s motion for summary judgment and Petitioner’s opposition to that motion.**Page 2**As a preliminary matter, I grant CMS’s motion to amend its notice.  The original notice of noncompliance advised Petitioner that CMS would impose a per-instance civil money penalty of $17,045 against Petitioner to remedy immediate jeopardy level noncompliance, along with per-diem penalties.  CMS moved to amend its notice to change the per-instance remedy determination to a per-diem determination.I grant CMS’s motion to amend.  It addresses a technical issue and granting it does not prejudice Petitioner.  Petitioner was afforded ample opportunity to address not only the issue of immediate jeopardy but the reasonableness of the remedies that CMS determined to impose.CMS filed 28 exhibits to support its motion for summary judgment, identified as CMS Ex. 1 – CMS Ex. 30.  Petitioner filed 30 exhibits in opposition, identified as P. Ex. 1 – P. Ex. 30.  I do not receive these exhibits into evidence because I am issuing summary judgment based on undisputed material facts.  However, I cite to many of them in this decision, either to identify those facts that are undisputed or to address a party’s argument.II. Issues, Findings of Fact and Conclusions of LawIssuesThe issues are whether Petitioner failed to comply with a Medicare participation requirement, whether Petitioner’s noncompliance caused residents to be put at immediate jeopardy, and whether CMS’s remedy determinations are reasonable.Findings of Fact and Conclusions of LawI apply the principles of Rule 56 of the Federal Rules of Civil Procedure in deciding whether to grant summary judgment.  I base my decision on facts that are undisputed.  I make no fact finding that requires a credibility determination.  I find no impediment to deciding a case if resolving a fact dispute in favor of one party or the other would make no difference to the outcome.  Where reasonable inferences may be made from the undisputed facts, I make those inferences that are favorable to the party against whom the motion for summary judgment is filed.*Bartley Healthcare Nursing & Rehab*., DAB No. 2539 at 3-4 (2013) (citing*Celotex Corp. v. Catrett*, 477 U.S. 317, 322-25 (1986)).At bottom, the question that I ask in any case where a party moves for summary judgment is this:  is there any issue that would benefit from being resolved in an evidentiary hearing?  *Fal-Meridian, Inc. v. U.S. Dep’t of Health & Human Servs.*, 604 F.3d 445, 449 (7th Cir. 2010).**Page 3**As I explain below, there is no such issue in this case.  There is no dispute as to what happened here.  Nor are there facts known to witnesses that have not been adduced by the parties, as all witness testimony is of record as affidavits or declarations made under oath.  There is a dispute as to the meaning of what happened and the impact of the decisions that Petitioner’s management and staff made.  That dispute as to meaning and impact lends itself to summary judgment because I need not make credibility findings to resolve it.NoncomplianceAt issue is Petitioner’s compliance with 42 C.F.R. § 483.12(a)(1).  Among other things, this regulation directs a skilled nursing facility to ensure that its residents are free from abuse.  “Abuse” is defined by regulation to mean a deliberate act by an individual that inflicts injury.  42 C.F.R. § 483.5.  “Abuse” includes sexual abuse.  *Id.*  Petitioner adopted its own guidelines to protect residents against abuse and these are consistent with the regulation’s requirements.  CMS Ex. 12.  Petitioner’s abuse policy describes sexual abuse as being:  “non-consensual sexual contact of any type . . . .”  *Id.* at 1; *see*42 C.F.R. § 483.5.CMS alleges that Petitioner failed to comply with the regulation and its own abuse policy because it failed to supervise a resident (Resident 1) who had been found engaging in or attempting sex acts with other residents on several occasions.  CMS contends that the failure to supervise deprived other residents of protection against sexual abuse.The undisputed material facts unequivocally support CMS’s allegations of noncompliance.  These facts establish that Resident 1, a demented individual, either repeatedly attempted to engage in sex with other demented residents or was the subject of other demented residents’ sexual advances.  Petitioner determined to protect its residents from sexual misconduct by, among other interventions, supervising Resident 1 continuously.  However, on the evening of November 21, 2020, Petitioner left the resident without continuous supervision, violating the resident’s plan of care.  The lapse of supervision was not inadvertent but resulted from a deliberate and expedient decision by Petitioner’s management, a decision that was not grounded on any clinical reassessment of the need to supervise Resident 1.I do not find that there are material facts that support a finding that Resident 1 engaged only in consensual sex.Resident 1 began residing at Petitioner’s facility on February 1, 2019.  He was ambulatory but suffered from Alzheimer’s disease.  CMS Ex. 5 at 1-2.  Petitioner’s records establish that the resident’s dementia was severe:  an assessment of the resident made in July 2020 reported that he did not know the current year, month, or day of the week and was unable to recall three words after a short lapse of time.  CMS Ex. 22 at 13.**Page 4**A psychological assessment of the resident performed in September 2020 found that he suffered from depression and dementia, possibly due to a traumatic brain injury.  That assessment concluded that Resident 1 had deficits of memory, cognition, and decision-making.  CMS Ex. 6 at 2.Petitioner housed Resident 1 in a part of its facility set aside for demented residents.  CMS Ex. 2.Resident 1 had multiple sexual encounters with other residents in the dementia wing.  On July 28, 2020, a facility nurse found Resident 1 standing near the head of another resident’s bed with his erect penis close to, or touching, that resident’s face.  CMS Ex. 22 at 6, 8.  On September 6, 2020, another resident was observed entering Resident 1’s room.  Subsequently, a nursing assistant entered the room and found Resident 1 to be pulling up his pants while standing next to the other resident.  CMS Ex. 3 at 10-12.  On September 20, 2020, Resident 1 was observed by a nursing assistant to be in a female resident’s room.  When the nursing assistant entered the room, she observed the female resident to be naked and watched Resident 1 zip up his pants and hurry out of the room.  CMS Ex. 4 at 8.The residents with whom Resident 1 had sexual encounters were demented.  The resident who was involved in the July 28 and September 6, 2020, encounters with Resident 1 suffered from dementia and had a history as a sexual predator of children.  CMS Ex. 3 at 2-4, 5, 8-9.  The female resident with whom Resident 1 had a sexual encounter on September 20, 2020, had moderate to severe memory loss and difficulties recalling events.  P. Ex. 20 at 1; CMS Ex. 4 at 5.On September 24, 2020, Petitioner’s staff modified Resident 1’s plan of care to require that he be supervised continuously.  The plan stated that the resident would not be allowed to be in other residents’ rooms at any time.  CMS Ex. 6 at 4.1A clinical psychologist evaluated Resident 1 on November 18, 2020.  CMS Ex. 8.  The psychologist found the resident to be confused and forgetful, manifesting a depressed mood and a flat affect.  *Id.* at 1.  On that date, Petitioner’s professional staff met and agreed that Resident 1’s plan of care should not be modified, with the resident remaining under continuous supervision.  CMS Ex. 13 at 1.However, Petitioner’s staff failed to monitor Resident 1 continuously on the evening of November 21, 2020, for a six-hour period that began at 5:00 p.m. and that extended through 11:00 p.m.  CMS Ex. 2 at 1; CMS Ex. 17 at 1.  The decision to suspend**Page 5**monitoring was a deliberate decision by Petitioner’s management.  The reason for suspension was that Petitioner was experiencing a staffing shortage on November 21.  CMS Ex. 14 at 19; CMS Ex. 15 at 14-15.The decision to cease monitoring Resident 1 on the evening of November 21 violated staff’s assessment, made only three days previously, that the resident continued to require full-time monitoring.  That suspension of supervision violated not only Resident 1’s care plan, but it contravened Petitioner’s duty to protect its residents pursuant to 42 C.F.R. § 483.12(a)(1) and Petitioner’s sexual abuse policy.  The lapse of protective monitoring put the residents of Petitioner’s dementia unit at risk of sexual abuse.The most disturbing aspect of Petitioner’s management’s decision to cease monitoring Resident 1 is that it had nothing to do with the resident’s clinical condition.  Petitioner’s management made the determination to cease monitoring the resident for reasons of expediency:  on the evening of November 21, Petitioner was short-staffed and management resolved that issue by directing its staff not to supervise the resident continuously.  There is nothing in the record to show that Petitioner’s management assessed the resident’s condition on that evening or that it determined that it would be safe to suspend supervision of the resident.I have considered Petitioner’s contentions and arguments, and I find them to be unpersuasive.As support for its assertions Petitioner relies on the conclusions offered by Gail E. Rader, RN, MSN, GNP, CALA.  P. Ex. 28.  I have closely reviewed Ms. Rader’s affidavit.  Ms. Rader is not a fact witness.  Rather, she offers her opinions based entirely on facts that are of record.  I find that nothing discussed by Ms. Rader raises a dispute of material fact.  As I explain below, her conclusions – which Petitioner restates as arguments – are unpersuasive.Petitioner also relies on the affidavit of Neiza L. Prado, M.D., FAPA.  P. Ex. 24.  Dr. Prado is a psychiatrist who examined Resident 1 on two occasions.  Dr. Prado’s reports are part of the record, and I discuss them below.  I have reviewed Dr. Prado’s affidavit.  Although the affidavit contains Dr. Prado’s opinions – which are essentially the same as the opinions that the doctor expressed in reports of examinations of Resident 1 – it offers no facts in addition to those stated in those reports.  I explain below why I do not find these opinions to be persuasive.Petitioner does not deny that its management suspended continuous monitoring of Resident 1 on the evening of November 21, 2020, nor does it deny that this suspension expressly violated the resident’s plan of care.  Instead, Petitioner offers a “no harm, no foul” defense – contending that on November 21 Resident 1 did not pose a threat to other residents and that continuous monitoring of him was not necessary.  Petitioner, Aristacare**Page 6**at Whiting’s Pre-hearing Brief and Opposition to CMS’s Motion for Summary Judgment (Petitioner’s brief) at 21.Petitioner premises this defense on assertions that Resident 1 could engage in consensual sex; that his encounters with a male resident on July 28 and September 6, 2020, were consensual but were resolved by separating him from that resident; and that his sexual encounter with a female resident on September 20, 2020, was consensual and a mark of affection between Resident 1 and the female resident.  Petitioner asserts additionally that on November 27, 2020, just six days after the suspension of supervision of Resident 1, Dr. Prado determined that continuous monitoring of the resident was unnecessary.  Petitioner’s brief at 20.  From this, Petitioner appears to argue that such monitoring never was necessary.Petitioner’s allegations are irrelevant and of no impediment to my decision to issue summary judgment.  They are irrelevant because they are post hoc rationalizations for an admitted failure by Petitioner to provide Resident 1 with the supervision that its staff had determined to be necessary, a determination that the staff reaffirmed just three days prior to the suspension of monitoring.The undisputed facts make it plain that Petitioner’s staff determined – based on the evidence available to them at the time – that Resident 1 posed a threat to other residents, or that other residents might pose a threat to Resident 1, and that he needed to be monitored continuously.  *See*CMS Ex. 6 at 4.  That determination is embodied in Resident 1’s plan of care and in the staff’s decision on November 18, 2020, to continue with full-time monitoring of the resident.  Staff were obligated to implement that determination to continuously supervise Resident 1.  Failure to implement full-time monitoring cannot now be justified by facts that were not considered when management decided to suspend continuous monitoring of the resident.Furthermore, Petitioner’s assertions, although irrelevant, are not supported by the facts.It was impossible to determine if any of Resident 1’s sexual encounters were consensual based on that resident’s recollections.  When interviewed by Petitioner’s staff after his sexual encounters, Resident 1 consistently asserted that he could not recall any of the events.  CMS Ex. 4 at 9; CMS Ex. 22 at 9.  Petitioner relies on statements or assessments made by other residents or, in the case of the female resident, her daughter, to support its assertion that all the resident’s sexual encounters were consensual.The fatal flaw with this analysis is that all the residents with whom Resident 1 had encounters were demented individuals, persons who Petitioner’s staff or medical professionals had determined lacked the judgment and memory to be able to function independently.  The statements these individuals made about their relations with Resident 1 were inherently untrustworthy and certainly, provided no basis for concluding that the**Page 7**resident’s sexual encounters were consensual.  Furthermore, the female resident’s daughter was not an eyewitness to the sexual encounter that the staff witnessed and so, was in no position to opine whether that encounter was consensual or not.The undisputed facts establish that Petitioner’s staff did not thoroughly investigate Resident 1’s relations with other residents and conclude that those relations were consensual.  These facts establish the opposite to be true, that the staff concluded from the behavior that they observed that Resident 1’s relations with other residents were most likely abusive.  That conclusion was the premise for the staff’s decision to monitor Resident 1 continuously and to keep him out of other residents’ rooms.A skilled nursing facility must respect its residents’ rights and their informed choices.  That duty includes respecting residents’ decisions to engage in consensual intimate relations.  But a facility cannot assume that sex is consensual, especially among residents whose judgment, memory, and decision-making are impaired by dementia.  In that situation, the burden lies on the facility to carefully investigate the relations between residents and to verify that they are consensual.  *Neighbors Rehab. Ctr., LLC v. U.S. Dep’t of Health & Human Servs.*, 910 F.3d 919 (7th Cir. 2018).Here, the undisputed facts do not establish that Petitioner made a careful investigation of whether the sexual encounters between Resident 1 and other residents were consensual.  To the contrary, the staff reached the opposite conclusion based on the evidence known to them.  Petitioner’s effort to justify ceasing supervising Resident 1 doesn’t rely on the staff’s investigation and conclusions but rather, on an attempt to prove by hindsight that Resident 1’s conduct was benign and that other residents consented to it.Petitioner’s contention that Resident 1’s sexual encounters with another male resident (who was Resident 1’s roommate) were consensual rests on what that other resident reported when interviewed on September 7, 2020.  Petitioner’s brief at 9.  This resident’s self-serving statements are inherently unreliable and do not raise an issue of material fact.  The roommate was a sexual predator of children and was on court-ordered probation.  CMS Ex. 3 at 3, 8, 9.  He, like Resident 1, was demented and housed in Petitioner’s dementia unit.  The only reasonable inference I can draw from staff’s determination to house this resident there is that they concluded that the resident lacked the judgment and mental acuity to function safely without enhanced supervision.  That renders unreliable anything that the resident reported about his sexual contacts with Resident 1.Petitioner’s hindsight-boosted assertions about Resident 1’s relations with the female resident are similarly unpersuasive.  Petitioner contends that Resident 1 had a “romantic, consensual relationship” with this resident.  Petitioner’s brief at 14.  However, Petitioner cites to no staff assessments of the female resident that would justify this conclusion.  Certainly, Petitioner could not rely on the female resident’s statements to justify**Page 8**concluding that she had a consensual relationship with Resident 1:  this resident suffered from moderate to severe memory loss and had trouble recalling events.  P. Ex. 20 at 1.Petitioner bases its assertion that the relationship between Resident 1 and the female resident was consensual on a statement made to Petitioner’s staff by the female resident’s daughter on October 6, 2020.  The daughter told Petitioner’s staff that she did not believe that her mother was in danger from Resident 1, and that she did not want Resident 1 and her mother to be separated.  P. Ex. 10 at 1.  However, while the daughter’s statement embodies her conclusion that the relationship between Resident 1 and the female resident was consensual, it does not establish that to be the case.  The daughter was not in the room when her mother had a sexual encounter with Resident 1 and had no way of knowing whether that encounter was consensual or forced.Petitioner contends that its staff adequately supervised Resident 1 on the evening of November 21, 2020, even if they discontinued continuous monitoring of the resident on that evening.  Petitioner’s brief at 18.  Petitioner cites to an interview with a licensed practical nurse who contended that Resident 1 habitually stayed in his room and never attempted to come out or to cause any issues.  *Id.*; *see*CMS Ex. 15 at 25.  But this assertion obviously is untrue because it ignores the lengthy history of sexual contacts that Resident 1 had engaged in prior to November 21.  Clearly there were times when the resident left his room.  Petitioner’s staff had no way of knowing on November 21 whether the resident would do so on that evening.  Furthermore, they could not have known whether the resident actually left his room on November 21, because staff did not continuously observe the resident.Petitioner alleges also that its staff took turns sitting with Resident 1 on November 21 when they were not performing assigned duties.  Petitioner’s brief at 18.  I accept this representation as true for purposes of my decision.  However, it does not gainsay the admitted fact that there were periods on that evening when no member of Petitioner’s staff sat with the resident.Petitioner points to a psychiatric evaluation of Resident 1 made by Dr. Prado on September 25, 2020, to justify its assertion that the resident’s sexual encounters were consensual.  CMS Ex. 7 at 12-14.  The report states that Resident 1 was not engaging in a pattern of predatory sexual behavior and that he had engaged in consensual sex with other residents.  *Id.*at 14.  This is a conclusion unsupported by facts of record and therefore unreliable on its face.  It raises no disputed issue of fact and is no impediment to my granting summary judgment.  Dr. Prado did not witness any of the resident’s sexual encounters.  Nor could the psychiatrist rely on the resident’s assertions about what happened because Dr. Prado found that Resident 1 showed poor immediate, recent, and remote recall of events and that his insight and reasoning were poor.  *Id.* at 13.  These findings render unreliable anything that the resident might have said to Dr. Prado about the nature of his sexual relations with other residents.**Page 9**On November 28, 2020, Dr. Prado again evaluated Resident 1.  CMS Ex. 11.  On this occasion, the psychiatrist found that the resident manifested diffuse memory loss for recent and remote events.  Resident 1 was not aware of current events, was unable to give the current date and time, nor could he correctly state his current location.  Nevertheless, Dr. Prado concluded that the resident no longer required continuous monitoring and recommended that the resident be weaned off that intervention.  *Id.*at 3.  Petitioner’s staff subsequently followed Dr. Prado’s recommendation.For purposes of entering summary judgment, I find no fault with the staff’s reduction of monitoring of Resident 1 after November 28, 2020.  That, however, does not detract from my conclusion that the staff was noncompliant when they ceased monitoring Resident 1 on the evening of November 21.  At that time, the staff had no assurances from a psychiatrist that the resident’s monitoring could be reduced.  As I have explained, hindsight may not be used to justify failure to comply with a resident’s plan of care or facility policies.Immediate jeopardyRegulations define “immediate jeopardy” to be noncompliance that causes or is likely to cause a resident or residents of a facility to experience serious injury, harm, impairment, or death.  42 C.F.R. § 488.301.  Where CMS determines that noncompliance is at the immediate jeopardy level, the burden falls on the facility to prove that determination to be clearly erroneous.  42 C.F.R. § 498.60(c)(2).  A finding of immediate jeopardy level noncompliance is presumptively correct.  *Liberty Commons Nursing & Rehab Ctr. - Johnston,*DAB No. 2031 at 18-19 (2006), *aff’d*, *Liberty Commons Nursing & Rehab Ctr. - Johnston v. Leavitt,*241 F. App’x 76 (4th Cir. 2007).In cases where I hold evidentiary hearings, I would evaluate a finding of immediate jeopardy by deciding whether evidence proved that the finding is clearly erroneous.  My task is a bit different when considering a motion for summary judgment.  Here, I ask:  has Petitioner offered facts that, assuming their truth, would show that CMS’s immediate jeopardy determination is clearly erroneous?The undisputed material facts plainly support CMS’s determination.  Petitioner has not offered facts that, assuming their truth, would establish CMS’s determination to be clearly erroneous.The undisputed facts are that Resident 1 had a well-documented history of sexual encounters with other residents, both male and female.  Petitioner’s staff did not assess these encounters as benign.  To the contrary, the staff concluded that the resident’s behavior endangered the well-being of other residents in Petitioner’s dementia unit, residents who were helpless to protect themselves from Resident 1’s advances.  That is made evident from the staff’s determinations to separate Resident 1 from his roommate,**Page 10**to bar his entry into other residents’ rooms, and to supervise him constantly.  CMS Ex. 6 at 4, 12.Immediate jeopardy certainly resulted from leaving Resident 1 unsupervised on the evening of November 21, 2020.  That was an obvious and admitted violation of the resident’s plan of care.  But immediate jeopardy also resulted from the fact that management decided, for non-clinical reasons, that the staff should cease monitoring the resident on that evening.  The inescapable conclusion is that Petitioner’s management was willing, for expediency’s sake, to disregard the needs of its residents and the risks and hazards that they encountered.  That put Petitioner’s residents in harm’s way, not only in the specific instance of ceasing monitoring Resident 1, but generally.Petitioner argues that there is no indication in the record that its staff failed adequately to assess or plan the care of the residents in its dementia unit.  Petitioner’s brief at 19.  That may be true, but it is irrelevant.  CMS does not allege that Petitioner failed adequately to plan residents’ care.  Rather, it has offered proof that Petitioner failed to implement a critical element of a resident’s plan of care.  Petitioner has not rebutted that proof.Petitioner alleges also that there is no evidence to show that Resident 1 was sexually seeking, sexually aggressive, or abusive.  Petitioner’s brief at 18.  That assertion is simply incorrect.  Staff had every reason to infer from Resident 1’s conduct that the resident was engaging in sexually aggressive behavior.  As I have discussed, Petitioner did not offer facts from which I could infer that the resident’s conduct was benign.  Importantly, Petitioner’s staff did not treat that behavior as benign at any time up to and including November 21, 2020.Petitioner contends that there was no likelihood of a serious adverse consequence from Resident 1’s behavior for other residents of Petitioner’s dementia unit.  Petitioner’s brief at 18.  It premises this conclusion on the fact that from September 24, 2020, when staff first implemented continuous monitoring for Resident 1, until November 21, 2020, there was not a single incident of inappropriate sexual behavior involving Resident 1.  Petitioner’s brief at 19.  That is certainly true.  However, Resident 1 was subject to continuous monitoring during the entire period.  The reasonable inference that I draw is that the monitoring was successful.  There is nothing in the record that could allow me to conclude that the resident would have ceased seeking sexual gratification from other demented residents had the monitoring been discontinued at any point during this period.Finally, Petitioner seeks – again with the benefit of hindsight – to characterize Resident 1’s conduct as consensual and benign.  Petitioner’s brief at 19-20.  However, and as I have explained, the record does not support a conclusion that the resident’s behavior was benign.  Rather, and as I have explained, there was every reason for staff to conclude that the sexual encounters were either unwanted or were made possible by the residents’ loss of cognition.**Page 11**RemediesThese remedies are at issue:  a per-diem civil money penalty of $17,045 to remedy a single day of immediate jeopardy level noncompliance (November 21, 2020); and a per-diem civil money penalty of $225 to remedy non-immediate jeopardy level noncompliance for a period that began on November 22, 2020, and that extended through December 13, 2020.I find these remedies to be reasonable, both in penalty amount and in duration.The penalty amounts fall within the permissible ranges of per-diem penalty amounts for immediate and non-immediate jeopardy level civil money penalties.  42 C.F.R. § 488.438(a)(i), (ii); 45 C.F.R. Part 102.2  The amounts are supported by the factors used in deciding penalty amounts set forth at 42 C.F.R. §§ 488.438(f)(1)-(4) and 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)).  In this case the relevant factors include the seriousness of Petitioner’s noncompliance, its culpability, and its compliance history.The noncompliance was serious.  As I have discussed, the undisputed facts establish that CMS’s determination of immediate jeopardy level noncompliance was not clearly erroneous.  Resident 1’s behavior prior to November 21, 2020, gave Petitioner’s staff every reason to believe that he endangered other residents of Petitioner’s dementia unit.  Furthermore, the decision by Petitioner’s management to abandon continuous supervision of the resident on the evening of November 21 for reasons other than clinical is a reason to conclude that management was willing to disregard the resident’s proven needs when it was expedient to do so.That decision shows Petitioner’s management to be culpable for what happened on November 21.  The undisputed facts show that management deliberately abandoned continuous supervision of Resident 1 on that evening in plain contravention of the resident’s plan of care and without any clinical justification for doing so.  As I have discussed, there is zero evidence to show that management made its decision for any reason other than expediency.Finally, Petitioner’s compliance history justifies the penalty amounts.  Petitioner has an extensive history of noncompliance, including a prior finding of abuse involving Resident 1.  CMS Ex. 1; CMS Ex. 28.**Page 12**Petitioner has not challenged the penalty amounts nor the duration of noncompliance determined by CMS except to assert that any penalties are unreasonable, premised on its contention that it complied with participation requirements.  *Coquina Ctr.*, DAB No. 1860 (2002) (“In effect, there is a presumption that CMS has considered the regulatory factors in setting the amount of the CMP and that those factors support the CMP amount imposed by CMS.  Unless a facility contends that a particular regulatory factor does not support that CMP amount, the ALJ must sustain it.”); *see*Petitioner’s brief.  I have addressed Petitioner’s arguments in this decision and need not address them again.Endnotes1  The plan of care modifications appear to have responded, at least in part, to New Jersey state surveyors’ findings that Resident 1’s behavior jeopardized other residents in the dementia wing.2  The range for per-day immediate jeopardy deficiencies is $6,808 to $22,320, while the lower range for deficiencies that are not immediate jeopardy is $112 to $6,695.  45 C.F.R. § 102.3.
  
          /s/
        Steven T. Kessel

                      Administrative Law Judge Back to top
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