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                              Shore Meadows Rehab & Nursing Center, DAB CR5836 (2021)
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Shore Meadows Rehab & Nursing Center, DAB CR5836 (2021)








  
  
    

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





Shore Meadows Rehab & Nursing Center
(CCN: 31-5454),
Petitioner,

v.

Centers for Medicare & Medicaid Services.
Docket No. C-19-1120Decision No. CR5836March 23, 2021

        
              
    

      DECISION

I enter summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS) sustaining its determinations:  that Petitioner, Shore Meadows Rehab & Nursing Center, a skilled nursing facility, failed to comply substantially with two Medicare participation requirements; that its noncompliance with these requirements was so egregious as to constitute immediate jeopardy for residents of Petitioner's facility; and that a civil money penalty of $13,813 for each day of a period of noncompliance beginning on January 25, 2019 and continuing through February 13, 2019, is a reasonable remedy.

I. Background

I very recently received this case as a transfer from the docket of another administrative law judge.  The record contains a fully briefed motion for summary judgment filed by CMS and opposed by Petitioner.

CMS filed 53 proposed exhibits, identified as CMS Ex. 1-CMS Ex. 53.  Petitioner filed 28 proposed exhibits, identified as P. Ex. 1-P. Ex. 28.  I do not rule on the admissibility of these exhibits inasmuch as I enter summary judgment based on undisputed facts.  I cite to some of these exhibits but only to illustrate material facts that are not in dispute.

**Page 2**

II. Issues, Findings of Fact and Conclusions of Law

**A. Issues**

The issues are whether Petitioner failed to comply substantially with two Medicare participation requirements set forth at 42 C.F.R. §§ 483.12 and 483.25(d); whether Petitioner's noncompliance was so egregious as to constitute immediate jeopardy for residents of Petitioner's facility; and whether CMS's remedy determination is reasonable.1

**B. Findings of Fact and Conclusions of Law**

I may grant a motion for summary judgment only in the circumstance where there are no disputed issues of material fact.  Where more than one inference may be drawn from facts – even undisputed facts – I must, in deciding a motion for summary judgment, draw inferences most favorable to the opposing party.

In this case, I find the material facts to be undisputed.  They unequivocally support CMS's findings of noncompliance and immediate jeopardy, and they establish CMS's remedy determination to be reasonable.

**1.  Petitioner's noncompliance**

At bottom, this case reduces to a discussion of the care that Petitioner provided to a single resident, identified as Resident 3.  The undisputed facts establish that this resident, a physically imposing, relatively young, yet demented and emotionally disturbed individual, posed a serious threat to the health and safety of other residents.  Petitioner knew when it accepted Resident 3 to its resident roster that he was an individual who was agitated and aggressive, but nevertheless, it accepted him.  During a period lasting a bit longer than a year, Resident 3 physically assaulted other residents on seven separate occasions and engaged in additional threatening behavior towards residents.  Petitioner attempted various interventions but never succeeded in protecting other residents from Resident 3's assaults.  It also attempted to transfer Resident 3 from its premises on multiple occasions but failed, because no other facility was willing to accept him.

Once Petitioner agreed to accept Resident 3 onto its roster, it became duty-bound to protect its other residents.  It failed to do so.  The various interventions that Petitioner attempted not only were ineffective, but Petitioner knew or should have known that they

**Page 3**

would be ineffective.  Petitioner's arguments notwithstanding, it failed to consider and to implement all reasonable interventions that might have better protected its residents from Resident 3.

The undisputed facts sustain CMS's determination of immediate jeopardy level noncompliance.  The only reasonable inference that I may draw from these facts is that, sooner or later, Resident 3 would have at the least seriously injured other residents given his propensity for violence and the history of violent acts that this resident perpetrated.  Finally, the undisputed facts amply support CMS's civil money penalty determination.  Indeed, these facts establish that the remedy determination is quite modest.

These facts are undisputed:2

Petitioner has a policy of protecting residents against abuse that provides, among other things, that:  "Residents must not be subjected to abuse by anyone . . . ."  CMS Ex. 39.
	Resident 3 began living at Petitioner's facility on December 22, 2017.  CMS Ex. 1 at 3-4.  His medical diagnoses included dementia with behavioral disturbances.  *Id.* He was then under the age of 60, a physically imposing man, 6'2" tall, and weighed over 300 pounds.  CMS Ex. 7 at 16.  The resident's family informed Petitioner's staff that, at home, he was agitated and aggressive.  CMS Ex. 3 at 3.
	Resident 3 assaulted another resident only about two weeks after his admission to Petitioner's facility.  On January 8, 2018, he assaulted a female resident, causing that resident to fall.  CMS Ex. 4 at 1; CMS Ex. 6 at 1.
	Over the course of the ensuing year, Resident 3 assaulted other residents on six additional occasions, on the following dates:  February 8, March 30, May 31, August 6, and October 25, 2018, and January 25, 2019.  CMS Ex. 4 at 1-4; CMS Ex. 6 at 1-5.
	For example, on August 6, 2018, Resident 3 assaulted Resident 2 as the latter resident, who suffers from cerebral palsy and is wheelchair-bound, was exiting an**Page 4**

elevator in Petitioner's facility.  Resident 3 grabbed Resident 2, knocked him out of his wheelchair, took him to the ground, and wrestled with him.  CMS Ex. 8.  Resident 3's explanation for this assault was that Resident 2 had "pissed me off."  *Id.* at 1.

As another example, on October 25, 2018, Resident 3 attacked Resident 4 as the resident was entering an elevator.  Resident 3 punched Resident 4 in the face.  Resident 4 sustained an abrasion over his eye and required emotional support.  CMS Ex. 29.  Resident 3's explanation for this assault was that Resident 4 had annoyed him.  P. Ex. 12.
	On another occasion, on January 25, 2019, Resident 3 again attacked Resident 2.  Resident 3 entered Resident 2's room and punched him in the face.  CMS Ex. 25.  Resident 2 was injured by this assault, suffering a contusion around his eye.  *Id.*
	Aside from assaulting other residents, Resident 3 was also verbally aggressive.  Documented incidents of aggression occurred on October 4, October 11, October 28, and December 4, 2018.  CMS Ex. 5 at 2-4; CMS Ex. 13 at 2; CMS Ex. 14 at 1‐5; CMS Ex. 34 at 1.  On October 28, 2018, Resident 3 confronted another resident in Petitioner's courtyard.  He verbally threatened and attempted to strike this resident.  CMS Ex. 14 at 4.
	Petitioner implemented essentially the same interventions each time Resident 3 assaulted another resident.  These included:  one-to-one supervision of the resident until the resident could be sent to a hospital for psychiatric evaluation; having the resident psychiatrically evaluated at a hospital; one-to-one supervision of the resident or monitoring checks at 30-minute intervals for a period of 24 hours after the resident returned from the hospital; follow-up psychological or psychiatric examinations; adjustment of medication; and evaluation of the resident via a statewide clinical outreach program.  CMS Ex. 1; CMS Ex. 4; CMS Ex. 6; CMS Ex. 49 at ¶¶ 75, 82, 94-99; P. Ex. 1 at 1-3; P. Ex. 23 at ¶¶ 13-49; P. Ex. 25 at ¶¶ 7‐49.
	Psychological examinations of Resident 3 by Petitioner's staff lasted about 15 minutes.  *See* P. Ex. 25 at ¶ 19.
	None of the psychiatric or psychological evaluations of Resident 3 found him to be a danger to himself or others.  *See* P. Ex. 23 at ¶ 52; P. Ex. 25 at ¶ 52.  However, on at least one occasion a clinician recommended that Petitioner's staff maintain frequent supervision of Resident 3.  CMS Ex. 10.**Page 5**

On several occasions, Petitioner changed Resident 3's room in an apparent effort to remove him from close proximity to other residents whom he had assaulted.  CMS Ex. 4 at 4; P. Ex. 6 at 1-4.  Petitioner's staff placed a "stop" sign on the door to the resident's room in an effort to deter other residents from putting themselves at risk by entering the room.  CMS Ex. 6 at 1, 3-4.
	None of the interventions instituted by Petitioner deterred Resident 3 for long from behaving aggressively or assaulting other residents.
	Petitioner employs behavior monitoring aides on its staff.  These employees are responsible for monitoring the hallways of Petitioner's facility and residents' rooms.  CMS Ex. 1 at 6; CMS Ex. 2 at 11, 25, 30.  At no time did Petitioner assign a behavior monitoring aide or aides to monitor Resident 3 on a long-term basis.  There is no evidence that Petitioner ever contemplated doing so.
	Throughout the period between December 22, 2018 and January 25, 2019, Resident 3 was free to roam Petitioner's facility without supervision except during those periods immediately after the assaults that the Resident perpetrated, when he was briefly monitored closely.
	Petitioner attempted on multiple occasions to transfer Resident 3 from its facility.  P. Exs. 14-22; P. Ex. 24 at ¶¶ 8-9, 11-16.  On each occasion, the facility to which Petitioner requested to transfer Resident 3 rejected the request.  P. Ex. 24 at ¶ 17.These undisputed facts aren't in the least murky or ambiguous.  They present a very acutely drawn picture of Resident 3, his behavior, and the manner in which Petitioner responded to the numerous assaults that this resident perpetrated against other residents.

Petitioner knew or should have known even prior to admitting Resident 3 that he posed a potentially significant problem to other residents, because the resident's family warned Petitioner's staff that Resident 3 was agitated and aggressive.  He was also physically imposing.

Trouble began almost immediately after Petitioner admitted Resident 3.  He assaulted another resident barely two weeks after his admission.  He continued to perpetrate assaults, seven in all, over a period of a year.  The undisputed facts establish a definite pattern to these assaults.  They consisted of unprovoked attacks by Resident 3 on other residents.  Resident 3 assaulted other residents throughout Petitioner's facility, in common areas, such as elevators, but also in other residents' rooms.

I have no doubt that other residents viewed Resident 3 as an intimidating – even terrifying – presence.  Resident 2, a severely impaired and wheelchair bound individual, certainly viewed Resident 3 as menacing.  Resident 3 assaulted Resident 2 twice, injuring

**Page 6**

Resident 2 on the second occasion, prompting Resident 2 to file a report with the police.  CMS Ex. 2 at 4-5, 21; CMS Ex. 49 at ¶¶ 48-49; CMS Ex. 51 at ¶¶ 31-32.

A skilled nursing facility has an absolute duty to do everything within its power to protect its residents against the kind of unprovoked assaults that are documented by the undisputed facts.  The facility must protect its residents against all foreseeable accidents, including unprovoked assaults of a resident by another resident.  42 C.F.R. § 483.25(d).  It must do whatever it can to protect residents against abuse by other residents.  42 C.F.R. § 483.12.  Petitioner's own policy acknowledges that it has these duties.  CMS Ex. 39.

Did Petitioner do all that it could have done to protect other residents from Resident 3's assaults?  The answer, unequivocally, is "no."  To be sure, Petitioner instituted various interventions after each of the resident's assaults and these interventions are superficially impressive.  As I describe above, after each assault Petitioner maintained close monitoring of the resident prior to and for 24 hours after sending Resident 3 to a hospital for psychiatric evaluation.  Petitioner provided, albeit very brief (15 minutes on average), in-house psychological evaluations of the resident after each of his assaults.  Petitioner relocated Resident 3's room on some occasions, and it consulted with the resident's physician about the resident's medication.

None of these interventions succeeded.  However, Petitioner's staff kept repeating the identical interventions after each assault.  The staff did the same thing over and over in response to the resident's assaults, seemingly expecting a different result each time.  Petitioner's staff knew or should have known, certainly after the second or third assault, that these interventions were inutile.  The inescapable conclusion is that after a while, the staff was essentially going through the motions without any realistic prospect that these interventions would make a significant difference.

Clearly, Petitioner knew that Resident 3 was ungovernable with the interventions that the staff attempted.  The only inference that I can draw from Petitioner's repeated unsuccessful attempts to transfer Resident 3 from its premises is that Petitioner wanted to rid itself of Resident 3 and the problems that he created.

What Petitioner did *not* do was to impose a long-term enhanced monitoring regime for Resident 3.  As I have discussed, the monitoring that Petitioner's staff engaged in was sporadic at best and clearly ineffective.  Shortly after each assault the staff would discontinue close monitoring of the resident and allow him to roam the corridors of Petitioner's facility.  Petitioner had staff – behavior monitoring aides – who were present for the express purpose of keeping an eye on residents and looking for troublesome behavior.  Petitioner never assigned to an aide the explicit duty of keeping tabs on Resident 3.  There is no documentation to show that Petitioner ever contemplated doing that.

**Page 7**

The result was that, for weeks on end, Petitioner left its residents unprotected against the depredations perpetrated by Resident 3.  Residents were continuously at risk of being assaulted because Petitioner permitted Resident 3 to roam through its premises unmonitored.

Petitioner's principal argument is that it could do no more than it did to protect other residents from Resident 3.  It describes a range of possible interventions beyond those that it actually employed.  It contends that each of these interventions would have been illegal or impracticable.

For example, Petitioner asserts that it could neither chemically nor physically restrain Resident 3 because such restraints violate Medicare regulations and are inhumane, to boot.  Petitioner contends that it could not have confined Resident 3 to a secure wing of the facility because confinement there would have put residents of that wing at risk of being assaulted by Resident 3.  *See* Petitioner's Opposition to Motion for Summary Judgment and Pre-hearing Brief of the Petitioner, Shore Meadows Rehab & Nursing Center (Petitioner's brief) at 3-5.

I take no issue with Petitioner's assertions about chemical or physical restraints, nor do I question Petitioner's judgment about whether or not to confine Resident 3 to a secure wing.  That said, Petitioner sets up straw men in asserting that it could not have employed any of these possible interventions.  CMS does not argue that Resident 3 merited any of these interventions, let alone does it contend that chemical or physical restraints would have been lawful.

Petitioner asserts that it was not equipped to monitor Resident 3 continuously:

A skilled nursing facility is not a psychiatric hospital, and it is not equipped to provide ongoing 1:1 direct staff supervision for more than short durations of time when necessary.  This certainly cannot be sustained over a 13-month period on a 24/7 basis for a cognitively impaired resident.

Petitioner's brief at 20.

I find this argument to be unpersuasive.  First, and most significant, CMS did not demand that Petitioner's staff continuously monitor Resident 3.  Thus, Petitioner constructs yet another straw man when it asserts that it was unequipped to monitor Resident 3 continuously.  In fact, CMS accepted a plan of correction from Petitioner that called for checking on the resident at 30-minute intervals.  CMS Ex. 41.  Obviously, Petitioner had the wherewithal to accomplish that because it would not have offered to implement 30‐minute checks if its staff was unable to accomplish that task.  Indeed, Petitioner's staff monitored Resident 3 at 30-minute intervals for a brief period after each assault that the

**Page 8**

resident perpetrated.  Petitioner offered no explanation for its failure to continue this monitoring on a long-term basis prior to filing its plan of correction.

There is, in fact, no evidence that during the period when Resident 3 was perpetrating his assaults, Petitioner explored the possibility of long-term enhanced monitoring of the resident as a means of protecting other residents.  Nothing offered by Petitioner shows that the staff considered this possibility and rejected it as being impossible to implement.

Petitioner's plan of correction, coupled with the undisputed fact that Petitioner did provide enhanced monitoring of Resident 3 for a brief period after each of his assaults, demonstrates that it would have been possible for Petitioner to provide enhanced monitoring of Resident 3 on a continuous basis that would have afforded greater protection to Petitioner's other residents.  Other protective measures might have been feasible.  For example, there are no facts showing that Petitioner considered putting an alarm on Resident 3's bed to alert staff to the resident's possible movements at night.

Finally, Petitioner's assertion that it could not monitor Resident 3 fails in light of the danger that Resident 3 posed to other residents.  Petitioner has not asserted that it was physically impossible to monitor this resident.  Its argument boils down to an assertion that it would have been impractical to do so.  Indeed, it might have been a costly proposition for Petitioner to have assigned staff the full-time responsibility of keeping track of Resident 3.  However, that possible cost was a burden that Petitioner assumed when it agreed to accept Resident 3 to its resident roster.

A facility takes a resident as he or she comes.  It assumes the burden of protecting other residents from a resident's assaultive behavior even if doing so is a costly – even a money losing – proposition.  Petitioner has not shown that it would have been beyond its capabilities for it to have assigned staff to watch over Resident 3 in order to protect its other residents.  The hazard to other residents created by Resident 3 was foreseeable and the interventions needed to protect other residents were foreseeable as well.  That imposed a duty on Petitioner to provide protection.  *See Woodstock Care Ctr.*, DAB No. 1726 (2000), *aff'd,* 363 F.3d 583 (6th Cir. 2003).

Petitioner attempts to hide behind the fact that repeated psychiatric examinations of Resident 3 – after he perpetrated each of his assaults on other residents – did not find him to be a danger to himself or others.  However, whatever these cursory examinations may have found, the facts on the ground prove otherwise.  Petitioner's staff did not need to read psychiatric reports to know that Resident 3 was dangerous.  His repeated unprovoked assaults on other residents mandated Petitioner to protect those residents no matter what the psychiatric reports may have said.

**Page 9**

**2.  Immediate jeopardy**

The term "immediate jeopardy" means noncompliance that is so egregious as to cause, or is likely to cause, serious injury, harm, impairment, or death to a resident of a skilled nursing facility.  42 C.F.R. § 488.301.

In an evidentiary hearing, a skilled nursing facility has the burden of proving that a finding by CMS of immediate jeopardy level noncompliance is clearly erroneous.  In evaluating CMS's motion for summary judgment, I do not weigh the evidence.  Rather, I ask:  are there facts from which I could infer that CMS's determination of immediate jeopardy is clearly erroneous?  I find none here.  All of the facts support a finding that Petitioner's noncompliance was at the immediate jeopardy level.

Petitioner asserts that none of its residents sustained a serious injury from Resident 3's many assaults.  The presence of a serious injury would certainly establish immediate jeopardy.  However, serious injury isn't a necessary predicate for finding immediate jeopardy level noncompliance.  In this case the facts establish a *likelihood* that serious injury or worse would result from Petitioner's ongoing noncompliance.

I take notice that residents of a skilled nursing facility are individuals who are unable to care for their own needs.  They are frequently of very advanced age and all suffer from extremely limiting and often debilitating physical and/or mental impairments.  Many nursing facility residents are frail, and their frailness makes them vulnerable to serious injuries from accidents of all types.

Resident 3 perpetrated brutal assaults on multiple occasions.  More than once Resident 3, an imposing individual weighing more than 300 pounds, punched other residents in the face.  He threw a resident from a wheelchair and wrestled with that resident on the ground.  His assaults caused other residents to suffer bruises and contusions and emotional distress.  One resident – Resident 2 – was so upset by Resident 3's attacks that he called the police.

There is nothing to suggest that Resident 3 would have spontaneously discontinued assaulting other residents if CMS had not insisted that Petitioner implement some continuous monitoring of the resident's behavior.  That a resident would eventually sustain a serious injury or worse from an assault by Resident 3 is the highly likely consequence of the resident's behavior, coupled with the obvious frailty of many residents in a skilled nursing facility.

**Page 10**

**3.  Remedy**

The remedy that CMS determined to impose consists of a $13,813 civil money penalty for each day of a period of immediate jeopardy that commenced on January 25, 2019, and that continued through February 13, 2019.

The penalty amount falls within the range of penalty amounts that CMS may impose for immediate jeopardy level noncompliance.  42 C.F.R. § 488.438(a)(1); 45 C.F.R. § 102.3.  As of the date that CMS determined to impose the penalty, the maximum allowable daily immediate jeopardy level penalty was $21,393.  42 C.F.R. § 488.438(a)(1); *see also* 83 Fed. Reg. 51,369, 51,380 (Oct. 11, 2018).

In evaluating the reasonableness of a civil money penalty, I consider factors that are set forth at 42 C.F.R. §§ 488.438(f)(1)-(4) and 488.404 (incorporated by reference at 42 C.F.R. § 488.438(f)(3)).  These factors include the seriousness of a facility's noncompliance, its culpability, its compliance history, and its financial condition.

In this case the penalty amount is amply supported by undisputed facts establishing the seriousness of the noncompliance and Petitioner's culpability and compliance history.  There are no facts to show that Petitioner's financial condition precludes it from paying the penalties imposed by CMS.  I find the remedy to be reasonable.

The undisputed facts establish Petitioner's noncompliance as very serious.  For a period of nearly a year it allowed Resident 3 to perpetrate assault upon assault against other residents.  These assaults included some particularly brutal events that jeopardized the safety of residents.  Inevitably, a resident would have been seriously injured or worse had these assaults continued.

The likelihood is very high that the assaults would have continued had CMS not intervened.  As I have discussed, Petitioner's staff repeated the same interventions over and over again, either expecting a different result from interventions that were demonstrably inutile or throwing up their hands at Resident 3's continued brutality.  I find that Petitioner's culpability was very high given its staff's failure to entertain implementing interventions for Resident 3 beyond those that were used repeatedly and that failed every time that they were used.

Finally, Petitioner's most recent noncompliance must be considered in light of its history.  The noncompliance leading to the remedy at issue isn't the first instance in which Petitioner failed to protect its residents against possible abuse.  In 2016, Petitioner was cited at the immediate jeopardy level for failure to develop and implement policies protecting its residents against abuse.  CMS Ex. 47.

**Page 11**

Petitioner asserts that its noncompliance – if any existed – should be limited to its failure to react appropriately to the assault that Resident 3 perpetrated on January 25, 2019.  Petitioner's brief at 21-22.  According to Petitioner, if any remedy is merited it should be a per-instance civil money penalty that redresses solely the January 25 assault.  *Id.*

I disagree.  The undisputed facts establish a lengthy pattern of noncompliance.  Petitioner's failure to comply with participation requirements emanates not just from the January 25 assault, but from a long history of assaults committed by Resident 3.

Petitioner did not offer facts that could allow me to conclude that it rectified its immediate jeopardy level noncompliance prior to February 14, 2019.  Petitioner asserts that its staff reported the January 25 assault to the New Jersey Department of Health immediately after it occurred.  Petitioner's brief at 22; P. Ex. 23 at ¶ 11.  However, reporting the assault – required by regulation – doesn't, in and of itself, exculpate Petitioner.  *See* 42 C.F.R. § 483.12.  Complying with the reporting requirement is only one element of the matrix of actions a facility must take to protect its residents against abuse.  Reporting an assault certainly does not relieve a facility from its obligation to take affirmative steps within its facility to protect its residents.  This case is very much about the failure of Petitioner to take those necessary affirmative steps.

Petitioner argues that it should not be found culpable for the assaults committed by Resident 3 because those assaults were the product of the resident's mental and behavioral disorder and were not the Petitioner's fault.  Petitioner's brief at 23.  However, it is not Resident 3's mental status that is the source of Petitioner's noncompliance, it is Petitioner's persistent failure to address that status in terms of protecting its other residents.

Finally, Petitioner recites the many interventions that it undertook in response to Resident 3's assaults as grounds for contending that it acted diligently and appropriately in implementing a plan of care for the resident.  Petitioner's brief at 23-24.  However, those interventions failed to protect other residents and Petitioner knew that they had failed.  Implementing the same interventions again after January 25, 2019, created no more prospect for success in protecting other residents than they had previously.


          /s/
        Steven T. Kessel

                      Administrative Law Judge
      1. CMS alleges two additional alleged failures by Petitioner to comply with Medicare participation requirements.  These are non-immediate jeopardy level alleged deficiencies and CMS does not base its motion or its remedy determination on them.  For that reason, I do not address these additional alleged failures in this decision. back to note 1
                      2. CMS asserts as fact that its surveyor observed a member of Petitioner's staff falsifying records in order to show that Resident 3 received supervision.  Petitioner denies this, asserting that the staff member was merely recreating records that had been lost inadvertently.  It would be inappropriate for me to attempt to resolve this fact dispute in the context of deciding CMS's motion for summary judgment and I do not address it here.  The undisputed facts that I recite are sufficient by themselves to establish Petitioner's noncompliance, the presence of immediate jeopardy, and the reasonableness of CMS's civil money penalty determination. back to note 2 Back to top
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