NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a1086n.06
No. 11-3161
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

SO M E RS E T N U R S I

N G A N D RE H A B I L I T A T I O N FACI L I TY, Petitioner,

v. UNI TED STATES DEPARTMENT OF HEAL TH A N D H U M A N S E R V IC E S ; K A T H L E E N SEBEL I US, Secre tary o f the United States Depa rtment of He alth and Human Ser vices, Respondents. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON PETI TI ON FOR REVI EW FROM THE DEPARTMENTAL A P P E A LS BO AR D O F T H E UNI TED STAT E S D EPARTMENT OF HEA L T H AN D HU M AN SERVI CES

B e f o r e : S I L E R , D A U G H T R E Y , a n d W H I T E , C i r c u i t J u d g e s . H E L E N E N . W H I T E , C i r c u i t J u d g e . Petitioner Somerset Nursing and Rehabilitation
Fa cility (“Somerse t”) petiti ons this court for revie w of the decisions of t he Departmenta l Appea ls
Boa rd (“D AB ”) and Administrative L aw J udg e (“A L J ”) upholding the Secre tary of the United States Depa rtment of Hea lth and Human Service s’ (“Sec re t ar y ”) imposit ion of a monetary penalty for
Somerset’s failure to comply with 42 C.F.R. §§ 483.13(b) and (c)

. We aff irm in part and reve rse in part.
I. Somerset is a skilled-nursing home fa ci l i ty in Kentucky that participa tes in the Medica re
p ro g ram. On Fe bruar

y 6, 2008, Somerset admitted Resident #9, a 5' 11", 199 pound, 85-y ear -o l dmale resid en t who was g ener ally aler t but also had been diag nosed with dementia, chronic rena l failure , cong estive hear

t failure , chronic obstructive pulmonary disease, diabetes mellitus, and depre ssion. R es i d ent #9 usually moved about Somerset i n a wheelcha ir; howeve r, he was able to walk occa sionally

. Resident #9 was place d in Somerset partially beca use his family was conce rned that he made sexual advanc es towards his wife, who no longe r rec og nized him due to her dementia. After Resident #9' s admission to Somerset, he beg an making unsolicited sexual advanc es toward some of the f

emale r esidents. Somerset’s r ecor ds show the following : April 10, 2008: Br

ushed up ag ainst a cog nitively -impaired f emale in the ha llway May 10, 2008: Found in room of sever ely cog nit i v el y impaired fema le resident “fe eling of her.” (Althoug h this descr iption was included i n Somerset’s behavior logs, Somerset’s internal investiga tion notes state that staff “obser ved [R esident #9] rea ching towards [resident’s] shirt but did not obs erve direc t contact.” ) May 18, 2008: Touched c og nitively impaired fe male re sident at sever al place s on her body

. (A l t houg h this descr iption was included in Somerset’s behavior logs, Somerset’s internal investiga tion notes state “staff observe d [R esident #9] rea ching towards [resident’s] arms, chest and abdomen are as . . . No one substantiated contac t occur red be tween Re sidents.”) May 22, 2008: Made inappropria te sexual advanc es toward fema le resident and did not stop when asked. May 28, 2008: Made sexual advanc es towar d fema le re sident and tried to g et into the fe male re sident’s room. May 2 9 , 2008: Found in room of resident whom he had made sexual advanc es toward the previous day and resident complained th at h e t ri ed to touch her inappropria tely

. May 30, 2008: Made sexual advanc es towar d fema le re sident.
J une 18, 2008: Made sexually sug g estive re marks towar ds female resident.

2J uly 8, 2008: Kis s ed an d fo n d led breast of cognitively impaired female resident.

(Althoug h this descr iption was incl u d ed i n Somerset’s behavior logs, Somerset’s internal investig ation notes state “[ s]t aff observe d [R esident #9] pursing his lips in a kissing fa s h i o n towards [resident]. Both residents wer e in whee lchairs and proxi mity was not close enoug h for [R esident #9] to make contac t with his lips. As staff approa ched to intervene , [R esident #9] was observe d rea ching towards her chest are a.”) Aug ust 21, 2008: Force fully pinched r ight br east of f

emale r esident. Aug ust 22, 2008: Found in female resident’ s room sitti ng by her be d. Aug ust 22, 2008: Found holding onto the shirt of a fema le resident that was partially undone. Aug ust 23, 2008: Found rea ching for a fema le re sident’s brea st. Aug ust 23, 2008: Found in doorway of fe male re sident’s room. October 16, 2008: Wi tnessed g rabbing brea st of Resident #10 who has de mentia.
Dec ember

10, 2008: I nvited a fe male re sident into his room. Resident #9 had a history of making uninvited sexual advanc es towards women and had been asked to leave sever al nursing homes prior to his admission to Somerset. The staff first spoke with Resident #9 afte r the April 10, 2008 incident and discussed the need to respe ct the other residents’ “per sonal space .” Although the staff interviewed the fema le resident involved, she w as unable to
express any

conce rn about he r intera ction with Resident #9 due to her c og nitive impairment. After the incident on May 10, 2008, Somerset had a “tea chable moment,” resulting in sta ff

mem b er s b ei n g instructed to monitor Resident #9. The Direc tor of Nursing also interviewe d the fema le re sident involved. The re sident was unable to describe what had tr anspired be cause of her
cog nitive impair

ment; how ever , the Direc tor of Nursing did not note any adver se eff ects from this

3incident. On May 16, 2008, a psy chiatric phy sician’s assistant consulted with Resident #9 reg arding

his behavior. After t h e incident on May 18, 2008, Somerset advised Resident #9 to stay awa y from all fema le residents and informed its staff to observe Resident #9 “at all times.” How ever , this instruction did not result in constant monitoring of Resident #9. Fur ther interven t i o n m et h ods included encour ag ing Resident #9' s family members to visit and ag ain instructing staff members to monitor him afte r the May 22, 2008 incident, as we l l as having another psy chiatric consultation, involving Resident #9 in diversionar y tactics such as g arde ning, and threa tening discharg e, afte r the May 29, 2008 incident. After the incident on J uly 8, 2008, Somerset advised fourtee n staff members that Resid ent #9 would be on fiftee n-minute chec ks. Somerset also war ned Resident #9 and his family that he would be disc harg ed if his behavior continued. After Resident #9 forc efully pinched the brea st of a fema le resident on Aug ust 21, 2008, he beg an wee kly meeting s with social service s to discuss his behavior

. Somerset’s staff members wer e
ag ain instructed to monitor Resident #9 and keep him awa y from the fema le residents. On September 12, 2008, Somerset held a fac ulty -wide in-servic e on abuse, althoug h there is no rec ord that Resident #9' s behavior w as discussed a t this t ime. Somerset decided i t had ex hausted all p o s s i ble i nterve ntion methods afte r t he October 16,
2008 incident and initiated discharg e proce eding s. Somerset’s staff memb er s we re als o further instructed to monito r Re s ide nt #9 and preve nt him from approa ching fema le residents. Resident #9’s family appea led the discha

rg e and Somer set was f

orce d to keep Resident #9 at its facility pending the ap p ea l

. Be tween J anuar y 7, 2009 and J anuar

y 9, 2009, Somerset implemented additional

4intervention in the form of one-on- one monitoring of Resident #9. On J anuar y 9, 2009, Resident #9 was fina lly

discharg ed fr om Somerset.
I n the interim, the Kentucky Cabinet of Hea lth and Family Services co n ducted two

rec ertifica

tion survey s at Somerset, one from J anuar y 5- 9, 2009, and another on J anuar y 26, 2009.
Ac co rd i ng to the survey s, Somerset was not in substantial compliance with eleve n reg ulatory require ments, eig ht of which posed immediate jeopar dy

. Two of Somerset’s defic iencies that posed immediate jeopar dy perta ined to Somer set’s handling of Resident #9’s behavior towards the other residents. Specifica lly , Somerset was found in violation of 4 2 C .F.R. § 483.13(b) for failing to protec t its residents from sexual abuse an d i n violation of 42 C.F.R. § 483.13(c) for failing to implement its abuse policy in six of the seven re q u i re d co mponents for long- term car e fac iliti es, training , preve ntion, identification, protection, re porting and re sponse. Ba sed on Somerset’s conduct, the Centers for Medica re and Medica id Service s (“CMS”), an
ag ency within the United States Depa rtment of Hea lth and Human Service s (“D HHS”), imposed a civil monetary penalty (“CMP”) of $3,050 per day from May 10, 2008 - J anuar y 14, 2009, the lowest penalty that can be assessed upon a finding of immediate jeopar dy

. See 42 C.F.R. § 488.438(a) (1)( i).
CMS also imposed a CMP of $150 per day from J anuar y 15, 2009 - J an u ar y 29, 2009, which Somerset does not appe al her e. Somerset appea led the penalty to the DHHS Depa rtmental Appea ls Boa

rd. The AL J held a telephonic hear ing on Marc h 22, 2010 and issued a decision on J une 24, 2010. I n his de cision, the
AL J only addre ssed two of Somerset’s eleve n defic iencies, both of which perta ined to Resident #9’s conduct. The AL J upheld the defic iencies and CMP awa rd, specific ally finding that Somerset failed

5to substantially comply with the require ments of 42 C.F.R. §§ 483.13(b) and (c) due to its failure to

protec t its residents from Resident #9’s abuse and failure t o i m p l ement its anti-abuse policy , respe ctively

. The AL J also conclude d that the immediate jeopar dy finding was not cle a r ly e r r oneous. The Depa

rtmental Appea ls Boa

rd Appella t e Di v ision (“D AB ”) issued a decision on Dec ember

23, 2010 that aff

irmed the finding s and conc lusions of the AL J

.

II. This Court revie ws the imposit ion of a CMP under a highly defe rential standard. W oodstock
Care Ctr. v. Thompson , 363 F.3d 5 83, 588 (6th Cir. 2003). The Secre tary ’s fac tual finding s are

co n cl u sive “if supported by substantial evidenc e on the rec ord considere d as a whole.” Id

. Substantial evidenc e revie w require s an examination of the entire rec ord and taking i n t o ac co u n t “wha tever in the rec ord fairly detra cts from the weig ht of the evidenc e below.” Claiborne-Hughes Health Ctr. v. Sebelius , 609 F.3d 839, 843 (6th Cir. 2010). Howeve r, such revie w does not include revie wing the case de novo, resolving conflicts in evidenc e or deciding questions of cre dibilit y . Id. The pertinent question is whether “on the rec ord under revie w, ‘it would have been possibl e for a

rea sonable jury to rea ch the Boa rd’s conclusion.’” Id. (citing Allentown Mack Sales & Serv. Inc. v. NLRB , 522 US 359, 366-67 (1998))

. “I n revie wing t h e Secre tary [of HHS]’s interpre tation of
reg ulations, courts may overturn the Secre tary ’s decision only if it is arbitra ry , capr icious, an abuse of discretion or otherwise not in acc ordanc e with the law.” W oodstock Care Ctr. , 363 F.3d at 588 (interna l citations omit ted).
III.

6A skilled nursing fac ility must comply with the require ments set forth in 42 U.S.C. § 1395i-3

and 42 C.F.R. § 483.1 et seq ., in order to be elig ible for reimburse ment under the fede ral Medica re and Medica id prog rams. Claiborne-Hughes , 609 F.3d at 841. Under 42 C.F.R § 483.13(b), a skilled nursing fac ility resident “has the rig ht to be fre e from verba l, sexual, phy sical, and mental abuse,
corpor al punishment, and involun t ary seclusion.” The parties do not dispute that the reg ulations requir e S o m er s et to take “rea sonable steps to preve nt abusive acts.” See Pinehurst Healthcare & Rehab. Ctr. v. CMS , DAB No. 2246, 2009 WL 1455339 (2009) (quoting W estern Care Mgmt. Corp.

v. CMS , DAB No. 1921, at 12, 2004 WL 1235824 (2004))

. The question is whether the actions taken by Somerset to protec t its residents from Resident #9 wer e re asonable

. CMS’s Statement of Def

iciencie s (“SOD” ) with respe ct to Somerset’s violation of 42 C.F.R. § 483.13(b) state s: The fac ility had knowledg e since May 10, 2008, that R es i d en t #9 had an ong oing history of exhibi ting sexually ag g ressive behavior s and had attempted to s ex u all y abuse fourtee n fema le residents (five identified residents

. . . and nine unidentified). Resident #9 had subjected six of the fourtee n fema le residents to inappropria te sexual contac t. Additionally , these sexually ag g ressive behavior s resulted in three residents

. . . exhibi ting si gn s o f fe ar and/or distress. Howeve r, there was no evidenc e the fac ility imple m ented safe g uards to ensure residents wer e not further subjected to sexual abu s e an d wer e provided protec tion from Resident #9’s sexual ag g ressive behavior s. Resident #9 continued to move fre ely throug hout the fac ility until being place d on one-on- one supervision on J anuar y 7, 2009. These failure s place d fema le residents in the fa cility

at continued r isk for ser ious phy sical and me ntal harm.
DH HS claims that the only rea sonable safe g uards would have been either one-on- one, or
constant line-of- sight, monitoring of Resident #9 by a desig nated staff member, or ear lier discharg e of Resident #9 from the fac ility

. Additionally , DHHS contends Somerset should ha ve consulted a phy sician reg arding Resident # 9’s sexual ag g ression. I n contra st, Somerset claims that it was

7rea sonable to g radua lly implement more sever e intervention methods and initiate discharg e

proce eding s once it beca me clea r that alterna te methods wo u l d not be eff ective. Somerset also maintains that a method such as continuous monitoring would be unrea sonable as Somerset did not have the resour ces to implement that measure and was not a war e that it would have to do so when it acce pted Resident #9 for a dmission. Congr ess uses the outcome-ba sed approa ch to e nsure that f acilities rec eiving fede ral funds

are delivering high- quality car e. Lake Mary He a l t h Ca r e v. CMS , DAB 2081 (2007). Under this
approa ch, facilities have “ flexibi lity to select the most appr opriate methods but the corresponding responsibility to ensure that the selec ted methods are eff ective for achie ving the outcomes specifie d
in the statute and implementing reg ulations.” Id. “[T] he outcome being looked at is the quality of

car e being provided, n o t j ust the health outcome for eac h resident.” Virginia Highland Health Rehab. Ctr. , DAB No. 2339 (2010), 2010 WL 4038751 (quoting Spring Meadows Health Care Ctr. v. Ctrs. for Medicare & Medic aid Servs., , DAB No. 1966, at 19 (2005)

. There are conflicting decisions b y th e D e p a r tm e n ta l A p p e a ls B o a

rd about whether an incident of abuse conclusiv ely demonstrates that a fac ility has not taken rea sonable steps to protec t its residents. I n Gree nery Extende d Care Center v. He alth Care Financing Administrat ion , althoug h it was not disputed that the fac ility “had taken all rea sonably appropr iate measure s to assure that its residents wer e fre e from verba l, sexual, phy sical and mental abuse , corpor al punishment and involuntary seclusion,” the AL J upheld a penalty imposed by CMS based on one incident of abuse b y a contra cted nurse’ s aide ag ainst a resident. DAB CR707 (2000), 2000 WL 168277 6

. I n s o doing, the AL J stated “[o] bviously , wher e even a single instance of abuse has occur red, the resident’ s

8rig ht to be fre e from abuse has been violated and, by implication, the fac ility has not complied with

the re quirements of 42 C.F .R. § 483.13(b).” Id. Conversely , in Oakwood Manor Nu r s in g H o m e v. CMS , the AL J disag ree d with the Gree nery Extende d Care Center decision and state d “[a]lt houg h 42 C.F.R. § 483.13(b) state s that a re sident has a rig ht to be fre e from abuse, I do not rea d this to mean that wher e an isolated instance of abuse has occ urre d, the fa cility

is automatically

defic ient under this re g ulation beca use a r esident’s rig ht to be fre e fr om abuse has been violated.” DAB CR818 (2001) , 2001 WL 1172269. I nstead, “[a]n

occur renc e of abuse cre ates a presumption of noncompliance with the require ments of 42 C.F.R. § 483.13(b) which a fac ility is oblige d to rebut. A fac ility will rebut that presumption by proving that it did indeed take all nece ssary steps to preve nt the abuse from occur ring .” Id. Howeve r, even wher e there have not been any incidents of abuse, a fac ility is stil l defic ient “if it either delibera tely or
neg lige ntly

acts in some wa

y that prese nts either ac tual abuse or the potential for a

buse.” Id.
I n this case, the A L J found:
For a period of sever al months, Petitioner failed to preve n t R es ident # 9 from eng ag ing in verba l and phy sical vio l en ce against other residents and from p erpetrating sexual abuse ag ainst some fema le residents. The interventions t h at Petitioner used when Resident #9 eng ag ed in abusive co n d u ct wer e woef ully ineffe ctive in protec ting other residents from Resident #9. Petitioner’s failure to protec t its residents from Resident #9 reve als a fundame ntal misunderstanding on the part of Petitioner and its staff of the need to take ever y rea sonable measure to protec t its residents from abuse. Petitioner’s noncompliance , there fore , was not limit ed just to t h e wa y i n which its staff dealt with Resident #9 but was a sy stemic failure by Petitioner and its staff to develop an eff ective sy stem for dealing with abusive residents. The AL J also descr ibed Somerset’s intervention m et h ods as “half hear ted,” “tepid” and “totally inappropria te to the situation.”

9Given Resident #9’s advanc ed ag e and health impairments, it may not have been rea sonable

t o re q u i re Somerset to implement the most sever e intervention methods, such as discharg e and

constant monitoring, afte r the first incident when the risk that Resident #9 posed to othe r residents

rema ined unclea

r. Throug hout May 2008, Somerset instructed its staff to monitor Resident #9, sent him for a psy chiatric consultation, soug ht assistance from Resident #9’s family members, and even threa tened to discharg e him from the fac ility

. I n J uly , 2008 , S o m erse t also commence d limit ed monitoring in the form of fiftee n minute chec ks o f R es i d en t #9, althoug h this was in response to Resident #9 wande ring awa y from the f

acility , rathe r than his har assment of the f emale r esidents.
Somerset’s intervention methods appea red to be eff

ective in J une and J uly as the number of incidents involving Resident #9 wer e signific antly reduc ed, there being a single incident involving only

rema rks in J une, and a

single incident while under observa tion in J uly

. Neve rtheless, afte r Resident #9 forc efully pinched the brea st of another resident in Aug ust, it should have been appar ent to Somerset that its intervention methods wer e not completely eff ective and that its fema le re s i d en t s wer e still at risk of being harme d by Resident #9. Yet, Somerset implemented no additional protec tions or i nterve ntions other tha n requiring Resident #9 to attend

wee kly meeting s with social service s. Although Somerse t held an in-ser vice on a buse, there is no indication that event resulted in incre ased monitoring of Resident #9 or any other action that would protec t the fema l e re sidents from his behavior

. Even afte r the October 16, 2008 incident, when
Somerset rea liz ed discharg e was nece ssary , it did not take any further action to protec t its residents except to reiter ate that staff members wer e supposed to monitor Resident #9. I t was not until J anuar y 7, 2009, that Somerset finally implemented one- on-one monitoring of R esident #9. As a result of

10Somerset’s inac tion, Resident #9 was able to eng ag e in inappropr iate sexual conduct with var ious

residents afte r Aug ust 21, 2008. Acc ording ly , there is substantial evidenc e to support the AL J ’s and
DAB ’s conclusion that the limit ed intervention methods employ ed b y So me rset wer e not rea sonable.
IV. Somerset next arg ues that CMS clea rly err ed by fi n d i n g l ev el 4/immediate jeopar dy

. To

war rant a finding of immediate jeopar dy , there must exis t “a s i t u at i o n i n which the provider’ s noncompliance with one or more require ments of participa tion has cause d, or is l i k el y t o cause , serious injury , harm, impairment, or death to a resident.” 42 C.F.R. § 488.301. The CMS g uidelines
in its State Oper ations Manual (“SOM”) explain that i m m ed i at e j eopar dy exis ts when there is a “cr isis situation in which the health and safe ty of individual(s) are at risk” or wher e there is a “hig h potential” or “likelihood” that non-complianc e will cause death or serious harm “in the ver y n ear future.” State Oper atio ns Manual, Chapter 3-Additional Prog ram Activities (Rev. 24, 01-26-07) , available at http:// c ms . g o v /R e g u la ti o n s - a n d

- G u id a n c e /G uidance /Manuals/downloads //som107c03. pdf., at 38. The SOM also g ives examples of “trig g ers” that “desc ribe situations that will cause the
survey or to consider if fu rt her investiga tion is neede d to deter mine the prese nce of I mmediate
J eopar dy .” State Oper ations Manual, Appendix Q- Survey Protocol for L ong Term Care Fa cilitiesPa r t I ( Re v . 4 2 , 0 5

- 2 1

- 0 4 ) , a

v a il a b le a t h tt p :/ /c ms . g o v /R e g

u la ti o n s - a n d-Guidanc e/Guidanc e/ Manu a ls /downloads//som 1 0 7 ap _q_immedjeopardy .pdf., at 4. Among the t rig g ers lis ted for a “[ f]ailure t o protec t from abuse” finding are “[n] on-conse nsual sexual inte ra ct i o n s; e.g ., sexual hara ssment, sexual coerc ion or sexual assault.” Id. at 5.

11I n contra st to level 4/immediate jeopar dy , the SOM descr ibes lower level defic iencies in the

following manner : L evel 2 is noncompliance that results in no more than minimal phy sical, mental and/ o r psy chosocia l discomfort to the resident and/or has the potential (not y et r e a li zed) to compromise the resident’ s ability to maintain and/or rea ch his/her highe s t prac ti c a b le p h y s ical, mental and/or psy chosocia l well-be ing as define d by an acc urate and compr ehensive resident a ssessment, plan of c are , and provision of ser vices.
L evel 3 is noncomplianc e that results in a negative outcome that has compromised the resident’ s ability to maintain and/or rea ch his / h er h ighe st prac ticable phy sical, mental and psy chosocia l well-bei n g as define d by an acc urate and compre hensive resident assessment, plan of care , and provision of services. This does not include a defic ient prac tice that only could or has cause d limit ed conseque nce to the resident.
State Oper ations Manual, Appendix P- Survey Protocol for L ong Term Care Fa cilities-Part I (Rev. 42, 04-24-09) , available at http:// www/cms.g ov/manuals/Downloads/som107ap_p_ltcf.pdf , at 91. 1

Somerset aptly observe s that the descr iptions of psy chosocia l outcomes corr esponding to 1 the various levels do n ot support a finding of a level 4/immediate jeopar dy defic iency

. Ex amples of neg ative psy chosocia l outcomes at level 2 are “[i] ntermittent sadness” ref lected in tear fulness and cry ing, “[f]eelings and/or complaints of discomfort or modera te pain,” “[f]eeling of shame or embar rassment without a loss of interest in the environment and the self,” “[f]ear/anxiety that may b e manifested as expressions or signs of minimal discomfort (e.g ., verba l expressions o f f e a r /a n xie ty ; pulling awa

y from a fea

red object or situation) or has the potential, not y et rea liz ed, to compromise the resident’ s well-be ing,” or “[v] erba l or nonverba l expressions of ang er that did not lead to harm to self or others.” Id. at 98-99. L evel 3 neg ative psy chosocia l outcomes include “[c]hronic or rec urre nt fea

r/aniety that has compromised the resident’ s well-be ing and that may be manifested as avoidanc e of t h e fe ar-inducing situation(s) or person(s),” “[a]nger that has caused agg ression t hat could l ead to injuring self or ot hers,” or a situation wher e “[ p]ain or phy sical d i s t ress has become a centr al focus of the resident’ s attention.” Id. at 97-98. I n contra s t , ex am p l es of neg ative psy chosocia l outcomes at level 4 are “[s] uicidal ideation/thoughts and preoc cupation,” “[e]ngag ing in self-injurious behavior that i s l i kely to cause serious injury , harm, impairment, or death to the resident (e.g ., bang ing head ag ainst wall) , ” “[ r] ec urre nt

. . . debilitating fea r/anxiety that may be manifested as panic, immobil iz a ti on, scre aming , and/or extremely ag g ressive or ag itated behavior (s) (e.g ., trembling , cowe ring ) in response to an identifiable situation (e.g ., approa ch of a specific staff member) ,” or “[o] ng oing, persistent expression of dehumanization or humiliation in response to an identifiable situation, that persists reg ardle ss of whether the prec ipitating event( s) has cea sed and has resulted in a pote ntially

life-thre atening conseque nce.” Id. at 96. Although the level 4 psy chosocia l outcomes do not appea r to apply , th e ad m i n istrative 12Had Somer s et ’s defic iencies been ascr ibed a level 2 or 3 rating , the CMP rang e would have been

$50-$3,000, per

day , rathe r than $3,050-$10,000, pe r day

. Somerset arg ues that beca use t h e intervention methods it implemented to protec t other residents from Resident #9, coupled wi t h h i s p hy sical impairment, signific antly reduc ed the likelihood that another resident would be seriously harme d, a lower level defic iency was war rante d.
We acknow ledg e that this a close call; one could rea sonably conclude that a lesser level of harm was established. Howeve r, g iven Resident #9’s persistent conduct and Somerset’s failure to implement reasonable intervention methods to protec t its fema le residents from Resident #9’s hara ssing an d abusive conduct, espec ially afte r Aug ust 21, 2008, we cannot say that a finding of likelihood of harm is clea rly err oneous. Not only was there a likelihood of serious harm from Resident #9’s persistent uninvited sexual advanc es and incre asing ly ag g ressive contac t, there was al s o a likelihood that serious harm would occur from residents attempting to esca pe Resident #9 in the absenc e of adequate protec tion fr o m t h e nursing staff. Be cause Somerset failed to adequately protec t its extremely vulnera

ble residents in light of incre asing sexual ag g ressivene ss by Resident #9, we must aff irm the finding of immediate jeopa rdy

. V. The question rema ins whether the Secre tary should have impos ed a CMP on Somerset as

ear ly as May 10, 2008 for the § 483.13(b) defic iency

. Somerset arg ues that if any penalty is assessed

finding s wer e not based on psy chosocia l harms, but, rathe r, on the likelihood of serious phy sical or mental injury

or har m to a resident. 13it should n o t b e u n til October 16, 2008, when Somerset initiated discharg e proce eding s ag ainst

Resident #9.
As discussed above, the rec ord demonstrates that althoug h Somerset could have taken more steps to protec t its residents, from May 10 until Aug ust 21, 2008 its measure s wer e within the rang e of rea sonable response s to the risk that Resident #9 appea red to pose. Howeve r, Somerset’s failure to implement more sever e interve ntion methods afte r Aug ust 21, 2008 did c rea te the likelihood of serious harm to its residents until it implemented one-on- one monitoring of Resident #9 on J anuar y 7, 2009. I ndeed, in the two day s following the Aug ust 21, 2008 i n ci d en t , R esi dent #9 made two

more attempts to touch fema le resid en t s i n an inappropria te manner . Thoug h Resident #9 was supposed to be monitored, he was able to slip in s i de the rooms of fema le residents unnoticed. I n light of Resident #9’s incre ased ag g ressivene ss, the fac t tha t Re sident #9 was continuously able to have unmonitored acc ess to the fema le residents cre ated a likelihood of serious harm that supports CMS’s im mediate jeopa

rdy finding

. 2
VI. The CMP was imposed for a second violation a s well—fa ilure to implement an anti-abuse policy in violation of 42 C.F.R. § 483.13(c)

. I n light of our deter minations above, the only rele vant question is whether a 42 C.F.R. § 483.13(c) defic iency supports a fi nding of immediate jeopar dy prior to Aug ust 21, 2008. Only an aff irmative answe r to that question will further aff ect the outcome

o f t h i s appea l. We conclude that CMS clea rly err ed in finding immediate jeopar dy based on

Somerset offe rs no support for its arg ument that the failure of the state ag ency to initiate an 2 investiga tion upon rec eiving notice of the Aug ust 21, 2008 incident relieve d Somerset of the dut y to take appr opriate steps to prote ct its residents. 14Somerset’s failure to i mplement its abuse policy prior to Aug ust 21 beca

use there is no indication that t h i s cr eated a likelihood of serious harm to its residents. Although Resident #9 undeniably hara ssed fema le residents prior to Aug ust 21, whene ver the possibili ty exis ted that R es i d en t #9
actua lly touched a resident inappropria tely , Somerset inte r v ie w e d a n d a s s e s s e d th e resident. Fur ther, there is no indication that Somerset had a pattern of not implementing its abuse policy in other situations. Thus, no 42 C.F.R. § 4 8 3.13(c) defic iency supports the imposit ion of the immediate jeopar dy CMP prior to August 21, 2008.
VII.
I n its last claim of err or, Somerset arg ues that the AL J should have revie wed all the defic iencies cited by CMS, instead of just two, beca

use unaddre ssed defic iencies damag e a fac ility ’s reputa tion. Somerset reque sts this Court dismiss the unaddre ssed defic iencies, or, in the alterna tive,

rema nd to the AL J for f

urther c onsideration. Howeve r, S omerset’ s arg ument is fore closed by our prior holding in Claiborne-Hughes wher e we a cknowledg ed that: The DAB has consistent l y i n t erpr eted the reg ulations to mean that the AL J is not mandated to addre ss eac h and ever y defic iency found in a survey , and it may choose to addre ss only those defic iencies that have a materia l impact on the outcome of the dispute

. . . I t is neither arbitra ry nor capr icious for the ag ency to conclude that, in the interests of judicial economy , it will revie w only those defic iencies that have a materia l impact on the outcome of the dispute. 609 F.3d a t 847.
Acc ording ly , we will not rema nd t h i s matter back to the AL J for further revie w of the unaddre ssed def

iciencie s. VIII.

15For the foreg oing rea sons, we affirm the defic iency finding for Som erse t’ s v i o lation of 42

C.F.R. § 483.13(b) and the immediate jeopar dy finding from Aug ust 21, 2008 to January 6, 2009.
We reve rse the immediate jeopar dy finding from May 10, 2008 to A ug ust 20, 2008 and J anuar y 7,
2009 to J anuar

y 14, 2009. We remand f

or fur ther proc eeding s consistent with this opi nion.

16SILE R , Circuit J udg e, concurring in part and dissenting in part. I ag ree with the majority

that our standard of revie w is based upon whether substantial evidenc e supports the decision of the
DAB

. See Claiborne-Hughes Health Center v. Sebelius , 609 F.3d 839, 843 (6th Cir. 2010). I also

concur in Parts V., VI ., and VI I ., which discuss the finding s of violations betwee n May 10, 2008, and
J anuar y 14, 2009.
Howeve r, I depar

t from the majority when it finds that there was sufficie nt evidenc e to aff irm the defic iency finding for Somerset’s violation of 42 C.F.R

. § 483.13(b) and the immediate jeopar dy finding from Aug ust 21, 2008, to J anuar y 6, 2009. An “immediate jeopar dy ” level defic iency is one

so egre gi o u s t h at the facility ’s non-compliance “has caused, or has l ikely to cause , serious i njury , harm, impairment, or death to a resident.” 42 C.F.R. § 488.301. Although the conduct of Resident
#9 is not to be condoned, it must be reme mbere d that he was usually moving around in a whee l chair , althoug h able to wa lk occa sionally

. I do not think that the evidenc e was sufficie nt to show that there was a likelihood by Resident
#9 to c ause serious injury to the other re sidents, based on the three touching incidents on and afte r Aug ust 21, 2008. The parties have no t ci t ed any fede ral court case which has found that any attempted touching by one patient to a nother to be a L evel 4 “immediate jeopa rdy .” I nstead, most of the situations which have been repor ted conce rn the failure of the fac ility to take appropr iate steps in the t rea tment of t he residents. For instance, in Golden L iving Center-Frank fort v. S ec retary of Health and Human Servic es , 656 F.3d 421, 427 (6th Cir. 2011), we upheld the DAB ’s finding of immediate jeopar dy when the fac ility failed to pro p er t y trea t a resident who develope d sever e dehy dration and other complications. L ikewise, in Claiborne-Hughes , 609 F.3d at 846, we upheld

17the finding of immediate jeopar dy when the fac ility failed to notify phy sicians or family members

of a marke d decr ease in food intake of a diabetic patient. Finally , in Life Care Ctr. Tullahoma v. Secret a r y of Health & Human Servic es , 453 F. App’x 610, 617 (6th Cir. 2011), we upheld the finding of i mmediate jeopardy when nurses at the facility failed to notify phy sicians or the family about the dang erous blood-sug ar le vel of a resident, and the nurses dispensed twice the presc ribed amount of medica tion to the resident. These are just ty pical fac tual bases f

or such f indings unde r L evel 4. On the other hand, I think that Somerset could be found defic ient at a lower leve l, either 2

o r 3, for that period of time based upon the definitions of those levels, as set out in the majority opinion, quoting from the State O pera tions Manual (SOM). There fore , I would rema

nd the matter to the DAB i n full, to consider whether Somerset should be subject t o any penalties under L evel 2 or 3 for any dates betwee n May 10, 2008, and
J anuar y 14, 2009.

18