Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Kenwood Manor
(CCN: 37-5459),

Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-13-914
Decision No. CR4401

Date: November 9, 2015

DECISION

Petitioner, Kenwood Manor, is a long-term care facility located in Enid, Oklahoma, that
participates in the Medicare program. Over a period of many months, facility staff
documented that one of its residents — a registered sex offender who suffered from a
variety of mental disorders — repeatedly touched, rubbed, slapped, or otherwise inflicted,
upon other residents and staff, uninvited and unwelcome physical contact. He also yelled
at them. Contrary to federal requirements and its own policies, the facility neither
investigated the incidents nor took meaningful steps to assess the victims and to protect
its most vulnerable residents from further abuse. The Centers for Medicare & Medicaid
Services (CMS) determined that (among other deficiencies) the facility was not in
substantial compliance with Medicare requirements governing abuse. CMS has imposed
civil money penalties (CMPs) of $3,050 per day for 251 days of immediate jeopardy
($765,550) and $50 per day for 46 days of substantial noncompliance that did not pose
immediate jeopardy ($2,300). Petitioner appeals, and CMS has moved for summary
judgment.

As discussed below, the undisputed evidence establishes that, from June 18, 2012,
through April 10, 2013, the facility was not in substantial compliance with Medicare
program requirements. From June 18 through October 25, 2012; October 30, 2012
through February 23, 2013; and March | through 4, 2013, its deficiencies posed
immediate jeopardy to resident health and safety. The penalties imposed are reasonable.

Background

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

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

In this case, surveyors from the Oklahoma State Department of Health (state agency)
completed a survey on March 8, 2013. Based on their findings, CMS determined that the
facility was not in substantial compliance with an astonishing number of program
requirements, specifically:

© 42C.F.R. § 483.10(a)(1) and (2) (Tag F151 — resident rights: exercise of rights) at
scope and severity level D (isolated instance of substantial noncompliance that
caused no actual harm with the potential for more than minimal harm);

© 42 C.F.R. § 483.10(b)(11) (Tag F157 — resident rights: notice of rights and
services) at scope and severity level G (isolated instance of substantial
noncompliance that caused actual harm that was not immediate jeopardy);

© 42 C.F.R. § 483.10(c)(1) (Tag F158 — resident rights: protection of resident funds)
at scope and severity level E (pattern of noncompliance that caused no actual harm
with the potential for more than minimal harm);

© 42 C.F.R. § 483.10(c)(2)-(5) (Tag F159 — resident rights: management and
deposit of personal funds) at scope and severity level E;
© 42 C.F.R. §§ 483.10(e) and 483.75(/)(4) (Tag F164 — resident rights:
privacy/confidentiality and administration: clinical records) at scope and severity
level D;

© 42C.F.R. § 483.10(g)(1) (Tag F167 — resident rights: examination of survey
results) at scope and severity level D;

e 42 C.F.R. § 483.13(b) and (c)(1)(i) (Tag F223 — abuse and staff treatment of
residents), at scope and severity level K (pattern of noncompliance that posed
immediate jeopardy to resident health and safety); '

© 42 C.F.R. § 483.13(c)(1)(ii)-(iii) and (c)(2)-(4) (Tag F225 — staff treatment of
residents: investigate and report allegations of abuse) at scope and severity
level K;

e 42 C.E.R. § 483.13(c) (Tag F226 — policies to prohibit abuse and neglect) at
scope and severity level K;

e 42C.F.R. § 483.15(a) (Tag F241 — quality of life: dignity) at scope and severity
level E;

e 42 C.F.R. § 483.15(f)(1) (Tag F248 — quality of life: activities) at scope and
severity level E;

© 42 C.F.R. § 483.15(h)(2) (Tag F253 — quality of life: housekeeping and
maintenance services) at scope and severity level E;

© 42 C.F.R. § 483.20(b)(1) (Tag F272 — resident assessment: comprehensive
assessments/assessment instrument) at scope and severity level E;

© 42C.F.R. § 483.20(b)(2)(ii) (Tag F274 — resident assessment: comprehensive
assessments/when required) at scope and severity level D;

© 42C.F.R. § 483.20(g) — (j) (Tag F278 — resident assessment:
accuracy/coordination/certification) at scope and severity level D;

© 42 C.F.R. § 483.20(d) and (k)(2) (Tag F279 — resident assessment: use and
comprehensive care plans) at scope and severity level E;

' As I discuss below, Petitioner has not appealed most of the deficiencies cited. This list
highlights, in bold, those that are the subject of this appeal.
483.20(k)(2) and 483.10(d)(3) (Tag F280 — resident assessment:

comprehensive care plans; and resident rights: free choice) at scope and severity

e 42CFR. §§
level E;?
e 42CFR.§4

83.20(k)(3)(ii) (Tag F282 — resident assessment: comprehensive

care plans/services provided) at scope and severity level E;

e 42CFR.§4

e 42CFR.§4

83.25 (Tag F309 — quality of care) at scope and severity level G;

83.25(a)(3) (Tag F312 — quality of care: activities of daily living) at

scope and severity level E;

e 42CF.R.§4
and severity

e 42CF.R.§4
and severity

e 42CF.R.§4
severity leve

e 42CF.R.§4
and severity

e 42CF.R.§4
severity leve

e 42CF.R.§4
and severity

e 42CFR.§4

83.25(h) (Tag F323 — quality of care: accident prevention) at scope
level E;

83.25(/) (Tag F329 — quality of care: unnecessary drugs) at scope
level D;

83.30(a) (Tag F353 — nursing services: sufficient staff) at scope and
E;

83.30(b) (Tag F354 — nursing services: registered nurses) at scope
level E;

83.35(d)(1)-(2) (Tag F364 — dietary services: food) at scope and
E;

83.35(i) (Tag F371 — dietary services: sanitary conditions) at scope
level E;

83.40(a) (Tag F385 — physician services: physician supervision) at

scope and severity level E;

e 42CFR.§4

83.70(d)(1)(iv)-(v) (Tag F460 — physical environment: resident

rooms) at scope and severity level E;

e 42CFR.§4

83.70(h) (Tag F465 — physical environment: other environmental

conditions) at scope and severity level E;

> Although the survey report form correctly describes the regulatory requirements, it
misnumbers the subparagraphs. P. Ex. 8 at 152-3.
e 42 C.F.R. § 483.75 (Tag F490 — administration) at scope and severity level K;
and

e 42 C.F.R. § 483.75 (0)(1) (Tag F520 — administration: quality assessment and
assurance) at scope and severity level F (widespread noncompliance that
caused no actual harm with the potential for more than minimal harm).

P. Ex. 2 at 1-2; see P. Ex. 8. CMS also determined that the facility was not in substantial
compliance with 42 C.F.R. § 483.70(a) — physical environment: life safety from fire —
because surveyors found six violations of the National Fire Protection Association’s Life
Safety Code. P. Ex. 2 at 2.

Surveyors revisited the facility on April 17, 2013. Based on their findings, CMS
determined that the facility returned to substantial compliance on April 11, 2013. P. Exs.
4atl1,S5atl.

CMS has imposed against the facility CMPs of $3,050 per day for 251 days of immediate
jeopardy (June 18 through October 25, 2012; October 30, 2012, through February 23,
2013; and March | through 4, 2013) and $50 per day for 46 days of substantial
noncompliance that was not immediate jeopardy (October 26 through 29, 2012; February
24 through 28, 2013; and March 5 through April 10, 2013), for a total CMP of $ 768,850
($765,550 + $2,300 = $768,850). P. Exs. 5, 7.°

The appeal. Petitioner timely requested review, challenging the deficiencies cited at the
immediate jeopardy level — 42 C.F.R. §§ 483.13(b), 483.13(c), and 483.75 — and the
deficiencies cited under 42 C.F.R. § 483.75(0)(1) (Tag F520). Petitioner claims that it
limits its appeal to these deficiencies because CMS did not provide adequate notice of the
deficiencies on which it based the CMP, and Petitioner “assumes” that the penalty was
based solely on the deficiencies cited at the immediate jeopardy level.‘ P. Pre-hrg. Br. at
1-2.

CMS, however, submits signed FAX sheets showing that it sent a comprehensive notice

letter to the facility on April 1, 2013, and the (then) facility administrator returned to the

agency an acknowledgment of receipt dated April 2, 2013. CMS Ex. | at 1-2. The April
1 letter lists each and every deficiency upon which the penalty is based. CMS Ex. | at 3-
4; P. Ex. 2 at 1-2. CMS has thus established that it sent the facility notice of all the

> The more serious deficiencies involved the abusive behavior of one resident. In an
unusual move, CMS apparently gave the facility a break and removed the immediate
jeopardy determination for those days that this resident was away from the facility.

* This does not explain why Petitioner challenges the Tag F520 deficiencies, which were
cited at a lower level of scope and severity.
deficiencies upon which it based the CMPs. CMS Ex. | at 1, 2; CMS Pre-hrg. Br. at 14.
Moreover, inasmuch as the state agency provided the facility with a copy of its statement
of deficiencies, the facility was well aware of all of the deficiencies cited. P. Exs. 1, 8.

And even if CMS had not previously advised the facility of all those deficiencies, it did
so during these proceedings. In its pre-hearing brief, CMS asserted that, because the
facility did not appeal the 32 findings of substantial noncompliance that were not
immediate jeopardy, those findings are final. CMS Pre-hrg. Br. at 23-24 (citing 42
C.F.R. § 498.20(b)); see also CMS MSJ at 3. Petitioner could have responded to CMS’s
argument, but did not. See Acknowledgment and Initial Pre-hearing Order at 2, ¢ 3 (June
21, 2013).

In any event, as I discuss below, CMS has imposed the minimum per day penalties. So
long as I affirm even one of the deficiencies cited, I must also affirm the $50 per day
penalty. 42 C.F.R. §§ 488.408(d)(1)(iii), 488.438(a)(1)(ii). Here, because I find that the
facility was not in substantial with the abuse citations, I need not consider whether
Petitioner waived challenging the deficiencies that it did not specifically appeal.

CMS now moves for summary judgment, which Petitioner opposes. The parties filed
pre-hearing briefs (CMS Pre-hrg. Br.; P. Pre-hrg. Br.). CMS subsequently filed a motion
for summary judgment (CMS MSJ) and Petitioner filed a response (P. Response).
Petitioner has submitted 52 exhibits (P. Exs. 1-52). CMS has submitted 50 exhibits
(CMS Exs. 1-50).

Issues
As a threshold matter, I consider whether summary judgment is appropriate.
On the merits, the issues are:
1. Was the facility in substantial compliance with the Medicare requirements
governing abuse and staff treatment of residents, 42 C.F.R. § 483.13(b) and (c),
and those governing administration, 42 C.F.R. § 483.75;
2. If the facility was not in substantial compliance with 42 C.F.R. §§ 483.13(b) and
(c) and 483.75, did those deficiencies pose immediate jeopardy to resident health
and safety.
With respect to the amount of the CMPs, CMS has imposed the minimum amounts.

42 CFR. §§ 488.408(d), 488.408(e)(1)(iii), 488.438(a)(1)(i), 488.438(a)(1)(ii). So long
as I find that the facility was not in substantial compliance and that the facility’s
substantial noncompliance posed immediate jeopardy, I must affirm those amounts. The
facility may not appeal CMS’s determination to impose a CMP. 42 C.F.R.
§ 488.408(g)(2).

Discussion

Summary judgment. Summary judgment is appropriate if a case presents no genuine
issue of material fact, and the moving party is entitled to judgment as a matter of law.
Bartley Healthcare Nursing & Rehab., DAB No. 2539 at 3 (2013) (citing Celotex Corp.
v. Catrett, 477 U.S. 317, 322-25 (1986)); Jil. Knights Templar Home, DAB No. 2274 at
3-4 (2009), and cases cited therein.

The moving party may show the absence of a genuine factual dispute by presenting
evidence so one-sided that it must prevail as a matter of law, or by showing that the non-
moving party has presented no evidence “sufficient to establish the existence of an
element essential to [that party’s] case, and on which [that party] will bear the burden of
proof at trial.” Livingston Care Ctr. v. Dep’t of Health & Human Servs., 388 F.3d 168,
173 (6th Cir. 2004) (quoting Celotex Corp. v. Catrett, 477 U.S. at 323-24). To avoid
summary judgment, the non-moving party must then act affirmatively by tendering
evidence of specific facts showing that a dispute exists. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 n.11 (1986); see also Vandalia Park, DAB No.
1939 (2004); Lebanon Nursing & Rehab. Ctr., DAB No. 1918 (2004). The non-moving
party may not simply rely on denials, but must furnish evidence of a dispute concerning a
material fact. J/l. Knights Templar, DAB No. 2274 at 4; Livingston Care Ctr., DAB No.
1871 at 5 (2003).

In examining the evidence for purposes of determining the appropriateness of summary
judgment, I must draw all reasonable inferences in the light most favorable to the non-
moving party. Brightview Care Ctr., DAB No. 2132 at 2, 9 (2007); Livingston Care Ctr.,
388 F.3d at 172; Guardian Health Care Ctr., DAB No. 1943 at 8 (2004); but see
Brightview, DAB No. 2132 at 10 (entry of summary judgment upheld where inferences
and views of non-moving party are not reasonable). However, drawing factual inferences
in the light most favorable to the non-moving party does not require that I accept the non-
moving party’s legal conclusions. Cf Guardian Health Care Ctr., DAB No. 1943 at 11
(“A dispute over the conclusion to be drawn from applying relevant legal criteria to
undisputed facts does not preclude summary judgment if the record is sufficiently
developed and there is only one reasonable conclusion that can be drawn from those
facts.”).
I. CMS is entitled to summary judgment because the undisputed evidence
establishes that facility staff allowed one of its residents to abuse other
residents. Administration and staff did not follow the facility’s policies and
procedures for preventing abuse; they did not immediately report or
thoroughly investigate instances of abuse, potential abuse, or unexplained
injury; and they made inadequate efforts to prevent potential abuse while an
investigation was pending. The facility was therefore not in substantial
compliance with 42 C.F.R. §§ 483.13(b) and (c) and 483.75. 5

Program requirements. “Abuse” means the willful infliction of injury, unreasonable
confinement, intimidation, or punishment with resulting physical harm, pain, or mental
anguish. 42 C.F.R. § 488.301.

Facility residents have the right to be free from verbal, sexual, physical, and mental
abuse. 42 C.F.R. § 483.13(b) (Tag F223). To this end, a facility must develop and
implement written policies and procedures that prohibit mistreatment, neglect, and abuse
of residents. 42 C.F.R. § 483.13(c). It must ensure that all alleged violations are reported
immediately to the facility administrator and appropriate state officials. The facility must
have evidence that all alleged violations are thoroughly investigated, and it must prevent
further potential abuse while the investigation is in progress. The results of all
investigations must be reported to the administrator (or designated representative) and to
the appropriate state officials within five working days of the incident. If the violation is
verified, the facility must take appropriate action. 42 C.F.R. § 483.13(c)(2), (3), and (4)
(Tags F225, F226).

The facility must also be governed in a manner that enables it to use its resources
effectively and efficiently to attain or maintain the highest practicable physical, mental,
and psychosocial well-being of each resident. 42 C.F.R. § 483.75 (Tag F490).

Facility policies. The facility had three sets of written policies and procedures for
preventing abuse: those governing staff abuse of residents (CMS Ex. 18); those
specifically addressing resident-to-resident abuse (CMS Ex. 17); and general abuse
prevention policies, which include both (CMS Ex. 16). All three sets reflect program
requirements and provide that “[r]esidents must not be subject to abuse by anyone.”
CMS Ex. 17 at 1; see CMS Ex. 16 at 1; CMS Ex. 18 at 1.

The policies reflect the regulatory definition of abuse, 42 C.F.R. § 488.301 (CMS Ex. 17
at 1), and add that abuse includes “any act or omission” that may cause physical,
psychological, or emotional harm or injury to a resident or any act that willfully deprives
a resident of his rights. Examples include actions such as striking or kicking a resident,

> My findings of fact and conclusions of law are set forth, in bold and italics, as captions
in the discussion section of this decision.
improper restraint, or other actions “which can be seen as causing physical pain. . . .”
CMS Ex. 16 at 1. Acts such as teasing, humiliating, degrading, or intentionally ignoring
a resident may also constitute abuse. Non-actions resulting in injury are “viewed in the
same manner.” CMS Ex. 16 at 1.

According to the general policy, any employee who witnesses or has knowledge of an act
of abuse to a resident must immediately report the matter to the licensed nurse in charge,
the director of nursing (DON), and the facility administrator/abuse coordinator. CMS Ex.
16 at 2-3. All reported events, including “inappropriate or abusive behaviors,” must be
investigated by the DON or her designee. The information gleaned will be forwarded to
the facility administrator, who serves as the abuse coordinator. If the administrator is not
able, the DON will act as abuse coordinator and will conduct the necessary investigation.
CMS Ex. 16 at 3-4. The abuse coordinator must investigate al/ reports of suspected
abuse. CMS Ex. 16 at 4.

Once reported, the prescribed forms must be completed and delivered to the abuse
coordinator for an investigation. CMS Ex. 16 at 3.

When an incident is reported, the suspect must be segregated from the resident/victim.
CMS Ex. 16 at 4. The licensed nurse in charge or the DON must perform and document
a thorough nursing assessment and notify the resident/victim’s attending physician and
responsible party. An incident report must be filed “as soon as possible.” CMS Ex. 16 at
4.

The investigator must take written statements from the victim, the suspect, and all
possible witnesses. He/she must secure all physical evidence and prepare a detailed
report. CMS Ex. 16 at 4. The DON, department manager, abuse coordinator, and one
other administrative staff member must review the completed report. The abuse
coordinator must refer “any [and] all incidents and reports of resident abuse to the
appropriate state agencies.” CMS Ex. 16 at 5.

In addition to these general rules, the resident-to-resident abuse policy includes a step-by-
step protocol to be followed when abuse is reported:

1. Remove the residents from danger immediately;

2. Move the resident causing the danger to another room or unit, pending
investigation;

3. Closely monitor and document the behavior and condition of the residents
involved to evaluate any injury and to prevent recurrence of the incident;
10

4. The policy emphasizes that staff “MUST” notify the attending physician and
responsible party for all residents involved in the incident;

5. The administrator, DON, or their designee “MUST” initiate “A
DOCUMENTED?” investigation within twenty-four hours of the facility’s
learning of the alleged incident. The investigation includes talking to all those
directly or indirectly involved, including family, residents, visitors, and
volunteers. The investigator must obtain written statements as necessary;

6. The nurse in charge must complete an incident/accident report;

7. The administrator “MUST” notify designated corporate officials of the alleged
or actual incident and the ongoing investigation;

8. The administrator, DON, or their designee must notify the adult protective
services agency of any alleged abuse per state specific protocols;

The administrator, DON, or their designee must notify the State Department of
Health of the facility’s knowledge of resident-to-resident altercations in which
a resident is injured “to the extent that physical intervention and/or transfer or
discharge to a hospital is required”;

10. The administrator, DON, or their designee must notify local law enforcement

of any instance of resident abuse, mistreatment, neglect, or misappropriation of
personal property that is a criminal act and in accordance with the Elder Justice
Act;

11. The administrator must notify specific corporate officers “immediately” and
provide a copy of the investigative report if there is potential for a lawsuit;

12. The facility must develop and document measures to prevent recurrence and
include those measures in the resident’s plan of care;

13. The facility may consider other measures, including medication changes,
psychiatric consultation, and supervision.

CMS Ex. 17 (emphases in original).

The facility also had policies that addressed the facility’s response to finding injuries of
unknown origin. CMS Ex. 24. The policy defines “injuries of unknown origin” to
include bruises that have no known cause. CMS Ex. 24 at 1. When the injury is
discovered, staff must immediately notify the facility administrator and the DON. They
“MUST” also notify the resident’s responsible party and the physician. The
11

administrator, DON, or their designee must begin a “documented investigation of the
cause of the injury.” The investigation must include interviews with the resident, all staff
involved (directly or indirectly), and family, visitors, or volunteers who might have had
contact with the resident and could help with the investigation. The investigator should
obtain written statements “as necessary.” Staff must report all injuries of unknown origin
to the appropriate state agencies. If the investigator finds no reasonable cause to suspect
that a staff member or other individual inflicted the injury or that neglect occurred, he/she
must thoroughly document, using the investigative report form to show that there is no
cause to believe that abuse or neglect by staff caused the injury. The facility must also
use its performance improvement process to identify problems and corrective action. It
must develop and implement measures, via the performance improvement process, to
prevent injuries of unknown origin. CMS Ex. 24 at 1. The policy concludes by
recognizing that staff education “is vital” for preventing injuries and mandates that the
facility implement such education any time preventable injuries occur. CMS Ex. 24 at 2.

Resident 11’s (R11’s) aggressive behavior and the facility’s response. R11 was a 69-
year-old man suffering from Parkinson’s Disease, anxiety, and depression. P. Ex. 20 at 1.
He had intellectual disability with an IQ composite of 58. P. Ex. 20 at 3. He was also
treated for significant problems with impulse control and for inappropriate sexual
behavior. P. Ex. 20 at 1-2. He took several psychotropic medications, including
Depakote for impulse control and Estradiol (estrogen) to attempt to control his
“inappropriate sexual behavior.” P. Ex. 20 at 1.

R11 was an imposing figure, standing 6 ft. 2 in. tall and weighing 245 pounds. CMS Ex.
48.

He had a significant criminal record. In December 1989, he was convicted of assault
with a deadly weapon. CMS Ex. 3 at 3. In January 2003, he was convicted of lewd
molestation because he sexually abused a six-year-old boy. CMS Ex. 2; P. Ex. 25 at 9-
10. The court sentenced R11 to 10 years in prison, but suspended that prison term. In
lieu of prison (and due to his medical issues), he was admitted to the facility.° P Ex. 25
at 11.

According to his March 11, 2012 assessment, R11 exhibited “verbal behavioral
symptoms” toward others, such as threatening, screaming, and cussing. CMS Ex. 12 at
10.

His care plan, dated March 30, 2012, reiterates that R11 could “demonstrate verbally
abusive behaviors.” In response, staff were to document, in a behavior log, R11’s
observed behavior and staff’s attempted interventions; they were to intervene when he
became agitated, before his agitation escalated, guiding him away from the source of his

° The unsavory details of R11’s crimes are set forth in CMS Exs. 2 and 4.
12

distress and calmly engaging him in conversation. If he responded aggressively, they
were to walk away. Staff were also instructed to analyze and document the key times,
places, circumstances, triggers, and the measures taken that successfully de-escalated the
behavior. Subsequent handwritten notes indicate that, on June 23, 2012, and September
23, 2012, R11 continued to be counselled for his abusive behavior. P. Ex. 10 at 12; but
see CMS Ex. 8 at 11.” The care plan identifies that R11 had a “mood problem” and also
took anti-anxiety medications, noting that as a “paradoxical side effect,” R11 could
exhibit “[mlJania, [h]ostility and rage, [a]ggressive or impulsive behavior,
[hJallucinations.” P. Ex. 10 at 8, 15.

The care plan does not identify as a problem sexually inappropriate behavior and does not
include interventions to address such behavior.

The record includes behavior logs from June 2012 through April 2013. They document
repeated instances of R11’s “anger/pouting” and “yelling at others.” P. Ex. 12. More
specifically, the nursing notes and treatment reports document repeated instances of
R11’s aggressive and “sexually inappropriate behaviors” (which he generally inflicted on
the facility’s most defenseless residents):

e A nursing note dated June 18, 2012, indicates that staff observed R11 “rubbing [a]
female resident’s legs.” Staff told him that he could not do that without the
resident’s consent, and he “‘verbalized understanding.” P. Ex. 9 at 4. The victim is
not identified, and she was not interviewed or assessed. The incident was not
reported to the victim’s family, nor to any physician, nor to the facility
administrator. The facility did not investigate or add the behavior to R11’s care
plan.

e Another note, dated July 13, 2012, documents R11’s “inappropriately touching
other residents.” Staff told him to keep his hands off others and, according to the
note, he folded his arms and began to pout. P. Ex. 9 at 4. The affected residents
were not identified, interviewed, or assessed. Staff did not report or investigate.
No changes were made to R11’s care plan.

e On July 30, 2012, R11 was falling asleep at the breakfast table. When a nurse aide
offered to take him back to his room for a nap, he “became hateful [and] began
yelling.” P. Ex. 9 at 5.

7 Inexplicably, the record contains two similar, but not identical versions of R11’s care
plan. Both identify the verbally abusive behaviors and include similar instructions to
staff. But CMS’s version includes a different set of handwritten notes. A note dated June
12 says that staff is able to redirect or remove R11 when a behavior occurs and that he
sees a counselor. A note dated January 11, 2013 says “continue [with] current
recommendation.” CMS Ex. 8 at 11.
13

On August 17, 2012, R11 was evaluated by a psychiatric nurse practitioner at
Millennium Medical Services. Her report indicates that facility staff had reported
R11’s “inappropriate sexual behavior toward a male peer,” and a history of
“inappropriate touching of female peers that are not his girlfriend.” R11 claimed
that he was “comforting” the other resident by stroking his inner thigh. The nurse
practitioner prescribed Depakote for “impulsive behavior.” P. Ex. 20 at 8.

A nurse’s note, dated August 21, 2012, indicates that R11 was “hateful to other
residents [at] the breakfast table.” Staff provided one-on-one supervision,
redirected him, and notified the facility administration of his behavior. P. Ex. 9
at 9.

On September 14, 2012, the nurse practitioner from Millennium Medical Services
noted the recent Depakote prescription to address R11’s impulse control (or lack
of it) and to treat his “inappropriate sexual behavior toward male and female
peers.” Despite noting that R11 was “doing better,” the nurse practitioner
continued to document R11’s “poor impulse control.” P. Ex. 20 at 9.

On September 25, 2012, staff observed R11 in the dining room “kissing another
resident.” When told the behavior was inappropriate, he became hateful[,]
demanding[,] yelling at staff.” According to the note, staff redirected and
provided one-to-one supervision but with no result. P. Ex. 9 at 16.

An October 2, 2012 note says that R11 was observed “lifting another resident.”
According to the note, he had been told “multiple times” that such behavior was
inappropriate. Staff informed the administration. P. Ex. 9 at 17.

On October 19, 2012, facility staff notified Dr. Garrett Shelton’s office (R11’s
physician) that R11 “continues to exhibit inappropriate sexual behavior [with]
staff [and] guests.” The physician ordered more Depakote “to assist with mood
stabilization.” P. Ex. 9 at 17.

On October 24, 2012, two nurses and a nurse aide entered the dining room and
observed R11 “rubbing another resident’s thigh.” They told him to keep his hands
to himself. He told them that he didn’t know why he touched other residents,
knowing that it was inappropriate. They asked him what would happen if “he did
it to someone who was mentally alert,” and he conceded that he would “probably
get hit.” P. Ex. 9 at 19 (emphasis added). Staff reported the incident to the
administrator, director of nursing (DON), and Dr. Shelton. P. Ex. 9 at 19, see P.
Ex. 13 at 2; P. Ex. 20 at 6; CMS Ex. 6 at 6.

14

e The following day, facility staff sent R11 to a psychiatric facility, where he was
briefly admitted. P. Ex. 9 at 19. On October 26, 2012, he underwent a psychiatric
evaluation, performed by Dr. Michael Feldman. Dr. Feldman reported that R11
had “been showing increasing sexual inappropriateness, touching both men and
women and targeting residents that are either paraplegic or blind.” P. Ex. 20 at 6
(emphasis added). R11 was also verbally aggressive toward staff. CMS Ex. 5 at
1; P. Ex. 20 at 6. He was diagnosed with an impulse control disorder and anxiety
disorder. CMS Ex. 5 at 2; P. Ex. 20 at 7. Among his other medications, he was
prescribed Estradiol, a female hormone, to treat his “inappropriate sexual
behavior.” CMS Ex. 6 at 3.

On October 30, R11 returned to the facility. P. Ex. 9 at 19.

¢ On November 1, 2012, staff observed R11 in the day area with his “girlfriend
sitting on his lap.” He had removed his estrogen patch. Staff told him that the
behavior was inappropriate and informed the administration and the director of
nursing. P. Ex. 9 at 20.

e The following day, November 2, R11 was up in the common area “rubbing his
genitals inside [his] pants.” Staff redirected and he stopped the behavior. P. Ex. 9
at 20. Staff did not report the behavior.®

e A psychiatric progress note, dated November 16, indicates that R11 was still
behaving inappropriately, “most recently today” (although I see no note or report
of such behaviors that day). His Depakote was increased. P. Ex. 20 at 11.

® Petitioner accuses CMS of “distorting the facts” because it characterizes this behavior
as “masturbation.” P. Response at 7. I do not consider this a distortion but a reasonable
inference to be drawn from the documentary evidence. But it is not the only reasonable
inference, and, for summary judgment purposes, I must draw all reasonable inferences in
the light most favorable to the nonmoving party. I therefore do not characterize the
behavior as public masturbation. But I also reject Petitioner’s suggestion that R11’s
genitals itched because he had prostatitis, which, based on the evidence is not a
reasonable inference. P. Response at 8. First, nowhere in the record is there any
suggestion that R11 suffered itching related to prostatitis, for which he would (or should)
ave been examined and treated. Second, the staff member observing his behavior did
not suggest that his genitals were irritated and itching and thus in need of treatment. She
described his conduct as “inappropriate” and stopped the behavior. The uncontroverted
evidence thus establishes that he was publically rubbing his genitals. Whatever his
motivation, such conduct may certainly cause an observer psychological or emotional
arm and thus falls within the facility’s definition of abuse. CMS Ex. 16 at 1.

15

¢ Social Service notes summarizing the months of September, October, and
November 2012 refer to R11’s inappropriately touching other residents,
specifically those who “cannot tell him to stop,” and touching a resident on the
thigh. P. Ex. 13 at 2 (emphasis added). The notes confirm that the facility
response was to tell him to keep a distance between himself and others. When he
removed his hormone patch, they told him not to. P. Ex. 13 at 2.

¢ On December 22, 2012, staff reported that R11 “flicked water at another resident.”
The nurse spoke to him, told him that it was inappropriate, and removed him from
the area. P. Ex. 9 at 22.

e On January 2, 2013, staff observed him rubbing the arms of another resident and
told him to keep his hands to himself. He became angry and started “pouting.”
P. Ex. 9 at 24.

e A nurse’s note, dated February 10, 2013, indicates that R11 was in the common
area when he started yelling at one of the nurse aides. The nurse aide reported that
R11 and another resident had been making fun of and “getting aggressive with” a
non-verbal resident. Staff told him to go to his room and return when he was
calm. P. Ex. 9 at 29.°

¢ On February 17, 2013, he was again yelling at another resident. Staff redirected
him and he stopped. Later that same day, a nurse aide reported that R11 “hit
another resident in the butt and tried to hit him in the face.” A visitor confirmed
that R11 had slapped the resident on the butt and, when the resident tried to walk
away, R11 “raised his fist to him.” The nurse reported the incident to the DON
and to the facility administrator. R11 was “redirected to his room.” P. Ex. 9 at 30.
The following day, the DON and the facility administrator questioned the residents
about the incident. According to the nurse’s note, the residents claimed that the
incident was “all done in fun.” The DON and administrator reminded R11 that he
was not allowed to touch the other residents and should refrain from putting
himself in situations where hitting might arise. P. Ex. 9 at 30.

e On February 23, 2013, staff again observed R11 grabbing a staff member and
hitting her “on the butt.” According to the note, he had been doing this to the
same staff member throughout the week. The nurse consulted R11’s physician
and sent him to the local hospital’s emergency room, which then transferred R11
to the psychiatric facility. P. Ex. 9 at 31; P. Ex. 20 at 4.

° As discussed below, on this day, staff reported that R11’s roommate had suffered
bruising of unknown origin.
On March 1, 2013, R11 returned to the facility. P. Ex.

16

On March 1, 2013, R11 underwent another psychiatric evaluation, again

eep his hands to himself. CMS Ex. 6 at 2.

performed by Dr. Feldman. Dr. Feldman noted that R1 exhibited “increased
aggressive behaviors directed toward both nursing staff as well as another male
resident within the nursing home.” Among his disturbing behaviors, he was
“stalking” the other male resident, tried to pour hot liquid on the resident, pointed
is finger as if shooting at the resident, and attempted to strike the resident. CMS
Ex. 6 at 1; P. Ex. 20 at 4. R11 told the psychiatrist that he patted the male resident
on the backside but denied that he did so in an aggressive manner. He promised to

9 at 31.

On March 2, 2013, staff observed R11 “placing his hands on another resident’s
legs below the table.” P. Ex. 9 at 32. Staff redirected R11 and the behavior

stopped. But half an hour later, R11 was arguing with another resident. Staff
again redirected. P. Ex. 9 at 32. Again, the resident he touched was not identified,
interviewed, or assessed, and staff failed to report the incident to R11’s physician,
the victim’s family or physician, or the facility administrator. No one

investigated.

On March 3, 2013, a nurse aide reported that R11 had been going to her hall,

where he was not allowed. P. Ex. 9 at 32.

The surveyors arrived at the facility on March 4. At 9:15 p.m. that day, staff contacted
the physician covering for Dr. Shelton and reported that R11 was “possibly placing other
residents at risk for abuse.” They put R11 ina private room with one-on-one supervision.
The physician told staff: “You need to find him a new [doctor].” P. Ex. 9 at 33; P. Ex. 8
at 36.'° R11 remained closely supervised until March 6, when staff asked Dr. Washburn
about transfer to the emergency room for evaluation and possible psychiatric placement.
But the doctor said that the facility was providing a sufficient level of supervision. P. Ex.

9 at 33. In fact, even though the one-on-on level of sup:

events cast significant doubt on its adequacy.

ervision continued, subsequent

On March 8, 2013, R11 and a female resident were sitting near each other

touching each other’s arms. Staff redirected an
themselves. P. Ex. 9 at 34.

On March 13, 2013, R11 kissed or attempted to
supervising him. Staff reported the incident to t

told them to keep their hands to

iss the nurse aide who was

e facility administrator, who

'° No one has explained what the doctor meant by this or why he said it, although it
appears that R11 soon had a new primary care physician, Dr. Washburn. See P. Ex. 9 at

35-48.
17

reported it to the facility’s regional office. The following day, the staff member
resigned because of the incident. P. Ex. 9 at 36. Her disturbing report reads as
follows:

[R11] went to get up to go to the bathroom and almost fell. I
told him not to [fall] and he said how about falling for you. I
told him as long as he [doesn’t] hit the floor[.] It would hurt.
He then put his arms around me and walked to the bathroom.
At the door he leaned in and kissed me on the cheek. I told
him he can’t do that[;] he said it would be alright. I told him
we both would be in trouble[.] He said not if anyone didn’t
catch us. I told him they always catch [us].

P. Ex. 9 at 37.'!

Resident 29’s (R29’s) injuries and the facility’s response. As noted above, when R11
acted out, staff sometimes sent the angry resident to his room until he calmed down.
During most of this period, his room was at the back of the facility, at the end of the hall,
near an exit door. CMS Ex. 14 at 2; CMS Ex. 28; CMS Ex. 45 at 3 (Roth Decl.). R11
was not alone in that room; he had a roommate — R29.

R29’s diagnoses included seizures, atrial fibrillation, dysphagia, and Alzheimer’s disease.
He had “no discernable consciousness” and was totally dependent on staff for all of his
activities of daily living. P. Ex. 8 at 49-50; P. Ex. 19 at 2, 8; CMS Ex. 45 at 3 (Roth
Decl.). R29 was completely defenseless.

On February 10, 2013, a nurse aide reported “‘discoloration of the skin on [R29’s] side.”
One of the nurses also reported that R29’s gums had been bleeding excessively. The
nurse contacted his physician, suggesting a blood test to measure how quickly his blood
was clotting (INR). The physician said that he had a current test and another was
scheduled soon. P. Ex. 22 at 1.1?

' T recognize that this report raises as many questions about the nurse aide’s response
and training as it does R11’s behaviors. But that hardly strengthens Petitioner’s case.

". Those tests appear to indicate relatively normal prothrombin times. P. Ex. 19 at 12,
13. In his written declaration, R29’s physician suggests that anticoagulant therapy could
cause bruising, but does not discuss the prothrombin times or point to any evidence that it
actually did so in this instance (except for the fact that the therapy can contribute to
bruising). P. Ex. 51 at 2-3 (Washburn Decl. { 12). Of course, had the physician believed
that R29’s anticoagulant therapy caused the bruising, serious questions would arise
regarding his refusal to order additional testing or to alter the therapy.
18

A note dated February 11 describes a bruise on R29’s left side as “dark purple, slightly
warm, with slight dependent edema.” P. Ex. 22 at 2.

On February 12, a nurse aide reported bruising on R29’s left back. P. Ex. 22 at 1.

A nurse’s note dated February 25, 2013, describes a “grape fruit-sized purple and green
bruise to top of [left] ribcage” with “no previous documentation noted.”'? P. Ex. 22 at 3.
The nurse prepared an incident report, put the report in the administrator’s box, left a
phone message for the resident’s physician, and reported the bruise to the incoming
nurse. P. Ex. 22 at 3; see P. Ex. 19 at 4, 6-7. Curiously, a weekly skin integrity check,
dated February 26, does not mention the bruise. P. Ex. 19 at 15; see P. Ex. 22 at 4. The
bruise was very large. When the surveyors saw it on March 7, they assessed it as
approximately eight inches long and six inches wide. Staff told them that it had been
even larger. P. Ex. 8 at 76.

The record includes no nurses’ notes for R29 from February 28 through March 3.

On the day the surveyors arrived (March 4), staff contacted R29’s physician and reported
that the resident “was possibly at risk of abuse” from his roommate and, for his own
safety, he was moved to another room, closer to the nurses’ station. P. Ex. 22 at 6.
Facility staff also finally sent the state agency an incident report describing R29’s “injury
of unknown source.” According to the report, the DON began investigating the injury on
March 3, three weeks after the first bruise was reported. She determined that staff had
caused the injury when they used the wrong size sling during transfers involving a full
body lift. CMS Ex. 26 at 2.

For purposes of summary judgment, I accept this as true, but find it not material.
Moreover, this hardly establishes the facility’s substantial compliance with program
requirements. Using the wrong transfer device, resulting in significant injury, constitutes
a serious deficiency that, in this case, caused actual harm. Each resident must receive
adequate assistance devices to prevent accidents. 42 C.F.R. § 483.25(h).

On March 4, facility staff finally notified R29’s sister of the injury and told her that her
brother had been transferred to another room. P. Ex. 22 at 6.

Substantial noncompliance. Petitioner does not challenge any of these facts, all of which
come directly from the facility’s own documents. See generally P. Response. Indeed,
Petitioner’s witnesses concede that the facility “was deficient for not promptly reporting
and investigating [R29’s] discoloration.” P. Ex. 28 at 6 (Nay Decl. § 19); P. Ex. 51 at 3

8 T cannot tell whether this bruise above the left ribcage is the same as the one(s) that
were described as on R29’s back and/or side.
19

(Washburn Decl. § 14) (conceding that the facility’s failure to investigate and report the
injury timely “may be a deficient practice”).

But Petitioner and its witnesses dismiss the possibility that sending R11 back to his room
exposed R29 to potential abuse. I accept, for purposes of summary judgment, that R29’s
injuries were caused by staff improperly using the wrong size sling. But facility staff
could not have known the cause of the injuries until they launched an investigation. In
the meantime, they did not even entertain the possibility that R29’s roommate — who had

impulse control issues and, on t
room until he “calmed down” —
that staff sent R29 to his room a
with a non-verbal resident”). O

ie day the bruises first appeared, had been sent into the
could have been implicated. P. Ex. 9 at 29 (documenting
fter they discovered him teasing and “getting aggressive
bviously, these circumstances do not establish that R11

caused R29’s injuries. But they should have alerted staff that R11 could have been
responsible, and, until that possibility was eliminated, staff were obligated to keep R29
safe. Exposing a frail and defenseless resident to an angry and aggressive resident with
impulse control problems puts the defenseless resident at significant risk.

Staff ignored virtually every policy instruction in place for responding to injuries of
unknown origin. They did not immediately report the bruise to the administrator and
DON. Although an unexplained bruise was first noted on February 10, no evidence
establishes that staff notified the administrator until February 25, when the nurse put an
incident report into the administrator’s box. P. Ex. 22 at 3. Staff did not notify R29’s
sister until March 4. P. Ex. 22 at 6. The DON began her investigation on March 3. P.
Ex. 26 at 2. Staff did not report to the appropriate state agency. Without regard to any
dangers posed by R11, the facility’s response — or lack of response to the bruising — is
sufficient to establish substantial noncompliance with 42 C.F.R. §§ 483.13(b) and (c).

With respect to the other allegations of abuse, Petitioner re
expert witnesses to argue that no evidence “supports the all
abusive, caused any injury to residents or staff, or engaged

ies on the opinions of its
legation” that R11 was
in sexually inappropriate

behavior. P. Response at 3; P. Ex. 27 at 2-3 (Crecelius Decl. 9 7, 9, 10, 11); P. Ex. 28 at
3-4 (Nay Decl. 4 11, 12, 14); P. Ex. 29 at 6 (Ziv Decl. { III). These witnesses have no
personal knowledge of the underlying facts, but claim to rely on their review of the
record in this case. P. Ex. 27 at 2 (Crecelius Decl. § 7); P. Ex. 28 at 1 (Nay Decl. | 1); P.
Ex. 29 at 1-2 (Ziv Decl. § 1A). But their conclusions are not only unsupported, they fly
in the face of the unchallenged facts. To accept these unsupported conclusions, I would

have to ignore R11’s medical records and conclude that the
cited above and the psychiatrists and staff who assessed an
his condition and his behaviors. He was, after all, admitted

nurses who wrote the notes
treated R11 mischaracterized
to a psychiatric facility “due

to increased aggressive behaviors and inappropriate sexual

Moreover, if R11 did not engage in sexually abusive behavi

behaviors.” P. Ex. 20 at 1.
ors, how does the facility

justify his medication, particularly the Estradiol? See 42 C.
(requiring adequate indications for a drug’s use).

F.R. § 483.25())(1)(iv)
20

Further, the problem with Petitioner’s claim that R11’s conduct caused no injury to any
of the residents he touched, teased, yelled at, or otherwise menaced is that, contrary to the
requirements of the regulations and the facility’s own policies, staff repeatedly failed to
assess R11’s victims, a serious omission for which it cannot now benefit. Failing to
assess the welfare of a vulnerable resident victimized by abusive behavior has the
potential for causing more than minimal harm and, by itself, justifies a finding of
substantial noncompliance with 42 C.F.R. § 483.13(b) and (c). CMS need not establish
actual harm. 42 C.F.R. § 488.301.

Each of Petitioner’s experts simply reviews the record and opines on the ultimate — legal
—conclusion. Petitioner admits as much, declaring that “CMS and Petitioner have stated
diametrically opposing positions on the central issue — whether [R11] caused or was
likely to cause serious harm that constituted immediate jeopardy.” P. Response at 4.

But an expert opinion on the ultimate legal issue does not create a material fact in dispute
that would preclude summary judgment, particularly where, as here, that opinion is
premised on statements that no rational trier of fact would accept. Bartley Healthcare
Nursing & Rehab., DAB No. 2539 at 8.

Petitioner’s witnesses make additional statements that are unsupported and irrelevant. '*
Witnesses Nay and Crecelius claim that, in nine years, R11 was never involved in or
charged with sexually inappropriate behaviors or physical altercations. P. Ex. 28 at 3
(Nay Decl. §] 11); see P. Ex. 27 at 2 (Crecelius Decl. § 8). First, whatever occurred prior
to this survey cycle is irrelevant. Even if it were relevant, none of Petitioner’s expert
witnesses claim any independent knowledge of what went on at the facility at any time,
much less during the nine years preceding the dates of substantial noncompliance. They
cite no support for the claim, and, based on the record before me, we simply don’t know
what went on prior to March 2012, except that, by March 2012, R11 had been
“threatening, screaming, and cussing” at people. CMS Ex. 12 at 10. Based on his
psychiatric records, we also know that his behaviors were escalating; his psychiatrist
reported “increasing sexual inappropriateness” and “increased aggressive behavior.”
CMS Ex. 5 at 1; CMS Ex. 6 at 3; P. Ex. 20 at 1, 6.

The witnesses also accuse CMS of “extrapolating from . . . one event with a six-year-old
boy in 2004. ...” P. Ex. 28 at 3 (Nay Decl. § 11). Again, this claim is not only wrong
but irrelevant. It reflects a fundamental misunderstanding of the nature of these de novo
proceedings. I am not concerned with the means by which CMS reached its

‘4 Although the witnesses signed their declarations weeks after CMS determined the

final penalty amount, they were apparently not aware that CMS imposed the minimum
CMPs. See P. Ex. 7. They claim that the CMP is almost double the actual amount. P.
Ex. 27 at 2 (Crecelius Decl. 9 5, 6); P. Ex. 28 at 3 (Nay Decl. § 8). Nor did Witness Nay
now that CMS sent the facility a notice letter that detailed the deficiencies upon which it
based the CMPs. P. Ex. 2; CMS Ex. | at 1, 2; P. Ex. 28 at 3 (Nay Decl. § 8).

21

determination; rather I take a “fresh look” at the legal and factual bases for the deficiency
findings underlying the remedies to determine whether those findings and remedies
accord with the Act and regulations. Britthaven of Chapel Hill, DAB No. 2284 at 6
(2009), and cases cited therein.

Thus, my finding of noncompliance here is not arrived at by “extrapolating from” R11’s
child abuse conviction, his assault conviction, or any other event that pre-dates the
relevant time period. Indeed, my focus is on the facility’s actions (or inaction), not R11’s
istory. The facility was not in substantial compliance because its own records establish
that, during the relevant time period, facility staff did not keep their residents safe from
abuse, and they failed to assess, investigate, or report repeated allegations and evidence
of abuse.

Further, although the undisputed facts show that R11 engaged in sexually inappropriate
behaviors, even that finding is not material to the outcome of this case. Whether R11 was
motivated by a desire for sexual gratification or some other reason does not change the
reality that facility residents — including its most vulnerable residents — were touched,
yelled at, teased, menaced, and not adequately protected by facility staff. The potential
for harm to the victims of such conduct — not the underlying reasons for it — drives the
finding of substantial noncompliance.

Willful intent. Without pointing to any evidence, Petitioner suggests that a factual
dispute regarding whether R11 possessed the requisite “willful” intent required for abuse
precludes entry of summary judgment. P. Response at 15. First, to preclude summary
judgment, Petitioner may not rely on denials, but must come forward with admissible
evidence of a dispute, which it has not done. And the argument fails for other reasons.
R11 was unquestionably a difficult resident who had trouble controlling his impulses.
But no evidence establishes that he was unable to control himself or could not have
learned to control himself. Indeed, the facility’s interventions — limited as they might
ave been — were premised on the presumption that he could control his behaviors.

Moreover, without regard to the state of R11’s impulse control, so long as his actions are

“deliberate” rather than accidental or inadvertent, they are considered “willful” within the
meaning of the regulation. Merrimack Cnty. Nursing Home, DAB No. 2424 at 5 (2011);

cf. Singing River Rehab. & Nursing Ctr., DAB No. 2232 (2009) at 13 (suggesting that, so
long as a mentally ill resident did not act “by accident,” his conduct was abusive).

Finally, the regulations and facility policies require the facility to report and investigate
thoroughly all alleged violations. Even if I agreed that these incidents were not abuse
(which I do not), they were significant enough to trigger the facility’s obligation to
investigate and report. 42 C.F.R. § 483.13(c).
22

The facility was required to keep its residents free from abuse. 42 C.F.R. § 483.13(b).
Section 483.13(c)(1)(i) puts the onus on it to protect its residents by developing and
implementing policies that prevent resident-to-resident abuse. See, e.g., Martha & Mary
Lutheran Servs., DAB No. 2147 at 12-13 (2008) (finding substantial noncompliance with
section 483.13(c) where facility staff failed to implement facility policies and procedures
to prevent resident-to-resident abuse). Because the facility here did not keep its residents
free from abuse and did not implement its own policies for preventing abuse, it was not in
substantial compliance with sections 483.13(b) and 483.13(c).

Administration. A finding of substantial noncompliance in the facility’s administration
may derive from findings of substantial noncompliance in other areas.

Where a facility has been shown to be so out of compliance
with program requirements that its residents have been

placed in immediate jeopardy, the facility was not
administered in a manner that used its resources effectively to
attain the highest practicable physical, mental, and
psychosocial well-being of each resident.

Asbury Ctr. at Johnson City, DAB No. 1815 at 11 (2002); Stone Cnty. Nursing & Rehab.
Ctr., DAB No. 2276 at 15-16 (2009); Odd Fellow & Rebekah Health Care Facility, DAB
No. 1839 at 7 (2002). As discussed below, I find that the facility’s deficiencies posed
immediate jeopardy to resident health and safety, which, by itself, justifies the finding
that the facility was not in substantial compliance with 42 C.F.R. § 483.75.

Moreover, as the above discussion establishes, the failures here were directly attributable
to administrative, as well as staff, failures. The facility’s administration, as well as its
staff, disregarded facility policies in failing to investigate thoroughly and report
allegations of resident abuse. It also fell short in protecting residents from a potential
abuser. The facility was therefore not administered in a manner that used its resources
effectively to attain or maintain the highest practicable physical, mental, and
psychosocial well-being of its residents and was not in substantial compliance with

42 CFR. § 483.75.

2. CMS’s determination that the facility’s substantial noncompliance with
42 C.F.R. §§ 483.13(b) and (c) and 483.75 posed immediate jeopardy to
resident health and safety is not clearly erroneous.

Immediate jeopardy. Immediate jeopardy exists if a facility’s noncompliance has caused
or is likely to cause “serious injury, harm, impairment, or death to a resident.” 42 C.F.R.
§ 488.301. CMS’s determination as to the level of a facility’s noncompliance (which
would include an immediate jeopardy finding) must be upheld unless it is “clearly
erroneous.” 42 C.F.R. § 498.60(c). The Board has observed repeatedly that the “clearly
23

erroneous” standard imposes on facilities a “heavy burden” to show no immediate
jeopardy, and has sustained determinations of immediate jeopardy where CMS presented
evidence “from which ‘[o]ne could reasonably conclude’ that immediate jeopardy
exists.” Barbourville Nursing Home, DAB No. 1931 at 27-28 (2004) (citing Koester
Pavilion, DAB No. 1750 (2000)); Daughters of Miriam Ctr., DAB No. 2067 at 7, 9
(2007).

The undisputed facts establish that R11 verbally and sexually abused facility residents,
particularly those who were least able to defend themselves. Multiple facility employees
— including the employee specifically charged with implementing the facility’s abuse
policies — repeatedly disregarded those policies in critical respects: reporting, protecting
the residents, and investigating. Most alarming was their almost-complete disregard of
the welfare of R11’s victims. Although staff stepped in to stop the immediate abuse
(including sending R11 back to his room), in virtually every case, they failed to assess the
victim; they failed to investigate the incident; they never reported to the victim’s
responsible party or the victim’s physician; they never reported to the appropriate state
agency; and they only sporadically reported the incidents to the facility administrator,
R11’s responsible party, or R11’s physician.

The undisputed facts also establish that facility staff failed to take any measures to protect
R29 after discovering a large bruise on his body. Staff made no immediate attempt to
investigate and determine the exact cause of the bruising and did not consider that R29
roomed with a potentially aggressive resident who had problems controlling his impulses.

Such disregard for the policies in place to protect residents from abuse puts those
residents at risk, and the situation is likely to cause serious harm. CMS’s determination
that the deficiencies posed immediate jeopardy to resident health and safety is therefore
not clearly erroneous.

Conclusion

The uncontroverted evidence establishes that, from June 18, 2012 through April 10, 2013,
the facility was not in substantial compliance with Medicare participation requirements,
and, from June 18 through October 25, 2012; October 30, 2012 through February 23,
2013; and March | through 4, 2013, those deficiencies posed immediate jeopardy to
resident health and safety.
24

Because CMS has imposed the minimum penalty amounts — $3,050 per day for the
period of immediate jeopardy and $50 per day for the period of substantial
noncompliance — I must affirm those amounts.

I therefore grant CMS’s motion for summary judgment.

/s/
Carolyn Cozad Hughes
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
South Nassau Oncology Practice, P.C.,
(PTAN: A100117587)
Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-15-3497
Decision No. CR4412

Date: November 6, 2015

DECISION

I enter summary judgment in favor of the Centers for Medicare & Medicaid Services
(CMS) sustaining the determination of its contractor, National Government Services, to
grant Petitioner, South Nassau Oncology Practice, P.C., an effective Medicare
participation date of January 5, 2015.

I. Background

Petitioner is a physicians’ practice and a Medicare supplier. It requested a hearing to
challenge the effective date determination that I recite in the opening paragraph of this
decision. CMS moved for summary judgment. Petitioner opposed the motion and filed a
cross-motion for summary judgment. With its motion CMS filed exhibits that are
identified as CMS Ex. 1 - CMS Ex. 22. Along with its response Petitioner filed exhibits
that are identified as P. Ex. | — P. Ex. 12. Petitioner also attached 15 exhibits to its
hearing request, many of which duplicate the exhibits that Petitioner filed with its
response to CMS’s motion for summary judgment. I am receiving all of these exhibits
into the record for purpose of deciding the parties’ motions.

Petitioner moved also that I issue a subpoena for certain documents in CMS’s possession.
I deny that motion. I am grounding my decision on undisputed material facts. Nothing
sought by Petitioner by way of subpoena would even potentially change the outcome of
this case. As I explain, the undisputed facts establish that neither the contractor nor CMS
committed any error that I may order be rectified.

II. Issue, Findings of Fact and Conclusions of Law
A. Issue

The issue is whether CMS’s contractor correctly determined the effective date of
Petitioner’s Medicare participation to be January 5, 2015.

B. Findings of Fact and Conclusions of Law

The effective date of participation of a Medicare supplier such as Petitioner is governed
by a regulation at 42 C.F.R. § 424.520(d). The regulation states that the effective date of
participation is the later of the following:

the date of filing of a Medicare enrollment application that was
subsequently approved by a Medicare contractor or the date an enrolled
physician or nonphysician practitioner first began furnishing services at a
new practice location.

The regulation does not allow for exceptions.

The undisputed material facts of this case are as follows. On September 26, 2014,
Petitioner submitted an application (first application) to CMS’s contractor to participate
in Medicare. The contractor determined that the application was missing certain required
information and Petitioner does not assert that the application was, in fact, complete. On

' CMS objected to my receiving one of Petitioner’s exhibits into evidence on the ground
that Petitioner did not present it at reconsideration and has not shown good cause for its
failure to do so. I make no findings at this time that any of the parties’ exhibits are
admissible evidence. It is unnecessary for me to do so inasmuch as I grant CMS’s
motion for summary judgment based on undisputed material facts. Receiving the
exhibits into the record is not the same as determining whether they would be admissible
as evidence in the event I were to hold a hearing.
October 8, 2014, the contractor sent an e-mail to Petitioner with an attachment. CMS Ex.
6. The contractor addressed the e-mail to Mary Ann Vavas, an employee of Petitioner
whose responsibilities include preparing and sending applications for Medicare
participation. There is no dispute that the contractor sent the e-mail to Ms. Vavas’
correct e-mail address.

The attachment to the e-mail is a letter that is also addressed to Ms. Vavas. The letter,
containing the contractor’s logo, identifies the deficiencies in the first application and
advises Petitioner that, the contractor may reject Petitioner’s first application if the
identified deficiencies are not corrected within 30 days.

The contractor did not send a hard copy of its October 8 letter to Petitioner via regular
mail, instead, relying on its e-mail as the sole vehicle for giving notice to Petitioner of the
deficiencies in its first application.

Ms. Vavas asserts — and for purposes of this decision I accept her assertion as true — that
she did not receive the contractor’s October 8 letter when it was sent. P. Ex. | at 2.
Rather, she received a series of blank e-mails from the contractor, none of which had any
content. Ms. Vavas also asserts — and for purposes of this decision I also accept this
assertion as true — that she called representatives of the contractor more than once about
the blank e-mails and that the representatives told her that they were unable to provide
her with any explanation of the blank e-mails.

However, it is also undisputed that Petitioner actually received the October 8 e-mail and
attachment letter. Ms. Vavas may not have seen the e-mail in readable form but the e-
mail and the attachment did arrive and were saved on Petitioner’s computer system, both
on Petitioner’s server and the server used by Ms. Vavas’ office. Ms. Vavas
acknowledges that on June 15, 2015, Petitioner retrieved the October 8 e-mail and the
attachment letter from its own computer archives. P. Ex. | at 2.

Petitioner did not supply the contractor with the requested information within 30 days.
On December 15, 2014, the contractor sent an e-mail to Ms. Vavas with an attached
letter, rejecting Petitioner’s first application on the ground that Petitioner had not
provided the information that the contractor requested on October 8, 2014. CMS Ex. 4;
CMS Ex. 7 at 1.

On January 5, 2015, Petitioner filed a new enrollment application with the contractor
(second application). The contractor found some deficiencies in this application and sent
e-mails to Ms. Vavas — at the same e-mail address as was sent the October 8 e-mail —
with attached letters requesting additional information. CMS Ex. 12 at 2, 13, 15. Ms.
Vavas timely replied to these requests and supplied the asked-for additional information.
On April 1, 2015, the contractor advised Petitioner that it had accepted the second
application with an effective participation date of January 5, 2015. It advised Petitioner
that it could claim reimbursement for Medicare items or services that Petitioner provided,
beginning December 7, 2014. CMS Ex. 3 at 1.7

These undisputed material facts establish that Petitioner’s second application was the
application that the contractor “subsequently approved,” within the meaning of 42 C.F.R.
§ 424.520(d). The earliest effective participation date that the contractor could have
assigned to Petitioner consistent with the regulation was January 5, 2015. That was the
date that the contractor determined to assign. The contractor could not approve
Petitioner’s first application because that application was, and remained, incomplete.

Petitioner argues that it was deprived of the opportunity to participate in Medicare at an
earlier date — September 26, 2014, the date of the first application — through no fault of its
own. It contends that had Ms. Vavas received the October 8, 2014 letter from the
contractor she would have timely provided the contractor with the requested information
and the first application would have been processed to completion. It asks that I remand
this case to CMS and its contractor in order to correct this asserted unfairness, with
directions that the contractor redetermine the effective date of participation based on
Petitioner’s first application.

The essential problem that Petitioner faces with this argument is that neither the
contractor nor CMS has committed any reviewable error. Indeed, from the undisputed
material facts it is evident that the contractor did everything by the book. It identified
undeniable deficiencies in Petitioner’s first application, deficiencies that prevented the
application from being processed. It notified Petitioner of the existence of those
deficiencies and gave Petitioner the opportunity to correct them within 30 days. The
method of notification used by the contractor — an e-mail with a letter sent as an
attachment — is consistent with the instructions contained in CMS’s Medicare Program
Integrity Manual (MPIM). MPIM, Section 15.7.1.4.3B; CMS Ex. 22 at 3. The contractor
sent the e-mail to Ms. Vavas’ correct e-mail address and it arrived on Petitioner’s
computer system, where Petitioner’s employees located it in June 2015. The contractor
allowed Petitioner 30 days to correct the deficiencies in the first application. Only then
did it reject the application. That is entirely consistent with Medicare policy and
regulatory requirements.

Petitioner argues that, but for Ms. Vavas’ failure to receive the contractor’s October 8,
2014 e-mail it would have been eligible to receive reimbursement for over $500,000 in
Medicare items or services. But, that misfortune was not caused by anything that the

> CMS allows suppliers and providers who participate in Medicare a grace period of 30
days prior to their effective participation dates within which they may claim
reimbursement for Medicare items or services.
contractor did or failed to do. That inability to claim reimbursement came about as a
consequence of a problem that Ms. Vavas had with her e-mails, a problem that is not
attributable to any contractor error.

Moreover, Petitioner never had a right to expect that it would be reimbursed for those
services. Medicare regulations are explicit. No provider or supplier is entitled to
reimbursement for services that it provides if the provider or supplier is not certified to
participate in Medicare. Providing items or services during a period when an application
for participation is pending is a risk that a prospective provider or supplier assumes
without any guarantee of eventual reimbursement for those items or services. Petitioner
assumed a risk that its services would not be reimbursed when it began to provide them
without being certified. It is unfortunate, of course, that Ms. Vavas’ problems with her e-
mails may have in the end prevented Petitioner from being able to claim reimbursement
for those items or services, but that does not impose any obligation on CMS or the
contractor aside from the obligations stated in the regulations.

It is also undeniable that Petitioner never would have faced the problems it encountered
ad it simply filed a complete application to begin with. The undisputed facts are that
Petitioner’s first application was deficient in several respects. Had it not been so, it
would have been approved. Petitioner bears responsibility for the problems it created by
filing an application that was not complete.

The arguments that Petitioner makes are essentially equitable in nature although
Petitioner attempts to characterize them as legal arguments.’ At bottom, it asserts that it
is unfair that it is denied an effective participation date based on its first application and it
asks me to do something to rectify that asserted unfairness. It makes a kind of equitable
estoppel argument in which it contends that principles of fairness should deny the
contractor and CMS the authority to certify Petitioner based on the second application
and should compel them to use the first application as the basis for certification.

As a matter of law, the doctrine of equitable estoppel generally does not apply against the
government. Heckler v. Cmty. Health Servs. of Crawford Cnty., Inc., 467 U.S. 51 (1984).
Perhaps more pertinent, nothing in the regulations governing cases involving CMS gives

me the authority to override regulatory requirements on equitable grounds. Indeed:

> Petitioner asserts that the contractor committed a /egal error by failing properly to
notify Ms. Vavas of the defects in the first application. But, that assertion simply is not
supported by any facts. As I have discussed, the undisputed facts show that the
contractor sent notice consistent with regulatory requirements, a notice that Petitioner, if
not Ms. Vavas, actually received in readable form. That reduces Petitioner to
complaining that it wasn’t treated fairly by the contractor, an equitable argument at its
core.
[N]either the . . . [administrative law judge] nor the [Departmental Appeals]
Board is authorized to provide equitable relief by reimbursing or enrolling a
supplier who does not meet statutory or regulatory requirements.

Pepper Hill Nursing & Rehab. Ctr., DAB No. 2395 at 10 (2011).

There may be an exception to these rules — in the case of willful wrongdoing by a
government entity. But, there are no facts here that suggest that the contractor did
anything wrong, much less willfully so.

There have been a few instances where administrative law judges remanded
determinations to CMS for additional review by CMS or a contractor. But, in those
instances, the remands were predicated on a failure by the contractor to apply applicable
regulations or policy guidelines. In other words, the cases were remanded to address
clear errors committed by contractors. In Alexander Eugene Istomin, DAB CR2346
(2011), for example, an administrative law judge remanded a case where the evidence
proved that the contractor sent a notice letter to an incorrect address. But, that is clearly
not what happened here. Here, the contractor sent its notice to the correct address — to
Ms. Vavas’ e-mail address — and for some unknown reason she did not receive it
(although Petitioner did receive the e-mail on its computer system). Those undisputed
facts establish no error that I have the authority to rectify.

Petitioner contends that the contractor “ineffectively communicated” with Ms. Vavas. It
contends also that the contractor “repeatedly rebuffed” Ms. Vavas’ good-faith requests
for assistance. Petitioner’s pre-hearing brief at 1. These characterizations are an attempt
by Petitioner to characterize the contractor’s actions in this case as comprising some
wrongdoing that might merit relief. However, Petitioner has adduced no facts that
support these assertions.

Petitioner repeatedly asserts that there was some error committed by the contractor, that it
sent an e-mail to Petitioner on October 8, 2014, that was in some sense defective or
unreadable. But, there is no basis to conclude that. As I have explained, the contractor
did everything correctly, sending an e-mail in a manner that is consistent with Medicare
policy to Ms. Vavas’ correct e-mail address. Petitioner received that e-mail in readable
form. That, for reasons unknown, Ms. Vavas did not receive it in a readable form on her
desktop computer suggests no error or wrongdoing by the contractor. Indeed, the only
facts that are of record show that any problems with receiving a readable e-mail lay with
Ms. Vavas’ computer inasmuch as the contractor’s October 8 e-mail was subsequently
found on Petitioner’s archives and on the server in Ms. Vavas’ office.

Moreover, the undisputed material facts do not suggest that the contractor or its
employees “rebuffed” Ms. Vavas’ attempts to obtain more information about the e-mails
she was receiving. All that they show is that the contractor was unable to discern what
Ms. Vavas was expressing concern about and that its employees told that to Ms. Vavas.

But, even if the contractor’s employees had said something that was arguably misleading
to Ms. Vavas, that would create no basis for me to remand this case. As I have explained,
I have no authority to overturn a determination of an effective date based on general
equitable principles. Petitioner certainly has adduced no facts suggesting conscious
wrongdoing by anyone.

Thus, a remand would be pointless in this case inasmuch as there is no error that I can
direct CMS or the contractor to correct. Remanding the case would leave it on the
identical footing as it is now and there would be no legal basis for the contractor to assign
an effective date to Petitioner based on its first application.

/s/
Steve T. Kessel
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
Rosewood Care Center of Swansea,
(CCN: 145620),

Petitioner,

v.

Centers for Medicare & Medicaid Services.
Docket No. C-15-194
Decision Number CR4408

Date: November 6, 2015

DECISION

I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) to
impose the following remedies against Petitioner, Rosewood Care Center of Swansea, a
skilled nursing facility in the State of Illinois:

¢ Civil money penalties of $6050 for each day of a period that began on May 12,
2014 and that ran through May 21, 2014; and

¢ Civil money penalties of $200 for each day of a period that began on May 22,
2014 and that ran through June 16, 2014.

I. Background

Petitioner requested a hearing to challenge the remedy determinations that I cite in the
opening paragraph of this decision. I scheduled an in-person hearing. However, the
parties agreed that the case could be heard and decided based on their written filings.
Therefore, I decide this case based on the written record.
CMS filed an opening brief, a final brief, and exhibits that are identified as CMS Ex. 1 —
CMS Ex. 61. Petitioner filed an opening brief, a final brief, and exhibits that are
identified as P. Ex. 1 — P Ex. 6. I receive the parties’ exhibits into the record.

IL. Issues, Findings of Fact and Conclusions of Law
A. Issues

The issues are whether: Petitioner failed to comply with Medicare participation
requirements; that noncompliance was so egregious as to constitute immediate jeopardy
for residents of Petitioner’s facility; and, the civil money penalties that CMS determined
to impose are reasonable. !

B. Findings of Fact and Conclusions of Law

CMS alleges that Petitioner failed to comply substantially with several Medicare
participation requirements and that its noncompliance was so egregious as to put
residents of Petitioner’s facility in a state of immediate jeopardy. The term “immediate
jeopardy” means noncompliance that is so serious as to cause, or to create a likelihood of
causing, serious injury, harm, impairment, or death to a resident. 42 C.F.R. § 488.301.
Specifically, CMS asserts that Petitioner’s immediate jeopardy level noncompliance
consists of the following:

' It is unclear to me whether Petitioner is contending that it, in fact, complied with the
regulations about which CMS is alleging immediate jeopardy level noncompliance or
whether it is challenging only the level of noncompliance found by CMS. In its pre-
hearing brief, Petitioner seems to argue that it was in compliance with at least some of the
regulations that CMS contends that Petitioner violated at the immediate jeopardy level.
However, in its closing brief, Petitioner states:

the investigation conducted by . . . [Illinois Department of Public Health]
surveyors do[es] not support the imposition of . . . [immediate jeopardy]
deficiencies . . . [The administrative law judge] should reduce the scope and
severity findings for . . . [the immediate jeopardy level deficiencies]. A
corresponding reduction in the amount of the . . . [civil money penalties] is
also warranted.

Petitioner’s final brief at 1. Out of an abundance of caution I am addressing both the
issues of Petitioner’s compliance and the level of its noncompliance in this decision.
e Petitioner allowed a resident to be verbally and physically abused in violation of
the requirements of 42 C.F.R. §§ 483.13(b) and (c)(1)(i). CMS argues
additionally that, even if no actual abuse occurred, Petitioner allowed a climate to
exist at its facility that made abuse likely.

e Petitioner contravened the requirements of 42 C.F.R. § 483.13(c)(3) because it
failed to investigate allegations of abuse and to protect its residents while these
allegations were being investigated.

e Petitioner did not comply substantially with the requirements of 42 C.F.R.
§ 483.13(c)(2) because it failed to report to appropriate authorities allegations of
neglect, abuse, and misappropriation of resident property.

e Petitioner violated 42 C.F.R. § 483.13(c) because it failed to implement its own
anti-abuse policies.

CMS also alleged that Petitioner manifested several additional deficiencies albeit not so
egregious as to put residents at immediate jeopardy. I do not address those additional
deficiencies here inasmuch as Petitioner has not offered evidence or argument addressing
them. I find them to be administratively final.

The evidence of noncompliance in this case is mostly uncontroverted and strongly
supports CMS’s allegations. It establishes that Petitioner’s staff both verbally and
physically abused Resident # 34, a 92-year old individual who was mentally
incapacitated due to advanced dementia. It establishes that Petitioner’s staff and
management failed to investigate thoroughly allegations of abuse raised by a family
member of another resident, Resident # 6. The evidence establishes also that Petitioner
failed to report those allegations or the results of its investigation to appropriate State
authorities. These instances of noncompliance were also a failure by Petitioner to
implement its own anti-abuse policies.

I find also that CMS’s findings of immediate jeopardy level noncompliance were not
clearly erroneous. The principal risk to residents — and the likelihood of harm — resulted
from Petitioner’s failure to comprehend the seriousness of the situation at its facility. It
allowed escalating hostilities between feuding members of its own staff to jeopardize the
safety of its residents. Its failure to investigate thoroughly allegations of abuse meant that
potentially dangerous situations were going unexamined. State authorities were not
brought into the matter timely, further exacerbating the risk of harm to residents of
Petitioner’s facility.

CMS’s allegations of noncompliance center around the care that Petitioner gave to three
of its residents, identified as Residents #s 34, 6, and 28. In May 2014 Resident # 34 was
92 years and suffered from end-stage dementia. CMS Ex. | at 3. By any measure he was
utterly helpless. He was severely cognitively impaired and was totally dependent on
Petitioner’s staff for all activities of daily living including transfers to and from his bed
and showers. He needed the assistance of two staff persons for such activities. Jd. The
resident could at times be difficult to care for. He resisted assistance at times, almost
certainly as a consequence of his advanced dementia.

The evidence establishes that Resident # 34 was abused in some measure as a
consequence of an unchecked and virulent feud between two members of Petitioner’s
staff. CMS Ex. 21 at 15; CMS Ex. 24 at 8. These two staff members were assigned to
provide care to Resident # 34. During the evening of May 12, 2014, these staff members
engaged in verbal altercations even while attempting to provide care to the resident. One
of the staff members, a nursing assistant, cursed loudly as she attempted to shower
Resident # 34. CMS Ex. 24 at 5; CMS Ex. 20 at 4. Later that evening the same nursing
assistant treated the resident so roughly as she turned him in bed that the resident nearly
rolled out of the bed and fell to the floor. CMS Ex. 24 at 4, 7, 8.

Staff reported the allegations of abuse on the evening of May 12 to a supervisor. CMS
Ex. 24 at 8. The supervisor concluded that the allegations were merely an outgrowth of
the feuding that typified the relationship between the two nursing assistants who provided
care to Resident # 34. She discounted these allegations and failed either to report or to
investigate them immediately. CMS Ex. 21 at 15; CMS Ex. 9 at § 16. Nor did she
relieve either of the feuding nursing assistants from their duties, but allowed them to
continue working while the allegations of abuse went unexamined.

Petitioner’s failures to protect Resident # 34 from abuse are apparent from the foregoing
evidence. The cursing and verbal outbursts of the nursing assistant may not have been
directed at the resident so much as they were an element of a verbal altercation between
that nursing assistant and another nursing assistant. However, Resident # 34, who was
severely cognitively impaired, was caught in the direct line of fire. Even more troubling
is the physical abuse that the resident experienced incident to the ongoing feud between
the nursing assistants. Finally, the failure of the nursing assistants’ supervisor initially to
take the allegations of abuse seriously not only meant that serious abuse episodes were
not being investigated, but contributed to an ongoing climate in which more abuse could
have easily occurred.

The evidence is equivocal as to whether Petitioner’s staff abused Resident #6. But, CMS
isn’t contending that the resident was abused. Rather, CMS’s allegation is that
Petitioner’s management failed to investigate thoroughly and to report complaints that a
member of Petitioner’s staff abused the resident. The evidence is unequivocal as to these
allegations.
Resident # 6’s wife complained that a member of Petitioner’s staff had abused the
resident mentally. CMS Ex. 15 at 1. She alleged that a female staff member had kissed
the resident more than once and told him that she loved him. She asserted that the kissing
incident was not an expression of concern or care by a staff member, but was something
that was entirely inappropriate. Jd. She asserted also that she had complained to
Petitioner’s administrator, but that Petitioner’s management had not immediately
investigated her complaint. Jd.

The evidence establishes that Petitioner belatedly investigated the allegations of abuse
concerning Resident # 6. Petitioner’s administrator conducted an investigation only after
the Illinois Department of Public Health initiated a complaint survey of Petitioner’s
facility. CMS Ex. 23 at 1. The investigation was palpably incomplete. Petitioner’s
management interviewed several staff members — all of who denied seeing anyone kiss
Resident # 6 — and management obtained statements from these staff members. Jd. at 2 —
11. However, although management interviewed Resident # 6, it inexplicably did not
obtain a statement from him. Nor did it obtain a statement from the resident’s wife even
though she had initiated the complaint of abuse.

Regulations governing abuse investigations do not define what is meant by the duty to
investigate thoroughly allegations of abuse. See 42 C.F.R. § 483.13(c)(3). But, the intent
of the regulations is nevertheless evident. A “thorough” investigation is one that
adequately explores all possible avenues of evidence concerning an incident or an
allegation and one that is sufficient to assure that there are not potentially fruitful areas of
evidence that are left unexamined. Here, the failure to obtain a statement from Resident
6 is inexplicable. The resident was a primary witness to the abuse and the alleged
subject of that abuse. His knowledge — or lack of it — of what was alleged to have
occurred was absolutely essential to resolving the allegations. There is no evidence to
show that the resident suffered from mental or cognitive impairments that would have
prevented him from providing a statement of what had occurred. But, despite that,
Petitioner’s management failed to obtain a signed statement from the resident. Instead,
the report of the investigation merely attributes a statement to the resident that the person
who allegedly kissed him was not wearing white. CMS Ex. 23 at 13.

Similarly inexplicable is the failure to obtain a statement from the resident’s wife. Her
allegations were extremely explicit. How she came by them is unclear. It is possible that
her allegations were unsupported, but how would Petitioner’s management know that
without carefully interviewing her and documenting the findings?

Petitioner asserts, baldly, that: “no interview of . . . [Resident # 6] or his wife would have
yielded any information that would have furthered the investigation.” Petitioner’s final
brief at 5. But, that is simply speculation on Petitioner’s part.
The evidence also is clear that Petitioner was remiss in not reporting the resident’s
allegations of abuse to appropriate State authorities. Petitioner’s administrator did not
file a report of the investigation until May 14, 2014, twelve days after the incident
allegedly occurred. CMS Ex. 23. The administrator filed a follow-up report two days
later and a second follow-up report on May 26, 2014,when Petitioner’s management
learned that a staff member had in fact kissed Resident # 6 (although, the purported intent
was benign). CMS Ex. 26. There is no legitimate reason for Petitioner to have delayed
either its investigation or its report for more than three weeks.

Petitioner’s explanation for delaying both its investigation and its report is that it never
put much credence in the complaint that Resident # 6 was abused. That is a case of
outcome-oriented reasoning and it is absolutely prohibited by the regulations. Obviously,
skilled nursing facilities have incentive not to find abuse when allegations of abuse are
made. Verified findings of abuse can damage a facility’s reputation and they can lead to
adverse legal and administrative consequences. So, it is in a facility’s self-interest to see
things through rose-tinted glasses when there are allegations of abuse. Concluding that
allegations are not very credible prior to investigating them thoroughly is certainly in a
facility’s self-interest, but it does nothing to protect vulnerable residents from the
possibility of abuse.

CMS’s allegation of failure to report possible misappropriation of resident property stems
from an incident involving Resident #28. The facts are uncontroverted. On December
27, 2013, members of the resident’s family reported that his rings were missing.
However, staff delayed reporting those allegations to Petitioner’s administrator until
December 30, 2013, three days later. CMS Ex. 21 at 17. That is a clear violation of
regulatory requirements that allegations of abuse and misappropriation of resident
property be immediately reported and investigated.

As concerns Petitioner’s failure to implement its anti-abuse policy, the evidence also is
clear. Petitioner’s anti-abuse policy tracks closely the operative language of the
governing regulations. CMS Ex. 22. It says, for example, that its administrator’s duty is
to report “immediately” to appropriate State authorities all allegations of abuse and
misappropriation of property. Jd. at 1. There is nothing in this policy that gives
Petitioner’s management discretion to either delay reporting or to make judgments about
which allegations are credible (and thus meriting reporting) and which are not (thereby
not meriting reporting). Petitioner plainly violated its own policy — and, consequently,
failed to implement it — by not reporting immediately the allegations that were made
concerning Resident # 6. The failure by Petitioner’s supervisor to report immediately to
Petitioner’s management the allegations made concerning Residents # 28 and 34 also
violated Petitioner’s internal anti-abuse policy.

Petitioner violated its policy in other ways. The failure to conduct a thorough
investigation into the allegations concerning Resident # 6 violated the policy’s injunction
that concerns expressed by a resident’s family be documented. CMS Ex. 22 at 7.
Moreover, the abuse directed at Resident # 34 by members of Petitioner’s staff plainly
violated Petitioner’s policy’s prohibition against abuse.

Petitioner has not controverted directly any of the evidence that I have discussed. It has
offered no affirmative proof that it in fact complied with regulatory requirements.
Rather, it devotes much energy to criticizing the quality of the Illinois Department of
Public Health surveyors’ investigation into the allegations of Petitioner’s noncompliance.
I find that Petitioner’s arguments establish no defense to the noncompliance findings that
I make in this decision. The quality of the survey conducted of Petitioner’s facility does
not provide a meaningful defense for two reasons. First, and as a matter of law,
inadequate performance of a survey does not excuse a skilled nursing facility from its
duty to comply with regulatory requirements. 42 C.F.R. § 488.318(b)(1), (2). Second,
and more importantly, Petitioner has not shown how any alleged defects in the conduct of
the survey of its facility undercut or impeach the evidence of noncompliance offered by
CMS.

For example, Petitioner asserts that the survey findings are defective because: “the
surveyors failed to interview the staff they claim abused residents even though the facility
investigation gave the surveyors the identity of the alleged perpetrators.” Petitioner’s
final brief at 3. That may be so, but that fact, standing alone, provides no benefit to
Petitioner. Petitioner has not alleged that any of these staff members possess information
that would change the outcome of this case if disclosed. Nor has Petitioner shown that
the reports of what these staff members said and did are inaccurate.

Petitioner’s assertion of allegedly inadequate investigation into its deficiencies is plainly
an attempt to escape its regulatory responsibilities. It is not CMS’s or the Illinois
Department of Public Health’s responsibility to prove beyond peradventure that
Petitioner was noncompliant. CMS’s burden in this case is to come forward with
sufficient evidence to prove, prima facie, that Petitioner was noncompliant. To the extent
that surveyors find prima facie evidence of failure by Petitioner to discharge its
responsibilities — as was plainly found in this case — it is Petitioner’s obligation to defend
against such evidence. Here, the surveyors found enough evidence to prove that
Petitioner violated regulatory requirements. Neither the surveyors nor CMS had any
obligation to probe further or to adduce additional evidence beyond what was necessary
to prove a prima facie case of noncompliance.

Petitioner contends that the evidence relating to the abuse of Resident # 34 is equivocal
and insufficient to establish that abuse actually occurred. It asserts that the two nursing
assistants who were involved in the resident’s care tell different versions of what
happened on the evening of May 12, 2014, that these versions are contradictory, and that
CMS has simply picked one side of the story without justification. Petitioner’s final brief
at 7.
But, there is corroboration for allegations that Resident # 34 was abused and that
corroboration is, in my judgment, sufficient to make more credible the assertions that: a
nursing assistant perpetrated verbal abuse by cursing and shouting in the resident’s
presence; and, the same nursing assistant handled the resident so roughly as to endanger
him. That corroboration comes in the form of a statement by the resident’s roommate
that she heard loud talking and yelling when the resident was being showered. CMS Ex.
20 at 4. It also is contained in the statement of the nursing assistant’s supervisor, who
witnessed the assistant cursing and shouting on the evening of May 12, 2014. CMS Ex.
24 at 8.

It is true that there is no third-party witness to the rough treatment of Resident # 34 nor
did the roommate hear actual cursing when she overheard yelling coming from the
shower, but nonetheless, the corroboration that I have cited is sufficient evidence for me
to infer that the remaining allegations are true. Thus, the evidence concerning the abuse
of Resident # 34 is not equivocal.

As I have stated, there is ample basis to conclude that Petitioner’s non-compliance was so
egregious as to place residents of Petitioner’s facility in a state of immediate jeopardy. It
is apparent that Petitioner’s management did not comprehend the seriousness of the
allegations of abuse and so; its response to them was lethargic and half-hearted. That had
the consequence of leaving residents unprotected against additional instances of abuse, an
extremely dangerous situation for the frail and vulnerable individuals who resided at
Petitioner’s facility.

I find the amount of the penalties — $6050 per day for the period of immediate jeopardy
and $200 per day for subsequent days of noncompliance — to be entirely reasonable.
Daily civil money penalties for immediate jeopardy compliance fall within a range of
between $3050 and $10,000 depending on factors that include the seriousness of a
facility’s noncompliance. 42 C.F.R. §§ 488.438(a)(1)(i); 488.438(f). The penalties
determined by CMS are slightly less than one-half the maximum permissible amount and
are modest given the seriousness of Petitioner’s noncompliance. The $200 daily
penalties for non-immediate jeopardy level deficiencies are at the low end of the
permissible range for such penalties of from $50 to $3000 per day. 42 C.F.R.

§ 488.438(a)(1)(ii). I note that Petitioner did not challenge multiple findings of non-
immediate jeopardy level noncompliance and these findings are more than adequate to
justify penalties of $200 per day.

Furthermore, Petitioner did not challenge CMS’s findings as to the duration of its
noncompliance. It did not contend that, if it was deficient at an immediate jeopardy level,
it abated that noncompliance at an earlier date than that which was determined by CMS.
Nor did it contend that it abated the remaining non-immediate jeopardy level deficiencies
at a date that was earlier than CMS’s determination of the date when Petitioner attained
substantial compliance with all participation requirements.

/s/
Steven T. Kessel
Administrative Law Judge