Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)
Life Care at Hilton Head, ) Date: February 27, 2009

(CCN: 42-5147), )
)
Petitioner, )
)

-Vv.- ) Docket No. C-08-168

) Decision No. CR1908
Centers for Medicare & Medicaid )
Services. )
)

DECISION

Petitioner, Life Care at Hilton Head (Petitioner or facility), is a long term care facility
located on Hilton Head Island, South Carolina, that is certified to participate in the
Medicare program. The Centers for Medicare & Medicaid Services (CMS) determined
that the facility was not in substantial compliance with Medicare requirements and that its
deficiencies posed immediate jeopardy to resident health and safety. Petitioner appealed.’

I conclude that, from September 21 through October 24, 2007, the facility was not in
substantial compliance with program requirements and that, from September 21 through
October 11, 2007, its deficiencies posed immediate jeopardy to resident health and safety.
I find reasonable the civil money penalty (CMP) imposed — $4550 per day for 21 days of
immediate jeopardy, plus $100 per day for 13 days of substantial noncompliance that was
not immediate jeopardy.

I. Background

The Social Security Act (Act) sets forth requirements for nursing facility participation in
the Medicare program, and authorizes the Secretary of Health and Human Services to

' As discussed below, because Petitioner did not appeal deficiencies cited under
42 C.F.R. § 483.35(d)(3) (dietary services — food) or 42 C.F.R. § 483.75(1)(1) (clinical
records), the facility was not in substantial compliance with Medicare requirements.
P. Ex. 1, at 16-24; see Hearing Request. I address here the deficiencies that allegedly
posed immediate jeopardy.
2

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

The Secretary contracts with state survey agencies to conduct periodic surveys to
determine whether skilled nursing facilities are in substantial compliance with program
participation requirements. Act, section 1864(a); 42 C.F.R. § 488.20. The regulations
require that each facility be surveyed once every twelve months, and more often, if
necessary, to ensure that identified deficiencies are corrected. Act, section 1819(g)(2)(A);
42 C.F.R. §§ 488.20(a), 488.308.

Here, following an annual survey, completed October 11, 2007, CMS determined that the
facility was not in substantial compliance with Medicare participation requirements,
specifically, 42 C.F.R. §§ 483.20(k) (Tag F282 — comprehensive care plans); 42 C.F.R.
§ 483.25 (Tag F309 — quality of care); 42 C.F.R. § 483.35(d)(3) (Tag F365 — dietary
services, food); 42 C.F.R. § 483.75(i) (Tag F501 — medical director); and 42 C.F.R.

§ 483.75(1)(1) (Tag F514 - clinical records). CMS also determined that the facility’s
substantial noncompliance began on September 21, 2007, and that its deficiencies
resulted in substandard quality of care and posed immediate jeopardy to resident health
and safety. CMS Ex. 1; P. Exs. 1,2. CMS subsequently determined that the immediate
jeopardy abated effective October 12, 2007, and that the facility returned to substantial
compliance on October 25, 2007. P. Exs. 4, 5.

CMS has imposed against the facility a CMP of $4550 per day for 21 days of immediate
jeopardy ($95,550), and $100 per day for 13 days of substantial noncompliance that was
not immediate jeopardy ($1300). ($96,850 total). CMS has also imposed a Denial of
Payment for New Admissions (DPNA) from October 21 through October 24, 2007.

P. Exs. 3, 4, 5.

held a hearing by telephone on August 5, 2008. Joseph Bianculli appeared on behalf of
Petitioner and Heather Horton appeared on behalf of CMS. I have admitted into evidence
CMS Exhibits (Exs.) 1-22 and P. Exs. 1-73 (including P. Ex. 21A). Tr. 3. The parties
ave filed opening briefs (Br.), closing briefs (Cl. Br.) and reply briefs (Reply).

II. Issues

n its request for hearing, Petitioner explicitly and emphatically limited its appeal to the
findings underlying CMS’s determinations of immediate jeopardy and substandard
quality of care. (“This Request for Hearing does not address the ‘non-jeopardy’
deficiencies cited following the October 11, 2007 survey, nor the $100 per day CMP
associated with those deficiencies.”) Petitioner repeated this assertion in its pre-hearing
3

and post-hearing briefs. P. Br. at 3; P. Cl. Br. at 5. I therefore conclude that, from
September 21 through October 24, 2007, the facility was not in substantial compliance
with 42 C.F.R. § 483.75(1)(1) (clinical records) and 42 C.F.R. § 483.35(d)(3) (dietary
services — food), and affirm as reasonable the $100 per day penalty from October 12
through 24, 2007 ($1300) and the DPNA in effect from October 21 through 24, 2007.7

I consider here the following issues:

. from September 21 through October 24, 2007, was the facility in substantial
compliance with 42 C.F.R. §§ 483.20(k), 483.25, and 483.75(i);

. if the facility was not in substantial compliance from September 21 through
October 11, 2007, did its deficiencies then pose immediate jeopardy to resident
health and safety;

and

. if the facility was not in substantial compliance, was the penalty imposed ($4550
per day for 21 days of immediate jeopardy) reasonable?

III. Discussion

A, The facility was not in substantial compliance with 42 C.F.R.
§§ 483.20(k) and 483.25 because the facility did not assure that its
residents’ dialysis shunt sites were monitored daily and facility
staff failed to follow resident care plans with respect to monitoring
shunt sites.’

The facility must develop a comprehensive care plan for each resident. The plan must
include measurable objectives and time-tables to meet the resident’s identified needs, and
must describe the services to be furnished. Those services must meet professional
standards of quality and be provided by qualified persons in accordance with the care
plan. 42 C.F.R. § 483.20(k). The facility must then provide to each resident the care and
services necessary to allow him/her to attain or maintain the highest practicable physical,
mental, and psychosocial well-being, in accordance with the resident’s comprehensive
assessment and care plan. Act, section 1819(b); 42 C.F.R. § 483.25. The facility’s
medical director (who must be a physician) is ultimately responsible for implementing
resident care policies and coordinating medical care in the facility. 42 C.F.R. § 483.75(i).

> A facility may not appeal CMS’s choice of remedy. 42 C.F.R. § 488.408(g).

* My findings of fact and conclusions of law are set forth, in italics and bold, in
the discussion captions.
4

n this case, six facility residents required regular kidney dialysis treatment, which was
provided by an outside dialysis center. Each resident had in place a dialysis shunt, also
nown as a fistula or graft. A dialysis shunt is a surgically-created connection between an
artery and a vein that provides a location for dialysis needle access. P. Ex. 69, at 2 (Perez
Decl.); P. Ex. 72, at 3 (Parris Decl.). According to Marjorie Grant-Lewis, R.N., the
facility’s director of nursing (DON), facility policies require “routine” monitoring of each
shunt site for complications, “such as tenderness, redness, clotting, and the like . . . that
could be indications of infection, a clogged shunt, etc.” P. Ex. 70, at 3 (Grant-Lewis
Decl.).

n addition, each resident’s care plan addressed his/her need for dialysis and included
among its goals: dialysis treatment “without complications.” CMS Ex. 5, at 1; CMS Ex.
7, at 1; CMS Ex. 9, at 1; CMS Ex. 11, at 1; CMS Ex. 13, at 1; CMS Ex. 15, at 1. To
achieve this goal, each care plan required that staff monitor the resident’s shunt site:

. Resident 13: “Assess shunt site for bruit and thrill,” and “Observe for bleeding at
site of shunt.” CMS Ex. 5, at 1; P. Ex. 12.

. Resident 20: “Assess the dialysis shunt site daily,” and “Assess area for any
drainage or bleeding.” CMS Ex. 7, at 1.5

. Resident 21: “Observe for bleeding at site of shunt.” CMS Ex. 9, at 1; P. Ex. 31,
at 3.
. Resident 22: “Assess the dialysis shunt site daily,” and “Assess area for any

drainage or bleeding.” CMS Ex. 11, at 1; P. Ex. 41, at 1.

. Resident 23: “Observe for bleeding at site of shunt.” CMS Ex. 13, at 1; P. Ex. 59,
at 4.
. Resident 24: “Observe for bleeding at site of shunt.” CMS Ex. 15, at 1.

* A “bruit” is a whooshing sound heard through a stethoscope. “Thrill” is
pulsation felt over the access site by feeling with fingers. CMS Ex. 16, at 2 (Phillips
Decl. § 18).

* Petitioner has submitted a care plan for Resident 20 that is dated April 9, 2008,
which calls for even closer monitoring (assess shunt every eight hours, verify peripheral
pulses distal to shunt site every eight hours, verify presence of bruit or thrill at shunt site
every eight hours). P. Ex. 21A, at 6. Because it was generated months after the period of
substantial noncompliance, the document is not relevant to what was going on in the
facility at the time of the survey (although the revised plan arguably undermines
Petitioner’s suggestion that its residents required little to no site monitoring beyond that
provided by the dialysis center).
5

The facility thus recognized the importance of monitoring the shunt sites for bleeding,
infection or other complications.

Standard of care. The parties seem to agree that the standard of care requires staff to
monitor a shunt site for complications once a day. The facility’s medical director,

Dr. Gaston Perez, M.D., opines that “the standard of care is for a nursing facility’s staff to
monitor a shunt site for complications once a day... .” P. Ex. 69, at 3 (Perez Decl.).
DON Grant-Lewis agrees: “I agree with Dr. Perez and Nurse [Parris] that daily
monitoring is completely appropriate and adequate for residents who go out to dialysis at
an outside center three times per week.” P. Ex. 70, at 3 (Grant-Lewis Decl.). According
to the facility’s administrator, James Hardy, “[D]aily monitoring of the shunt site is
adequate and appropriate.” P. Ex. 71, at 2 (Hardy Decl.). The outside dialysis center’s
clinical manager, Lelia Wirt, R.N., says the same: “[D]aily monitoring of the shunt site
for clots, redness, infection, and the like, is . .. the standard of care in the dialysis
industry.” P. Ex. 73, at 1-2 (Wirt Decl.). And Derek Parris, the R.N. Regional Director
of Clinical Services for Petitioner’s parent company, appears to agree: “[T]he shunt site
shall be checked on a daily basis with physician notification for any known or suspected
problem.” P. Ex. 72, at 4 (Parris Decl.).° State Surveyor, Karen Phillips, initially testified
that compliant facilities should monitor shunt sites “every eight hours, or[,] at a minimum,
once a day.” CMS Ex. 16, at 2 (Phillips Decl. § 20). Under cross-examination, she
agreed that “it’s okay to do it once a day.” Tr. 15, 24;’ see also CMS Ex. 21, at 4 (“Daily
Checks of Vascular Access”).

° But see P. Ex. 72, at 3 (Parris Decl.) (“Our pertinent Policy and Procedure...
provides that the shunt site should be covered by a dressing, and that our nursing staff
should not even change the dressing unless necessary.”) And Petitioner claims that
“FMC Hilton Head Dialysis instructs Petitioner’s staff that they ordinarily should not
even touch or change dressings at the shunt site... .” P. Cl. Br. at 9. In fact, I found no
indication in the record of such instructions from the dialysis center. Clinical Manager
Wirt’s declaration does not say it. P. Ex. 73. The opinion is attributable solely to
Regional Director Parris. P. Ex. 72, at 1,3. Moreover, Petitioner’s written policies and
procedures instruct staff to change dressings when certain complications arise, which
seems inconsistent with Petitioner’s suggestion that only dialysis center staff address such
problems. CMS Ex. 17, at 2.

7 Petitioner claims that Surveyor Phillips “considered ‘daily’ monitoring of the
shunt site to be inadequate, either in general, or in the cases of the residents she cited.”
P. Cl. Br. at 15. This is simply incorrect. Although she expressed a preference for
monitoring every shift, she agreed that daily monitoring is acceptable. CMS Ex. 16, at 2
(Phillips Decl. § 20); Tr. 15, 24.
6

Even though the facility recognized the importance of observing the shunt sites daily for
leeding, infection or other complications, Petitioner has come forward with no reliable
evidence to establish that it followed the care plans and met the standard of care by
monitoring the shunt site daily.*

Resident 13 (R13): (“Assess shunt site for bruit and thrill”; “Observe for bleeding at site
of shunt.”) Nurses notes reflect that staff assessed R13's shunt site for bruit and thrill on
the day of her admission, August 20, 2007. CMS Ex. 5, at 3; P. Ex. 16, at 1. Thereafter,
owever, her records include no reference to any other observation or assessment of her
shunt site until the time of the survey, when, on October 10, 2007, staff again assessed her
shunt site for bruit and thrill. CMS Ex. 5, at 21.

Resident 20 (R20): (“Assess the dialysis shunt site daily”; “Assess area for any drainage
or bleeding.”) R20 was admitted to the facility on April 10, 2007. An April 20, 2007
nursing note says “no side effects from dialysis noted” but does not mention the shunt
site. CMS Ex. 7, at 6; P. Ex. 25, at 5. In fact, R20's medical records include no
references to any observations or assessments of her shunt site from the time of her
admission until July 2, 2007. On that date, a nurse reports “[no] bleeding noted after
returning from dialysis.” CMS Ex. 7, at 19; P. Ex. 25, at 18. For the following two
weeks, nurses sporadically report monitoring the shunt site. On July 10, 2007, the nurse
writes “thrill felt/bruit heard [at] graft site.” CMS Ex. 7, at 22; P. Ex. 25, at21. On July
11, 2007, the nurse writes “dialysis site ok [no] bleeding.” CMS Ex. 7, at 22; P. Ex. 25,
at 21. On July 14, the nurse reports “graft site in tact.” CMS Ex. 7, at 23; P. Ex. 25,

at 22.

* In its reply brief, Petitioner claims that CMS has impermissibly raised, as a new
issue, the adequacy of the care actually provided. P. Reply at 3-6. But, from the issuance
of the statement of deficiencies through the submission of its reply brief, CMS has
consistently maintained that staff were not monitoring resident shunt sites as required.
See, e.g., P. Ex. 1, at 1, 3 (“[T]he facility failed to follow the plan of care for 6 of 6
dialysis residents related to checking dialysis shunts/access sites.”); CMS Br. at 8
(“[N]one of the six dialysis residents surveyed had their vascular access sites assessed
every eight hours, or even daily.”); CMS Cl. Br. at 4 (“The nursing home’s failures with
regard to providing six of six dialysis residents with necessary care and services, in
violation of 42 C.F.R. § 483.25, constituted substandard quality of care and posed
immediate jeopardy to all these residents.”) Moreover, Petitioner has consistently
recognized that the issue is adequacy of care. In its hearing request, for example, it
writes: “The most serious allegations, which support the ‘immediate jeopardy’ findings,
all essentially allege that the Center’s staff and Medical Director failed to implement
certain care plan interventions to monitor the dialysis access sites of several residents.”
Hearing request at 3; see also P. Ex. 1, at 2 (as part of its plan of correction, inservice
instructing staff “what to assess regarding the resident’s shunt”).
7

An entry dated July 18, 2007, indicates that the dialysis center called to report a possible
blockage in R20's shunt. CMS Ex. 7, at 26; P. Ex. 25, at 24. The information apparently
had no effect on the staffs performance, inasmuch as they did not start checking the
shunt site daily as required. The next reference to checking R20's shunt site is three days
later, and then nothing for three months. On July 21, 2007, a nurses note says “[Dressing]
to [left] thigh intact[;] no signs of bleeding noted this shift.” CMS Ex. 7, at 27; P. Ex. 25,
at 25.

On September 12, 2007, the notes indicate that the resident returned from dialysis “with
blood all over clothes.” CMS Ex. 7, at 30; P. Ex. 25, at 28. Staff apparently changed her
clothes, but nothing suggests that they then checked her shunt site. On September 21,
2007, R20 again returned from dialysis with blood “all over clothes and wheel chair.”
CMS Ex. 7, at 34; P. Ex. 25, at 32. The nurse reports that she cleaned her up, but still
does not mention checking the shunt site. In fact, the record contains no suggestion that
anyone monitored R20's shunt site again until October 3, 2007, when the nurse writes that
R20 “[rJeturned from dialysis, checked dialysis site, noted some previous bleeding, no
active bleeding noted.” CMS Ex. 7, at 38; P. Ex. 25, at 36. On October 10 (the time of
the survey) staff next document checking the site (“[positive for] bruit [and] thrill”).
CMS Ex. 7, at 39; P. Ex. 25, at 37.

Resident 21 (R21): (“Observe for bleeding at site of shunt.”) R21 was admitted to the
facility on May 17, 2007. No evidence suggests that anyone checked her shunt site until
two days later. A nurses note dated May 19 describes the graft as “intact,” and says
“thrill and bruit heard.” P. Ex. 35, at3. On June 12, 2007, a nurse writes “shunt D & I.”
P. Ex. 35, at 14. Otherwise R21's records include no additional indication that staff
observed the site for bleeding, as called for in her care plan.

Resident 22 (R22): (“Assess the dialysis shunt site daily”; “Assess area for any drainage
or bleeding.”) R22 resided in the facility from April 4, 2007 until May 21, 2007. No
entry even mentions the shunt site until May 11, 2007, when a nurses note describes the
site as “clean and dry” and notes “bruit/thrill present.” P. Ex. 45, at 18. The following
day, the nurse reported “shunt site clean and dry thrill/bruit present.” P. Ex. 45, at 19.
On May 13, a nurse describes the shunt site as “clean” and “bruit/thrill present.” P. Ex.
45, at 19. Several days pass without mention of the site. Then, on May 17, the nurse
writes “thrill felt[;] bruit heard [without] difficulty.” P. Ex. 45, at 21. Staff next note
“shunt in place[,] thrill felt[,] bruit heard” on May 20. P. Ex. 45, at 22.

Resident 23 (R23): (“Observe for bleeding at site of shunt.”) R23 was admitted to the
facility on March 20, 2007, but his treatment records indicate that staff first checked his
shunt on March 27, noting “left arm shunt pos[itive] for bruit [and] pulsating[;] [dressing]
dry [and] intact. P. Ex. 54, at2. The next day, staff noted “shunt thrill felt, bruit heard.”
P. Ex. 54, at 3. His records contain no other mention of monitoring. R23 stopped dialysis
treatment about May 7, 2007, and entered hospice care. P. Ex. 54, at 13.

8

Resident 24 (R24): (“Observe for bleeding at site of shunt.”) R24 was a short-term
placement, admitted to the facility on April 13, 2007. P. Ex. 57; P. Ex. 64, at 1.
Notwithstanding his care plan, his treatment record contains not a single instance of staff
observing his shunt site.

Thus, review of the facility’s own treatment records establishes that, at most, staff only
sporadically monitored the resident shunt sites, neither meeting the standard of care nor
following these residents’ individual care plans. See Universal Healthcare/King, DAB
No. 2215, at 23 (2008) (ALJ reasonably relied on facility’s failure to document.). Nor did
any treating nurse or other employee testify that, in fact, (s)he checked shunt sites daily,
but then simply failed to document having done so.

Petitioner, however, argues that the absence of documentation does not mean that its staff
failed to monitor the shunt sites as required, but instead means that their doing so was too
inconsequential to merit documentation. According to Petitioner, facility policy was to
“document by exception,” which means that nurses were required to document care
provided for acute conditions, but not for treatment of chronic conditions, like end stage
renal disease. For these less serious chronic conditions, staff need only report abnormal
findings.”

The Departmental Appeals Board has appropriately rejected such reasoning. In The
Laurels at Forest Glen, DAB No. 2182 (2008), the treatment records of a diabetic
resident lacked documentation of blood glucose test results. As here, the facility argued
that, because the resident’s diabetes was a chronic condition, staff appropriately focused
its attention on treating the significant injuries that had necessitated the resident’s
admission. The Board found it “not reasonable” to focus on recent injuries “to the
exclusion of addressing [the resident’s] diabetes, his . . . hypoglycemia, and the
consequent need to monitor [his] blood sugar levels ....” A facility is responsible for
ensuring that each resident receives al] necessary care and services. Jd. at 17.

Further, the facility’s own documentation policies require that “nursing care that is based
on the interdisciplinary care plan” be documented in the clinical record. This
documentation requirement specifically includes reporting the care provided and the
resident’s “current status.” P. Ex. 6, at 6. So, inasmuch as each resident’s care plan

° Although some people live many years with end stage renal disease, it is
nevertheless a serious condition, and the dialysis-related problems for at least four of the
six residents in this case were especially significant. Among R20's primary diagnoses
were end-stage renal disease and diabetes, and she had demonstrated susceptibility to
bleeding at her shunt site. P. Ex. 20; P. Ex. 70, at 3 (Grant-Lewis Decl.). In addition to
his end stage renal disease, R22 had demonstrated that he was susceptible to serious
infections. P. Ex. 44, at 1. R23 had suffered kidney failure secondary to acute sepsis.
P. Ex. 70, at 6 (Grant-Lewis Decl.). R24 was admitted to the facility with “acute renal
failure.” P. Ex. 70, at 6 (Grant-Lewis Decl.).
9

required shunt site monitoring, the facility policy mandated that staff document whenever
they provided it. A second document, titled “Medicare Documentation Guidelines,”
(emphasis added) specifically instructs staff to address “thrill and bruit” in “daily
nursing.” CMS Ex. 7, at 53. CMS may reasonably rely on the provider’s policies as
“evidence of the standard of care the facility expect[s] its staff to provide” as well as
evidence of the professional standards of care. The Laurels at Forest Glen, DAB No.
2182, at 18 (quoting Oxford Manor, DAB No. 2167, at 5-6 (2008)).'°

Finally, no member of the facility’s staff testified that the facility policy was to
“document by exception” their monitoring of shunt sites. Presumably, the DON would be
most familiar with the facility’s practices with respect to documenting nursing care, and
DON Grant-Lewis said nothing about documentation by exception. P. Ex. 70 (Grant-
Lewis Decl.). Neither Medical Director Perez (P. Ex. 69) nor Administrator Hardy

(P. Ex. 71) made any claims regarding documentation by exception. Only Regional
Director Parris, who did not actually work in the facility, defends the practice. But even
he does not say that “document by exception” was the facility policy. P. Ex. 72, at 7-9."'

Thus, the residents’ care plans and the standard of care require that facility staff monitor
the resident shunt sites daily, but they did not do so. The facility was therefore not
providing services in accordance with its care plans or professional standards of quality,
in violation of 42 C.F.R. § 483.20(k). It was not providing to those residents who had
shunt sites the care and services needed to allow them to attain or maintain the highest
practicable physical well-being, in accordance with their care plans. This failure puts the
facility out of substantial compliance with 42 C.F.R. § 483.25.

Because the facility’s medical director is ultimately responsible for implementing resident
care policies, staff failure to follow the care plans arguably implicates the regulation
governing medical directors, 42 C.F.R. § 483.75. However, inasmuch as the deficiencies
cited directly violate sections 483.20(k) and 483.25, I need not consider the somewhat
closer question as to whether they also violated section 483.75.

'° Petitioner also points out that its staff regularly recorded their routine
observation and care of chronic conditions, documenting normal findings for blood sugar
levels (CMS Ex. 5, at 4- 21; P. Ex. 16, at 2-19; CMS Ex. 7, at 2-39; P. Ex. 35, at 2-3, 4, 5;
P. Ex. 45; P. Ex. 64); vital signs (CMS Ex. 7, at 3, 6); and wound care (CMS Ex. 5, at 4-
9, 11-13, 15-19; P. Ex. 35, at 1-5; P. Ex. 45). While this fact does not address the
deficiency actually cited — that they were not monitoring the shunt sites — it seems to
undermine Petitioner’s claim that facility policy was to “document by exception” its
monitoring of chronic conditions.

'' Tf, in fact, Regional Director Parris meant to imply that “documentation by
exception” was the facility policy for monitoring shunt sites, I would reject that testimony
as inconsistent with the facility’s written policy, P. Ex. 6, at 6.
10

Finally, although, as Petitioner points out, CMS has not alleged that any resident was
harmed by the facility’s deficiencies, I need not find actual harm in order to sustain the
finding of substantial noncompliance. Whenever a deficiency poses the potential for
more than minimal harm, the facility is not in substantial compliance, and CMS has the
authority to impose a remedy. Act, section 1819(h); 42 C.F.R. §§ 488.301, 488.402,
488.406. Failing to monitor a shunt site for symptoms of bleeding, clotting, or infection,
as required by the resident care plan and standard of care, poses the potential for more
than minimal harm. See discussion below.

B. CMS ’s determination that the facility’s deficiencies posed
immediate jeopardy to resident health and safety is not clearly
erroneous.

I next consider whether CMS’s immediate jeopardy finding was “clearly erroneous.”

Immediate jeopardy exists if the 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).

As a general principle, the facility that disregards patient care plans plays a dangerous
game. The plan is in place because health care professionals have identified the
resident’s needs and come up with ways to address them. Here, the plans recognize the
vulnerabilities of those in dialysis, particularly with regard to potential complications at
the shunt sites. And those concerns are well taken. See, e.g., CMS Exs. 19, 20. Shunt
sites are susceptible to bleeding, clotting, infection, and other complications.

Petitioner, however, minimizes the potential danger. Dr. Perez acknowledges that a shunt
may clog, and that bleeding is “not unusual.” He also acknowledges that “serious and
even fatal hemorrhaging from dialysis has been reported,” but characterizes such results
as “very rare,” particularly if the dialysis center is providing appropriate treatment and
observations. He also says that “[i]t would be extremely unusual . . . for such a clot to
cause any significant problem within a day or two.” P. Ex. 69, at 2-4 (Perez Decl.).

Thus, in Petitioner’s view, the facility’s failure to monitor shunt sites poses little risk to
its dialyzed residents so long as the staff at the dialysis center are doing their jobs
properly.

First, while I agree that dialysis center staff are responsible for monitoring their patients,
that does not eliminate the facility’s independent responsibility under the regulations to
follow resident care plans and to provide services necessary to insure that each resident
achieve or maintain the highest practicable well-being. See Transitional Health Services
of Fremont, DAB CR1833, at 10 (2008). Moreover, even assuming the staff at the
dialysis center were monitoring appropriately, they saw the residents just three times per
11

week (Monday, Wednesday and Friday). Assuming a resident never missed a dialysis
treatment, his/her shunt site would be monitored only every two to three days unless the
facility was also checking it. Neither Dr. Perez nor anyone else has suggested that
clotting/bleeding/infection would present no significant problems if undetected for up to
three days.

Second, immediate jeopardy does not require an imminent medical emergency. Rather,
Petitioner must show that the potential harm or injury “did not meet any reasonable
definition of ‘serious.’” Daughters of Miriam Center, DAB No. 2067, at 9 (2007);
Hallmark House Nursing Center, DAB No. 2226, at 6 (2009). And these residents had
demonstrated that they were particularly vulnerable to complications. When the dialysis
center contacted facility staff about possible blockage to R20's shunt, it should have
alerted staff to the need for increased vigilance in monitoring, but it had no such effect;
staff still did not adhere to the care plan nor meet the standard of care. The next reference
to checking R20's shunt site is two days later, and then nothing for three months. R20's
repeated incidents of bleeding elicited a similar lack of response. Both R22 and R23 had
demonstrated a disturbing susceptibility to serious infection. Yet staff were not ensuring
that their shunt sites were free of symptoms of infection.

I consider this disregard likely to cause serious injury. I therefore do not find clearly
erroneous CMS’s immediate jeopardy determination.'*

Cc. The amount of the CMP is reasonable.

I next consider whether the CMP was reasonable by applying the factors listed in 42
C.F.R. § 488.438(f): 1) the facility’s history of noncompliance; 2) the facility’s financial
condition; 3) factors specified in 42 C.F.R. § 488.404; and 4) the facility’s degree of
culpability, which includes neglect, indifference, or disregard for resident care, comfort or
safety. The absence of culpability is not a mitigating factor. The factors in 42 C.F.R.

§ 488.404 include: 1) the scope and severity of the deficiency; 2) the relationship of the
deficiency to other deficiencies resulting in noncompliance; and 3) the facility’s prior
history of noncompliance in general and specifically with reference to the cited
deficiencies.

It is well-settled that, in reaching a decision on the reasonableness of the CMP, I consider
whether the evidence presented on the record concerning the relevant regulatory factors

supports a finding that the amount of the CMP is at a level reasonably related to an effort
to produce corrective action by a provider with the kind of deficiencies found and in light

' Petitioner also accuses CMS of arbitrarily selecting October 11 as the date the
immediate jeopardy ended. P. Reply at 21. In fact, CMS selected the date that the facility
alleged it removed the immediate jeopardy by providing its nursing staff with inservice
training on requirements for monitoring shunt sites, specifically what to assess, potential
complications, and documentation requirements. P. Ex. 1, at 3.
12

of the other factors involved (financial condition, facility history, culpability). Iam
neither bound to defer to CMS’s factual assertions, nor free to make a wholly
independent choice of remedies without regard for CMS’s discretion. Barn Hill Care
Center, DAB No. 1848, at 21 (2002); Community Nursing Home, DAB No. 1807, at 22 et
seq. (2002); Emerald Oaks, DAB No. 1800, at 9 (2001); CarePlex of Silver Spring, DAB
No. 1683, at 8.

CMS has imposed a penalty of $4550 per day for the period of immediate jeopardy,
which is at the low end of the penalty range ($3050-$10,000). 42 C.F.R. § 488.438(a)(1).

The parties have provided me little assistance on this issue. I have no information as to
the facility history. Petitioner has not argued that its financial condition affects its ability
to pay the penalty. With respect to the remaining factors, I note that the scope of the
facility’s noncompliance, by itself, justifies imposing a penalty above the minimum.
Moreover, the facility is culpable for almost totally disregarding its obligations to follow
care plans and to monitor daily the shunt sites of its residents undergoing kidney dialysis.
I find that these factors justify the penalty imposed.

IV. Conclusion

For all of the reasons discussed above, I uphold CMS’s determination that, from
September 21 through October 24, 2007, Petitioner was not in substantial compliance
with program participation requirements, and that from September 21 through October
11, 2007, its deficiencies posed immediate jeopardy to resident health and safety. I find
that the CMP imposed — $4550 per day for 21 days of immediate jeopardy — was
reasonable.

/s/
Carolyn Cozad Hughes
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)

Bernhard E. Dietz, M.D, ) Date: February 25, 2009
)
Petitioner, )
)

-Vv.- ) Docket No. C-09-30
) Decision No. CR1907
Centers for Medicare & Medicaid )
Services. )
)
DECISION

find that CIGNA Government Services (“CIGNA”) and the Centers for Medicare
& Medicaid Services (CMS) incorrectly denied the application of Petitioner, Bernhard E.
Dietz, M.D., to enroll in the Medicare program.

I. Background

Petitioner is a physician who practices medicine in the State of Tennessee. On May 8,
2008 Petitioner filed an application with CIGNA to enroll in the Medicare program.’ On
June 3, 2008, CIGNA denied Petitioner’s application. In denying the application CIGNA
concluded that Petitioner was not practicing medicine within the scope of his professional
icense. CMS Ex. 7, at 1.’ Petitioner requested reconsideration of this determination.
After further review, and on reconsideration, Petitioner’s application was again denied.
Then, Petitioner requested a hearing and the case was assigned to me for a hearing and a
decision.

' The application, specifically, was to change Petitioner’s enrollment in Medicare
from a sole proprietorship to a professional limited liability company.

> I discuss the admissibility of exhibits in my first finding of fact and conclusion
of law (Finding).
2

l issued a pre-hearing order which directed the parties to file exchanges consisting of
briefs and their proposed exhibits including the written direct testimony of their proposed
witnesses. I additionally afforded CMS the opportunity to file a reply brief. The parties
complied with that order. At Paragraph 9 of the pre-hearing order | directed the parties to
advise me if either of them proposed to cross-examine any of the witnesses whose written
direct testimony was submitted. Neither CMS nor Petitioner requested to conduct cross-
examination. Consequently, I am deciding this case based on the parties’ written
submissions including the written direct testimony of the parties’ witnesses to the extent
that I receive such testimony into evidence.

II. Issue, findings of fact and conclusions of law
A. Issue

The issue in this case is whether Petitioner was ineligible for enrollment as a provider in
the Medicare program because he was not practicing medicine within the scope of his
professional license.

B. Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) to support my decision in this
case. I set forth each Finding below as a separate heading.

1. Good cause exists to admit into evidence certain of Petitioner’s
proposed exhibits.

CMS submitted eight exhibits to support its case which it designated as CMS Ex. 1 —
CMS Ex. 13. Petitioner submitted 14 exhibits which it designated as P. Ex. | — P. Ex. 14.
Petitioner has not objected to my receiving into evidence any of CMS’s proposed
exhibits, and so I receive them.

CMS has objected to my receiving into evidence “all evidence that was not made part of
the record at the time CIGNA issued its original decision on June 3, 2008.” CMS’s reply
brief at 3. CMS has not specified which of Petitioner’s exhibits fall into this category of
objectionable exhibits. However, it would appear that P. Exs. 2, 4, and 6-14 were not
supplied to CIGNA in connection with Petitioner’s application for enrollment.*

> P. Ex. 5 is a copy of the reconsideration decision in Petitioner’s case. Obviously,
it was not supplied by Petitioner to CIGNA because reconsideration came after the initial
denial. It is a procedural document, however, and would be made part of the record of
this case in any event.
3

Therefore, I am treating all of these exhibits as potentially objectionable.*

The regulations governing hearings in cases such as this one were amended effective
August 2008 to preclude admission of evidence not supplied in connection with an
application for enrollment absent a showing of good cause. 42 C.F.R. § 498.56(e). The
regulation does not define what is meant by “good cause.”

CMS objects to the admission of Petitioner’s exhibits on the ground that they were
generated after CIGNA’s initial determination and were, therefore, not made available to
CIGNA.

Petitioner’s argument for receipt into evidence of its exhibits is that it could not have
submitted any of them to CIGNA because none of them existed at the time that Petitioner
made his application. Implicit in this assertion is the argument that Petitioner would have
obtained and supplied certain exhibits to CIGNA had he known that CIGNA would object
to his enrollment application on the ground that he was not practicing within the scope of
is professional license.

find that good cause exists for me to receive P. Exs. 2, 4, and 6-8. These exhibits all
relate to the issue of whether, as of the date when Petitioner applied for enrollment, he
was practicing medicine within the scope of his professional license in Tennessee. I
agree with Petitioner that good cause exists for my receiving these exhibits even though
Petitioner did not offer them to CIGNA as part of his enrollment application. At the time
that he made his application Petitioner had no reason to assume that CIGNA would
question whether he was practicing medicine within the scope of his license and, for that
reason, had no reason to obtain or supply these exhibits with the application. It was
CIGNA’s June 3, 2008 letter that first put Petitioner on notice of the reasons for his
enrollment denial.

I do not receive into evidence P. Exs. 9-14. These exhibits all address events that
occurred after Petitioner’s enrollment application was denied. Specifically, they address
Petitioner’s change of status from a private practitioner to a hospital-based emergency
room physician. In rejecting these exhibits I do not mean to suggest that Petitioner no
longer qualified for enrollment when he changed his status but, rather, that this issue was
never addressed by CIGNA and, therefore, is not properly before me.

+ CMS states that it does not oppose the admission into evidence of P. Ex. 4, an
affidavit from Petitioner’s office manager, and P. Ex. 9 even though these exhibits were
not furnished to CIGNA. However, it also argues that they are irrelevant because they
were “generated after .. . [Petitioner’s] application was denied.” CMS’s reply brief at 4.
This is obviously inconsistent with CMS’s argument that Petitioner failed to make a
showing of good cause for admission of any of its exhibits other than P. Ex. 1 and P. Ex.
5.
4

2. A health care professional is not eligible to participate in the Medicare
program if her or she is not practicing within the scope of his or her
professional license.

The Medicare program pays for services that are provided by a professional who is:

legally authorized to practice by the State in which he or she performs...
[such services] and who is acting within the scope of his or her license.

42 C.F.R. § 410.20(b). A professional may not enroll in Medicare to provide services that
are outside of the scope of his or her professional license.

3. Petitioner provided professional services within the scope of his license
to practice medicine in Tennessee.

CMS contends that the scope of Petitioner’s license is defined by a consent order which
was issued by the Tennessee Board of Medical Examiners on July 19, 2007. CMS Ex. 3;
P. Ex. 2. That order placed limitations on the scope of Petitioner’s professional practice
as a physician. According to CMS, Petitioner was not complying with the order when he
applied for enrollment and, therefore, was not acting within the scope of his professional
license in Tennessee.

I agree with CMS that the consent order limited the scope of Petitioner’s professional
practice. However, the preponderance of the evidence supports my finding that Petitioner
practiced medicine in compliance with the terms of the order. Consequently, Petitioner
was practicing medicine within the scope of his professional license and was eligible for
enrollment.

The order directed Petitioner to:

wind down his solo practice and on and after December 31, 2007 . . . cease
the solo practice of medicine and at no time thereafter, for the duration of
is probation [five years], shall [Petitioner] practice medicine unless he has
another physician practicing with him... .

CMS Ex. 3, at 2; P. Ex. 2, at 2.

The order does not define the phrase “has another physician practicing with him” but the
meaning is clear when the limitations on Petitioner’s practice are read in context. The
order intends to impose restrictions on Petitioner’s prescribing controlled substances. The
unopposed findings of the Tennessee Board of Medical Examiners were that, during a
period which ran from 2002 through 2004, Petitioner wrote and delivered prescriptions
5

for controlled substances to numerous patients in amounts not medically justified and for
which little, if any, substantiation existed in the patients’ records for those prescriptions.
CMS Ex. 3, at 1; P. Ex. 2, at 1.

Viewed in the context of the order the restriction against engaging in a solo practice of
medicine is a measure intended to insure that Petitioner does not issue prescriptions for
controlled substances without at least the advice and counsel of another physician.’ What
is plainly envisioned by the order was something more than a simple business relationship
or a space-sharing arrangement with another physician. The order envisions an active
relationship in which Petitioner is mentored by another physician and where, for a time,
that other physician would assert direct control over Petitioner’s prescribing of controlled
substances.

That intent is also made evident by the other terms of the order. Petitioner was directed to
surrender his Drug Enforcement Agency certificate for prescribing Schedule II and HI
controlled substances for a period of at least six months, during which any physician with
whom Petitioner is practicing would be authorized to write such prescriptions for
Petitioner’s patients where he or she felt that they were authorized. CMS Ex. 3, at 4; P.
Ex. 2, at 4. Petitioner was directed to complete a training program in the prescription of
drugs. CMS Ex. 3, at 3; P. Ex. 2, at 3. He was also directed to enter into and fully
comply with a contract with the Tennessee Medical Foundation to monitor both his
prescribing restrictions and the restrictions placed on his practice. CMS Ex. 3, at 3; P.
Ex. 2, at 3.

CMS contends that there is no evidence establishing that Petitioner complied with the
terms of the order. Thus, according to CMS, Petitioner did not establish that he was
practicing medicine within the scope of his professional license as is limited by the order,
and may even have been practicing medicine in violation of the order’s restrictions.

However, and CMS’s arguments notwithstanding, the weight of the evidence supports a
different conclusion. Petitioner complied with the terms of the consent order. There is,
therefore, simply no basis to deny Petitioner’s enrollment as a Medicare provider on the
theory that he is not practicing medicine within the scope of his professional license in
Tennessee.

The unrebutted evidence offered by Petitioner establishes that, as of the date that
Petitioner applied for enrollment, he was complying with the Tennessee Board of Medical
Examiners’ order and was, therefore, practicing medicine within the scope of his
professional license. Beginning in December 2007 Petitioner affiliated with another

* During the initial stage of Petitioner’s probation he was prohibited from issuing
prescriptions for any Schedule II or Schedule III controlled substances. CMS Ex. 3, at 4;
P. Ex. 2, at 4.
6

physician, Ernesto Padiernos Chioco, M.D. P. Ex. 4, at 1. Petitioner and Dr. Chioco
shared patient examining rooms and Dr. Chioco was available to Petitioner for
consultation. /d. Most significantly, Dr. Chioco assumed responsibility for prescribing
Schedule II and Schedule II controlled substances for Petitioner’s patients when Dr.
Chioco concluded that such prescriptions were appropriate. Jd. at 1-2.°

Moreover, the evidence offered by Petitioner establishes that he complied with the
additional restrictions on his practice imposed by the consent order. On July 22, 2008, the
Tennessee Board of Medical Examiners issued an order of compliance in which it
certified that Petitioner complied with the consent order’s prohibition on his prescribing
Schedule II and Schedule HI controlled substances until he completed the Vanderbilt
University controlled substance prescribing program. P. Ex. 6, at 1; see P. Ex. 7; P. Ex. 8.
Consequently, the Tennessee Board of Medical Examiners reinstated Petitioner’s
authority to prescribe Schedule II and Schedule II controlled substances. Jd.

CMS argues, notwithstanding this unrebutted proof of compliance, that Petitioner’s
practice was in fact a solo practice that contravened the consent order. However, CMS
has offered no persuasive evidence to support its assertion. Its principal argument is
that Petitioner contends he satisfied the requirements of the consent order merely by
allowing another physician to practice in the same location with him. CMS’s reply brief
at 2.

CMS’s argument incorrectly characterizes Petitioner’s position and, moreover, is belied
by the evidence. Petitioner does not contend that he satisfied the consent order merely by
having another physician practice with him. The evidence offered by Petitioner,
moreover, shows that he and Dr. Chioco were not mere ships passing in the night. The
unrebutted evidence establishes that Dr. Chioco performed the mentoring duties required
by the consent order.

CMS argues additionally that Petitioner did not change the character of his medical
practice after he executed the consent order because, as is shown in the electronic funds
transfer application that Petitioner filed with his enrollment application, Petitioner was
the only authorized signatory. CMS Ex. 5, at 4; CMS’s brief at 3. Additionally,
according to CMS, the fact that Petitioner never entered into a partnership with another
physician is proof that he violated the terms of the consent order.

° CMS argues that the evidence supporting these findings — an affidavit by
Petitioner’s office manager — is not credible because it is the testimony of a third party
who is not a medical professional rather than the testimony of Dr. Chioco. I disagree.
There is no reason for me to find that Petitioner’s office manager lacks knowledge of
Petitioner’s practice. CMS had the opportunity to cross-examine Petitioner’s witnesses
but did not exercise that opportunity.
7

I do not find either of these assertions to be persuasive. They exalt form over substance.
The consent order was not intended to regulate the technical elements of Petitioner’s
business. It was rather, as I have described, intended to insure that Petitioner was
carefully monitored in the way that he dealt with patients who asked for or potentially
needed prescriptions for controlled substances. That is precisely why the consent order
did not direct a specific form of business organization for Petitioner so much as it ordered
him to stop practicing medicine as a sole practitioner. Petitioner did not need to form a
specific business relationship with another physician in order to comply with the order’s
terms. Nor did he need to cease being a sole authorized signatory for the receipt of
Medicare reimbursement.’

Moreover, the Tennessee State Board of Medical Examiners has certified that Petitioner
is in compliance with the terms of its order. That agency — and not CMS - is the best
judge of whether its own requirements are being complied with. I defer to that agency’s
finding here, if for no other reason, because it is in the best position to judge whether
Petitioner complied with its order.

CMS argues that the order of compliance that was issued by the Tennessee Board of
Medical Examiners does not address the merits of this case because the compliance
certification addresses only whether Petitioner complied with the provisions of the
consent order which govern his prescription of controlled substances. But, in addressing
that issue, the agency would have had to take into consideration the relationship between
Petitioner and Dr. Chioco. That is because an integral part of the consent order was that
Petitioner affiliate with another physician (Dr. Chioco) so that the other physician could
mentor him and, for a time, issue prescriptions for controlled substances for Petitioner’s
patients. The evidence that Petitioner supplied to the Tennessee Board of Medical
Examiners includes the affidavit that is in evidence in this case as P. Ex. 4. P. Ex. 7, at

7 However, CMS also states:

It is immaterial whether the physician practicing medicine
with [Petitioner] acquired an ownership interest in
[Petitioner’s] practice and engaged with another physician in
a joint venture, it would be necessary for [Petitioner] to enter
into an arrangement whereby he was not the sole owner of his
medical practice in order to comply with the terms of the
Order.

CMS’s reply brief at 2. Iam uncertain what CMS means by this statement but, perhaps,
CMS is arguing that there had to be some revenue sharing arrangement between
Petitioner and Dr. Chioco in order for there to have been compliance with the terms of the
consent order. If that is CMS’s argument, I reject it because that clearly was not the
intent of the consent order.
15-17. It is reasonable to conclude that the Tennessee Board of Medical Examiners was
influenced by that affidavit in finding that Petitioner was in compliance with the consent
order, including that part of the order which addressed the nature of Petitioner’s practice
of medicine.

CMS now also seems to argue that Petitioner is ineligible for enrollment because of his
probationary status. CMS’s reply brief at 4-5. But, CMS’s argument notwithstanding,
there is nothing in the regulations governing participation which prohibit a provider who
is on probationary status with a State licensing agency from participating in Medicare.
The issue here is not whether Petitioner was on probation but whether he complied with
the terms of his probation. All of the evidence in this case supports my finding that he
has.

/s/
Steven T. Kessel
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)
The New Homestead Care Center, )
(CCN: 16-5525), ) Date: February 25, 2009
)
Petitioner, )
)
-V.- ) Docket No. C-07-293
) Decision No. CR1906
Centers for Medicare & Medicaid )
Services. )
)
DECISION

I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) to
impose a civil money penalty (CMP) against Petitioner, The New Homestead Care Center
(Petitioner or facility), for failure to comply substantially with federal requirements
governing participation of long-term care facilities in Medicare and State Medicaid
programs. For the reasons that follow, I uphold the per instance CMP of $7000, based on
a finding of immediate jeopardy.

I. Background

This case is before me pursuant to a request for hearing filed by Petitioner dated March 2,
2007. Petitioner is a long-term care provider located in Guthrie Center, Iowa.

By letter dated January 3, 2007, CMS informed Petitioner that based on an extended
survey completed by the Iowa Department of Inspections and Appeals (State Agency) on
November 27, 2006, it was imposing a per instance CMP of $7000 due to Petitioner's
failure to be in substantial compliance with the applicable federal requirements for long-
term care facilities. The CMP was for deficiencies cited at Tag F225 (Staff Treatment of
Residents).
2
On June 15, 2007, CMS filed a motion for summary affirmance. On June 29, 2007,
Petitioner filed a brief in response to CMS’s motion. On July 27, 2007, CMS filed a
supplemental motion for summary affirmance based on newly acquired evidence. On
August 10, 2007, I issued an order denying CMS’s motion for summary affirmance.

convened a hearing in this case on June 3, 2008 and June 4, 2008 in Des Moines, Iowa.
During the hearing, CMS offered six exhibits identified as CMS Exhibits (CMS Exs.) 1-6.
Petitioner objected to CMS Ex. 6 and I overruled Petitioner’s objection to this exhibit. I
receive CMS Exs. 1-6 into evidence. Petitioner offered ten exhibits, identified as
Petitioner Exhibits (P. Exs.) 1-10. I admit these ten exhibits into evidence without
objection. In a June 27, 2008 letter issued at my direction, I instructed the parties to
submit opening post-hearing briefs (CMS Br. and P. Br.) by July 31, 2008, and post-
earing reply briefs (CMS Reply and P. Reply) by August 15, 2008. The parties
subsequently submitted their respective briefs as directed.

Based on the documentary evidence, the arguments of the parties, and the applicable law

and regulations, I find that Petitioner was not in substantial compliance, at the immediate

jeopardy level, and I further find that CMS was authorized to impose a CMP of $7000 for
noncompliance.

If. Applicable Law and Regulations

Petitioner is considered a long-term care facility under the Social Security Act (Act) and
regulations promulgated by the Secretary of Health and Human Services (Secretary). The
statutory requirements for participation by a long-term care facility are found at sections
1819 and 1919 of the Act, and at 42 C.F.R. Parts 483 and 488.

Sections 1819 and 1919 of the Act invest in the Secretary authority to impose CMPs
against a long-term care facility for failure to comply substantially with participation
requirements.

Facilities that participate in Medicare may be surveyed on behalf of CMS by state survey
agencies in order to determine whether the facilities are complying with federal
participation requirements. 42 C.F.R. §§ 488.10-488.28; 42 C.F.R. §§ 488.300-488.335.
Pursuant to 42 C.F.R. Part 488, CMS may impose either a per day CMP or a per instance
CMP against a long-term care facility when a state survey agency concludes that the
facility is not complying substantially with federal participation requirements. 42 C.F.R.
§§ 488.406, 488.408, and 488.430. The penalty may start accruing as early as the date
that the facility was first out of compliance until the date substantial compliance is
achieved or the provider agreement is terminated. 42 C.F.R. § 488.440.
3
The regulations define the term “substantial compliance” to mean:

[A] level of compliance with the requirements of participation such that any
identified deficiencies pose no greater risk to resident health or safety than the
potential for causing minimal harm.

42 C.F.R. § 488.301.

“Immediate jeopardy” is defined to mean:
[A] situation in which the provider’s noncompliance with one or more
requirements of participation has caused, or is likely to cause, serious injury, harm,
impairment, or death to a resident.

42 C.F.R. § 488.301.

In determining the amount of the CMP, the following factors, specified at 42 C.F.R.
§ 488.438(f), must be considered:

the facility's history of noncompliance, including repeated deficiencies;
the facility's financial condition;

the seriousness of the deficiencies as set forth at 42 C.F.R. § 488.404; and
the facility's degree of culpability.

Rene

The Act and regulations make a hearing before an administrative law judge (ALJ)
available to a long-term care facility against whom CMS has determined to impose a
CMP. But the scope of such hearings is limited to whether an initial determination made
y CMS is correct. Act, section 1128A(c)(2); 42 C.F.R. §§ 488.408(g), 498.3(b)(13). A
facility may challenge the scope and severity level of noncompliance found by CMS only
if a successful challenge would affect the range of CMP amounts that could be collected
ry CMS or impact upon the facility’s nurse aide training program. 42 C.F.R.

§§ 498.3(b)(14) and (d)(10)(1). CMS’s determination as to the level of noncompliance
“must be upheld unless it is clearly erroneous.” 42 C.F.R. § 498.60(c)(2). This includes
CMS’s finding of immediate jeopardy. Woodstock Care Center, DAB No. 1726, at 9
(2000), aff'd, Woodstock Care Center v. U.S. Dept. of Health and Human Services, 363
F.3d 583 (6" Cir. 2003).

naCMP case, CMS must make a prima facie case that the facility has failed to comply
substantially with participation requirements. To prevail, a long-term care facility must
overcome CMS’s showing by a preponderance of the evidence. Hillman Rehabilitation
Ce
He

Ii

Iv

Th
dis.

4

nter, DAB No. 1611 (1997), affd, Hillman Rehabilitation Center v. U.S. Dept. of
alth and Human Services, No. 98-3789 (GEB), slip op. at 25 (D.N.J. May 13, 1999).
. Issues
A. Whether the facility was complying substantially with federal participation
requirements.
B. Whether CMS’s determination of immediate jeopardy was clearly erroneous.
C. Whether the amount of the penalty imposed by CMS is reasonable, if
noncompliance is established.
. Findings and Discussion

e findings of fact and conclusions of law noted below, in italics, are followed by a
cussion of each finding.

A, Petitioner was not in substantial compliance with federal participation
requirements under 42 C.F.R. § 483.13(c)(2)-(4) (Tag F225).

From April 2005 to November 2006, there were a number of complaints and allegations
involving residents at Petitioner’s facility. The Statement of Deficiencies listed a total of
eight examples under Tag F225 and eight corresponding residents. All of the allegations
of abuse and mistreatment involved the same certified nurse aide (CNA), Juan Bautista-
Meraz (Meraz). CMS contends that the facility failed to identify possible abuse, make an
initial report to the administrator and to State officials, conduct a thorough investigation

an

issue a post-investigation report. CMS Br. at 7.

Resident 2

ie
wa.

A Mary Busse identified Resident 2 as stating that, in April or May 2006, CNA Meraz
s rough with her, and when she told CNA Meraz he was too rough and that she would

complain to management, he took away her call light. CMS Ex. 1, at 5; Tr. at 28, 140.

Cc

A Busse stated that she reported the incident to charge nurse Patty Clark. Nurse Clark

told the surveyor on November 2, 2006, that she could not recall knowing about this

inc

ident. Tr. at 31.

Petitioner asserts that during the interview conducted by Surveyor Sharon Benson of
Resident 2, the resident indicated in various ways that she liked CNA Meraz caring for
her and that she had no problem with the way he treats her. P. Br. at 20-21; see Tr. at
341, 342, 361, 362. Petitioner also makes light of the fact that Surveyor Benson did not
make a determination of abuse for this particular resident. Tr. at 106.
Resident 3

Resident 3 told Surveyor Benson that, shortly after April 2005, CNA Meraz was assisting
her with transferring from the toilet and that he rubbed his body against hers. Resident 3
explained that this was done in a sexually suggestive and offensive way, with the resident
and CNA facing each other. Tr. at 6; CMS Ex. 2, at 43, CMS Ex. 3, at 144. According to
CNA Marlene Stearns, Resident 3 told her that she was afraid of CNA Meraz and that he
“had touched ladies inappropriately.” Tr. at 12. According to CNA Busse, Resident 3
told her about this incident and at the time Resident 3 was tearful and she stated that she
was afraid of Mr. Meraz. CNA Busse explained that Resident 3 was alert at the time she
was telling her about the incident. According to testimony, CNA Busse reported the
substance of the conversation to the charge nurse, Cheryl Hughes.

Resident 3 also told Surveyor Benson that CNA Meraz would run a wheelchair into her
leg. According to testimony, as recently as a day before Surveyor Benson interviewed
Resident 3, CNA Meraz ran a wheelchair into Resident 3’s leg. Surveyor Benson’s
interview of CNA Stearns revealed similar information including that Resident 3 stated
she was upset and fearful of Meraz. Tr. at 12, 13. CNA Stearns told Surveyor Benson
that she reported Resident 3’s complaint about the wheelchair to the charge nurse and the
resident reported these incidents to the charge nurse, but nothing was done. Tr. at 14,
159.

Petitioner’s contention with respect to Resident 3 was that she required a staff member to
be in close proximity to her with the staff member's arm around her, according to charge
nurse Rosella Hanson. Tr. at 356-7. Petitioner points to testimony that despite Resident
3’s assertions of CNA Meraz rubbing up against her, Surveyor Benson testified that there
were no allegations that CNA Meraz groped or fondled Resident 3, or that CNA Meraz
ad an erection. Tr. at 96-97. Petitioner also highlights various instances where Resident
3 has had negative behaviors toward staff, including male staff. P. Br. at 18. Ms. Hanson
testified that Resident 3 was not an accurate historian. Tr. at 357-358.

Resident 4

According to the SOD, CNA Stearns told Surveyor Benson that around August or
September of 2006, Resident 4 complained about CNA Meraz. CNA Stearns said that
Resident 4 was crying and she said that she did not want a man caring for her. CNA
Stearns stated that she told the Director of Nursing (DON), Amy Gettler, about the
incident. CMS Ex. 1, at 5. According to testimony at the hearing, Resident 4 told
Surveyor Benson that CNA Meraz insisted that she get out of bed even when she was not
feeling well and that he told her to undress while watching her do so. She told Surveyor
Benson that CNA Meraz would jerk the covers off her and he would say “Get up.”
Resident 4 told Surveyor Benson that CNA Meraz was rude to her, and that she felt

6
embarrassed and uncomfortable when CNA Meraz made her undress in front of him, and
she felt that he stared at her while she would undress. Tr. at 31, 32,33. By a form dated
October 27, 2006, the DON stated that she did not know of the incident involving
Resident 4 and CNA Meraz. CMS Ex. 1, at 5.

According to Petitioner, Resident 4 required assistance during the dressing process. P.
Br. at 21-22. Petitioner pointed to testimony at the hearing that Ms. Benson did not recall
the resident telling CNA Meraz to leave the room inferring that Resident 4 could not have
een very embarrassed or uncomfortable with CNA Meraz in the room while she was
getting dressed. See Tr. at 108. P. Br. at 22.

Resident 6

According to the SOD, CNA Michel Smith told Surveyor Benson that Resident 6
expressed fear of CNA Meraz. According to CNA Smith, Resident 6 told Ms. Smith that
she was afraid of CNA Meraz and what he was going to do to her. Tr. at 46, 76; CMS
Ex. 2, at55. CNA Smith stated that she reported the incident to Nurse Wilson, but no
investigation was initiated. Tr. at 47, 75.

Petitioner’s contention with respect to Resident 6 is that she suffered from a long history
of delusional behaviors. P. Br. at 10. Petitioner questions CMS’s assertion that because
the resident appeared afraid, the facility should have opened an abuse investigation. P.
Br. at 11. Petitioner contends that even though CNA Smith reported the incident
involving Resident 6 to another staff member, the incident does not equate to an
allegation of abuse. Petitioner argues that “clearly not every resident response or
comment that is reported to nursing staff constitutes abuse that must be investigated.” P.
Br. at 11.

Resident 8

According to the SOD, CNA Lois Eivans identified Resident 8 as “scared” and “upset”
one day. CNA Eivans stated that Resident 8 told her that CNA Meraz was mean. CNA
Eivans asserted that she reported Resident 8’s concerns to the social worker, Nancy
Wells. According to testimony, nothing happened after Resident 8’s concerns were
reported and Ms. Wells told Surveyor Benson that she did not recall the report from CNA
Eivans concerning Resident 8. CMS Ex. 1, at 3; Tr. 45, 89, 90.

Petitioner points out that with respect to Resident 8, CNA Eivans was the sole source of
the allegations involving this particular resident. Petitioner asserts that the social worker,
Ms. Wells, denied CNA’s assertions that she was told of Resident 8’s comments regarding
CNA Meraz. According to Petitioner, CNA Eivans had credibility issues and Ms. Wells’
recollection of whether she was told about Resident 8’s comments should be believed
instead of CNA Eivans’ version of events. P. Br. at 15.
Resident 9

According to the SOD, CNA Eivans told Surveyor Benson that CNA Meraz placed a
chair against the door of Resident 9’s room and when she entered the room Resident 9
was not covered and a bloody vaginal discharge was evident. As CNA Eivans entered the
room, CNA Meraz was leaning over Resident 9. According to CNA Eivans, CNA Meraz
said he was cleaning the resident, but CNA Eivans did not observe any supplies or wash
cloths. CMS Ex. 1, at 8. According to testimony, CNA Eivans said she had to gather
cleaning supplies and clean Resident 9 herself. Tr. at 26. CNA Eivans said that she
reported this incident to charge nurse Hughes. Tr. at 27.

According to Petitioner, CNA Eivans indicated that she never reported any assertions or
allegations relating to Resident 9 to any staff members at the facility. Petitioner contends
that CNA Eivans only reported her observations to Surveyor Benson during the survey.

P. Br. at 7. Petitioner points to testimony from Nurse Smith that it was not unusual to
place the Geri chair against the door in Resident 9’s room. Tr. at 345. Petitioner also
argues that a bloody discharge coming from Resident 9’s vaginal area was not uncommon
since she had abdominal cancer and occasionally had urinary and rectal bleeding as a
result of her illness. Petitioner argues that the inference that CNA Meraz abused Resident
9 based on CNA Eivans’ observations of the bleeding is unsupported by the evidence. P.
Br. at 8.

Resident 11

Resident 11 told CNA Eivans that CNA Meraz had reached around and rubbed Resident
11’s breast. CMS Ex. 1, at 2. According to CNA Eivans, she reported the incident to the
DON. According to testimony at the hearing, Resident 11 told Surveyor Benson that
CNA Meraz grabbed her breast once or twice while assisting her ambulating. Tr. at 39.
Resident 11 signed a statement that recited her allegations. Tr. at 41; CMS Ex. 3, at 263.
Later, Resident 11 denied any problem with CNA Meraz. Tr. at 41, 43; CMS Ex. 3, at
264; CMS Ex. 2, at 41. When interviewed, the DON stated that she investigated the
incident of July 14, 2006, and the resident denied the incident, so CNA Meraz was not
disciplined. CMS Ex. 1, at 2. According to testimony at the hearing, no report was
immediately made to the state of possible abuse, no further investigation was conducted,
and CNA Meraz was not separated from Resident 11.

Petitioner contends that immediately after the incident was reported to Ms. Gettler, the
DON, regarding Resident 11, she conducted an interview with CNA Eivans as well as
with Resident 11. Petitioner maintains that during the investigation of the alleged
incident with CNA Meraz and Resident 11, Resident 11 did not corroborate any portion
of the allegations made by CNA Eivans. P. Br. at 13; see Tr. at 200. Subsequent to the

8
investigation, Ms. Gettler concluded that there was no reasonable basis to believe that
CNA Meraz had abused Resident 11. Two months after the conclusion of Ms. Gettler’s
investigation, prompted by the State, she initiated a second investigation. During the
second investigation, Resident 11 recalled an incident involving similar occurrences, but
according to Ms. Gettler the Resident was unable to identify the staff member involved.
Also, according to Ms. Gettler, subsequent investigations were initiated and Resident 11
ad inconsistent remembrances of the incident. Tr. at 81, 82; P. Br. at 14. Petitioner also
argues that it is not uncommon for a caregiver to inadvertently come in contact with a
resident’s breast while attempting to ambulate her. P. Br. at 14.

Resident 15

According to the SOD, on October 25, 2006, Resident 15 stated that CNA Meraz grabbed
is shoulder to get him dressed and he was too rough. Resident 15 said that the incident
occurred approximately a year earlier. Resident 15 stated that he informed his physician
of the incident. CMS Ex. 1, at 6, 7. According to Resident 15, it was his right arm and he
ad to start taking multiple dosages of Tylenol daily after this incident. Tr. at 22, 68, 72.
According to the December 12, 2005 nurses’ notes, Resident 15 started complaining of
increased pain in his arm. CMS Ex. 3, at 333, 334. According to the testimony of
Surveyor Benson, the facility did not investigate why Resident 15 had increased pain in

is right arm.

Petitioner contends that Resident 15 never alerted facility staff of the incident where CNA
Meraz allegedly jerked Resident 15’s arm. Petitioner argues that because the facility had
not been made aware of Resident 15’s complaint, either from Resident 15 himself or
Resident 15’s physician, the facility should not have been required to report possible
abuse regarding Resident 15. P. Br. at 9. Also, Petitioner argues, Resident 15’s
complaints of pain do not constitute an “injury,” and that Resident 15 has had chronic
shoulder pain dating back to at least September 2004. P. Br. at 8-9; see P. Ex. 7, at 5, 18-
23. Petitioner contends that Surveyor Benson concluded that the allegation asserted by
Resident 15 against CNA Meraz did not constitute abuse. P. Br. at 10; see Tr. at 73.

42 C.F.R. § 483.13(c)(2)-(4) requires a participating facility’s staff to:

. Immediately report to the facility’s administrator and to other officials in
accordance with state law through established procedures (including to the state
survey and certification agency), all alleged violations involving mistreatment,
neglect or abuse of a resident, including injuries of unknown source;

. Thoroughly investigate all such allegations and prevent further abuse while the
investigation is in process;
9
. Report all investigation results to the administrator or his/her designated
representative and to other officials in accordance with State law within five
working days of the incident and if the alleged violation is verified appropriate
corrective action must be taken.

See 42 C.F.R. § 483.13(c)(2)-(4).

The facts concerning most of the residents in this case are not in dispute. CMS contends
that, with one exception, Petitioner’s DON and the facility’s administrator denied
knowing about any of the allegations of mistreatment, neglect or abuse cited in the SOD.
CMS Br. at 1. According to CMS, 42 C.F.R. § 483.13(c)(2) is triggered not by the
probability of violative conduct, but by the facility’s recognition of the possibility of
violative conduct. CMS argues that the facility did not comply with section 483.13(c)(2)
which requires the facility to immediately report all alleged violations involving abuse to
the facility administrator and to the State survey and certification agency. According to
CMS, harsh or loud statements which cause mental anguish, but no physical injury, can
initiate the requirement for a facility to report the alleged violation as possible abuse.
CMS Br. at 8.

42 C.F.R. § 488.301 defines neglect as the “failure to provide goods and services
necessary to avoid physical harm, mental anguish or mental illness.” Abuse is defined as
“willful infliction of injury, unreasonable confinement, intimidation, or punishment with
resulting physical harm, pain or mental anguish.” 42 C.F.R. § 488.301. With the
exception of Resident 15, CMS alleges that the facility should have identified possible
neglect or abuse in the form of mental anguish of the residents of Petitioner’s facility.
Pursuant to 42 C.F.R. § 483.13(c)(2) facility staff has a duty to immediately report to the
facility’s administrator a// alleged violations involving mistreatment, neglect or abuse of a
resident. This not only includes possible physical abuse, as CMS alleges concerning
Resident 15, but also mental aguish as CMS alleges with respect to Residents 2, 3, 4, 6, 8,
9, and 11. See Hotel Reed Nursing Center, DAB CR1494 (2006), affd on other grounds,
DAB No. 2154 (2008); Royal Park Care Center, DAB CR1493 (2006); Cedar View
Good Samaritan, DAB CR997 (2003). Also, with respect to Residents 3, 4, 9, and 11
CMS alleges that Petitioner did not investigate possible inappropriate sexually oriented
conduct.

Petitioner largely misses the point as to what the regulations require when allegations of
abuse have been made. Petitioner argues that residents make statements all the time that
could be interpreted as many different things including allegations of abuse. P. Br. at 10.
However, Petitioner contends, each resident’s credibility, prior history and individual
circumstances must be considered before an investigation into allegations of abuse are
initiated. Petitioner seemed to operate on the principle that if the allegation of abuse was
likely to be deemed not credible, it did not need to be reported. This, however, is a
misunderstanding of the regulation. The regulation does not entitle a facility to make a

10
preliminary investigation involving exclusively lower-level facility staff in order to weed
out claims that it thinks do not rise to the level of likely abuse. The regulation is explicit
in its direction that a// alleged violations involving mistreatment and abuse must be
immediately reported to facility’s administrator and a// such allegations must be
thoroughly investigated.

In seven of the eight Residents listed in the SOD, Petitioner did not show that it made an
immediate report to the facility’s administrator concerning these residents nor did it
provide evidence that it provided the proper report within five working days to the State.
Petitioner provides various reasons for not making the required reports to the appropriate
representatives, including not knowing about the possible abuse and reasoning that the
allegations concerned incidents so common that the actions could not possibly rise to the
level of what can be considered as abuse.

The one investigation that the facility did initiate, of the eight that it should have
investigated, was lacking in thoroughness and in that the possible abuse was not reported
to the State within the specified time required. The DON only chose to interview the
Resident, Resident 11, and CNA Eivans. The DON did not interview CNA Meraz, any of
the other CNAs or any of the other residents concerning Mr. Meraz. As CMS argues in
its brief, if the State had been properly notified, it may have questioned the thoroughness
of the facility’s investigation and a more complete investigation may have been initiated,
if not mandated.

Another troubling aspect of the facility's handling of its residents’ allegations of abuse is
facility staff's general denial that the residents made allegations that would have triggered
an investigation. With respect to Residents 2, 4, and 8 the social worker, charge nurse
and the DON denied ever knowing or could not recall being told about the relevant
allegations. CMS Ex. 1, at 3, 5; Tr. 31, 44, 89, 90. As for Residents 3, 6, 9, and 11,
reports were made by CNAs of possible mistreatment or abuse, but no action was taken in
the form of an investigation into possible abuse. Tr. at 14, 25, 47, 75, 159. Petitioner
attacked the credibility of CNA Eivans, but could not advance any plausible reason why
CNA Stearns and CNA Busse should not be believed when they said that they reported
incidents of possible abuse involving CNA Meraz. In the case of CNA Eivans,
Petitioner’s contention that Ms. Eivans had prior personal history with CNA Meraz and
could not be believed when she claimed reporting incidents allegedly involving CNA
Meraz has no relevance as to whether or not she reported these incidents to her superiors.
It would only be relevant as to whether the claims Ms. Eivans made were credible. I find
that the statements made by CNA Stearns, CNA Busse, and CNA Eivans, that they
reported the various incidents of possible abuse, are more credible than those statements
made by the charge nurse, the DON, and the social worker that they could not recall or
merely denied these statements were made.

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As for Resident 15, a facility has the duty to investigate an injury caused by an unknown
origin. I find that Petitioner failed to comply with the requirements of 42 C.F.R.
§ 483.13(c)(3) because it should have investigated the cause of the pain in the resident’s
right shoulder as soon as he complained of increased pain on December 12, 2005. The
regulation requires that a facility investigate immediately the cause of a resident’s injury,
including an injury of an unknown origin. On December 12, 2005, facility staff knew that
Resident 15 experienced a significant change in his condition, but did not know the cause
of Resident 15’s increased pain at that time. The fact that Resident 15 may have suffered
an unknown injury placed a duty upon Petitioner to investigate the cause. The failure to
investigate the cause of Resident 15’s injury, and the failure to report its results to the
appropriate state officials within five days of December 12, 2005, is a failure to comply
with the regulatory requirement. “A facility has an absolute duty to treat every resident
injury from an unknown source as evidence of possible abuse, neglect, or mistreatment,
until it establishes the injury’s cause.” Grace Healthcare of Benton, DAB CR1676
(2007).

B. CMS’s finding of immediate jeopardy was not clearly erroneous.

Immediate jeopardy exists where a provider’s noncompliance with one or more
requirements of participation has caused, or is likely to cause, serious injury, harm,
impairment, or death to a resident. 42 C.F.R. § 488.301. Fora finding of immediate
jeopardy, it is not necessary to show that the noncompliance caused serious injury, harm,
impairment, or death. It is sufficient to show that the noncompliance was likely to cause
serious injury, harm, impairment, or death. Fairfax Nursing Home, Inc., DAB No. 1794,
at 14 (2001).

It is Petitioner’s burden to prove clearly erroneous a finding by CMS that a deficiency
puts residents at immediate jeopardy. 42 C.F.R. § 498.60(c)(2). Here, CMS established
strong prima facie evidence of immediate jeopardy level deficiencies under Tag F225.
Petitioner contends in its brief that there were no immediate jeopardy level deficiencies.
Petitioner argues that CMS has failed to prove that there was a likelihood of serious
injury or harm to the residents cited under F225. Specifically, Petitioner argues that CMS
failed to show a potential for more than minimal harm with respect to all the residents.
Petitioner also argues that CMS’s primary witness, Surveyor Benson, could only
substantiate the findings of abuse related to one of the eight residents, Resident 3.
According to Petitioner, the only type of harm that Resident 3 experienced was mental
anguish. Petitioner contends that Resident 3’s mental anguish does not rise to the level of
serious injury or harm to the resident. Petitioner asserts that the only physical harm
alleged to have occurred was related to Resident 15’s arm. Petitioner contends that any
harm done to Resident 15’s arm or shoulder did not rise to the level of serious injury or
harm to a resident.

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Again, I am not persuaded by Petitioner’s arguments or Petitioner’s witnesses’ testimony.
Petitioner offered no persuasive evidence to show that CMS’s determination of immediate
jeopardy was clearly erroneous. The allegations concerning CNA Meraz and four of the
residents, Residents 3, 4, 9, 11, involved the possibility of sexually oriented conduct. The
mental anguish experienced by victims of sexually oriented abuse is very serious and can
affect an individual in lasting ways that manifests itself both mentally and physically.
CMS has proven that there was a potential for more than minimal harm because there was
a likelihood of serious injury or harm to Petitioner’s residents if the facility continued its
pattern of not investigating possible abuse. Petitioner failed in providing these residents
with a level of care that is mandated by the regulations. Petitioner knew or should have
known that its reluctance and unwillingness to investigate possible abuse was likely to
cause serious injury, harm, impairment, or death to the residents of its facility. Moreover,
Petitioner’s systemic flaw concerning investigations equally exposed other residents
similarly situated to the likelihood of suffering serious injury, harm, impairment, or death.
Petitioner has not proved that CMS’s determination of immediate jeopardy was clearly
erroneous.

C. The amount of the CMP is reasonable.

CMS imposed a $7000 per instance CMP. When an ALJ finds that the basis for imposing
a CMP exists, the ALJ may not: (1) set a penalty of zero or reduce the penalty to zero;
(2) review the exercise of discretion by CMS to impose a CMP; and (3) consider any
factors in reviewing the amount of the penalty other than those specified by regulation.
42 C.F.R. § 488.438(e). Ihave found that a basis exists for CMS to impose a CMP
because I have found that Petitioner was not in compliance with 42 C.F.R.

§ 483.13(c)(2)-(4). I must, therefore, review de novo whether the amount of the CMP is
reasonable by considering four factors specified in 42 C.F.R. § 488.438(f). These four
factors are: (1) the facility's history of noncompliance, including repeated deficiencies;
(2) the facility’s financial condition; (3) the scope and severity of the deficiencies, the
relationship of one deficiency to other deficiencies, a facility’s prior history of
noncompliance with reference to the deficiency at issue (factors specified in 42 C.F.R.

§ 488.404); and (4) the facility’s degree of culpability.

Petitioner has argued that the deficiencies cited as immediate jeopardy do not rise to a
level of immediate jeopardy. Petitioner contends that the immediate jeopardy citation in
this case is inappropriate because CMS has failed to prove that there was a likelihood of
serious injury or harm as a result of the cited deficiency. P. Br. at 23-24. I have already
amply discussed the basis for a finding of noncompliance at the immediate jeopardy level.
Moreover, CMS may impose a per instance CMP in the range of $1000 to $10,000,
regardless of whether or not the deficiencies constitute immediate jeopardy. 42 C.F.R.

§ 488.430 (a); 42 C.F.R. § 488.438 (a)(2).
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Neither party has provided evidence of the facility’s history of noncompliance or the
facility’s financial condition. Petitioner has provided no evidence that the CMP assessed
by CMS for this case would put it out of business. See Kelsey Memorial Hospital, DAB
CR583 (1999); Capitol Hill Community Rehabilitation and Specialty Care Center, DAB
CR469 (1997), aff'd DAB No. 1629 (1997).

The regulations define culpability as neglect, indifference, or disregard for resident care,
comfort or safety. 42 C.F.R. § 488.438(f)(4). Petitioner only initiated one investigation
for one resident for which there was a possibility of abuse. There were seven other
residents for which the facility did not investigate possible abuse involving CNA Meraz.
Petitioner did not investigate possible abuse based on an injury of unknown origin, and
did not report to the State within the requisite time period for reporting possible abuse of
residents by staff. Petitioner did not thoroughly investigate possible abuse as mandated
by 42 C.F.R. § 483.13(c)(3). Petitioner displayed indifference and disregard for resident
care and safety by not thoroughly investigating each instance of alleged abuse. In view of
the foregoing, I find that the amount of the CMP is reasonable.

V. Conclusion

Based on the documentary evidence, the arguments of the parties, and the applicable law
and regulations, I find that Petitioner was not in substantial compliance at the immediate
jeopardy level and that the imposition of a per instance CMP of $7000 is reasonable.

/s/
José A. Anglada
Administrative Law Judge