Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Autumn Healthcare of Somerset,
(CCN: 365750),

Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-14-743
Decision No. CR4256

Date: September 25, 2015

DECISION

Autumn Healthcare of Somerset (Petitioner or the facility) challenges the determination
of the Centers for Medicare & Medicaid Services (CMS) that it was not in substantial
compliance with Medicare program participation requirements. CMS imposed against
Petitioner a civil money penalty (CMP) of $4,550 per day from October 27, 2013 through
October 28, 2013, and a $100 per day CMP from October 29, 2013 through November
20, 2013.

For the reasons discussed below, I grant summary judgment to CMS. I find the
undisputed evidence shows that Petitioner was not in substantial compliance with

42 CFR. § 483.25 (Tag F309, Quality of Care); 42 C.F.R. § 483.15(g)(1) (Tag F250,
Medically Related Social Services); and 42 C.F.R. § 483.75 (1)(1) (Tag F514, Resident
Record - Complete, Accurate and Accessible). I also find that CMS’s determination of
immediate jeopardy was not clearly erroneous, and the CMP that CMS imposed is
reasonable in amount and duration.
I. Background

The Social Security Act (Act) sets forth requirements for skilled nursing facility
participation in the Medicare program. The Act authorizes the Secretary of Health and
Human Services (Secretary) to promulgate regulations implementing those statutory
provisions. Act § 1819 (42 U.S.C. § 1395i-3). The Secretary’s regulations are found at
42 C.F R. Part 483. To participate in the program, a 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 agencies to conduct periodic surveys to determine
whether skilled nursing facilities are in substantial compliance. Act § 1864(a) (42 U.S.C.
§ 1395aa(a)); 42 C.F.R. §§ 488.10, 488.20. The Act and regulations require that facilities
be surveyed on average every 12 months, and more often if necessary, to ensure that
identified deficiencies are corrected. Act § 1819(g)(2)(A) (42 U.S.C. § 139513(g)(2)(A));
42 CFR. §§ 488.20(a), 488.308.

Here, surveyors from the Ohio Department of Health (state agency) completed a
complaint survey at Petitioner’s facility on November 14, 2013. Based on the findings of
that survey, the state agency found Petitioner not to be in substantial compliance with the
three participation requirements cited above. The state agency found Petitioner’s
noncompliance with 42 C.F.R. § 483.25 (Tag F309, Quality of Care) to be at an
immediate jeopardy level where the potential harm was likely to result in serious injury
or death. A revisit survey completed on January 29, 2014, found that Petitioner had
achieved substantial compliance, effective November 21, 2013. As a result of the
November 14, 2013 survey findings, CMS imposed against Petitioner a $4,550 per day
CMP from October 27, 2013 through October 28, 2013, and a $100 per day CMP from
October 29, 2013 through November 20, 2013, for a total penalty of $11,400.

By letter dated February 21, 2014, Petitioner requested an Administrative Law Judge
(ALJ) hearing to dispute the determination that it was not in substantial compliance with
program requirements and the associated proposed remedies. Petitioner’s request was
received at the Civil Remedies Division, assigned to me for hearing and decision, and on
March 5, 2014, I issued an Acknowledgment and Initial Prehearing Order.

On June 4, 2014, CMS submitted its pre-hearing brief and a motion for summary
judgment (CMS Br.) along with 22 proposed exhibits (CMS Exs. 1-22). As directed in
my prehearing order regarding witness testimony, CMS submitted written direct
testimony for its surveyor, its only witness. On July 7, 2014, Petitioner submitted a
memorandum in opposition to CMS’s motion for summary judgment and pre-hearing
brief (P. Br.) along with three proposed exhibits (P. Exs. 1-3). Petitioner did not submit a
witness list, any written direct testimony, and it did not request an opportunity to cross-
examine the surveyor. I admit all proposed exhibits into the record absent any objection
from the parties.

II. Issues

Whether the undisputed evidence establishes:

1. Petitioner was in substantial compliance with 42 C.F.R. § 483.25 (Tag F309,
Quality of Care);

2. Petitioner was in substantial compliance with 42 C.F.R. § 483.15(g)(1) (Tag
F250, Medically Related Social Services);

3. Petitioner was in substantial compliance with 42 C.F.R. § 483.75(1)(1) (Tag
F514, Resident Record - Complete, Accurate and Accessible);

4. CMS’s determination of immediate jeopardy level noncompliance was clearly
erroneous; and

5. The CMPs that CMS imposed are reasonable in amount and duration.

III. Findings of Fact and Conclusions of Law
A. Summary judgment is appropriate.

All the cited deficiencies involve one resident whom I reference as Resident 64 (R64).
CMS moves for summary judgment relying on the following facts, which are undisputed.
R64 was admitted to the facility on September 11, 2013, and was readmitted from the
hospital on October 18, 2013, after a surgery for a fracture to his right hip following a
fall. CMS Ex. 13 at 1, 6, 20,46; CMS Ex. 12 at 6-7. R64 was a 74-year old man
diagnosed with Parkinson’s disease, moderate to severe dementia, aggression with
agitated psychotic features, dementia with Alzheimer’s disease, depression, and severely
impaired cognitive skills. CMS Ex. 13 at 9, 39; P. Ex. | at 26.

The cited deficiencies involve the alleged failure of Petitioner’s staff to immediately
perform cardiopulmonary resuscitation (CPR) on R64 when staff found him with no vital
signs. Petitioner’s Director of Nursing (DON) summarized the undisputed facts in the
facility’s self-reporting of the incident that began at 4:05 p.m. on October 27, 2013:
[Nurse 1, an] LPN, was alerted by a family member of [R64] of Change in
Resident condition.! Upon her assessment, [R64] was without vital signs. She
then had [a second] nurse confirm absence of same, chart was checked and [R64]
was full measures. [Nurse 1] then proceeded to call on-call [a third] nurse and
stated that [R64] was deceased and she had already told family member present
that he was expired. Approx. ten minutes had already passed. She then called this
DON at 4:30 pm and questioned what she should do. [DON, a fourth nurse]
advised her that she could not call a code and must call [physician]/initiate same.
At 4:30 pm, [a fifth nurse also an] LPN began CPR and instructed [Nurse 1], LPN
to call 911 as she was made aware of situation by other nursing staff.

CMS Ex. 9 at 2; see also CMS Ex. 10 at 1-9.

The disciplinary report the DON sent to the Ohio Board of Nursing concerning Nurse 1
states:

On 10/27/2013 at approx. 4:05 pm, Family of Resident made nurse aware
of change of condition. Nurse [1] . . . found [R64] to have absence of vital
signs, which she confirmed with another [a second] LPN. She was told to
check [R64’s] code status by 2’ LPN. It was noted that he was full code.
She then stated she was calling the on-call [a third] nurse as she didn’t think
she should code him because it had been “too long.” [The DON, a fourth
nurse] was made aware at 4:21 pm that the above had occurred. At 4:30
pm, Nurse [1] asked [DON] what she should do because he was ‘gone’
And the family was aware of that. Made Nurse [1] aware that it was not in
the scope of my practice to ‘call a code’ off and she would need to contact
physician to not initiate a code. At this time almost 30 minutes had passed.
Another [a fifth] nurse then came and began CPR at 4:35 pm and instructed
Nurse [1] to call 911. On 10/28/2013, this DON reviewed the
documentation of [Nurse 1], LPN and found said documentation was
inaccurate as to the time line of events.

CMS Ex. 10 at 12.

Nurse | paged the on-call physician at some unspecified time during these events. The
on-call physician returned the page and instructed the fifth nurse (referred to in the self-
reported incident) to begin CPR. CMS Ex. 10 at 4. Between 4:30 p.m. and 4:35 p.m.,

staff initiated CPR and continued until 4:40 p.m. or 4:45 p.m. when paramedics arrived.
CMS Ex. 10 at 2. Staff transferred R64 to the hospital. At the hospital, R64 had a faint

' R64’s family reported that he was sweating heavily and looked dehydrated. CMS Ex.
10 at 1.
pulse and was placed on a respirator. CMS Ex. 8 at 5. However, R64 died later that day
at the hospital. CMS Ex. 5 at 5.

When R64 was originally admitted to the facility on September 11, 2013, R64’s guardian
signed a “Resuscitate/Do not Resuscitate” status form, which requested “Do Not
Resuscitate Comfort Care (DNRCC)” for R64. CMS Ex. 13 at 62; CMS Ex. 16 at 1. The
following sentence was printed at the bottom of this form: “If DNR is checked a DNR
form must be completed and attached.” CMS Ex. 13 at 62. The Director of Admissions
and Social Services (social service director) informed R64’s guardian that he must go to
the nursing station and complete a Do Not Resuscitate (DNR) form and have a physician
sign it. CMS Ex. 12 at 8. The social services director explained that staff would consider
R64 a “full code” until R64’s guardian and physician completed the paperwork. CMS
Ex. 12 at 8. No one ever completed the DNR form. The facility’s social service notes
from the September 11, 2013 admission state that R64’s guardian reported that R64 was a
DNR, “however, [zero] paperwork or DNR consent [was completed]. [R64] will remain
a full code at [the facility] until DNRCC & DNRCCA [Do Not Resuscitate Comfort Care
Arrest] is explained & one or the other is chosen.” CMS Ex. 13 at 48.

The facility’s code status policy states:

Code status must be addressed upon admission. The admitting nurse” will
discuss options with the resident and or his/her responsible party. The code
status will be “Full Code” in the event there is not a physician signed DNR
in the admission packet and the family/resident fails to make a decision or
is not reachable by phone.

All Full Codes or code status not addressed upon admission will be
followed up by Unit manager, D.O.N., or charge nurse the following day.
Nurse’s notes shall reflect the decision or if unable to reach upon
admission. Failure to address code status upon admission will result in
disciplinary action.

DNR orders go into effect when signed by a physician ....
CMS Ex. 14 at 1.
The facility’s advanced directive policy states: “Upon Admission Advanced Directives
will be discussed and determined with the resident and or family, POA, Guardian as

applicable. Please note all residents without a physician signed DNR will be treated as
Full Code until signed by a physician.” CMS Ex. 14 at 2.

2 we . . a:
“ The admitting nurse was the social service director.
The facility’s performance checklist for code management requires that a nurse must be
aware of the resident’s code status, and CPR must be performed immediately after
discovery of a resident’s unresponsiveness or cardiac arrest. CMS Ex. 14 at 3-6.

The DON’s investigation determined that the failure to provide timely CPR to R64 was a
“deficient practice,” R64’s guardian thought that he had changed his code status when he
signed the “Resuscitate/Do not Resuscitate” form upon admission, and R64’s code status
“was not followed up on by the social services designee,” and consequently, the form was
removed from the admissions packet. CMS Ex. 16 at 1.

After R64’s death, on October 29, 2013, the DON explained to R64’s guardian that there
was no DNR order in R64’s file. The DON further explained that consequently R64 was
full code and the facility was “bound by law to perform CPR.” CMS Ex. 10 at 8. The
facility’s October 31, 2013 Medical Director Report describes R64 as a “full code & not
coded time appropriately.” CMS Ex. 16 at 13.

The DON admitted that Nurse 1’s documentation of events had a falsified timeline as
well as an incorrect date (October 28). Nurse 1’s documentation was written to appear as
CPR began sooner than it did. CMS Ex. 10 at 7; CMS Ex. 12 at 8. Nurse 1’s
documentation specifically indicated that CPR was started at 4:15 pm, before the on-call
physician called the facility. Nurse 1’s documentation did not specify who started CPR
on R64. CMS Ex. 13 at 41.

Petitioner terminated Nurse 1’s employment on October 29, 2013 for “failure to perform
CPR on a full code resident” and “falsification of documents.” CMS Ex. 11 at 1; see also
CMS Ex. 10-at 7-8. In its Plan of Correction (POC), the facility indicates that Nurse 1
admitted she did not follow proper procedure but believed she was following the family’s
wishes “because the family was at ease with the resident dying,” she told the family that
R64 was dead before checking the code status, and she became confused about what to
do because so much time had elapsed. CMS Ex. 5 at 5.

Summary judgment is appropriate when a case presents no issue of material fact, and its
resolution turns on questions of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986); Livingston Care Ctr. v. United States Dep't of Health and Human Servs.,
388 F.3d 168, 173 (6th Cir. 2004); see also Illinois Knights Templar Home, DAB No.
2274, at 3-4 (2009) (citing Kingsville Nursing Ctr., DAB No. 2234, at 3-4 (2009)). 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., 388 F.3d 168, 173 (quoting Celotex Corp. v. Catrett, 477
USS. 317, 323-24 (1986)). To avoid summary judgment, the non-moving party must then
act affirmatively by tendering evidence of specific facts showing that a dispute exists.
See 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). To defeat an adequately supported summary judgment motion, the
non-moving party may not rely on the denials in its pleadings or briefs, but it must
furnish evidence of a dispute concerning a material fact. Illinois Knights Templar Home,
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, 10 (2007); Livingston Care
Ctr., 388 F.3d at 168, 172; Guardian Health Care Ctr., DAB No. 1943, at 8 (2004).
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. Cedar Lake,
DAB No. 2344, at 7 (2010); 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.”). Here, all of the preceding material facts are not in dispute, and I am able to
resolve the issues as matters of law.

B. The undisputed evidence establishes that Petitioner was not in substantial
compliance with 42 C.F .R. § 483.25 because Petitioner did not provide the
necessary care and services to R64.

The opening provision of 42 C.F.R. § 483.25 (quality of care), which implements section
1819(b)(2) (Medicare) of the Act, requires:

Each resident must receive and the facility must provide the necessary care and
services to attain or maintain the highest practicable physical, mental, and
psychosocial well-being, in accordance with the comprehensive assessment and
plan of care.

The quality of care legislation and regulatory requirements are “based on the premise that
the facility has (or can contract for) the expertise to first assess what each resident’s
needs are (in order to attain or maintain the resident’s highest practicable functional
level) and then to plan for and provide care and services to meet the goal.” Spring
Meadows Health Care Ctr., DAB No. 1966, at 16 (2005). The regulation thus “imposes
on facilities an affirmative duty designed to achieve favorable outcomes to the highest
practicable degree.” Windsor Health Care Ctr., DAB No. 1902, at 16-17 (2003), aff'd,
Windsor Health Care Ctr. v. Thompson, No. 04-3018 (6th Cir. 2005). The facility must
take reasonable steps and all practicable measures to achieve that regulatory end.
Clermont Nursing & Convalescent Ctr., DAB No. 1923, at 21 (2004), aff'd, Clermont
Nursing & Convalescent Ctr. v. Leavitt, 142 F. App’x 900 (6th Cir. 2005).
The Departmental Appeals Board (Board) has concluded that the language of 42 C.F.R.
§ 483.25 not only requires skilled nursing facilities to furnish the care and services set
forth in a resident’s care plan but also to implement doctors’ orders, monitor and
document the resident’s condition, and follow its own policies. See, e.g., Alexandria
Place, DAB No. 2245 (2009) (upholding this deficiency when a petitioner did not
provide care in accordance with a doctor’s order); Oxford Manor, DAB No. 2167, at 5-6
(2008) (affirming an ALJ’s reliance on a facility’s policy as evidence of the standard of
care the facility expected its staff to provide, noting “if facility staff exercise professional
judgment in deciding not to follow facility policy with respect to a particular resident,
they document that judgment and give a reason why not. In the absence of such
contemporaneous documentation, it is certainly reasonable to infer, when staff do not
follow the policy, either they are not aware of it or that they are simply disregarding it.”).
The quality of care provision also implicitly imposes on facilities a duty to provide care
and services that, at a minimum, meet accepted professional standards of quality “since
the regulations elsewhere require that the services provided or arranged by the facility
must meet such standards.” Spring Meadows, DAB No. 1966, at 17, citing 42 CFR.

§ 483.25.

1. The undisputed evidence establishes that R64 was a full code resident
according to Petitioner’s own policy.

R64 did not have a physician approved DNR order when facility staff found him without
vital signs on October 27, 2013. The “Resuscitate/Do not Resuscitate” status form from
the facility’s admission packet that R64’s guardian signed, on September 11, 2013,
required a physician signed DNR form to become effective. At the bottom of the status

form, the following sentence was printed: “If

completed and attached.” CMS Ex. 13 at 62. TI

DNR is checked a DNR form must be
e social services director reportedly

informed R64’s guardian that he must go to the nurse’s station and complete a DNR form

and have a physician sign it. CMS Ex. 12 at 8.

that the facility staff would consider R64 a ful
paperwork. CMS Ex. 12 at 8. It is undispute
paperwork, and the social services director di
service notes, for September 11, 2013, also in
social services designee that R64 had a DNR si
consent [was completed]. [R64] will remain a

The social services director explained
code until he completed the required

that no one completed the required

not follow-up on it. The facility’s social
icate that R64’s guardian reported to the
tatus, “however, [zero] paperwork or DNR
full code at [the facility] until DNRCC &

DNRCCA is explained & one or the other is c

The facility’s code status policy and advanced
that DNR orders only go into effect when a ph:

osen.” CMS Ex. 13 at 48.

directive policy both unequivocally state
ysician signs them. CMS Ex. 14 at 1, 2.

Petitioner’s staff describes R64 as a full code resident in its self-report and in the DON’s

report to the Ohio Board of Nursing. CMS Ex

.9 at 2; CMS Ex. 10 at 12. One reason
that Petitioner terminated Nurse 1 on October 29, 2013 was for “failure to perform CPR
on a full code resident.” CMS Ex. 11 at 1; see also CMS Ex. 10-at 7-8.

Therefore, the undisputed evidence establishes the facility considered R64 a full code
resident in accordance with its own policies.

2. The undisputed evidence establishes Petitioner did not provide the
necessary care and services to R64 when it did not comply with its
policy and professional standards of care after R64’s guardian
requested that the facility designate R64 a DNR resident.

A facility’s failure to follow or implement its own resident care policy may constitute a
deficiency under 42 C.F.R. § 483.25. The Laurels at Forest Glenn, DAB No. 2182, at 18
(2008). According to the facility’s code status policy, a “code status not addressed upon
admission will be followed up by the Unit Manager, the DON, or the charge nurse the
following day.” CMS Ex. 14 at 1.

No one disputes that R64’s guardian intended, on the date of initial admission, to
designate R64 as a DNR resident. The DON’s root cause investigation determined that
R64’s guardian thought that he had selected R64’s code status when he signed the
“Resuscitate/Do not Resuscitate” status form upon R64’s admission, but R64’s code
status “was not followed up on by the social services designee,” and consequently staff
removed the form from the admissions packet. CMS Ex. 16 at 1. A physician must sign
a DNR designation form for the DNR designation form to become valid. Petitioner’s
social services note explains that R64’s code status would remain full code until staff
explained the DNR options to the guardian. Petitioner comes forward, however, with no
argument or evidence to suggest that the social services designee, the Unit Manager, the
DON, or the charge nurse followed up on the guardian’s DNR request, as Petitioner’s
code status policy required. Therefore, I find Petitioner’s noncompliance with its own
policy not in dispute.

A resident care policy “is also evidence of the standard of care the facility expect[s] its
staff to provide” and of professional standards of care. The Laurels at Forest Glenn,
DAB No. 2182, at 18. Again, here I find it undisputed that Petitioner did not comply
with its policy to follow-up regarding the required discussion between R64’s physician
and R64 or his guardian, and this is further support of a violation of 42 C.F.R. § 483.25.
Because no one at the facility followed-up on R64 guardian’s DNR request, all the DNR
options were not fully explained to R64 or his guardian. The staff’s lack of
communication with R64 or his guardian deprived them of the benefit of a truly informed
resuscitation decision based on consultation with the resident’s physician.
10

3. The undisputed evidence establishes that Petitioner did not provide the
necessary care and services to R64 when it did not initiate CPR
immediately to a full code resident in accordance with its code
management policy.

It is undisputed that Petitioner had a code management policy that states that a nurse must
be aware of the resident’s code status and immediately perform CPR after discovery of a
resident who is unresponsive or in cardiac arrest. CMS Ex. 14 at 3-6. The policy
specifically requires that staff check the resident’s code status, immediately activate the
emergency response system, and initiate CPR if the resident does not have a valid DNR
order. CMS Ex. 14 at 3. This policy is consistent with Petitioner’s own October 27,
2014 root cause investigation findings confirming that a nurse, upon finding an
unresponsive resident, must “check code status immediately, and if a full code to call
code blue, initiate CPR and notify 911.” CMS Ex. 16 at 1.

It is undisputed that R64 was sweating heavily and looked dehydrated shortly before
Nurse | went in to check on him at 4:05 p.m., when she found him without vital signs.
As found in the DON’s investigation, it is undisputed that Petitioner’s staff did not
initiate CPR until approximately 4:35 p.m., 30 minutes after staff discovered the full code
resident unresponsive. CMS Ex. 10 at 6. It is undisputed that several other nursing staff
members were also aware of R64’s lack of vital signs, but none of them immediately
initiated CPR either. CMS Ex. 9 at 12; see also CMS Ex. 10 at 1-6.

The uncontroverted evidence thus establishes that Petitioner’s staff did not follow the
code management policy’s plain language to immediately initiate CPR for a full code
resident when facility staff observed R64 unresponsive and with no vital signs. This is
further justification that Petitioner, therefore, failed to provide the necessary care and
services to R64 under 42 C.F.R. § 483.25.

Petitioner argues that it attempted to provide the care that complied with R64’s family’s
wishes. P. Br. at 1,9. R64’s guardian completed a Do Not Resuscitate status form on
admission, only one month before the incident described above. P. Ex. | at 24.
Petitioner argues that where R64 had a valid advanced directive, it was not required to
administer CPR. P. Br. at 7-9. Petitioner points to the fact that R64’s family filed a
complaint against Petitioner because CPR was performed on R64, and R64 was
transferred to a hospital against the family’s wishes when the family wanted R64 to
expire peacefully at the facility. CMS Ex. 8 at 4-5. Petitioner therefore ultimately argues
that Nurse 1’s 30 minute delay in initiating CPR was justifiable because R64’s family
created an ambiguity to the resident’s advance directive by failing to obtain a physician’s
order to not resuscitate R64. P. Br. at 9.

However, even if I accept all of those facts as true, due to Petitioner’s inactions R64 was
technically a full code resident, and the form R64’s guardian signed, without the required
11

physician’s order, was not valid according to Petitioner’s own policy. Moreover, the
facility’s advanced directive policy similarly stated that “all residents without a physician
signed DNR will be treated as Full Code until signed by a physician.” CMS Ex. 14 at 2.
The facility staff simply did not take the necessary steps at the time the guardian
informed the admissions staff of those wishes. To attempt to later comply with the
guardian’s true wishes at the moment when R64 showed no vital signs was too late and
illustrates the need for Petitioner to follow its policies in order to avoid the unnecessary
confusion occurring at the time of this emergency.

4. The undisputed evidence establishes that Petitioner did not provide
necessary care and services to R64 when Petitioner did not initiate
CPR immediately to a full code resident in accordance with AHA
Guidelines, the accepted professional standards of care.

The Board has recognized AHA Guidelines as the accepted standard of professional care
in situations where a nurse finds a resident with no vital signs under 42 C.F. R. § 483.25.
Woodland Oaks Healthcare Facility, DAB No. 2355, at 15-16 (2010); Lakeridge Villa
Healthcare Ctr., DAB No. 2396, at 7-13 (2011); John J. Kane Reg’! Ctr.-Glen Hazel,
DAB No. 2068, at 10-18 (2007). AHA guidelines on CPR state that potential rescuers
should immediately provide CPR unless: (1) there is a DNR order; (2) there are signs of
irreversible death, such as rigor mortis, decapitation, decomposition, or dependent
lividity; (3) no physiological benefit can be expected because vital signs have
deteriorated despite maximal therapy (e.g., progressive septic or cardiogenic shock); or
(4) an attempt to perform CPR would put the rescuer at risk for physical injury. CMS Ex.
21 at 17; CMS Ex. 20 at 3,97. Petitioner does not claim that any of the AHA exceptions
to providing CPR were applicable in this case, and the contemporaneous nursing records
do not indicate that nursing assessed R64 for possible excepted signs such as rigor mortis
or dependent lividity.

The surveyor asserts, and Petitioner does not dispute, that nurses are trained in AHA
Guidelines. Even if a resident exhibits signs of death, the caregiver still has a duty to
provide CPR because one of the goals of CPR, according to AHA Guidelines, is the
reversal of clinical death even though the outcome is achieved in only a minority of
cases. John J. Kane Reg’! Ctr.-Glen Hazel, DAB No. 2068, at 17. AHA Guidelines state
that basic life support training directs that potential rescuers immediately start CPR for a
resident without a valid DNR order or other properly signed advanced directive because
any delay dramatically reduces the chances of survival. CMS Ex. 21 at 17.

The DON’s disciplinary report concerning Nurse 1, sent to the Ohio Board of Nursing,
reports that four nurses knew about R64’s full code status, and none of them initiated
CPR until a fifth nurse initiated CPR at 4:35 p.m., 20-30 minutes after Nurse |
discovered R64 without vital signs. CMS Ex. 10 at 12. The standard of practice does not
allow a nurse discretion to decide not to perform CPR on a full code resident. CMS Ex.
12

20 at 3-4, 9 8; see Lakeridge Villa, DAB No. 2396, at 19. The facility’s root cause
analysis states that an interview with Nurse 1 revealed that “she was in fact aware that
she should have verified the code status immediately upon finding [R64] without vital
signs and initiated CPR as per nursing standards of practice.” CMS Ex. 16 at 1.

5. Petitioner was responsible for its employee’s actions as
a matter of law.

Petitioner acknowledged its employee’s noncompliance when it terminated Nurse | on
October 29, 2013 for “failure to perform CPR on a full code resident” and “falsification
of documents.” CMS Ex. 11 at 1; see also CMS Ex. 10-at 7-8. The disciplinary report
Petitioner sent to the Ohio Board of Nursing concerning Nurse | (CMS Ex. 10 at 12) and
the root cause investigation that determined that the failure to provide timely CPR to R64
was a “deficient practice” also highlight nursing staff’s noncompliance. CMS Ex. 16 at
1.

Petitioner argues, however, that it cannot be held liable for the actions of Nurse 1, an
employee with 17 years of experience, who had received appropriate training from the
facility and who had an unblemished work record while the facility employed her. P. Br.
at 12-13. Petitioner asserts that it did the required background checks on Nurse 1, it
adequately supervised Nurse 1, and Nurse | successfully completed a course entitled
“CPR/AED for the Professional Rescuer and the Healthcare Provider Challenge.” P. Br.
at 4, 13; P. Ex. 2 at 83.

For purposes of summary judgment, I will assume all of these assertions are true.
Despite Petitioner’s assertions regarding the vigilance of its screening, training, and
supervision, a facility is accountable for the actions of its staff because it is those actions
which comprise the care the residents receive. A “facility acts through its staff, and is
correspondingly responsible for their actions as employees.” Royal Manor, DAB No.
1990, at 12 (2005). Employees are the agents of their employers, “empowered to make
and carry out daily care decisions.” Emerald Oaks, DAB No. 1800, at 7 n.3 (2001). The
fact that Petitioner investigated and then terminated the offending employee does not
insulate it from a finding of noncompliance. Sunshine Haven Lordsburg, DAB No. 2456,
at 16-17 (2012); Franklin Care Ctr., DAB No. 1900, at 8 n.4 (2003). When an employee
errs, that error must be evaluated as if committed by the facility itself. See Life Care Ctr.
of Gwinnett, DAB No. 2240, at 13 n.9 (2009).

13

C. The undisputed evidence establishes that Petitioner was not in substantial
compliance with 42 C.F.R. § 483.15(g)(1) because Petitioner ’s social services
director failed to comply with Petitioner’s policy and ensure that R64’s code
status documentation was completed.

A facility must provide medically related social services to attain or maintain the highest
practicable physical, mental, and psychosocial well-being for each resident. 42 C.F.R.

§ 483.15(g). The facility’s code status policy assigns the duty to follow-up on code status
to both the nursing staff and the social services director. The code status policy states
that, “[t]he admitting nurse will discuss options with the resident and or his/her
responsible party. ... All Full Code or code status not addressed upon admission will be
followed up by the Unit manager, D.O.N., or charge nurse the following day. ... Failure
to address code status upon admission will result in disciplinary action.” CMS Ex. 14 at
1.

The facility’s social service director’s notes for September 11, 2013 state that R64’s
guardian reported that R64 was a DNR, “however, [zero] paperwork or DNR consent
[was completed]. [R64] will remain a full code at [the facility] until DNRCC &
DNRCCA is explained & one or the other is chosen.” CMS Ex. 13 at 48. The social
services director, who was also the admitting nurse, told the surveyor that she told R64’s
guardian to go to the nurse’s station to complete the DNR form and have a physician sign
it. She reportedly further explained to the family member that R64 would be considered
full code until the proper paperwork had been completed. CMS Ex. 12 at 8. However it
is undisputed that the social services director never followed up with the family when she
did not get a properly signed DNR form. As stated in the facility’s root cause analysis,
R64’s “code status was not followed up on by the social services designee... . [and
consequently] the Resuscitate/Do Not Resuscitate [the status form] was removed from
the admission paperwork.” CMS Ex. 16 at 1. The social services director’s
noncompliance with the policy to follow up on R64’s DNR status ultimately deprived the
resident and his guardian of the choice to not have resuscitation efforts when staff found
him without vital signs.

D. The undisputed evidence establishes that Petitioner was not in substantial
compliance with 42 C.F.R. § 483.75(1)(1) because Petitioner ’s medical
records included inaccurate documentation.

A facility must maintain clinical records that are complete and accurately documented in
accordance with professional standards. 42 C.F.R. § 483.75(1)(1). Nurse 1’s nursing
notes indicated the wrong date (October 28 instead of October 27) and falsified records to
make it look like CPR was initiated immediately to R64. Specifically, Nurse 1’s nursing
notes stated that at 4:15 p.m. R64’s vital signs ceased and that CPR was immediately
started when Petitioner’s investigation actually established that Nurse 5 started CPR at
4:35 p.m. CMS Ex. 13 at 41; CMS Ex. 10 at 7; CMS Ex. 12 at 8. The DON reported
14

Nurse 1’s falsification to the Ohio Board of Nursing and “falsification of documents” was
one of the grounds for terminating Nurse 1. CMS Ex. 10 at 12, CMS Ex. 11 at 1.
Petitioner agrees that the DON reviewed R64’s medical records and found that the nurse
had incorrectly documented the relevant events. P. Br. at 5; P Ex. 2 at 15.

Petitioner asserts that it kept records in accordance with state law, took corrective action
by auditing files on resident code status, self-reporting the incident within 24 hours, and
terminating Nurse 1. P. Br. at 5,9-12. For purposes of summary judgment I accept all
those facts as true. However, it is undisputed that Petitioner terminated Nurse 1, in part,
because of falsification of documents, and Petitioner sent a disciplinary report about
Nurse | to the Ohio Board of Nursing for inaccurate documentation, which is sufficient
to sustain the deficiency here.

E. The undisputed evidence establishes that CMS’s determination of
immediate jeopardy was not clearly erroneous.

The state agency and CMS assert that Petitioner’s noncompliance with the quality of care
deficiency constituted immediate jeopardy for two days from October 27, 2013 through
October 28, 2013. “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. The regulation does not require that a resident actually be harmed. See
Lakeport Skilled Nursing Ctr., DAB No. 2435, at 8 (2012). An immediate jeopardy
determination must be upheld unless it is “clearly erroneous.” 42 C.F.R. § 498.60(c).
The Board directs that the “clearly erroneous” standard imposes a heavy burden on
facilities to overcome and has sustained determinations of immediate jeopardy where
CMS presented evidence “from which ‘[o]ne could reasonably conclude’ that immediate
jeopardy exists.” See Barbourville Nursing Home, DAB No. 1962, at 11 (2005) (citing
Florence Park Care Ctr., DAB No. 1931, at 27-28 (2004)).

Petitioner argues that CMS could only sustain its burden of proof by showing that Nurse
1’s delay in administering CPR was “more probable than not” the cause of R64’s death.
P. Br. at 14. However, there is no requirement that a resident actually suffer harm for an
immediate jeopardy determination. CMS’s determination is not clearly erroneous here
because the undisputed evidence establishes several nurses on Petitioner’s staff did not
immediately initiate CPR to a full code resident despite the multiple requirements to do
so, and any delay in initiating CPR dramatically reduces chances of survival. See CMS
Ex. 21 at 17 (2010 American Heart Association Guidelines for Cardiopulmonary
Resuscitation and Emergency Cardiovascular Care Science).

In a similar case, the Board affirmed a $4550 per day CMP as reasonable when it was
imposed for the immediate jeopardy level noncompliance involving the failure to perform
CPR and characterized it as a “basic life-saving procedure.” Brian Ctr. Health &
Rehab./Goldsboro, DAB No. 2336, at 13 (2010).
15

The facility’s burden of demonstrating clear error in CMS’s immediate jeopardy
determination “extends to overcoming CMS’s determination as to how long the
noncompliance remained at the immediate jeopardy level.” Azalea Court, DAB No.
2352, at 17 (2010), citing Brian Ctr. Health & Rehab/Goldsboro, DAB No. 2336, at 7.
As the Board concluded in Brian Ctr., “[a] determination by CMS that a [facility’s]
ongoing [noncompliance] remains at the level of immediate jeopardy during a given
period constitutes a determination about the ‘level of noncompliance’ and, therefore, is
subject to the clearly erroneous standard of review under section 498.60(c)(2).” Brian
Ctr. at 7-8. The Board has also concluded that “[t]he burden is on the facility to show
that it timely completed the implementation of [its] plan [of correction] and in fact abated
the jeopardy (to reduce the applicable CMP range) or achieved substantial compliance (to
end the application of remedies).” Lake Mary Healthcare, DAB No. 2081, at 29 (2007),
citing, e.g., Spring Meadows Health Care Ctr., DAB No. 1966; see also Brian Ctr. at 9;
Azalea Court at 21 (both citing Lake Mary).

Petitioner argues it should not be subject to immediate jeopardy determinations for two
days when it has taken corrective action to resolve any allegations of immediate jeopardy
within 24 hours. P. Br. at 15-16. For purposes of summary judgment, I will assume
Petitioner abated the immediate jeopardy causes within 24 hours. Nevertheless, it is
undisputed that Petitioner’s corrective actions spread out over both October 27 and 28,
2013, which is enough to sustain CMS’s determination for the duration including both
dates. P. Br. at 15-16.

F. The undisputed evidence establishes the CMPs that CMS imposed are
reasonable in amount and duration.

CMS must consider several factors when determining the amount of a CMP, which an
ALJ considers de novo when evaluating the reasonableness of the CMP that CMS
imposed: (1) the facility’s history of noncompliance; (2) the facility’s financial
condition, i.e., its ability to pay the CMP; (3) the severity and scope of the
noncompliance, the “relationship of the one deficiency to other deficiencies resulting in
noncompliance,” and the facility’s prior history of noncompliance; and (4) the facility’s
degree of culpability, which includes neglect, indifference, or disregard for resident care,
comfort or safety. 42 C.F.R. §§ 488.438(f), 488.404(b), (c).

A CMP that is imposed against a facility on a per day basis will fall into one of two
ranges of penalties. 42 C.F.R. §§ 488.408, 488.438. The upper range of a CMP, $3,050
per day to $10,000 per day, is reserved for deficiencies that pose immediate jeopardy to
the health and safety of a facility’s residents and, in some circumstances, for repeated
deficiencies. 42 C.F.R. § 488.438(a)(1)(i),(d)(2). The lower range of CMP,

$50 to $3,000 per day, is reserved for deficiencies that do not pose immediate jeopardy,
but either cause actual harm to residents, or cause no actual harm but have the potential
16

for causing more than minimal harm. 42 C.F.R. § 488.438(a)(1)(ii). In assessing the
reasonableness of a CMP amount, an ALJ looks at the per day amount, rather than the
total accrual. Kenton Healthcare, LLC, DAB No. 2186, at 28 (2008). The regulations
leave the decision regarding the choice of remedy to CMS and the amount of the remedy
to CMS and the ALJ, requiring only that the regulatory factors at 42 C.F.R. §§ 488.438(f)
and 488.404 be considered when determining the amount of a CMP within a particular
range. 42 C.F.R. §§ 488.408 (g)(2), 498.3(d)(11); see also 42 C.F.R. § 488.438(e)(2);
Alexandria Place, DAB No. 2245, at 27; Kenton Healthcare, LLC, DAB No. 2186, at 28-
29. Unless a facility contends that a particular regulatory factor does not support the
CMP amount that CMS imposed, the ALJ must sustain it. Coquina Ctr., DAB No. 1860,
at 32 (2002).

Petitioner has the burden to introduce evidence or argument challenging the specific
regulatory factors for determining the reasonableness of the CMP amount. Ridgecrest
Healthcare Ctr., DAB No. 2493, at 12 (2013), quoting The Windsor House, DAB No.
1942, at 62 (2004). Moreover, there is “a presumption that CMS has considered the
regulatory factors” in setting the amount of the CMP “and that those factors support” the
CMP amount CMS imposed. Id. at 13, quoting Coquina Ctr., DAB No. 1860, at 32
(2002).

Here, Petitioner does not come forward with evidence challenging any regulatory factor
or that it came into substantial compliance earlier that November 21, 2013. Petitioner’s
plan of correction stated that its DON would conduct an in-service on November 20,
2013 on how to address code status upon admission, how to find code status documents
in the medical record, falsification of medical records, and revised policies. CMS Ex. 5,
at 2,6, 16. Petitioner did not complete this training until November 20, 2014. CMS Ex.
16 at 23-26. The plan of correction also stated that Petitioner’s unit managers completed
the verification of all resident code statuses with the residents, or their responsible
parties, by November 21, 2013. CMS Ex. 5 at 6; CMS Ex. 16 at 19-22.

IV. Conclusion

I grant CMS’s motion for summary judgment finding the undisputed evidence established
that Petitioner was not in compliance with Medicare requirements and that CMS’s
determination of immediate jeopardy to residents’ health and safety was not clearly
erroneous. Petitioner has not come forward with any evidence to successfully challenge
17

the deficiencies or the reasonableness of the CMP that CMS imposed, and Petitioner must
pay the $11,400 total penalty.

/s/
Joseph Grow
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Heritage Hills Living & Rehabilitation Center,
(CCN: 37-5317),

Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-13-233
Decision No. CR4255

Date: September 25, 2015

DECISION

In this case, we consider once again a long-term care facility’s obligation to protect its
residents from the abusive behaviors of other residents.

Petitioner, Heritage Hills Living & Rehabilitation Center, is a long-term care facility,
located in McAlester, Oklahoma, that participates in the Medicare program. Based on a
survey completed August 24, 2012, the Centers for Medicare & Medicaid Services
(CMS) determined that the facility was not in substantial compliance with Medicare
program requirements and that its deficiencies posed immediate jeopardy to resident
health and safety. CMS imposed civil money penalties (CMPs) of $10,000 per day for
one day of immediate jeopardy, followed by $300 per day for 34 days of substantial
noncompliance that was not immediate jeopardy.

Petitioner concedes that it was not in substantial compliance but challenges the
deficiencies cited at the immediate jeopardy level (42 C.F.R. §§ 483.13(b) and(c)), the
immediate jeopardy determination itself, and the amount of the CMP imposed for the one
day of immediate jeopardy.
For the reasons set forth below, I find that, on August 23, 2012, the facility was not in
substantial compliance with 42 C.F.R. §§ 483.13(b) and (c), that its deficiencies posed
immediate jeopardy to resident health and safety, and that the penalty imposed is
reasonable.

Background

The Social Security Act (Act) sets forth requirements for 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 complaint investigation survey on August 24, 2012. Based on their findings,
CMS determined that the facility was not in substantial compliance with multiple
program requirements, specifically:

e 42C FR. §§ 483.13(b) and 483.13(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);'

e 42C FR. § 483.13(c) (Tag F226 — policies to prohibit abuse and neglect) at
scope and severity level L (widespread noncompliance that posed immediate
jeopardy to resident health and safety);

e 42C FR. § 483.15(h)(2) (Tag F253 — quality of life: housekeeping and
maintenance services) at scope and severity level E (pattern of noncompliance that
caused no actual harm with the potential for more than minimal harm);

' Petitioner has not appealed most of the deficiencies cited. This list highlights, in bold,
those that are the subject of this appeal.
e 42C FR. § 483.15(h)(6) (Tag F257 — quality of life: comfortable and safe
temperature levels) at scope and severity level E;

e 42C FR. § 483.20(g) — Gj) (Tag F278 — resident assessment:
accuracy/coordination/certification) at scope and severity level E;

e 42C FR. §§ 483.20(k)(2); 483.10(d)(3) (Tag F280 — resident assessment:
comprehensive care plans; and resident rights: free choice) at scope and severity
level E?

e 42C FR. § 483.25 (Tag F309 — quality of care) at scope and severity level E;

e 42 CFR. § 483.25(d) (Tag F315 — quality of care: urinary incontinence) at scope
and severity level E;

e 42C FR. § 483.25(h) (Tag F323 — quality of care: accident prevention) at scope
and severity level E;

e 42CFR. § 483.25(1) (Tag F329 — quality of care: unnecessary drugs) at scope
and severity level E;

e 42CFR. § 483.35(i) (Tag F371 — dietary services: sanitary conditions) at scope
and severity level E;

e 42CFR. § 483.40(b) (Tag F386 — physician services: physician visits) at scope
and severity level E;

e 42C FR. § 483.60(c) (Tag F428 —pharmacy services: drug regimen review) at
scope and severity level E;

e 42CFR. § 483.65 (Tag F441 — infection control) at scope and severity level E;

e 42CFR. § 483.70(f) (Tag F463 — physical environment: resident call system) at
scope and severity level D (isolated instance of noncompliance that caused no
actual harm with the potential for more than minimal harm);

Although the survey report form correctly describes the regulatory requirements, it
misnumbers the subparagraphs. CMS Ex. | at 43.
e 42C FR. § 483.75 (Tag F490 — administration) at scope and severity level F
(widespread noncompliance that caused no actual harm with the potential for more
than minimal harm);

e 42C FR. § 483.75 (1)(1) (Tag F514 — administration: clinical records) at scope
and severity level E.

CMS Ex. 12

Surveyors revisited the facility on October 8. Based on their findings, CMS determined
that the facility returned to substantial compliance on September 27, 2012. CMS Ex. 7 at
2.

CMS imposed against the facility CMPs of $10,000 per day for one day of immediate
jeopardy (August 23, 2012) and $300 per day for 34 days of substantial noncompliance
that was not immediate jeopardy (August 24 through September 26), for a total penalty of
$20,200. CMS Ex. 7 at 2.

Petitioner timely requested review, challenging the deficiencies cited at the immediate
jeopardy level — 42 C.F.R. §§ 483.13(b), 483.13(c), and 483.13(c)(1)(i). Petitioner also
challenges the immediate jeopardy determination itself and the amount of the CMP
imposed for its one day of immediate jeopardy.*

The parties agree that this matter may be decided based on their written submissions,
without an in-person hearing. Unopposed Motion to Stay Proceedings and Request for
Briefing Schedule (November 1, 2013); Order Cancelling Hearing and Establishing
Briefing Schedule (November 4, 2013).

> Citing CMS’s October 19, 2012 notice letter, CMS includes among its list of
deficiencies: noncompliance with 42 C.F.R. §§ 483.10(b)(11) (Tag F157); 483.35 (c)
(Tag F363); and 483.35(d)(1)-(2) (Tag F364). CMS Opening Br. at 19, citing CMS Ex. 7
at 1. However, the survey report form did not mention these deficiencies. CMS Ex. 1.

* The facility also sought informal dispute resolution (IDR) through the state process.
42 CFR. § 488.331. Apparently, the IDR panel amended the surveyors’ recommended
scope and severity findings for tags F223 (42 C.F.R. § 483.13(b) and (c)(1)(i)) and F226
(42 C.F.R. § 483.13(c)), among others. The IDR panel lowered the scope and severity
findings from immediate jeopardy to scope and severity level E. CMS explicitly rejected
the IDR determination. CMS Ex. 25 at 5-7 (McElroy Decl. §8). Petitioner argues that
CMS had no authority to do so. In fact, it is well-settled that CMS ultimately determines
whether a facility is in substantial compliance and whether immediate jeopardy exists.
Act §§ 1819(h)(1)(2); Britthaven of Chapel Hill, DAB No. 2284, at 7-9 (2009).
The parties filed pre-hearing briefs (CMS Pre-hrg. Br.; P. Pre-hrg. Br.). CMS
subsequently filed what it titles an opening brief (CMS Br.). Petitioner filed a response
(P. Response) and CMS filed a Reply (CMS Reply).° I admitted into evidence CMS
Exhibits (Exs.) 1-25 and P. Exs. 1-11. Summary of Prehearing Conference and Order
Establishing Procedure for Hearing at 2 (Aug. 22, 2013).

Issues

Based on the uncontested issues, the facility was not in substantial compliance with
Medicare program requirements from August 24 through September 26, 2012, and the
$300 per day penalty for 34 days of substantial noncompliance (total: $10,200) is
reasonable. The remaining 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);

2. If,on August 23, 2012, the facility was not in substantial compliance with
42 CFR. §§ 483.13(b) and (c), did those deficiencies pose immediate jeopardy to
resident health and safety; and

3. Ifthe facility was not in substantial compliance with 42 C.F.R. § 483.13(b) and
(c), is the penalty imposed — $10,000 for one day — reasonable.

Discussion

1. The facility was not in substantial compliance with 42 C.F.R. §§ 483.13(b)
and (c) because its staff allowed one of its residents to abuse other residents
as well as facility staff. Staff did not follow the facility’s policies and
procedures for preventing abuse and failed to implement the interventions set
forth in the resident’s care plan for addressing his abusive behaviors.°

> CMS, apparently inadvertently, filed its reply four days late. Counsel was ill and lost
track of the deadline. Petitioner objected to the late filing and asked that I sanction CMS
by not considering the contents of its tardy submission. I find good cause for the late
filing and no prejudice to Petitioner, so I decline to sanction CMS. Moreover, my
decision would remain the same, whether or not I considered the contents of CMS’s
reply.

6 My findings of fact and conclusions of law are set forth, in bold and italics, as captions
in the discussion section of this decision.
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 5 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).

Facility policies. The facility had written policies and procedures for preventing abuse,
and those policies generally reflect program requirements. They adopt the regulatory
definition of abuse (§ 488.301) and define verbal abuse as “oral, written, or gestured
language,” including disparaging and derogatory terms aimed at residents, regardless of
the victim’s age, ability to comprehend, or disability. Examples include threats of harm
or “saying things to frighten” the resident. The policies define mental abuse as including
“humiliation, intimidation, harassment, threats of punishment, or deprivation.” CMS Ex.
20 at 1.

Consistent with the regulations, the policies aim to protect facility residents from all
abuse, including verbal and mental abuse: residents “are to be protected from any abuse
by anyone,” including other residents. According to the policy, any facility employee
who becomes aware of any abuse must immediately report the matter to the facility
administrator. The administrator, in turn, must report the ‘allegations and incidents of
resident abuse” to the state agency. CMS Ex. 20 at 1.

Elsewhere, the policies direct staff to report immediately to the charge nurse, director of
nursing (DON), or administrator all allegations of abuse or neglect. CMS Ex. 20 at 8. If
reported to the charge nurse, she must immediately notify the facility administrator and
DON. The facility must promptly investigate all such complaints. The charge nurse,
DON and/or administrator must immediately assess the resident victim for signs of harm,
and staff must immediately notify the resident’s physician and responsible party. CMS
Ex. 20 at 2,4. The administrator must, within 24 hours, report to the state agency, by
telephone, all alleged violations. CMS Ex. 20 at 6. As soon as an incident report is
completed by the administrator, the facility must submit it to the state agency; it must be
submitted no later than 5 days after the incident occurs. CMS Ex. 20 at 6.
The policy also mandates that, during the investigation, the facility protect its residents
from further harm. Among other interventions for preventing resident conflicts, the
facility must keep the involved residents away from each other, and all staff should
monitor them. CMS Ex. 20 at 6.

Resident 13’s (R13’s) aggressive behavior and the facility’s response. The challenged
deficiencies here revolve around the facility’s response to the behavior of one of its
residents, R13. R13 was a 55-year-old man, admitted to the facility in November 2011.
He suffered from uncontrolled diabetes, renal failure, hypertension, and hyperlipidemia.
His left leg had been amputated above the knee because of complications from his
diabetes. P. Ex. 3; CMS Ex. 16. Although capable of standing and some walking (with a
prosthesis), he generally navigated the facility by means of a wheelchair. CMS Ex. 16 at
5.

Shortly after his admission, R13 began to display aggressive and abusive behaviors
toward residents and staff. As the following list of incidents establishes, facility staff
repeatedly disregarded both the facility policies for addressing abuse and the Medicare
requirements. Early on, the facility amended R13’s care plan to address his abusive
behaviors, but staff did not follow those instructions. When his abuse continued, they did
not attempt to find ways to help him control himself. Specifically:

¢ On December 14,2011, R13 made “inappropriate remarks” to female staff, which
made them uncomfortable. To address this problem, his care plan directed staff to
counsel him about how his remarks make them feel. If that did not change his
behavior, they were to notify his physician and request a psychiatric evaluation.
The plan also called for an older or a male nurse aide to assist with his care. CMS
Ex. 16 at 10.

e On January 28, 2012, R13 was wheeling himself around the facility and became
“verbally aggressive” with residents and staff, threatening physical violence.
When a nurse intervened, he rose from his wheelchair, stood about a foot in front
of her with his hands out, and threatened to knock her down. She told him to calm
down. He sat back down, stared at her for a while, and left. CMS Ex. 16 at 17;
see CMS Ex. 16 at 13.

Staff prepared an incident report, which indicates that they notified R13’s
physician of the incident. But they did not ask for a psychiatric evaluation and
they did not revisit his care plan. Although the facility administrator signed the
report, his signature is not dated so I cannot tell when he learned of the incident.
No one reported the incident to the appropriate state officials. They did not
investigate. The resident victims of R13’s aggression are not identified, and no
evidence suggests that staff made any effort to assess the impact R13’s threats had
on them.
On March 15, 2012, a facility visitor approached the nurses to report that two
male residents were in the lobby “fixin’ to fight.” The nurse observed R13 in his
wheelchair with his fists clenched, threatening another male resident. The nurses
removed the second resident from the area and attempted to calm R13. But he
continued to threaten them until one of the nurses called the police. While
awaiting their arrival, a nurse monitored R13’s whereabouts, according to the
nurse’s note. R13 eventually calmed down and spoke to the three policemen who
responded to the facility’s call. After they left, he told the nurses that “it would
take more than [three policemen]” to stop him. The nurse again spoke to him
about his behavior, and he denied that he would hit any of the residents. CMS Ex.
16 at 15; P. Ex. 8 at 1-3 (Scott Decl. §§ 4,8, 9, 12, 13, 16, 17).

Licensed Practical Nurse (LPN) Barbara Scott was the charge nurse on duty
during this incident. In a written declaration, she claims that the threatened
resident suffers from dementia and was not even aware that R13 was upset with
him. Even if true — and I see no evidence that anyone assessed the victim — the
victim’s ability to comprehend does not make the conduct any less abusive, as
reflected in the facility’s written policies. CMS Ex. 20 at 1.

LPN Scott also claims that she was not afraid of R13 because he made no
advances and that she called the police solely because “when [R13] saw a police
officer, he would instantly calm down.” P. Ex. 8 at 2 (Scott Decl. #10, 11). Ido
not find this credible. Bringing three policemen (who are neither psychiatrists nor
any other type of healthcare professional) into a long-term care facility is an
extreme measure, not an appropriate response to an inconsequential and non-
frightening incident. Obviously, R13’s care plan did not instruct staff to call the
police in order to control his behavior. Indeed, if I believed that R13’s
interdisciplinary team considered this an appropriate intervention (which I do not),
I would consider that a very serious problem.

Facility staff did not notify R13’s physician, request a psychiatric evaluation,
modify R13’s care plan, report, or investigate the incident. That the facility
administrator was not aware of an incident requiring police intervention also
suggests a significant breakdown in reporting and violates facility policies and the
Medicare regulations. CMS Ex. 20 at 1, 8; 42 C.F.R. § 483.13(c)(2).

During the evening of March 29, one of the female nurse aides was giving R13

his shower when he repeatedly slapped his genitals against her. She attempted to
redirect him, without success. She tried to leave the shower room, but he blocked
her exit. Eventually, she was able to slip around him and get away. She reported
the incident to the LPN on duty, who spoke to R13 about his “inappropriate
behaviors” that made the nurse aide “feel very uncomfortable [and] upset.” He
told the nurse that he wouldn’t do it again. CMS Ex. 16 at 16; P. Ex. 8 at 3 (Scott
Decl. §§ 18, 25).

The victim of R13’s aggression submitted no testimony. Instead, Petitioner
supplies a written declaration from LPN Scott, who did not witness the incident
but wrote the above-described nurse’s note. CMS Ex. 16 at 16. In contrast to that
March 29 note, she now attempts to minimize, if not justify, R13’s behavior. In
her written declaration, she concedes that R13 “tried to touch a certified nurse aide
inappropriately and his genitals were hitting her buttocks when she tried to redirect
him.” P. Ex. 8 at 3 (Scott Decl. § 18). But then she suggests that the genital
contact might not have been intentional, that the nurse aide did not express
concern, and was able to remove herself from the shower. P. Ex. 8 at 3-4 (Scott
Decl. §§ 23, 24, 29). Contrast this with LPN Scott’s contemporaneous note, in
which she wrote that R13 “repeatedly tried to touch [the nurse aide]
inappropriately”; that he “slapped his penis against her buttocks after she had
attempted to re-direct him several [times]”; and that “he was blocking her from
exiting the shower room” until “finally she was able to move enough around him
to get out”; and he made the nurse aide “feel very uncomfortable and upset.”
CMS Ex. 16 at 16. I find LPN Scott’s contemporaneous note more reliable than
her after-the-fact and potentially self-serving declaration. See Woodland Oaks
Healthcare Facility, DAB No. 2355, at 7-9 (2010) (finding that the ALJ properly
assigned greater weight to contemporaneous nursing notes than to after-the-fact
descriptions), and citing United States v. McCoy, 242 F.3d 399, 408 n.15 (D.C.
Cir. 2001) (rejecting the proposition that a court cannot resolve credibility dispute
without directly observing the witnesses’ demeanor).

This was a very disturbing incident. Yet, facility staff did not notify R13’s
physician, request a psychiatric evaluation, modify R13’s care plan, report, or
investigate.

On April 5, 2012, one of the women residents reported that R13 was making her
sick with his vulgar remarks. In order to avoid him, she said, she would no longer
go outside but would retreat to her room if he tried to talk to her. The LPN spoke
to R13, asking that he not discuss with other residents “private, intimate matters”
because it made them uncomfortable. CMS Ex. 16 at 16. Months later, the victim
of R13’s remarks complained to one of the state surveyors about R13’s vulgarities.
Visibly upset and crying, she told the surveyor that the incident had greatly upset
her and that she tried to stay away from R13. CMS Ex. 19 at 3; CMS Ex. 23 at 5,
6 (Cox Decl.).
10

On April 8, R13 was apparently at it again. A visibly upset woman resident
complained that R13 “was saying very sexually vulgar things” to her and “had to
be stopped.” The nurse then spoke to R13 about the accusations, and he denied
them. The nurse then suggested that he stay away from the complainant’s side of
the facility so that she could not make accusations. He said that it was a good idea
and went to his room. CMS Ex. 16 at 19.

A care plan entry dated April 10, 2012, indicates that R13 had been frequenting
the hall in the wing that housed women. One of those women complained that she
felt uncomfortable with him there. The entry also notes that, while being
showered, he hit a nurse aide’s leg with his genitals. According to the entry, staff
told R13 that he should not go down the women residents’ hall or be inappropriate
with female staff. CMS Ex. 16 at 10.

With respect to the April 5 and 8 episodes, Petitioner maintains that they involved the
same resident/victim and suggests, simultaneously, that: 1) this woman is too easily
upset by the most trivial matters; and 2) although she did not like his vulgar language, she
was not really upset at all and continued to talk and smoke with R13. P. Response at 6;
P. Ex. 9 at 1-2 (McCracken Decl. §§ 5,6, 8, 10, 11, 14). By any objective standard,
R13’s remarks were abusive; the facility’s contemporaneous documents establish that the
victim was upset by his remarks; and months later (as the surveyors discovered and
Petitioner concedes) the incident was still upsetting to her.

Again, facility staff did not notify R13’s physician, request a psychiatric evaluation,
modify R13’s care plan, report, or investigate.

On May 16, 2012, R13 was threatening to kick another resident. He told the LPN
that the other resident had been kicking the door, “so I told him I was gonna kick
him!” The LPN told him that he could not threaten another resident for any
reason, but he continued to maintain that he would kick or hit the other resident if
he wanted to. He hit the sofa several times with his fist, insisting that he could
knock out anybody he wanted to knock out. The LPN advised him to report to
staff any disturbing incidents, “but he continued to speak aggressively.” He was
apparently so aggressive that the LPN called the police. R13 told her he was “not
scared of no cop even if they got a gun.” Staff separated the residents while they
waited for the police. After the police arrived, R13 denied making any threats and
seemed to calm down, although he told the officers that he could knock someone
out. CMS Ex. 16 at 19-20; P. Ex. 8 at 4-5 (Scott Decl. §§ 36, 37, 38, 43).

The nurse prepared an incident report, which indicates that staff attempted to
contact R13’s physician, leaving a message. I saw no evidence that they
successfully consulted him, however. The report is incomplete in that it does not
mention the police. In describing steps taken, it says only “removed [resident]

11

from situation, redirected.” CMS Ex. 16 at 12. The report is signed by the DON
and the facility administrator, but their signatures are not dated so I can’t tell when
they were notified of the incident.

A care plan entry, dated May 16, 2012, confirms that R13 threatened another
resident with bodily harm and was removed from the situation. Staff told him that
he should report to staff members when he becomes agitated, rather than
threatening other residents. According to the care plan entry, the resident agreed.
CMS Ex. 16 at 10.

Again, even though she doesn’t claim that anyone assessed him, LPN Scott now
maintains that, because the victim of R13’s threats is demented, he did not even
know that R13 was upset with him. P. Ex. 8 at 5 (Scott Decl. §§ 39, 40). She
admits that she called the police but maintains that she did so only because it
would calm R13 down. P. Ex. 8 at 5 (Scott Decl. Jf 45, 46). As discussed above,
calling in the police is not an appropriate intervention for addressing a resident’s
chronic behavior problems. Neither facility policy nor R13’s care plan suggested
that staff should do so as a means of controlling the resident’s outbursts.

A nursing note reports that, on July 23, 2012, the LPN overheard “loud, angry
conversation” in one of the halls. She observed R13 yelling because another
resident, a confused woman, had entered his room and picked up his possessions.
The LPN told the “very irate” R13 to put up a barrier or shut his door to prevent
the confused resident from entering his room again. R13 calmed down.
According to the nurse’s note, the doctor was notified. CMS Ex. 16 at 21; see
CMS Ex. 16 at 14; P. Ex. 8 at 5-6 (Scott Decl. §§ 48, 52). No evidence suggests
that staff sought a psychiatric consult, or that they reported or investigated the
incident. The facility administrator did not sign the incident report, which
suggests that he did not review it and may not have been notified.

A July 23 care plan entry describes the incident but suggests no additional
interventions. CMS Ex. 16 at 11.

According to LPN Scott, she wrote the notes describing this incident. P. Ex. Ex. 8
at 5 (Scott Decl. § 48). Again, she maintains that the victim of R13’s outburst is
demented and did not know that R13 was upset with her, although she points to no
evidence that anyone assessed the victim. Even if true, that does not relieve the
facility of its obligation to protect the demented resident from abuse and to assist
R13 in effectively controlling his own behavior. P. Ex. 8 at 5-6 (Scott Decl. §§ 49,
50).
12

e Atone a.m. on July 24, 2012, R13 entered the facility lobby, yelling, “If in the
morning I am missing anything, I am gonna use these (fist) to fix the problems.”
He then began hitting his left hand with his right fist “over and over.” He
threatened an individual by name. The nurse told him to go back to his room and
go to bed. But two hours later, he was sitting in the doorway of his room, hitting

is left hand with his right “over [and] over.” CMS Ex. 16 at 23. Spending two

ate-night/early-morning hours in a doorway, making the same threatening gesture,
is not healthy behavior. Yet, facility staff did not report it to R13’s physician,
request a psychiatric consult, or even mention it in the resident’s care plan.

e The surveyors were in the facility on August 20, 2012. During dinner, they and
acility staff observed an outburst in the dining room. R13 was yelling and
threatening a confused resident who sat at a table across from his. The victim of
his attack had apparently not approached R13, but had been talking to himself. A
nurse tried, unsuccessfully, to calm R13. R13 stood, doubled up his fists, and told
her that he could handle her as well. Staff called the facility administrator, who
came to the dining room. R13 again stood, doubled up his fists, and threatened the
administrator. R13 eventually calmed down and ate his meal. CMS Ex. 16 at 25;
CMS Ex. 23 at 5, 6.

No incident report was prepared. CMS Ex. 8 at 13. R13’s physician was not
notified.

The facility continues to argue that no harm was done because the object of R13’s
rant was demented and did not understand that R13 was upset with him. P. Ex. 4
at 2 (Flocks Decl. § 9). I see no evidence of an assessment; moreover, the facility
was obligated to protect its demented residents from the abusive conduct of others.

Thus, overwhelming evidence establishes that, shortly after his admission, R13 began to
engage in threatening and potentially dangerous behaviors — he sexually assaulted a nurse
aide and held her in the shower room against her will; he threatened and menaced
residents and staff; he made sexually explicit and disturbing remarks to at least one
woman resident. Yet, staff ignored his care plan and the facility’s policies for addressing
his behaviors. In Petitioner’s view, because R13 eventually calmed down — even if that
required police intervention — they were not obliged to investigate, report, or try different
strategies that might prevent recurrence of the abusive conduct.

Petitioner also suggests that R13 could not control his own behavior, so his actions were
not “willful” and cannot be considered abuse. This argument fails for several reasons.
First, R13 was unquestionably a troubled man engaging in behaviors that were dangerous
to himself as well as others. But he had no psychiatric diagnosis, and Petitioner cites no
13

evidence to establish that he was unable to control himself or could not have learned to
control himself. Indeed, the facility’s interventions — limited as they might have been —
were premised on the presumption that he could control his behaviors.

Second, without regard to the state of R13’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 County Nursing Home, DAB No. 2424, at 5
(2011); Cf. Singing River Rehab & Nursing Ctr, DAB No. 2232, at 13 (2009) (suggesting
that, so long as a mentally ill resident did not act “by accident,” his conduct was abusive).

Third, 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. § 48313(c); CMS Ex. 20 at 1,2, 4, 6.

Petitioner submits a statement from R13’s physician, claiming, generally, that he was
“well aware” of R13’s behavior and did not “observe any change in behavior that would
have required chemical restraints... .” P. Ex. 6 at 1 (Chacko Decl. § 3, 4). This
statement does not establish that the facility complied with regulations governing abuse.
First, I reject any suggestion that the facility’s only option was to chemically restrain
R13. R13 might have benefitted from medication (which would not necessarily have
constituted a restraint) or he might have benefitted from one of a multitude of other
interventions. But the facility made no effort to find out.

Moreover, the physician does not describe the specific behavior of which he was “well
aware.” Based on the records, staff seldom reported the incidents to him. CMS Ex. 16 at
21. They rarely prepared incident reports. The evidence, or lack of it, suggests that the
physician was not aware of the extent of R13’s behavioral problems, and, if he were
aware but declined to address the problem, he was not doing his job.

In any event, the facility was still required to keep its residents free from abuse.

42 CFR. § 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 and Mary Lutheran Services, DAB No. 2147, at 12-13 (2008) (finding
substantial noncompliance with section 483.13(c) where facility staff failed to implement
‘acility policies and procedures to prevent resident-to-resident abuse). Because the
acility 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).

14

2. CMS’s determination that the facility’s substantial noncompliance with
42 C.F R. §§ 483.13(b) and (c) 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
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).

Petitioner argues that R13 “never caused or was likely to cause serious injury, harm,
impairment, or death to any resident.” P. Response at 1-2. He did not strike another
resident and, according to Petitioner, he “never verbally abused another resident.”

P. Response at 2. This latter claim is plainly incorrect. By the facility’s own definition,
gestures, as well as oral statements, can constitute verbal abuse, and verbal abuse
includes threats of harm or “saying things to frighten” another resident. Intimidation,
harassment, and threats of punishment constitute mental abuse. CMS Ex. 20 at 1.

As noted in the discussion above, R13 repeatedly threatened other residents (and staff)
with physical violence; he yelled at them; he raised his fists to them; he stood out of his
chair and menaced them. CMS Ex. 16 at 17 (January 28, 2012); CMS Ex. 16 at 15
(March 15, 2012); CMS Ex. 16 at 19-20 (May 16, 2012); CMS Ex. 16 at 21 (July 23,
2012); CMS Ex. 16 at 23 (July 24, 2012); CMS Ex. 16 at 25 (August 20, 2012). He
sexually assaulted a nurse aide. CMS Ex. 16 at 16 (March 29, 2012). He repeatedly
sexually harassed women staff and at least one resident. CMS Ex. 16 at 10 (December
14, 2011); CMS Ex. 16 at 16 (April 5, 2012); CMS Ex. 16 at 19 (April 8, 2012). On at
least two occasions, his behavior was so threatening that staff called the police. CMS Ex.
16 at 15, 19-20.

Most of the residents who had been the objects of R13’s outbursts and threats were
confused and could not be interviewed, but the surveyors asked other residents about
R13’s behavior. The resident who complained about his sexually explicit remarks was
plainly and seriously affected and so were others. They said that they were aware of
R13’s behaviors, and they avoided him. CMS Ex. 23 at 5 (Cox Decl.). The facility is
their home; they should not have to retreat to their rooms or avoid going where they want
to go in order to avoid abusive outbursts.

15

Based on all of this, I find that the facility’s noncompliance caused serious harm and
“was likely to cause” even more serious harm. CMS’s determination that the facility’s
noncompliance posed immediate jeopardy to resident health and safety is therefore not
clearly erroneous.

3. The one-day $10,000 penalty is reasonable.

To determine whether the CMPs are reasonable, I apply 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.

I consider whether the evidence 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 of the above factors. I am 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 Ctr., 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. 1638, at 8 (1999).

Here, CMS imposed a penalty of $10,000 per day for one day of immediate jeopardy,
which is at the top of the range for a per day CMP ($3,050-$10,000) but is extremely
modest considering what CMS might have imposed. 42 C.F.R. §§ 488.408(e)(1)(iii);
488 .438(a)(1)(i). After all, the evidence suggests that, from as early as December 14,
2011, facility staff were aware of R13’s behavior issues but failed to follow their own
policies (and federal regulations) for preventing abuse. See Plum City Care Ctr., DAB
No. 2272, at 18-19 (2009) (observing that even a $10,000 per-instance CMP can be “a
modest penalty when compared to what CMS might have imposed.”); CMS Ex. 25 at 8
(McElroy Decl. § 9) (pointing out that, had CMS imposed the minimum penalty of
$3,050 per day for all the days that the facility failed to implement its anti-abuse policies,
the penalty would have been $637,450 by August 24, 2012).

The facility has an abysmal compliance history. Its deficiencies have repeatedly posed
immediate jeopardy to resident health and safety. Specifically:

e During the survey immediately prior to this one, completed October 12, 2011, it
was not in substantial compliance with 42 C.F.R. § 483.35(i) (Tag F371 — dietary
services: sanitary conditions) at scope and severity level K. The facility did not
16

subsequently maintain substantial compliance with this requirement because it was
again not in substantial compliance with section 483.35(i) during this survey,
albeit at a lower level of scope and severity (level E);

e For the survey completed August 11,2010, the facility was not in substantial
compliance with 42 C.F.R. § 483.10(b)(11) (Tag F157 — notification of changes)
at scope and severity level K;

e Forasurvey completed February 23, 2010, the facility was not in substantial
compliance with 42 C.F.R. § 483.25 (Tag F309 — quality of care) at scope and
severity level K. The facility repeated this deficiency during this survey, although
at scope and severity level E;

e On January 24, 2009, the facility was also not in substantial compliance with
42 CFR. § 483.25 (Tag F309) at scope and severity level K;

¢ On January 21, 2009, the facility was not in substantial compliance with 42 C.F.R.
§ 483.25 (Tag F309) at scope and severity level G (isolated instance of
noncompliance that caused actual harm that was not immediate jeopardy);

e For the survey completed May 15, 2007, the facility was not in substantial
compliance with 42 C.F.R. § 483.25 (h) (Tag F323 — quality of care: accident
prevention) at scope and severity level K. Again, the facility was not in
substantial compliance with this requirement during this survey, with the
deficiency cited at scope and severity level E.

CMS Ex. 25 at 8-9 (McElroy Decl. § 9). Thus, the facility’s history, by itself, justifies a
very significant penalty.

Petitioner does not claim that its financial condition affects its ability to pay this
relatively modest CMP, and CMS points out that the total penalty here represents just
1.02% of the facility’s annual gross Medicaid revenues.

With respect to the remaining factors, not only was the facility not in substantial
compliance with sections 483.13(b) and (c), it was not in substantial compliance with 15
additional program requirements, several of which were repeat deficiencies. CMS Ex. 7
at 2. Once it determined that the immediate jeopardy was removed, CMS imposed a very
low per day penalty, just $300, but the sheer number of violations, including repeat
violations, could have justified a significant greater amount.

Moreover, the immediate jeopardy-level violations evidence wide-spread disregard for
the R13’s well-being as well as that of the other facility residents, particularly those least
able to defend themselves, the demented. From the facility administration on down, staff
17

members repeatedly disregarded facility policies; they declined to investigate and report
incidents of abuse; they did not try to find and implement workable interventions to help
R13; they did not adequately protect residents from R13’s outbursts. The facility is
culpable for these failings.

For these reasons, I find that the CMP is reasonable.
Conclusion

The parties agree that, from August 24 through September 26, 2012, the facility was not
in substantial compliance with Medicare participation requirements. I find that, on
August 23, 2012, it was not in substantial compliance with 42 C.F.R. §§ 483.13(b) and
(c) and that those deficiencies posed immediate jeopardy to resident health and safety.
The penalties imposed — $10,000 per day for one day of immediate jeopardy and $300
per day for 34 days of substantial noncompliance that was not immediate jeopardy — are
reasonable.

/s/
Carolyn Cozad Hughes
Administrative Law Judge