Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Heather Hill Nursing Home
(CCN: 10-5343),

Petitioner
Vv.
Centers for Medicare and Medicaid Services.
Docket No. C-08-764
Decision No. CR2298

Date: December 23, 2010

DECISION

Petitioner, Heather Hill Nursing Home, was not in substantial compliance with Medicare
participation requirements from June 29, 2008 through August 25, 2008. A civil money
penalty (CMP) of $6,550 per day, effective June 29, 2008 through July 31, 2008, is a
reasonable enforcement remedy. A CMP of $200 per day, effective August 1, 2008
through August 25, 2008, and a denial of payment for new admissions (DPNA) from July
31, 2008 through August 25, 2008, are also reasonable.

I. Background

Petitioner is located in New Port Richey, Florida, and is authorized to participate in
Medicare as a skilled nursing facility (SNF) and in the Florida Medicaid program as a
nursing facility (NF). The Florida Agency for Health Care Administration (state agency)
surveyed Petitioner on July 11, 2008 and August 1, 2008, and concluded that Petitioner
was not in substantial compliance with program participation requirements. Joint
Stipulation of Facts and Issues filed December 16, 2008 (Jt. Stip.). A second revisit
survey found that Petitioner returned to substantial compliance with program
participation requirements on August 26, 2008. Centers for Medicare and Medicaid
Services (CMS) Exhibits (CMS Exs.) 38, 39.

CMS notified Petitioner by letter dated July 29, 2008, that it was imposing the following
enforcement remedies based upon the findings of the July 11, 2008 survey: a CMP of
$6,550 per day, effective July 11, 2008, continuing until immediate jeopardy was
removed or Petitioner’s provider agreement was terminated; a discretionary DPNA,
effective July 31, 2008, continuing until Petitioner returned to substantial compliance or
its provider agreement was terminated; and termination of Petitioner’s provider
agreement on August 3, 2008, if immediate jeopardy was not removed by that date. CMS
also advised Petitioner that it could not be approved to conduct a Nurse Aide Training
and Competency Evaluation Program (NATCEP) for two years due to the enforcement
remedies imposed and the fact that an extended or partial extended survey was
conducted.' CMS Ex. 7. CMS notified Petitioner by letter dated August 21, 2008, that:
the CMP began accruing at the rate of $6,550 per day on June 29, 2008, rather than July
11, 2008, and continued to accrue through July 31, 2008 when immediate jeopardy was
abated; effective August 1, 2008, the CMP was reduced to $200 per day and woul
continue to accrue until Petitioner returned to substantial compliance; the DPNA that
began July 31, 2008 would continue in effect until Petitioner returned to substantia!
compliance; and discretionary termination on August 3, 2008 was changed to mandatory
termination on January 11, 2009, if Petitioner did not return to substantial compliance
before that date. CMS Ex. 34. CMS notified Petitioner by letter dated September 19,
2008, that: a revisit survey found that Petitioner returned to substantial compliance
effective August 26, 2008; the DPNA was in effect from July 31, 2008 through August
25, 2008; and Petitioner’s provider agreement would remain in effect. CMS Ex. 39.

Petitioner requested a hearing before an administrative law judge (ALJ) on September 23,
2008. The case was assigned to me for hearing and decision on October 2, 2008. A
hearing was convened in this case on June 16 and 17, 2009, in Tampa, Florida. CMS
offered, and I admitted, CMS Exs. 1 through 40. Tr. at 20. Petitioner offered, and I
admitted, Petitioner’s exhibits (P. Exs.) 1 through 16 and 18 through 23. Tr. at 36. CMS
called the following witnesses: Lorraine Marking, a former state agency surveyor;
JoAnne Pumphrey, a former state agency surveyor; and Joseph Schuler, a fire protection
specialist with the state agency. Petitioner called the following witnesses: Richard
Dannenmiller, a building contractor; Laura Siekert, a nurse consultant to Petitioner;
Maria Owens-Wicker, a former administrator for Petitioner; and Stephen French, an
environmental consultant. The parties submitted post-hearing briefs (CMS Br. and P.
Br.) and post-hearing response briefs (CMS Reply and P. Reply).

' Petitioner did not have a NATCEP at the time of the survey. Transcript (Tr.) at 12.
IL. Discussion
A. Issues
The issues in this case are:
Whether there is a basis to impose an enforcement remedy; and
Whether the enforcement remedies proposed are reasonable.
B. Applicable Law

The statutory and regulatory requirements for participation by a long-term care facility
are found at sections 1819 (SNF) and 1919 (NF) of the Social Security Act (Act) and at
42 C.F.R. Part 483. Section 1819(h)(2) of the Act vests the Secretary of Health and
Human Services (Secretary) with authority to impose enforcement remedies against a
SNF for failure to comply substantially with the federal participation requirements
established by sections 1819(b), (c), and (d) of the Act.? Pursuant to section
1819(h)(2)(C), the Secretary may continue Medicare payments to a SNF not longer than
six months after the date the facility is first found not in compliance with participation
requirements. Pursuant to section 1819(h)(2)(D), if a SNF does not return to compliance
with participation requirements within three months, the Secretary must deny payment
for all individuals admitted to the facility after that date — commonly referred to as the
mandatory or statutory DPNA. In addition to the authority to terminate a noncompliant
SNF’s participation in Medicare, the Act grants the Secretary authority to impose other
enforcement remedies, including a discretionary DPNA, CMPs, appointment of
temporary management, and other remedies, such as a directed plan of correction. Act §
1819(h)(2)(B).

The Secretary has delegated to CMS and the states the authority to impose remedies
against a long-term care facility that is not complying substantially with federal
participation requirements. “Substantial compliance means a level of compliance with

> References are to the 2007 revision of the Code of Federal Regulations (C.F.R.) in
effect at the time of the survey, unless otherwise indicated.

> Section 1919(h)(2) of the Act gives similar enforcement authority to the states to
ensure that NFs comply with their participation requirements established by sections
1919(b), (c), and (d) of the Act.
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 (emphasis in original). A deficiency is a violation of a participation
requirement established by sections 1819(b), (c), and (d) of the Act or the Secretary’s
regulations at 42 C.F.R. Part 483, Subpart B. State survey agencies survey facilities that
participate in Medicare on behalf of CMS to determine whether the facilities are
complying with federal participation requirements. 42 C.F.R. §§ 488.10-.28, 488.300-
.335. The regulations specify the enforcement remedies that CMS may impose if a
facility is not in substantial compliance with Medicare requirements. 42 C.F.R. §
488.406.

The regulations specify that 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 a facility’s residents and, in some circumstances, for repeated
deficiencies. 42 C.F.R. § 488.438(a)(1)(i), (d)(2). “Immediate jeopardy means 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 (emphasis in original). The lower range of a CMP,
$50 per day to $3,000 per day, is reserved for deficiencies that do not constitute
immediate jeopardy but either cause actual harm to residents, or cause no actual harm but
have the potential for causing more than minimal harm. 42 C.F.R. § 488.438(a)(1)(ii).

Petitioner was notified in this case that the state agency could not approve Petitioner to
conduct a NATCEP for a period of two years following the surveys. Pursuant to sections
1819(b)(5) and 1919(b)(5) of the Act, SNFs and NFs may only use nurse aides who have
completed a training and competency evaluation program. Sections 1819(e) and 1919(e)
of the Act impose upon the states the requirement to specify what NATCEPs they will
approve that meet the requirements that the Secretary established and a process for
reviewing and re-approving those programs using criteria that the Secretary set. Pursuant
to sections 1819(f)(2) and 1919(f)(2), the Secretary was tasked to develop requirements
for approval of NATCEPs and the process for review of those programs. The Secretary
promulgated regulations at 42 C.F.R. Part 483, subpart D. Pursuant to 42 C.F.R. §
483.151(b)(2) and (e)(1), a state may not approve and must withdraw any prior approval
of a NATCEP offered by a skilled nursing facility or nursing facility that has been: (1)
subject to an extended or partial extended survey under sections 1819(g)(2)(B)(i) or
1919(g)(2)(B)(i) of the Act; (2) assessed a CMP of not less than $5,000; or (3) subject to
termination of its participation agreement, a DPNA, or the appointment of temporary
management. Extended and partial extended surveys are triggered by a finding of
“substandard quality of care” during a standard or abbreviated standard survey and
involve evaluating additional participation requirements. “Substandard quality of care” is
identified by the situation where surveyors identify one or more deficiencies related to
participation requirements established by 42 C.F.R. § 483.13 (Resident Behavior and
Facility Practices), § 483.15 (Quality of Life), or § 483.25 (Quality of Care) that are
found to constitute either immediate jeopardy, a pattern of or widespread actual harm that
does not amount to immediate jeopardy, or a widespread potential for more than minimal
harm that does not amount to immediate jeopardy and there is no actual harm. 42 C.F.R.
§ 488.301.

The Act and regulations make a hearing before an ALJ available to a long-term care
facility against which CMS has determined to impose an enforcement remedy. Act §§
1128A(c)(2), 1866(h); 42 C.F.R. §§ 488.408(g), 498.3(b)(13). The hearing before an
ALJ is a de novo proceeding. Residence at Salem Woods, DAB No. 2052 (2006); Cal
Turner Extended Care Pavilion, DAB No. 2030 (2006); Beechwood Sanitarium, DAB
No. 1906 (2004); Emerald Oaks, DAB No. 1800, at 11 (2001); Anesthesiologists
Affiliated, DAB CR65 (1990), aff'd, 941 F.2d 678 (8th Cir. 1991). A facility has a right
to appeal a “certification of noncompliance leading to an enforcement remedy.” 42
C.F.R. § 488.408(g)(1); 42 C.F.R. §§ 488.330(e), 498.3. However, the choice of
remedies or the factors that CMS considered when choosing remedies are not subject to
review. 42 C.F.R. § 488.408(g)(2). A facility may only challenge the scope and severity
level of noncompliance that CMS determined if a successful challenge would affect the
range of the CMP that may be imposed or impact the facility’s authority to conduct a
NATCEP. 42 C.F.R. §§ 498.3(b)(14), (d)(10)(). The CMS determination as to the level
of noncompliance, including the finding of immediate jeopardy, “must be upheld unless it
is clearly erroneous.” 42 C.F.R. § 498.60(c)(2). Woodstock Care Ctr., DAB No. 1726, at
9, 38 (2000), aff'd, 363 F.3d 583 (6th Cir. 2003). The Departmental Appeals Board (the
Board) has long held that the net effect of the regulations is that a provider has no right to
challenge the scope and severity level assigned to a noncompliance finding, except in the
situation where that finding was the basis for an immediate jeopardy determination. See,
e.g., Ridge Terrace, DAB No. 1834 (2002); Koester Pavilion, DAB No. 1750 (2000).
ALJ Review of a CMP is subject to 42 C.F.R. § 488.438(e).

The standard of proof or quantum of evidence required is a preponderance of the
evidence. CMS has the burden of coming forward with the evidence and making a prima
facie showing of a basis for imposition of an enforcement remedy. Petitioner bears the
burden of persuasion to show by a preponderance of the evidence that it was in
substantial compliance with participation requirements or any affirmative defense.
Batavia Nursing and Convalescent Inn, DAB No. 1911 (2004); Batavia Nursing and
Convalescent Ctr., DAB No. 1904 (2004), aff'd, Batavia Nursing and Convalescent Ctr.
v. Thompson, 129 F. App’x 181 (6th Cir. 2005); Emerald Oaks, DAB No. 1800; Cross
Creek Health Care Ctr., DAB No. 1665 (1998); see Hillman Rehab. Ctr., DAB No. 1611
(1997), aff'd, No. 98-3789, 1999 WL 34813783 (D.N.J. May 13, 1999).

C. Findings of Fact, Conclusions of Law, and Analysis

My conclusions of law are set forth in bold text followed by my findings of fact and
analysis.

CMS alleges based upon the survey that ended July 11, 2008, that Petitioner was not in
substantial compliance with program participation requirements due to the following
regulatory violations: 42 C.F.R. §§ 483.10(e) (Tag F164, scope and severity (s/s) D);
483.13(a) (Tag F221, s/s G); 483.13(b) and (b)(1)(i)* (Tag F223, s/s J); 483.13(c)(1)(ii)-
(iii) and (c)(2)-(4) (Tag F225, s/s L); 483.13(c) (Tag F226, s/s L); 483.15 (Tag F240, s/s
D); 483.15(h)(2) (Tag F253, s/s J); 483.20(g)-(j) (Tag F278, s/s D); 483.20(d) and
483.20(k)(1) (Tag F279, s/s J); 483.20(k)(3)(i) (Tag F281, s/s D); 483.25(h) (Tag F323,
s/s D); 483.25(k) (Tag F328, s/s D); 483.35(i)(2) (Tag F371, s/s F); 483.60(b), (d), (e)
(Tag F431, s/s D); 483.65(a) (Tag F441, s/s F); 483.70 (Tag F454, s/s F); 483.70(c)(2)
(Tag F456, s/s D); 483.70(h)(4) (Tag F469, s/s D); and 483.75 (Tag F490, s/s L). CMS
Ex. 3. Petitioner was also surveyed on July 11, 2008, for compliance with the National
Fire Protection Association’s Life Safety Code (Life Safety Code) and found not to be in
compliance with Tags K025 (s/s D), K062 (s/s D), and K067 (s/s F), which are violations
of 42 C.F.R. § 483.70. CMS Ex. 5. A revisit survey that ended on August 1, 2008,
concluded that immediate jeopardy was abated, but Petitioner continued to be in violation
of: 42 C.F.R. §§ 483.13(b) and (c)(1)(i) (Tag F223, s/s D); 483.13(c)(1)(ii)-(iii) and
(c)(2)-(4) (Tag F225, s/s F); 483.13(c) (Tag F226, s/s F); 483.15(h)(2) (Tag F253, s/s D);
483.20(d) and (k)(1) (Tag F279, s/s D); and 483.75 (Tag F490, s/s F). CMS Ex. 33.

Petitioner requested review by an ALJ only as to the deficiency citations from the July
2008 survey that allegedly posed immediate jeopardy, Tags F223, F225, F226, F253,
F279, and F490. Petitioner did not appeal any non-immediate jeopardy tags from either
the July or August surveys. Petitioner agreed that the deficiencies not appealed provide a
sufficient basis for a CMP in the lower range of authorized CMPs. Tr. at 10-13; P. Br. at
1; P. Br., Appendix A, at 1; P. Reply at 2. Petitioner did not request review as to, and,
therefore, waived any dispute of, the violations cited by the July survey under Tags F164,
F240, F278, F281, F323, F328, F371, F431, F441, F454, F456, and F469, or that all
posed a risk for more than minimal harm without actual harm or immediate jeopardy.

* The reference to 42 C.F.R. § 483.13(b)(1)(i) is in error, as there is no such subsection.
The surveyors recite the language of 42 C.F.R. § 483.13(c)(1)(i) under Tag F223, and I
recognize that the surveyors’ reference to 42 C.F.R. § 483.13(b)(1)(i) was a clerical error.
The erroneous citation caused no prejudice to Petitioner, as the language of the correct
subsection is recited in the SOD. All references in this decision to Tag F223, as cited by
the SOD of July 11, 2008, refer to 42 C.F.R. § 483.13(b) and (c)(1)(i).
Petitioner did not request review and waived any dispute of the violation cited by the July
survey under Tag F221, or that it caused actual harm. Petitioner did not dispute the Life
Safety Code violations. Petitioner did not request review and therefore waived any
dispute of the violations cited by the August survey under Tags F223, F225, F226, F253,
F279, and F490 or that they posed a risk for more than minimal harm without actual harm
or immediate jeopardy.’ Petitioner does not dispute that these violations are an adequate
basis for the imposition of enforcement remedies for the period June 29 through August
25, 2008, specifically a CMP in the lower range up to $3,000 per day, and a DPNA from
July 31, 2008 through August 25, 2008.°

I have carefully considered all the evidence, including the documents and the testimony
at hearing, and the arguments of both parties, though not all may be specifically discussed
in this decision. I discuss in this decision the credible evidence given the greatest weight
in my decision-making.’ The fact that evidence is not specifically discussed should not
be considered sufficient to rebut the presumption that I considered all the evidence and
assigned such weight or probative value to the credible evidence that I determined
appropriate within my discretion as an ALJ. There is no requirement for me to discuss
the weight given every piece of evidence considered in this case, nor would it be
consistent with notions of judicial economy to do so.

I conclude that: (1) Petitioner violated 42 C.F.R. §§ 483.13(b) and (c) (Tags F223, F225,
and F226) and 483.75 (Tag F490); (2) Petitioner has failed to show that the declaration of

> It could be argued that Petitioner effectively waived any challenge to the violations
cited under Tags F223, F225, F226, F253, F279, and F490 by both the July and August
surveys by not specifically challenging those deficiencies as alleged by the August
survey. The same examples, conduct, and events from the July survey are cited by the
August survey as the basis for the surveyors’ conclusions that there were continuing
deficiencies under all six Tags. However, I am not willing to extend the doctrine of
waiver that far in this case, as it is clear that Petitioner intended to obtain review as to
whether or not the deficiencies were properly cited.

® Petitioner stated at hearing that it intended to show that it returned to substantial
compliance on a date earlier than that alleged by CMS. Tr. at 14. However, Petitioner
does not provide me any discussion in its briefs on that issue, and I conclude that the
issue is waived.

7 “Credible evidence” is evidence that is worthy of belief. Blacks Law Dictionary 596
(18th ed. 2004). The “weight of evidence” is the persuasiveness of some evidence
compared to other evidence. Jd. at 1625.
immediate jeopardy based on these violations was clearly erroneous; and (3) these
violations are a sufficient basis for the imposition of a CMP of $6,550 per day, effective
June 29, 2008 through July 31, 2008, and that it is, therefore, not necessary to for me to
address the alleged immediate jeopardy violations cited under Tags F253 and F279.

1. Petitioner violated 42 C.F.R. § 483.13(b) (Tag F223, s/s yF
2. Petitioner violated 42 C.F.R. § 483.13(c)(2)-(4) (Tag F225, s/s L).
3. Petitioner violated 42 C.F.R. § 483.13(c) (Tag F226, s/s L).

4. Petitioner did not show that the determination that the deficiencies
posed immediate jeopardy was clearly erroneous.

Section 1819(c)(1)(A)(ii) of the Act requires that a SNF protect its residents and promote
their “right to be free from physical or mental abuse, corporal punishment, involuntary
seclusion, and any physical or chemical restraints imposed for purposes of discipline or
convenience and not required to treat the resident’s medical symptoms.” The Act
provides that restraints may only be applied to ensure the physical safety of a restrained
resident or other residents and may only be imposed upon a written physician’s order
except in emergency circumstances specified by the Secretary. The Secretary has
provided by regulation that a “resident has the right to be free from verbal, sexual,
physical, and mental abuse, corporal punishment, and involuntary seclusion.” 42 C.F.R.
§ 483.13(b). The regulations define “abuse” to be “the willful infliction of injury,

® The SOD also alleges under Tag F223 that Petitioner violated 42 C.F.R. §
483.13(b)(1)(i) (CMS Ex. 3, at 13), which I have recognized was intended to refer to 42
C.F.R. § 483.13(c)(1)(i).. However, 42 C.F.R. § 483.13(c)(1)(i) is more appropriately
considered under Tag F226, as I have done.

° The statement of deficiencies (SOD) also alleges under Tag F225 that Petitioner
violated 42 C.F.R. § 483.13(c)(1)(ii) and (iii). Subsection 483.13(c)(1i) provides that a
facility may not employ individuals who have either been found guilty of abusing,
neglecting, or mistreating residents, or who have been listed on a state nurse aide registry
for abuse, neglect, mistreatment of residents, or misappropriation of resident property.
Subsection 483.13(c)(1)(iii) requires that a facility report to the state nurse aide registry
or licensing authority any knowledge the facility has of court actions against an employee
that indicates unfitness for service as a nurse aide or other facility staff. The SOD alleges
no facts showing a potential violation of 42 C.F.R. § 483.13(c)(1)(ii) or (iii), and I do not
discuss those subsections further.

unreasonable confinement, intimidation, or punishment with resulting physical harm,
pain or mental anguish.” 42 C.F.R. § 488.301. A facility is required to develop and
implement written policies and procedures prohibiting mistreatment, neglect, and abuse
of residents and the misappropriation of residents’ property. 42 C.F.R. § 483.13(c)

The deficiencies alleged under Tags F223, F225, and F226 are closely related, and, for
that reason, I discuss them together. The surveyors cited an example related to Resident
2 under all three deficiencies, and examples related to Residents 1, 3, and 4 under Tags
F225 and F226. After careful review of the evidence, I conclude that the examples of
Residents 2 and 3 are sufficient to show that the deficiencies existed as alleged, and I
conclude it is not necessary to discuss the examples of Residents 1 and 4 to further
illustrate the violations.

The July 11, 2008 SOD alleges that Petitioner violated 42 C.F.R. § 483.13(b) (Tag F223),
because Petitioner did not provide Resident 2 an environment free of physical abuse
and/or involuntary seclusion. The surveyors allege that staff failed to recognize an
incident of abuse of Resident 2 and failed to timely report the incident. The surveyors
cited the deficiency as an isolated event that posed immediate jeopardy. CMS Ex. 3, at
13. The surveyors allege as a violation of 42 C.F.R. § 483.13(c)(2)-(4) (Tag F225) that,
in the case of Residents 2 and 3: Petitioner failed to ensure that staff immediately
reported abuse or alleged abuse to the administrator and other officials as required by
law; Petitioner failed to have evidence to show that alleged incidents of abuse were
thoroughly investigated; and Petitioner failed to have evidence to show that during the
investigation measures were implemented to ensure no further abuse occurred. The
surveyors cited the deficiencies under Tag F225 as widespread and posing immediate
jeopardy to residents. CMS Ex. 3, at 22-23. The surveyors cited Petitioner for violation
of 42 C.F.R. § 483.13(c) (Tag F226) on the theory that the violations cited under Tags
F223 and F225 show that Petitioner failed to implement its policy and procedures
prohibiting mistreatment, neglect, abuse, and misappropriation of resident property. The
deficiency is cited as posing widespread immediate jeopardy. CMS Ex. 3, at 52-53. I
conclude that Petitioner did violate the regulations as alleged and that Petitioner has
ailed to show that the declaration of immediate jeopardy was clearly erroneous.

a. Facts

Resident 2 suffered from dementia and resided in a locked unit. Tr. at 89, 203; CMS Ex.
18, at 25, 56, 61. Her Minimum Data Set (MDS), with an assessment reference date of
May 22, 2008, assessed her as: moderately impaired with long and short term memory
deficits; totally dependent on staff for transfer and locomotion on the unit; unable to walk
in her room or the corridor; and having functional limitation in range of motion of both
ands, with associated partial loss of voluntary movement. CMS Ex. 18, at 19-22. A
wheelchair was her primary mode of locomotion, and she could wheel herself. CMS Ex.
18, at 50, 87. She was assessed as requiring a one person physical assist for locomotion

10

on or off the unit but as being self-sufficient once in her wheelchair. CMS Ex. 18, at 20-
21, 50, 87. Resident 2 exhibited repetitive verbalizations almost daily. CMS. Ex. 18, at
31, 51, 87.

It is not disputed that on June 29, 2008, at about 8:45 p.m., a certified nursing assistant
(CNA) found Resident 2 in her wheelchair with the wheelchair tied by a garbage bag to a
handrail in the hall. The wheelchair was tied in such a manner that Resident 2 could not
untie the garbage bag to free herself. Because the resident could not free her wheelchair
and could not ambulate without the wheelchair, her freedom of movement was restricted,
she was effectively restrained or confined to the location in the hall, and she was
involuntarily secluded from the rest of the population and the areas of the facility to
which she would normally wheel herself. It is not disputed that Resident 2 repeatedly
asked the CNA to help her with her chair, and the CNA then cut the garbage bag, freeing
Resident 2. The CNA asked other staff who tied Resident 2 to the handrail, and no one
confessed. However, the CNA also reported that maintenance men were in the hall doing
the floors, reflecting her suspicion that the maintenance men did it. CMS Ex. 18, at 101.

Petitioner’s Director of Nursing (DON) interviewed another CNA by telephone on July 3,
2008, at noon, and recorded that the CNA told her she saw the resident in the hall when
she went to the laundry and the resident was not tied to the railing but when she returned
ten minutes later she learned that another CNA found the resident tied to the railing.

CMS Ex. 18, at 102. There are no nurse’s notes dated June 29 or 30, or July 1 or 2, 2008
that describe the incident or the action of staff in response to the incident. CMS Ex. 18,
at 37-39. A nurse’s note entered on July 3, 2008, reflects that the resident was assessed
on June 29, 2008, and found to have no signs or symptoms of distress. CMS Ex. 18, at
39.

Petitioner admits that the CNA reported the matter to her supervisor, but the incident was
not reported to the administrator until the evening of July 2, 2008. P. Br. at 6. The DON
did not complete the investigation until July 3, 2008. The DON concluded based upon
her investigation that Resident 2 suffered no injury, though she did complain that she was
unable to move her wheelchair. She noted in her report that maintenance men were
cleaning the floor but without any allegation that they tied the resident to the handrail.
The DON also concluded that there was potential abuse. The only corrective action
noted was that the evening supervisors discussed abuse guidelines with staff. CMS Ex.
18, at 96-97.

On July 3, 2008, Petitioner’s Director of Social Services submitted the report to the state
agency as a substantiated incident of abuse without a determination as to who tied-up the
resident. The report noted that corrective actions by Petitioner included: contacting the
abuse hotline; contacting the resident’s daughter; notifying the resident’s physician; and
immediately untying the resident from the handrail. The evening supervisor RN
discussed abuse guidelines with staff on the date of the incident. CMS Ex. 18, at 99-100.
11

During a subsequent investigation by the nurse consultant, Laura Sickert, she interviewed
all staff members identified as being in the unit at the time of the incident, including the
licensed practical nurse, the two men doing the floor, and five or six CNAs. No staff
admitted to tying the resident’s chair to the railing, and Nurse Siekert could not determine
how the incident occurred. Nurse Siekert testified that Resident 2 could not have tied
herself to the handrail. She opined that Resident 2 was probably tied-up only about ten
minutes. Tr. at 203-10. There is no evidence that another resident was capable of tying
Resident 2’s wheelchair to the handrail.

Resident 3 was admitted to the facility on December 13, 2007, from a hospital where she
had been admitted for generalized weakness and falls with pain in her right hip due to a
fall. Her medical history included hypertension, anxiety, abnormal liver function tests
due to alcohol abuse, hypercholesterolemia, noncompliance with medication and follow-
up, and macular degeneration. She had a history of a right hip fracture with prosthesis

and a plate and screws. She drank four to six glasses of wine a day and smoked a pack of
cigarettes a day. CMS Ex. 19, at 10-12, 53. The resident was noted to be confused upon
admission on December 13, 2007, possibly due to alcohol withdrawal, but with no
hallucinations or delusions noted in her record. CMS Ex. 19, at 10, 12, 20.

On December 14 through 19, 2007, she was reported to be alert, responsive, and capable
of making her needs known, but sometimes confused and resistive of care. CMS Ex. 19,
at 20-26. A nurse’s note dated December 19, 2007, at 4:00 p.m., states that Resident 3
told her visiting spouse and another family member that she was raped by a male, CNA
and the husband reported the complaint to the day supervisor. The nurse’s note states
that the resident was experiencing confusion, and, for the first time, there is a statement
that the resident was suffering delusions. The note states that attempts to redirect and
reassure the resident that she was safe were not successful, and the resident did not want
a male CNA in her room. The note indicates that: the family was “spoke[n] to;” pain
management would continue; therapy would continue as ordered; the call bell was placed
in reach; side rails were put up; and the resident’s appetite was fair, when she was taken
to the dining room. CMS Ex. 19, at 27. The nurse’s note does not show that any action
was taken to address the complaint or protect the resident. In fact, nurse’s notes from
December 19, 2007 through January 15, 2008, when Resident 3 was discharged from the
facility, reflect no action by staff based upon the resident’s complaint. CMS Ex. 19, at
27-46.

However, a nurse’s note entry dated January 28, 2008, thirteen days after Resident 3’s
discharge, states that, on December 19, 2007, when Resident 3 alleged rape by a CNA,
Resident 3’s spouse told the nurse that he knew the resident’s allegation was untrue.
CMS Ex. 19, at 47. It is undisputed that no investigation of the incident was done, and no
12

report regarding the incident was made to the State. On May 5, 2008, the state agency:
completed a complaint survey of Petitioner related to Resident 3;'° and substantiated the
complaint that Petitioner had failed to prevent, investigate, and report the allegation of
abuse on December 19, 2007. However, the state agency did not cite a deficiency
“because the facility [was] in their period of correction for deficiencies related to this
allegation.” P. Ex. 23, at 3. The complaint survey discovered that the January 28, 2008
nurse’s note was written after a nurse consultant preparing for Petitioner’s annual survey
discovered the nurse’s note from December 19, 2007. The complaint survey also
confirmed that even after the discovery of the incident by the nurse consultant in January,
no action was taken to investigate or report the incident. P. Ex. 23.

Petitioner had a policy that provided that abuse would not be tolerated and made the
administrator responsible for assuring patient safety, including freedom from abuse. The
policy is in evidence. CMS Ex. 25. Though not clearly stated, I read the policy to
prohibit not only abuse in all its forms but also neglect, involuntary seclusion or
unreasonable confinement, and misappropriation of resident property. CMS Ex. 25, at
21, 26. Petitioner’s policy provided that any report to staff by a resident, family member,
another staff member, or other person would be considered possible abuse if it involved,
inter alia, unreasonable confinement, including unwanted restriction of access to all
patient areas, and any complaint of sexual assault. The policy requires that staff
observing or hearing of such events report the event immediately to the central abuse
registry, the immediate supervisor, the center social worker, the DON, and the
administrator. The supervisor is required to initiate an investigation. CMS Ex. 25, at 23,
25. The policy requires that residents be protected during the investigation and that staff
suspected of abuse must be suspended immediately pending investigation. CMS Ex. 25,
at 24-25.

b. Analysis

On June 29, 2008, at about 8:45 p.m., Resident 2 was found in the hall with her
wheelchair tied to the handrail in such a manner that she could not free herself. Because
she could not free herself and could not ambulate without her wheelchair, her freedom of
movement was restricted, i.e. she was restrained.'' There is no evidence that a physician
ordered the restraint, or that it was permissible because there was an emergency that
required imposition of the restraint to protect the resident or other residents. Because
Resident 2 could not free her wheelchair and she could not ambulate without her

'° Resident 3 was designated Resident | in the May 2008 complaint survey. P. Ex. 22.

' Petitioner agrees that there was an improper restraint of Resident 2. P. Br. at 7-8.
13

wheelchair, she was effectively confined to the location in the hall, and she was
involuntarily segregated from the remainder of the facility and residents. Petitioner
concluded after its investigation that the incident constituted abuse, a conclusion with
which I agree.

Although the evidence shows that the incident of abuse was reported by the CNA to her
supervisor on June 29, 2008, the evidence does not show that the incident was reported
by the supervisor to the abuse registry, the social worker, the DON, or the administrator.
The evidence shows that no immediate investigation other than the questioning of other
staff by the CNA was conducted, as the DON was first advised on July 2, 2008, and the
investigation was not initiated until July 3, 2008. The evidence does not show that any
action was taken to protect Resident 2 from further abuse either before or during the
investigation.'’? Based upon the evidence, I conclude that there is a prima facie showing
of a violation of 42 C.F.R. § 483.13(b) (Tag F223),'* because Resident 2 was abused and
subjected to involuntary seclusion and improper restraint by being prevented from
moving freely about the locked ward in which she resided. I also conclude that there is a
prima facie showing of a violation of 42 C.F.R. § 483.13(c)(2) and (3) (Tag F225),
because Petitioner failed to ensure the alleged violation was immediately reported to the
administrator and to other officials; in addition, there is no evidence that Petitioner took
action to protect Resident 2 from further abuse before and during the investigation. I also
conclude that there is a prima facie showing of a violation of 42 C.F.R. § 483.13(c), as
the undisputed facts show that Petitioner’s staff did not follow or apply Petitioner’s
policy and procedures when the CNA recognized that abuse had occurred (Tag F226).

I would not normally accept a single failure to follow a policy or procedure as sufficient
to establish a prima facie showing under this regulation that the policy or procedure was
not implemented. However, in the case of Resident 2, the evidence shows that there was
a failure to follow the requirements of Petitioner’s policy and procedures in multiple
respects, at least until July 3, 2008. Even after the investigation was initiated on July 3,
2008, the evidence does not show that Resident 2 was protected from further abuse.

"2 Petitioner presents no evidence to show, and makes no specific argument, that action
was taken to protect Resident 2 from further abuse during the investigation and fails to
even allege that it was in compliance with the requirement of 42 C.F.R. § 483.13(c)(3).

8 There is also a violation of section 1819(c)(1)(A)(ii) of the Act, which requires that a
SNF protect and promote the right of a resident to be free of physical abuse, mental
abuse, physical and chemical restraints (except as ordered by a physician to treat medical
symptoms or for the protection of residents), involuntary seclusion, and corporal
punishment.
14

Furthermore, the incident in December 2007, involving Resident 3, when there was a
complete failure to follow Petitioner’s policy and procedures, also supports my
conclusion that the policy and procedures were not actually implemented to the extent
that staff complied with their provisions.

The surveyors do not allege the example of Resident 3 under Tag F223, and I make no
findings or conclusions that Resident 3 was raped on December 19, 2007. The surveyors
do cite the example of Resident 3 in support of the allegation that Petitioner was not in
substantial compliance with 42 C.F.R. § 483.13(c)(2), (3), and (4) (Tags F225 and F226).
I note that there is no requirement in law, and Petitioner cites no authority for a
requirement, that a resident must actually suffer abuse or that Petitioner be charged with
failure to prevent abuse to trigger the requirements of 42 C.F.R. § 483.13(c)(2), (3), and
(4), or Petitioner’s policy.

Indeed, the law and Petitioner’s policy and procedures are consistent in that they require
immediate action when there is alleged abuse. Neither the law nor Petitioner’ policy and
procedures give Petitioner or its staff the discretion to determine whether or not to act
based upon their view of whether an allegation is true or not. The regulation requires that
“all alleged violations” be immediately reported to the administrator and that they be
investigated and reported. 42 C.F.R. § 483.13(c)(2), (3), and (4). Petitioner’s policy is
even more specific than the statute or regulations in that it requires that staff treat as
possible abuse any event that fits within a list in the policy, including unreasonab
confinement or restriction or any complaint of sexual assault. Petitioner’s policy
specifies that “[s]taff observing or hearing about [possible abuse] will report the event
immediately to the central abuse registry. . . . the immediate supervisor, center social
worker, Director of Nursing, or Administrator.” CMS Ex. 25, at 23. I conclude that the
evidence related to Resident 3 does amount to a prima facie showing that Petitioner
violated 42 C.F.R. § 483.13(c)(2), (3), and (4) (Tag F225), because: Petitioner failed to
ensure that the alleged sexual assault by a staff member was immediately reported to the
administrator and to other officials; there is no evidence that Petitioner took action to
protect Resident 3 from further abuse; there is no evidence that any investigation was
conducted at the time the allegation was made; and there is no evidence that the results of
the investigation were reported to the administrator and other officials as required by law.
lL also conclude that there is a prima facie showing of a violation of 42 C.F.R. §
483.13(c), based on the example of Resident 3, as the undisputed facts show that
Petitioner’s staff did not follow or apply Petitioner’s policy and procedures to protect,
report, and investigate.

oO

Petitioner argues several theories in its defense, all of which are without merit.

Petitioner does not deny in the case of Resident 2 that, while the CNA reported the
incident to her supervisor, there was a two to three day delay before the administrator was
made aware of the incident. P. Br. at 6. Thus, Petitioner concedes the incident was not
15

immediately reported to the administrator and other officials in accordance with law and
Petitioner’s policy — all the facts necessary to conclude that Petitioner violated 42 C.F.R.
§ 483.13(c)(2). Petitioner argues that, when the administrator did receive the report,
there was immediate action to file the incident report, staff was counseled, in-service
training was conducted, and a thorough investigation was done. P. Br. at 6. Petitioner
cites no authority to support a conclusion that its violation of 42 C.F.R. § 483.13(c)(2) is
excusable because appropriate action may have been taken when the administrator finally
received notice of the incident.

Petitioner argues that tying Resident 2’s wheelchair to the handrail had the same effect as
if the brake on her wheelchair had been locked. P. Br. at 6. Whether or not using a
garbage bag to secure the wheelchair has the same effect as engaging the wheelchair
brake is not the issue. The issue is whether or not the conduct was abuse, and either act
could be abuse. Locking the brakes on the wheelchair is readily distinguished from tying
the resident’s wheelchair to the handrail. A wheelchair brake is a safety device that can
be locked to minimize or prevent unwanted or unnecessary movement of the wheelchair.
If the brake had been locked on Resident 2’s wheelchair, it would not be a simple matter
to determine whether the act was abuse, as locking the brake might have had a proper
purpose.'* It would be necessary to examine the reason the party locked the brake to
decide whether or not the act amounted to abuse.

The situation is significantly different when a garbage bag is used to tie the wheelchair to
the handrail. A garbage bag is not standard wheelchair equipment and, | infer, not a
device intended to be used to prevent wheelchair movement. The resident obviously did
not tie herself to the handrail, and, just as obviously, some other person did tie her to the
handrail. The use of the garbage bag was clearly a willful act, not due to negligence or an
accident. The willful act triggers an inference that whoever tied the chair to the handrail
intended to prevent the resident from freeing herself, which is improper restraint or
confinement that amounts to abuse. The garbage bag was probably used, because the
perpetrator did not know the resident could not release her wheelchair brake. Petitioner
presented no evidence of any lawful purpose for securing an occupied wheelchair to a
handrail. Petitioner states that tying a resident’s wheelchair to an object to prevent
tracking in fresh wax may not be unreasonable. P. Br. at 7. To the contrary, not only is it
unreasonable to treat a resident in such a manner, I conclude it is unlawful.

'4 Nurse Siekert testified that Resident 2 was incapable of operating the brake
mechanism on her wheelchair. Tr. at 239. I have no reason to doubt Nurse Siekert is
correct in this regard.
16

Petitioner argues that, because Resident 2 was tied-up across from the nurse’s station,
there was no possibility that the resident would be unseen for any extended period. P. Br.
6. Petitioner points to no authority to support a proposition that abuse may be excused or
that Petitioner has a defense to a charge of not preventing abuse, because the abuse only
lasted for a brief period. If Petitioner intends to suggest by its argument that the risk for
harm to Resident 2 was minimal due to the brief duration of the abuse, I am not
persuaded. Petitioner presented no evidence in support of an argument that the brevity of
a period of abuse minimizes that harm suffered by the one abused. Petitioner cited no
authority that recognizes such defenses.

Petitioner acknowledges that tying the resident to the handrail was not acceptable but
asserts it was not abuse. Petitioner also argues that, while the incident involving Resident
2 was treated and reported as abuse, it does not rise to that level. Petitioner’s theory is
that an act does not amount to abuse unless there is a harmful effect, and Resident 2
suffered no harmful effect. P. Br. at 7. Clearly, Resident 2 was intentionally tied to the
handrail, though the purpose for the act is not evident. The facts show that Resident 2
was repeatedly asking for assistance (CMS Ex. 18, at 101), from which I infer that she
was suffering some emotional distress due to being unable to freely move about in her
wheelchair. Emotional distress is actual harm. Petitioner has not submitted any evidence
that Resident 2 did not suffer harm. Thus, I conclude that Resident 2 suffered sufficient
harm to satisfy the regulatory definition of abuse.

Petitioner argues that even if I find abuse did occur, its only failing was the delay in
reporting to the administrator. Petitioner argues that, once the report was made, the
administrator acted appropriately. P. Br. at 7. Petitioner’s argument ignores its other
failings, as shown by the evidence that also supports my conclusion that Petitioner was
not in compliance with 42 C.F.R. § 483.13(c), including its staff's failure to comply with
Petitioner’s policy to report to the state, and its failure to take action to protect Resident 2
from further abuse during the investigation.

Petitioner argues that an isolated incident of abuse is not a “per se failure” of the facility
to comply with the requirements of 42 C.F.R. § 483.13(b). Petitioner argues that the
issue is not whether an act of abuse occurred but whether there was a deliberate or
negligent failure by the facility to protect the resident from abuse. Petitioner argues that
CMS made no showing that Petitioner either deliberately or negligently failed to protect
Resident 2 from abuse. P. Br. at 7-8. Petitioner’s logic is faulty.

CMS made a prima facie showing that Resident 2 was abused while the resident was in
Petitioner’s facility and in Petitioner’s care. The evidence also shows that Petitioner
failed to implement its policy to prevent abuse; thus no other failing by Petitioner need be
shown. The totality of the evidence related to the incidents involving both Resident 2 and
3 shows that Petitioner’s staff was not well-trained to either recognize potential abuse or
to act appropriately to an allegation of abuse or actual abuse. I need not resolve whether
17

Petitioner’s failings were either deliberate or negligent or whether the abuse of Residents
2 or 3 was foreseeable or not.

Petitioner argues that an investigation was informally conducted, when the incident
occurred. P. Br. at 9. Petitioner apparently refers to the questioning of staff by the CNA,
after she discovered Resident 2 tied to the handrail. The informal questioning of staff by
the CNA (CMS Ex. 18, at 101) was not the investigation by supervisory staff required by
Petitioner’s policy. CMS Ex. 25, at 24. Furthermore, the inquiries by the CNA were not
documented and retained as evidence of a thorough investigation as required by 42
C.F.R. § 483.13(c)(3). Petitioner asserts that there was no likelihood of any harm to
Resident 2, or any other resident, but points to no evidence to support that assertion. P.
Br. at 9. Petitioner presented no evidence of interventions to protect Resident 2 from
further abuse during the investigation, and such interventions are specifically required by
42 CFR. § 483.13(c)(3).

The incident involving Resident 3 occurred more than six months prior to the incident
involving Resident 2. A nurse’s note dated December 19, 2007, at 4:00 p.m., states that
Resident 3 told her visiting spouse and another family member that she was raped by a
male CNA, and the husband reported the complaint to the day supervisor. The nurse’s
note states that the resident was experiencing confusion and delusions. The statement
that the resident was suffering delusions is the first and only evidence in the clinical
record that the resident was delusional. The note states that attempts to redirect and
reassure the resident that she was safe were not successful, from which I infer that the
resident was suffering some emotional distress. The note also indicates that the resident
did not want a male CNA in her room, from which I infer that the resident was fearful.

The note indicates that: the family was “‘spoke[n] to;” pain management would continue;
therapy would continue as ordered; the call bell was placed in reach; side rails were put
up; and the resident’s appetite was fair when she was taken to the dining room. The
nurse’s note, dated December 19, 2007, does not mention that the husband stated that he
believed the resident’s allegation was untrue. CMS Ex. 19, at 27. The nurse’s note entry
dated January 28, 2008, thirteen days after Resident 3’s discharge and more than a month
after the alleged rape, is the first statement that Resident 3’s spouse told the nurse that he
knew the resident’s allegation was untrue. CMS Ex. 19, at 47. It is significant that the
January 28, 2008 nurse’s note was written after a nurse consultant preparing for
Petitioner’s annual survey discovered evidence of the rape allegation and the absence of
appropriate action (P. Ex. 23, at 3), and it is clearly self-serving for Petitioner and not
credible.

Petitioner asserts that there were further discussions with the husband and that a review
of the facts, including the fact the resident was suffering hallucinations due to her mental
condition, led to a determination that the allegation was not even superficially credible,
and the husband withdrew the allegation. P. Br. at 11. Petitioner cites P. Ex. 19, the
18

deposition of Brenda Turner, as the evidence supporting its characterization of the facts.
However, Ms. Turner, an employee of the state agency, testified to reviewing Resident
3°s clinical record but she professed no recollection of what she found. P. Ex. 19, at 6.'°
Petitioner argues that the allegation of rape was immediately withdrawn and impossible
under the circumstances. P. Br. at 11; P. Reply at 4. The evidence before me does not
support Petitioner’s characterization of the facts. The evidence shows that the resident
was confused, not delusional or hallucinating, unless one accepts that the allegation of
rape is evidence of delusions or hallucinations. The contemporaneous evidence does not
show that the husband withdrew the allegation, and only the nurse’s note created weeks
later at the behest of a consultant preparing for Petitioner’s annual survey indicates that
the husband said the allegation of rape was untrue. There is no evidence that the facts
related to the allegation were investigated, except to the extent that the consultant
examined the clinical record and determined to take remedial action to address the
potential deficiency caused by failure of Petitioner to properly respond to the alleged rape
in accordance with its policy and the law.

Petitioner asserts that the rape of Resident 3 was impossible but cites no evidence to
support the assertion or explain the basis for the assertion. Even if Petitioner produced
some evidence to support its assertion that rape by a male CNA was impossible, for
example because there were no male CNAs on duty at the time, such evidence would not
tule out the possibility of rape by a male the resident confused with a CNA. But there
was no investigation, no reporting, and no interventions to protect Resident 3 during the
investigation. Rather, staff took no action based, according to Petitioner, upon the
conclusion that the resident was delusional or hallucinating. Whether or not staff may
have been correct in its conclusion that no rape occurred, the law and Petitioner’s policy
do not permit Petitioner or its staff the discretion to decide not to protect, investigate, and
report when an allegation of abuse is made. The law requires that all allegations be
investigated and reported and that the resident be protected from further abuse. 42 C.F.R.
§ 483.13(c); Singing River Rehab. & Nursing Ctr., DAB No. 2232, at 8-9 (2009); Cedar
View Good Samaritan, DAB No. 1897, at 11 (2003).

Petitioner asserts that the incident involving Resident 3 had been reviewed by the facility
consultant as part of its own quality assurance process. P. Br. at 11; P. Reply at 4.
Petitioner cites no authority, and I am aware of none, that supports an argument that
Petitioner’s failure to comply with 42 C.F.R. § 483.13(b) and (c) is excusable because the
facility engaged in a quality assurance review.

'S T recognize that Petitioner may have intended to cite CMS Ex. 19 rather than P. Ex. 19.
However, the pages of CMS Ex. 19 with the page numbers cited by Petitioner include
only the notes of the surveyors from the July 2008 survey. Those notes are no more
helpful to Petitioner than the testimony of Ms. Turner.
19

Petitioner argues that the prior complaint survey on May 5, 2008, found there was no
deficiency related to the incident involving Resident 3. P. Br. at 11. Petitioner
mischaracterizes the evidence of record. The incident involving Resident 3 occurred on
December 19, 2007. The complaint survey on May 5, 2008, considered the Resident 3
incident but did not cite Petitioner for a deficiency, not because the surveyors concluded
that Petitioner was in compliance with the requirements of 42 C.F.R. § 483.13(c) but due
to a technicality. The documents show that the survey confirmed the complaint
allegations that Petitioner failed to file a federal report, prevent abuse and neglect, and
ollow a plan of care. But, Petitioner was not cited for a deficiency under 42 C.F.R. §
483.13(c), because Petitioner was in its “period for correction.” P. Exs. 7, 22, and 23.

Petitioner argues that a revisit survey on May 21, 2008, following Petitioner’s annual
recertification survey, found that Petitioner was in substantial compliance, and, therefore,
Petitioner cannot be found not in substantial compliance based upon the alleged rape of
Resident 3. P. Br. at 11; P. Ex. 7, at 4. The state agency notice, dated May 30, 2008,
does not specifically refer to the May 5, 2008 complaint survey or violations of 42 C.F.R.
§ 483.13(b) and (c). P. Ex. 7, at 4-6. The incident involving Resident 2 occurred on June
29, 2008, approximately six months after the Resident 3 incident. The July and August
2008 surveys found that Petitioner was again not in compliance with the requirement to
implement its policy and procedures prohibiting abuse, mistreatment, neglect, and
misappropriation of resident property.

Based upon the evidence before me and the conduct of Petitioner’s staff related to both
incidents, I find it highly improbable that at any time during the intervening six month
period Petitioner fully implemented its policy or procedures prohibiting abuse. I
conclude that Petitioner was not in compliance with 42 C.F.R. § 483.13(b) and (c) from
at least December 19, 2007 until it returned to substantial compliance on August 26,
2008. I note that Petitioner did not implement its policy and procedures, despite the fact
that a nurse consultant discovered the incident involving Resident 3 during a record
review in January 2008, while preparing for Petitioner’s annual recertification survey,
and despite the fact that the noncompliance was raised to Petitioner’s attention again by
the May 5, 2008 complaint survey when Petitioner was not cited for the deficiency due to
a technicality.

Even if I accept that Petitioner was certified by the state agency to be in substantial
compliance based upon the May 21, 2008 revisit, I conclude that I am not bound by that
certification as it clearly was in error. The incident involving Resident 2 shows that
Petitioner was not in substantial compliance with the abuse prevention requirements of
the Act and 42 C.F.R. § 483.13(b) and (c) in June 2008. The allegation of rape of
Resident 3, the abuse of Resident 2, and Petitioner’s response to both incidents shows
that Petitioner was not in substantial compliance with the law in December 2007, an
there is no evidence (other than the intervening surveys) that Petitioner actually achieved
compliance with 42 C.F.R. § 483.13(b) and (c) between December 2007 and August

20

2008. I conclude that Petitioner’s argument that I cannot consider the alleged rape of
Resident 3 as evidence of continuing noncompliance from December 2007 to August 26,
2008 is without merit. However, out of an abundance of caution, I limit my assessment
of the reasonableness of the enforcement remedies to consideration of the example of
Resident 2 and consider for purposes of assessing the remedy that the example o:
Resident 3 shows a history of noncompliance with the same conditions of participation.

I also conclude that Petitioner has failed to show that the determination that the violations
of 42 C.F.R. § 483.13(b) and (c) posed immediate jeopardy to Petitioner’s residents was
clearly erroneous. I am required by regulation to uphold CMS’s determination of the
level of a petitioner’s noncompliance, unless it is “clearly erroneous.” 42 C.F.R. §
498.60. Immediate jeopardy is appropriately found when a deficiency has caused, or is
likely to cause, serious injury, harm, impairment, or death to a resident. 42 C.F.R. §
488.301. The Board has explained that a presumption exists that CMS’s determination is
correct, and a petitioner must rebut the presumption by showing the determination to be
clearly erroneous. Daughters of Miriam Ctr., DAB No. 2067 (2007); Liberty Commons
Nursing and Rehab Ctr. — Johnston, DAB No. 2031 (2006). The Board has also held that
immediate jeopardy exists under either of the following circumstances: the facility’s
noncompliance has caused death or “serious” harm to one or more residents; or the
facility’s noncompliance is or was “likely to cause” death or serious harm. Daughters of
Miriam Ctr., DAB No. 2067. Petitioner argues that it should not bear the burden of
showing that the determination of immediate jeopardy was clearly erroneous. P. Br. at
18-19. I am persuaded by the analysis of the Board in its prior cases that the regulation
establishes a presumption in favor of CMS that Petitioner must rebut by a preponderance
of the evidence. Petitioner fails to meet its burden in this case.

In this case, the surveyors allege under Tag F223 that the abuse of Resident 2 was an
isolated event. But, the surveyors allege under Tags F225 and F226 that the failure of
staff to act appropriately to an allegation of abuse in accordance with law and Petitioner’s
policy was widespread. The evidence shows that Resident 2 and Resident 3 showed
signs of emotional distress, and I am satisfied that their emotional distress amounted to
actual harm. Petitioner cannot prove the seriousness of the emotional distress suffered by
the residents as the evidence of record includes no psychiatric or psychological
evaluation of either resident following the incidents. Whether or not Resident 3 suffered
any significant physical injury also cannot be shown, as there was no investigation by
Petitioner. The CMS determination has also not been shown to be clearly erroneous, as
staffs’ failure or inability to identify possible abuse or to recognize and respond
appropriately to an allegation of abuse places all residents at risk for serious injury,
impairment, harm, or death at the hands of an abuser who would not be identified and
stopped as intended by Petitioner’s policy.

Petitioner argues that, because the deficiency cited by the July 11, 2008 survey as a
violation of 42 C.F.R. § 483.13(a) (Tag F221) (CMS Ex. 3, at 5) based upon the improper
21

restraint of Resident 2 was alleged to have resulted in actual harm to Resident 2 and not
immediate jeopardy, it shows that the abuse of Resident 2 should not be cited as posing
immediate jeopardy. P. Br. at 8. This argument seems logical at first blush but does not
bear up on closer examination. There is nothing inconsistent with the conclusion that a
single instance of improper restraint of Resident 2 did not pose immediate jeopardy,
while the failure of staff to react appropriately to an incident of abuse did pose immediate
jeopardy to Resident 2 and other residents. Whether or not a rapist was roaming the
corridors on December 19, 2007, or whether the person who tied-up Resident 2 had a
more evil intent than simply preventing the resident from tracking through the new wax,
need not be decided. It is sufficient to understand that Petitioner failed to protect its
residents’ right to be free of abuse by ensuring that its staff was prepared and qualified to
recognize possible abuse and to respond to an allegation of abuse by protecting,
investigating, and reporting in compliance with 42 C.F.R. § 483.13(c) and Petitioner’s
policy and procedures. Petitioner has not shown that its failure was not likely to result in
serious injury, harm, impairment, or death of a resident. I conclude that Petitioner has
failed to show that the determination of immediate jeopardy was clearly erroneous.

5. Petitioner violated 42 C.F.R. § 483.75 (Tag F490, s/s L).

6. Petitioner has not shown that the declaration of immediate jeopardy was
clearly erroneous.

A facility must be administered in a manner that enables it to
use its resources effectively and efficiently to attain or
maintain the highest practicable physical, mental, and
psychosocial well-being of each resident.

42 C.F.R. § 483.75. The surveyors cite several deficiencies from the survey that ended
on July 11, 2008, as the basis for the alleged violation of this regulation and the
determination that it posed immediate jeopardy. CMS Ex. 3, at 141. I conclude that the
violations of 42 C.F.R. § 483.13(b) and (c) are sufficient evidence that Petitioner failed to
administer its facility to ensure that resources were used to attain the highest practicable
well-being of its residents. The alleged rape of Resident 3 occurred in December 2007.
The evidence shows that staff did not respond appropriately to protect, report, and
investigate the alleged abuse in the manner required by Petitioner’s policy and procedures
or the regulations. The failure of staff was discovered by a consultant in January 2008,
after Resident 3 had departed the facility, but the evidence does not show that the
administrator took action to report and investigate as required by the law and Petitioner’s
policy. The complaint survey in May 2008 again unearthed the alleged rape of Resident
3, and Petitioner has not presented evidence that appropriate actions to investigate and
report were taken up to that time. In June 2008, Resident 2 was abused, and the evidence
shows that Petitioner’s staff did not react appropriately by protecting and reporting.

22

Thus, I have concluded that, from December 2007 through June 2008, Petitioner failed to
implement its policy and procedures to protect its residents from physical and mental
abuse, corporal punishment, involuntary seclusion, improper chemical or physical
restraints, neglect, and misappropriation of their property. Petitioner’s obligation to
protect its residents is both statutory and regulatory. Petitioner failed to meet its
obligation for an extended period of more than six months. I conclude that Petitioner’s
failure to protect its residents on the facts of this case amounted to a failure of
administration and a violation of 42 C.F.R. § 483.75. Petitioner has failed to show that
the determination of immediate jeopardy was clearly erroneous under the same analysis
as that for the violations of Tags F223, F225, and F226.

7. A CMP of $6,550 per day, effective June 29, 2008 through July 31, 2008, a
CMP of $200 per day, effective August 1, 2008 through August 25, 2008, and
a DPNA from July 31, 2008 through August 25, 2008, are reasonable
enforcement remedies.

I have concluded that Petitioner violated 42 C.F.R. §§ 483.13(b) and (c) and 483.75 and
that those violations posed immediate jeopardy for Petitioner’s residents. I conclude that
Petitioner was not in substantial compliance with program participation requirements
from June 29, 2008 through August 25, 2008, and there is a basis for the imposition of
enforcement remedies. Petitioner has not offered evidence that it returned to substantial
compliance prior to August 26, 2008. Ifa facility is not in substantial compliance with
program requirements, CMS has the authority to impose one or more of the enforcement
remedies listed in 42 C.F.R. § 488.406, including a CMP. CMS may impose a CMP for
each day that the facility is not in substantial compliance with program participation
requirements. 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. 42 C.F.R. § 488.438(a)(1)(i), (d)(2). The lower range of a CMP, $50 per day
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 for
causing more than minimal harm. 42 C.F.R. § 488.438(a)(1)(ii). Petitioner does not
dispute that the deficiencies for which Petitioner did not seek review are a sufficient basis
for the imposition of a CMP of $200 per day from June 29, 2008 through August 25,
2008, and a DPNA from July 31 through August 25, 2008. The issue remaining is
whether a CMP of $6,550 per day is reasonable for the period of immediate jeopardy,
June 29 through July 31, 2008. I conclude it is.

When I conclude, as I have in this case, that there is a basis for the imposition of an
enforcement remedy and the remedy proposed is a CMP, my authority to review the
reasonableness of the CMP is limited by 42 C.F.R. § 488.438(e). The limitations are: (1)
I may not set the CMP at zero or reduce it to zero; (2) I may not review the exercise of
discretion by CMS in selecting to impose a CMP; and (3) I may only consider the factors
23

specified by 42 C.F.R. § 488.438(f) when determining the reasonableness of the CMP
amount. In determining whether the amount of a CMP is reasonable, the following
factors specified at 42 C.F.R. § 488.438(f) must be considered: (1) the facility’s history
of non-compliance, including repeated deficiencies; (2) the facility’s financial condition;
(3) the seriousness of the deficiencies as set forth at 42 C.F.R. § 488.404(b), the same
factors CMS and/or the state were to consider when setting the CMP amount; and (4) the
facility’s degree of culpability, including, but not limited to, the facility’s neglect,
indifference, or disregard for resident care, comfort, and safety. The absence of
culpability is not a mitigating factor.

The factors that CMS and the State were required to consider when setting the CMP
amount and that I am required to consider when assessing the reasonableness of the
amount are set forth in 42 C.F.R. § 488.404(b): (1) whether the deficiencies caused no
actual harm but had the potential for minimal harm, no actual harm with the potential for
more than minimal harm, but not immediate jeopardy, actual harm that is not immediate
jeopardy, or immediate jeopardy to resident health and safety; and (2) whether the
deficiencies are isolated, constitute a pattern, or are widespread. My review of the
reasonableness of the CMP is de novo and based upon the evidence in the record before
me. I am not bound to defer to the CMS determination of the reasonable amount of the
CMP to impose but my authority is limited by regulation as already explained. I am to
determine whether the amount of any CMP proposed is within reasonable bounds,
considering the purpose of the Act and regulations. Emerald Oaks, DAB No. 1800, at 10
(2001); CarePlex of Silver Spring, DAB No. 1683, at 14-17 (1999); Capitol Hill Cmty.
Rehab. and Specialty Care Ctr., DAB No. 1629 (1997).

I treat the alleged rape of Resident 3 as evidence of Petitioner’s history of noncompliance
with 42 C.F.R. § 483.13(c), for reasons already discussed. Petitioner has not alleged an
inability to pay the CMP that CMS proposed in this case and has not presented evidence
of its financial condition. I consider that Petitioner’s failure to implement it policies and
procedures to protect and preserve its residents’ right to be free from abuse is an
extremely serious deficiency. The deficiency is made even more serious by the fact that
Petitioner failed to act during a period of more than six months to ensure its policy and
procedures were properly implemented, despite several events that should have alerted
Petitioner to its failure. The evidence does not show that Petitioner intentionally failed to
implement its policy and procedures, and, therefore, I conclude that it negligently failed
to do so. Thus, I consider Petitioner highly culpable. Termination of Petitioner’s
provider agreement would have been justified on the facts of this case, but CMS did not
elect to impose that remedy. Accordingly, I conclude that a CMP of $6,550, for the
period June 29, 2008 through July 31, 2008, is a reasonable enforcement remedy to
encourage Petitioner to remain in substantial compliance. I also conclude that the
undisputed remedies, a CMP of $200 per day from August | through 25, 2008 and a
DPNA effective from July 31 through August 25, 2008, are reasonable enforcement
remedies.

24

8. The allocation of the burden of persuasion does not affect the decision in
this case.

Petitioner argues that the allocation of the burden of persuasion in this case, according to
the rationale of the Board in the prior decisions cited above, violates the Administrative
Procedure Act, 5 U.S.C. § 551 et. seq., specifically 5 U.S.C. § 556(d). P. Br. at 4, 18-20.
Pursuant to the scheme for the allocation of burdens that the Board adopted in its prior
cases, CMS bears the burden to come forward with the evidence and to establish a prima
facie showing of the alleged regulatory violations in this case. If CMS makes its prima
facie showing, Petitioner has the burden of coming forward with any evidence in rebuttal
and the burden of showing by a preponderance of the evidence that it was in substantial
compliance with program participation requirements. Petitioner bears the burden to
establish by a preponderance of the evidence any affirmative defense. The allocation of
burdens that the Board suggested is not inconsistent with the requirements of 5 U.S.C. §
556(d), as CMS is required to come forward with the evidence that establishes its prima
facie case. However, the evidence is not in equipoise in this case, and the allocation of
the burden of persuasion has no impact upon my decision.

Il. Conclusion

For the foregoing reasons, I conclude that Petitioner was not in substantial compliance
with program participation requirements from June 29, 2008 through August 25, 2008.
Reasonable enforcement remedies are a CMP of $6,550 per day from June 29, 2008
through July 31, 2008, and $200 per day from August 1, 2008 through August 25, 2008,
and a DPNA from July 31, 2008 through August 25, 2008.

/s/
Keith W. Sickendick
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Longwood Health Care Center
(CCN: 10-5377),

Petitioner
Vv.
Centers for Medicare and Medicaid Services.
Docket No. C-10-688
Decision No. CR2295
Date: December 20, 2010

I sustain the determination of the Centers for Medicare and Medicaid Services (CMS) to
impose civil money penalties of $100 against Petitioner, Longwood Health Care Center,
for each day of a period that began on February 15, 2010, and that ended on March 10,
2010.
I. Background
Petitioner is a skilled nursing facility that is located in Longwood, Florida. It participates
in the Medicare program. Its Medicare participation is governed by sections 1819 and
1866 of the Social Security Act and by implementing regulations at 42 C.F.R. Parts 483
and 488.
CMS determined to impose against Petitioner the remedy that I describe in the opening
paragraph of this decision, based on findings of noncompliance that were made during a
survey of Petitioner’s facility conducted on February 15, 2010 (February Survey).
Petitioner requested a hearing, and the case was assigned to me for a hearing and a

decision.

The parties agreed to waive an in-person hearing. CMS filed a pre-hearing brief, a final
brief, and 14 proposed exhibits that I have identified and received as CMS Ex. 1 - CMS
Ex. 14.' Petitioner filed a pre-hearing brief, a final brief, and six proposed exhibits that I
have identified and received as P. Ex. 1 — P. Ex. 6.

II. Issues, Findings of Fact, and Conclusions of Law
A. Issues
The issues in this case are whether:

1. Petitioner failed to comply substantially with the requirements of 42
C.F.R. § 483.20(k)(3)(i); and

2. CMS’s remedy determination is reasonable.
B. Findings of Fact and Conclusions of Law
I make the following findings of fact and conclusions of law.

1. Petitioner failed to comply substantially with the requirements of 42
CF.R. § 483.20(k)(3)(i).

The regulation that is at issue requires a skilled nursing facility to provide services to
each of its residents that meet professional standards of quality. 42 C.F.R. §
483.20(k)(3)(i). CMS alleges that Petitioner failed to comply with this regulation in
providing care to a resident who is identified in the report of the February Survey as
Resident # 20.

On February 11, 2010, Resident # 20 was transferred from Petitioner’s facility to a local
kidney stone center to undergo invasive procedures consisting of cystoscopy and stent
removal. CMS Ex. | at 2; CMS Ex. 4 at 1. She returned to Petitioner’s facility late in the
afternoon on that same day. The discharge instructions directed Petitioner to consult with
the resident’s physician if the resident manifested excessive drainage or bleeding, an
increase in body temperature to 101 degrees Fahrenheit or more, an increase in pain not
relieved by medication, a foul drainage odor, or any difficulty with breathing. P. Ex. 2 at
3.

‘CMS submitted the “2! Declaration of Mindy Seltzer, RD” as rebuttal evidence. The
declaration was not marked. I have marked the declaration as CMS Ex. 14.

? Petitioner was unable to produce these instructions during the February survey but
produced them as part of its pre-hearing exchange.
Effectively, the discharge instructions directed Petitioner’s staff to assess Resident # 20’s
condition and to monitor the resident for signs and symptoms that might indicate post-
operative complications.* Petitioner was obligated to carry out these instructions or, if its
staff disagreed with them in any respect, to consult with the resident’s physician about
them.

Petitioner’s records are devoid of any documentation that the staff complied with the
discharge instructions. There is no documentation that the resident was assessed for pain,
discomfort, bleeding, or discharge, following her return to the facility. There are no
documents in the record discussing the possibility that the resident might experience pain
following her procedure, nor are there any documents that address the possibility that
there might be post-operative bleeding. The nurse who was responsible for the care
given to Resident # 20 upon her return to the facility admitted that an assessment should
have been done upon the resident’s return but that one was not performed. CMS Ex. 12
at 2.

CMS contends, and I agree, that this absence of documentation, coupled with the
admission of Petitioner’s nurse, is prima facie proof of a failure by Petitioner’s staff to
assess the resident’s condition and to carry out the other directives in the discharge
instructions. It was the staff’s duty to assess the resident to determine whether there
might be any problems that the staff would have to plan for and address. A skilled
nursing facility does not comply with the requirement that it provides care of professional
quality only by reacting to a resident’s complaints of pain or by waiting to see whether a
resident will encounter side effects or complications from a procedure such as the one
performed on Resident # 20.

Petitioner does not assert that its staff assessed Resident # 20’s condition or that they
planned for the possibility that the resident might experience pain or post operative
complications. Instead, it contends that the staff monitored the resident and that the
absence of any documentation showing that the resident was experiencing pain, side
effects, or complications, proves that the staff did a good job providing the resident with
care. As support for this assertion, Petitioner points to documents, such as the resident’s
Medication Administration Record (MAR), which contain no mention of complaints of
pain by the resident. According to Petitioner, the absence of documented complaints can
only mean that the resident experienced no pain.

* The discharge instructions additionally directed Petitioner’s staff to “push water” in the
resident, presumably to deal with the effects of the procedure that the resident underwent.
P. Ex. 2 at 2. The report of the February Survey did not allege that Petitioner failed to
comply with this directive, but CMS now makes this allegation. Petitioner objects, on the
ground that the allegation is made untimely and that it has not had sufficient notice to
prepare a defense to it. I find it unnecessary that I address the allegation to decide this
case.
I find this argument not to be persuasive. First, simply “monitoring” the resident — even
if Petitioner’s staff did that — is not enough to meet Petitioner’s obligations to provide
care of professionally acceptable quality. As Petitioner uses that term, “monitoring”
means observing the resident and recording either signs of problems or the resident’s
complaints. “Monitoring” in this sense does not encompass anticipating problems,
planning for them in advance, and perhaps, preventing them before they eventuate.
Monitoring without assessment is not enough to discharge a facility’s duty to its
residents.

Second, the exhibits relied on by Petitioner do not prove that the staff actually monitored
the resident. For example, Petitioner asserts that the resident’s MAR shows that the
resident was monitored for complaints or signs of pain and that she evinced no pain. This
contention is unconvincing. The MAR is devoid of any persuasive documentation that
the staff monitored the resident for complaints or signs of pain. See CMS Ex. 4 at 5-9.

One might argue that the absence of entries on the MAR showing that pain medication
was given to the resident is something from which one could infer that the resident was
monitored for complaints of pain and that she expressed none. But, one could just as
easily infer from the absence of evidence that pain medication was given that the staff did
not monitor the resident for pain, did not inquire whether the resident was in pain, and so,
saw no need to provide the resident with pain medication.

There is a column on the resident’s MAR that is captioned: “Monitor for Pain Q Shift
Using Unstable Pain Flow Sheet.” CMS Ex. 4 at 8. This column contains initials for
shifts on dates just after the resident returned from her procedure, and one might infer
from these entries that the resident was at least monitored for pain. However, the
unstable pain flow sheet that Petitioner maintained for the resident is completely blank
and undated. CMS Ex. 4 at 12. There are no entries on this sheet showing either that the
resident experienced pain or did not experience pain. Given that, I do not infer from the
initials on the MAR that the facility staff actually monitored the resident for pain.

Petitioner argues, however, that the fact that no entries were made on the resident’s
unstable pain flow sheet is proof that the resident was monitored for pain and that she had
no complaints. See CMS Ex. 4 at 12. However, a different inference may as easily be
drawn from this blank document, that being that the staff simply made no observations of
the resident’s complaints or signs of pain and failed to complete the sheet for that reason.
The unstable pain flow sheet allows for entries showing the absence of pain. None were
made. Moreover, the document is undated, and it is unclear when this document was
created. See id. For these reasons, I find that the document offers no evidentiary support
for Petitioner’s assertion that the resident was monitored by the staff, and, as I explain
above, I do not find the initials on the MAR to be credible proof that the resident actually
was monitored for pain.
Petitioner argues also that a nursing note proves that the resident was monitored for pain,
bleeding, and hematuria (blood in her urine). The note Petitioner refers to is a late entry
dated February 15, 2010, the date of the February Survey, which makes reference to an
earlier date and time, February 11, 2010 at 5:30 p.m. CMS Ex. 4 at 4. I do not find this
note to be persuasive proof that the staff monitored the resident for pain and hematuria,
much less that it assessed the resident for the possibility that she might develop these
problems. The note was made after the fact and either during or immediately after the
February Survey, when it would have been in Petitioner’s self interest to create
documentation to show that it had complied with participation requirements. For that
reason, the note is not credible.

Lalso do not find to be credible another nursing note dated February 15, 2010. CMS Ex.
4 at 2. This also is a late entry made either during or right after the February Survey. In
this note — which purports to record the resident’s condition on February 11, 2010 —
Petitioner’s nursing staff avers that the resident denied pain and was voiding well as of
that date. Clearly, the note is intended to establish that the staff was monitoring and/or
assessing the resident. However, this note is obviously self-serving, created at a time
when Petitioner’s staff was under criticism for not monitoring the resident.

Petitioner argues additionally that a document, entitled the “Resident Care Flow Record,”
proves that its staff monitored the resident for hematuria. CMS Ex. 4 at 13. The
document contains an entry entitled: “Toileting, Includes Cleaning Self, Adjusting
Clothes.” Petitioner asserts that the staff would have monitored the resident for
hematuria during toileting. But, in fact, the document contains no references to
monitoring. Nor is there any evidence that the staff had been alerted to monitor Resident
# 20 for hematuria.

Petitioner argues that it was under no legal obligation to document the monitoring that its
staff performed. Perhaps so. But, CMS is not alleging that Petitioner contravened the
regulation, because Petitioner failed to document the monitoring that its staff performed
of Resident #20. Rather, CMS contends, first, that Petitioner failed to do any assessment
of the resident upon her return to the facility. Petitioner has not rebutted that contention.
It has provided no proof or even argument that it assessed the resident for problems that
she might experience, and its nurse, in fact, admitted that the staff should have but failed
to perform such an assessment. Second, CMS argues that the absence of evidence that
monitoring was performed provides no support for Petitioner’s contention that its staff
actively monitored Resident #20. I agree with CMS’s argument. Petitioner would have
me infer that something was done from the absence of evidence that anything was done.
So, while Petitioner may not have been required by law to document what its staff did, it
may not now contend persuasively that its staff did what it failed to document.

Furthermore, Petitioner had the opportunity to present testimony from the staff members
who actually provided care to Resident # 20. These individuals could have provided

6

statements explaining that they had assessed and monitored the resident notwithstanding
the absence of documentation, if in fact that was the case. I find telling the failure of any
staff member who had actually provided care to the resident to testify, especially in the
absence of documentation of assessment and monitoring.

2. CMS’s remedy determination is reasonable.

Petitioner has not offered evidence or argument to show that CMS’s remedy
determination is unreasonable. Petitioner’s failure to challenge the reasonableness of the
remedy determination is, in and of itself, sufficient basis for me to sustain the
determination to impose civil money penalties of $100 against Petitioner for each day of
a period that began on February 15, 2010 and that continued through March 10, 2010.
However, there is also affirmative proof that the remedy is reasonable.

The penalties that CMS determined to impose fall within a range of penalties from $50 to
$3,000 per day that may be imposed for noncompliance that is not at the immediate
jeopardy level of scope and severity. 42 C.F.R. § 488.438(a)(1)(ii). Factors that may be
considered in deciding the amount of any penalty within this range include a facility’s
compliance history and the seriousness of its noncompliance, along with other factors.

42 C.F.R. §§ 488.438(f)(1) — (4); 488.404 (incorporated by reference into 42 C.F.R. §
488.438(f)(3)).

I note that the penalty amount that CMS determined to impose — $100 per day — is
minimal, comprising only three percent of the maximum daily penalty amount for a non-
immediate jeopardy level deficiency and only $50 per day more than the minimum
penalty amount that may be imposed. Very little evidence is necessary to establish a
penalty amount that is so low to be reasonable.

That evidence is present in Petitioner’s compliance history. The uncontested evidence
offered by CMS establishes that, in January 2010, only one month before the February
survey, Petitioner failed to comply substantially with four health and safety requirements
and two life safety code requirements. CMS Exs. 8, 11. That compliance history, in and
of itself, is sufficient basis to sustain the penalties that CMS determined to impose,
because it shows that at least some penalty amount is necessary to induce Petitioner to
cease its noncompliance.

Additionally, the noncompliance that Petitioner committed in February and March 2010
was relatively serious. The failure to assess Resident # 20 for possible pain and
complications left this resident open to the possibility that she would suffer needlessly.
That such possibility may not have eventuated in this case is fortuitous, but nonetheless,
the potential for harm existed.

/s/
Steven T. Kessel
Administrative Law Judge