Life Care Center of Auburn, DAB CR5277 (2019)

DECISION

In this all-too-familiar scenario, a facility nurse was accused of verbally abusing the residents in her charge; other staff learned of the allegations of abuse or witnessed “inappropriate” remarks; yet, the facility did not timely report nor adequately investigate these incidents, and it allowed the nurse to continue working with residents.

Petitioner, Life Care Center of Auburn, is a long-term-care facility, located in Auburn, Massachusetts, that participates in the Medicare program.  Following a survey, completed March 22, 2016, the Centers for Medicare & Medicaid Services (CMS) determined that the facility was not in substantial compliance with federal requirements protecting facility residents from abuse.  CMS has imposed a civil money penalty (CMP) of $1,603 per day for 30 days of substantial noncompliance.

Petitioner appeals, and CMS has moved for summary judgment.  I agree that no material facts are in dispute, but, for the reasons set forth below, I decline to enter summary judgment and instead issue a decision based on the written record.  I find that, from March 22 through April 20, 2016, the facility was not in substantial compliance with 42 C.F.R. § 483.13(c), and the penalty imposed is reasonable.

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Background

The Social Security Act (Act) sets forth requirements for long-term care 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 483.1  To participate in the Medicare program, a nursing facility must maintain substantial compliance with program requirements.  To be in substantial compliance, a facility’s deficiencies may pose no greater risk to resident health and safety than “the potential for causing minimal harm.”  42 C.F.R. § 488.301.

The Secretary contracts with state survey agencies to 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, on March 22, 2016, surveyors from the Massachusetts Department of Public Health (state agency) completed a facility survey.  Based on their findings and the subsequent recommendations from Independent Dispute Resolution and Independent Informal Dispute Resolution proceedings, CMS determined that the facility was not in substantial compliance with 42 C.F.R. § 483.13(c) (Tag F226), which requires the facility to develop and implement policies and procedures prohibiting abuse and neglect.  CMS cited the deficiency at scope and severity level H – a pattern of substantial noncompliance that causes actual harm that is not immediate jeopardy.  CMS Exs. 1, 2, 3, 10; P. Exs. 1, 5.

After an April 27, 2016 follow-up survey, CMS determined that the facility returned to substantial compliance on April 21, 2016.  CMS Ex. 2.  It imposed against the facility a penalty of $1,603 per day for 30 days of substantial noncompliance (March 22 through April 20, 2016), for a total penalty of $48,090.  CMS Ex. 2.

Petitioner appealed.

CMS moves for summary judgment.  With its motion and brief (CMS Br.), CMS submits 12 exhibits (CMS Exs. 1-12).  Petitioner opposes summary judgment and, with its brief in opposition (P. Br.), submits 20 exhibits (P. Exs. 1-20).  I admit into evidence CMS Exs. 1-12 and P. Ex. 1-20.

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Witnesses.  My initial order in this case directed the parties to exchange, as a proposed exhibit, and, in the form of an affidavit or written declaration, “the complete written direct testimony of any proposed witness.”  Acknowledgment and Pre-hearing Order at 3 (¶ 4) (Sept. 13, 2016).  CMS listed no witnesses and submits no written declaration.

Petitioner lists six witnesses and provides their written declarations.  With its motion for summary judgment and additional submissions, CMS indicated that testimony would not be necessary because the matter may be decided on summary judgment or the written record.  CMS’s List of Exhibits and Potential Witness at 2 (Dec. 15, 2016).  In its reply to Petitioner’s submissions (filed after it received Petitioner’s witness declarations), CMS did not change its position.  Thus, Petitioner’s witness testimony is in the record; and CMS indicates that the matter should be decided without its cross-examining Petitioner’s witnesses.  An in-person hearing would serve no purpose, and this matter may be decided on the written record, without considering whether the standards for summary judgment have been met.2

Issues

The issues before me are:

• from March 22 through April 20, 2016, was the facility in substantial compliance with 42 C.F.R. § 483.13(c); and
• if the facility was not then in substantial compliance, is the penalty imposed – $1,603 per day for 30 days – reasonable.

Petitioner also seeks review of CMS’s finding that the facility’s deficiencies created a pattern of substantial noncompliance.  I am not authorized to consider that issue.  The regulations limit review of scope-and-severity determinations.  I may review scope and severity if:  (1) a successful challenge would affect the range of the CMP; or (2) CMS has made a finding of substandard quality of care that results in the loss of approval of the facility’s nurse aide training program.  42 C.F.R. § 498.3(b)(14), (d)(10).  The scope of a deficiency (isolated, pattern, widespread) does not affect the range of the CMP; nor is it a finding of substandard quality of care that would affect approval of the facility’s nurse aide training program (which, in any event, the facility does not have).  P. Br. at 5 n.3.

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CMS’s determination that the facility exhibited a pattern of substantial noncompliance is therefore not reviewable.

Discussion

1. The undisputed evidence establishes that the facility did not timely report nor adequately investigate allegations that one of its nurses abused residents.  Although it had not investigated the allegations of abuse, it allowed the nurse to continue working with residents.  These deficiencies put the facility out of substantial compliance with 42 C.F.R. § 483.13(c).3

Program requirement:  42 C.F.R. § 483.13(c) (Tag F226).  Abuse is defined as “the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.”  42 C.F.R. § 488.301.  The regulation governing resident behavior and facility practices mandates that, among other requirements, facilities develop and implement written policies and procedures prohibiting mistreatment, neglect, and abuse.  The facility must ensure that all alleged violations are reported immediately to the facility administrator and appropriate state officials.  42 C.F.R. § 483.13(c).  It must have evidence that all alleged violations are thoroughly investigated, and it must prevent further potential abuse while the investigation is in progress.  The results of all investigations must be reported to the administrator (or designated representative) and to the appropriate state officials within five working days of the incident.  If the violation is verified, the facility must take appropriate action.  42 C.F.R. § 483.13(c)(2), (3), and (4).

Facility policy – reporting allegations of abuse.  The facility had in place written policies for reporting and investigating allegations of abuse and neglect.  P. Ex. 6.  The facility’s reporting policy requires “[a]ll personnel” to report “promptly,” to their immediate supervisor and/or facility representative, any incident or suspected incident of resident abuse and/or neglect, including injuries of unknown origin.  P. Ex. 6 at 4.  All alleged or suspected violations involving mistreatment, abuse, neglect, or injuries of unknown origin must also be reported “promptly” to the administrator or director of nursing (DON).  P. Ex. 6 at 4.

The person observing the incident or suspecting resident abuse must “immediately” report it to his/her immediate supervisor or to the charge nurse.  The supervisor/charge nurse must then elicit the following information:

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• name of the resident;
• date and time the incident occurred;
• where the incident occurred;
• name(s) of the person(s) committing or involved with the incident (if known);
• name(s) of any witnesses;
• type of abuse and/or neglect (verbal, physical, or sexual);
• any additional information that may be pertinent.

P. Ex. 6 at 4.

The charge nurse must complete and sign an incident report and notify the resident’s physician and responsible party.  The incident must be reported “immediately” to the administrator or designated representative and to the DON.  The charge nurse must also “immediately” assess the resident and offer medical attention, if necessary.  Any findings and treatment must be documented in the resident’s medical record.  P. Ex. 6 at 5.

An incident of suspected abuse must be reported to the supervisor regardless of any time lapse since the incident occurred, and the supervisor must notify the DON and the “executive director.”  The facility administrator, DON, or designated representative must complete an investigation of the incident, with a written summary of its findings no later than five working days after the reported occurrence.  P. Ex. 6 at 5.

The administrator must designate a resident advocate to support the resident “through his/her feelings about the incident and his/her reaction to their involvement in the investigation.”  P. Ex. 6 at 5.  The advocate coordinates “development of care planned interventions as necessary to assist the resident in successfully dealing with the occurrence of abuse and/or neglect.”  Id.

The policy then discusses federal requirements, emphasizing that all allegations of abuse must be reported immediately to the state survey agency.  To satisfy that requirement, the policy directs the facility to notify “the appropriate field office of an incident” and to “[r]efer to your state regulatory guidelines.”  The policy also directs staff to notify the abuse hotline “within 24 hours whenever there is an allegation of abuse.”  The date and time of the notification should appear in the investigative report.  The “immediate reports” should be submitted as soon as possible “but no later than 24 hours of a facility

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learning of the allegation.  Failure to do so will mean that the facility is not in substantial compliance with the federal regulations.”  P. Ex. 6 at 5 (emphasis added).

With respect to the five-day report, the policy repeats that the facility must report the results of its investigation within five working days from the date of the incident.  “Any report after that time will be considered out of compliance with [the federal] regulation.”  The policy directs staff to consult the individual state websites for specific instructions and forms.  P. Ex. 6 at 5.

Facility policy – investigating allegations of abuse.  The facility policy mandates that all reports of abuse be “promptly and thoroughly investigated.”  P. Ex. 6 at 1.

It directs the facility administrator to appoint a representative to investigate the incident or suspected incident of abuse or neglect.  The representative uses the facility’s “Incident Investigation Questionnaire” to complete the investigation.  He/she reviews the incident report for completeness and assures that the resident’s physician and responsible party have been notified.

The policy also states that, “[i]f it is determined that alleged abuse and/or neglect has occurred,” the administrator, DON, or designee will promptly notify officials in accordance with state laws and corporate practices.4  P. Ex. 6 at 1.

The investigation should include a written summary of:

• a review of the incident report;
• an interview with the person(s) reporting the incident;
• interviews with any witnesses;
• an interview with the resident, if appropriate;
• a review of the resident’s medical record;
• a review of the employee’s file;
• interviews with staff members on all shifts having contact with the resident at the time of the incident;

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• interviews with the resident’s roommate, family, and/or visitors who may have information regarding the incident;
• an interview with other residents who received care or services from the alleged perpetrator; and
• a review of all circumstances surrounding the incident.

P. Ex. 6 at 1-2.

An employee accused of abuse or neglect will be suspended pending the results of the investigation.  The resident will receive prompt medical attention, as necessary, and, in order to prevent a recurrence, will be protected during the course of the investigation.  P. Ex. 6 at 2.

The person in charge of the investigation will consult the administrator daily about its progress, and the administrator or designee will keep the resident and his/her representative informed of that progress.  P. Ex. 6 at 2.

The results of the investigation must be recorded on the “Incident Investigation Questionnaire,” and any additional documents, including interviews and record reviews, will be attached to the incident report.  P. Ex. 6 at 2.

The policy repeats the statement of federal requirements set forth in the policy governing reporting requirements.  P. Ex. 6 at 2, 5.

Finally, the administrator or designee informs the resident, physician, and/or responsible party of the results of the investigation and corrective action taken.  P. Ex. 6 at 3.

Allegations of abuse and other misconduct.  Although the facility’s documentation is far from complete, the undisputed evidence establishes that, among other accusations of misconduct, a facility nurse was three times accused of verbally abusing residents.

Lindsey Hamilton was a licensed practical nurse (LPN).  On September 28, 2015, LPN Hamilton’s supervisor, Registered Nurse (RN) Corina [last name indecipherable], charged her with insubordinate behavior.  According to the facility’s “Corrective Action Form,” the RN was attempting to interview a resident who had fallen, when LPN Hamilton interrupted, claiming to have “done everything.”  It was the supervisor’s responsibility to investigate, and the LPN should not have interfered.  The supervisor also admonished LPN Hamilton for complaining “throughout the shift,” and in front of residents, that the facility did not have enough staff.  She directed the LPN to “refrain from negative comments and maintain a professional approach when addressing a supervisor.”  LPN Hamilton refused to sign the form.  CMS Ex. 4.

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November 8, 2015 allegation of abuse.  Resident 4 (R4) was a 77-year-old man suffering from diabetes (without complications), chronic obstructive pulmonary disease, heart disease, and other ailments.  He was alert and oriented, without mental impairments.  CMS Ex. 6 at 5; P. Ex. 11 at 4.

On November 8, 2015, R4 complained to LPN Mary Ann Derosier that LPN Hamilton “was yelling at him” and “was belligerent.”  LPN Derosier described R4 as “visibly upset” and “distraught.”  CMS Ex. 6 at 1.  She dutifully reported the resident’s complaint to her supervisor, Charmaine Smith, RN, who spoke to the resident.  The resident told RN Smith that LPN Hamilton had yelled at him and “told [him] that she will not come back in my room.”  He complained that the nurse’s behavior “caused him much stress.”  CMS Ex. 6 at 2.  Witnesses to that interview confirmed that the resident “seemed very upset about the situation.”  CMS Ex. 6 at 3, 4.

The following day (November 9), the facility’s social worker, Michael LaBonte, LSW, interviewed R4.  He describes the resident as “[a]lert, oriented x3 . . . .”  According to Social Worker LaBonte’s written statement, R4 had, that morning, complained to “Barbara, [the] nurse manager of Gardenia Court” that LPN Hamilton was in the hallway outside his door; he heard her tell another staff member “I’m not going to give this guy any care or help.”  CMS Ex. 6 at 5.

In a written declaration, prepared for these proceedings, Social Worker LaBonte accuses R4 of “making unfounded allegations against caregivers” and making inappropriate remarks to female caregivers.  He also suggests that R4 may have “misunderstood” LPN Hamilton’s statement.  P. Ex. 17 at 2 (LaBonte Decl.).  None of this is mentioned in his contemporaneous report or the facility’s incident report.

LPN Hamilton’s written statement describes an entirely different incident.  The nurse wrote that she was assisting R4 with his oxygen concentrator when he began screaming for a cordless phone.  He refused her offer of a portable oxygen tank; he refused a nebulizer treatment.  She gave him the phone.  According to the statement, R4 said that the employees were “ignorant” and said they would be jobless, but he calmed down when another employee gave him a concentrator.  LPN Hamilton denied yelling at R4, claimed that she was “always professional” with her patients.  She attacked the resident as “accusatory for months,” and wrote that he threatened to have staff fired “almost every day” and that he was “sexually inappropriate for a while now.”  CMS Ex. 6 at 7.

In a corrective action form, dated November 9, 2015, LPN Hamilton’s supervisor, Aileen MacDonnell, issued her a written warning.  The warning describes the resident’s allegation of verbal abuse and “frequent reports” from nurses and nurse aides of LPN Hamilton’s negativity.  According to the warning, LPN Hamilton’s actions caused mental stress to the resident and raised concerns for other residents and staff.  The supervisor

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directed LPN Hamilton to stop her negative talk with staff and, “most importantly,” with all residents.  CMS Ex. 5 at 1.

The record includes no other witness statements or interviews; notably there is nothing from “Barbara, the nurse manager of Gardenia Court,” and nothing from the employee referred to in LPN Hamilton’s statement, who must have witnessed that altercation.  The facility concedes that it did not then prepare an incident report or report the allegation of abuse to the state agency.  See P. Ex. 11.

Months later, during the survey, the facility’s DON, Sharon Stacy, RN, finally prepared an incident report and reported the allegation of abuse to the state agency.  Her undated written report indicates that the facility originally reported the incident on March 16, 2016 (more than four months after R4 lodged his accusation).  She concedes that she “was unable to validate” the date of the incident, but “all information indicates [that it] allegedly took place the first week of November.”  According to the report, the “original complaint and investigation” were related to an issue with the “humidification” on R4’s concentrator (which is not accurate).  The resident was upset because fluid had drained from the humidifier to the floor; he had slipped on it and fallen.  A couple of days later, a nurse was trying to fix the humidifier problem, and the resident was yelling at her.  LPN Hamilton came to assist, and the resident yelled at her, refusing her offers of assistance.  A nurse aide came in with another concentrator, and R4 calmed down.  CMS Ex. 7 at 1; P. Ex. 11 at 5.  I find puzzling DON Stacy’s focus on an incident that R4 had not mentioned in his complaints.  Moreover, assuming that facility management believed that R4’s charges stemmed from that incident, the facility should have investigated it.  At least two other staff members (a nurse and a nurse aide) were present, according to DON Stacy’s account, and witnessed the event.  But, aside from LPN Hamilton’s statement, nothing suggests that DON Stacy interviewed these witnesses, R4, or anyone else about the problems with R4’s oxygen concentrator.5

DON Stacy’s report mentions R4’s November 9 interview with Social Worker LaBonte and LPN Derosier’s November 8 statement.  On March 17, someone again spoke to LPN Derosier, according to the report.  She wasn’t sure of the timing but remembered that R4 complained that LPN Hamilton told him “that if he was on the floor dying[,] she

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wouldn’t help him.”  CMS Ex. 7 at 1.  Supervisor Smith, however, denied hearing this statement, which is odd because both her written statement (“the . . . nurse yelled at me and told me that she will not come back in my room”) and Social Worker LaBonte’s written statement (“I’m not going to give this guy any care or help”) seem to reflect variations on R4’s fairly consistent complaint.  CMS Ex. 6 at 2, 5; CMS Ex. 7 at 1; P. Ex. 11 at 5.

The report also refers to November 2 notes from Dr. Nancy Said, R4’s physician – which are not included in this record.  Dr. Said’s note reportedly indicated that R4 complained to her of mistreatment but also told her that the facility had resolved the issue.  CMS Ex. 7 at 1; P. Ex. 11 at 5.  On March 17, 2016, R4 confirmed with Dr. Said that “his issue with the accused wasn’t about oxygen, it was that LPN Hamilton said ‘if he was on the floor, she wouldn’t pick him up.’”  CMS Ex. 7 at 1; P. Ex. 11 at 5.  Notwithstanding the apparent consistency and coherence of the resident’s complaints, not to mention the absence of any documentation suggesting that R4 was anything but lucid at the time he complained, DON Stacy reported that Dr. Said had mentioned, in conversation, that, because of his COPD, high oxygen need, and prolonged steroid use, the resident’s mind “floats,” and he sometimes cannot distinguish reality from fiction.  According to the report, Dr. Said also pointed out that, in November, R4 had pneumonia, which might have exacerbated these problems.  CMS Ex. 7 at 1; P. Ex. 11 at 5.  Presumably, if this were true, R4’s medical record would have reflected the problem.  And, had the facility followed its policies for investigating allegations of abuse, the report would have included a written summary of R4’s medical record, which it does not.  P. Ex. 6 at 1.6

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DON Stacy explained that, at the time of the complaint, “the facility determined that it was more of a customer service issue than a reportable event.”  CMS Ex. 7 at 1.  LPN Hamilton was told not to go into the resident’s room and was never assigned to care for him, none of which is mentioned in LPN Hamilton’s written warning or any other contemporaneous document.  CMS Ex. 5; CMS Ex. 7 at 1; P. Ex. 11 at 5.  DON Stacy concluded that she was still “unable to determine if there was abuse involved versus a customer service issue.”  CMS Ex. 7 at 2; P. Ex. 11 at 6.

Elsewhere in the incident report, DON Stacy claims that LPN Hamilton was suspended for the night, and CMS seems to accept this claim, at least for purposes of its summary judgment motion, so I will not question it here (although nothing in LPN Hamilton’s written warning nor any other contemporaneous document suggests that she was suspended at that time).  CMS Reply at 8; P. Ex. 11 at 1.  However, as CMS also points out, the undisputed evidence establishes that the facility allowed LPN Hamilton to return to work, even though it had not investigated the abuse complaint lodged against her.  This violates the regulation, which requires that the facility prevent further potential abuse – against all residents, not just R4 – while the investigation is in progress.  42 C.F.R. § 483.13(c)(3).  It violates the facility’s own policies, which mandate that an employee accused of abuse be suspended pending the results of the investigation.  P. Ex. 6 at 2.

Thus, the incident was not adequately investigated nor immediately reported to the state agency, as required by the regulation and facility policies.  When DON Stacy finally reported something, she focused on a separate incident – which the facility did not investigate – rather than on R4’s complaint.  For months, while the allegations were pending but not investigated, LPN Hamilton was allowed to work with residents, putting them at risk of abuse.  These undisputed facts put the facility out of substantial compliance with section 483.13(c).

Petitioner nevertheless defends its inaction by arguing that facility managers “were not sure” what the resident was alleging, so they “did a preliminary inquiry” to determine whether R4 “was making an ‘allegation of abuse’ at all.”  P. Br. at 13.  According to Petitioner:

a facility’s reporting obligations under the regulation actually are somewhat unclear where, as here, the facility’s [a]dministrator first must decide whether a resident complaint (or incident report, etc.) actually is an “allegation of abuse” at all, as opposed to, for instance, a “grievance” or customer service issue, which the facility must investigate and address . . . but not necessarily report to the [s]tate.

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P. Br. at 13 n.8.  Petitioner also asserts, incorrectly, that “oddly” the Departmental Appeals Board has not directly addressed the distinction between “allegations of abuse,” which must be reported, and “grievances,” which may not.

Petitioner’s argument fails for two reasons.  First, the federal regulation requires the facility to report “all alleged violations involving mistreatment, neglect, or abuse . . . immediately . . . to other officials in accordance with [s]tate law.”  And the results of the facility’s investigation must be reported “to other officials in accordance with state law . . . within 5 working days of the incident . . . .”  42 C.F.R. § 483.13 (emphasis added).  Similarly, under state rules, the facility must immediately report to the state agency any “‘suspected instance(s)’ of resident abuse, neglect, mistreatment . . . .”  105 Mass. Code Regs. § 105.002.  And, contrary to Petitioner’s assertion, the Departmental Appeals Board has repeatedly and soundly rejected any suggestion that the facility gets to determine when and whether to report a suspected violation.  The reporting requirement is triggered by any allegation of mistreatment, neglect, or abuse, whether or not it is recognized as such by the facility.  Rockcastle Health & Rehab. Ctr., DAB No. 2891 at 11 (2018) (and cases cited therein).  Thus, regardless of whether the facility’s administration could confirm that abuse occurred, it was bound to report, investigate, and protect the residents while an investigation was pending.

Second, I find disingenuous any suggestion that the facility management did not recognize that R4’s complaint was an allegation of abuse.  The resident alleged that a nurse had yelled at him and threatened to withhold assistance if he needed it.  Witnesses to his complaint agreed that he was visibly upset.  CMS Ex. 6.  In a written warning, LPN Hamilton’s supervisor characterized her conduct as “verbally abusive” and described the “mental stress” it caused the resident.  CMS Ex. 5 at 1.

February 1-2, 2016 abuse.  Resident 1 (R1) was an 85-year-old man who suffered from dementia, a cognitive communication deficit, and other disorders.  He was restless, agitated, and disoriented.  CMS Ex. 9 at 2, 3; P. Ex. 14 at 5, 6.

LPN Linda Schmidt was on duty with LPN Hamilton during the 11:00 p.m. to 7:00 a.m. shift of February 1-2, and witnessed LPN Hamilton’s conduct.  According to her written statement, early on in the shift, R1 sat in his wheelchair near the nurses’ station, where he could be closely observed because he continually tried to stand or get out of his wheelchair unassisted.  P. Ex. 13; P. Ex. 18 at 1 (Messier Decl.).  LPN Hamilton stood next to his chair, called him “crazy man” multiple times and asked him where he thought he was going.  He replied, several times, “home” and asked for his wife.  LPN Hamilton told him that he didn’t have a home anymore and that his wife “didn’t want him” because he hit her, and she was afraid of him.  Each time he tried to get out of his chair and asked to go home, she repeated the statement.  He became agitated, and, two or three times, lunged toward her; she called for help from a nursing assistant.  She then told R1:  “[S]ee, this is why you can’t go home[;] you get violent[,] and people are afraid of you.”  A staff

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member eventually took the resident down the hall, away from where LPN Hamilton could observe them.  P. Ex. 13.

In her written declaration, Nurse Aide Frances Hyde, C.N.A., testifies that she was in and out of resident rooms all night, and did not witness the entire confrontation, but she confirms that, as R1 became increasingly agitated and began “calling out for family members to help him,” LPN Hamilton “got increasingly personal and nasty . . . .”  Her tone became “loud, obnoxious, belligerent and aggressive.”  She told R1 that his family could not help him or did not want him.  Nurse Aide Maurice Martey came and took the resident back to his room.  LPN Hamilton left the area.  P. Ex. 19 at 3‑4.

Nurse Aide Hyde writes that she immediately reported her observations to LPN Schmidt, who said that she was “taking care of it.”  P. Ex. 19 at 4.  In fact, LPN Schmidt did not immediately report the incident.  According to the facility administrator, Joanne Bruell, LPN Schmidt “first thought she might ‘sleep on it’ and decide whether [Nurse Aide] Hyde’s report (and her own observations) rose to the level of ‘alleged abuse’ and needed to be reported further . . . .”  P. Ex. 15 at 9 (Bruell Decl.).  Apparently, LPN Schmidt told Administrator Bruell that she did not consider the matter urgent because she didn’t think residents were in danger.  “[I]t was a busy night and [LPN] Hamilton still was busy with other residents.”  P. Ex. 15 at 9 (Bruell Decl.).

In a terse report, dated February 2, the facility outlines the incident:  “[R1’s] nurse is alleged to have told him that he could not go home, his wife didn’t want him, nobody wanted him.  He swung at nurse and she called for his [nurse aide] to take him to his room.  Investigation initiated.”  CMS Ex. 9 at 2.

The facility’s more complete report describes the resident and notes that he had been living at home with his wife when his care became too much for her.  Staff reported that, on the night of February 1-2, R1 had been trying to get out of bed; they put him in a geri chair at the nurses’ station so that they could watch him.  When the resident said “home,” the LPN called him “crazy man,” got up from the desk, approached, leaned over him, and said, “You can’t go home.  You don’t have a home anymore, you beat your wife up[,] and she doesn’t want you.  You live here now[,] and we don’t want you either.”  P. Ex. 14 at 8.  When he attempted to get out of his chair, LPN Hamilton called for the nurse aide, who took the resident away and kept him away from her.  P. Ex. 14 at 8.

Petitioner concedes that staff did not immediately report the abuse to the facility administrator.  CMS Br. at 5; CMS Ex. 10 at 2 (“The Center agrees that on February 1, 2016, its staff did not immediately respond to and immediately report to the Administrator an incident of verbal abuse of a resident by a nurse . . . and we are prepared to take responsibility for that error.”).  So, notwithstanding her actions, LPN Hamilton was allowed to continue her shift, thus subjecting others to potential abuse.  Again this violates the regulation and the facility’s policy.

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When the investigator (presumably DON Stacy) asked staff why they didn’t stop LPN Hamilton, they replied that she intimidates them and that they kept the resident away from her until morning “so they could report this.”  P. Ex. 14 at 8.  Staff also complained that LPN Hamilton was mean, negative, and difficult to work with, but, according to the report, they had not seen her act “that way” to the residents before.  P. Ex. 14 at 8.

The facility’s report concludes that the allegation of abuse is valid and LPN Hamilton’s employment would be terminated effective February 8.  Until then, she would remain on suspension.  P. Ex. 14 at 8.

Resident 2 (R2) was a 71-year–old woman with an altered mental status and a history of alcohol abuse.  CMS Ex. 9 at 6, 7; P. Ex. 14 at 1, 3.

Sometime after the altercation between LPN Hamilton and R1, the LPN confronted R2, who had been incontinent of stool.  After staff showered and changed her, they put her in her wheelchair near the nurses’ station.  The resident was confused and upset, asking to return to her room.  According to Nurse Schmidt, LPN Hamilton told her that she could not because “every time we put you in bed, you make a mess, you tear up your diaper and you wipe your poop everywhere and we don’t have time to keep cleaning you up like that.”  When R2 asked to call her boyfriend, LPN Hamilton told her that he “isn’t coming back, he’s never coming back, you have too many problems for him to deal with.”  P. Ex. 13.  LPN Hamilton then repeated the statements numerous times.  When the resident said that the next day she would call her bank to tell them how her disability money was being spent, LPN Hamilton laughed and told her that insurance paid for her to be in the facility and that “the bank doesn’t care anything about you.”  R2 became tearful, then began to use foul language and insisted that she be allowed to return to her room, saying “it’s my room and my stuffed animals are in there.”  P. Ex. 13.  R2 began to propel her wheelchair toward her room; LPN Hamilton followed her, repeating that her boyfriend was not coming to visit her anymore.  The nurse aide caring for the resident told LPN Hamilton that she would keep R2 with her for close observation, and the LPN agreed.  P. Ex. 13.

In her written declaration, Nurse Aide Jeanne Messier, C.N.A., confirms that she heard LPN Hamilton telling R2 “that if she did not act like an adult, or stop acting like a child, or words to that effect, that she could throw the [r]esident’s Snoopy dog doll into the trash.”  P. Ex. 18 at 3 (Messier Decl.).  Nurse Aide Messier did not report the incident but spoke to Nurse Aide Hyde, who, according to Nurse Aide Messier, told her that LPN Hamilton had been “loud and belligerent with one or both residents and that Nurse Schmidt was ‘handling it.’”  P. Ex. 18 at 3 (Messier Decl.).

The facility’s incident report, dated February 2 and submitted February 3, describes the events as follows:  “It has been alleged that her nurse on 11-7 last night told her that the

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reason she was incontinent was because she chose to drink and if she didn’t drink she wouldn’t be like this.”  CMS Ex. 9 at 6.

The follow-up report tells a much grimmer story.  It describes the resident’s incontinence of stool and quotes LPN Hamilton as telling her (in front of the nurse aide):  “This is what happens when you drink [a]lcohol, you end up like this.”  P. Ex. 14 at 4.  After the nurse aide had cleaned the resident, she placed her in her wheelchair at the nurses’ desk so that she could be observed.  The resident was confused and upset, asking multiple times to return to her room.  LPN Hamilton told her that she could not because “she made a mess, tore up her diaper and wiped poop everywhere[;] and we don’t have time to be cleaning you up like that.”  When R2 threatened to tell her boyfriend that she wanted to go home, LPN Hamilton told her repeatedly that her boyfriend was “never coming back.”  The other nurse at the desk overheard LPN Hamilton’s remarks.  P. Ex. 14 at 4.

The report goes on:  when the “very upset” resident asked for her stuffed animal to hold, LPN Hamilton told her to “act like a grown up instead of a child,” and threatened to “throw Snoopy in the trash.”  The nurse aide took R2 away.  She kept the resident with her while she provided care “to keep the resident away from this nurse.”  The second nurse (presumably Linda Schmidt) went down the hall to check on the resident and comfort her.  P. Ex. 14 at 4.

The following morning, at the end of the shift, LPN Schmidt finally reported the incident to the Assistant Director of Nursing, who suspended LPN Hamilton and began to investigate.  P. Ex. 15 at 9 (Bruell Decl.).  Administrator Bruell did not review the situation until the following day.  She subsequently terminated the employment of both LPN Hamilton and LPN Schmidt.  Id.

Again, when staff were asked why no one told LPN Hamilton to stop talking to the resident like that, they all replied that LPN Hamilton was “very intimidating” and would tell them, “I’m the only nurse that works full time, they won’t do anything to me, they need me.”  P. Ex. 14 at 4.  Staff complained that she was very difficult to work with and mean to staff, but claimed that they had not seen her do this to a resident before, according to the report.  P. Ex. 14 at 4.

LPN Hamilton was suspended pending investigation.  The facility concluded that the allegations of abuse were valid and terminated her employment.  P. Ex. 14 at 4.

As with the incident involving R1, the facility admits that staff did not immediately report to the administrator, DON, or other responsible person, as required by the regulation and the facility policy.  CMS Ex. 10 at 2; see P. Ex. 6 at 4.  According to Administrator Bruell, Nurse Schmidt “thought she would ‘sleep on it’ and decide the next morning whether [LPN Hamilton]’s demeanor and words should be reported.”  P. Br. at 18; P. Ex. 15 at 9 (Bruell Decl.).

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Citing allegations of “verbal mistreatment and abuse” of two residents that caused them mental distress, the facility suspended LPN Hamilton.  LPN Hamilton denied the allegations, asserting that one of the residents was very upset that night so she got her a stuffed animal; she denied threatening to throw the animal away and claimed that the resident calmed down and was put back to bed.  CMS Ex. 11.  The facility completed its investigation of the incidents and terminated LPN Hamilton’s employment on February 9, 2016.  CMS Ex. 11.

And, unlike R4, there is virtually no dispute that LPN Hamilton verbally abused R1 and R2.  See P. Br. at 9 (“it is reasonably clear that [LPN Hamilton] did speak inappropriately to two residents that evening . . . .”), 15.  Administrator Bruell concluded that LPN Hamilton “verbally abused two residents.”  P. Ex. 15 at 6, 8 (Bruell Decl.).  She determined that both LPN Hamilton, who abused the residents, and LPN Schmidt, who delayed reporting the abuse – thus leaving LPN Hamilton to continue her shift and jeopardize the safety of other residents – “behaved inappropriately.”  P. Ex. 15 at 1 (Bruell Decl.).

The undisputed evidence thus establishes that, in investigating and reporting the allegations that LPN Hamilton abused R1 and R2, the facility again repeatedly violated federal regulations and its own policies and failed to protect its residents from a potentially abusive nurse.

2. The penalties imposed are reasonable.

To determine whether a civil money penalty is 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 section 488.438(f) 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); Cmty. 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).

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Here, CMS imposes a penalty of $1,603 per day for each day of substantial noncompliance, which is in the lower end of the penalty range ($103 to $6,188).  42 C.F.R. §§ 488.408(d)(1)(iii); 488.438(a)(1)(ii); 45 C.F.R. § 102.3; 81 Fed. Reg. 61,538, 61,538 (Sept. 6, 2016).  Considering the relevant factors, these penalties are reasonable.

The facility has a less-than-stellar history.  For the four annual surveys immediately prior to this one (October 2011, January 2013, March 2014, and May 2015), the facility was out of substantial compliance with multiple program requirements.  CMS Ex. 12 at 1, 2.  In addition, in October 2015, the state agency found G-level deficiencies (isolated instances of noncompliance that cause actual harm):  the facility was not in substantial compliance with the regulation requiring that services be provided by qualified persons according to resident care plans (42 C.F.R. § 483.20(k)(3)(ii) – tag F282) and with the regulation requiring that the facility ensure that the residents receive adequate supervision and assistive devices to prevent accidents (42 C.F.R. § 483.25(h) – tag F323).  CMS Ex. 12 at 8.  The facility’s history thus justifies imposing a penalty well above the minimum amount.

Petitioner does not claim that its financial condition affects its ability to pay the CMP.

Applying the remaining factors, as discussed above, facility staff – including its management – effectively disregarded R4’s complaint.  It did not report his allegations until months after they were made.  Its belated investigation made virtually no sense in that the managers all but ignored R4’s complaint in favor of investigating LPN Hamilton’s defense of her conduct during an entirely separate incident.  At that, the investigation was flawed; staff did not interview most of the witnesses.

Even more disturbing was staff’s conduct on the night of February 1-2.  After they observed LPN Hamilton’s brutal treatment of R1, they failed to report her to the appropriate facility managers, which left her free to abuse R2.  Notwithstanding her abuse of a second resident, which staff also observed, staff still did not report her behavior, exposing other residents to potential abuse for the duration of the shift.  Such inaction shows a high degree of indifference, and disregard for resident safety, for which the facility is culpable.

For these reasons, I find that the penalty imposed is reasonable.

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Conclusion

For the reasons discussed above, I find that:  from March 22 through April 20, 2016, the facility was not in substantial compliance with 42 C.F.R. § 483.13(c) and that the penalty imposed ($1,603 per day) is reasonable.

• 1. The regulations governing long-term-care facilities have been revised. 81 Fed. Reg. 68,688 (Oct. 4, 2016); 82 Fed. Reg. 32,256 (July 13, 2017). I apply the regulations in effect at the time of the survey.
• 2. Although I need not reach the issue, the case for summary judgment is strong. CMS has come forward with evidence – the facility’s own documents – establishing facts showing that the facility was not in substantial compliance with section 483.13(c). For its part, Petitioner submits additional documents and written declarations that confirm the facts upon which CMS relies.
• 3. My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision.
• 4. As is plain from this discussion, depending on how it is interpreted, this provision may be inconsistent with federal requirements and the facility’s own policy for reporting all allegations of abuse and neglect.
• 5. Petitioner characterizes the facts underlying this incident as “so murky” that the state agency “could not determine what the Resident actually had alleged, or whether he even was making an ‘allegation of abuse against anyone . . . .’” P. Br. at 12. In fact, the state agency noted that R4 “consistently reported the details of the alleged incident and was alert and oriented . . . .” P. Ex. 10 at 2. Any confusion regarding the allegations rests with LPN Hamilton and DON Stacy, who focused on an incident, which, while disturbing, was not mentioned by R4, except to tell his physician that he wasn’t complaining about the situation with his oxygen. CMS Ex. 7 at 1; P. Ex. 11 at 5.
• 6. Although the federal rules of evidence do not strictly apply in these proceedings, they provide guidance for determining whether evidence is reliable. The facility’s report is admissible to establish that it was prepared and filed, but statements contained therein would be considered hearsay if cited to establish their underlying truth. Fed. R. Evid. 801. Hearsay is generally not admissible under the federal rules. Fed. R. Evid. 802. Had these individuals been listed as witnesses, subject to cross-examination, their statements would be admissible to prove the truth of the matters asserted. Fed. R. Evid. 801(d)(1). But they are not witnesses, and, under the rules, I could determine that their hearsay statements are inherently unreliable and decline to admit them for the purpose of establishing their underlying truth. That Petitioner provides no medical records or other underlying support for these hearsay claims makes them even more suspect. Ultimately, however, these underlying facts are not material. The facility was obligated to investigate timely and report timely the allegation of abuse, whether or not its staff considered R4 a reliable source. Indeed, residents deemed unreliable are often the most vulnerable and the most in need of protection. See P. Ex. 17 at 2 (LaBonte Decl.) (Although describing R4’s lack of credibility, hostility to staff, inappropriate remarks to female staff, and suggesting (incorrectly) that R4 told inconsistent stories, Social Worker LaBonte nevertheless acknowledges that a resident’s history “obviously [does] not determine whether or not a nurse [has] abused him . . . .”).