SUBJECT:

Amboy Care Center,

Petitioner,

Centers for Medicare & Medicaid Services.

DECISION

I decide that Petitioner, Amboy Care Center, failed to comply substantially with a Medicare participation requirement. I impose civil money penalties against Petitioner of $500 per day for a four-day period running from February 9 through February 12, 2004. I premise my decision largely on findings that: the weight of the evidence does not support a finding that Petitioner failed to protect one of its residents against sexual abuse; Petitioner failed to comply fully with regulatory requirements for investigating allegations of abuse; but, CMS's determination that Petitioner's noncompliance was so egregious as to place residents at immediate jeopardy was clearly erroneous.

I. Background

Petitioner is a skilled nursing facility in Perth Amboy, New Jersey. It participates in the Medicare program. Its participation in that program is governed by sections 1819 and 1866 of the Social Security Act (Act) and by federal regulations at 42 C.F.R. Parts 483 and 488.

A survey of Petitioner's facility for compliance with Medicare requirements was completed on February 13, 2004 (February survey). The surveyors concluded that Petitioner failed to comply substantially with two federal participation requirements. These consist of regulations governing abuse of residents and investigations of abuse allegations. 42 C.F.R. � 483.13(b) and (c). The surveyors concluded additionally that Petitioner's noncompliance with each of these two regulations was so egregious as to pose immediate jeopardy for residents of Petitioner's facility. CMS concurred with the surveyors' findings and determined to impose civil money penalties against Petitioner of $5,000 per day for each day of a period that began on February 9, 2004 and ran through February 12, 2004.

Petitioner requested a hearing in order to challenge CMS's determination and the case was assigned to me for a hearing and a decision. I scheduled an in-person hearing. However, the parties agreed that the case could be decided based on written submissions. Consequently, I canceled the scheduled hearing and received written evidence and briefs from the parties.

CMS submitted a brief (CMS Br.) and 17 proposed exhibits (CMS Ex. 1 - CMS Ex. 17). Petitioner submitted a brief (P. Br.) and 13 proposed exhibits (Amboy Ex. 1 - Amboy Ex. 13). I receive all of the parties' proposed exhibits into evidence.

II. Issues, findings of fact and conclusions of law

A. Issues

The issues in this case are:

1. Whether the evidence supports a finding that Petitioner failed to protect one of its residents from sexual abuse;

2. Whether Petitioner appropriately investigated allegations of possible sexual abuse;

3. Whether CMS's determination that Petitioner manifested an immediate jeopardy level deficiency was clearly erroneous;

4. What are reasonable civil money penalties for any deficiency or deficiencies that Petitioner may have manifested.

B. Findings of fact and conclusions of law

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

1. The evidence does not support a finding that Petitioner failed to protect a resident from sexual abuse.

A resident of a participating facility:

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). CMS premises its assertion that Petitioner failed to comply with this requirement on the allegation that Petitioner failed to protect a resident - identified as Resident # 4 in the report of the February survey - from sexual abuse perpetrated against that resident by one of Petitioner's employees, a certified nursing assistant (CNA). I find CMS's assertion to be unsubstantiated for the following reasons:

� There is no credible evidence to establish that Resident # 4 had sexual relations with a CNA.

� Even if sexual relations occurred, the weight of the evidence shows that the alleged relations were not "abuse" as that term is defined by applicable regulations.

� The preponderance of the evidence shows that Petitioner protected Resident # 4 from possible sexual contact with the CNA once allegations of a sexual relationship between the resident and the CNA were made known to Petitioner's staff.

a. There is no credible evidence to establish that Resident # 4 had sexual relations with a CNA.

Resident # 4 was aged 53 as of the dates of the alleged sexual abuse. Amboy Ex. 3, at 1. He was admitted to Petitioner's facility in August 2003 with diagnoses that included chronic paranoid schizophrenia and alcohol abuse in remission. Amboy Ex. 13, at 1. An assessment of the resident completed by Petitioner's staff in August 2003 concluded that the resident had moderately impaired cognitive skills, meaning that his decision making was poor, and that he required supervision and cues. Amboy Ex. 3, at 2. His mental function was noted to vary over the course of a day. Id. The resident displayed some tendency to wander, that is, he moved without rational purpose, seemingly oblivious to need or safety. Id. at 3.

The record of the resident's stay at Petitioner's facility prior to February 2004 documents the resident generally to have been calm, cooperative, and not disruptive. Amboy Ex. 4, at 1 - 7. On several occasions, however, Petitioner's nursing staff noted that the resident was confused. E.g., id. at 6.

On February 3, 2004, Resident # 4 told Petitioner's social worker that at some unspecified date in the past a male CNA had approached him and kissed him on the mouth. Amboy Ex. 9. The resident asserted that, in the ensuing three to four weeks, he and the CNA had engaged in oral sex on several occasions. Id. Allegedly, these episodes took place in the resident's room at times when the resident's roommate was not present. Id.

The resident made these allegations at a time when he was displaying preoccupation with sexual matters. In early February 2004 Petitioner's staff observed that recently Resident # 4 had been preoccupied with sex. CMS Ex. 12, at 11. The resident was observed to talk to himself at times regarding a sexual subject, rambling from one context to another. Id. On February 4, 2004, a nurse noted that the resident had a preoccupation with sexual ideation. CMS Ex. 13, at 7. On the next day, a nurse observed the resident vocalizing about his life experiences prior to becoming a resident at Petitioner's facility. Id. at 8. In recounting these experiences the resident was very explicit about his sexual experiences with both male and female partners. Id. On the following day, February 6, 2004, the resident was observed to be talking to himself. He asserted that "Clark Gable died when he was 59 years old because he had sex with to[o] many girls and I had sex with to[o] many girls." Id. at 8-9. He asserted also that, as a young man, he'd had sex with his mother and with Clark Gable. Id. at 9.

Petitioner's management confronted the CNA whom Resident # 4 alleged had been his sexual partner. On February 3, 2004, the CNA authored a statement in which he denied having had intimate relations with any residents. Amboy Ex. 8.

There exists no evidence outside of Resident # 4's assertions to support CMS's contention that the CNA engaged in sexual relations with the resident. There is no physical evidence of sexual activity. No third person witnessed the alleged sexual encounters with the CNA, who denied that they occurred. I find that the allegations of the resident - standing alone and uncorroborated - are insufficient to prove prima facie that a sexual relationship occurred. The assertions are hearsay and I do not accord significant weight to them absent some corroboration of the events that the resident alleged to have occurred.

There also is reason to suspect the credibility of the resident's claims. More or less at the same time that the resident was asserting that he'd had sex with the CNA he was asserting also that he'd had sex with numerous other male and female partners, including his mother and Clark Gable. I cannot in the absence of any corroborating evidence separate what might be truthful from what might be fantasy, especially given the resident's history of schizophrenia and his apparently delusional assertions.

CMS makes two arguments to support its assertion that there was a sexual relationship between Resident # 4 and a CNA. First, CMS points out that, in fact, the CNA had a record of having been arrested for sexual solicitation at some point previous to his alleged relationship with Resident # 4. CMS Br. at 8. The CNA had not disclosed this fact to Petitioner's management. The CNA's dishonesty obviously undercuts the credibility of his denial. However, I do not rely on the CNA's denial of a relationship with Resident # 4 as a basis for concluding that the resident's assertions are not credible. I base that conclusion on the fact that the resident's assertions are inherently unreliable, uncorroborated, and are especially suspect given the resident's history of mental illness and the other evidently delusional statements that he made to Petitioner's staff at about the same time that he was describing a past relationship with the CNA. The fact that the CNA's statement also is not credible does not serve to bolster what is an inherently unreliable statement by the resident.

The fact that the CNA was once arrested for having solicited homosexual sex is not evidence that substantiates Resident # 4's claims. The facts surrounding that arrest are not in evidence and there is nothing to show that the CNA was convicted of anything. It would be speculative to base a finding on facts so tenuous as those that are known about the CNA's previous arrest.

Second, CMS contends that it would be unreasonable not to credit Resident # 4's assertion of a sexual relationship with the CNA. Failure to do so, according to CMS, would make it difficult to identify and remedy sexual abuse:

Sexual abuse does not require physical injury, and sex itself is, after all, a private affair. If the standard for determining sexual abuse of a resident by a facility employee is going to require physical evidence and eyewitnesses then most such sexual abuse will not be penalized.

CMS Br. at 14.

I do not find this argument to be persuasive. What CMS is in effect asserting is that unreliable evidence should be deemed reliable on the ground that not doing so would cause possible incidents of sexual abuse to go unremedied. That is no justification for relaxing evidentiary standards. There may be situations where deficient conduct goes unremedied because there is not sufficient evidence to establish that the conduct occurred. That is regrettable. But, the solution for that is not to relax the standards of proof that are necessary to establish prima facie that the conduct occurred. If that were done, there would doubtless be incidents where a facility is penalized for conduct that did not occur, an outcome that is just as troubling as the outcome that CMS worries about.

Moreover, a facility is under an obligation to react at the outset to an allegation of sexual abuse as if the abuse will be substantiated. Abuse allegations must be investigated and residents must be protected whether or not abuse ultimately is established. Consequently, and as I discuss below, a facility that is complying with Medicare regulations will provide as much protection to residents in a case of alleged abuse that is not established as it does in a case of abuse that is alleged and subsequently established. For that reason, establishing that abuse occurred, while not unimportant, is not the be-all and end-all in determining a facility's duty to protect its residents from abuse.

b. The evidence does not establish that Resident # 4 was abused sexually.

Obviously, one cannot make a finding that a resident was abused sexually in the absence of credible evidence establishing prima facie that the resident was either the victim of or participated in sexual conduct. I conclude that there is no basis to find that Resident # 4 was abused sexually because I find no credible prima facie proof that Resident # 4 engaged in sexual activity with a CNA.

But, even though there is no prima facie case that sexual relations occurred between Resident # 4 and a CNA, the weight of the evidence is that, if Resident # 4 did engage in such relations, the affair did not meet the definition of abuse. Medicare regulations define "abuse" to be the:

willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.

42 C.F.R. � 488.301. In a nursing facility, sexual abuse can occur when a resident is forced into sexual activity against his or her will. It can also occur when a member of a facility's staff uses his or her position of dominance or superiority over a resident to coerce sexual favors from that resident. Clearly, sexual abuse can occur where a facility employee exploits a resident's impaired mental or physical state to obtain sexual favors from that resident that the resident might not offer or provide if unimpaired. Physical or psychological harm is an obvious potential consequence of all of the foregoing situations.

Here, assuming that sexual conduct occurred at all, there is no evidence that any of the elements of abuse were met. There is no evidence that the CNA used force to compel Resident # 4 to have sex with him. Nor is there evidence of coercion. The resident asserted that the alleged sexual activity with the CNA was consensual. Amboy Ex. 13, at 3.

I base this last conclusion in some respect on the fact that Resident # 4 did not even allege coercion. More importantly, I rely on the opinion of Dr. Pritesh Shah, a board certified psychiatrist, who evaluated Resident # 4 on February 6, 2004. Dr. Shah concluded that Resident # 4 had the mental capacity to engage in consensual sex. Amboy Ex. 10.

CMS argues that I should not accept Dr. Shah's opinion, arguing that the nurse's notes show that Resident # 4 was manifesting some delusional thoughts - as in contending he had sex with Clark Gable - at about the same time he was examined by Dr. Shah. CMS Br. at 12. According to CMS, Dr. Shah's opinion is not credible because it does not address these delusional thoughts. CMS argues additionally that Dr. Shah's opinion is "self-serving" in the sense that Petitioner had the consultation performed on its behalf when the allegations of a sexual relationship between Resident # 4 and the CNA became known to Petitioner's management. Id.

I find no reason to discredit Dr. Shah's opinion. Dr. Shah is a qualified psychiatrist. His credentials satisfy me that he is capable of evaluating the resident's mental status. Dr. Shah did not conclude that Resident # 4 was free from any mental impairment, but only that the resident had the capacity to engage in consensual sex. I cannot conclude that Dr. Shah's findings are unreasonable absent some credible medical evidence to the contrary. CMS offered no expert opinion to challenge Dr. Shah's opinion. Furthermore, I do not find his report to be self-serving. CMS has offered no evidence to show why Dr. Shah would display bias on Petitioner's behalf. Dr. Shah examined Resident # 4 before allegations were made that Petitioner had failed to protect the resident against abuse.

c. The preponderance of the evidence shows that Petitioner protected Resident # 4 from possible sexual contact with the CNA once allegations of a sexual relationship between the resident and the CNA were made known to Petitioner's staff.

The weight of the evidence establishes that Petitioner acted appropriately to protect Resident # 4 from possible abuse once the resident's allegations were made known to Petitioner's staff and management. The essential action taken by Petitioner was to ensure that the CNA would have no contact with Resident # 4. Petitioner's management suspended the CNA on February 3, 2004, immediately after Resident # 4 made his allegations to Petitioner's staff about having sexual relations with the CNA. Amboy Ex. 13, at 2. The CNA was permitted to return to work on February 9, 2004. Id., at 4. However, the CNA was told that he must remain on the first floor of Petitioner's facility (Resident # 4's room was located on the second floor). Id. The CNA's activities were then closely monitored to ensure that he did not have contact with Resident # 4. Id.

CMS did not argue explicitly that the CNA posed a threat to residents other than Resident # 4 and that Petitioner failed adequately to protect these other residents. However, that argument is implicit in the arguments that CMS did make. The basis for this implicit assertion would be that one could conclude that the CNA posed a threat to other residents based on this CNA's previous arrest record for solicitation of sex coupled with the fact that the CNA remained employed at Petitioner's facility after his State certification had expired. CMS contends, without citing legal authority for this argument, that:

Given . . . [the CNA's] expired certification and outstanding bench warrant, he should not even have been allowed to work in the facility . . . .

CMS Br. at 13.

I do not find these facts to establish Petitioner to have been deficient in protecting its resident population. As to the arrest warrant, Petitioner was not aware of it. Nor did it have reason to be aware of it. Nothing had occurred to bring the fact of the CNA's arrest to Petitioner's attention. Consequently it cannot be said that Petitioner employed the CNA in spite of the outstanding warrant. Petitioner terminated the CNA's employment and notified the police immediately upon learning about the warrant. Furthermore, CMS has identified nothing in Medicare regulations or in New Jersey law or procedures that would impose on a facility the duty routinely to conduct ongoing searches of State arrest records in order to determine whether current employees have outstanding arrest warrants.

A facility is required to obtain verification of credentials of a CNA from a state certification agency as a prerequisite to hiring and employing that CNA. 42 C.F.R. � 483.75(e)(5). There are some exceptions to the general rule which I find unnecessary to discuss here. See 42 C.F.R. � 483.75(e)(5)(i), (ii). However, although the regulation addresses the terms and conditions under which a facility may hire and employ a CNA, it does not address what obligations a facility assumes to keep abreast of its employees' certification and arrest records after they are employed. And, it does not address the issue of re-certification of a CNA who already on a facility's staff.

The CNA whose alleged involvement with Resident # 4 is at issue was hired in May 2003. Prior to hiring him, and in accordance with applicable laws and regulations, Petitioner confirmed that the CNA had a current State certification and that he had no arrest record. Amboy Ex. 2, at 1; Amboy Ex. 13, at 1. The facility was aware that the CNA's certification would expire on September 30, 2003. Amboy Ex. 2, at 1; Amboy Ex. 13, at 1. Consequently, Petitioner assisted the CNA in filing a re-certification application, which was completed in August, 2003. Amboy Ex. 13, at 5. Between September 30, 2003 and February 2004, Petitioner contacted the New Jersey State agency that is responsible for certification of CNAs at least twice to inquire into the status of the CNA's re-certification application. On both occasions Petitioner was told that the application was being processed. Id.

Petitioner assumed that the CNA's re-certification application was being processed in the ordinary course of business and it continued to employ the CNA pending receiving final notification from the State certification agency. The fact that the State delayed processing the application did not put Petitioner on notice that something might be amiss. Petitioner had encountered a similar delay in processing a re-certification application previously, in the case of another CNA. Id.

Petitioner's retention of the CNA while it awaited word from the State is not inconsistent with the requirements of 42 C.F.R. � 483.75(e)(5). As I discuss above, the regulation essentially prohibits a facility from hiring and employing an individual who is not certified. But, it does not require a facility to terminate the employment of a CNA, previously hired while certified, whose application for re-certification was made timely in the circumstance where the state certification agency has delayed processing the application for reasons that are beyond the control of the CNA or of the facility.

Thus, I find no deficiency in the fact that Petitioner continued to employ the CNA in question while it awaited action from the State certification agency, even though the CNA's certification had expired. I note that CMS has not alleged that Petitioner failed to comply with the requirements of 42 C.F.R. � 483.75(e)(5). And, if Petitioner did not contravene that regulation, I do not find that its retention of the CNA while it awaited in good faith final State action on the CNA's re-certification application constituted a failure to protect its residents against possible abuse.

2. Petitioner failed to investigate allegations of sexual abuse consistent with regulatory requirements.

A facility is obligated to treat an allegation of abuse as seriously as it would treat a finding of abuse. It must thoroughly investigate all allegations of abuse. 42 C.F.R. � 483.13(c)(3). As an aspect of that process it must:

ensure that all alleged violations involving mistreatment, neglect, or abuse . . . are reported immediately to the administrator of the facility and to other officials in accordance with State law through established procedures (including to the State survey and certification agency). . .

42 C.F.R. � 483.13(c)(2). And, it must report the results of all investigations to its administrator and:

to other officials in accordance with State law (including to the State survey and certification agency) within 5 working days of the incident . . . .

42 C.F.R. � 483.13(c)(4).

CMS contends that Petitioner failed to comply with these requirements. CMS Br. at 15-18. The weight of the evidence establishes, contrary to CMS's assertions, that Petitioner did conduct a thorough internal investigation of Resident # 4's allegations of a sexual relationship with a CNA. However, CMS is correct in asserting that Petitioner failed to report the allegations or its findings to the appropriate State authorities. In that respect Petitioner's investigation was incomplete and I find it to be a failure to comply substantially with the requirements of 42 C.F.R. � 483.13(c).

In this case, the claim by Resident # 4 of a sexual relationship with a CNA was potentially serious even though it ultimately was not substantiated. The resident's assertion of such a relationship certainly raised the possibility that he had been the victim of coercion or manipulation and, if that were established, that would have been abuse. Consequently, Petitioner was obliged to treat the allegation as if abuse had occurred and to investigate it thoroughly.

The regulation does not define what is meant by a thorough investigation. A facility has discretion to decide how best to conduct an investigation into an allegation of abuse although whatever it does must be thorough and complete. Here, Petitioner conducted a thorough internal investigation of Resident # 4's allegations. Petitioner's administrator interviewed Resident # 4. Amboy Ex. 13, at 3. Petitioner took written statements from the CNA who was allegedly involved sexually with Resident # 4, the individual to whom Resident # 4 had made his allegations (Petitioner's social worker), and from Petitioner's administrator. Amboy Ex. 7 - Amboy Ex. 9. It had Resident # 4 examined by a board certified psychiatrist. Amboy Ex. 10. Petitioner also had Resident # 4 evaluated by its social worker. Amboy Ex. 13, at 3. This investigation was sufficient to establish that there was no persuasive evidence that a sexual relationship had occurred, but that if it did occur it was consensual and not coerced.

CMS contends that Petitioner violated its internal policies in investigating the allegations made by Resident # 4. According to CMS, Petitioner's own policies required it to complete an incident report, notify the resident's attending physician of the allegations, obtain written statements from all individuals involved in the resident's care, and provide close monitoring of all residents involved in the incident. CMS contends that Petitioner failed to do any of the foregoing. Consequently, Petitioner's investigation:

can hardly be said to constitute the type of investigation called for by the federal regulations.

CMS Br. at 16.

I disagree with this argument. The regulatory standard by which to measure the thoroughness of a facility's investigation of abuse is not whether it dotted all of the "i's" and crossed all of the "t's" of its internal policies but whether the investigation was thorough. Petitioner's investigation into the allegations of sexual abuse involving Resident # 4 was thorough because Petitioner interviewed all persons who potentially could have had knowledge of the alleged abuse. Resident # 4 asserted that his alleged sexual relationship with the CNA occurred behind a closed door with no witness other than himself and the allegedly involved CNA. Logically, then, it was incumbent on Petitioner to interview and to obtain statements from all persons who possibly possessed knowledge of the alleged abuse. These could only have consisted of the resident, the CNA, and the person to whom the resident reported the alleged abuse, Petitioner's social worker.

Although the facility appeared not to have contacted the resident's attending physician concerning the allegations of abuse, it referred the resident to a board certified psychiatrist for an evaluation. This was reasonable given that the resident was essentially at Petitioner's facility for care related to his psychiatric problems. Finally, Petitioner created a written record of its investigation consisting of the statements of the persons interviewed plus the report of the consulting psychiatrist. That file certainly sufficed to preserve all of the information that might have been summarized in an incident report.

What Petitioner failed to do was to notify State authorities of the allegations or of the outcome of its investigation. Petitioner's administrator avers that:

I was aware that, pursuant to Federal and State requirements and the Facility's policies, I was required to immediately report alleged violations involving "mistreatment" or "abuse" to the State survey and certification agency and then conduct a thorough investigation into the allegations; however, it was my professional opinion that Resident # 4's statements alone to . . . [Petitioner's social worker] regarding a consensual sexual relationship with the CNA did not, without further investigation, constitute allegations of "mistreatment" or "abuse".

Amboy Ex. 13, at 2.

The problem with this analysis is that it consists of self-justification via hindsight of a failure to comply with regulatory requirements. Petitioner was confronted with an allegation which, on its face, raised a possibility, if not a likelihood, of abuse. Petitioner was able to rule out that possibility after conducting a thorough internal investigation of the allegation. But, the regulation does not permit a facility to reason backwards after having completed its investigation in order to justify not performing an act that should have been done at the inception of the investigation. The regulation plainly calls for notification of state authorities by a facility upon first learning of an allegation of abuse. It also requires a facility to notify the state after it has completed its investigation and either substantiated the allegation or ruled it out. That was not done here.

There is a reason for notifying state authorities at the inception of an investigation into an abuse allegation. Under state and federal laws, state survey agencies have authority to conduct independent investigations into allegations of abuse. That creates an impartial mechanism that is separate from a facility's internal investigation to assure that abuse is uncovered and remedied. By not reporting the allegations in this case Petitioner short circuited the process and, potentially, deprived New Jersey officials of the opportunity to make an independent investigation into the allegation.

Here, the allegation turned out to be unsubstantiated. But, Petitioner could not have known that until it completed its investigation. The potential for abuse and the potential for very serious harm was apparent from the face of the allegation. That triggered an obligation on the part of Petitioner to allow the State to judge independently, if it desired to do so, whether there was abuse.

Petitioner contends that the resident's assertion that his sexual relationship with the CNA was consensual made it evident at the outset of the process that the relationship was not abusive. I find this assertion to be unpersuasive. Petitioner could not have known whether any possible relationship was non-abusive without ascertaining Resident # 4's mental status. That required a psychiatric consultation, which was not completed until days after the resident first reported his allegation. Consequently, Petitioner did not know at the inception that any possible relationship between Resident # 4 and the CNA was non-abusive and it should have reported the potentially abusive relationship to the State.

3. CMS's determination of an immediate jeopardy level deficiency is clearly erroneous.

Regulations define an immediate jeopardy level deficiency to be:

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. There is no definition of the word "serious" in the regulation. In Daughters of Miriam Center, DAB CR1357 (2005), I discussed the meaning of the word. In that decision, I concluded that a serious injury or harm is one that is grave, that requires extraordinary care, or which has lasting consequences. That distinguishes a serious injury from one that is temporary, which is easily reversible with ordinary care, which does not cause a period of incapacitation, which heals without special medical intervention, or which does not cause severe pain.

Evidence of serious injury, harm, or death, is sufficient but not necessary to support a finding of immediate jeopardy. Immediate jeopardy also exists where such consequences have not yet occurred but where there is a likelihood that a deficiency will cause such consequences. 42 C.F.R. � 488.301. However, the mere possibility that a facility's deficient act will cause serious injury, harm or death is not sufficient for there to be immediate jeopardy. Innsbruck Health Care Center, DAB No. 1948 (2004). "Likelihood" must be assessed in terms of probability of outcome. In Daughters of Miriam Center, I concluded that "likelihood" means that an outcome is more probable than not. So, in evaluating whether an immediate jeopardy deficiency exists one must decide - in the case where actual serious injury, harm, or death to a resident has not occurred - whether it is more probable than not that a deficiency will produce such an outcome.

In a case where CMS determines that a deficiency is at the immediate jeopardy level of scope and severity, the burden falls on Petitioner to establish that the determination is clearly erroneous. 42 C.F.R. � 498.60. Petitioner can meet that burden if it argues successfully that CMS failed to offer adequate evidence to establish a prima facie case of an immediate jeopardy level deficiency. Or, if CMS establishes a prima facie case, then Petitioner can meet its burden only if it offers sufficient evidence to prove that the determination is, in fact, clearly erroneous.

Here, I find that CMS failed to establish, prima facie, an immediate jeopardy level deficiency. First, and as I discuss above at Finding 1, the record does not support a finding that Petitioner failed to protect its residents against abuse. Consequently, there cannot be an immediate jeopardy level "abuse" deficiency. Second, although Petitioner was deficient in failing to report to the State survey and certification agency Resident # 4's allegations of a possibly abusive sexual relationship with a CNA, there is no prima facie evidence of serious injury, harm, or death resulting from that failure, nor is there evidence of a likelihood of such consequence.

CMS has identified no evidence showing that either Resident # 4 or other residents were harmed - much less seriously harmed - by Petitioner's failure to notify the State of its abuse investigation. The harm that arguably might have resulted in this case was psychological in nature. I have no doubt that forced or coerced sex in a nursing facility poses a risk that a victim of such abuse might suffer severe and even permanent psychological harm. But, in this case, there is no evidence that such harm occurred. The only evidence of record that addresses the consequences that the alleged sexual relationship had on Resident # 4 are the resident's own assertions and the resident's psychiatric evaluation. Resident # 4 did not assert that he was harmed by the alleged relationship. He contended that the alleged relationship was consensual. Dr. Shah found no evidence of harm.

Therefore, the question is whether there is prima facie evidence of a likelihood that Petitioner's failure to make the necessary notification would cause serious injury, harm, or death to a resident. Clearly, a potential for harm existed in Petitioner's failure to make the requisite report. There was a possibility that an inadequate investigation by Petitioner into the allegations of a sexual relationship between Resident # 4 and the CNA would have left Resident # 4 or even other residents vulnerable to sexually predatory behavior by an employee. Not notifying the State deprived residents of a second level of protection that might assure their protection even if there had been an adequate internal investigation.

However, there is no evidence here that the potential for harm rose to the level of a likelihood of serious injury, harm, or death to a resident. As I discuss above at Finding 2, Petitioner diligently and thoroughly investigated Resident # 4's allegations and established that they were either unsupported or established, at worst, a consensual and non-coercive relationship. Petitioner's diligence eliminated the likelihood that serious adverse consequences would result from its failure to notify the State.

CMS has not explained how Petitioner's failure to notify the State - given its other actions - made it probable that serious injury, harm, or death would occur. CMS's only argument is to state the conclusion that:

[The deficiency] was at the immediate jeopardy level . . . because the facility's failure to investigate made it highly likely that more sexual abuse of Resident # 4 at the hands of the CNA would occur.

CMS Br. at 18. I find no support in the record for this assertion.

4. Civil money penalties of $500 per day are reasonable.

CMS contends that Petitioner was deficient for a four-day period, beginning on February 9, 2004 and running through February 12, 2004. Petitioner has not argued that the duration of its deficiency - assuming one existed - is erroneous. Therefore, I assume for purposes of this decision that Petitioner's failure to notify the State of its investigation into the allegations of sexual abuse persisted for a four-day period.

The question remains what remedies should be imposed to address that deficiency. CMS determined to impose civil money penalties of $5,000 per day against Petitioner. That determination is incorrect on its face because it is premised on the existence of two immediate jeopardy level deficiencies. I have found that there were no immediate jeopardy level deficiencies.

Regulations permit the imposition of civil money penalties in amounts of between $50 and $3,000 per day to remedy deficiencies that are not at the immediate jeopardy level of scope and severity. 42 C.F.R. � 488.438(a)(1)(ii). Criteria for determining the amount of civil money penalties include: the seriousness of a deficiency or deficiencies; the relationship of deficiencies to each other; a facility's compliance history; and a facility's financial condition. 42 C.F.R. � 488.438(f)(1) - (4) (incorporating by reference 42 C.F.R. � 488.404).

Neither CMS nor Petitioner offered evidence as to any of the applicable factors except evidence relating to the seriousness of Petitioner's noncompliance. In that regard, I find Petitioner's noncompliance to be relatively serious, albeit far less so than CMS contends it to be. There is no evidence of actual harm or of a likelihood of harm in this case. But, there is evidence of a potential for harm and the potential is relatively significant. Here, Petitioner did an adequate job in investigating internally the allegations of a sexual relationship between Resident # 4 and a CNA. But, had it failed to do so, the resident might well have been left unprotected given that Petitioner failed to notify the State so that the State would have the opportunity to investigate the matter independently. Moreover, Petitioner's approach to investigating the allegations raised by Resident # 4 left open the possibility that Petitioner might react similarly in other circumstances by not notifying the State of allegations that potentially are serious.

Petitioner's relatively serious noncompliance merits a proportionate civil money penalty amount. I decide that civil money penalties of $500 per day for each day of the four-day period are reasonable because they reflect the relative seriousness of Petitioner's noncompliance.

Steven T. Kessel

Administrative Law Judge