Flora Gardens Care Center, DAB CR5239 (2019)

DECISION

Flora Gardens Care Center (Petitioner or facility) is a skilled nursing facility (SNF), located in Peoria, Illinois, that participates in the Medicare program. Acting on an anonymous complaint, the Illinois Department of Public Health (state agency) conducted a survey of the facility from April 8, 2015, to April 22, 2015. Based on the findings and recommendations of the state agency, the Centers for Medicare & Medicaid Services (CMS) determined that Petitioner was not in substantial compliance with Medicare participation requirements at 42 C.F.R. §§ 483.13(b) and (c), 483.25(k), and 483.75. CMS also determined that Petitioner’s noncompliance posed immediate jeopardy to resident health and safety. On the basis of these findings, CMS imposed civil money penalties (CMPs) totaling $16,000.00. Petitioner contests CMS’s findings of non-compliance and asserts that it was in substantial compliance with the aforementioned regulatory requirements.

For the reasons explained below, I conclude that: 1) Petitioner did not substantially comply with the Medicare participation requirements found at 42 C.F.R. §§ 483.13(c), 483.13(c)(2)-(4), and 483.25(k); 2) CMS’s determination that Petitioner’s noncompliance with 42 C.F.R. §§ 483.13(c) and 483.13(c)(2)-(4) constituted immediate jeopardy to resident health and safety was not clearly erroneous; and 3) the proposed CMPs are reasonable in amount and duration.

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I decline to rule on CMS’s allegations that Petitioner was not in substantial compliance with 42 C.F.R. §§ 483.13(b), 483.13(c)(1), and 483.75 because they are not material to the outcome of this case.

I. Background and Procedural History

On April 7, 2015, the state agency received an anonymous complaint alleging that members of Petitioner’s staff may have abused or neglected residents of Petitioner’s facility. CMS Ex. 3. The state agency responded by initiating an unannounced complaint survey of the facility on April 8, 2015. CMS Ex. 4 at 2. The survey was completed on April 22, 2018. Id.; see also CMS Ex. 2 at 2.

Based on the survey findings and the recommendations of the state agency, CMS determined that the facility had not substantially complied with the following participation requirements:

• 42 C.F.R. §§ 483.13(b) and 483.13(c)(1)(i) (Tag F223) – residents’ rights to be free from abuse and involuntary seclusion, cited at scope and severity level J;1
• 42 C.F.R. §§ 483.13(c)(1)(ii)-(iii) and 42 C.F.R. §§ 483.13(c)(2)-(4) (Tag F225) – facility’s duty to report and investigate allegations of abuse, cited at scope and severity level L;

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• 42 C.F.R. § 483.13(c) (Tag F226) – facility’s responsibility to develop and implement written policies and procedures prohibiting, among other things, abuse and neglect of residents, cited at scope and severity level L;
• 42 C.F.R. § 483.25(k) (Tag F328) – facility’s duty to ensure residents receive proper treatment for certain specified “special services,” including injections, cited at scope and severity level D; and
• 42 C.F.R. § 483.75 (Tag F490) – facility’s administration enables each resident to attain his or her highest practicable physical, mental, and psychosocial well-being, cited at scope and severity level L.

The state agency completed a revisit of the facility on May 21, 2015. CMS Ex. 1 at 2. Based on the revisit, the state agency recommended to CMS that it find the facility returned to substantial compliance as of May 15, 2015. Id.  CMS agreed with the state agency’s findings. Id.  As a result, CMS imposed a per-day CMP of $10,000.00 for April 14, 2015, and a $200.00 per-day CMP effective April 15 through May 14, 2015, for a total CMP of $16,000.00. Id.

On June 23, 2015, Petitioner requested a hearing before an administrative law judge to contest the findings of noncompliance and the remedies imposed. On July 17, 2015, Administrative Law Judge Scott Anderson issued an acknowledgment and pre-hearing order establishing a briefing schedule. In accordance with the schedule Judge Anderson set forth, CMS and Petitioner filed prehearing exchanges, including prehearing briefs (CMS PreHrg. Br.; P. PreHrg. Br.), exhibit and witness lists, and proposed exhibits. In its prehearing brief, Petitioner objected to CMS’s proposed exhibit 11 and requested to cross-examine CMS’s one proposed witness. P. PreHrg. Br. at 1.

This case was reassigned to me on February 1, 2017. On March 15, 2017, I held a prehearing conference via telephone. At the conference, I clarified the issues and overruled Petitioner’s objection to CMS exhibit 11. By subsequent order, I permitted CMS to file a response to Petitioner’s pre-hearing brief and permitted Petitioner to file a sur-reply brief if CMS’s reply brief raised new issues. I also directed each party to notify me whether that party waived appearance at a hearing and agreed to a decision on the written record.

The parties subsequently notified me that they did not waive appearance at a hearing. Therefore, on June 7, 2017, I held a hearing via video-teleconference (VTC). I presided from the Departmental Appeals Board office in Washington, D.C. Counsel for each party, and their respective witnesses, appeared via VTC from the state agency’s Edwardsville Regional Office, in Glen Carbon, Illinois. Christine Self, Esq., represented

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Petitioner, and Gina Rozman, Assistant Regional Counsel, represented CMS. I admitted all of the parties’ exhibits (CMS Exs. 1-13 and Petitioner Exs. 1-13) into the record.

Following the hearing, each party submitted a post-hearing brief (CMS PostHrg. Br.; P. PostHrg. Br). CMS submitted a post-hearing reply brief (CMS PostHrg. R. Br). Petitioner did not file a reply brief. After the time for filing reply briefs had passed, I notified the parties that the record was closed.

II. Issues

The issues in this case are:

1. Whether Petitioner failed to comply substantially with Medicare participation requirements;

1. If Petitioner did not comply substantially with Medicare participation requirements, whether CMS’s immediate jeopardy determination was clearly erroneous; and

1. Whether the remedy proposed is reasonable.

III. Jurisdiction

I have jurisdiction to hear and decide this case. Act §§ 1128A(c)(2), 1819(h)(2)(B)(ii) (codified at 42 U.S.C. §§ 1320a-7a(c)(2), 1395i‑3(h)(2)(B)(ii)); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13).

IV. Discussion

A. Statutory and Regulatory Framework

The Social Security Act (Act) sets requirements for SNF participation in the Medicare program. The Act authorizes the Secretary of the U.S. Department of Health & Human Services (Secretary) to promulgate regulations implementing those statutory provisions. Act § 1819 (codified at 42 U.S.C. § 1395i-3). The Secretary’s regulations are found at 42 C.F.R. parts 483 and 488.

A facility must maintain substantial compliance with program requirements in order to participate in the program. 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. A deficiency is a violation of a participation requirement established by sections 1819(b), (c), and (d) of the Act (42 U.S.C. § 1395i-3(b), (c), and

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(d)), or the Secretary’s regulations at 42 C.F.R. pt. 483, subpt. B. Id. “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.” Id.

The Secretary contracts with state agencies to conduct periodic surveys to determine whether SNFs are in substantial compliance with the participation requirements. Act § 1864(a) (42 U.S.C. § 1395aa(a)); 42 C.F.R. §§ 488.10, 488.20. The Act and regulations require that facilities be surveyed on average every twelve months, and more often if necessary, to ensure that identified deficiencies are corrected. Act § 1819(g)(2)(A) (42 U.S.C. § 1395i-3(g)(2)(A)); 42 C.F.R. §§ 488.20(a), 488.308. The Act also authorizes the Secretary to impose enforcement remedies against SNFs that are not in substantial compliance with the program participation requirements. Act § 1819(h)(2) (42 U.S.C. § 1395i-3(h)(2)). The regulations specify the enforcement remedies that CMS may impose. 42 C.F.R. § 488.406. Among other enforcement remedies, CMS may impose a per-day CMP for the number of days a SNF is not in substantial compliance. 42 C.F.R. § 488.430(a). A per-day CMP may range from either $50 to $3,000 per day for less serious noncompliance, or $3,050 to $10,000 per day for more serious noncompliance that poses immediate jeopardy to the health and safety of residents. 42 C.F.R. § 488.438(a)(1).2  “Immediate jeopardy” exists when “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.

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

1. Petitioner did not substantially comply with the Medicare participation requirements at 42 C.F.R. §§ 483.13(c) and 483.13(c)(2)-(4) (Tags F225 and F226).

CMS’s findings of noncompliance with 42 C.F.R. §§ 483.13(c) and 483.13(c)(2)-(4) arose from a series of interactions between Petitioner’s administrator at the time and two of Petitioner’s residents. In CMS’s view, the interactions in question constituted resident abuse. Petitioner disputes that any resident abuse occurred. For the reasons that I explain in more detail below, it is unnecessary for me to decide whether resident abuse in fact

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occurred.3  Instead, the issues upon which I decide this case are: 1) whether any facility employee was aware of an allegation or other indication that facility staff had potentially abused a resident, but failed to report that allegation or information to, among other required individuals and entities, the state survey agency; and 2) whether the facility failed to implement its written policies and procedures that prohibited mistreatment, neglect, and abuse of its residents. As I describe in the following sections, the record contains ample evidence that, even if resident abuse did not occur, Petitioner’s staff failed in its duty to report possible resident abuse as required by Petitioner’s own policies and by the regulation at 42 C.F.R. § 483.13(c). I discuss my findings that Petitioner was out of substantial compliance with Tags F225 and F226 together because the same underlying facts support both my conclusion that Petitioner failed to comply with the federal regulations and my conclusion that Petitioner failed to comply with its own policies for dealing with allegations of resident abuse.

Regulatory requirements

Section 483.13(c) of the regulations, in effect at the time of the survey, stated as follows:

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law (including to the State survey and certification agency) within 5 working days of the incident, and if the alleged violation is verified appropriate corrective action must be taken.

Petitioner’s policies

Petitioner’s “Abuse Prevention Program Facility Policy” stated, in pertinent parts:

The purpose of this policy is to assure that the facility is doing all that is within its control to prevent occurrences of mistreatment, neglect or abuse of our residents.

* * * *

Abuse: Abuse means any physical or mental injury or sexual assault inflicted upon a resident other than by accidental means in a facility. Abuse is the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish. . . . This assumes that all instances of abuse of residents, even those in a coma, cause physical harm, pain or mental anguish.

* * * *

[Internal Reporting:] Employees are required to immediately report any occurrences of potential/alleged mistreatment, neglect, and abuse of residents and misappropriation of resident property they observe, hear about, or suspect to a supervisor and the administrator.

* * * *

[External Reporting:] Initial reporting of allegations. The facility must ensure that all alleged violations involving mistreatment, neglect or abuse, including injuries of unknown source, misappropriation of resident property, and reasonable suspicion of a crime, are reported immediately to the administrator of the facility and to other officials in accordance with State law through established procedures.

* * * *

Five-day Final Investigation Report. Within five working days after the report of the occurrence a complete written report of the conclusion of the investigation, including steps the facility has taken in response to the allegation, will be sent to the Department of Public Health.

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CMS Ex. 12 at 1-2, 5, 7 (emphasis in original).

As relevant here, Petitioner’s policies included provisions that track the reporting requirements of 42 C.F.R. § 483.13(c)(2)-(4). For example, Petitioner’s own policies required Petitioner’s staff to “ensure that all alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source, misappropriation of resident property, and reasonable suspicion of a crime, are reported immediately to the administrator of the facility and to other officials in accordance with State law through established procedures.” CMS Ex. 12 at 7 (emphasis in original).

In addition, Petitioner had posted in its facility a flyer headed “Complaint Procedure.” P. Ex. 10. That document identified individuals in Petitioner’s chain of command, beginning with the “nurse on duty” and proceeding through Petitioner’s administrator, to the regional director and president/owner of Petitioner’s corporate parent. Id.  The flyer included telephone numbers at which the identified individuals could be reached. Id.

Factual allegations

The state agency identified three instances of alleged resident abuse by the facility’s administrator. See CMS Ex. 2. The allegations consist of one incident involving Resident 1 (R1) and two incidents involving Resident 2 (R2).4  The surveyor found that the incidents were not reported to the state survey agency until the survey had begun. The surveyor also found that the failure to report the incidents violated Petitioner’s own internal policies for investigating allegations of possible resident abuse.

With respect to R1, the surveyor documented that two of Petitioner’s registered nurses (identified as E2 and E14) reported that Petitioner’s administrator5  had told them that the administrator had given R1 a shower and that R1 yelled during the shower. CMS Ex. 2 at 19. E2 and E14 reported that the administrator told them she had sprayed water in R1’s face and he stopped yelling. Id. E2 stated the incident had occurred on April 6, 2015. Id. The surveyor also documented that two of Petitioner’s certified nurse aides (CNAs) (E11 and E12), reported that the administrator had told them, if they were giving R1 a shower and he began yelling, to spray R1 in the face with water and he would stop yelling. Id.

With respect to R2, the CNA identified as E12 told the surveyor that “a couple of months ago” she had witnessed the administrator remove R2 from her wheelchair and place her

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on the floor after R2 had yelled out and was squirming in her wheelchair.6  CMS Ex. 2 at 15. E12 further told the surveyor she had heard the administrator “harshly” tell R2 “if you’re going to act like a baby you can lay on the floor and have a fit like a baby.” Id. The CNA identified as E11 told the surveyor that, although she did not see the administrator place R2 on the floor, she saw the resident sitting on the floor and heard the administrator “rudely” tell R2 “if you’re going to act like a baby you can lay in the floor and have a fit like a baby.” Id. at 16. The nurse identified as E14 reported that the administrator had told her that R2 had been yelling in the dining room and that she had “sat her ass in the floor” and said to R2 “if you’re going to act like a baby you can crawl like one.” Id.  The nurse identified as E2 told the surveyor that the administrator had said to her that R2 had been “throwing a fit and acting like a baby so I put her ass in the floor” and told R2 “if you are going to act like a baby you can sit in the floor like a baby.” Id. According to E2, the administrator acknowledged that the CNAs (E11 and E12) had witnessed the incident. Id.

Petitioner’s employees also described a second incident involving the administrator and R2. The nurse identified as E14 reported that, on April 2, 2015, the administrator told her that R2 had been yelling for her medication so the administrator crushed up some candy, placed the candy in applesauce and, when R2 began to yell again, placed the candy and applesauce in R2’s mouth and told the resident “now, shut up.” Id. at 18. E14 also stated that, after the administrator gave R2 candy in applesauce, E14 attempted to give R2 her medicine and R2 stated she had already taken her medicine. Id. E14 then explained to R2 that she had been given candy and encouraged R2 to take her pills at that time. Id. The nurse identified as E2 told the surveyor that, on the date in question, she had heard R2 cursing and yelling for her medicine, that the administrator told E2 she had put crushed up candy in applesauce and that, when R2 opened her mouth to yell, she gave R2 the candy and applesauce and said “shut up.” Id. at 18-19. The surveyor also interviewed the administrator, who acknowledged putting candy in applesauce and giving it to R2. Id. at 19. The administrator denied having told the resident that the candy was medicine and denied telling the resident to “shut up.” Id. The administrator stated that she had instead told R2, “hush, stop yelling.” Id.

Based on the above allegations, the surveyor concluded that “facility staff had knowledge of situations that would require immediate reporting of suspicion of verbal, mental and/or physical abuse by [the] Administrator to R1 and R2.” Id. at 14. Because the incidents had not been immediately reported to the state agency, the surveyor determined the facility was not in substantial compliance with 42 C.F.R. § 483.13(c)(2)-(4) (Tag F225). Id. Based on the same factual allegations, the surveyor also determined that Petitioner failed to implement its internal abuse prevention policy and thus failed to comply substantially with 42 C.F.R. § 483.13(c) (Tag F226). Id. at 25.

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Petitioner’s investigation of the incidents

Petitioner asserts that its internal “abuse investigations took place timely after abuse was reported and were well investigated.” P. PreHrg. Br. at 9; see also P. PostHrg. Br. at 13. Petitioner contends its internal investigations:

[R]evealed that staff were well trained on recognizing abuse and knowing who abuse allegations should be reported to. In fact, [the administrator] ha[d] posted the grievance procedure and phone numbers in the hallway so that staff and residents would have access to them at any time. The posting also reflected who to report abuse to in the even[t] the alleged abuser was [the administrator]. Staff also were trained on the abuse policy during orientation and frequent inservices.

P. PreHrg. Br. at 9 (internal citations omitted); see also P. PostHrg. Br. at 13. In support of its assertion that its investigation was timely and complete, Petitioner points to P. Exs. 6 and 7, which are dated April 13, and 14, 2015.7  Petitioner avers that its internal investigation revealed that the allegations of abuse were “contradicted by 61 staff members at [the facility], none of whom witnessed [the administrator] abuse a resident.” The internal investigation also reported interviews with “16 residents who also claim they have not been the subject of abuse.” P. PreHrg. Br. at 9; see also P. PostHrg. Br. at 13.

Petitioner further asserts that its investigation raised the possibility that “allegations against [the administrator by E11 and E12] were lodged by those that ha[d] been disciplined by her.” P. PostHrg. Br. at 8. Petitioner cites to the written declaration of its regional director, which states, in part, “[a]t no time did the State surveyor request employment files or investigate the possibility that the statements were fabricated in retaliation for discipline that had been imposed by [the administrator].” P. Ex. 4 at 2. However, regardless of the possible motivations of E11 and E12, Petitioner’s regional director, who investigated the administrator’s conduct, concluded “the [a]dministrator’s comments were inappropriate or insensitive” and that “[t]he [a]dministrator will be re-educated on steps to improve interactive skills with residents and consideration of staff perception.” P. Ex. 6 at 2.

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Petitioner’s substantial noncompliance with reporting requirements

While each party devotes significant argument to whether the events that transpired between the administrator and R1 and R2 amounted to resident abuse, there is no dispute that, at least broadly speaking, the described interactions did occur. CMS argues that the interactions were abusive because the administrator intended to punish or humiliate the residents. Petitioner argues that the administrator’s actions were not so motivated and, thus, were not abusive. According to Petitioner, the incidents involving R1 and R2 “are not instances of abuse and therefore there was no need to report.” P. PreHrg. Br. at 8; P. PostHrg. Br. at 12.

However, the fact that Petitioner’s management ultimately concluded that no abuse had occurred does not establish that Petitioner’s staff immediately reported the allegations of possible abuse, as required by the regulations and by Petitioner’s own policies. Petitioner’s argument that because there was no abuse, there was no need to report puts the cart before the horse. The regulations require immediate reporting so that allegations or suspicions of abuse can be investigated and a determination can be made as to whether any abuse occurred. The regulations do not countenance a backward-looking approach – using the assertion (or even a finding) that no abuse occurred to justify a decision that no reporting was required. As an appellate panel of the Departmental Appeals Board (DAB) stated in Cedar View Good Samaritan:

[T]he salient question is not whether any abuse in fact occurred or whether [the facility] had reasonable cause to believe that any abuse occurred, but whether there was an allegation that facility staff had abused a resident. Here, [facility] staff alleged facts that pointed to the possibility of abuse of a resident by another staff member . . . . Since the allegations of abuse themselves gave rise to [the facility’s] duty under section 483.13(c)(2) to report the . . . incidents to the State agency, [the facility’s] arguments that it did not have reasonable cause to believe that any abuse occurred have no bearing on the ALJ's finding that [the facility] violated this regulation.

DAB No. 1897 at 11 (2003) (emphasis in original); see also Grace Healthcare of Benton, DAB No. 2189 at 6 (2008) (the reasoning in Cedar View Good Samaritan “encompasses not only a direct allegation that the resident has been abused, but also an allegation of facts from which one could reasonably conclude that the resident has been abused”).

In the present case, members of Petitioner’s staff (E2, E11, E12, and E14) alleged facts from which one could reasonably conclude that another staff member (the administrator) had abused R1 and R2. This knowledge created the duty to immediately report the allegations to the state agency, but Petitioner’s staff failed to report the allegations in accordance with 42 C.F.R. § 483.13(c)(2). Moreover, although Petitioner asserts that its internal “abuse investigations took place timely after abuse was reported and were well

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investigated,” Petitioner’s assertion that its investigation was prompt is undermined by the fact that Petitioner’s internal investigation of the December 29, 2014, April 2, 2015, and April 6, 2015 incidents did not begin until after the state survey began on April 8, 2015.

Petitioner violated both its own policies and 42 C.F.R § 483.13(c) by failing to report the abuse allegations to the state agency, and Petitioner’s staff also failed to follow its own procedures for reporting such allegations internally. There is no evidence that any staff member reported the incidents involving R1 and R2 to either the Petitioner’s regional director or to its president, who are identified as the administrator’s superiors in the chain of command, until after the state survey had begun. To the contrary, there is evidence suggesting that members of Petitioner’s staff were uncertain to whom allegations of abuse involving the administrator should be reported. CMS Ex. 2 at 20; see also P. Ex. 6 at 24-25 (notations that staff were “re-educated”). When asked at the hearing whether, after the survey commenced, certain employees at the facility “had to be reeducated on the chain of command for reporting abuse,” Petitioner’s regional director answered “Correct.” See Tr. at 90-92; see also P. PreHrg. Br. at 9; P. PostHrg. Br. at 13.

To be sure, the CNA identified as E11 told Nurse E2 and Petitioner’s social services director about the December 29, 2014 incident in which the administrator allegedly put R2 on the floor. P. Ex. 6 at 16-17; P. Ex. 3 at 5. The documentation suggests that E11 may have believed that reporting to these individuals satisfied her duty to report suspicions of abuse. See P. Ex. 6 at 17 (“employee thought event was handled”). However, the individuals to whom E11 reported are not among those designated to be notified of allegations of potential abuse, according to Petitioner’s complaint procedure. See P. Ex. 10; see also CMS Ex. 12 at 22. Petitioner does not contend that E11 reported her concerns to either Petitioner’s regional director or to its president.

Just as a facility’s conclusion that no abuse occurred does not relieve it of the duty to report suspicions of abuse, the duty to report is similarly not extinguished by a suspicion that potential witnesses may have fabricated or exaggerated reports of possible abuse. Even in situations where a facility determines that an employee fabricated an allegation of abuse “‘it is no defense to assert that the allegations relating to the . . . incident may have been “fabricated” or that they were false. The regulation requires that all allegations of abuse – true or not – be investigated immediately and reported.’” Illinois Knights Templar Home, DAB No. 2369 at 12 (2011) (quoting with approval the reasoning of the administrative law judge). Thus, even if E11 and E12 were motivated to accuse the administrator of abuse because she had previously disciplined them, Petitioner was nevertheless required to report the allegations. In any case, the record contains evidence from other staff members whose accounts largely corroborate that the events described by E11 and E12 in fact occurred. For example, the nurses identified as E2 and E14 told the surveyor that Petitioner’s administrator had told them that she had given R1 a shower, that R1 yelled during the shower, and that she had sprayed water in R1’s face and he

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stopped yelling. CMS Ex. 2 at 19. Similarly, with regard to the April 2, 2015 incident involving R2, E2 and E14 both relayed to the surveyor that the administrator had told them that R2 had been yelling for her medication, and that the administrator crushed up some candy, placed it in applesauce and, when R2 began to yell again, placed the candy and applesauce in R2’s mouth and told the resident “shut up.” CMS Ex. 2 at 18.

In sum, in the face of conduct by the administrator that, at a minimum, gave rise to a question as to whether abuse had occurred, Petitioner’s staff did not immediately report the incidents to the state survey agency, or to any of the individuals identified in Petitioner’s posted complaint procedure. Therefore, with respect to each incident, the individuals who witnessed or suspected possible abuse did not follow Petitioner’s policies, nor did they comply with the regulatory reporting requirements. Accordingly, Petitioner did not substantially comply with 42 C.F.R. § 483.13(c) nor with subsections (c)(2)-(4).

2. Petitioner failed to comply substantially with 42 C.F.R. § 483.25(k) (Tag F328).

The regulation at 42 C.F.R. § 483.25(k)(1) requires facilities to deliver special treatments, such as parenteral fluids, to residents appropriately. CMS concluded that Petitioner was out of compliance with this requirement based on its treatment of a resident identified as R3. According to the Statement of Deficiencies, on April 4, 2015, at 9:00 p.m., an LPN identified as E8 noted R3’s left arm was puffy and blue in color. CMS Ex. 2 at 36-37. At that time, E8 discovered a tourniquet tied on R3’s arm. Id. at 37. Once the tourniquet was removed, normal color came back to R3’s arm, but bruising and an indentation remained. Id.  During the survey, an LPN identified as E7 told the surveyor that she had inadvertently left the tourniquet on R3’s arm. Id. CMS cited the deficiency at Tag F328 at scope and severity “D” which indicates an isolated instance of noncompliance that has the potential to cause more than minimal harm. Id. at 36; see also CMS Ex. 1 at 1.

Petitioner does not dispute that its staff member left the tourniquet on R3’s arm, as alleged. Instead, Petitioner acknowledges that “an LPN [left] a rubber band on a resident’s arm when she attempted to start a peripheral catheter.” P. PostHrg. Br. at 14. Petitioner states that the incident was isolated and “resulted in no actual harm to the resident.” Id. at 15. Petitioner’s characterization is consistent with a finding of noncompliance at the “D” scope and severity found by CMS. I therefore conclude that Petitioner admitted that it was out of compliance with 42 C.F.R. § 483.25(k) (Tag F328).

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3. I need not address CMS’s contentions that Petitioner was not in substantial compliance with 42 C.F.R. §§ 483.13(b) and (c)(1)(i) (Tag F223) and 483.75 (Tag F490), because they are not material to the outcome of this case.

In addition to the Petitioner’s noncompliance with 42 C.F.R. §§ 483.13(c), 483.13(c)(2)-(4), and 483.25(k), described in the previous sections of this decision, CMS found that Petitioner failed to comply with the following regulations: 42 C.F.R. §§ 483.13(b) and 483.13(c)(1)(i) (Tag F223) (abuse) and 42 C.F.R. § 483.75 (Tag F490) (efficient administration). Petitioner denies that it failed to comply substantially with these requirements.

I need not address these alleged deficiencies. I am permitted, “in the interests of judicial economy, [to] review only those deficiencies that have a material impact on the outcome of the dispute.” Claiborne-Hughes Health Ctr. v. Sebelius, 609 F.3d 839, 847 (6th Cir. 2010). As discussed elsewhere in this decision, Petitioner’s noncompliance with 42 C.F.R. §§ 483.13(c), 483.13(c)(2)-(4), and 483.25(k) justifies the remedies imposed in this case. Petitioner’s compliance (or not) with §§ 483.13(b), 483.13(c)(1)(i), and 483.75 is therefore not material to the outcome of this case, and I decline to review CMS’s allegations regarding those participation requirements.

4. CMS’s immediate jeopardy determination was not clearly erroneous.

CMS asserts that Petitioner’s deficiencies posed widespread immediate jeopardy to resident health and safety (the “L” scope and severity level) from December 29, 2014, to April 14, 2015. CMS Ex. 1 at 1-2. Petitioner argues that there is no justification for a finding of immediate jeopardy because no resident was abused, suffered harm, or was likely to suffer harm. P. PreHrg. Br. at 9-10; P. PostHrg. Br. at 13-14.

Immediate jeopardy exists if a facility’s noncompliance with one or more participation requirements has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident. 42 C.F.R. § 488.301. The regulation does not require that a resident actually be harmed. Lakeport Skilled Nursing Ctr., DAB No. 2435 at 8 (2012). I must uphold CMS’s determination as to the level of a facility’s substantial noncompliance (which includes an immediate jeopardy finding) unless it is “clearly erroneous.” 42 C.F.R. § 498.60(c). The “clearly erroneous” standard imposes on facilities a heavy burden to overcome a finding of immediate jeopardy. Appellate panels of the DAB have sustained determinations of immediate jeopardy where CMS presented evidence “from which ‘[o]ne could reasonably conclude’ that immediate jeopardy exists.” See, e.g., Barbourville Nursing Home, DAB No. 1962 at 11 (2005) (citing Florence Park Care Ctr., DAB No. 1931 at 27-28 (2004)), aff’d, Barbourville Nursing Home v. U.S. Dep’t of Health & Human Servs., 174 F. App’x 932 (6th Cir. 2006).

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In this case, even if the specific interactions between Petitioner’s administrator and R1 and R2 were not likely to cause serious injury, harm, impairment, or death to R1 or R2, CMS’s finding of immediate jeopardy is not clearly erroneous. That is because the failure to report allegations of abuse, standing alone, is sufficient to support a finding of immediate jeopardy. This is so notwithstanding a facility’s contention that prohibited conduct such as abuse or theft did not occur, or that any noncompliance was de minimus. For example, in Rosewood Care Center of Swansea, an appellate panel of the DAB affirmed that a facility’s failure to report alleged abuse constituted immediate jeopardy:

“It is apparent that Petitioner’s management did not comprehend the seriousness of the allegations of abuse[;] and so . . . its response to them was lethargic and half-hearted. That had the consequence of leaving residents unprotected against additional instances of abuse, an extremely dangerous situation for the frail and vulnerable individuals who resided at Petitioner’s facility.”

Rosewood Care Ctr. of Swansea, DAB No. 2721 (2016) at 12 (quoting with approval the administrative law judge’s decision).

In this case, as in Rosewood, Petitioner’s repeated failures to promptly report to the state agency allegations of abuse, or to implement its internal policy requiring immediate reporting and investigation of such allegations exposed all of its 55 residents to the risk that they might suffer abuse that would go undetected and unreported. See CMS Ex. 13 at 10. Were that to occur, the residents would indeed be likely to experience serious injury, harm, impairment, or death. Therefore, I cannot conclude that CMS’s immediate jeopardy determination is clearly erroneous. Accordingly, I uphold CMS’s immediate jeopardy determination.

5. The remedy proposed is reasonable in amount and duration.

Regarding the amount of the CMP, I examine whether a CMP is reasonable by applying the factors listed in 42 C.F.R. § 488.438(f): 1) the facility’s history of noncompliance; 2) the facility’s financial condition; 3) the 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 listed in § 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. Unless a facility contends that a particular regulatory factor does not support the CMP amount that CMS proposed, the administrative law judge must sustain it. Coquina Ctr., DAB No. 1860 at 32 (2002).

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The regulations specify that a CMP imposed 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, $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). The lower range, $50 to $3,000 per day, is reserved for deficiencies that do not pose immediate jeopardy, but either cause actual harm to residents, or cause no actual harm but have the potential for causing more than minimal harm. 42 C.F.R. § 488.438(a)(1)(ii). In assessing the reasonableness of a CMP amount, an administrative law judge looks at the per-day amount, rather than the total accrued CMP. See Kenton Healthcare, LLC, DAB No. 2186 at 28 (2008). The regulations leave the decision regarding the choice of remedy to CMS, and the amount of the remedy to CMS and the administrative law judge, requiring that only the regulatory factors at §§ 488.438(f) and 488.404 be considered when determining the amount of a CMP within a particular range. 42 C.F.R. §§ 488.408; 488.408(g)(2); 498.3(d)(11); see also 42 C.F.R. § 488.438(e)(2) and (3); Alexandria Place, DAB No. 2245 at 27 (2009); Kenton Healthcare, LLC, DAB No. 2186 at 28-29.

CMS imposed a per-day CMP in this case, and I have concluded CMS’s finding of immediate jeopardy was not clearly erroneous. For the period of Petitioner’s immediate-jeopardy-level noncompliance, CMS imposed a CMP of $10,000 per day, which is at the upper limit for immediate-jeopardy-level noncompliance. For the period of Petitioner’s below-immediate-jeopardy-level noncompliance, CMS imposed a CMP of $200 per day, which is in the low range for below-immediate-jeopardy-level noncompliance.

CMS argues that Petitioner waived its right to contest the reasonableness of the CMP by not offering evidence concerning the factors specified at 42 C.F.R. 488.438(f). CMS PostHrg. Br. at 23. CMS further contends, generally, that the per-day CMPs imposed are reasonable based on the seriousness of the noncompliance for which the facility was cited and for the immediate jeopardy the noncompliance caused. Id. at 24. CMS further states that once the immediate jeopardy was removed, Petitioner did not come back into substantial compliance with all participation requirements, and therefore the imposition of a $200 CMP from April 15, 2015, through May 14, 2015, is reasonable. Id. at 24-25.

Petitioner contends the CMPs imposed by CMS are not reasonable. P. PostHrg. Br. at 14-15. However, Petitioner does not specifically offer evidence or argument (other than the conclusory statement in its briefs that it has “no prior history of failure to comply” (P. PreHrg. Br. at 11; P. PostHrg. Br. at 15)) that any particular regulatory factor supports a reduction of the CMP amounts proposed by CMS. For that reason alone, I could conclude the CMPs are reasonable in amount and duration. See Coquina Ctr., DAB No. 1860 at 32.

Nevertheless, I do not summarily affirm the CMPs. Instead, I explain why I find that the CMPs imposed are reasonable. First, I agree with CMS that Petitioner’s immediate-

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jeopardy noncompliance justifies a CMP in the high range for immediate-jeopardy noncompliance. As described above, Petitioner’s noncompliance was very serious. The facility’s multiple failures to promptly investigate and report to state officials and to its internal chain of command all allegations or indications of abuse significantly increased the risk that any of the facility’s 55 residents could suffer abuse. As described above, appellate panels of the DAB have endorsed the conclusion that an increased risk of abuse is “an extremely dangerous situation for the frail and vulnerable individuals” who reside in long-term care facilities, such as Petitioner’s. Rosewood Care Ctr. of Swansea, DAB No. 2721 at 12.

Further, the surveyor found that Petitioner had alleviated the immediate-jeopardy situation by April 15, 2015,8  but had not fully returned to substantial compliance because Petitioner had not corrected its noncompliance with 42 C.F.R. § 483.25(k)(1) (Tag F328). CMS Ex. 1 at 1. Petitioner makes no specific argument as to why the CMP proposed for its below-immediate-jeopardy-level noncompliance is not reasonable in amount. While the record does not suggest that R3 suffered any lasting injury from having the tourniquet left on her arm, one can infer from the swelling and bruising that she experienced discomfort, at a minimum. Until Petitioner corrected this deficiency, there was some small risk that other residents could also be exposed to incorrect procedures when Petitioner’s staff (in particular E7) started intravenous lines. I therefore find that the CMP imposed here ($200 per day), which is in the low range of non-immediate jeopardy noncompliance, is reasonable for the period of Petitioner’s continued noncompliance.

Petitioner also did not present evidence that it returned to substantial compliance prior to May 14, 2015. Petitioner has thus not raised a dispute as to the reasonableness of the duration of the proposed CMPs. As appellate panels of the DAB have explained, a facility “has the substantive burden of proving that it achieved substantial compliance earlier than the date CMS determined.” West Texas LTC Partners, Inc., DAB No. 2652 at 18 (2015); see also Chicago Ridge Nursing Ctr., DAB No. 2151 at 26 (2008) (CMS may impose remedies on a facility found out of substantial compliance “beginning as early as the date that the facility was first out of substantial compliance and continuing in effect until the facility establishes that it has achieved substantial compliance or is terminated from the program”). I therefore conclude that the duration of the proposed CMPs is reasonable.

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V. Conclusion

For the reasons set forth above, I sustain CMS’s determinations that Petitioner was out of substantial compliance with Medicare participation requirements. Specifically, I conclude that Petitioner was not in substantial compliance with the participation requirements at 42 C.F.R. §§ 483.13(c), 483.13(c)(2)-(4), and 483.25(k). I further conclude that CMS did not clearly err in determining that Petitioner’s noncompliance posed immediate jeopardy to resident health and safety. I finally conclude that a $10,000.00 per-day CMP for April 14, 2015, and a $200.00 per-day CMP effective April 15 through May 14, 2015, for a total CMP of $16,000.00, are reasonable.

• 1.CMS and state survey agencies consider the scope and severity of deficiencies when selecting enforcement remedies.  CMS summarizes the scope and severity levels in a matrix published in the State Operations Manual (SOM).  SOM, CMS Pub. 100-07, chap. 7, § 7400.5.1 (Rev. 63, effective Sept. 10, 2010, was applicable at the time of the survey at issue; pursuant to Rev. 185, issued November 16, 2018, the matrix currently appears at section 7400.3.1 of the SOM, but the substance is largely unchanged).  The matrix, which is based on 42 C.F.R. § 488.408, specifies which remedies are required and optional at each scope and severity level.  “Scope” describes how many residents are potentially affected by a particular deficiency.  Deficiencies may be “isolated,” “pattern,” or “widespread” in scope.  “Severity” describes the possible harm that a deficiency may cause.  A scope and severity level of A, B, or C describes a deficiency that causes no actual harm with the potential for minimal harm.  Facilities cited with deficiencies at level C or lower remain in substantial compliance.  42 C.F.R. § 488.301.  A scope and severity level of D, E, or F describes a deficiency that has caused no actual harm with the potential for more than minimal harm that is not immediate jeopardy.  A scope and severity level of G, H, or I describes a deficiency that has caused actual harm that is not immediate jeopardy.  Scope and severity levels J, K, and L describe deficiencies that pose immediate jeopardy to resident health or safety.
• 2.CMS recently increased the CMP amounts to account for inflation in compliance with the Federal Civil Penalties Inflation Adjustment Improvements Act of 2015, Pub. L. No. 114-74, § 701, 129 Stat. 584, 599 (2015).  See 81 Fed. Reg. 61,538, 61,549 (Sept. 6, 2016).  The inflation-adjusted amounts apply to CMPs assessed after August 1, 2016, for deficiencies occurring on or after November 2, 2015.  Id. at 61,538.  As the CMPs in this case were assessed prior to August 1, 2016, the increased CMP amounts do not apply in this case.
• 3.Because I do not consider whether CMS established that any resident was abused, I decline to draw inferences from the resident interviews documented by the state agency surveyor.  See CMS Ex. 13 at 79, 81; CMS Ex. 2 at 17.  The probative value, if any, of these resident statements would be relevant to the issue of whether resident abuse occurred, in violation of 42 C.F.R. §§ 483.13(b) and 483.13(c)(1)(i), (Tag F223).
• 4.To protect the privacy of the residents and their families, I refer to the residents by the resident numbers assigned during the survey.
• 5.Petitioner’s administrator is referred to as E1 in the statement of deficiencies.
• 6.The record indicates, and the parties do not dispute, that this incident occurred on December 29, 2014.  CMS Ex. 2 at 21.
• 7.I note that P. Exs. 6 and 7 were created after the state survey had begun (on April 8, 2015) and significantly after the alleged incidents on December 29, 2014, April 2, 2015, and April 6, 2015.  Moreover, P. Ex. 6 addresses only the alleged incident involving R2 on December 29, 2014.  It does not address any allegation regarding R1.
• 8.I note that the state agency found the facility out of substantial compliance beginning on December 29, 2014.  See, e.g., CMS Ex. 1 at 1.  Yet, CMS imposed an immediate-jeopardy-level CMP for only a single day of noncompliance (April 14, 2015).  Id.  It is apparent that CMS had discretion to impose the per-day CMP for many more days, which would have resulted in a much higher total CMP amount than the $16,000.00 CMP that was imposed here.  Thus, although the total amount of the CMP is not subject to my review, I nevertheless observe that the total amount of the CMP here is modest, given the seriousness and duration of Petitioner’s noncompliance.