Chaparral House, DAB CR5639 (2020)

DECISION

Following a survey by the California Department of Public Health (state agency), the Centers for Medicare & Medicaid Services (CMS) concluded that Chaparral House (Petitioner or facility) was not in substantial compliance with Medicare participation requirements at 42 C.F.R. §§ 483.12, 483.12(b)(1)-(3), and 483.95(c)(1)-(3).1  CMS determined that Petitioner’s noncompliance posed immediate jeopardy to resident health and safety and imposed two per-instance civil money penalties (CMPs).  Petitioner requested a hearing to challenge CMS’s findings and the remedies it imposed.

For the reasons explained in this decision, I conclude that Petitioner did not substantially comply with Medicare participation requirements found at 42 C.F.R. §§ 483.12, 483.12(b)(1)-(3), and 483.95(c)(1)-(3), and the per-instance CMPs imposed are

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reasonable.  As I explain more fully below, I need not consider whether the finding of immediate jeopardy was clearly erroneous.

I.    Background and Procedural History

Petitioner is a skilled nursing facility (SNF) located in Berkeley, California.  See, e.g., CMS Exhibit (Ex.) 1 at 1.  Surveyors from the state agency completed a survey of Petitioner’s facility on December 14, 2016.  Id.  Based on the survey findings, CMS determined that the facility was not in substantial compliance with the following participation requirements:  42 C.F.R. §§ 483.12 (Tag F223), and 483.12(b)(1)-(3) and 483.95(c)(1)-(3) (Tag F226).  CMS Ex. 11 at 3-4.  CMS determined that Petitioner’s noncompliance with these requirements posed immediate jeopardy to the health and safety of Petitioner’s residents.  Id. at 3.

In a letter dated December 22, 2016, CMS informed Petitioner of its determination of substantial noncompliance, immediate jeopardy, and the imposition of per‑instance CMPs of $10,314 each for the noncompliance cited at Tags F223 and F226.  Id. at 3-4.  CMS initially notified Petitioner that it would terminate Petitioner’s Medicare provider agreement and impose a denial of payment for new admissions, but after a revisit survey, CMS rescinded those remedies, finding that Petitioner had returned to substantial compliance as of February 2, 2017.  Id. at 1‑2.

Petitioner timely requested a hearing, and the case was assigned to me.  I issued an acknowledgment and prehearing order (Prehearing Order) establishing a briefing schedule.  In accordance with the schedule, CMS and Petitioner filed prehearing exchanges, including prehearing briefs (CMS Br. and P. Br., respectively), exhibit and witness lists, and proposed exhibits.  As part of their prehearing exchanges, CMS offered the written direct testimony of two witnesses.  CMS Exs. 13, 14.  Petitioner offered the written direct testimony of four witnesses.  P. Exs. 4-7.  Each party requested to cross‑examine the opposing party’s witnesses.

On January 31, 2018, I held a hearing via video-teleconference (VTC), and a transcript (Tr.) was made of the proceeding.  I presided from the Departmental Appeals Board office in Washington, D.C.  Counsel for each party, and their respective witnesses, appeared via VTC from CMS’s Regional Office in San Francisco, California.  James A. Napoli, Esq., and Ann Mary Olson, Esq., represented Petitioner.  Matthew Drogemuller, Assistant Regional Counsel, represented CMS.  I admitted CMS Exs. 1-3 and 5-14 and P. Exs. 1-7 into the record.  I excluded CMS Ex. 4.  Tr. at 15, 17-18, 34, 65, 106, 141.  During the hearing, counsel for Petitioner cross-examined two employees of the state agency who participated in the survey of Petitioner’s facility.  Counsel for CMS cross-examined Petitioner’s Administrator and a Certified Nursing Assistant (CNA) employed by Petitioner.

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Following the hearing, each party submitted a post-hearing brief (CMS Posthrg. Br.; P. Posthrg. Br.) and a reply brief (CMS Reply; P. Reply).

II.    Issues

The issues in this case are:

1. Whether Petitioner failed to comply substantially with Medicare participation requirements; and, if not,

2. Whether the CMP amounts are reasonable.

III.    Jurisdiction

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

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 or 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 (d)), or the Secretary’s regulations at 42 C.F.R. pt. 483, subpt. B.  “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.”  42 C.F.R. § 488.301.

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.

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Regarding the specific participation requirements at issue in the present case, the regulations require facilities to ensure that residents are free from abuse:

The resident has the right to be free from abuse, neglect, misappropriation of resident property, and exploitation as defined in this subpart.  This includes but is not limited to freedom from corporal punishment, involuntary seclusion and any physical or chemical restraint not required to treat the resident’s medical symptoms.

42 C.F.R. § 483.12.

The regulations define “abuse” and “neglect” as follows:

Abuse is the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.  Abuse also includes the deprivation by an individual, including a caretaker, of goods or services that are necessary to attain or maintain physical, mental, and psychosocial well-being.  Instances of abuse of all residents, irrespective of any mental or physical condition, cause physical harm, pain or mental anguish.  [Abuse] includes verbal abuse, sexual abuse, physical abuse, and mental abuse including abuse facilitated or enabled through the use of technology.  Willful, as used in this definition of abuse, means the individual must have acted deliberately, not that the individual must have intended to inflict injury or harm.

Neglect is the failure of the facility, its employees or service providers to provide goods and services to a resident that are necessary to avoid physical harm, pain, mental anguish, or emotional distress.

42 C.F.R. § 488.301.

In addition, subsection 483.12(b) provides that facilities must develop and implement written policies and procedures that:

(1)  Prohibit and prevent abuse, neglect, and exploitation of residents and misappropriation of resident property,

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(2)  Establish policies and procedures to investigate any such allegations, and

(3)  Include training as required at paragraph § 483.95.

42 C.F.R. § 483.12(b)(1)-(3). 

Finally, 42 C.F.R. § 483.95(c), as cross-referenced at 42 C.F.R. § 483.12(b)(3), requires facilities to, at a minimum, educate staff on:

(1)  Activities that constitute abuse, neglect, exploitation, and misappropriation of resident property as set forth at § 483.12;

(2)  Procedures for reporting incidents of abuse, neglect, exploitation, or the misappropriation of resident property; and

(3)  Dementia management and resident abuse prevention.

42 C.F.R. § 483.95(c)(1)-(3).

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

1.    I find the following facts by a preponderance of the evidence.

Petitioner’s Abuse Prevention Policy

During the relevant time period, Petitioner maintained a policy, entitled “Abuse Prevention and Reporting” (hereafter “abuse prevention policy”).  CMS Ex. 10.  Petitioner’s policy prohibited abuse in all forms and contained detailed requirements for detecting, investigating, and reporting abuse.  The policy guaranteed that “[w]ithout fear of retribution, residents, family members, visitors, volunteers and staff may report concerns, incidents/events and grievances about resident care to the Administrator, Director of Nursing, Nurse Managers, Department Managers and Charge Nurses or Medical Director.”  CMS Ex. 10 at 1-2.  It required management to “remov[e] person(s) named in [a] complaint from the immediate vicinity of the resident(s) for the duration of [an] investigation.”  Id. at 2.  It established a process for the facility to report suspected abuse to appropriate outside agencies, and required “[a]ny staff member who identifie[d] a suspicious event that may be evidence of abuse,” to report their concerns to appropriate facility officials.  Id. (emphasis added).

The policy had specific requirements for abuse investigations.  It required “thorough investigations,” and required the person conducting the investigation to “[i]nterview[] . . . the resident if possible.”  Id. at 2-3.  Recognizing that some residents may not be capable

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of being reliably interviewed, the policy stated that a resident lacking capacity “may be interviewed and their lack of capacity noted in the interview summary.”  Id. at 3.  Further, it allowed a resident “with cognitive impairment” to be interviewed notwithstanding, but required that “their capability to answer questions [be] assessed by interviewer and documented in the interview summary.”  Id.  As part of the investigation, the policy required interviews with “other persons who may have or are likely to have . . . first hand knowledge of the event”; “other care staff on duty during the (likely) time of the event”; and “other persons on duty or likely to be in the vicinity.”  Id.  Interviewers were to create “a detailed note documenting the interview including, where applicable, quotations from the person being interviewed.”  Id. at 4.  Interviews had, at a minimum, to include “the who what when where why and how of events.”  Id.  The policy expected that the subject of any interview would “write their statement in their own words,” or, where the subject refused, the interviewer would “document the person’s statement using direct quotations whenever possible.”  Id. at 3-4.  Finally, the policy required the Administrator to retain “all reports for a specified period whether required to report or include in medical record or not,” and established “[s]even years following discharge,” as the appropriate period.  Id. at 4.

Resident 12

In November and December 2016, Resident 1 was a 91-year-old woman with diagnoses that included Alzheimer’s disease, anxiety disorder, major depressive disorder, hypothyroidism, hypertension, anemia, osteoarthritis, and unspecified pain.  CMS Ex. 5 at 2, 62.  The resident’s Minimum Data Set (MDS) assessment, dated September 27, 2016, documented that she had short- and long-term memory problems.  Id. at 7.  The MDS further documented that Resident 1 relied on staff to accomplish activities of daily living (ADLs).  For example, Resident 1 required extensive assistance for dressing and transfers.  Id. at 11.  The resident was totally dependent on staff for toileting and personal hygiene.  Id.  In the MDS section headed “Behavioral Symptoms,” the MDS prompts inquire how frequently during the look-back period the resident exhibits certain behaviors.  Id. at 10.  In response to the prompt for “Physical behavioral symptoms directed toward others (e.g., hitting, kicking, pushing, scratching, grabbing, abusing others sexually),” staff recorded that they observed “0” behaviors during the period.  Id.  In response to the prompt for “Verbal behavioral symptoms directed toward others (e.g., threatening others, screaming at others, cursing at others),” staff recorded that they observed “0” behaviors during the period.  Id.

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Resident 1’s care plan noted that she could be resistant to care.  Id. at 41 (“[r]esisting personal hygiene”).  Goals for the resident included, “Dignity/self-esteem will be preserved by minimizing her risk for inappropriate behaviors, resistance to care[,] and unassessed needs.”  Id. at 41-42.  The care plan listed a number of approaches to achieve these goals, including:  “[p]rovide the resident with necessary cues ‒ stop and return if agitated” and “[i]ntroduce yourself and let her know what you are about to do and what you expect her to do.”  Id. at 42.

Petitioner’s Administrator and a CNA who cared for Resident 1 both offered written direct testimony describing Resident 1’s behaviors and resistance to care.  Petitioner’s Administrator stated, “[s]ince she was admitted, Resident 1 has been resistant to care.  She is easily agitated and frequently becomes combative when staff members attempt to assist her.  In particular, Resident 1 frequently uses foul language when speaking to staff members.  She also regularly spits on staff members when she does not want them to assist her.”  P. Ex. 4 at ¶ 4.  CNA S.D.3 testified that spitting and cursing was “normal behavior” for Resident 1.  P. Ex. 5 at ¶ 9.  S.D. explained, “[w]e only leave her alone and come back later when she is unusually agitated, because she is agitated all the time.”  Id.

Events of November 28, 2016

On November 28, 2016, two of Petitioner’s employees, CNAs S.D. and L.T.,4 were providing care to Resident 1.  Two CNA students, C.D. and K.M.,5 who were not employed by Petitioner, were shadowing CNA S.D. as part of their clinical training.  CMS Ex. 9 at 1, 6.  The CNA students reported that, while S.D. and L.T. were changing Resident 1’s incontinence brief, the resident became combative and began spitting at the CNAs.  CMS Ex. 9 at 1-2, 6.  According to the students, S.D. and L.T. did not explain what they were doing, held the resident’s arms down, put a towel over her nose and mouth, and L.T. slapped the back of the resident’s head and called the resident a “nasty bitch.”  Id.  During this interaction, the students said Resident 1 complained that she could not breathe and told the CNAs to stop.  Id.

The CNA students described the events to their on-site instructor, a licensed vocational nurse (LVN) not employed by Petitioner, but the LVN instructor did not want to get involved.  Id. at 1-2, 6-7.  The students then called a registered nurse (RN) instructor at their training program to report the incident.  Id. at 1-2.  The RN instructor reported the

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students’ allegations to the state agency.  Id. at 1.  Neither the CNA students nor their instructors reported the allegations to Petitioner’s management or to any member of Petitioner’s staff.

State agency complaint investigation

Based on the RN instructor’s report, the state agency conducted a complaint investigation of Petitioner’s facility.  Felicia Barbato, RN, HFEN [Health Facilities Evaluator Nurse] (Surveyor Barbato), began the investigation on December 1, 2016.  CMS Ex. 9 at 1; CMS Ex. 13 at ¶¶ 1‑3.  On December 1, 2016, Surveyor Barbato interviewed the RN instructor and C.D., one of the CNA students who witnessed the alleged abuse of Resident 1.  CMS Ex. 9 at 1-2.  Surveyor Barbato also interviewed Resident 1.  Id. at 4; see also CMS Ex. 13 at ¶ 10; Tr. at 75-77, 99-100.

In the course of her investigation, Surveyor Barbato recorded notes of her interviews.  CMS Ex. 13 at ¶¶ 3, 4; see also CMS Ex. 9.  I find it is more likely than not that CMS Ex. 9 accurately records the substance of the interviews Surveyor Barbato conducted.  According to her notes, during a telephone interview conducted at or about 2 p.m. on December 1, 2016, CNA student C.D. stated:

I was working with [S.D.] ‒ went into [resident] rooms . . . [L.T.] . . . sat down ‒ got on her phone.  [S.D.] (not announcing) grabbed [Resident 1’s] arm down hard ‒ wanting to change her brief.  [Resident 1] then got combative.  [L.T.] got up + held the other arm + held her down.  [Resident 1] got more combative + started to spit.  We stood back ‒ they rolled her over ‒ very rough ‒ still not telling her what they were doing.  Put towel over nose + mouth ([Resident 1]) ‒ She said [“]I can’t breath[e”] . . . they took the towel off ‒ rolled her over to the other side.  [Resident 1] yelled “let go of me you bitches.”  The CNAs got mad + [L.T.] called her a nasty bitch.  As they put the sling[6 ] under her ‒ to transfer ‒ [L.T.] put her hand over [Resident 1’s] nose + mouth ‒ [Resident 1] slightly bit her ‒ they lifted her up + into the [wheelchair] ‒ [L.T.] hit [Resident 1] in the back of the head 5 times.  [Resident 1] said [“]stop hitting me in the head.[”]  [S.D.] was laughing [.] they asked me to take [Resident 1] to the dining area + I did that.  [K.M.] + I thought it was abuse ‒ we told

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[LVN on-site instructor] ‒ she told us to ignore it ‒ brushed it off ‒ then I called [RN instructor].

CMS Ex. 9 at 1-2.

At or about 2:15 p.m. on December 1, 2016, Surveyor Barbato interviewed CNA S.D., who was on duty at Petitioner’s facility.  Id. at 3.  According to the surveyor’s notes, S.D. stated that Resident 1 spit when the CNAs changed and dressed her.  Id.  She stated, “I did not see anyone put a towel or hand on her face.”  Id.  S.D. elaborated:

You need help with her ‒ when you dress her ‒ We did not hold her arm[s] down.  We told her what we were doing ‒ I did not hit her.  I did not see anyone hit her. ‒ When you wash her face ‒ she will say you slapped her face.  We did not say bitch.  [Resident 1] says bitches ‒ but we did not say or call her a bitch.

Id.  At or about 2:40 p.m. on December 1, 2016, Surveyor Barbato interviewed CNA L.T. by telephone.  Id.  According to the surveyor’s notes, L.T. stated:

I think the brief was already changed when I got there.  We put her on the sling.  She fusses ‒ a little combative ‒ she spits ‒ we put a towel on her mouth ‒ she said [“]stop leave me alone” ‒ we put her in the chair + I brushed her hair. . . .  [T]he towel slid down + off[.]

Id.  Surveyor Barbato noted that she asked CNA L.T. if she had hit Resident 1 in the back of the head or put her hand over Resident 1’s nose and mouth and L.T. replied, “[n]o.”  Id.

At or about 3:05 p.m. on December 1, 2016, Surveyor Barbato interviewed Resident 1.  Id. at 4.  This interview took place in the Director of Nursing Services’ (DON’s) office.  Tr. at 99‑100.  According to the interview notes, Resident 1 stated:

[L.T.] put a towel on my face.  It made me feel foolish.  She humiliated me.  They did not explain what they were doing.  It was a humiliating experience.  [T]hey held my arm down ‒ they all hit me.  I had a humiliating experience.  [T]hey called me a bitch.  It only happened one time[.]  Other staff are OK ‒ when she put the towel on my face ‒ I could not breathe.  Awful experience to feel like I was suffocating.

CMS Ex. 9 at 4.

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On December 9, 2016, at or about 2:59 p.m., Surveyor Barbato interviewed the CNA students’ LVN on-site instructor by telephone.  CMS Ex. 9 at 6.  The LVN instructor stated that the students “did not describe what they had seen” and only told her that Petitioner’s “CNAs were verbally rough” with the resident.  Id.

Also on December 9, 2016, at or about 3:07 p.m., Surveyor Barbato interviewed K.M., the second CNA student who witnessed the alleged abuse, by telephone.  Id.  According to Surveyor Barbato’s notes, K.M. stated the following:

[C.D.] + I were assigned to work with [S.D.] + assigned [Resident 1] ‒ She has dementia.  [L.T.] came in to helped [sic].  At first, [L.T.] was sitting down + was looking at her phone.  [S.D.] was changing the brief + [Resident 1] said [“]I don’t want you to do this.[”]  [S.D.] continued to try + change the brief.  [Resident 1] then started spitting at [S.D.].  [L.T.] started to help ‒ [Resident 1] started to spit at both of them.  She again told them to stop.  [T]hey continued to change her brief.  [Resident 1] said, “don’t hit me in the head again.[”]  [T]hey were starting to get her up onto the [H]oyer Lift to the wheelchair.  When she got to the [wheelchair] they tied a towel around her mouth ‒ they were trying to tie it + it fell off[.]  [L.T.] was hitting the top of [Resident 1’s] head + said she was a nasty bitch. . . .  [S.D.] saw [L.T.] hit Resident’s head + she did not say or do anything.  When they were changing the brief [L.T.] held [Resident 1’s] arms down + [S.D.] changed the brief. . . .  [W]e told [LVN on-site instructor] what we had seen.  She said she did not want to get involved but if we wanted to report it we could.  So we did.  When they were changing her brief [Resident 1] was screaming + yelling.  [T]he way they were treating her was not right at all.

Id. at 6-7.

Kelly Kendall, R.N., HFES [Health Facilities Evaluator Supervisor] (Supervisor Kendall), also participated in the state agency’s complaint investigation.  See CMS Ex. 14 at ¶ 3.  She spoke to Petitioner’s Administrator by telephone on December 13, 2016.  During that conversation, Supervisor Kendall noted that the Administrator stated, “I just don’t believe it [the alleged abuse] happened.”  CMS Ex. 8 at 1.  According to Supervisor Kendall, the Administrator also expressed her understanding that placing a washcloth over a resident’s mouth “was a proper technique.”  Id.  In addition, Supervisor Kendall conducted observations at Petitioner’s facility on December 14, 2016.  CMS. Ex. 14 at ¶ 8.  While she was at the facility, Supervisor Kendall observed and interviewed

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Resident 1.  See CMS Ex. 8 at 4-5; Tr. at 110.  According to her notes, the resident told Supervisor Kendall that she remembered talking to “Lisa” (Surveyor Barbato) and that the resident told the surveyor she had hurt her hand.  Id. at 5.  Resident 1 also reportedly stated that the CNAs are “very nice” and that no CNAs hurt her.  Id.  However, shortly thereafter, the resident reportedly stated, “[t]hat big bitch hit me.”  Id.

Petitioner’s internal investigation

Petitioner’s management, including its Administrator, DON, and Director of Staff Development (DSD), were unaware of the allegation that CNAs S.D. and L.T. had abused Resident 1 until Surveyor Barbato entered the facility on December 1, 2016, to conduct the complaint investigation.  See, e.g., P. Ex. 4 at ¶ 6.  On December 1, 2016, CNA S.D. was on duty; CNA L.T. was not on duty.  Id. at ¶ 8.  Petitioner’s management placed CNA S.D. on administrative leave pending investigation of the abuse allegation.  P. Ex. 7 at ¶ 6.  S.D. was instructed to leave the facility.  Id.  Management contacted CNA L.T. by telephone and informed her she was being placed on administrative leave pending investigation of the abuse allegation.  Id. at ¶ 9.

Petitioner’s management prepared a document titled Final Investigation Report and Conclusion (Investigation Report).  CMS Ex. 7.  Petitioner transmitted this report to the state agency.7   Id. at 1.  The report indicates that Petitioner opened its investigation on December 1, 2016.8   According to the Investigation Report, between December 1, 2016 (Thursday) and December 5, 2016 (Monday), Petitioner took or planned to take the following steps:

1. No injuries apparent to resident, head to toe assessment by DON.
2. CNAs named in allegation were sent home on administrative leave and reminded of policy to not contact co-workers or others (including resident or family members).
3. CNA school instructors (all schools) asked to do an in-service to all students with clinical time at CH [Chaparral House]- specifically

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focus on abuse prevention and reporting- mandated reporters and student’s responsibility.

a. Students are required to report to their instructors.  Instructors are required to report to CH staff.  (DSD, DON, ADMIN or any licensed nurse in charge 24/7/365).
b. Fax lesson plan and sign in sheets to DSD at least by end of next week- sooner if possible.  Also ask Instructors to ask opened ended questions to determine if any other information is available about the alleged incident.  Let DSD/DON know immediately if anything.

4. In-service all CH staff--start today - on all shifts - all depts . . . on abuse prevention and reporting policy and procedure.  Copy sign-in sheets for all depts. and repetitions.  Lesson plan copy to file.
5. Talk with family. (done)
6. Notify MD. (done)
7. Interview staff on-duty that day.
8. Interview alert residents and pertinent others to determine any care or attitude complaints about any CNA.
9. Interview family of residents and residents cared for by named CNAs to determine level of satisfaction with care, concerns etc.
10. Schedule LCSW [Licensed Clinical Social Worker] to come see Resident and talk with staff.
11. Social Service Designee (SSD) to see resident and document any mood changes or differences from her usual behaviors.  Continue to see her and document mood changes or differences for at least a week- more as needed.
12. Keep family updated.

Id. at 2-3 (footnotes omitted).

The Investigation Report goes on to describe that on “Monday” (December 5, 2016), management continued “[g]athering and reviewing staff statements and interviews” and that the “[e]mployees9 [were] brought back to work.”  Id. at 3.  On “Tuesday” (December 6, 2016), the Investigation Report describes a plan to “involve CNAs in reenactment to get a visual picture of what DON was told and why, what and how can we address every one of those details.  Reinterview selected staff.”  Id. at 4.  Also on Tuesday, management noted, “[r]eview reenactment lessons/observations.”  Id.  On “Wednesday” (December 7, 2016), the Investigation Report documents that Petitioner’s DSD spoke with the director of the CNA training program in which the student witnesses were enrolled.  Id.  According to the director, the students’ on-site instructor knew “something

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occurred” but “no one thought it was abuse” and the instructor “did not investigate further.”  Id.  Also on Wednesday, CNA L.T. notified Petitioner that she had decided not to renew her CNA certificate and would not return to work.  Id.; but see CMS Ex. 12 at 2 (showing L.T. worked on December 8, 9, 10, and 11).

In addition to the Investigation Report, Petitioner’s management provided written direct testimony describing elements of the investigation.  For example, Petitioner’s Administrator testified:

We also separately interviewed both [L.T.] and [S.D.] about the allegations.  Both [L.T.] and [S.D.] unequivocally denied that any such abuse occurred.  I know both CNAs well, and I found their statements credible.  Both [L.T.] and [S.D.] are devoutly religious and it is inconceivable to me that either of them would intentionally harm a resident or lie to protect someone who had done so.

When interviewed, [L.T.] and [S.D.] described their interactions with Resident 1 on November 28, 2016 similarly.  There were no inconsistencies in their stories.  Both of them said that [S.D.] had checked on Resident 1 and determined that she was ready to be groomed and dressed for the day, and that [S.D.] requested assistance from [L.T.] because Resident 1 typically required the assistance of two CNAs for personal hygiene matters.  The two CNA students were shadowing [L.T.] that day, and so they came into Resident 1’s room with [L.T.] when she went to assist [S.D.].  Both CNAs said that Resident 1 was slightly agitated and combative, but not more than usual.  [S.D.] reported that, before retrieving [L.T.], she had asked Resident 1 if she wanted to get up and get ready for the day, and Resident 1 said yes.

Both [L.T.] and [S.D.] reported that Resident 1 initially resisted assistance and spit at them.  [L.T.] confirmed that she did place a small towel near Resident 1’s mouth to block the spit, but she did not secure the towel or tuck it in to keep it in place.

Both CNAs denied hitting Resident 1, restraining her, or pulling her hair.  [L.T.] told us that she was trying to comb Resident 1’s hair when Resident 1 said “[s]top hitting me.”  Resident 1 frequently tells staff to stop “hitting” her even if they are not even touching her but just get too close to her.

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P. Ex. 4 at ¶¶ 12-15 (internal numbering omitted); see also P. Ex. 7 at ¶¶ 10-13 (written direct testimony of DON using virtually identical language).  Neither witness declaration identifies the date (or dates) on which these interviews took place.10   If Petitioner’s staff made contemporaneous notes of the interviews with L.T. and S.D., Petitioner did not produce the notes as exhibits in this proceeding.

Petitioner’s Administrator testified that management’s investigation included the following additional activities:

• Requested that the state agency disclose the names of the CNA students who made the allegations;
• Were unable to interview the CNA students because the state agency refused to disclose their names;
• Contacted Resident 1’s family, who did not notice any change in the resident’s physical symptoms or behavior;
• Contacted Resident 1’s physician, who did not note any change in the resident’s condition;
• Interviewed every staff member who had been on duty on November 28, 2016;
• Interviewed “all residents who are alert”;
• Engaged a licensed clinical social worker (LCSW) to evaluate Resident 1;11

See P. Ex. 4 at ¶¶ 19-26.  If Petitioner’s staff made contemporaneous notes of the interviews with staff, residents, family members, and others, Petitioner did not produce the notes as exhibits in this proceeding.

Petitioner’s Administrator and DON also described the “reenactment” of the alleged incident in their written direct testimony.  For example, Petitioner’s Administrator testified:

As part of the second phase of our investigation, we did a reenactment of the situation on November 28 in Resident 1’s

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room so that we could better understand how the CNA students might have misunderstood or misapprehended what happened.  Based on where the students had been standing in the room in relationship to where Resident 1 was and where the CNAs were, it was clear to me that it would have been easy for the students to become confused.  Because the students were positioned in a place where they couldn’t see the faces of Resident 1 and the CNAs, and because the students weren’t familiar with Resident 1’s voice and the CNAs’ voices, it would be easy for them to think that it was the CNAs who were using foul language when in fact it was Resident 1 who was calling the CNAs “bitches.”

The staff member who sat in the wheelchair during the reenactment also noted that the resident’s head might have been uncomfortably touching or bouncing against the wheelchair headrest while CNA 1 was combing her hair, which would also explain Resident 1’s accusation that someone was “hitting” her.

P. Ex. 4 at ¶¶ 33-34 (internal numbering omitted); see also P. Ex. 7 at ¶¶ 15-16 (virtually identical testimony by DON).  Neither witness declaration identifies the date on which the “reenactment” took place.12  If Petitioner’s staff made contemporaneous notes or diagrams of the “reenactment,” Petitioner did not produce any such notes or diagrams as exhibits in this proceeding.

The conclusion section of Petitioner’s Investigation Report included the following observation:

[Petitioner] has changed our recommended intervention for spitting residents as the [state agency] states that wash cloth or towel over the mouth of a spitting resident is not appropriate.  Where possible (without exacerbating the situation) a surgical type mask has always been and will

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continue to be the first intervention recommended and used to prevent someone from spitting on staff.  

CMS Ex. 7 at 6.

Petitioner summarized the result of its investigation as follows:  “CNAs [L.T. and S.D.] did not abuse the resident.  Each allegation as presented can be ‘answered’ appropriately and demonstrated via reenactment to show how it could look otherwise to observers.”  Id.

Subsequent events

The California Department of Public Health, Professional Certification Branch, Investigation Section, which is responsible for overseeing the certification of CNAs in California, investigated the allegations against L.T. and S.D.  P. Exs. 1, 2.  The investigation resulted in a finding that “no further investigation or disciplinary action is warranted at this time.”  Id.

For the reasons explained in the following section of this decision, I conclude that the facts I have found above establish that Petitioner did not comply substantially with Medicare participation requirements.

2.    Petitioner was not in substantial compliance with Medicare participation requirements.

a.    Petitioner was not in substantial compliance with 42 C.F.R. § 483.12 (Tag F223) because it failed to ensure that Resident 1 was free from abuse.

SNF residents have the right to be free from abuse.  42 C.F.R. § 483.12.  A facility must not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion.  42 C.F.R. § 483.12(a)(1).  In pertinent part, the regulations define “abuse” as “the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.”  42 C.F.R. § 483.5.  “Willful . . . means the individual must have acted deliberately, not that the individual must have intended to inflict injury or harm.”  Id.

CMS argues that Petitioner failed comply substantially with 42 C.F.R. § 483.12 because CNAs L.T. and S.D. forcibly provided care to Resident 1 on November 28, 2016.  CMS contends that, in the course of providing incontinent care and dressing the resident, the CNAs held the resident down and L.T. put a towel over her mouth and nose, slapped the back of her head, and called her a “nasty bitch.”  CMS Posthrg. Br. at 5-12.

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Petitioner’s position is that the alleged abuse did not occur and that the witnesses who reported it were confused or mistaken about what they observed.  See, e.g., P. Posthrg. Br. at 7 (“The inexperienced CNA students who happened to be observing that day, likely unfamiliar with Alzheimer’s/dementia care protocols and Resident 1’s care plan, misapprehended the situation and misinterpreted the provision of care as abuse.”).  Petitioner insists that I should credit the statements of the CNAs denying the abuse and should discount the statements of the student witnesses and the resident herself.  Petitioner urges me to disregard Resident 1’s statement because she was diagnosed with Alzheimer’s disease and assessed as having short- and long-term memory problems.  Petitioner points out that, after Surveyor Barbato interviewed her on December 1, 2016, Resident 1 was unable to recall the events of November 28, 2016.  See, e.g., id. at 14, 17.  Petitioner argues that I should discount the statements of the CNA students because their statements were hearsay and they did not have sufficient clinical training to understand what they observed.  Id. at 15-16.  Petitioner argues that L.T. and S.D. gave consistent statements denying the allegations and that, based on their history as reliable employees and their reputations for truthfulness, they should be believed.  Id. at 10-11, 16.  As a result, Petitioner contends that CMS failed to make a prima facie showing of non-compliance with respect to Tag 223.

Petitioner’s contention that CMS may not make out a prima facie case of noncompliance based on hearsay evidence is simply incorrect.  Hearsay is admissible in administrative proceedings governed by 42 C.F.R. part 498, and I may rely on hearsay statements if they are sufficiently reliable.  For example, an appellate panel of the Departmental Appeals Board (DAB) explained:

[H]earsay evidence may constitute substantial evidence of noncompliance if sufficient indicia of reliability are found.  The weight to be accorded to hearsay evidence is determined by the degree of reliability based on relevant indicia of reliability and whether it is corroborated by other evidence in the record as a whole.  To the extent the [administrative law judge] relied on hearsay evidence (which he may do), [he] explained why he found it sufficiently reliable and corroborated and how he weighed that evidence.

Lifehouse of Riverside Healthcare Ctr., DAB No. 2774 at 9 (2017) (internal citations omitted).  For the reasons explained below, I find that the hearsay statements of C.D.,

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K.M., and Resident 1 are reliable.13  Moreover, if Petitioner had contemporaneous documentation (i.e. close in time to November 28, 2016) that would call into question the reliability of the hearsay statements recorded by Surveyor Barbato, Petitioner did not produce it in this proceeding.  Thus, the only statements of record created close in time to November 28, 2016, are those contained in the surveyors’ notes.14

Having considered the evidence and the parties’ arguments, I find it more likely than not that, on November 28, 2016, an altercation occurred between Resident 1 and CNAs L.T. and S.D.  The altercation occurred when the CNAs were changing and dressing the resident and she became combative.  The CNA students, C.D. and K.M., were in Resident 1’s room observing and witnessed the altercation.  It is virtually impossible to know with certainty exactly what occurred during the altercation because of the passage of time and because, with a single exception, no one who was present in Resident 1’s room on November 28, 2016, testified in this proceeding.

Overall, however, I give more weight to the statements of C.D., K.M., and Resident 1, and less weight to the statements of S.D. and L.T.  I do so in part because, as CMS has argued, the statements of C.D., K.M., and Resident 1 are consistent with one another.  Moreover, their accounts are consistent in some respects with the statements of S.D. and L.T.  In addition, I do not believe that C.D. and K.M. would have reported the events in question to their instructors unless they had witnessed something disturbing and believed they had a duty to report possible abuse.  Put another way, I do not believe the students had any reason to fabricate or embellish the events they described.  Nor do I find a basis to disbelieve the statement of Resident 1 obtained on December 1, 2016.  I accord the Resident’s statement weight because the surveyor’s interview with the resident was close in time to the events in question.  I have considered the fact that Resident 1 was apparently unable to recall the events of November 28, 2016, when questioned by

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Supervisor Kendall on December 14, 2016, and on December 20, 2016, when the licensed clinical social worker interviewed her.  I do not find the resident’s December 1 statement unreliable based on her later inability to recall, however.  Rather, I find that, even though diagnosed with Alzheimer’s disease, the resident’s recollection was more likely to be clearer closer in time to the event in question.  Moreover, Surveyor Barbato documented that, shortly before the December 1 interview, she observed Resident 1 participating in an activity in which the resident appeared alert and oriented.  See CMS Ex. 9 at 4.15   I therefore infer that Resident 1 was lucid at the time Surveyor Barbato interviewed her.  Moreover, as I discuss in more detail in section IV.B.2.b, below, as far as the record reveals, Petitioner’s staff did not even attempt to interview Resident 1 as part of the internal investigation.  Instead, they maintained that the resident “is not interviewable.”  CMS Ex. 9 at 1.

By contrast, and contrary to Petitioner’s arguments, the statements of S.D. and L.T. are not consistent with one another in several respects.  Most significantly, S.D. denied seeing anyone put a towel over the resident’s nose and mouth, while L.T. admitted, “we put a towel on [the resident’s] mouth.”  See CMS Ex. 9at 3; see also P. Ex. 4 at ¶ 14; P. Ex. 5 at ¶ 12.  Given the close proximity of the two CNAs while transferring Resident 1 to her wheelchair, it is exceedingly unlikely that S.D. could have missed seeing L.T. place a towel on Resident 1’s mouth, undermining S.D.’s credibility.  In addition, S.D. stated that she and L.T. changed Resident 1’s incontinence brief together, while L.T. stated the brief had already been changed when she entered the resident’s room.  CMS Ex. 9 at 3.  Further, S.D. asserted that the CNA students were shadowing L.T.  Id.; see also P. Ex. 5 at ¶ 8.  The students stated they were shadowing S.D., and identified her by name.  CMS Ex. 9 at 1, 6.

I acknowledge that both S.D. and L.T. denied striking the resident or calling the resident a “bitch.”  But, even if I were to find as fact that the CNAs did not strike or curse at Resident 1, I would nevertheless conclude that the forced provision of care, contrary to Resident 1’s care plan, and over her objections, constituted abuse.  I underscore the fact that all the witnesses ‒ S.D., L.T., C.D., and K.M. ‒ agree on this central point:  S.D. and L.T. continued to change and dress the resident even though she struggled with them and told them to stop.  I have no doubt that caring for Resident 1 posed challenges for Petitioner’s staff.  Resident 1 was assessed as being resistant to care.  However, Resident 1’s care plan instructed staff to deal with the resident’s resistance by explaining to her what was expected of her and leaving and returning later if she became agitated.  CMS Ex. 5 at 41-42.  Petitioner does not dispute that S.D. and L.T. did not leave the

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room when Resident 1 became combative, but continued to change and dress her, over her objections.  S.D. acknowledged that she and L.T. did not stop providing care to Resident 1 because spitting and cursing was “normal behavior” for the resident and, “[w]e only leave her alone and come back later when she is unusually agitated, because she is agitated all the time.”  P. Ex. 5 at ¶ 9.

Appellate panels of the DAB have held that the use of force to provide care to a resident may support a finding of abuse.  See, e.g., Honey Grove Nursing Ctr., DAB No. 2570 at 4-5 (2014), aff’d, Honey Grove Nursing Ctr. v. Dep’t of Health & Human Servs., 606 F.App’x 164 (5th Cir. 2015); Merrimack Cty. Nursing Home, DAB No. 2424 (2011).  In the Honey Grove decision, the appellate panel held that provision of incontinence care over a resident’s objection could constitute abuse.  DAB No. 2570 at 4‑5.  In the present case, Resident 1 resisted when S.D. and L.T. began to change her incontinence brief.  At a minimum, the resident spat at the CNAs and yelled at them to stop.  Plainly, S.D. and L.T. did not leave and come back later, contrary to the resident’s care plan.  Instead, according to C.D. and K.M., the CNAs held the resident’s arms down while they changed her.  CMS Ex. 9 at 1-2, 7.  I find it more likely than not that, as was the case in Honey Grove, S.D. and L.T. “had to exert more physical force against the resident than the resident was exerting to escape the situation.”  DAB 2570 at 4 (quoting the administrative law judge’s decision) (internal quotation marks omitted).  L.T. also put a towel over Resident 1’s nose and mouth.  During the altercation, Resident 1 felt “humiliated,” “could not breathe,” and felt “like [she] was suffocating.”  CMS Ex. 9 at 4.  On this basis, I conclude that Resident 1 suffered, at a minimum, emotional distress as a result of the CNAs’ actions.

In making these findings, I do not conclude that S.D. and L.T. intended to abuse or injure Resident 1.  I find it more likely than not that they were simply trying to do their jobs and deal with a difficult resident.  Indeed, I surmise that S.D. and L.T. provided care to Resident 1 consistent with what they had done in the past.  I draw this inference based on S.D.’s written direct testimony that she and other CNAs “only leave [Resident 1] alone and come back later when she is unusually agitated, because she is agitated all the time.”  P. Ex. 5 at ¶ 9; but see CMS Ex. 5 at 10.  This statement implies an ongoing pattern or practice, of which Petitioner’s management was likely aware.  My inference that management was aware that caregivers routinely provided care to Resident 1 over her objections is reinforced by the written direct testimony of Petitioner’s Administrator, in which she states that, “[s]ince she was admitted, Resident 1 has been resistant to care” and “frequently becomes combative when staff members attempt to assist her.”  P. Ex. 4 at ¶ 4.  The Administrator goes on to describe specific behaviors the resident manifests,

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including spitting and cursing at staff.16   Id. at ¶¶ 4, 5.  I draw a further inference that Petitioner’s staff had fallen into a pattern of providing care to Resident 1 over her objections and even when she was combative, and that Petitioner’s management had fallen into a pattern of tolerating this practice.

As I have noted, however, Resident 1’s care plan did not contemplate that staff would persist in providing care when the resident was combative.  Instead, the care plan provided that staff should “stop and return if [Resident 1 was] agitated.”  CMS Ex. 5at 42.  If Resident 1’s behaviors had deteriorated to the point that it was not possible to care for her except by force, then Petitioner should have updated her care plan to reflect this reality and likely implemented additional appropriate interventions.17   Moreover, if, as I assume, Petitioner’s staff were routinely providing care to Resident 1 over her objections and even when she was combative, this might explain, in part, why S.D. and L.T. were so adamant that no abuse occurred and why Petitioner’s management was so quick to conclude that the student witnesses were not reliable.

In any event, my finding that S.D. and L.T. did not intend to abuse or injure Resident 1 does not compel a conclusion that no abuse occurred.  As the appellate panel observed in Honey Grove, “[t]he term ‘willful’ as used in the applicable definition of abuse does not require that the perpetrator intends to injure or harm the victim, but only that the action be deliberate and not inadvertent or accidental.”  DAB No. 2570 at 5 (citing Merrimack, DAB No. 2424 at 5).  Here, it is plain that the CNAs deliberately continued to provide incontinence care and other ADL assistance over the resident’s objections and contrary to her care plan.

Nor does the fact that the state agency responsible for certifying CNAs determined not to take disciplinary action against either S.D. or L.T. prove that no abuse occurred.  The letters proffered by Petitioner say only that “no further investigation or disciplinary action is warranted at this time.”  P. Exs. 1, 2.  The letters do not include any factual findings regarding the incident of November 28, 2016.  The record provides no information on the evidence or information the agency considered in reaching its conclusion.  I do not find

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that the letters tend to show it is either more likely or less likely that abuse occurred.  I therefore do not accord the letters weight in deciding the issues before me.

In summary, I conclude, based on my de novo review of the record, that Petitioner failed to ensure that Resident 1 was free from abuse as required by 42 C.F.R. § 483.12.  S.D. and L.T. forcibly provided care to Resident 1 on November 28, 2016, causing her, at a minimum, emotional distress.  Petitioner’s failure to comply with 42 C.F.R. § 483.12 caused more than minimal harm to the resident.  For these reasons, Petitioner failed to comply substantially with 42 C.F.R. § 483.12 (Tag F223).

b.    Petitioner was not in substantial compliance with 42 C.F.R. §§ 483.12(b)(1)-(3) and 483.95(c)(1)-(3) (Tag F226) because it did not implement its written policies and procedures, or provide adequate training regarding the duty to report allegations of abuse and neglect.

As part of its obligation to keep residents free from abuse and neglect, a facility must develop and implement written policies and procedures that prohibit and prevent abuse, neglect, and exploitation of residents and misappropriation of resident property, as well as requiring the facility to investigate allegations of such conduct.  42 C.F.R. § 483.12(b)(1), (2).  A facility may fail to comply substantially with section 483.12(b)(1) if it fails to develop policies or procedures adequate to prevent abuse, or if it fails to implement such policies.  See, e.g., Southpark Meadows Nursing & Rehab. Ctr., DAB No. 2703 at 6 (2016) (quoting Glenoaks Nursing Ctr., DAB No. 2522 at 14 (2013)).18   In addition, facilities must provide training to their staff so that staff will recognize and report such conduct.  42 C.F.R. §§ 483.12(b)(3), 483.95(c).

Petitioner contends that it was in compliance with the regulatory requirements:  “Chaparral House has established, by a preponderance of the evidence, that it properly implemented its abuse prevention and reporting policy and properly investigated the allegations of abuse regarding Resident 1.”  P. Posthrg. Br. at 23.  I disagree.  As I explain below, Petitioner’s staff failed to comply with the provisions of Petitioner’s abuse prevention policy following the allegation that S.D. and L.T. had abused Resident 1.  First, Petitioner permitted the accused CNAs to return to work before its investigation was completed.  Second, the investigation undertaken by Petitioner’s management was

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inadequate under Petitioner’s own policy.  Finally, the CNA students who reported the allegation were apparently unaware of how to report an allegation of abuse to Petitioner’s management.  For all these reasons, Petitioner failed to implement its abuse prevention policy.

First, Petitioner failed to implement the policy requirement that persons alleged to have committed abuse are removed from resident care pending investigation.  Petitioner’s abuse prevention policy provides:  “[m]anagement actions are not limited to removing person(s) named in the complaint from the immediate vicinity of the resident(s) for the duration of the investigation.”  CMS Ex. 10 at 2 (emphasis added).  Petitioner admits that S.D. returned to work on December 6, 2016, and L.T. returned to work on December 8, 2016.  Petitioner nevertheless argues that “a thorough investigation was completed before the CNAs returned to work.”  P. Posthrg. Br. at 22.  Petitioner further asserts that, by December 5, 2016, Petitioner’s Administrator “and the investigation team were confident that no abuse had occurred.”  Id.

Indeed, Petitioner’s argument that, by December 5, 2016, Petitioner’s management had concluded that no abuse occurred, is telling.  See P. Posthrg. Br. at 22.  As I explain below, Petitioner’s management apparently reached that conclusion in spite of the fact that no one on the “investigation team” had questioned Resident 1 or the CNA student witnesses.  As such, Petitioner’s investigation seems from the outset to have focused on proving that no abuse occurred, rather than determining whether abuse may have occurred.

Moreover, Petitioner’s assertion that “the investigation that was conducted prior to [the CNAs’] return satisfied the [abuse prevention] policy and was sufficient to clear them,” (P. Posthrg. Br. at 22), is belied by Petitioner’s own Investigation Report.  The Investigation Report includes several different dates on which the investigation was “final” or “completed.”  For example, the report initially states that it is “final” as of “12/11/2016.”  CMS Ex. 7 at 2.  However, the last page of the report is headed “Investigation Conclusion” and dated “12/14/16.”  Id. at 6.  On the same page, the body of the report, apparently referring to the first phase of the investigation, says “Investigation opened 12/01/2016 and closed 12/12/2016.”  Id.  None of these dates support Petitioner’s contention that it “completed its initial investigation on December 5, 2016.”  P. Posthrg. Br. at 22.  Further, even if I were to credit that there were multiple phases to Petitioner’s investigation, and the initial phase was completed on December 5, 2016, Petitioner’s policy, by its terms, provides that a person suspected of abuse must be removed from the vicinity of the resident “for the duration of the investigation.”  CMS Ex. 10 at 2.  “The duration of the investigation” plainly contemplates that all phases of the investigation are complete.  Accordingly, by allowing S.D. and L.T. to return to work on December 6, and 8, 2016, Petitioner failed to comply with its abuse prevention policy.  See CMS Ex. 12 at 2-4.

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Second, the steps Petitioner took in investigating the abuse allegation did not comply with its own abuse prevention policy.  That policy instructs staff conducting an abuse investigation to interview the involved resident, as well as “other persons who may have or are likely to have direct experience and or first hand knowledge of the event.”  CMS Ex. 10 at 3.  Further, when interviewing potential witnesses as part of an abuse investigation, interviewers are to document their interviews and, whenever possible, must have the interviewee either write out a statement or sign the interviewer’s written account of the interview.  Id. at 3-4.  In addition, Petitioner’s abuse prevention policy states that, although a summary of the investigation report is transmitted to outside agencies (such as the state agency), the Administrator “retains all reports for a specified period whether required to report or include in medical record or not.”  Id. at 4.  Accordingly, if Petitioner’s management gathered witness statements or documented interviews during the investigation, I would expect Petitioner’s Administrator to retain copies of them, as required by the policy.19

Contrary to Petitioner’s policy, Petitioner’s management did not even attempt to interview Resident 1.  Petitioner’s position appears to be that Resident 1 was not interviewable, based on her diagnosis of Alzheimer’s disease.  See, e.g., CMS Ex. 9 at 1.  However, Petitioner’s policy states that, if a resident “lacks capacity” or has “cognitive impairment,” an interview should nevertheless be attempted and the resident’s inability to answer documented in the interview summary.  CMS Ex. 10 at 3. Petitioner has produced no documentation that anyone attempted to interview Resident 1 as part of the internal investigation; nor did anyone document that the resident was unable to answer when questioned.20   Similarly, Petitioner’s staff did not interview C.D. or K.M., the CNA students who witnessed the abuse.

Petitioner argues, essentially, that the state agency prevented Petitioner from interviewing C.D. and K.M. by refusing to reveal the names of the students to Petitioner.  See

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P. Posthrg. Br. at 10, 22.  Petitioner cannot have it both ways.  It cannot claim to have completed a “thorough” investigation that was sufficient to determine that “no abuse had occurred” while simultaneously complaining that the state agency “hampered” Petitioner’s “ability to fully investigate the allegations [of abuse]” by withholding the students’ names.  See id. at 22.  Moreover, even if the state agency did not disclose the names of the students, I do not find credible Petitioner’s assertion that it was therefore unable to identify them.  The students were on Petitioner’s premises to complete part of their clinical training, pursuant to a contract between Petitioner and the students’ training program.  See CMS Ex. 6.  One provision of the contract between Petitioner and the training program stated:  “[f]acility [i.e. Petitioner] shall have a list of names of all students with their training schedule.”  Id. at 5.  Thus, even if Petitioner did not immediately know the names of the students, Petitioner had the ability to determine their identities by consulting the list of students who were scheduled to train at Petitioner’s facility on November 28, 2016.21   Furthermore, Petitioner’s DSD, who was Petitioner’s liaison with the training program, spoke to the training program director as part of Petitioner’s investigation.  CMS Ex. 7 at 4.  According to Petitioner’s Investigation Report, the training program director told Petitioner’s DSD that November 28, 2016, had been the students’ last day at Petitioner’s facility and that the on‑site instructor “knew something occurred.”  Id.  I therefore infer that the training program director knew (or could find out) which students were involved.  Yet, Petitioner does not claim to have asked either the training program director or the on‑site instructor for the names of the students.  In failing to do so, Petitioner violated its policy to interview “other persons” who “are likely to have . . . first hand knowledge of the event.”  CMS Ex. 10 at 3.  Petitioner’s failure to pursue avenues open to it to identify and interview the student witnesses reinforces my inference, noted above, that Petitioner’s investigation was not a neutral inquiry into whether abuse occurred, but was intended to refute the allegation of abuse.22

Finally, Petitioner did not comply with its abuse prevention policy because C.D. and K.M., the CNA students who witnessed S.D. and L.T. forcibly provide care to Resident 1 on November 28, 2016, did not understand that they should report suspected abuse in accordance with Petitioner’s internal policies.  The contract between Petitioner and the students’ training program provided:  “[CNA Training Program], its students, and faculty

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will adhere to all policies and procedures set forth by [Petitioner].”  CMS Ex. 6 at 6.  Additionally, in accordance with another provision, Petitioner reserved the right to request that the training program withdraw any student who failed to “abide by the administrative procedures, policies, rules, and regulations.”  Id.  These provisions illustrate that the CNA students were expected to observe Petitioner’s policies when training on-site.23   Yet, the students demonstrably were unaware of Petitioner’s policy that, “[w]ithout fear of retribution, residents, family members, visitors, volunteers and staff may report concerns, incidents/events and grievances about resident care to the Administrator, Director of Nursing, Nurse Managers, Department Managers and Charge Nurses or Medical Director.”  CMS Ex. 10 at 1-2.  Further, when the students did report their concerns to their on-site instructor, she also failed to follow Petitioner’s abuse prevention policy.  She did not insist that the students report the incident to Petitioner’s management; nor did she report it herself.  Instead, she implied that the students should ignore what they had seen or “look the other way.”  See, e.g., CMS Ex. 9 at 1-2.

The fact that neither Petitioner’s staff nor the CNA students and instructor acted in accordance with Petitioner’s abuse prevention policy put all Petitioner’s residents at risk for incidents of suspected abuse to go unreported or be inadequately investigated.  As an appellate panel of the DAB observed, an inadequate response to allegations of abuse has “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 at 12 (2016), aff’d sub nom. Rosewood Care Ctr. of Swansea v. Price, 868 F.3d 605 (7th Cir. 2017) (quoting with approval the administrative law judge’s decision) (internal quotation marks omitted).  I therefore find that Petitioner’s noncompliance with 42 C.F.R. §§ 483.12(b)(1)‑(3) and 483.95(c) was substantial because it had the potential to cause more than minimal harm.

3.    Any alleged shortcomings in the survey process are not material to my review.

Petitioner criticizes the state agency’s investigative process during the survey.  P. Posthrg. Br. at 15-16.  For example, Petitioner characterizes Surveyor Barbato as “eager to believe that abuse occurred.”  Id. at 15.  Petitioner further faults her for accepting the CNA students’ (consistent) stories at face value.  Id. at 16.  Even if I were

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to agree with Petitioner’s assertion that Surveyor Barbato’s investigation was lacking in some way (a conclusion I do not draw), that would not be a basis to overturn the deficiency findings.  Whatever may be in a surveyor’s mind when he or she (and possibly others within the state agency) decides to cite a deficiency and decides what scope and severity to assign, that initial decision is merely a recommendation to CMS.  See, e.g., Britthaven of Chapel Hill, DAB No. 2284 at 6-7 (2009) (state agency merely recommends a finding of compliance or noncompliance; CMS ultimately determines whether the facility is in substantial compliance and whether immediate jeopardy exists).  Accordingly, “the quality of the surveyors’ information gathering or thought processes is immaterial.”  Oaks of Mid City Nursing & Rehab. Ctr., DAB No. 2375 at 33 (2011).  This is because the administrative law judge finds the facts de novo based on the evidence before her.

4.    CMS’s finding of immediate jeopardy is not subject to review.

Petitioner argues that it substantially complied with Medicare participation requirements and, accordingly, the finding of immediate jeopardy is clearly erroneous.  P. Posthrg. Br. at 23.  For the reasons I have explained above, I have concluded that Petitioner was not in substantial compliance with 42 C.F.R. §§ 483.12, 483.12(b)(1)-(3), and 483.95(c)(1)-(3).  Thus, Petitioner’s argument that there is no basis for a finding of immediate jeopardy is without merit.  In any event, as CMS correctly argues, the finding of immediate jeopardy is not subject to review in the present proceeding because a successful challenge would not affect the range of CMP or change the finding of substandard quality of care.  See CMS Posthrg. Br. at 3-4.  An administrative law judge may review CMS’s scope and severity findings (including a finding of immediate jeopardy) only 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 a facility’s Nurse Aide Competency Evaluation Program (NATCEP).  42 C.F.R. § 498.3(b)(14), (d)(10); see also Cedar Lake Nursing Home, DAB No. 2344 at 9 (2010); Evergreen Commons, DAB No. 2175 (2008), aff’g DAB CR1684 (2007); Aase Haugen Homes, Inc., DAB No. 2013 at 17‑19 (2006).

In the case of a per-instance CMP, the regulations provide for a single penalty range ($2,063 to $20,628)24 without regard to the level of noncompliance.  42 C.F.R. § 488.438(a)(2).  Thus, the finding of immediate jeopardy does not affect the range of the CMP.  See NMS Healthcare of Hagerstown, DAB No. 2603 at 6-7 (2014); see also Oaks

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of Mid City, DAB No. 2375 at 24.  Similarly, CMS’s scope and severity finding does not affect approval of the facility’s NATCEP.25   Under the statute and regulations, the state agency cannot approve the program if CMS imposes a penalty of $10,31426 or more; the facility loses its approval without regard to the immediate jeopardy finding, even if that finding constitutes substandard quality of care.  Act § 1819(f)(2)(B); 42 C.F.R. § 483.151(b)(2)(iv); see Sunshine Haven Lordsburg, DAB No. 2456 at 3 (2012), aff’d in part, Sunshine Haven Nursing Operations, LLC v. U.S. Dep’t of Health & Human Servs., 742 F.3d 1239 (10th Cir. 2014).  Under the statute and regulations, it is the dollar amount of the CMP, and not the level of noncompliance, that results in the loss of the facility’s NATCEP.  Because the dollar amount of the CMP is above the threshold that triggers loss of NATCEP approval (and I affirm the amount of the CMP below), the absence of substandard quality of care would not restore Petitioner’s NATCEP.  For these reasons, I have no basis to review CMS’s determination that Petitioner’s deficiencies posed immediate jeopardy to its residents.

5.    A per-instance CMP of $10,314 for each finding of noncompliance is reasonable.

My authority to review the reasonableness of a CMP imposed by CMS is limited by 42 C.F.R. § 488.438(e).  The limitations are:  (1) I may not set the CMP at zero or reduce it to zero; (2) I may not review CMS’s exercise of discretion to impose a CMP; and (3) I may only consider the factors specified by 42 C.F.R. § 488.438(f) when determining the reasonableness of the CMP amount.  The factors in section 488.438(f) include:  (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, the administrative law judge must sustain it.  Coquina Ctr., DAB No. 1860 at 32 (2002).  Petitioner does not address the regulatory factors.  Its only argument is that no

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CMPs should be assessed because it did not fail to comply substantially with Medicare participation requirements.  For that reason alone, I could sustain the CMPs at issue.

I nevertheless have reviewed the reasonableness of the CMPs de novo, based on the evidence in the record before me.  I am not required to defer to CMS’s determination of the reasonable amount of the CMP to impose, but I may only consider the regulatory factors described above.  My role is to determine whether the amount of any CMP imposed is “within reasonable bounds” considering the purpose of the Act and regulations.  Emerald Oaks, DAB No. 1800 at 12 (2001); see also CarePlex of Silver Spring, DAB No. 1683 at 17 (1999).  In this case, CMS imposed two $10,314 per‑instance CMPs.  A CMP of $10,314 is in the middle range for a per-instance CMP.27   42 C.F.R. § 488.438(2); 45 C.F.R. § 102.3.

When CMS elects to impose a CMP, it sets the CMP amount based on, among other factors, the “seriousness” of the noncompliance.  42 C.F.R. §§ 488.404(a), (b), 488.438(f).  Seriousness is a function, at least in part, of the scope and severity of the noncompliance.  42 C.F.R. § 488.404(b).  The most serious noncompliance is that which puts one or more residents in “immediate jeopardy.”  42 C.F.R. § 488.438(a) (authorizing the upper range of per-day CMPs for immediate-jeopardy-level noncompliance).  “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.

In the present case, I find the CMPs are reasonable based on the seriousness of the noncompliance.  Petitioner’s staff used force to provide care to Resident 1, over the resident’s objections and physical resistance.  The forced provision of care caused the resident to experience, at a minimum, significant emotional distress.  That the resident reported feeling as if she “can’t breathe” is disturbing, to say the least.  Petitioner’s investigation of the incident was inadequate, as measured by its own abuse prevention policy.  Petitioner’s failure to fully implement its abuse prevention policy placed all residents at risk that allegations of abuse would not be reported and that the facility’s response to any allegation that might be made would not be adequate.  These risks are particularly concerning for SNF residents, who are, by definition, frail and in need of care.  I therefore find a mid-range per-instance CMP of $10,314 for each deficiency reasonable.

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V.    Conclusion

For the reasons set forth above, I conclude that Petitioner was not in substantial compliance with the participation requirements at 42 C.F.R. §§ 483.12, 483.12(b)(1)-(3), and 483.95(c)(1)-(3).  I further conclude that the two per-instance CMPs at issue, $10,314.00 each, are reasonable.  I do not address the finding that Petitioner’s noncompliance placed residents in immediate jeopardy because the immediate jeopardy citation does not affect the range of CMPs imposed.

• 1.The regulations governing Medicare participation requirements for skilled nursing facilities (SNFs) were revised, effective November 28, 2016.  81 Fed. Reg. 68,688 (Oct. 4, 2016).  I apply the regulations in effect at the time of the survey.  See Carmel Convalescent Hosp., DAB No. 1584 at 2 n.2 (1996).  I note that, based on the November 2016 effective date, the revised regulations do not appear in the 2016 codification of Title 42 of the C.F.R. (dated October 1, 2016).
• 2.To protect her privacy, I refer to the resident by the numerical identifier assigned during the survey.  See CMS Ex. 2 at 2.
• 3.As is true of Resident 1, the CNAs named in the complaint were assigned numerical identifiers during the survey.  See CMS Ex. 2 at 1.  However, Petitioner’s internal investigation report refers to the CNAs using different numerical identifiers.  See CMS Ex. 7 at 2 nn.1-2.  I therefore refer to the CNAs by their initials to avoid confusion.
• 4.As is true of Resident 1, the CNAs named in the complaint were assigned numerical identifiers during the survey.  See CMS Ex. 2 at 1.  However, Petitioner’s internal investigation report refers to the CNAs using different numerical identifiers.  See CMS Ex. 7 at 2 nn.1-2.  I therefore refer to the CNAs by their initials to avoid confusion.
• 5.I similarly refer to the CNA students by their initials.  See CMS Ex. 2 at 1.
• 6.I infer that “sling” refers to part of the Hoyer lift used to transfer the resident from her bed to her wheelchair.
• 7.The fax cover sheet for the report shows a typewritten date of “12/15/16.”  CMS Ex. 7 at 1.  However, the fax imprint at the top of each page is dated “12/20/2016.”  Id.  I am unable to determine precisely when, between December 15, and December 20, 2016, the report was transmitted.  In any event, the exact date is not material to my decision.
• 8.The Investigation Report includes several different dates on which the investigation is described as “final” or “completed.”  For example, the report initially states that it is “final” as of “12/11/2016.”  CMS Ex. 7 at 2.  However, the last page of the report is headed “Investigation Conclusion” and dated “12/14/16.”  Id. at 6.  On the same page, the text of the report says “Investigation opened 12/01/2016 and closed 12/12/2016.”  Id.
• 9.I infer that “employees” refers to CNAs S.D. and L.T.
• 10.In her written direct testimony, CNA S.D. states that management interviewed her by telephone during the time she was on administrative leave.  P. Ex. 5 at ¶ 16.  She further testified that she was on administrative leave from the afternoon of December 1, 2016, until she returned to work on December 6, 2016.  Id. at ¶ 15.
• 11.The LCSW’s treatment note is dated December 20, 2016.  P. Ex. 3.  At that time, Resident 1 “had no memory of the incident.”  Id. at 1.
• 12.The record does not establish with certainty the date on which the “reenactment” took place.  Petitioner’s Investigation Report states that management reviewed “reenactment lessons/observations” on Tuesday, December 6, 2016.  See CMS Ex. 7 at 4.  By contrast, Petitioner’s Administrator apparently told Supervisor Kendall on December 13, 2016, that staff were still “[t]rying to recreate it.”  CMS Ex. 8 at 1.  It is possible that Petitioner’s staff did more than one “reenactment.”  In any event, the exact date of the reenactment or reenactments is not material to my decision.
• 13.I note that, despite its objections to my relying on hearsay, Petitioner also offered the hearsay statement of L.T. in support of its contention that no abuse occurred.  See, e.g., P. Ex. 4 at ¶¶ 12-14.
• 14.For example, the written direct testimony of Petitioner’s staff members, including S.D., were created as part of the present proceeding and were signed in June 2017, roughly six months after the events in question.  See P. Exs. 4-7.  If, hypothetically, Petitioner made a tactical decision not to produce other documentation in its possession, such as the written witness statements its abuse policy required it to obtain as part of an investigation (CMS Ex. 10 at 3-4), and to rely instead on its contention that CMS could not make out a prima facie case of noncompliance based on the facts alleged in the Form CMS-2567 (Statement of Deficiencies), then Petitioner must accept the consequences of that choice.
• 15.The surveyor documented that she observed the resident participating in a question and answer activity in which the resident was able to complete phrases by responding “weezil [sic]” to the prompt “pop goes the . . .” and “boat” to the prompt “row, row, row your . . . .”  CMS Ex. 9 at 4.
• 16.Petitioner implicitly admitted that, prior to the incident involving Resident 1, it permitted caregivers to place a towel or washcloth over a resident’s mouth if the resident spat at the caregiver.  CMS Ex. 8 at 1; see also CMS Ex. 7 at 6.
• 17. I note that Resident 1’s MDS, dated September 27, 2016, does not fully support the picture Petitioner paints of Resident 1 as routinely spitting and cursing at staff.  The MDS recorded “0” physical behavioral symptoms directed toward others “e.g., hitting, kicking, pushing, scratching, grabbing” during the look-back period.  CMS Ex. 5 at 10. The MDS similarly recorded “0” verbal behavioral symptoms directed toward others “e.g., threatening others, screaming at others, cursing at others” during the period.  Id.
• 18.The Southpark Meadows decision considered the facility’s alleged noncompliance with the former 42 C.F.R. § 483.13(c).  DAB No. 2703 at 6.  Section 483.13(c) has since been redesignated as 42 C.F.R. § 483.12(b), with some additions.  To the extent that the revised provision incorporates the duties imposed under the former provision, I find it appropriate to look to DAB decisions discussing noncompliance with former 42 C.F.R. § 483.13(c) for guidance in interpreting 42 C.F.R. § 483.12(b).
• 19.Petitioner’s Investigation Report notes that Resident 1’s usual caregiver, CNA3, was interviewed twice and that her statements are “in file.”  CMS Ex. 7 at 5.  Yet, Petitioner did not produce either of CNA3’s statements, nor any statement by any other witness that may have been gathered during the internal investigation.
• 20.I acknowledge that Petitioner produced an LCSW note, dated December 20, 2016, documenting that, at that time, Resident 1 did not remember the incident of November 28, 2016.  P. Ex. 3 at 1.  However, Petitioner maintains that, by December 5, 2016, its investigation was sufficiently complete to determine that no abuse had occurred.  P. Posthrg. Br. at 22.  At the latest, the investigation was complete as of the date of Petitioner’s Summary Report, December 15, 2016.  CMS Ex. 7 at 1.  Thus, the LCSW’s interview of Resident 1 could not have been part of Petitioner’s investigation.
• 21.In fact, I cannot imagine a set of circumstances in which a reasonable SNF in Petitioner’s position would allow students access to its premises ‒ and, more importantly, its residents ‒ without at least a sign-in sheet to identify who was present on a given day.
• 22.This inference finds further support in Petitioner’s Investigation Report, which records that, as part of the “reenactment” of the incident, staff should consider “how can we address every one of those details.”  CMS Ex. 7 at 4.
• 23.I note that, as part of its plan of correction, Petitioner stated that it would require “CNA Schools with clinical hours at [Petitioner’s facility] . . . [to] sign a contract addendum indicating they and their instructors are familiar with and agree to abide by” Petitioner’s abuse prevention policy.  CMS Ex. 1 at 4.  I point this out as further evidence that it was Petitioner’s expectation that students participating in clinical training programs are expected to follow its policies, including the abuse prevention policy.
• 24.Effective September 6, 2016, CMP amounts increased.  See 81 Fed. Reg. 61,538, 61,556 (Sept. 1, 2016).  The increased amounts were applicable to CMPs assessed after August 1, 2016, whose associated violations occurred after November 2, 2015.  Id. at 61,538.
• 25.The record does not reveal whether Petitioner maintained a NATCEP during the period in question.
• 26.Likewise, the CMP dollar amount that triggers disapproval of a NATCEP was adjusted upward for 2016.  81 Fed. Reg. at 61,557.
• 27.As previously explained, the maximum per-instance CMP amount for 2016 was $20,628.  81 Fed. Reg. 61,556.