Fireside Lodge Retirement Center, Inc., DAB CR5570 (2020)

DECISION

As explained herein, I grant summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS) against Petitioner, Fireside Lodge Retirement Center, Inc. (Fireside).  I sustain the imposition of a $30,150 civil money penalty for 67 days of non-immediate jeopardy noncompliance and denial of payment for new admissions from September 1 through September 21, 2016.

I.   Background

Fireside is a skilled nursing facility doing business in Fort Worth, Texas, certified by and participating in the Medicare/Medicaid programs.  Joint Undisputed Stipulations, DAB E-file Docket No. C-17-32, Doc. No. 11 (Jt. Stip.) ¶ 1.  As a result of a complaint investigation survey conducted by the Texas Department of Aging and Disability Services (TDADS) on August 3-4, 2016, CMS found Fireside to be substantially

Page 2

noncompliant with Tags F225 (42 C.F.R. § 483.13(c)(1)(ii)-(iii), (c)(2)-(4)1 – investigate/report allegations/individuals) and F226 (42 C.F.R. § 483.13(c)2 – develop/implement abuse/neglect policies) at the "F" scope/severity level (indicating widespread noncompliance with no actual harm that posed a potential for more than minimal harm).  Jt. Stip. ¶¶ 3, 7; CMS Exhibit (Ex.) 5 at 1, 5.  TDADS notified Fireside on August 17, 2016 that it would impose a denial of payment for new admissions (DPNA) effective September 1, 2016.  CMS Ex. 1 at 2.  On August 22, 2016, CMS advised Fireside it would impose a $450 per-day civil money penalty, effective July 17, 2016, and terminate Fireside's provider agreement, effective February 4, 2017.  CMS Ex. 2 at 1.

TDADS later found Fireside had corrected these deficiencies.  CMS Ex. 4 at 1.  CMS adopted TDADS's findings and determined Fireside returned to substantial compliance on September 22, 2016.  Id.  CMS therefore rescinded the termination action but notified Fireside that the DPNA continued from September 1 through September 21, 2016, and that the $450 per day penalty continued for 67 days, from July 17 through September 21, 2016, for a total penalty of $30,150.  CMS Ex. 4 at 1; Jt. Stip. ¶ 4.

On October 13, 2016, Fireside timely requested a hearing in the Civil Remedies Division to challenge the imposition of the remedies indicated above.  Jt. Stip. ¶ 5.  Administrative Law Judge Scott Anderson was originally designated to hear and decide this case, and on October 21, 2016 issued an Acknowledgment and Pre-hearing Order (Pre-hearing Order) that set forth deadlines by which the parties were required to file their pre-hearing exchanges, including briefs, exhibits, witnesses, and the direct testimony of any witnesses identified.  Pre-hearing Order at 3.

Judge Anderson's Pre-hearing Order also allowed either party to file a motion for summary disposition and specified that a hearing in this matter would only be deemed necessary if either party requested to cross-examine the opposing party's witnesses.  Id. at 4, 6.

Page 3

CMS timely filed its pre-hearing exchange, including the testimony of two witnesses, and a pre-hearing brief (CMS Br.), while Fireside subsequently filed its pre-hearing exchange accompanied by a pre-hearing brief (P. Br.).  Neither party objected to the opposing party's witnesses or exhibits.  In its brief, Fireside expressed its intent to cross-examine CMS's witnesses.

In light of Fireside's request to cross-examine CMS's witnesses, Judge Anderson determined that a hearing would be necessary to decide this case.  To facilitate a hearing, Judge Anderson scheduled a pre-hearing conference and directed the parties to submit a joint status report ahead of the conference in which the parties were to explain their respective positions on whether this case could be decided by summary judgment or on the written record.

Judge Anderson later canceled the pre-hearing conference and extended the parties' deadline to submit a joint status report, which they timely submitted.  Jt. Stip.  Fireside stated it believed a hearing was necessary "to ensure a complete record," while CMS indicated it believed the case could be decided on the written submissions.  Id. at 4.  Neither party indicated at that time whether it believed summary judgment might be appropriate.

On August 25, 2017, this matter was transferred to me to hear and decide.  I adopt Judge Anderson's Pre-hearing Order in its entirety.  As permitted by the Pre-hearing Order, on November 17, 2017, CMS filed a motion for summary judgment (CMS MSJ).  Fireside timely filed a response in opposition to the motion (P. Opp.).

II.   Admission of Exhibits

CMS filed 16 exhibits in its pre-hearing exchange, identifying them as CMS Exs. 1-16.3   Fireside filed one exhibit in its pre-hearing exchange, identified as Pet. Ex. 1.  There being no objection from either party, these exhibits are entered into the record.

III.   Statement of Issues

The issues presented are:

A. Whether summary judgment is appropriate;

B. Whether Fireside was in substantial compliance with 42 C.F.R. § 483.13(c)(1)(ii)-(iii), (c)(2)-(4), Tag F225, and 483.13(c), Tag F226, at the time of the survey

Page 4

completed in August 2016; and

C. If Fireside was not in substantial compliance, whether the remedies imposed by CMS are reasonable.

IV.   Discussion

To participate in the Medicare program, a skilled nursing facility must maintain substantial compliance with program participation requirements.  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 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.

CMS may impose enforcement remedies against a facility that is not in substantial compliance with a participation requirement.  42 U.S.C. § 1395i-3(h)(2); 42 C.F.R. § 488.406.  Among other enforcement remedies, CMS may impose a DPNA; as relevant here, payments do not resume until the facility regains substantial compliance.  42 C.F.R. § 488.417(a), (d).  CMS may also impose a per-day civil money penalty for the number of days a facility is not in substantial compliance.  42 C.F.R. § 488.430(a).  A per-day civil money penalty may range from either $50 to $3,000 per day, adjusted for inflation, for less serious noncompliance or $3,050 to $10,000 per day, adjusted for inflation, for more serious noncompliance that poses immediate jeopardy to the health and safety of residents.  42 C.F.R. § 488.438(a)(1).4

A facility has a right to appeal a "certification of noncompliance leading to an enforcement remedy."  42 C.F.R. § 488.408(g)(1); see also 42 C.F.R. §§ 488.330(e), 498.3.  However, CMS's choice of remedies and the factors CMS considered when choosing remedies are not subject to review.  42 C.F.R. § 488.408(g)(2).

A.   Summary judgment is appropriate.

Summary judgment is appropriate in cases where 42 C.F.R. Part 498 applies if there is no genuine dispute of any material fact and the moving party is entitled to judgment as a matter of law.  Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 750 (6th Cir. 2004); CRDP § 19(a).  A "genuine" dispute exists if "the evidence is such that a reasonable [trier of fact] could return a verdict for the nonmoving party," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and a "material" fact is one "that, if

Page 5

proven, would affect the outcome of the case under governing law."  Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010).

To obtain summary judgment, the moving party must show that there is no genuine dispute of material fact requiring an evidentiary hearing and that it is entitled to judgment as a matter of law.  Mission Hosp. Reg'l Med. Ctr., DAB No. 2459 at 5 (2012).  If the moving party meets this initial burden, the non-moving party must "come forward with 'specific facts showing that there is a genuine issue for trial.'"  Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).  "To defeat an adequately supported summary judgment motion, the non-moving party may not rely on the denials in its pleadings or briefs, but must furnish evidence of a dispute concerning a material fact — a fact that, if proven, would affect the outcome of the case under governing law."  Senior Rehab., DAB No. 2300 at 3.

In evaluating a motion for summary judgment, an ALJ does not address credibility or evaluate the weight of conflicting evidence.  Holy Cross Village at Notre Dame, DAB No. 2291 at 5 (2009).  Rather, in examining the evidence to determine the appropriateness of summary judgment, an ALJ must draw all reasonable inferences in the light most favorable to the non-moving party.  See Brightview Care Ctr., DAB No. 2132 at 10 (2007) (upholding summary judgment where inferences and views of non-moving party are not reasonable).  "[A]t the summary judgment stage the judge's function is not . . . to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial."  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).  However, drawing factual inferences in the light most favorable to the non-moving party does not require that I accept the non-moving party's legal conclusions.  Cedar Lake Nursing Home, DAB No. 2344 at 7 (2010).

The parties do not dispute the underlying sequence of events at issue in this case.  Fireside nevertheless asserts "unresolved issues of fact" preclude summary judgment in CMS's favor.  P. Opp. at 10.  Specifically, Fireside contends that judgment in CMS's favor requires me to assess the credibility of CMS's two witnesses, drawing statements from these witnesses' declarations to support its contention.  Id. at 10-13.  But as the analysis that follows demonstrates, I need not rely on either witness's testimony to conclude as a matter of law that Fireside failed to comply substantially with 42 C.F.R § 483.13(c), (c)(3), Tags F225 and F226, and that the remedies imposed by CMS, including civil money penalties, are reasonable.

Instead, even when viewed in the light most favorable to Fireside, the undisputed facts, which are drawn mainly from Fireside's own records,5 demonstrate Fireside's noncompliance and support the remedies imposed.  Fireside has not raised a genuine

Page 6

dispute of material fact that would preclude summary judgment in this case.  Consequently, I conclude that summary judgment is appropriate.

B.   Applicable Law

The regulations at issue establish the requirements for how facility staff must treat residents and provide, in relevant part, the following:

(c)  Staff treatment of residents.  The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property.

****

(3) The facility must have evidence that all alleged violations are thoroughly investigated, and must prevent further potential abuse while the investigation is in progress.

42 C.F.R. § 483.13(c), (c)(3).  CMS's SOM mirrors the definition of "abuse" found at 42 C.F.R. § 488.301:  "the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish."  CMS Pub. 100-07, SOM, App'x PP at 61, Tag F223 (rev. 70, eff. Oct. 1, 2010); see also CMS MSJ at 6 n.1; P. Br. at 7.  Verbal abuse is "the use of oral, written or gestured language that willfully includes disparaging and derogatory terms to residents or their families, or within their hearing distance, regardless of their age, ability to comprehend, or disability."  SOM, App'x PP at 61, Tag F223; see also P. Br. at 7.

A finding of noncompliance with section 483.13(c) can be based on failure to develop policies or procedures adequate to prevent abuse or neglect, or it can be based on failure to implement such policies.  See, e.g., Mississippi Care Ctr. of Greenville, DAB No. 2450 at 13-15 (2012).  A facility's compliance, or not, with section 483.13(c) also does not turn on a finding of actual abuse; the key fact is "whether there was an allegation that facility staff had abused a resident."  Beverly Health Care Lumberton, DAB No. 2156 at 12-13 (2008) (quoting Cedar View Good Samaritan, DAB No. 1897 at 11 (2003)) (emphasis added and internal quotation marks omitted).  "A resident care policy intended to ensure compliance with Medicare participation requirements 'may reflect [the] facility's own judgment about how best to achieve compliance [with those requirements] and hence failure to comply with its own policies can support a finding that the facility did not achieve compliance with the regulatory standard.'"  Good Shepherd Home for the Aged, DAB No. 2858 at 12 (2018).

Page 7

C.   Facility policy

Consistent with the regulations, Fireside's abuse prevention policy established that its residents had a "right to be free from abuse, misappropriation of resident property, corporal punishment and involuntary seclusion."  CMS Ex. 13 at 3.  In the policy, Fireside announced its "commit[ment] to protecting [its] residents from abuse by anyone including, but not necessarily limited to facility staff, other residents, consultants, volunteers, staff from other agencies providing services to [its] residents, family members, legal guardians, sponsors, friends, visitors, or any other individuals."  Id.  To promote its residents' right to be free from abuse, Fireside developed policies and procedures aimed at "preventing abuse, neglect or mistreatment of [its] residents."  Id.

Fireside's abuse prevention policy specifies procedures that govern "[t]he protection of residents during abuse investigations."  Id.  This included an "abuse investigation protocol."  Id. at 4-7.  In the event of an abuse investigation, Fireside's policy required facility management, particularly the abuse coordinator or director of nursing (DON), to fully investigate "[a]ll reports of resident abuse."  Id. at 6.  The policy mandated that during an investigation, "anyone accused of abuse will be denied unsupervised access to residents."  Id. at 4.  Where the accused was a facility employee, the policy specified the employee "will be reassigned to nonresident care duties or suspended from duty until the administrator has reviewed the results of the investigation."  Id.

D.   Undisputed facts

At the time of the survey, Resident 1 was an 83-year-old woman with diagnoses including dementia, chronic kidney disease, arthritis, osteoporosis, cerebrovascular accident (CVA or stroke), and depression and a history of hypertension, heart failure, hyperlipidemia, recurrent major depressive disorder, and other ailments.  CMS Ex. 6 at 1; CMS Ex. 7 at 18-19.  She exhibited unclear speech that was only sometimes understood.  CMS Ex. 7 at 6.  She was unable to complete a brief interview for mental status and exhibited short-term memory impairment.  Her cognitive skills for daily decision-making were moderately impaired.  Id. at 7.

Resident 1 needed a wheelchair for mobility and had greatly impaired functional status.  Id. at 15-16.  She required extensive one-person assistance with bed mobility, transfers, dressing, toileting, and personal hygiene, and was frequently incontinent.  Id. at 15, 17.  She was totally dependent on one-person assistance for bathing.  Id. at 16.  She could feed herself with setup help and supervision only, and needed limited one-person assistance for locomotion.  Id. at 15.  She exhibited impairment in both upper and lower extremities on one side.  Id. at 16.

Page 8

On July 17, 2016, at approximately 3:15 a.m., Resident 1 complained to CNA A.B.6 that the previous evening, CNA E.A. had told her to "shut up."  CMS Ex. 8 at 1-2; CMS Ex. 10 at 1.  When interviewed by Fireside staff about the complaint, Resident 1 reported that the alleged incident "hurt [her] feelings."  CMS Ex. 10 at 1.  Fireside treated this complaint as an allegation of abuse and reported it to TDADS at 3:35 p.m. on July 20, 2016.7   CMS Ex. 8 at 1; CMS Ex. 12 at 4.  Fireside's provider investigation report labeled the incident category as "[a]buse," noted the allegation came from Resident 1, identified E.A. as the "[a]lleged [p]erpetrator(s)," and stated E.A. denied the allegation and had no history of similar allegations.  CMS Ex. 8 at 1; see also CMS Ex. 10 at 3.

The report indicated the facility's DON, Administrator, and abuse coordinator were notified of the incident; in response, Fireside reassigned E.A. to care for other residents, investigated the allegation, conducted an abuse in-service training, and notified the individual who held power of attorney on behalf of Resident 1.  CMS Ex. 8 at 2.  Fireside advised TDADS that its investigation was inconclusive regarding the truth of the allegation and that, following the investigation, it would continue conducting abuse in-services and implement one-on-one counseling about how to work with difficult residents.  Id.

TDADS conducted a survey beginning August 3, 2016.  As part of that investigation, the state agency surveyor interviewed several facility staff members, including E.A., the DON, and the abuse coordinator.  E.A. told the surveyor that, following the allegation by Resident 1, she was reassigned to another hall of the facility and took care of the residents in that hall.  CMS Ex. 9 at 4; CMS Ex. 11 at 3.  Facility records confirm that E.A. worked on July 17, 18, and 19, 2016.  CMS Ex. 12 at 6.  Fireside does not dispute (and indeed appears to concede) that E.A. cared for residents on those days.  P. Br. at 6.

Both the DON and the facility's abuse coordinator learned of Resident 1's allegation against E.A. directly from Resident 1, as evidenced in a contemporaneous report of that interview dated July 17, 2016.  They permitted E.A. to continue working and switched her room assignments with another CNA so E.A. would not be assigned to Resident 1's room anymore.  CMS Ex. 9 at 2; CMS Ex. 11 at 3.

On August 4, 2016, the second day of the survey, the DON "learned from [E.A.'s] employee file that [E.A.] had been written up before on a similar allegation."  CMS

Page 9

Ex. 12 at 1-2.  E.A. had previously been written up on December 9, 2014 for "[r]ude behavior towards [a] resident."  Id. at 1.  Relying on the past allegation and the ongoing investigation into Resident 1's allegation, the DON discharged E.A. on August 4, 2016.  Id. at 2.

E.   The undisputed facts demonstrate that Fireside failed to substantially comply with 42 C.F.R. § 483.13(c)(3), Tag F225, and 483.13(c), Tag F226.

The undisputed facts demonstrate Fireside violated Tags F2258 and F226 by failing to suspend or re-assign a staff member accused of verbally abusing a resident, thereby putting residents who continued to receive care from the staff member at risk of suffering harm from further abuse.  CMS Br. at 5-7; CMS MSJ at 5-9.  Fireside treated Resident 1's complaint that E.A. told her to "shut up" as an allegation of abuse, reporting it to TDADS and initiating an investigation to substantiate the complaint.  CMS Exs. 8, 10; CMS Ex. 12 at 4.

Under Fireside's own abuse investigation protocol, the mere allegation of abuse against E.A. required Fireside to deny her unsupervised access to residents and either reassign her to nonresident care duties or outright suspend her from duty pending the outcome of the investigation.  CMS Ex. 13 at 3.  Yet the only step Fireside took before the initiation of TDADS's own investigation was to reassign E.A. to care for other residents.  CMS Ex. 8 at 2; CMS Ex. 9 at 4; CMS Ex. 11 at 3; CMS Ex. 12 at 6; P. Br. at 6.  The record makes plain that the DON and abuse coordinator, both key figures in implementing Fireside's abuse investigation protocol, had personally been made aware of Resident 1's allegations.  CMS Ex. 13 at 6.  Nevertheless, they failed to implement the facility's investigation protocol by allowing E.A. to continue providing direct care to residents without any apparent supervision.  CMS Ex. 9 at 2; CMS Ex. 11 at 3.  In fact, the facility took no further action against E.A. until the TDADS investigation revealed E.A.'s prior history of being rude toward residents, at which point Fireside terminated E.A.'s employment.  CMS Ex. 12 at 1-2.

These undisputed facts demonstrate Fireside violated Tag F226 by failing to implement a critical aspect of its abuse prevention policy.  Fireside's abuse investigation protocol represented its professional judgment as to what actions were necessary to comply with its obligation under Tag F225 to prevent further potential abuse while investigating an allegation of abuse.  See Good Shepherd, DAB No. 2858 at 12.  By failing to follow its protocol after learning of Resident 1's allegation of abuse, Fireside thereby violated

Page 10

42 C.F.R. § 483.13(c)(3), Tag F225.  And by allowing E.A. to continue to provide unsupervised care to residents, Fireside exposed its residents to the potential for additional "willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish."  SOM, App'x PP at 61.  Thus, Fireside was not in substantial compliance with 42 C.F.R. § 483.13(c), (c)(3), Tags F225 and F226.  42 C.F.R. § 488.301.

Fireside responds that its failure to suspend or reassign E.A. following Resident 1's allegation "is a red herring" and that the real issue is whether the steps it actually took "were reasonable given the facts of the matter."  P. Br. at 6-7.  Fireside first argues that Resident 1's allegation was not actually an allegation of abuse that triggered the facility's obligations under the regulations and its own abuse prevention policy because the mere act of telling a nursing home resident to "shut up" is not objectively abusive absent "threats and intimidation."  Id. at 7-11.  Fireside cites a case from a Canadian court for this proposition, Pet. Ex. 1, and highlights the fact Resident 1 only reported that her feelings were hurt.  Id. at 8-11.  Absent an allegation of genuine abuse, Fireside argues it had no duty to suspend E.A. while investigating Resident 1's complaint, and that the steps it actually took (e.g., reassigning E.A. to care for other residents) were reasonable and sufficient.  Id. at 7, 11.

I find this argument unpersuasive.  Fireside's attempt to claim Resident 1 did not make a genuine allegation of abuse is undermined by the fact that upon learning of her complaint, the facility treated it as an abuse allegation.  Fireside reported the allegation to TDADS, initiated an investigation, and reassigned E.A. away from duties involving care of Resident 1.  Since the facility believed Resident 1's allegation to be sufficiently indicative of possible abuse to contact TDADS, start an investigation, and ultimately terminate E.A., it can hardly now claim its subsequent failings are obviated by the fact that it had no obligation to act in the first place.

The regulations do not support Fireside's position either.  42 C.F.R. § 488.301 defines "abuse" to include any action that causes "mental anguish," explicitly including "verbal abuse."  Here, Resident 1 reported her feelings were hurt, which is how a person with limited ability to communicate might describe mental anguish.  CMS Ex. 7 at 6.  And any reasonable person would consider being told to "shut up" by a supposed caretaker to be, at the least, demeaning.  See Lifehouse of Riverside Health Ctr., DAB No. 2774 at 12 (2017) (affirming that a CNA responding to a resident's request for help with toileting by telling her to "go" in her incontinence brief to be demeaning and therefore verbally abusive).

Page 11

Critically, Fireside concedes that a CNA telling a resident to "shut up" would constitute abuse if delivered with "conjoining threats and intimidation."  P. Br. at 8.9   But once Resident 1 complained that E.A. told her to "shut up," there was at least the possibility, even under Fireside's narrow view, that she had been subject to abuse.  And if that were the case, the facility had an obligation to prevent E.A. from caring for any residents, not just Resident 1, while it conducted an investigation.  Under the regulations and the facility's own policy, Resident 1's complaint clearly constituted an allegation of abuse that triggered Fireside's obligation to investigate the claim and implement its abuse prevention protocol.

Fireside also argues it was not required to suspend E.A. while investigating Resident 1's complaint because such action "is a mere 'checklist' action abrogated by [Congress]."  Id. at 11.  Fireside relies on a decision from the Tenth Circuit U.S. Court of Appeals for this proposition, quoting, "Congress moved away from checklists of actions that facilities must take" to give facilities flexibility, while putting the "central focus on the actual care received by [residents]."  Id. at 7 (quoting Sunshine Haven Nursing Operations, LLC v. U.S. Dep't of Health & Human Servs., Ctrs. for Medicare & Medicaid Servs. 742 F.3d 1239, 1253-54 (10th Cir. 2014)) (emphasis omitted).  Fireside therefore believes its actions were sufficient to comply with the regulations and its own policies, even if it did not technically comply with its own policy.

This argument fails because Fireside's failure to act was not a mere omission of a "checklist" action imposed by the government.  The Tenth Circuit more fully observed "Congress moved away from checklists of actions that facilities must take" to give facilities flexibility, while putting the "central focus on the actual care received by patients, leaving facilities with flexibility to select the most appropriate methods but the corresponding responsibility to ensure that the selected methods are effective for achieving the outcomes specified in the statute and implementing regulations."  Sunshine Haven, 742 F.3d at 1254 (citations omitted) (emphasis in original).

In crafting a facility policy that ensured compliance with the regulations, Fireside's abuse policy prohibited employees who were subjects of abuse allegations from caring for any resident while the facility's investigation took place.  CMS Ex. 13 at 4.  This was no mere technical "checklist" obligation that the facility could ignore and still be compliant.  This provision of Fireside's abuse prevention policy represented a reasoned (and correct) judgment that in order to comply with the regulatory admonition to ensure its residents

Page 12

were free from abuse, 42 C.F.R. § 483.13, employees who had possibly abused a resident could not interact with any resident until the facility's investigation had been completed.  Thus, the facility's failure to follow its own policy and implement this critical measure means Fireside did not take adequate steps and was out of substantial compliance with the regulations.

Elsewhere, Fireside questions the surveyor's citation of an "F" scope/severity level (i.e., widespread noncompliance with no actual harm that posed a potential for more than minimal harm).  P. Opp. at 10.  With exceptions inapplicable here, Fireside cannot appeal, in this proceeding, CMS's determination regarding the level of Fireside's noncompliance.  42 C.F.R. § 498.3(b)(14).  Even were it able to challenge that determination, I would uphold it.  Contrary to the regulations and its own policies, Fireside permitted E.A. unsupervised access to its residents after it became aware of Resident 1's allegations.  The facility did not separate E.A. from the residents while the investigation was ongoing.  As a result, Fireside's residents faced the risk of further potential abuse, which carried with it the risk of more than minimal harm.  "Widespread" is thus an apt description of Fireside's noncompliance.

F.   The remedies imposed by CMS, including a $450 per-day civil money penalty and a denial of payment for new admissions from September 1 through September 21, 2016, are reasonable.

CMS may impose a DPNA on a skilled nursing facility when it "is not in substantial compliance with the [Medicare program participation] requirements," and payments do not resume until "the date that the facility achieves substantial compliance."  42 C.F.R. § 488.417(a), (d).  CMS may impose civil money penalties on a facility "for either the number of days a facility is not in substantial compliance . . . or for each instance that a facility is not in substantial compliance."  42 C.F.R. § 488.430(a).  Even one instance of noncompliance is sufficient to impose on a facility civil money penalties and a denial of payments for new admissions.  42 U.S.C. § 1395i-3(h)(2)(B)(i)-(ii), (h)(3); 42 C.F.R. §§ 488.417(a), 488.430(a).

The undisputed facts discussed above demonstrate that Fireside's noncompliance began no later than July 17, 2016.  That is the date Fireside first failed to implement its anti-abuse policy and protect its residents from potential abuse by permitting E.A. to continue caring for residents after Resident 1 accused her of verbal abuse.  Fireside does not specifically dispute the alleged duration of its noncompliance with 42 C.F.R. § 483.13(c), Tag F226, and (c)(3), Tag F225.  Nor does it claim to have returned to substantial compliance earlier than September 22, 2016.  Therefore, CMS had a basis to impose a DPNA from September 1 through September 21, 2016, making that remedy reasonable as a matter of law.

Page 13

In determining the reasonableness of the civil money penalty amount imposed by CMS, I look to the factors set forth at 42 C.F.R. §§ 488.438(f) and 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)).  These factors include the seriousness of the deficiency and the facility's compliance history, financial condition, and degree of culpability.  42 C.F.R. §§ 488.438(f), 488.404.

Neither CMS nor Fireside argue compliance history or financial condition are factors affecting the penalty amount.  Considering the remaining factors, I conclude, based on the undisputed facts before me, that Fireside's noncompliance was serious.  Contrary to its duty under the regulations and its own policies, Fireside permitted E.A. to continue providing direct care to other residents without supervision even after Resident 1 alleged that E.A. verbally abused her.

Two staff members critical to implementing Fireside's abuse investigation protocol, the DON and abuse coordinator, knew about the allegation against E.A. but still agreed to permit E.A. to continue providing unsupervised resident care.  Not only did this deficient practice put any resident for whom E.A. was responsible at risk for potential abuse, it did little to protect Resident 1—a very vulnerable resident—from retaliation or further potential abuse by E.A.  Fortunately, it does not appear that any further abuse occurred.  However, the absence of further abuse does not mitigate the seriousness of Fireside's noncompliance because that absence would have been in spite of, not because of, Fireside's actions.10   For these reasons, I reject Fireside's apparent contention that its noncompliance was not serious enough to justify the amount of the per-day civil money penalty imposed by CMS.  P. Opp. at 6, 10.

I must also consider culpability.  I do not believe Fireside intended neglect, indifference, or disregard for its residents.  Nevertheless, some level of culpability is apparent here, especially given that Fireside's DON and abuse coordinator were high-level employees who were aware of the allegations and their obligations under the facility's abuse prevention policy, but did nothing to separate E.A. from resident care.

Page 14

I therefore find reasonable CMS's imposition of a $450 per day civil money penalty for 67 days of non-immediate jeopardy noncompliance, a total penalty of $30,150, and a denial of payment for new admissions from September 1 through September 21, 2016.

1. CMS subsequently re-designated these provisions as 42 C.F.R. § 483.12(a)(3)-(4), (c)(2)-(4), with some revisions.  81 Fed. Reg. 68,688, 68,827, 68,855 (Oct. 4, 2016).  CMS now associates failure to report and investigate allegations of abuse with Tags F609 and F610.  State Operations Manual (SOM) App'x PP at 140-41, 146, available at https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/GuidanceforLawsAndRegulations/Downloads/Appendix-PP-State-Operations-Manual.pdf (last rev. Nov. 22, 2017).  Neither the changes in the regulation nor in the SOM have any bearing on the facts of this case.  Therefore, for simplicity's sake, I will refer to Tag F225 and the regulation in effect at the time of the survey.
• back to note 1
2. CMS subsequently re-designated this provision as 42 C.F.R. § 483.12(b), with some revisions.  81 Fed. Reg. at 68,827, 68,855.  CMS now associates failure to develop and implement abuse and neglect policies with Tag F607.  SOM App'x PP at 126.  As with Tag F225, the changes to this provision and SOM guidance have no bearing on this case, so for simplicity's sake, I will refer to Tag F226 and the regulation in effect at the time of survey.
• back to note 2
3. CMS initially filed an unsigned declaration by Surveyor Gordon Foster as CMS Ex. 16.  DAB E-file Docket No. C-17-32, Doc. No. 5q.  CMS later sought and received leave from Judge Anderson to submit a signed version of Surveyor Foster's declaration.  DAB E-file Docket No. C-17-32, Doc. Nos. 6, 6a.  For purposes of this decision I consider Doc. No. 6a to be CMS Ex. 16.
• back to note 3
4. These amounts adjusted for inflation at the time of the survey were $103 to $6,188 for less serious noncompliance and $6,291 to $20,628 for immediate jeopardy noncompliance.  45 C.F.R. § 102.3 (2016).
• back to note 4
5. To the extent I rely on any evidence created by the surveyor, I do so only where that evidence is supported by Fireside's records and reflects facts Fireside does not dispute.
• back to note 5
6. I refer to facility staff members by their initials or titles to minimize unnecessary disclosure of personal details.
• back to note 6
7. Fireside's provider investigation report in the record before me is undated, other than referencing the date of the allegation and initial report of that allegation to TDADS.  The report appears to be missing a page, since the second page of the exhibit is labeled "Page 3."  It is unclear why CMS did not submit a complete copy of the report.  Nevertheless, the surveyor's investigation report indicates, and Fireside does not dispute, that the provider investigation report was dated July 20, 2016.  CMS Ex. 11 at 4.
• back to note 7
8. Although Tag F225 encompasses multiple regulatory requirements, CMS chiefly alleges that Fireside failed to prevent further potential resident abuse while investigating an allegation of abuse, in violation of 42 C.F.R. § 483.13(c)(3).  I will therefore address whether Fireside substantially complied with that regulatory provision.
• back to note 8
9. To be clear, I do not share the view of Fireside (or apparently, at least one Canadian jurist) that abusive language must be accompanied by threats and intimidation.  Telling a resident to "shut up" could certainly constitute "the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish."  SOM, App'x PP at 61; 42 C.F.R. § 488.301.  In any event, Fireside's legal argument on this point does not affect the outcome of the case because Fireside's noncompliance does not turn on whether E.A. actually abused Resident 1.  Beverly, DAB No. 2156 at 12-13.
• back to note 9
10. Although Fireside minimizes the harm or potential harm as mere rudeness, P. Br. at 11, it takes little imagination to envision a scenario in which a staff person accused of abuse might decide to retaliate against the accusing resident.  The regulations and Fireside's abuse investigation protocol exist to protect residents from this risk in the moment, when the final outcome of whether abuse occurred or not is uncertain.  Fireside should not escape liability because it was fortunate enough that scenario did not come to fruition here.
• back to note 10