Vibra Hospital of Charleston-TCU, DAB CR5091 (2018)

DECISION

In this deeply disturbing case, three high-level employees of a long-term care facility physically assaulted one of their more troublesome residents; specifically, they conducted an unauthorized body cavity search while looking for “contraband” (alcohol and e-cigarettes).

Petitioner, Vibra Hospital of Charleston-TCU, is a long-term-care facility, located in Mount Pleasant, South Carolina, that participates in the Medicare program.  Following a complaint investigation and extended survey, completed December 16, 2015, the Centers for Medicare and Medicaid Services (CMS) determined that the facility was not in substantial compliance with multiple Medicare requirements and that its deficiencies posed immediate jeopardy to resident health and safety.  CMS has imposed civil money penalties (CMPs) of $7,000 per day for 142 days of immediate jeopardy and $200 per day for 34 days of substantial noncompliance that was not immediate jeopardy.

Of the nine deficiencies cited, one was resolved through an informal dispute resolution proceeding, and Petitioner opted not to appeal three.  Petitioner’s Pre-hearing Brief at 2 n.2.  Based on those three unchallenged deficiencies, I find that, from July 27, 2015,

Page 2

through January 18, 2016, the facility was not in substantial compliance with Medicare program requirements, and I sustain a CMP of at least $50 per day for those days.  42 C.F.R. § 488.408(d); see Order (December 21, 2017) at 2.

With respect to the challenged deficiencies, the parties seem to agree that no material facts are in dispute.  CMS has moved for summary judgment.  For the reasons set forth below, I grant CMS’s motion.  I find that:  from July 27, 2015 through January 18, 2016, the facility was not in substantial compliance with 42 C.F.R. §§ 483.13(b); 483.13(c); 483.20(k)(3)(i); 483.75; and 483.75(o)(1); from July 27 through December 15, 2015, those deficiencies posed immediate jeopardy to resident health and safety; and the penalties imposed are reasonable.

Background

The Social Security Act (Act) sets forth requirements for long-term care facilities to participate in the Medicare program and authorizes the Secretary of Health and Human Services to promulgate regulations implementing those statutory provisions.  Act § 1819.  The Secretary’s regulations are found at 42 C.F.R. Part 483.1   To participate in the Medicare program, a nursing facility must maintain substantial compliance with program requirements.  To be in substantial compliance, a facility’s deficiencies may pose no greater risk to resident health and safety than “the potential for causing minimal harm.”  42 C.F.R. § 488.301.

The Secretary contracts with state survey agencies to survey skilled nursing facilities in order to determine whether they are in substantial compliance.  Act § 1864(a); 42 C.F.R. § 488.20.  Each facility must be surveyed annually, with no more than fifteen months elapsing between surveys, and must be surveyed more often, if necessary, to ensure that identified deficiencies are corrected.  Act § 1819(g)(2)(A); 42 C.F.R. §§ 488.20(a); 488.308.  The state agency must also investigate all complaints.  Act § 1819(g)(4).

In this case, on December 16, 2015, surveyors from the South Carolina Department of Health and Environmental Control (state agency) completed a complaint investigation and extended survey of the facility.  Based on their findings, CMS determined that the facility was not in substantial compliance with multiple Medicare program requirements, specifically:

Page 3

• 42 C.F.R. § 483.13(b) (Tag F223 – staff treatment of residents:  abuse) at scope and severity level J (isolated instance of substantial noncompliance that poses immediate jeopardy to resident health and safety);2
• 42 C.F.R. § 483.13(c) (Tag F226 – policies to prohibit abuse and neglect) at scope and severity level J;
• 42 C.F.R. § 483.20(k)(3)(i) (Tag F281 – resident assessment:  professional standards of quality) at scope and severity level J;
• 42 C.F.R. § 483.25(m)(2) (Tag F333 – quality of care:  medication errors) cited at scope and severity level D (isolated instance of substantial noncompliance that causes no actual harm with the potential for more than minimal harm);
• 42 C.F.R. § 483.75 (Tag F490 – administration) at scope and severity level J;
• 42 C.F.R. § 483.75(d)(1)-(2) (Tag F493 – administration:  governing body) cited at scope and severity level F (widespread substantial noncompliance that causes no actual harm with the potential for more than minimal harm);
• 42 C.F.R. § 483.75(h) (Tag F500 – administration:  use of outside resources) cited at scope and severity level E (pattern of substantial noncompliance that causes no actual harm with the potential for more than minimal harm);
• 42 C.F.R. § 483.75(n) (Tag F519 – administration:  influenza and pneumococcal immunizations) at scope and severity level F;3  and
• 42 C.F.R. § 483.75(o)(1) (Tag F520 – administration:  quality assessment and assurance) at scope and severity level L (widespread substantial noncompliance that poses immediate jeopardy to resident health and safety).

CMS Exs. 1, 4.

Page 4

After a January 20, 2016 follow-up survey, CMS determined that the facility returned to substantial compliance on January 19, 2016.  CMS Ex. 4.  It imposed against the facility penalties of $7,000 per day for 142 days of immediate jeopardy (July 27 through December 15, 2015) and $200 per day for 34 days of substantial noncompliance that was not immediate jeopardy (December 16, 2015, through January 18, 2016), for a total penalty of $1,000,800 ($994,000 + $6,800).  CMS Exs. 1, 2.

Petitioner appealed.

The parties filed pre-hearing briefs.  With its brief, CMS submitted 33 exhibits (CMS Exs. 1-33).  With its brief, Petitioner submitted 12 exhibits (P. Exs. 1-12).

Issues

As noted above, Petitioner has not challenged three of the deficiencies cited.  The facility was therefore not in substantial compliance with Medicare program requirements from July 27, 2015, through January 18, 2016, and the CMP must be at least $50 per day.  42 C.F.R. § 488.408(d).

The issues remaining are:

• from July 27, 2015, through January 18, 2016, was the facility in substantial compliance with 42 C.F.R. §§ 483.13(b); 483.13(c); 483.20(k)(3)(i); 483.75; and 483.75(o)(1);
• from July 27 through December 15, 2015, did the facility’s deficiencies pose immediate jeopardy to resident health and safety; and
• are the penalties imposed – $7,000 per day for 142 days of immediate jeopardy and $200 per day for 34 days of substantial noncompliance that did not pose immediate jeopardy – reasonable.

Discussion

Summary judgment.  In an order dated December 21, 2017, I noted that, based on the parties’ submissions, it appears that no material facts are in dispute.  Citing Rule 56(f) of the Federal Rules of Civil Procedure, I identified material facts not in dispute and directed the parties to address the question of whether summary judgment is appropriate.  Order (December 21, 2017).  In response, CMS agreed that no material facts are in dispute and filed its own motion for summary judgment.  See Acknowledgment and Pre-hearing Order at 4 (¶ 8) (March 4, 2016) (advising that “a party may file a motion for summary judgment without requesting leave.”).

Page 5

Petitioner agreed that the facts set forth in my order are “generally inclusive of the information material to this appeal” and that “ultimately, it is the legal import of the facts underlying the investigations and subsequent penalty determinations that are relevant to the outcome.”  Correspondence dated February 1, 2018 (emphasis added).  Although Petitioner did not move for summary judgment, it did not dispute the facts set forth in my order, and it argued in its opposition to CMS’s motion that the undisputed facts establish that the “deficiencies challenged herein should be reversed and/or” I should find “clearly erroneous and subject to substantial reduction” the scope, duration, and amount of the penalties.  P. Opposition to CMS’s Motion for Summary Judgment (P. Opp.) at 1.

Summary judgment is appropriate here because this case presents no genuine issue of material fact (as the parties agree), and CMS is entitled to judgment as a matter of law.  Bartley Healthcare Nursing & Rehab, DAB No. 2539 at 3 (2013), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986); Ill. Knights Templar Home, DAB No. 2274 at 3-4 (2009), and cases cited therein.  CMS has come forward with evidence so one-sided that it must prevail as a matter of law.  See Livingston Care Ctr. v. Dep’t of Health & Human Servs., 388 F. 3d 168, 173 (6th Cir. 2004).  For its part, Petitioner has tendered no evidence of specific facts showing that a dispute exists.  See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,475 U.S. 574, 586 n.11 (1986); Vandalia Park, DAB No. 1939 (2004); Lebanon Nursing & Rehab. Ctr., DAB No. 1918 (2004).

1. CMS is entitled to summary judgment because the undisputed evidence establishes that, with the assistance of the director of nursing and a charge nurse, the facility’s administrator abused a resident by conducting an unauthorized body cavity search.  Because the staff’s actions did not meet professional standards of quality and, in fact, constituted abuse, the facility was not in substantial compliance with 42 C.F.R. § 483.13(b) and (c) and 42 C.F.R. § 483.20(k)(3)(1).4

Program requirements:  42 C.F.R. § 483.13(b) and (c) (Tags F223 and F226).  The regulation governing resident behavior and facility practices mandates that each resident “has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion.”  42 C.F.R. § 483.13(b).  Abuse is defined as “the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.”  42 C.F.R. § 488.301.

In order to keep residents free from abuse, facilities must develop and implement written policies and procedures that prohibit their mistreatment, neglect, and abuse.  Among

Page 6

other requirements, the facility must ensure that all alleged violations are reported immediately to the facility administrator and appropriate state officials.  42 C.F.R. § 483.13(c).  The facility must have evidence that all alleged violations are thoroughly investigated, and it must prevent further potential abuse while the investigation is in progress.  The results of all investigations must be reported to the administrator (or designated representative) and to the appropriate state officials within five working days of the incident.  If the violation is verified, the facility must take appropriate action.  42 C.F.R. § 483.13(c)(2), (3), and (4).

Program requirement:  42 C.F.R. § 483.20(k)(3)(i) (Tag F281).  Initially and periodically, the facility must conduct a “comprehensive, accurate, standardized, reproducible assessment of each resident’s functional capacity” and must use the results of that assessment to develop, review, and revise the resident’s comprehensive care plan.  Services provided or arranged by the facility must meet professional standards of quality.

Facility policy – abuse.  The facility had in place a lengthy written policy that strictly prohibits verbal, sexual, physical, and mental abuse, corporal punishment, mistreatment, and other types of adverse behavior toward residents.  The prohibition applies to all facility staff, residents, and others who interact with residents.  The policy points out that residents with “[p]sychosocial, interactive, and/or behavioral dysfunction” are among those most at risk for abuse and must be identified as such.  CMS Ex. 17 at 1, 2.  To protect these especially vulnerable residents, staff must develop care plans that identify their needs.

Among other instructions, the policy directs facility staff to “[r]easonably monitor staff, resident and/or visitor interaction for inappropriate behaviors.”  To prevent recurrences of such behaviors, staff may monitor visitors who have behaved inappropriately in the past.  CMS Ex. 17 at 3 (emphasis added).

Where the alleged abuse is physical, the policy dictates that staff defuse the situation and remove the aggressor “from all resident contact”; assess the resident for injury; “stabilize the condition”; and contact the director of nursing (DON) and the facility administrator.  CMS Ex. 17 at 3.  If the alleged abuse is sexual, someone must stay with the resident “for protection and comfort.”  Again, staff must contact the DON and the administrator.  Staff must also preserve all physical evidence of assault.  CMS Ex. 17 at 3.

The policy defines “immediately” as “as soon as possible but not later than 24 hours.”  CMS Ex. 17 at 8.

The policy includes instructions for investigating allegations of abuse.  The facility must report the allegations to a variety of corporate officers (CEO, CCO, DQM, and the corporate director on skilled nursing).  Staff must call the police if physical or sexual abuse has been alleged and must report the alleged abuse to the appropriate state

Page 7

agencies, as required by law.  CMS Ex. 17 at 4.  The policy explains that federal regulations require evidence that all allegations of abuse are thoroughly investigated and emphasizes that the facility must prevent further potential abuse while the investigation is in progress.  The investigation must:  specify the type of allegation reported; document the details of the incident, including what occurred, when, and where; and describe the perpetrator.  CMS Ex. 17 at 5-6.  The investigators must prepare a summary report of their findings and conclusions.  The report must include “sufficient detail of the investigation[,] any actions taken, and a summary of the findings.”  The facility must submit the report to the state agency within five days of the incident.  CMS Ex. 17 at 7.

The policy directs staff to determine the root cause of the event and to plan and implement corrective action, specifically:  immediately address security issues; refer the resident to a psychologist, ombudsman, or other appropriate counselling/advocacy agent, as needed; based on the investigation and risk assessment, update in the resident’s care plan any new interventions; and report any care plan changes to the interdisciplinary team at daily morning meetings.  The report must explain how the plan changes are communicated to the care-givers.  CMS Ex. 17 at 4.

In response to allegations of abuse, the policy directs staff to report, within five working days of the incident, to the facility administrator, CEO, CCO, and other officials “in accordance with state law” the results of an alleged abuse investigation.  If the abuse is verified, corrective action must be taken.  CMS Ex. 17 at 2.

Staff must also follow state agency reporting requirements, contact the resident’s family, and report on the facility’s efforts to care for the resident’s distress or injury.  If allegations against an employee are substantiated, the facility must terminate the employment, notify the certification/licensure board, and document the abuse in the employee’s file (which assures that the employee will not be rehired).  CMS Ex. 17 at 4.

The policy mandates that residents be protected during investigations.  The implicated staff member must immediately be removed from any resident contact; she must be interviewed, and the interview must be documented.  The staff member must be suspended pending the results of the investigation.  The facility must ensure appropriate supervision on all shifts.  An affected resident who may be at risk must be interviewed to identify any specific safety concerns.  Staff must observe the resident to determine the psychological impact of the abuse, and the facility must arrange for counseling and support for the resident(s) involved.  CMS Ex. 17 at 5.  The facility must document:  a resident evaluation regarding emotional distress and psychosocial functioning; descriptions of any injuries; and treatment rendered.  It must identify any other residents who show signs of abuse.  CMS Ex. 17 at 5-6.

Finally, the facility must develop a list of known and possible witnesses to the incident.  Investigators must interview anyone (staff, visitors, residents) who might have

Page 8

knowledge of the incident; they must obtain that person’s contact information; they should observe and document “any unusual demeanor”; and identify that person’s cognitive status.  They must interview the alleged perpetrator and, if relevant, obtain his/her work history.  They should interview co-workers and residents about their experiences with the accused.  They must obtain all relevant documentation (work schedules, police reports, receipts).  Again, the policy mandates that the facility describe actions taken to protect residents and prevent a recurrence of the incident.  CMS Ex. 17 at 6-7.

Resident 1 (R1).  R1 was a 64-year-old woman, admitted to the facility on May 26, 2015, to recover from hip surgery.  CMS Ex. 7 at 1.  She suffered from a variety of other physical, psychiatric, and behavioral problems, including chronic obstructive pulmonary disease, hypertension, post-traumatic stress disorder, and an anxiety disorder.  She had a history of abusing tobacco and alcohol.  CMS Ex. 6 at 1; CMS Ex. 7 at 2, 3.

R1 was unquestionably a difficult resident, who hid “contraband” – alcohol and e-cigarettes – in her room, sometimes wrapped in tissues or urine-soaked clothing and linens.  When confronted, she could become belligerent and abusive toward staff.  CMS Ex. 7 at 32, 34; See Order at 3.  A physician telephone order, dated July 23, 2015 (which was not signed until August 10 – even then, the signatory was not the ordering physician), directs staff to search R1’s room every shift for alcohol and cigarettes.  CMS Ex. 7 at 168; P. Ex. 2 at 3 (Kleckley Decl. ¶ 13).  Staff suspected – and R1 conceded – that one of her visitors brought in the contraband items.  CMS Ex. 10 at 2; CMS Ex. 7 at 34; CMS Ex. 17 at 3.

R1’s care plan reflects her behavior problems, although its interventions are not always consistent.  Two entries, dated June 2, 2015, identify her as potentially verbally aggressive and argumentative regarding her medications.  One indicates that this behavior causes psychosocial problems.  CMS Ex. 7 at 13, 19.  Among other interventions, one plan entry instructs nurses to engage her calmly in conversation, and, if met with an aggressive response, walk away and approach later.  CMS Ex. 7 at 13.  But the other entry tells staff to take her to a “calm, safe environment and allow her to vent/share her feelings.”  CMS Ex. 7 at 19.

Another June 2 entry identifies R1’s “impaired cognitive function or impaired thought processes.”  Staff are instructed to monitor and report any changes in cognitive function.  If the resident becomes agitated, they are instructed to stop and return later.  CMS Ex. 7 at 15.  And yet another June 2 entry indicates that R1 has mild depression and decreased sleep.  Staff are instructed to monitor her sleep habits and signs and symptoms of depression and to encourage her to talk.  CMS Ex. 7 at 18.

An entry dated June 14 indicates that the resident is resistive to care.  Again, if the resident resists, the plan instructs staff to leave her and return later.  CMS Ex. 7 at 13.  An

Page 9

entry dated June 15 identifies behavior problems related to her habituation to anti-anxiety medications, as well as her chronic anxiety, post-traumatic stress disorder, and alcohol abuse.  Staff are instructed to monitor and document her behaviors in order to identify the underlying cause.  Although added to the care plan more than five weeks before a physician’s order authorized it, the plan directs staff to search R1’s room each shift, looking for alcohol and cigarettes.  CMS Ex. 7 at 14.  Another entry, dated July 6, 2015, indicates that the resident requires “two caregiver approach” because she falsifies information.  CMS Ex. 7 at 12.

On July 27, 2015, the day staff abused R1, the facility added entries to her care plan.  The record does not indicate whether those entries were added before or after the abuse occurred, and no evidence suggests that an interdisciplinary team met to consider the changes.  See 42 C.F.R. § 483.20(k)(2)(ii).  One entry repeats that the resident “makes accusatory statements towards staff.”  Staff are instructed to analyze the circumstances and triggers surrounding the behavior, indicate what “de-escalates” the behavior, and document.  They are to assess and anticipate her needs and communicate to relieve her anxiety.  When she becomes agitated, they are to intervene before the agitation escalates, guide her away from the source of her distress, and calmly engage her in conversation.  If her response is aggressive, staff should “walk calmly away and approach later.”  CMS Ex. 7 at 14.

Another entry, also dated July 27, says that alcohol and e-cigarettes have been found in the resident’s room.  The plan directs staff to instruct the resident about the risks and hazards associated with alcohol and smoking and about available cessation aids.  They are to advise her of the facility’s smoking policies (locations, times, safety concerns).  They are to notify the nurse immediately if they suspect she has violated the policy.  And they are to “perform a room and body audit” every shift.  CMS Ex. 7 at 14-15.  The instructions do not further define “body audit,” which, in any event, was not authorized by a physician order for the purpose of searching for contraband.

The abuse.  On July 27, 2015, R1 was a topic of conversation at the morning staff meeting, which was attended by the facility administrator, the interim DON, a charge nurse, and others.  They discussed R1’s hiding alcohol and e-cigarettes in her room and someone speculated that she might be hiding such contraband in her vagina.  CMS Ex. 11 at 4, 14-15, 31-34; CMS Ex. 28 at 3-4 (Lessard Decl. ¶ 15).  I find this puzzling.  Staff consistently found the contraband when they searched R1’s room or performed permitted skin evaluations, so nothing suggests that she was particularly cunning about hiding it.  Also puzzling, staff did not consider the far less drastic measure of eliminating the source of the contraband.  Staff found alcohol and e-cigarettes shortly after a friend’s visit, and R1 told them that the friend brought the items in.  CMS Ex. 7 at 34; CMS Ex. 10 at 2.  The facility had in place a policy directing staff to monitor problematic visitor interaction.  CMS Ex. 17 at 3.  Yet, staff chose to disregard that directive in favor of a more drastic action.

Page 10

At 11:30 on the morning of July 27, the administrator (who is also a licensed practical nurse), the interim DON (who is a registered nurse), and the charge nurse (who is a registered nurse) entered R1’s room to search for alcohol and e-cigarettes.  The interim DON stood at the foot of R1’s bed.  She had her hands on R1’s left knee “to stabilize it.”  The administrator and the charge nurse were on either side of the bed.  The administrator performed a vaginal exam.  During the procedure, R1 waved her arms, swatted at staff, and shouted obscenities.  At one point, the charge nurse put her hands on R1’s hands “to slow her should she try to scratch at [the interim DON].”  The employees all insist that R1 never said “no” or “stop,” and, for summary judgment purposes, I accept their statements as true.  On the other hand, they have not claimed that R1 affirmatively gave permission, and the undisputed evidence establishes that the resident protested loudly in her own way.  CMS Ex. 11 at 16; CMS Exs. 12, 13, 14; see CMS Ex. 11 at 24 (in which a witness, who was in the next room, reported hearing R1 yell, “Get your hand out of my vagina, you bitch.”); CMS Ex. 11 at 29 (another witness reported hearing R1 yell, “Get your hands off of me” and “I can’t believe you just stuck your hands in my vagina.”); CMS Ex. 11 at 31 (another witness reported hearing R1 yell, “They’re in my vagina.”).

The aftermath.  Although other staff members heard the incident, and some later acknowledged that the employees’ conduct was improper, they did not report it.  CMS Ex. 11 at 24 (“This isn’t a prison”), 29, 31, 32 (“I didn’t really think it would happen”).5

The following day, the interim DON approached Elizabeth Connor, R1’s nurse practitioner, to tell her about finding alcohol and e-cigarettes in R1’s room.  She also mentioned that the administrator performed a vaginal exam and that R1 was yelling during the procedure.  When Nurse Practitioner Connor subsequently went to R1’s room for a routine medical visit, R1 complained about the incident and charged that the administrator had performed a rectal, as well as vaginal, exam.6  Based on the interim DON’s statements and R1’s complaints, Nurse Practitioner Connor concluded that R1 had not consented to the vaginal exam, which, in any event, an administrator/licensed practical nurse should not have performed on anyone for any reason.  The nurse practitioner subsequently contacted Dr. John Kleckley, her attending physician, who was also the facility’s medical director, and informed him of the incident.  CMS Ex. 11 at 26-27.  Dr. Kleckley called Vibra Hospital’s Chief Executive Officer (CEO) to inform him of the incident.  CMS Ex. 15; P. Ex. 2 at 2 (Kleckley Decl. ¶ 5).

Page 11

At 6:40 p.m. on July 29, 2015 – more than two days after the incident occurred and a full day after he learned of it – the CEO faxed a report of the alleged abuse to the state agency.  The report mentions finding e-cigarettes and alcohol in R1’s room; it refers to R1’s history of threats and false allegations; the report refers to the search as “routine” and “according to Vibra policy.”  It does not mention the body cavity search.  CMS Ex. 8.

In the meantime, Nurse Practitioner Connor told the facility’s social worker about the incident.  The social worker took R1’s statement and, on July 29, prepared the resident’s grievance, which she gave to the CEO on July 30.  CMS Ex. 5 at 14; CMS Ex. 10.  She subsequently spoke to 21 other residents, reading them various definitions of abuse and neglect and asking whether it had happened to them while at the facility.  For the most part, they answered no, although one resident declined to be interviewed.  P. Ex. 5.

On July 31, four days after the incident, the facility suspended the administrator, the interim DON, and the charge nurse.  See Order at 4 (December 21, 2017).  The facility terminated their employment on August 3.

On August 3, the CEO sent the state agency the facility’s follow-up report.  This time, the facility concedes that, on the 28th, Dr. Kleckley reported that the room search included “a search of the resident’s vagina.”  According to the report, R1 sustained no physical injury and the facility suspended the three staff members “pending the outcome of all investigations.”  The report also says that the CEO asked for investigations by the South Carolina boards that regulate nurses and nursing home administrators and that he reported the incident to the police on July 31.  A police investigation was ongoing.  CMS Ex. 9.

Effective September 28, 2015, the facility fired the CEO, specifying that he would not be eligible for rehire.  CMS Ex. 25.

Facility noncompliance:  professional standards of quality.  Based on these undisputed facts, I find that the facility was not in substantial compliance with 42 C.F.R. § 483.20(k)(3)(i), which requires that the services provided by the facility meet “professional standards of quality.”  That the employees’ conduct did not do so is undisputed.  Nurses are not trained to perform pelvic exams.  It is not standard protocol.  CMS Ex. 11 at 17, 27-28; CMS Ex. 28 at 3-4 (Lessard Decl. ¶¶ 14, 15).  And Petitioner concedes that the employees’ conduct “fell well outside the scope of permitted conduct.”  P. Opp. at 5.

Facility noncompliance:  abuse.  Nor does anyone seriously dispute that the facility employees abused R1.  While expressing regard for the administrator (“We have had a lot of administrators in the facility and I believe [she] has been the best”), Nurse Practitioner Connor told police that “this was a very terrible thing that happened.  A lot of lack of judgment.  This whole thing is awful.”  CMS Ex. 11 at 28.  In his statement, Dr. Kleckley

Page 12

tacitly acknowledged that the resident had been abused:  “I am not aware of any incidents of abuse or neglect since the incident on July 27, 2015.”  CMS Ex. 15 (emphasis added); see P. Ex. 2 at 3-4 (Kleckley Decl. ¶ 14) (referring to the “internal body cavity search” as a “clear violation of Vibra’s policies and procedures”).  Petitioner itself characterizes the employees’ actions as “unauthorized and unorthodox.”  P. Opp. at 3.

Because its staff members abused R1, the facility was not in substantial compliance with section 483.13(b).

The undisputed evidence also establishes that, in investigating and reporting the abuse, the facility violated federal regulations and its own policies.  Staff were required to report immediately the alleged abuse.  42 C.F.R. § 483.13(c).  “Immediately,” according to facility policies, means “as soon as possible but not later than 24 hours.”  CMS Ex. 17 at 8.  But no one reported the incident until sometime the following day.  On the day after the abuse occurred, as a corollary to telling her that they found alcohol and e-cigarettes in R1’s room, the interim DON described the incident to Nurse Practitioner Connor.  Nurse Practitioner Connor properly reported the abuse to her superior, the facility’s medical director.  He, in turn, promptly reported the incident to the CEO.  But then the CEO impermissibly delayed reporting to the state agency.

Petitioner suggests that it met reporting deadlines because the CEO reported the incident to the state agency the day after he heard about it.  This misreads the regulation.  The facility was not in substantial compliance because its staff delayed a full day before anyone reported the abuse at all.  Then the CEO delayed another full day before he reported the allegation to the state agency.  These delays put the facility out of substantial compliance with the requirement that alleged violations be reported immediately.  42 C.F.R. § 483.13(c).

Moreover, when he finally sent a preliminary report, the CEO compounded the deficiency by misleading the agency; he omitted the critical fact (of which he was fully aware) that staff had conducted an unauthorized body cavity search.  Indeed, his initial report describes no abuse; rather, it falsely suggests that a highly unreliable resident made spurious allegations against staff.7

In the meantime, the facility all but ignored its policies for protecting residents while an abuse investigation is pending.  The three employees continued working for four days

Page 13

following the incident.  Until the social worker visited her the next day, no special steps were taken to protect R1 or to assess any emotional distress.8

Petitioner claims that the CEO “immediately instructed all three involved employees to have no contact with [R1] and none of the three involved employees otherwise had direct care responsibilities.”  P. Opp. at 5.  That the employees had no “direct care responsibilities” does not mean that they had no contact with residents, as is evident from the events of July 27.  With respect to whether the employees had continued contact with R1, Petitioner proffers virtually no reliable evidence, except a hearsay statement from the facility’s human resources manager.

In her written declaration, Manager Linda Chambless states that the CEO told her about the incident on July 31 and that he assured her that the employees were “immediately removed from contact with the complaining resident.”  P. Ex. 4 at 2 (Chambless Decl. ¶ 4).  For purposes of summary judgment, and drawing inferences in the light most favorable to Petitioner, I accept that this means that, after he learned of the allegations of abuse, the CEO ordered the employees to stay away from R1.  But this could not have happened until late in the day on July 28.  It does not establish that, for at least one day following the abuse, R1 was protected from her abusers; and it does not establish that these employees had no contact with other residents between July 27 and 31.

Petitioner cites other documents that simply do not support its claim to have protected the residents:

• CMS Ex. 8 is the “24-hour report” that says the “search” was “routine” and “according to Vibra policy,” implying that R1, who has a “history of threats and false allegations,” made the whole thing up “despite having three witnesses”;
• CMS Ex. 9 is the CEO’s August 3 report, which does not suggest that the employees were removed from resident contact at any time before they were suspended on July 31;
• CMS Ex. 10 is R1’s grievance, which says nothing about any actions the facility planned to take in response to the abuse (except, remarkably, that the grievance was referred to the administrator);

Page 14

• CMS Ex. 30 is the facility’s undated submission titled “Allegations of Compliance,” which says that the employees involved in the incident “were removed from having direct contact with the resident who made the alleged complaint of abuse,” but says nothing about when that occurred and says nothing about the employees’ contact with other residents;
• P. Ex. 2 is Dr. Kleckley’s declaration, which, except for the employee suspensions, does not mention removing them from contact with R1 or any other resident;
• The final citation is to Petitioner’s own hearing request, P. Ex. 1.  The arguments of counsel are not evidence.

P. Opp. at 5.

Finally, Petitioner characterizes the incident here as a “single incident of abuse in violation of the facility’s policies and procedures . . .” and argues that “a single isolated incident” is insufficient to establish a violation under section 483.13(c).  P. Opp. at 12.  I reject the underlying premise that this incident represents a single, isolated episode.  The Departmental Appeals Board has repeatedly emphasized that, in considering a facility’s compliance with section 483.13(c), the question is “whether the circumstances presented, viewed as a whole, demonstrate a systemic problem in implementing policies and procedures.”  Columbus Nursing & Rehab Ctr., DAB No. 2247 at 27 (2009); see Oceanside Nursing & Rehab. Ctr., DAB No. 2382 at 11 (2011) (holding that the focus “is not simply on the number or nature of the instances of neglect . . . but on whether the facts . . . surrounding such instance(s) demonstrate an underlying breakdown in the facility’s implementation of the provisions of an anti-neglect policy.”).

Here, the facility’s most crucial employee for preventing and investigating abuse was herself the abuser.  She was assisted by the DON and a charge nurse.  And not one of these key players seemed to recognize their actions as abusive.  By itself, that suggests a serious systemic problem.  But it was worse.  On the morning of the abuse, these employees, joined by the facility’s social worker, the assessment coordinator, the activities director, and others casually discussed the prospect of abusing the resident.  No one objected.  No one suggested that a body cavity search would be improper, much less that it would be abusive.  CMS Ex. 11 at 4, 14-15, 31-34.  When staff subsequently heard R1’s protests, they did not intervene to protect her; they did not report the abuse.  For at least one full day afterward, no one took any steps to assess or protect the resident.  This establishes that the facility had a serious, systemic problem in implementing its policies and procedures for preventing abuse.

Violating the regulation and facility policies, the individuals charged with protecting residents from abuse were themselves guilty of it.  Staff did not immediately report their

Page 15

abusive actions.  When the facility CEO learned of it, he delayed reporting to the state agency and then filed a misleading report.  In the meantime, staff failed to assess or protect the resident.  The facility was therefore not in substantial compliance with 42 C.F.R. § 483.13(c).

2. CMS is entitled to summary judgment because the undisputed evidence establishes that the facility was not administered in a manner that enabled it to use its resources effectively to attain or maintain the highest practicable physical, mental, and psychosocial well-being of its residents, as required by 42 C.F.R. § 483.75.

Program requirements:  42 C.F.R. § 483.75 (Tag 490).  The facility must be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident.

Facility noncompliance:  administration.  The Departmental Appeals Board has long held that a finding of substantial noncompliance in the facility’s administration may derive from findings of substantial noncompliance in other areas.

[W]here a facility has been shown to be so out of compliance with program requirements that its residents have been  placed in immediate jeopardy, the facility was not administered in a manner that used its resources effectively to attain the highest practicable physical, mental, and psychosocial well-being of each resident.

Asbury Ctr. at Johnson City, DAB No. 1815 at 11 (2002); Odd Fellow & Rebekah Health Care Facility, DAB No. 1839 at 7 (2002); Stone Cnty. Nursing & Rehab. Ctr., DAB No. 2276 at 15-16 (2009).  As discussed below, I find that the facility’s deficiencies posed immediate jeopardy to resident health and safety, which, by itself, justifies the finding that the facility was not in substantial compliance with 42 C.F.R. § 483.75.

Moreover, the failures here were directly attributable to administrative failures.  As the above discussion establishes, virtually the entire administrative staff were implicated in the abuse or the facility’s inadequate response to it.  This underscores that the facility was not administered in a manner that enabled it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident.

Facility noncompliance:  quality assurance committee (42 C.F.R. § 483.75(o)(1)).  The facility’s administrative failures included an ineffective quality assurance committee.

Page 16

The facility must have in place a quality assessment and assurance committee made up of the director of nursing (DON), a physician, and at least three other staff members.  The committee must meet at least quarterly to identify issues for which quality assessment and assurance activities are necessary.  It develops and implements appropriate plans of action to correct identified quality deficiencies.

The facility had in place a written policy requiring a quality assurance committee, made up of the administrator, the DON, a physician, and at least three additional members, including staff providing direct care and staff responsible for the physical plant.  CMS Ex. 18 at 1.  The committee is charged with identifying and responding to “operations and practices that cause negative outcomes . . . .”  CMS Ex. 18 at 1.  The policy requires the committee to meet at least monthly.  Among its responsibilities:  to “identify issues” requiring “quality assessment and assurance activities,” and to develop and implement appropriate plans of action to correct identified quality deficiencies.  CMS Ex. 18 at 1.

The facility had a quality assurance committee in place.  CMS Ex. 28 at 5 (Lessard Decl. ¶ 20).  However, staff could not provide the surveyors with any evidence that the committee met in July, August, or September.  Subsequently (during the independent dispute resolution proceedings), the facility produced partially-dated, handwritten notes of August and September meetings.  CMS Ex. 21.  The notes do not mention the July 27 incident.  In fact, the August notes say that no grievances were reported.  CMS Ex. 21 at 1.  Nor do the notes show that the committee addressed generally any problems with staff failing to provide services that meet professional standards of quality and staff abusing a difficult and uncooperative resident.  CMS Ex. 21; CMS Ex. 28 at 5 (Lessard Decl. ¶ 20).

On October 1, 2015, the committee finally discussed the July 27 incident and recommended that staff be retrained on the facility’s abuse policies and procedures.  CMS Ex. 20 at 1, 6.

Petitioner, nevertheless, points out that the facility’s social worker, who was a member of the quality assurance committee, interviewed residents to determine whether they had been abused.  The interviews were part of the facility’s investigation but they hardly satisfied the requirement that the committee (which had not met and would not meet for some time) identify the problems and implement appropriate plans of action.

Dr. Kleckley also declares that he “recalls” attending committee meetings in August and September and discussing abuse and neglect.  “After the incident, resident abuse and neglect was a big topic of conversation at the facility.”  P. Ex. 2 at 3 (Kleckley Decl. ¶ 8).  I have no doubt that the employees’ abusive actions and their subsequent terminations were prominent topics of conversation throughout the facility for some time.  However, an undocumented conversation that does not lead to “appropriate plans of action” to correct the identified quality deficiencies does not satisfy the requirements of the regulation.

Page 17

The undisputed evidence establishes that the facility’s quality assurance committee did not timely address the facility’s abuse issues, a significant short-coming that put the facility out of substantial compliance with the general administration regulation (42 C.F.R. § 483.75) as well as the subpart of that regulation that specifically addresses quality assurance (42 C.F.R. § 483.75(o)(1)).

3. CMS’s determination that the facility’s substantial noncompliance with 42 C.F.R. § 483.25(h) posed immediate jeopardy to resident health and safety is not clearly erroneous.

Immediate jeopardy.  Immediate jeopardy exists if a facility’s noncompliance has caused or is likely to cause “serious injury, harm, impairment, or death to a resident.”  42 C.F.R. § 488.301.  CMS’s determination as to the level of a facility’s noncompliance (which would include an immediate jeopardy finding) must be upheld unless it is “clearly erroneous.”  42 C.F.R. § 498.60(c).  The Board has observed repeatedly that the “clearly erroneous” standard imposes on facilities a “heavy burden” to show no immediate jeopardy and has sustained determinations of immediate jeopardy where CMS presented evidence “from which ‘[o]ne could reasonably conclude’ that immediate jeopardy exists.”  Barbourville Nursing Home, DAB No. 1931 at 27-28 (2004), citing Koester Pavilion, DAB No. 1750 (2000); Daughters of Miriam Ctr., DAB No. 2067 at 7, 9 (2007).

Resident abuse is a very serious offense.  Subjecting a resident to an unauthorized body cavity search is likely to cause any resident serious harm.  R1 was particularly vulnerable.  She was seriously mentally ill.  She had “psychosocial, interactive, and behavioral dysfunction,” which, as the facility’s policy recognizes, made her especially vulnerable for abuse.  CMS Ex. 17 at 1.  Although Petitioner disparages R1 as an unreliable reporter of the events that transpired, which, in her grievance, she describes as “rape,” no one disputes that she reacted fiercely during the incident:  waving her arms, swatting, and shouting obscenities.  P. Opp. at 3; CMS Ex. 10 at 1; CMS Ex. 11 at 16; CMS Exs. 12, 13, 14.  I find this sufficient to support a finding that R1 suffered actual harm as a result of the assault.

Moreover, delays in reporting, misleading the state agency, and failing to protect the resident and others while an investigation is pending are all deficiencies likely to cause serious harm to facility residents.  See, e.g., Rosewood Care Ctr. of Swansea, DAB No. 2721 at 12 (2016).

Because the facility’s deficiencies were likely to cause serious harm to vulnerable facility residents, and, in fact, caused actual harm to one resident, CMS’s determination that they posed immediate jeopardy to resident health and safety is not clearly erroneous.

Page 18

4. CMS’s determination as to the durations of the substantial noncompliance and the immediate jeopardy are consistent with statutory and regulatory requirements.

Once a facility has been found to be out of substantial compliance (as Petitioner was here), it remains so until it affirmatively demonstrates that it has achieved substantial compliance once again.  Ridgecrest Healthcare Ctr., DAB No. 2493 at 2-3 (2013); Taos Living Ctr., DAB No. 2293 at 20 (2009); Premier Living & Rehab Ctr., DAB No. 2146 at 3 (2008); Lake City Extended Care, DAB No. 1658 at 12-15 (1998).  The burden is on the facility to prove that it is back in compliance, not on CMS to prove that deficiencies continued to exist.  Asbury Care Ctr. at Johnson City, DAB No. 1815 at 19-20 (2002).

The facility must show that the incidents of noncompliance have ceased and that it has implemented appropriate measures to insure that similar incidents will not recur.  Libertywood Nursing Ctr., DAB No. 2433 at 15 (2011), citing Life Care Ctr. of Elizabethton, DAB No. 2367 at 16 (2011); accord, 42 C.F.R. § 488.454(a) and (e); Hermina Traeye Memorial Nursing Home, DAB No. 1810 at 12 (2002) (holding that, to be found in substantial compliance earlier than the date of the resurvey, the facility must supply documentation “acceptable to CMS” showing that it was in substantial compliance and was capable of remaining in substantial compliance on the earlier date); Cross Creek Care Ctr., DAB No. 1665 (1998).  A facility’s return to substantial compliance usually must be established through a resurvey.  42 C.F.R. § 488.454(a); Ridgecrest, DAB No. 2493 at 2-3.

Further, if CMS accepts a deficient facility’s plan of correction, the facility must then timely implement all of the steps that it identified in the plan as necessary to correct the cited problems.  Cal Turner Extended Care Pavilion, DAB No. 2030 at 19 (2006); see also Meridian Nursing Ctr., DAB No. 2265 (2009); Lake Mary Health Care, DAB No. 2081 at 29 (2007).

Finally, CMS’s determination that a facility’s ongoing noncompliance remains at the level of immediate jeopardy during a given period “is subject to the clearly erroneous standard of review under [42 C.F.R. §] 498.60(c)(2).”  Life Care of Elizabethton, DAB No. 2367 at 16, quoting Brian Ctr., DAB No. 2336 at 7-8 (2010).

Here, the facility’s deficiencies were not the type (like a leaky roof or a broken dishwasher) that lend themselves to a quick fix.  An in-service training and a few resident interviews are not sufficient to ensure that an abuse deficiency – particularly one that implicated management at its highest levels – has been corrected and will not recur.  If properly implemented, these interventions might help a facility achieve substantial compliance, but introducing them does not, by itself, establish substantial compliance.  Until the facility can demonstrate that its training and other interventions were effective,

Page 19

i.e., that staff capably followed the training, that management put effective monitoring tools in place, and that those interventions resolved the problem, the facility has not met its significant burden of demonstrating that it has alleviated the level of threat to resident health and safety.  Oceanside, DAB No. 2382 at 19; Premier Living & Rehab. Ctr., DAB CR 1602 (2007), aff’d, DAB No. 2146 (2008).

Petitioner complains that the state agency unreasonably delayed its survey.  According to Petitioner, the state agency should have sent a survey team to investigate within two working days of learning that a resident had alleged abuse.  P. Opp. at 3; P. Ex. 6 at 13.  In Petitioner’s view, had the state agency arrived to investigate within two working days, as required by CMS policies, the facility would not be subject to “the exorbitant fines imposed.”  P. Opp. at 3.

I agree that the state agency’s delay in sending a survey team was unfortunate.  However, I have no authority to review the timing of that survey.  42 C.F.R. § 498.3(b); see 42 C.F.R. § 498.3(d)(15).  Moreover, Petitioner would hardly have benefitted from an earlier survey (although its residents might have been better protected).  Had the survey team arrived within two days of receiving the initial – misleading – report, it would have found a facility in disarray.  On July 30 and 31, the abusers were either still working or they had just been suspended, leaving some gaping holes in administration and supervision.

The facility had to rebuild its entire administrative team.  This takes time.  On August 11, it hired a new DON, who also acted as the administrator (although the timing of her obtaining a provisional administrator’s license is somewhat fuzzy).  The new administrator was hired on September 12, 2015, and began working on September 14.  CMS Ex. 16 (Miller Decl. ¶¶ 5, 6, 7); CMS Ex. 30 at 1; P. Ex. 4 at 2 (Chambless Decl. ¶ 5).  Within weeks thereafter, the facility fired its CEO.  I recognize that the parent company’s regional CEO apparently assumed his responsibilities; however, I do not find this sufficient to establish that the facility had resolved its significant deficiencies.  CMS Ex. 30.

5. The penalties imposed are reasonable.

To determine whether a civil money penalty is reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f):  (1) the facility’s history of noncompliance; (2) the facility’s financial condition; (3) factors specified in 42 C.F.R. § 488.404; and (4) the facility’s degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort, or safety.  The absence of culpability is not a mitigating factor.  The factors in 42 C.F.R. § 488.404 include:  (1) the scope and severity of the deficiency; (2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and (3) the facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies.

Page 20

I consider whether the evidence supports a finding that the amount of the CMP is at a level reasonably related to an effort to produce corrective action by a provider with the kind of deficiencies found, and in light of the section 488.438(f) factors.  I am neither bound to defer to CMS’s factual assertions nor free to make a wholly independent choice of remedies without regard for CMS’s discretion.  Barn Hill Care Ctr., DAB No. 1848 at 21 (2002); Cmty. Nursing Home, DAB No. 1807 at 22 et seq. (2002); Emerald Oaks, DAB No. 1800 at 9 (2001); CarePlex of Silver Spring, DAB No. 1683 at 8 (1999).

Here, CMS imposes a penalty of $7,000 per day for each day of immediate jeopardy, which is in the middle of the immediate jeopardy range ($3,050 to $10,000).  42 C.F.R. §§ 488.408(d)(1)(iii); 488.438(a)(1)(i).  For the period of substantial noncompliance that was not immediate jeopardy, CMS imposes a penalty $200 per day, which is at the very low end of the penalty range ($50 to $3,000).  42 C.F.R. §§ 488.408(d)(1)(iii); 488.438(a)(1)(ii).  Considering the relevant factors, these penalties are reasonable.

The facility does not have a long history of participation in the Medicare program.  Its first annual survey took place in March 2014.  At that time, it was not in substantial compliance with multiple health and life safety code requirements.  Notably, then, as here, the facility was not in substantial compliance with 42 C.F.R. § 483.20(k)(3)(i), which required it to provide services that meet professional standards of quality.  The deficiency caused no actual harm but posed the potential for more than minimal harm, and it was widespread (scope and severity level F).  CMS Ex. 29 at 2.

Nor was the facility in substantial compliance at its next annual survey, conducted in January 2015.  Among its one life safety code and five health deficiencies, was a quality-of-care deficiency (Tag F309 – 42 C.F.R. § 483.25), cited at scope and severity level E.  The facility was also out of substantial compliance with a separate sub-section of the regulation governing administration, laboratory services (Tag F502 – 42 C.F.R. § 483.75(j)).  CMS Ex. 29 at 1.

With respect to financial condition, the facility has the burden of proving, by a preponderance of the evidence, that paying the CMP would render it insolvent or would compromise the health and safety of its residents.  Van Duyn Home & Hosp., DAB No. 2368 (2011); Gilman Care Ctr., DAB No. 2357 (2010).  To meet the standard for lowering a CMP based on financial condition, claims must be supported by compelling financial documentation.  In Guardian Care Nursing & Rehab. Ctr., DAB No. 2260 (2009), for example, the facility could not even afford to represent itself on appeal.  Its Medicaid census was 90%; its annual shortfall was $250,000; and it relied on charitable contributions for its continuing viability.  The Board nevertheless criticized the absence of financial documentation and concluded that the facility had not established that additional resources would not be available.  But see Columbus Nursing & Rehab. Ctr., DAB No. 2505 (2013) (finding that the absence of documentation regarding the facility’s

Page 21

financial condition did not preclude ALJ from concluding, based on witness testimony, that financial condition justified reducing the CMP).

Here, Petitioner complains that it has lost a significant amount of money and that paying the penalties imposed will cause it financial hardship.  P. Ex. 7 at 1, 2 (Fegan Decl. ¶¶ 4, 6).  The facility is a subsidiary of a larger healthcare organization, which had to borrow to pay the penalty into an escrow account.  P. Ex. 7 at 2 (Fegan Decl. ¶ 7).  However, Petitioner has not shown, nor even alleged, that paying the penalty would cause it to go out of business.  The evidence therefore does not justify lowering the CMP based on its financial condition.

Applying the remaining factors, I consider all of the facility’s substantial noncompliance, which includes the deficiencies that Petitioner has not challenged.  This includes a quality-of-care deficiency (Tag F333 – 42 C.F.R. § 483.25(m)(2)), cited at scope and severity level D.  The facility did not ensure that all of its residents were free of any significant medication errors.  Specifically, a resident suffered from a fistula of the intestine, rheumatoid arthritis, depression, chronic pain, fibromyalgia, anxiety, malnutrition, lupus, and drug seeking behavior.  On more than one occasion, she did not receive multiple ordered medications.  Of particular concern, she twice did not receive the opioid, Methadone and the antidepressant, Mirtazapine.  The DON blamed agency nurses, but could not identify the responsible nurse.  CMS Ex. 4 at 25.

The facility was out of substantial compliance on two additional administration tags, Tag F493 – 42 C.F.R. § 483.75(d)(1)-(2); and Tag F500 – 42 C.F.R. § 483.75(h).  The facility was not in substantial compliance with section 483.75(d)(1)-(2) at scope and severity level F (widespread) because, from August 3 through September 2, 2015, it did not have a properly-licensed administrator overseeing the facility’s day-to-day management.  CMS Ex. 4 at 32.9   It was not in substantial compliance with section 483.75(h) at scope and severity level E (pattern of noncompliance) because it did not have in place necessary agreements for outside services:  dialysis, dental, and transfer agreements.  CMS Ex. 4 at 34.

These were serious problems, which, by themselves show a level of disregard for resident care, comfort, or safety.

Add to these the far more serious problem of abuse.  At virtually the highest level, facility staff did not seem to recognize abusive behavior.  The facility’s administration and multiple staff members disregarded facility policies when they failed to report R1’s abuse.  The CEO misled the state agency as to the seriousness of the abuse allegations.

Page 22

Staff made no efforts to assess or protect R1 in the aftermath of the abuse.  The actions (and inaction) of facility staff show a high degree of neglect, indifference, and disregard for resident care, comfort, or safety, particularly R1’s care, comfort, and safety, for which the facility is culpable.

For these reasons, I find that the penalties imposed are reasonable.

Conclusion

For the reasons discussed above, I find that:  from July 27, 2015 through January 19, 2016, the facility was not in substantial compliance with 42 C.F.R. §§ 483.13(b); 483.13(c); 483.20(k)(3)(i); 483.75; and 483.75(o)(1); from July 27 through December 15, 2015, those deficiencies posed immediate jeopardy to resident health and safety; and the penalties imposed are reasonable.

1. The regulations governing long-term-care facilities have been revised. 81 Fed. Reg. 68,688 (Oct. 4, 2016); 82 Fed. Reg. 32,256 (July 13, 2017). I apply the regulations in effect at the time of the survey.
• back to note 1
2. I highlight, in bold, the deficiencies that Petitioner has appealed.
• back to note 2
3. Following an independent dispute resolution proceeding, the state agency reduced the scope and severity of this deficiency to level C, widespread noncompliance that causes no actual harm with the potential for no more than minimal harm. See 42 C.F.R. § 488.331(a). CMS has apparently accepted that finding. A facility should correct its C-level deficiencies, but, because the deficiency does not present the potential for more than minimal harm, a C-level deficiency does not put the facility out of substantial compliance with program requirements.
• back to note 3
4. My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision.
• back to note 4
5. I recognize that these employees were in a difficult position. Facility policy dictated that they report to the person who committed the abuse, and that person was assisted by individuals who directly supervised most of the nursing staff. This does not excuse the employees’ silence in the face of resident abuse, although it underscores some serious problems with the facility’s administration.
• back to note 5
6. I reject R1’s unsubstantiated accusation that the administrator performed a rectal exam.
• back to note 6
7. As discussed below, Petitioner makes much of the state agency’s failure to send investigators immediately to the facility in response to this report. But, based on this report, the state might reasonably have concluded that the accusations were fabricated.
• back to note 7
8. Aside from helping her prepare a grievance, the record does not include much evidence of facility staff assisting R1 in the wake of the abuse. According to the grievance itself, the social worker referred the grievance to the administrator. CMS Ex. 10 at 3. To refer an allegation of abuse to the alleged abuser shows a disturbing disregard for the resident’s safety.
• back to note 8
9. Although Petitioner faults CMS for mentioning the absence of a qualified administrator, it did not appeal this finding, which therefore remains a final agency determination.
• back to note 9