Covenant Place of Lenexa, Inc. D/B/A Covenant Place of Lenexa, DAB CR5197 (2018)

DECISION

Covenant Place of Lenexa, Inc. (Petitioner or “the facility”), is a skilled nursing facility (SNF) in Lenexa, Kansas, that participates in the Medicare program. Following a licensure and certification survey that was completed on January 27, 2016, the Centers for Medicare & Medicaid Services (CMS) determined that Petitioner was not in substantial compliance with multiple Medicare participation requirements and that three cited deficiencies posed immediate jeopardy to resident health and safety. CMS imposed a per-day civil monetary penalty (CMP) of $4,300 for nine days of immediate jeopardy noncompliance, and a per-day CMP of $250 for an additional 42 days of noncompliance, for a total CMP of $49,200. For the reasons discussed below, I find that Petitioner was not in substantial compliance with Medicare program requirements and CMS’s immediate jeopardy determination was not clearly erroneous. However, I find that immediate jeopardy existed for five days, rather than nine days, and therefore a combined CMP of $32,000 is reasonable.

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I. Background

The Social Security Act (Act) sets requirements for SNF participation in the Medicare program. The Act authorizes the Secretary of the United States Department of Health & Human Services (Secretary) to promulgate regulations implementing those statutory provisions. Act § 1819 (42 U.S.C. § 1395i-3). The Secretary’s regulations are found at 42 C.F.R. part 483.1

A facility must maintain substantial compliance with program requirements in order to participate in the program. To be in substantial compliance, a facility’s deficiencies may pose no greater risk to resident health and safety than “the potential for causing minimal harm.” 42 C.F.R. § 488.301.

The Secretary contracts with state agencies to conduct periodic surveys to determine whether SNFs are in substantial compliance with participation requirements. 42 U.S.C. § 1395aa(a); 42 C.F.R. §§ 488.10, 488.20. The Act and its implementing regulations require that facilities be surveyed on average every twelve months, and more often if necessary, to ensure that identified deficiencies are corrected. 42 U.S.C. § 1395i‑3(g)(2)(A); 42 C.F.R. §§ 488.20(a), 488.308. Among other enforcement remedies, CMS may impose a per-day CMP for the number of days an SNF is not in substantial compliance or a per-instance CMP for each instance of the SNF’s noncompliance. 42 C.F.R. §§ 488.430(a), 488.438(a)(2). At the time of the survey, the baseline per-day CMP range for deficiencies constituting immediate jeopardy was from $3,050 to $10,000.2  42 C.F.R. § 488.438(a)(2).

The Kansas Department for Aging and Disability Services (state agency) completed a licensure and certification survey on January 27, 2016, at which time it determined that the facility was not in substantial compliance with Medicare participation requirements and the conditions constituted immediate jeopardy.3  CMS Exs. 1 at 1; 2 at 1; 3; Request

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for Hearing Ex. A. CMS determined that, from January 5 through 13, 2016, the facility was not in substantial compliance with the following participation requirements: 42 C.F.R. § 483.13(c)(1)(ii)-(iii), (c)(2)-(4) (cited as Tag F225 – facility requirement to investigate and report allegations of abuse) and 42 C.F.R. § 483.13(c) (cited as Tag F226 – facility requirement to develop and implement policies to prevent abuse/neglect), both cited at the “L” level of scope and severity,4  and 42 C.F.R. § 483.25(h) (Tag F323 – facility requirement to prevent accidents and provide adequate supervision), cited at the “J” level scope and severity. CMS Exs. 1, 3.

By letter dated February 23, 2016, CMS imposed a CMP in the amount of $4,300 per day during the period of immediate jeopardy from January 5 through 13, 2016. CMS Ex. 1 at 1. A CMP of $250 per day remained in effect thereafter until Petitioner returned to substantial compliance on February 24, 2016.5  CMS Exs. 1 at 1; 2 at 2.

On April 1, 2016, Petitioner requested a hearing before an administrative law judge (ALJ). Petitioner contested 31 separate deficiencies cited by CMS.6  Request for

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Hearing. Petitioner also challenged the findings of immediate jeopardy, along with the reasonableness of the CMPs imposed. Request for Hearing at 28.

In accordance with sections 4 through 6 of my Acknowledgment and Pre-Hearing Order (Pre-Hearing Order), the parties submitted evidence, in the form of exhibits, with their respective pre-hearing exchanges. CMS filed a pre-hearing brief (CMS Br.) and 12 proposed exhibits (CMS Exs. 1-12) with its pre-hearing exchange. CMS later filed a revised version of CMS Ex. 6 (CMS Rev. Ex. 6), and pursuant to an order,7  it filed four additional proposed exhibits (CMS Exs. 13-16). Petitioner submitted a pre-hearing brief (P. Br.) and 20 proposed exhibits (P. Exs. 1-20) with its pre-hearing exchange. I previously admitted all exhibits, with the exception of CMS Exs. 10, 12 and 16 (based on

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the failure of a witness, Sandra Lee, RN,8  to appear for cross-examination)9  and P. Exs. 12 and 14 (which were withdrawn by Petitioner). Tr. at 10, 23-31.

On October 10, 2016, Petitioner moved for sanctions against CMS (P. Mot. Sanctions) based, in large part, on CMS’s repeated failure to timely provide full and accurate

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surveyor notes, as evidenced by the filings of CMS Ex. 6, CMS Rev. Ex. 6, and CMS Ex. 13. CMS filed a response (CMS Resp.) and Petitioner filed a reply (P. Mot. Sanctions Reply).

I convened a hearing via videoteleconference on February 7, 2017, for the purpose of allowing the parties an opportunity to cross-examine the witnesses for whom the parties had submitted written direct testimony.10  State surveyor Pam Call, RN, and E.B.,11  a registered nurse who is a former employee of Petitioner, appeared for cross examination. Tr. at 41, 113. Following the hearing, the parties submitted briefs (CMS Post-Hrg Br. and P. Post-Hrg Br.) and reply briefs (CMS Reply and P. Reply). The record is closed and the case is ready for a decision on the merits.

II. Preliminary matters

1. 1. I do not impose sanctions against CMS.

Petitioner has requested that, based on the conduct of counsel for CMS, I sanction CMS by prohibiting it from introducing evidence or supporting its claims, and that I issue default judgment against CMS. P. Mot. Sanctions at 7; P. Mot. Sanctions Reply at 3. I deny Petitioner’s request that sanctions be imposed.

Surveyor notes

On July 7, 2016, CMS characterized CMS Ex. 6 as surveyor notes; in submissions dated August 11 and September 15, 2016, Petitioner disputed that characterization.12

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Petitioner, in its motion for sanctions, discussed that CMS cited to CMS Ex. 6 more than 30 times in its pre-hearing brief.13

On August 31, 2016, I held a telephonic pre-hearing conference in which counsel for CMS was adamant in her mistaken belief that CMS Ex. 6 is surveyor notes. I expressed my own observation that CMS Ex. 6 did not appear to be a copy of the surveyors’ notes. See October 4, 2016 Order (stating that, during the pre-hearing conference, it was “unclear” why “CMS continued to maintain its flawed position that the originally submitted CMS Ex. 6 consisted of surveyor notes even after I raised concerns about the content of the exhibit and Petitioner, through counsel, went to great lengths to argue that the originally submitted CMS Ex. 6 was not actually a copy of surveyor notes”).

CMS again argued, in a September 15, 2016 filing, that CMS Ex. 6 is a copy of the surveyors’ notes, stating that “[t]he surveyor’s [sic] notes found at CMS’s Exhibit 6 are the unedited, unformatted surveyor’s [sic] notes, which were exported in final format (edited for font and grammar/spell checking) into the [Statement of Deficiencies].” CMS further argued that “[t]he surveyor’s [sic] notes are a true and accurate reflection of the notes taken by the surveyors at the time of the January 27, 2016, survey and should be admitted into evidence.”

On September 30, 2016, CMS abruptly changed course and provided notice of what was already patently obvious, through a bare one-sentence statement: “Since filing its memorandum, new facts have come to light which suggest Exhibit 6 is a draft of the [Statement of Deficiencies] rather than surveyor’s [sic] notes.” CMS contemporaneously filed CMS Rev. Ex. 6 as a “substitute” for the formerly submitted CMS Exhibit 6. In my October 4, 2016 order, I instructed CMS to refile CMS Rev. Ex. 6 as a new and separate exhibit, and that it should be marked as CMS Ex. 13. I also expressed my concern that CMS failed to acknowledge that CMS Ex. 6 was not a copy of the surveyors’ notes until after the issue had been raised on multiple occasions. I remarked that CMS’s submission of and response to concerns raised regarding CMS Ex. 6 was particularly troubling because CMS was in the best position to ascertain whether CMS Ex. 6 was actually a copy of the surveyors’ notes.

On October 6, 2016, in contravention of my explicit instructions on October 4, 2016, CMS did not re-file CMS Rev. Ex. 6 marked as CMS Ex. 13; rather, CMS filed, as CMS Ex. 13, an entirely different document.14  Petitioner thereafter contended, in its October

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10, 2016 motion for sanctions, that CMS Ex. 13 is not a true and accurate copy of the surveyors’ notes, as evidenced by the fact that CMS Ex. 13 does not contain all the notes that were contained in CMS Rev. Ex. 6. Petitioner also argued that CMS Ex. 13 does not contain “any notes whatsoever” regarding falls by Resident # 16 and Resident # 22, both of which were cited in the statement of deficiencies. Mot. for Sanctions at 5-6. Surveyor Pam Call confirmed that CMS Ex. 13 is not a complete copy of the surveyors’ notes. Tr. at 116, 133.

Petitioner contends that CMS’s failure to provide surveyor notes until September 30, 2016, and its continued misstatements to both Petitioner and me have effectively deprived it of a fair opportunity to conduct its investigation and prepare this case for hearing. Petitioner argues that CMS needlessly caused it to incur greater legal costs in order to respond to CMS’s inaccurate representations. P. Mot. Sanctions at 6. CMS, in response, admits that it has submitted three different versions of the surveyors’ notes. Counsel for CMS contends the state agency provided incorrect information. CMS Resp. at 1-2. However, regardless of what the state agency informed counsel, it should have been patently obvious, to anyone who read the documents with the benefit of common sense, that the document CMS purported to be surveyors’ notes was not surveyors’ notes. And CMS’s counsel’s refusal, in the face of pointed criticism of her submissions, was a disservice to her client, Petitioner, and this tribunal.

Petitioner reprised, in its post-hearing briefing, its call for sanctions, at which time it charged that CMS counsel mishandled this case. Petitioner contended that, on October 21, 2016, CMS filed a motion to amend CMS Exs. 9 and 10, which is the written direct testimony of both surveyors, because the testimony for each surveyor submitted by counsel contained firsthand observations that neither surveyor had made.15  And on October 28, 2016, counsel for CMS revealed during a pre-hearing conference that she had previously misrepresented that a surveyor, Pam Call, worked in Tonawanda, New

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York, when in fact she worked in Wichita, Kansas. And finally, Petitioner reported, in its opposition to CMS’s request for a subpoena to compel the testimony of Ms. Lee, that the draft motion requesting a subpoena that CMS provided to Petitioner indicated that CMS first notified Ms. Lee of the rescheduled hearing date on January 19, 2017. However, as Petitioner points out, CMS reported in the filed motion that it had first informed Ms. Lee of the rescheduled hearing date on November 10, 2016. Petitioner contends that counsel’s conduct has interfered with the orderly and fair conduct of the hearing and caused Petitioner to incur substantial unnecessary legal expenses. P. Post-Hrg Br. at 4-5. I consider whether sanctions are warranted for any of the reasons raised by Petitioner.16

Pursuant to sections 1128A(c)(4) and 1819(h)(2)(B)(ii) of the Act (42 U.S.C. §§ 1320a-7a(c)(4) and 1395i-3(h)(2)(B)(ii)), an ALJ may sanction a person or party “for failing to comply with an order or procedure, failing to defend an action, or other misconduct as would interfere with the speedy, orderly, or fair conduct of the hearing,” but such a sanction “shall reasonably relate to the severity and nature of the failure or misconduct.” I will consider only the two sanctions sought by Petitioner pursuant to section 1128A(c)(4) of the Act, 42 U.S.C. § 1320a-7a(c)(4)(B), (G), “prohibit[ing] CMS from introducing evidence or supporting its claims” and an entry of default judgment.

The Act does not require that an ALJ sanction a person or party, even if the conduct is sanctionable. Rather, a sanction is at the discretion of the ALJ. The conduct of CMS, and particularly its counsel, undoubtedly could have warranted sanctions. However, the specific sanctions sought by Petitioner are either inappropriate or would serve no effective purpose. With respect to Petitioner’s request that I “prohibit CMS from introducing evidence or support its claims,” the request is vague, in that it is not clear what specific evidence that Petitioner seeks to be excluded. To the extent that Petitioner is asking that I exclude the surveyors’ notes and testimony, I note that CMS did not provide a specific citation to the surveyors’ direct testimony in its briefs, and the surveyors’ notes are not probative of the questions before me.17  And with respect to the requested sanction of default judgment, Petitioner has not demonstrated that such a

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drastic remedy reasonably relates to the severity and nature of the failure or misconduct, which largely involves CMS counsel’s failure to follow orders, lack of attention to detail, and admitted inexperience.

Although Petitioner has alleged that it incurred additional attorney fees, it has not requested, nor quantified, an appropriate financial sanction. Although I will not, sua sponte, impose a financial sanction, I acknowledge one particular instance in which an ALJ sanctioned CMS based on the conduct of its counsel and awarded the petitioner attorney fees in the amount of $5,000. Guardian Care Nursing & Rehab. Ctr., DAB CR1858 (2008). Although the Departmental Appeals Board (DAB) agreed with the ALJ that CMS counsel committed misconduct that warranted a sanction, it determined that the $5,000 penalty assessed against CMS did not reasonably relate to the severity and nature of the misconduct. Guardian Care Nursing & Rehab. Ctr., DAB No. 2260 at 17-18, 20 (2009). The DAB also questioned whether the United States government had waived its sovereign immunity such that a sanction could be imposed against CMS as a party. Id. at 15, 18-19 (2009). Although the DAB noted that other sanctions, to include a negative inference or the exclusion of certain evidence, could have been appropriate, it recognized the ALJ’s concern that the sanction “not fall heavily in the direction of weakening protections for facility residents by undercutting CMS’s ability to prove its case about deficiencies which were ultimately substantiated.” Id. at 20. I share this concern. Although the DAB did not uphold the $5,000 sanction against CMS, the DAB’s discussion of counsel’s conduct resounds in the instant case:

CMS counsel’s conduct here reflects, at best, incomplete attempts to comply with the prehearing order, and that only after being given a chance to amend CMS’s initial submission. Neither counsel nor CMS should have been surprised with the ALJ’s displeasure with that conduct. We are particularly concerned about the errors in CMS’s initial prehearing brief and the sparse, poorly articulated discussion of CMS’s position. We are also concerned about counsel’s failure to provide clear explanations for CMS’s litigation choices when asked to do so by the ALJ, especially with respect to its reasons for declining to delete exhibits. . . . Based on our review of the record as a whole, we therefore recommend that the attorney who first represented CMS before the ALJ be appropriately supervised to ensure compliance with ALJ orders in future cases.

Guardian, DAB No. 2260 at 21-22.

My reluctance to impose sanctions is in no way a critique of Petitioner’s advocacy in this case, and I recognize that Petitioner’s persistence and diligence aided in the resolution of some of the aforementioned issues. Likewise, my reluctance to impose sanctions does not absolve CMS counsel for her performance in this matter. Although counsel argues

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that her errors were due to inexperience,18  I note that experience is not a substitute for common sense and an ability to follow basic instructions; regardless of her experience level, counsel should have been able to read and adhere to orders, and she should have been able to determine that her submission of surveyor notes in no way resembled “notes.” See October 4, 2016 Order (“I do not find that the lack of experience of a representative in handling Departmental Appeals Board cases to be an adequate justification for the failure to timely request cross-examination of witnesses. Section 10 of my Order unambiguously explains that CMS must ask to cross-examine any of Petitioner’s witnesses within 15 days of receipt of Petitioner’s exchange, and that ‘I will assume that CMS does not intend to cross-examine any of Petitioner’s proposed witnesses if CMS does not so indicate.’ See Civil Remedies Division Procedures, §§ 16(b), 19(b).”).

1. 2. CMS has not met its prima facie burden with respect to 28 deficiencies.

Petitioner appealed all 31 deficiencies cited by the surveyors. CMS, in its brief, presented arguments with respect to three immediate jeopardy deficiencies. CMS submitted an incomplete copy of the statement of deficiencies, in that it contained only 34 pages of the 193-page report. CMS Ex. 3. Petitioner moved for a directed verdict with respect to the 28 deficiencies that were neither briefed nor included in the copy of the statement of deficiencies submitted as CMS Ex. 3.

When a facility appeals the imposition of an enforcement remedy, CMS has the burden of submitting sufficient evidence to make a prima facie showing that the facility was not in substantial compliance with participation requirements. Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004); Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004), aff’d, Batavia Nursing & Convalescent Ctr. v. Thompson, 129 F. App’x 181 (6th Cir. 2005); Emerald Oaks, DAB No. 1800 (2001); Cross Creek Health Care Ctr., DAB No. 1665 (1998). Here, CMS has failed to present any evidence regarding the 28 Medicare program requirements cited at the non-immediate jeopardy level of

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noncompliance.19  CMS did not brief these deficiencies, address the deficiencies at the hearing, or file a response to Petitioner’s motion for a directed verdict. Therefore, CMS has failed to make a prima facie showing of noncompliance with 28 Medicare program requirements. As such, Petitioner was in substantial compliance with the following Medicare participation requirements: 42 C.F.R. §§ 483.10(b)(4); 483.10(b)(1), (5)-(10); 483.10(g)(1); 483.15(a); 483.15(b); 483.15(c)(6); 483.20(d), (k)(1); 483.20(d)(3), (k)(2); 483.25; 483.25(a)(2); 483.25(c); 483.25(d); 483.25(e)(2); 483.25(i); 483.25(l); 483.25(n); 483.30(a); 483.35(i); 483.60(c); 483.60(b), (d), (e); 483.65; 483.70(g); 483.75; 483.75(e)(5)-(7); 483.75(e)(8); 483.75(f); 483.75(g); and 483.75(o)(1). See Request for Hearing.

III. Issues

1. Whether Petitioner failed to comply substantially with Medicare participation requirements.
2. Whether CMS’s finding that Petitioner’s substantial noncompliance posed immediate jeopardy to resident health and safety was clearly erroneous.
3. Whether CMS’s determination regarding the duration of the period of immediate jeopardy and noncompliance was clearly erroneous.

1. Whether the CMP imposed by CMS is reasonable.

IV. Findings of Fact and Conclusions of Law20

1. A. Allegations of abuse by a facility employee

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E.B. raised an allegation of abuse.

E.B. began working as a registered nurse for Petitioner on December 16, 2015. P. Ex. 11 at 2. On December 28, 2015 and January 6 and 7, 2016,21  E.B. reported complaints to Petitioner’s Director of Nursing, Sanoma Farrow, and Administrator, Courtney O’Conner, about the care provided by staff members. CMS Ex. 8 at 3; P. Exs. 10 at 2-3; 11 at 2-3. E.B. made various allegations regarding a certified nurse assistant (CNA), C.F.,22  to include that she was lazy, used her mobile phone during working hours, and did not do nightly rounds and pass out water to residents. CMS Ex. 8 at 1; P. Exs. 10 at 2; 11 at 2-3. Ms. Farrow testified that E.B. “stated that [she] felt intimidated by [C.F.] because she was ‘black and rude to her,” and that E.B. “did not indicate that [C.F.] was rude to the residents.” P. Ex. 11 at 2. Ms. O’Conner testified that E.B. complained that C.F. “was on her mobile phone, was black, lazy, and rude to her.”23  P. Ex. 10 at 2. Ms. Farrow and Ms. O’Conner determined that E.B.’s complaints did not amount to abuse or neglect of residents by C.F., and that E.B. was simply having difficulty integrating into her new position. P. Exs. 10 at 2; 11 at 2-3. Ms. Farrow and Ms. O’Conner did not conduct an investigation of the allegations raised by E.B. on December 28, 2015 or January 6 and 7, 2016. P. Exs. 10, 11.

On the morning of January 9, 2016, Petitioner suspended E.B.’s employment pending further investigation based on a suspicion that E.B. may be under the influence of drugs. P. Exs. 10 at 3; 11 at 3-4. Ms. Farrow and Ms. O’Conner testified that after E.B. reported an incident in which urine had possibly splashed in her eye, she became “very upset” when she was informed that she would be drug-tested as part of laboratory testing and treatment. P. Exs. 10 at 2-3; 11 at 3; Tr. at 77-80 (testimony of E.B. that she was concerned about what she was being tested for and felt the drug test was retaliatory).24  In

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addition, at 3:30 am on January 9, 2016, E.B. reported to Ms. Farrow, via telephone, that a resident was missing from her room. P. Ex. 11 at 3. However, Ms. Farrow testified that E.B. had recorded that the “missing” resident had been discharged home approximately two hours earlier. P. Ex. 11 at 3; see Tr. at 85-87 (testimony of E.B. that she does not recall calling the Director of Nursing but she remembers some discussion about an admission).

At approximately 5:00 pm on January 9, 2016, the Administrator telephonically notified E.B. of her suspension, which Ms. O’Conner testified was based on concerns about E.B.’s work performance and behaviors that the she felt indicated E.B. may be under the influence of drugs. P. Ex. 10 at 3-4. Ms. O’Conner testified that E.B. became “volatile” and “belligerent,” and that E.B. alleged that her suspension was retaliatory harassment. P. Ex. 10 at 3-4. Late in the approximately 40-minute conversation, E.B. alleged that C.F. was abusing residents and that Ms. O’Conner “couldn’t keep her from reporting abuse.” P. Ex. 10 at 4. Ms. O’Conner also testified that E.B. stated, during the January 9, 2016 telephone call, that she had previously reported abuse by C.F. on January 6 and 7, 2016, to which Ms. O’Conner disagreed. P. Ex. 10 at 4; see Tr. at 103 (testimony of E.B. that she made allegations regarding C.F. prior to January 9, 2016). Ms. O’Conner testified that E.B. did not provide more specific details and “continued to yell the same thing.” P. Ex. 10 at 4. Ms. O’Conner testified that after she determined that E.B. “was too upset to have a rationale [sic] conversation,” she “informed [E.B.] that [they] would discuss everything on January 11, and . . . hung up the phone.” P. Ex. 10 at 4. Thereafter, E.B. sent 22 text messages to Ms. O’Conner that same evening. P. Ex. 3 (transcription of text messages); Tr. at 100-01 (testimony of E.B.). As relevant here, E.B. requested the administrator “address the patient concerns regarding [C.F.] and so forth immediately. That cannot wait. . . . She is abusing the residents.” P. Ex. 3 at 2, 9. Ms. O’Conner initially sent, via text message, the following response: “[E.B.]-- you are required to report to Covenant Place of Lenexa on Monday at 9 am. Please cease and desist all communications via phone or text until this meeting takes place.” P. Ex. 3 at 1, 4. After E.B. continued to send repeated text messages, Ms. O’Conner sent the following text message: “Cease and Desist means NO MORE CONTACT until 9 am on Monday 1/11/16. No text, email, phone conversation, or in person conversation until 1/11/16. All contact will be ignored until Monday, 1/11/16, and we will address everything at that time.” P. Ex. 3 at 2, 8. Ms. O’Conner testified that she “immediately” called Rick Blim, a corporate vice president, “and informed him of the conversation [she] had with [E.B.]” P. Ex. 10 at 4. The following day, on January 10, 2016, Mr. Blim reported the allegation of abuse to the state agency (P. Ex. 10 at 5), and Ms. O’Conner reported the allegation of abuse to the police. P. Ex. 4.

C.F. continued to work her previously scheduled twelve-hour overnight shifts on both January 9 and 10, 2016. CMS Ex. 3 at 5. Based on concerns expressed by a surveyor,

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the administrator suspended C.F. on January 11, 2016, and began an investigation of the alleged abuse. P. Ex. 10 at 5; see P. Ex. 5 (Petitioner’s investigation report and supporting documentation).

On January 12, 2016, E.B. authored an affidavit that she provided to the state agency in which she stated that on January 9, 2016, Resident # 16 informed her that C.F. came into her room and turned off her call light. CMS Ex. 8 at 1. E.B. reported that C.F. told Resident # 16 that “she has other things to do,” and left Resident # 16’s room for 45 minutes, even though Resident # 16, who was prescribed a diuretic medication, needed to use the toilet. CMS Ex. 8 at 1.

Petitioner investigated the allegation. See P. Ex. 5. Petitioner conducted interviews, and it reviewed video surveillance footage. P. Ex. 5 at 1-3, 20. Although Resident # 16 reported an incident in which she was left on the toilet for 45 minutes before staff answered the call light, she alleged this incident occurred one or two weeks prior to January 9, 2016. P. Ex. 5 at 20. Further, Resident # 16 did not express any complaints about her care by Petitioner’s staff. P. Ex. 5 at 20. Petitioner, in a report completed January 19, 2016, did not substantiate any allegations of abuse. P. Ex. 5 at 1. Likewise, the state agency did not substantiate any allegations of abuse by C.F. Tr. at 130 (testimony of Pam Call).

Petitioner’s abuse prevention and reporting policies

Petitioner and CMS submitted undated and dissimilar versions of Petitioner’s abuse reporting policy. Compare CMS Ex. 7 at 2-4 with P. Ex. 1. CMS contends that the abuse reporting and prevention policies provided by Petitioner are revised policies that were not in effect until January 14, 2016. CMS Post-Hrg Br. at 10. However, CMS has not provided any evidence to support this contention other than the statement of deficiencies. CMS Br. at 14; CMS Post-Hrg Br. at 10; CMS Reply at 5. Both Ms. Farrow and Ms. O’Conner testified that P. Ex. 1 is a copy of the policies that were in effect at the time of the incidents at issue. P. Exs. 10 at 2-3; 11 at 2. I accept, for purposes of this discussion, that the policy submitted as P. Ex. 1 was in effect on January 9, 2016.25

Petitioner’s abuse prevention policy states that “residents have the right to be free from abuse, neglect, misappropriation of resident property, corporal punishment and involuntary seclusion.” CMS Ex. 7 at 1. Section 1 of Petitioner’s “Abuse Investigations” policy indicates that “[s]hould an incident or suspected incident of resident abuse, mistreatment, neglect or injury of unknown source be reported, the Administrator, or his/her designee, will appoint a member of management to investigate the alleged

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incident.” P. Ex. 1 at 1. Section 3 provides the following minimal steps that the individual conducting the investigation must complete:

a. Review the completed documentation forms;

b. Review the resident’s medical record to determine events leading up to the incident;

c. Interview the person(s) reporting the incident;

d. Interview any witnesses to the incident;

e. Interview the resident (as medically appropriate);

f. Interview the resident’s Attending Physician as needed to determine the resident’s current level of cognitive function and medical condition;

g. Interview staff members (on all shifts) who have had contact with the resident during the period of the alleged incident;

h. Interview the resident’s roommate, family members, and visitors;

i. Interview other residents to whom the accused employee provides care or services; and

j. Review all events leading up to the alleged incident.

P. Ex. 1 at 1. Section 9 instructs that an employee accused of abuse may be reassigned to nonresident care duties or suspended from duty until the investigation is reviewed by the administrator. P. Ex. 1 at 2. However, another policy, “Protection of Residents During Abuse Investigations,” requires that Petitioner suspend or reassign an employee during the investigation of abuse. P. Ex. 1 at 3. In relevant part, the policy directs the following:

Employees accused of participating in the alleged abuse will be immediately reassigned to duties that do not involve resident contact or will be suspended until the findings of the investigation have been reviewed by the Administrator.

P. Ex. 1 at 3.

1. 1. The facility was not in substantial compliance with 42 C.F.R. § 483.13(c), (c)(1)(ii)-(iii), (c)(2)-(4) because its administration and staff did not follow the facility’s written policies and procedures for preventing abuse and did not promptly or thoroughly investigate an allegation that its staff member abused residents.

42 C.F.R. § 483.13(c) provides, in relevant part:

(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.

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***

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

(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.

(4) The results of all investigations must be reported to the administrator or his designated representative and to other officials in accordance with State law (including to the State survey and certification agency) within 5 working days of the incident, and if the alleged violation is verified appropriate corrective action must be taken.

Petitioner contends that it substantially complied with 42 C.F.R. § 483.13(c) because its response to the allegation of abuse from an unreliable reporter was appropriate under the circumstances. P. Br. at 15-19; P. Post-Hrg Br. at 16-20. Both 42 C.F.R. § 483.13(c) and Petitioner’s own policy requires it to immediately report and investigate thoroughly all alleged violations involving abuse. P. Ex. 1 at 1. In addition to reporting and investigating allegations of abuse, section 483.13(c)(3) requires that the facility must prevent further potential abuse while the investigation is in progress. Petitioner’s own policy requires that the alleged perpetrator of abuse be immediately reassigned to non-resident care duties or suspended until the investigation is reviewed by the administrator. P. Ex. 1 at 3.

Here, Petitioner concedes that it did not initiate an investigation or suspend C.F. until January 11, 2016 – at least two days after E.B. alleged that C.F. had committed resident abuse. P. Br. at 18-19; Post-Hrg Br. at 19-20; P. Ex. 10 at 4-5. Petitioner contends that, for numerous reasons, E.B. did not credibly allege abuse, to include because she may have been under the influence of drugs, that she raised the allegation of abuse at the time of her suspension, and that the alleged abuser, C.F., was well-liked and had an unblemished employment record.26  P. Post-Hrg Br. at 10-11; P. Ex. 10 at 4-5. Petitioner

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further argues that it took appropriate action by reporting the allegation of abuse to the state agency and the police within 24 hours. P. Br. at 8, citing P. Exs. 4 and 10.

While Petitioner may have had good reason to suspend E.B. and have skepticism about her allegation that C.F. abused residents, the issue is not whether C.F. actually committed abuse. Rather, the question is whether Petitioner complied with its own abuse policies, and in turn, Medicare participation requirements. Petitioner’s own policy explicitly requires that “[a]ll reports of resident abuse . . . be promptly and thoroughly investigated by facility management,” and employees accused of abuse be immediately suspended or reassigned to non-resident care duties. P. Ex. 1 at 1, 3 (emphasis added). Although 42 C.F.R. § 483.13(c)(3) gives a facility the discretion to determine how an investigation will be conducted and how residents will be protected from further potential abuse, it requires that a facility conduct a thorough investigation of all allegations and protect residents from further abuse during the investigation. 42 C.F.R. § 483.13(c)(3). Neither the regulation nor Petitioner’s policy distinguishes between credible and non-credible reports of resident abuse. Further, even if credibility was somehow a threshold factor, it is entirely unclear how a facility could assess the credibility of an allegation without conducting an investigation. Petitioner determined that although the allegation warranted reporting to its corporate vice president, the state agency, and the police, it was permissible to allow the employee who was the subject of these reports to the state agency and the police to continue working in direct resident care, in contravention of both its own policy and section 483.13(c)(3). Without conducting even the barest investigation, to include interviewing C.F., residents, or other staff members, Petitioner summarily concluded that E.B.’s allegation was not credible.27  By permitting C.F. to care for residents before it had initiated an investigation, Petitioner allowed an alleged abuser to care for residents before it could have determined that C.F. had not abused its residents and would not cause “further potential abuse” to residents. See 42 C.F.R. § 483.13(c)(3). Regardless of the source of the allegation, to include from a nurse who it believed was not credible, Petitioner had an obligation to ensure that its residents were protected from an alleged abuser. By permitting C.F. to continue to engage in direct care of residents during two separate 12-hours shifts following the uninvestigated allegations of potential abuse, the facility allowed an alleged abuser ample opportunity to continue abusing residents or to potentially interfere with a future investigation by giving her an opportunity to influence potential witnesses to the investigation.

Petitioner, relying on Woodland Hills Healthcare & Rehab. Ctr. of Jacksonville, LLC, DAB CR2780 (2013), and Spring Creek Health Care, DAB CR4053 (2015), argues that it took appropriate steps under the circumstances. I first note that I am not bound by the decisions or rulings of other ALJs. See, e.g., Vamet Consulting & Med. Servs., DAB No. 2778 at 8 (2017) (discussing that an ALJ decision is “not binding precedent on another

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ALJ or on the [DAB]”). Further, and more importantly, the Woodland Hills and Spring Creek decisions are not relevant. Both cases involved specific allegations of abuse by residents who identified the type of abuse and the alleged abusers. Woodland Hills, DAB CR2780 at 2-3; Spring Creek, DAB CR4053 at 2. Although the allegations were not credible on their face, both facilities undertook immediate and thorough investigations after learning of the alleged abuse. Woodland Hills, DAB CR2780 at 10, 13; Spring Creek, DAB CR4053 at 3. Here, Petitioner dismissed the allegations as non-credible without conducting any investigation while C.F. continued to care for residents. Although Petitioner timely reported the allegations of abuse, reporting it alone was not sufficient to satisfy the requirement that the facility conduct a thorough internal investigation of the alleged abuse. 42 C.F.R. § 483.13(c); see, e.g., Rockcastle Health & Rehab. Ctr., DAB No. 2891 at 5 (2018) (a facility “must have evidence that all alleged violations are thoroughly investigated and prevent further potential abuse while the investigation is in progress . . . .”).

Petitioner’s own policy required it to promptly investigate E.B.’s allegations of abuse and to, at the very least, immediately remove C.F. from resident care until it had completed an investigation.28  Petitioner clearly understood E.B.’s report to be an allegation of abuse, as evidenced by its report of these allegations to the state agency and the police. Because Petitioner allowed C.F. to continue caring for residents before it had investigated the allegations, Petitioner did not substantially comply with section 483.13(c)(3).

1. 2. Probative evidence supports that Resident # 36 died before he fell from his reclining chair.
2. 3. Petitioner substantially complied with Medicare participation requirements in its care of Resident # 36. Petitioner investigated Resident # 36’s January 5, 2016 death, complied with its policy prohibiting abuse, and provided Resident # 36 with adequate supervision and assistance devices.

Resident # 36, who was 72 years old, was a hospice patient whose diagnoses included multi-system atrophy (Shy-Drager syndrome) related to end-stage Parkinson’s disease. P. Exs. 7 at 1; 9 at 1, 4-5; 15 at 5, 11. Resident # 36’s care plan directed that he required extensive to total assistance with activities of daily living and was non-ambulatory and required a Hoyer lift for transfers. P. Ex. 15 at 1-2, 4-5. Resident # 36 fell on December 12, 2015, due to poor balance (P. Ex. 15 at 8), and Ms. Farrow, the Director of Nursing, testified that that the fall occurred when Resident # 36 reached for a low trash can. P. Ex. 11 at 5. Thereafter, Petitioner updated Resident # 36’s care plan with interventions that

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included keeping his bed at the lowest position and encouraging that he use his call light and wait for assistance when necessary. P. Ex. 15 at 7.

Resident # 36 used an electric lift chair at home, and at the request of his family, he began to use this same chair while he was a resident of the facility. P. Ex. 9 at 1. His treating physician, Dr. Farrell, explained that “[t]he use of the chair was the safest way for him to change positions.” P. Ex. 9 at 1. Resident # 36’s care plan indicated that he “likes to sit reclined back in his recliner. He is able to control his own recliner position.” P. Ex. 15 at 4.

On January 5, 2016, Resident # 36 was found lying face down on the floor, and his electric lift chair was in the highest upright position. P. Ex. 7 at 1, 8. Resident # 36 had no pulse, a small abrasion on his forehead, and a scant amount of bleeding from his nose. P. Ex. 7 at 1, 5, 8-10. Ms. Farrow signed an investigation report on January 7, 2016, and the report stated that “[t]he medical director determined that the cause of death was due to multisystem atrophy and that he died and then fell.” P. Ex. 7 at 1-2. Dr. Farrell, thereafter, executed an affidavit on January 19, 2016, in which he reported he was Resident # 36’s treating physician and that Resident # 36 died from cardiac arrhythmia or other problems associated with his autonomic instability.29  P. Ex. 9 at 1. Dr. Farrell explained that Resident # 36’s heart stopped beating before he fell on the floor, which he further explained was evidenced by a lack of a large amount of blood on his face and no blood on the floor. P. Ex. 9 at 1. Dr. Farrell remarked that Resident # 36’s “death and the circumstances surrounding his death allow [him], as [Resident # 36’s] physician, to feel comfortable in filling out his death certificate with his diagnosed chronic disease of Multi-System Atrophy as his cause of death.” P. Ex. 9 at 1. Dr. Farrell opined that “[t]here is no method of fall prevention or resident monitoring that could have been utilized by the nursing staff to prevent [Resident # 36] from collapsing to the floor upon his sudden death,” and that “[h]is position in or around his chair had no causal relationship between his sudden collapse following his sudden death.” P. Ex. 9 at 1.

CMS argues that Resident # 36 “fell to his death while operating his recliner lift chair.” CMS Br. at 15. In support of this assertion, CMS cites to CMS Ex. 6, which it later admitted was not a copy of the surveyors’ notes. Nothing in the cited pages of CMS Ex. 6, much less any other submission, supports CMS’s conclusion that Resident # 36’s cause of death was due to a fall from his electric lift chair. While CMS may be correct that “[t]he resident fell from the electric lift recliner chair and was found dead” (CMS Ex. 3 at 21), CMS does not address the treating physician’s opinion, which was first recorded on January 7, 2016, that Resident # 36 fell from his lift chair after his death. P. Ex. 7 at 1-2.

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The quality of care regulation set forth in 42 C.F.R. § 483.25 generally requires that a facility ensure each resident receives the necessary care and services to attain or maintain the resident’s highest practicable physical, mental, and psychosocial well-being in accordance with the resident’s comprehensive assessment and care plan. The regulation imposes specific obligations upon a facility related to accident hazards and accidents. It states in relevant part:

(h) Accidents. The facility must ensure that –

(1) The resident environment remains as free of accident hazards as is possible; and

(2) Each resident receives adequate supervision and assistance devices to prevent accidents.

42 C.F.R. § 483.25(h).

The DAB has explained that the stated goal of 42 C.F.R. § 483.25(h) is “to prevent ‘accidents’ that might harm a SNF resident.” Crawford Healthcare & Rehab., DAB No. 2738 at 5 (2016). A facility must “take all reasonable steps to ensure that a resident receives supervision and assistance devices that meet his or her assessed needs and mitigate foreseeable risks of harm from accidents.” Briarwood Nursing Ctr., DAB No. 2115 at 5 (2007); Guardian Health Care Ctr., DAB No. 1943 at 18 (2004). The facility must anticipate what accidents might befall a resident and take steps to prevent them. A facility is permitted the flexibility to choose the methods it uses to prevent accidents, but the chosen methods must constitute an “adequate” level of supervision under all the circumstances. See Windsor Health Care Ctr., DAB No. 1902 at 5 (2003). A facility must address foreseeable risks of harm from accidents “by identifying and removing hazards, where possible, or, where the hazard is unavoidable because of other resident needs, managing the hazard by reducing the risk of accident to the extent possible.” Maine Veterans’ Home - Scarborough, DAB No. 1975 at 10 (2005) (explaining the inherent standard of care in section 483.25(h)(1)). The provisions of section 483.25(h) “come into play when there are conditions in a facility that pose a known or foreseeable risk of accidental harm.” Meridian Nursing Ctr., DAB No. 2265 at 9 (2009), aff’d, Fal-Meridian, Inc. v. U.S. Dep’t of Health & Human Servs., 604 F.3d 445 (7th Cir. 2010).

With respect to Resident # 36’s death, the statement of deficiencies cited Petitioner for substantial noncompliance with 42 C.F.R. §§ 483.13(c)(1)(ii)-(iii), (c)(2)-(4) (Tag F225), 483.13(c) (Tag F226); and 483.25(h) (Tag F323). CMS Ex. 3. CMS alleges that Petitioner failed to comply with section 483.25(h) because “[t]he evidence establishes Resident 36 fell to his death while operating his recliner lift chair.” CMS Br. at 15, citing CMS Ex. 6 at 5 (document CMS described as “surveyor notes” that it later sought to

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withdraw). Citing to page one of a February 2016 letter that contains no discussion of specific facts of this case, CMS alleged that Petitioner “failed to thoroughly investigate the root cause of Resident 36’s fall, which led to his death.” CMS Br. at 1-2, citing CMS Ex. 1 at 1. CMS further alleged, again relying solely on CMS Ex. 6, that “[b]oth the chair and the malfunctioning call light contributed to Resident 36’s death on January 5, 2016.”30  CMS Br. at 16. Likewise, and again supported by only the “surveyor notes” that it later sought to withdraw, CMS alleged that “[o]n January 5, 2016, Resident 36 experienced an unexplained significant change in position that resulted in death.” CMS Br. at 7, citing CMS Ex. 6 at 3 (withdrawn “surveyor notes”); see CMS Post-Hrg Br. at 12 (stating that the resident died after the fall). CMS did not cite to any sworn witness testimony in support of its serious allegation that Petitioner caused Resident # 36’s death. CMS Br.

Other than relying on the “surveyor notes” – that it later sought to withdraw – CMS does not provide any evidence to support its determination that Resident # 36’s death was caused by a fall, as opposed to a medical condition, nor does it support its conclusion that Resident # 36 died after he fell out of the reclining chair. In fact, even though CMS submitted written direct testimony of the surveyors (which it also later sought to withdraw and substitute), it did not cite to any of the sworn testimony with respect to this allegation. No version of the surveyor notes submitted by CMS, nor the statement of deficiencies, indicates the basis for CMS’s determination of the cause of Resident # 36’s death. CMS Exs. 3; 6; 13; see also CMS Rev. Ex. 6.

Petitioner completed an investigation of Resident # 36’s death on January 7, 2016. P. Ex. 7. The investigation included statements from the staff members present during the incident and concluded that Resident # 36 died before he fell out of the reclining chair. P. Ex. 7. Significantly, Resident # 36’s treating physician opined that Resident # 36 died from lethal autonomic instability. P. Ex. 9 at 1. Dr. Farrell concluded that Resident # 36 died prior to falling out of the chair and noted this determination was based, in part, on the minimal blood on the resident’s face and floor. P. Ex. 9 at 1.

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CMS does not explain how the investigation conducted by the facility failed to comply with the investigation requirements of 42 C.F.R. § 483.13(c)(1)(ii)-(iii), (c)(2)-(4).31  CMS contends that the investigation lacked a root cause analysis of Resident # 36’s January 5, 2016 fall; however, the facility determined, and the evidence supports, that Resident # 36 died of natural causes and fell after his death. Therefore, I find that, with respect to Resident # 36, Petitioner substantially complied with section 483.13(c).

It is also unclear how, with respect to Resident # 36, Petitioner failed to develop and implement policies on call lights or how the use of recliner chairs violated 42 C.F.R. § 483.13(c). Section 483.13(c) requires facilities to develop and implement policies that prohibit mistreatment, abuse, and neglect of residents. As previously discussed, the facility had a policy prohibiting abuse, neglect, and mistreatment of residents. CMS Ex. 7 at 1. The regulation does not require the facility to develop abuse prevention policies for each instrument or piece of equipment found in the facility. Such a requirement would clearly be impracticable and unenforceable, and is not a basis for noncompliance with 42 C.F.R. § 483.13(c).

CMS next argues that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(h) because the facility did not assess Resident # 36’s ability to use the reclining chair or provide adequate supervision despite that fact that a fall from the chair was foreseeable. CMS Post-Hrg Br. at 12-13. Contrary to CMS’s assertion, Resident # 36’s care plan indicates that he “is able to control his own recliner position.” P. Ex. 15 at 4. Thus, it is clear that the facility had assessed his ability to use the recliner chair. Additionally, Resident # 36’s treating physician testified that the chair was the safest way for him to change positions and that he had used the same electric lift chair at home prior to his admission to the facility, evidencing that Resident # 36 was already knowledgeable about how to operate the chair prior to his admission to the facility.32  P. Ex. 9 at 1. CMS contends that the facility should have known that Resident # 36 would attempt to get out of the reclining chair without assistance. CMS Post-Hrg Br. at 12. However, the facility had no reason to suspect that Resident # 36 might fall from his reclining chair, and there is no probative evidence that he fell from his reclining chair prior to his death. The only

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fall on record33  for Resident # 36 occurred because he lost balance when was reaching for an item that was difficult to reach, and this fall was not related to the electric lift chair or an attempt by Resident # 36 to get up without assistance. P. Exs. 11 at 5; 15 at 7. Additionally, the care plan indicates that Resident # 36 had been instructed to use his call light for assistance, which indicates that Petitioner took steps to prevent future falls. P. Ex. 15 at 7.

CMS further contends that the facility did not provide adequate supervision because Resident # 36’s call light was not working on January 5, 2016. CMS Post-Hrg Br. at 13. The statement of deficiencies states that staff members reported that Resident # 36’s call light malfunctioned from January 2 through 4, 2016, and was replaced twice. CMS Ex. 3 at 18-19. However, Petitioner has provided a log demonstrating that the call light was operational on January 5, 2016, and CMS has not disputed this evidence, much less addressed it in its briefing. P. Ex. 6 (Individual Account Report for Resident # 36’s room, showing several bed station call light activations on January 5, 2016). Moreover, as the statement of deficiencies reports, Petitioner’s staff conducted rounds at least every two hours to check on Resident # 36, due to a prior call light malfunction. CMS Ex. 3 at 18. Petitioner has provided evidence that a staff member was in Resident # 36’s room only one hour and 20 minutes before he was found dead. P. Ex. 8 at 1 (video surveillance footage timeline), 11 at 5 (testimony of Ms. Farrow). CMS has not provided any evidence to suggest that this was inadequate supervision under the circumstances. Therefore, I find that the preponderance of the evidence demonstrates that Petitioner provided adequate supervision and assistance devices to Resident # 36 in substantial compliance with 42 C.F.R. § 483.25(h).

1. 4. Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(h) because it did not take all reasonable steps to prevent foreseeable risks of falls and did not provide adequate supervision and assistance devices to prevent falls.34

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Resident # 22

Resident # 22 was diagnosed with Parkinson’s disease and dementia.35  CMS Ex. 3 at 26. In December 2015, he was assessed with a Brief Interview for Mental Status (BIMS) score of 4, which represents severe cognitive impairment. CMS Ex. 3 at 26-27; see Long-Term Care Facility Resident Assessment Instrument 3.0 User’s Manual, Ch. 3, § C0500 (Summary Score) (2015), https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/NursingHomeQualityInits/Downloads/MDS-30-RAI-Manual-V113.pdf (last visited October 9, 2018).

Resident # 22 required extensive assistance with bed mobility, transfers, locomotion off the unit, and activities of daily living, and he required limited assistance with personal hygiene and locomotion on the unit. CMS Ex. 3 at 27. On March 30 and December 1 and 15, 2015, Petitioner assessed that Resident # 22 had a high risk for falls. CMS Ex. 3 at 27. The most recent fall investigation was on January 1, 2016, and there were eight fall investigations in 2014 and five fall investigations in 2015. CMS Ex. 3 at 28-31. Several of the falls resulted from the Resident # 22’s attempts to self-transfer. CMS Ex. 3 at 28-31. A December 28, 2015 care plan directed that, when Resident # 22 was in bed, his bed should be kept in the lowest position.36  CMS Ex. 3 at 27-28.

The statement of deficiencies documents that, on January 13, 2016, a surveyor observed Resident # 22 lying in bed at 8:36 am, and the bed was not in the lowest possible position. CMS Ex. 3 at 31. A family member who had been in the room left the room at 10:39 am, and the bed was still not in the lowest possible position. CMS Ex. 3 at 31. At approximately 10:45 am two staff members entered the room and woke the resident. CMS Ex. 3 at 31. The bed remained in a raised position throughout this encounter, and

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the staff members did not lower the bed prior to their departure from the room. CMS Ex. 3 at 31. A third staff member entered the room at 11:10 am to deliver Resident # 22’s lunch tray. CMS Ex. 3 at 31. This staff member left the room two minutes later and did not lower the bed to its lowest position prior to leaving the room. CMS Ex. 3 at 31-32.

Petitioner concedes that Resident # 22’s bed was not in its lowest position from 8:36 am through 11:12 am, and that Resident # 22 remained in bed during that timeframe. P. Br. at 23 (“This was an isolated occurrence, and CMS presents no evidence showing that this isolated occurrence resulted in any serious injury or had a potential for serious injury.”); P. Post-Hrg Br. at 23 (“This was an isolated occurrence, and the circumstances indicated that it was not likely to result in any injury.”).

The issue before me is not whether harm actually occurred on January 13, 2016. I need only determine whether Petitioner substantially complied with 42 C.F.R. § 483.25(h), which means that I must determine whether Petitioner ensured that the resident environment was as free of accident hazards as possible and that each resident received adequate supervision and assistance devices to prevent accidents. 42 C.F.R. 483.25(h). Here, it was clearly foreseeable that Resident # 22 could fall, as evidenced by his 14 previous falls and the clear direction in his care plan that his bed should be kept in the lowest position whenever he was in bed. However, the staff failed to lower Resident # 22’s bed despite the fact that staff had been in his room during the four-hour timeframe on January 13, 2016. The failure of Petitioner to take notice that the bed was in a raised position, over a period of four hours, supports that Petitioner failed to adequately supervise Resident # 22. Further, allowing his bed to be maintained in an elevated position increased the risk that Resident # 22 could be seriously injured from a fall, given his significant number of prior falls. In fact, the reason why a bed is kept in the lowest possible position is not to prevent falls, but rather, to reduce the likelihood of injury, or the severity of injury, if the resident falls from the bed. By not ensuring that Resident # 22’s bed was kept in the lowest possible position, Petitioner did not take all reasonable steps to prevent foreseeable accidents. Petitioner was therefore not in substantial compliance with 42 C.F.R. § 483.25(h).

1. 5. CMS’s determination of immediate jeopardy is not clearly erroneous.

CMS asserts that Petitioner’s deficiencies constituted immediate jeopardy to resident health and safety from January 5 through 13, 2016. Petitioner argues that any noncompliance does not constitute immediate jeopardy. P. Post-Hrg Br. at 23-24.

As I previously discussed, 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. The regulation does not require that a resident actually be harmed. Lakeport Skilled Nursing Ctr., DAB No. 2435 at 8 (2012). I must uphold CMS’s

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determination as to the level of a facility’s substantial noncompliance (which includes an immediate jeopardy finding) unless it is “clearly erroneous.” 42 C.F.R. § 498.60(c)(2). The DAB directs that the “clearly erroneous” standard imposes on a facility 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.” See, e.g., Barbourville Nursing Home, DAB No. 1962 at 11 (2005) (citing Florence Park Care Ctr., DAB No. 1931 at 27-28 (2004)).

Here, CMS’s finding of immediate jeopardy for each of the three deficiencies cited is not “clearly erroneous.” Petitioner learned of the allegation that C.F. was abusive to residents on January 9, 2016. However, Petitioner did not initiate an investigation or take action to remove C.F. from direct resident care duties until January 11, 2016 – two days after the allegations were raised. This clearly contradicted the facility’s own abuse policies which called for a prompt investigation and immediate removal of the suspected employee from resident care duties. By allowing an alleged abuser to work for two additional 12-hour shifts prior to the initiation of an investigation of the allegations, Petitioner subjected its residents to the risk of serious harm. Additionally, even though Petitioner was aware that Resident # 22 had a high risk of falls and his care plan specifically required the facility to keep his bed in the lowest position, Petitioner’s staff failed to keep the bed in its lowest position for a period of approximately four hours during which various staff members entered and left the room. Under both of these circumstances, residents were exposed to a likelihood of serious harm. Therefore, the deficiencies posed immediate jeopardy to resident health and safety.

1. 6. The duration of immediate jeopardy is from January 9 through 13, 2016.

1. 7. After the removal of immediate jeopardy, Petitioner remained out of substantial compliance through February 24, 2016.

CMS found that immediate jeopardy existed from January 5, 2016 through January 13, 2016, and that the facility remained out of substantial compliance through February 24, 2016. CMS Ex. 2 at 1. Substantial compliance means not only that the facility corrected the specific cited instances of substantial noncompliance, but also that it implemented a plan of correction designed to assure that no additional incidents would occur in the future. Once a facility is found to be out of substantial compliance, it remains so until it affirmatively demonstrates that it has achieved substantial compliance once again. Premier Living & Rehab. Ctr., DAB No. 2146 at 23 (2008); Lake City Extended Care Ctr., DAB No. 1658 at 12-15 (1998). The burden is on the facility to prove that it is compliant with program requirements, and not on CMS to prove that deficiencies continued to exist after they were discovered. Asbury Ctr. at Johnson City, DAB No. 1815 at 19-20 (2002). Noncompliance found during a survey is “presumed to continue

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until the facility demonstrates it has achieved substantial compliance.” Taos Living Ctr., DAB No. 2293 at 20 (2009).

Although I sustained the finding of all three deficiencies at the immediate jeopardy level, the deficiencies I sustained began on January 9, 2016, and not January 5, 2016.37  Petitioner has not argued that it returned to substantial compliance prior to February 24, 2016; rather, it has argued that it was not out of substantial compliance in the first place. P. Post-Hrg Br. at 16, 23-24. Therefore, the duration of immediate jeopardy is from January 9 through 13, 2016, and there is no basis to disturb the determination that the noncompliance continued through February 24, 2016.

1. 8. The penalty imposed is reasonable.

I examine whether the amount of a CMP is reasonable by applying the factors listed in 42 C.F.R. § 488.438(f): 1) the facility’s history of noncompliance; 2) the facility’s financial condition; 3) the factors specified in 42 C.F.R. § 488.404; and 4) the facility’s degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort, or safety. The absence of culpability is not a mitigating factor. The factors listed in 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.

The regulations specify that a CMP that is imposed against a facility on a per-day basis will fall into one of two ranges.38  42 C.F.R. §§ 488.408; 488.438. The upper range of a CMP, $3,050 per day to $10,000 per day, is reserved for deficiencies that pose immediate jeopardy to a facility’s residents and, in some circumstances, for repeated deficiencies. 42 C.F.R. § 488.438(a)(1)(i), (d)(2). The lower range of a CMP, $50 to $3,000 per day, is reserved for deficiencies that do not pose immediate jeopardy, but either cause actual harm to residents or cause no actual harm but have the potential for causing more than minimal harm. 42 C.F.R. § 488.438(a)(1)(ii). In assessing the reasonableness of a CMP,

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the per-day amount, rather than the total accrued CMP, is at issue. See Kenton Healthcare, LLC, DAB No. 2186 at 28 (2008). Pursuant to 42 C.F.R. § 488.408(g)(2), a facility cannot appeal CMS’s choice of a remedy, and an appeal of a CMP is limited to review based on the regulatory factors set forth at 42 C.F.R. §§ 488.438(f) and 488.404(a)-(c). See, e.g., Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 19-20 (2010), aff’d, Senior Rehab. & Nursing Ctr. v. Health & Human Servs., 405 F. App’x 820 (5th Cir. 2010).

I must sustain a CMP unless a particular regulatory factor does not support the CMP amount imposed by CMS. Coquina Ctr., DAB No. 1860 at 32 (2002). CMS imposed a $4,300 per day CMP, and I previously determined that the facility’s substantial noncompliance posed immediate jeopardy for 5 days from January 9 through 13, 2016. The per-day CMP of $4,300 is in the lower range of the $3,050 to $10,000 range for penalties imposed for deficiencies constituting immediate jeopardy. 42 C.F.R. § 488.438(a)(1)(i). As previously discussed, the deficiencies here were serious. Even, for purposes of this discussion, accepting Petitioner’s contentions that the allegations of abuse raised by E.B. were not entirely credible, Petitioner failed to investigate the allegations for two days and allowed an alleged abuser to continue caring for residents for an additional two 12-hour shifts, despite the fact that it determined that it was necessary to report the allegations to the state agency and the police. Allowing an employee to continue to provide direct care to residents is clearly in violation of the facility’s own abuse reporting and prevention policies; such a practice exposes residents to potential abuse and allows an alleged abuser the opportunity to interfere with any future investigation. And further, allowing C.F. to continue engaging in direct care of residents did not comply with the requirement, pursuant to section 483.13(c), that it protect residents from further harm during the investigation. Additionally, in contradiction to Resident # 22’s care plan, the facility failed to keep his bed in the lowest position, even though he had more than a dozen prior falls at the facility. Leaving the bed in an elevated position increases the likelihood of serious injury resulting from a fall. In light of the significant deficiencies involving these two residents, a per-day CMP in the lower range of the allowable range for penalties for immediate jeopardy deficiencies is entirely reasonable.39  In addition, the $250 per day CMP that continued until the facility came into substantial compliance is reasonable, and Petitioner has not argued to the contrary. 42 C.F.R. § 488.438(a)(1)(ii).

Petitioner argues that CMS has failed to provide evidence of the regulatory factors at 42 C.F.R. §§ 488.404 and 488.438(f), which CMS must consider in determining the amount of the CMP imposed. P. Br. at 24. Petitioner is mistaken as to CMS’s burden to offer evidence of the regulatory factors: The DAB has stated, “In effect, there is a presumption that CMS has considered the regulatory factors in setting the amount of the

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CMP and that those factors support the CMP amount imposed by CMS. Unless a facility contends that a particular regulatory factor does not support that CMP amount, the ALJ must sustain it.” Coquina Ctr., DAB No. 1860 at 21 (2002). Here, Petitioner did not allege that any of the regulatory factors made a CMP unreasonable until it filed its post-hearing brief, at which time it first argued that the CMPs are not reasonable because the facility had not been cited with any deficiencies above an “E” level of scope and severity in the past three years of survey data. P. Post-Hrg Br. at 25. However, Petitioner’s compliance history is only one factor for consideration. Given the severity of the deficiencies at issue, even taking into account Petitioner’s compliance history, this factor alone does not warrant reduction of the CMP that is already at the low end of the range of CMPs.

V. Conclusion

For the reasons discussed above, I find that Petitioner was not in substantial compliance with Medicare participation requirements. A CMP of $4,300 per day for 5 days of immediate jeopardy noncompliance and a CMP of $250 per day from January 14 through February 24, 2016, are reasonable enforcement remedies.

1. Federal long-term care facility regulations substantially changed beginning on November 28, 2016. 81 Fed. Reg. 68,688 (Oct. 4, 2016). Based on the date of the survey, which preceded the regulatory revisions, I refer to the regulations that were in effect at the time of the survey.
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2. CMS imposed the penalties prior to the issuance of rulemaking that significantly increased the applicable CMP range to “reflect the statutorily mandated amounts and ranges as adjusted for inflation.” See 81 Fed. Reg. 61,538, 61,573-61,574 (Sept. 6, 2016).
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3. Immediate jeopardy exists when “the provider’s noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.” See 42 C.F.R. § 488.301.
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4. Scope and severity levels are used by CMS and state survey agencies when selecting remedies. As relevant here, a scope and severity level of “J” indicates an isolated instance of immediate jeopardy to resident health or safety, whereas a scope and severity level of “L” indicates widespread immediate jeopardy to resident health or safety. State Operations Manual (SOM), Ch. 7 § 7400.5.1, available at https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/som107c07.pdf (last visited October 9, 2018); see 42 C.F.R. § 488.408.
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5. CMS also imposed a denial of payment for new admissions effective February 21, 2016, and prohibited approval for a nurse aide training and competency evaluation program (NATCEP) for a period of two years. CMS Ex. 1 at 2-3.
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6. In addition to the aforementioned deficiencies cited at the immediate jeopardy level, Petitioner identified the following 28 deficiencies that were cited at a severity level below the immediate jeopardy level: 42 C.F.R. §§ 483.10(b)(4) (cited as Tag F155); 483.10(b)(1), (5)-(10) (cited as Tag F156); 483.10(g)(1) (cited as Tag F167); 483.15(a) (cited as Tag F241); 483.15(b) (cited as Tag F242); 483.15(c)(6) (cited as Tag F244); 483.20(d), (k)(1) (cited as Tag F279); 483.20(d)(3), (k)(2) (cited as Tag F280); 483.25 (cited as Tag F309); 483.25(a)(2) (cited as Tag F311); 483.25(c) (cited as Tag F314); 483.25(d) (cited as Tag F315); 483.25(e)(2) (cited as Tag F318); 483.25(i) (cited as Tag F325); 483.25(l) (cited as Tag F329); 483.25(n) (cited as Tag F334); 483.30(a) (cited as Tag F353); 483.35(i) (cited as Tag F371); 483.60(c) (cited as Tag F428); 483.60(b), (d), (e) (cited as Tag F431); 483.65 (cited as Tag F441); 483.70(g) (cited as Tag F464); 483.75 (cited as Tag F490); 483.75(e)(5)-(7) (cited as Tag F496); 483.75(e)(8) (cited as Tag F497); 483.75(f) (cited as Tag F498); 483.75(g) (cited as Tag F499); and 483.75(o)(1) (cited as Tag F520).
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7. On October 21, 2016, CMS filed a motion for leave to amend the testimony of its two witnesses, in which CMS acknowledged that each witness signed a “misstatement at the time she reviewed and signed her written testimony statement.” Specifically, both witnesses addressed deficiencies involving a resident or residents that each witness did not investigate as members of the survey team. See CMS Exs. 9, 10, 15, 16. Further, each surveyor provided a “professional opinion” that Petitioner failed to comply with Medicare participation requirements that was based on the surveyor’s discussion of events that she did not investigate during the survey. See CMS Exs. 9, 10, 15, 16. Owing to these substantial flaws in the original testimony, I denied CMS’s request to amend the testimony, but rather, explained that I would admit both versions of the witnesses’ testimony. See Lena Lasher, aka Lena Contang, aka Lena Congtang, DAB No. 2800 at 4 (2017) (citing Pacific Regency Arvin, DAB No. 1823 at 7-8 (2002) (citing Kuntz v. Sea Eagle, 199 F.R.D. 665 (D. Haw. 2001))) (“Since it is offered under oath, [written direct testimony] is generally no less credible in most instances than oral testimony in the hearing room, as long as the witness is subject to cross-examination.”).
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8. In the October 31, 2016 Order, I denied CMS’s request that Ms. Lee testify by telephone because there were “significant conflicts” in the two versions of testimony she submitted. See 42 C.F.R. §§ 498.52(a) (“The ALJ fixes a time and place for the hearing and gives the parties written notice at least 10 days before the scheduled date.”); 498.60(b)(1) (“The ALJ inquires fully into all the matters at issue, and receives in evidence the testimony of witnesses and any documents that are relevant and material.”). Although I did not authorize Ms. Lee to testify by telephone, arrangements were made to allow Ms. Lee to testify via videoteleconference from Minneapolis, MN, at the originally scheduled hearing in November 2016, and CMS had not requested a subpoena to compel her appearance at that time. On February 1, 2017, well after the hearing was rescheduled for February 7, 2017, CMS reported that “Ms. Lee became elusive” after the hearing had been rescheduled. Specifically, CMS explained that “Ms. Lee seemed cooperative on November 10, 2016, but efforts to reach her after that date have been unsuccessful.” Yet, even though CMS, on January 19, 2017, had requested subpoenas for the two other witnesses, E.B. and Pam Call, CMS did not request a subpoena to compel Ms. Lee to testify until 7:05pm on February 1, 2017. (Docket entries 55 and 55a). After receiving and overruling Petitioner’s objections to the subpoena request, I issued a subpoena the following day, on February 2, 2017. CMS conceded, on the record at the hearing, that it did not make its first attempt to serve the subpoena until February 5, 2017, and it was ultimately unable to effectuate service of the subpoena. Transcript (Tr.) at 11-13.
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9. Pursuant Sections 8, 9, and 10 of my Pre-Hearing Order, a party must produce a witness who submits written direct testimony for cross-examination. Further, although CMS submitted Ms. Lee’s testimony as CMS Ex. 10, there is not a single reference to CMS Ex. 10 in its pre-hearing brief. Therefore, it is unclear why CMS submitted Ms. Lee’s testimony, and it is further unclear why CMS objects to the exclusion of such testimony that has not been relied upon in support of the arguments raised in its brief. And with respect to CMS Ex. 9, the testimony of the other surveyor who apparently conflated her testimony with the testimony of Ms. Lee, CMS’s pre-hearing brief contains a single vague reference to “CMS Ex. 9” in support of its allegation that Petitioner had policies and procedures in place to identify abuse and neglect but that these policies were inadequate; there is no reference to CMS Ex. 9 (or the amended version, CMS Ex. 15) in either of CMS’s post-hearing briefs. Other evidence of record documents Petitioner’s abuse and neglect policies (CMS Ex. 7; P. Ex. 1), and any determination regarding the adequacy of Petitioner’s policies is ultimately a legal conclusion for the ALJ, and not the surveyor.
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10. The hearing was originally scheduled to be held on November 14-15, 2016, and, as discussed in orders dated November 10 and December 29, 2016, was later rescheduled for February 6-7, 2017. CMS withdrew its request to cross-examine two witnesses on January 18, 2017. On January 19, 2017, I issued another order scheduling the hearing, at which time I allotted a single day, February 7, 2017, for the hearing. Petitioner shortly thereafter, on January 19, 2017, withdrew the written direct testimony of two witnesses because it was “unable to secure their appearance for cross-examination.”
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11. I ordinarily do not redact the names of staff members. However, owing to sensitivity of Petitioner’s allegations regarding E.B., to include that she worked as a nurse while under the influence of drugs, it is appropriate to redact E.B.’s name.
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12. Petitioner, in great detail, persuasively argued that CMS Ex. 6 is essentially identical to the January 27, 2016 statement of deficiencies and lacks any appearance of contemporaneous notetaking by the surveyors.
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13. Despite the fact that CMS’s brief contains 39 citations to a document that it later sought to withdraw, CMS did not request an opportunity to re-file its brief.
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14. Specifically, the document CMS filed as CMS Ex. 13 is 212 pages in length, whereas its previous submission of CMS Rev. Ex. 6, which should have been the same document, was 46 pages in length.
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15. It appears that counsel for CMS prepared the erroneous testimony for Ms. Call that she submitted as CMS Ex. 10, and Ms. Call signed the testimony without independently verifying its accuracy. Ms. Call, in her original testimony, explicitly addressed portions of the survey in which she did not participate, and her testimony lacked discussion of portions of the survey in which she did participate. Counsel for CMS, in an October 21, 2016 filing, explained that she met with Ms. Call on October 12, 2016, and Ms. Call indicated “Paragraph 9 of her written direct testimony should be edited to remove reference to Resident 36, and instead refer to Residents 16 and 22.” Ms. Call testified that “I honestly cannot recall if I wrote this whole thing myself or if I was provided and I reviewed it and signed it.” Tr. at 116. CMS, in its motion for leave to amend Ms. Call’s testimony, explained that Ms. Call “did not notice the misstatement at the time she reviewed and signed her written testimony statement.”
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16. I raised other concerns with the parties during the course of the hearing. See Tr. at 12-22. In addition, CMS counsel did not timely ask to cross-examine witnesses, even though the deadline for doing so was August 26, 2016. At a pre-hearing conference, held August 31, 2016, CMS counsel alluded to Petitioner producing “an unspecified witness or witnesses,” but she did not identify any specific witnesses (as required by my Pre-Hearing Order) until September 9, 2016.
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17. The deficiencies I upheld herein are largely supported by Petitioner’s own concessions, policies, and evidence. I did not uphold the deficiencies involving Resident # 36, in large part because CMS did not support its allegation that Petitioner was responsible for Resident # 36’s death.
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18. Rule 1.1 of the American Bar Association’s Model Rules of Professional Conduct requires that an attorney “provide competent representation to a client,” and that competent representation “requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Based on this rule, counsel was obligated to provide competent representation to CMS. If counsel felt that her admitted inexperience somehow prevented her from providing competent representation, she should have taken measures to ensure that her client received competent representation. It was not until after Petitioner filed a motion for sanctions based on counsel’s conduct that counsel enlisted the assistance of co-counsel from her office.
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19. CMS cited two deficiencies at the “C” level of scope and severity, 42 C.F.R. §§ 483.10(b)(1), (5)-(10) (Tag F156) and 483.10(g)(1) (Tag F167). Pursuant to 42 C.F.R. § 488.301 (definitions of “noncompliance” and “substantial compliance”), a deficiency cited at the “C” level is not a basis for noncompliance with Medicare participation requirements because it does not pose a risk to resident health or safety for more than minimal harm.
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20. My findings of fact and conclusions of law are set forth in italics and bold.
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21. Ms. Farrow erroneously refers to dates in January 2015 (rather than 2016) throughout her testimony. See, e.g., P. Ex. 11 at 2 (referring to January 6, 2015).
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22. Owing to the inflammatory allegations raised by E.B., I have redacted C.F.’s name to protect her identity.
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23. When asked whether she “refer[red] to [C.F.] as “black, lazy, and rude,” E.B. responded, “Absolutely not.” Tr. at 70. The statements by Ms. Farrow and Ms. O’Conner are corroborated by the testimony of a licensed practical nurse, Ms. Jackson, who testified that E.B. stated she was intimidated by C.F., made racist comments, and harassed the CNAs. P. Ex. 13 at 1-2. CMS did not opt to cross-examine any of these three witnesses.
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24. Additionally, Ms. O’Conner testified that the human resources director reported that E.B. informed her she was on prescription drugs and that E.B. “seemed incredibly slow and spacey and was slow to respond to questions.” P. Ex. 10 at 3.
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25. Petitioner could have avoided such confusion by listing an effective date on each of its policies.
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26. It is unclear how Petitioner reached the conclusion that there was no corroborating evidence of abuse without first conducting an investigation of the allegation.
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27. In fact C.F. was permitted to continue caring for residents even though Petitioner had not yet reported the allegations to either the state agency or the police.
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28. Petitioner ultimately completed an investigation by interviewing nine residents and collecting statements from staff members. P. Ex. 5.
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29. CMS had requested an opportunity to cross-examine Dr. Farrell, but withdrew its request on January 18, 2017. Dr. Farrell opined that Resident # 36 “had a 38% chance of sudden and expected death.” P. Ex. 9 at 1.
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30. I need not address the allegation regarding a malfunctioning call light because the basis for CMS’s allegation, that Resident # 36’s death is related to a malfunctioning call light, is simply unsupported by the evidence. CMS’s allegations are purely speculative and unsupported by citations to evidence. See CMS Br. at 16 (“The facility knew of Resident 36’s medical condition and that his call light was only working intermittently, which is evident from staff N’s directive to check on Resident 36 every 2 hours. The facility even knew Resident [sic] had a history of impulsiveness as director KK pointed out. So, it was foreseeable that Resident 36 might attempt to get out of the recliner unattended.”).
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31. Notably, in its post-hearing brief, CMS did not address 42 C.F.R. § 483.13(c) with respect to Resident # 36, and limited its arguments regarding Resident # 36 to purported noncompliance with section 483.25(h). CMS Post-Hrg Br. at 11-14.
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32. CMS argues that this conclusion should be given little weight because it is self-serving and introduced after the fact. CMS Post-Hrg Br. at 12. However, CMS waived its right to cross examine Dr. Farrell, and his opinion on the necessity of the electric lift chair is relevant to the determination of whether a fall from Resident # 36’s reclining chair was foreseeable.
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33. CMS contends that there were several falls that lack a root cause analysis. CMS Reply at 6. However, Resident # 36’s care plan only documents one fall on December 12, 2015, and Petitioner determined that Resident # 36 fell due to poor balance when he was reaching for a low trash can. See P. Exs. 15 at 7-8; 16 at 1, 3.
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34. I focus solely on an incident involving Resident # 22 because Petitioner has conceded the dispositive facts regarding Resident # 22. Although CMS presents a vague argument regarding a fall by Resident # 16, it cites only to CMS Ex. 6, the document that it later sought to withdraw, in support of its contentions in its pre-hearing brief. Further, even though the statement of deficiencies addresses a fall by Resident # 16, CMS has not provided any of the supporting evidence, such as nursing notes, fall investigation reports, fall risk assessments, care area assessments, and care plan, referenced in the statement of deficiencies. CMS Ex. 3 at 21-26. Petitioner has submitted evidence in rebuttal (see P. Exs. 11, 13, 18, 19, 20), and CMS has not challenged this evidence. Because I have sustained noncompliance with section 483.25(h) based on the incident involving Resident # 22, it unnecessary to address Resident # 16’s December 21, 2015 fall.
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35. Likewise, as I discussed regarding Resident # 16, CMS cited only to CMS Ex. 6, a document it later sought to withdraw, in its arguments regarding Resident # 22 in its pre-hearing brief. CMS did not reference the statement of deficiencies, nor did it not submit any other evidence regarding Resident # 22, such as the care plan, nursing notes, and fall investigation reports, that are referenced in the statement of deficiencies. CMS Ex. 3 at 26-34. Nonetheless, Petitioner has not disputed the account contained in the statement of deficiencies.
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36. Petitioner has not disputed the characterization of the care plan requirements contained in the statement of deficiencies.
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37. I did not uphold the deficiencies cited at the immediate jeopardy level with respect to the care provided to Resident # 36, whose death occurred on January 5, 2016. Therefore, the period of immediate jeopardy is effective on January 9, 2016, which is the date E.B. alleged that C.F. committed abuse.
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38. CMP amounts increased, beginning August 1, 2016, for deficiencies cited after November 2, 2015, to “reflect the statutorily mandated amounts and ranges as adjusted for inflation.” See 81 Fed. Reg. 61,538, 61,573-61,574 (Sept. 6, 2016). Although the deficiencies were cited after November 2, 2015, CMS imposed the CMP against Petitioner prior to the regulatory increase in the CMP amounts and ranges.
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39. Petitioner does not challenge the $250 per day CMP, effective January 14, 2016, for 42 days. I do not disturb that determination.
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