Crawford Healthcare and Rehabilitation Center, DAB CR5353 (2019)

DECISION

Following a survey by the Arkansas Department of Human Services, Office of Long Term Care (state agency), the Centers for Medicare & Medicaid Services (CMS) concluded that Crawford Healthcare and Rehabilitation Center (Petitioner or facility) was not in substantial compliance with Medicare participation requirements at 42 C.F.R. §§ 483.12(c)(1)-(4), 483.12(b)(1)-(3), 483.95(c)(1)-(3), 483.24, and 483.25(k)(1);1 that Petitioner’s noncompliance posed immediate jeopardy to resident health and safety; and that the imposition of civil monetary penalties (CMPs) was warranted.  Petitioner requested a hearing to challenge CMS’s findings and imposition of remedies.

For the reasons explained in this decision, I conclude that:  (1) Petitioner did not substantially comply with Medicare participation requirements found at 42 C.F.R.

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§§ 483.12(c)(1)-(4), 483.12(b)(1)-(3), and 483.95(c)(1)-(3); (2) CMS did not clearly err in determining that Petitioner’s noncompliance posed immediate jeopardy to resident health and safety; and (3) the proposed CMPs are reasonable in amount and duration.  I decline to rule on CMS’s allegation that Petitioner was not in substantial compliance with 42 C.F.R. §§ 483.24 and 483.25(k)(1) because that allegation is not material to the outcome of this case.  Heritage Plaza Nursing Ctr., DAB No. 2829 at 4 n.3 (2017); Beechwood Sanitarium, DAB No. 1824 at 19 (2002).

I. Background and Procedural History

Petitioner is a SNF located in Van Buren, Arkansas.  See, e.g., CMS Exhibit (Ex.) 2 at 1.  Surveyors from the state agency completed a survey of Petitioner’s facility on December 2, 2016.  Id.  The state agency notified Petitioner of its findings in a letter dated December 16, 2016.  See CMS Ex. 1 at 1.  Based on the survey findings, CMS determined that the facility was not in substantial compliance with the following participation requirements:  42 C.F.R. §§ 483.12(c)(1)-(4) (Tag F225); 483.12(b)(1)-(3) and 483.95(c)(1)-(3) (Tag F226); and 483.24 and 483.25(k)(1) (Tag F309).2   Id.  CMS determined that Petitioner’s noncompliance with these requirements posed immediate jeopardy to the health and safety of Petitioner’s residents.  Id.  CMS informed Petitioner of the proposed remedies for its noncompliance which included:  termination of Petitioner’s Medicare/Medicaid provider agreement effective March 2, 2017; per day CMPs in the amount(s) of $10,141.00 for November 30, 2016, and $303.00 per day beginning December 1, 2016, and continuing until further notice; and denial of payment for new admissions.  Id. at 1-2.  In a final notice letter dated January 25, 2017, CMS confirmed that Petitioner had returned to substantial compliance on December 28, 2016, and the remedies of termination and denial of payment for new admissions were rescinded.  Id. at 8.  The per day CMPs remained imposed in the amounts of $10,141.00 for November 30, 2016, and $303.00 per day from December 1-27, 2016, for a total CMP of $18,322.00.  Id.

Petitioner timely requested a hearing and the case was assigned to me.  I issued an acknowledgment and prehearing order (Prehearing Order) establishing a briefing schedule.  In accordance with the schedule, CMS and Petitioner filed prehearing exchanges, including prehearing briefs (CMS Br. and P. Br., respectively), exhibit and witness lists, and proposed exhibits.  Within its prehearing brief, CMS moved for summary judgment, which Petitioner opposed in its own brief.  CMS offered 35 proposed

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exhibits (CMS Exs. 1‑35), and Petitioner offered 6 proposed exhibits (P. Exs. 1‑6).  As neither party has objected to any of the proposed exhibits, I admit them into the record.

CMS’s exhibits include the written direct testimony of four state agency surveyors (CMS Exs. 32-35), who are also listed as potential witnesses for CMS.  Petitioner’s exhibits include the written direct testimony of its Director of Nursing (DON) (P. Ex. 5), who is also listed as a potential witness for Petitioner.  As I explained in my Prehearing Order, each party has the right to cross-examine any witness for whom the opposing party offers admissible written direct testimony, but a party must make an explicit request to do so.  Prehearing Order ¶ 9.  Neither Petitioner nor CMS explicitly requested to cross‑examine any witness proposed by the opposing party; therefore, a hearing is not necessary.  As an in‑person hearing is not necessary, I decide this matter based on the written record, without considering whether the standards for summary judgment are met.  Prehearing Order ¶¶ 11, 13.

II. Issues

The issues in this case are:

1. Whether Petitioner failed to comply substantially with Medicare participation requirements;
2. If Petitioner did not comply substantially with Medicare participation requirements, then whether CMS’s immediate jeopardy determination was clearly erroneous; and
3. Whether the proposed remedy is reasonable.

III. Jurisdiction

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

IV. Discussion

A. Statutory and Regulatory Framework

The Act sets requirements for SNF participation in the Medicare program.  The Act authorizes the Secretary of the U.S. 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.

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A facility must maintain substantial compliance with program requirements in order to participate in the program.  To be in substantial compliance, a facility’s deficiencies may pose no greater risk to resident health and safety than “the potential for causing minimal harm.”  42 C.F.R. § 488.301.  A deficiency is a violation of a participation requirement established by sections 1819(b), (c), and (d) of the Act (42 U.S.C. § 1395i-3(b), (c), and (d)), or the Secretary’s regulations at 42 C.F.R. pt. 483, subpt. B.  “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.”  42 C.F.R. § 488.301.

The Secretary contracts with state agencies to conduct periodic surveys to determine whether SNFs are in substantial compliance with the participation requirements.  Act § 1864(a) (42 U.S.C. § 1395aa(a)); 42 C.F.R. §§ 488.10, 488.20.  The Act and regulations require that facilities be surveyed on average every twelve months, and more often if necessary, to ensure that identified deficiencies are corrected.  Act § 1819(g)(2)(A) (42 U.S.C. § 1395i-3(g)(2)(A)); 42 C.F.R. §§ 488.20(a), 488.308.

Regarding the specific participation requirements at issue in the present case, the regulations define “abuse” and “neglect” as follows:

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

*          *          *

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

42 C.F.R. § 488.301.

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Subsection 483.12(c) of the regulations requires that, in response to allegations of abuse, neglect, exploitation, or mistreatment of residents, a facility must:

(1)  Ensure that all alleged violations involving abuse, neglect, exploitation or mistreatment, including injuries of unknown source and misappropriation of resident property, are reported immediately, but not later than 2 hours after the allegation is made, if the events that cause the allegation involve abuse or result in serious bodily injury, or not later than 24 hours if the events that cause the allegation do not involve abuse and do not result in serious bodily injury, to the administrator of the facility and to other officials (including to the State Survey Agency and adult protective services where state law provides for jurisdiction in long-term care facilities) in accordance with State law through established procedures;

(2)  Have evidence that all alleged violations are thoroughly investigated;

(3)  Prevent further potential abuse, neglect, exploitation, or mistreatment while the investigation is in progress; and

(4)  Report the results of all investigations to the administrator or his or her designated representative and to other officials in accordance with State law, including to the State Survey Agency, within 5 working days of the incident, and if the alleged violation is verified appropriate corrective action must be taken;

42 C.F.R. § 483.12(c)(1)‑(4).

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

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

(2)  Require staff to investigate any such allegations; and

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

42 C.F.R. § 483.12(b)(1)-(3).

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

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

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

(3)  Dementia management and resident abuse prevention.

42 C.F.R. § 483.95(c)(1)-(3).

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

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

Petitioner’s Abuse Prevention Policy:  During the relevant time period, Petitioner maintained a policy, entitled “Abuse Prevention” (CMS Ex. 31), that included the following provisions, among others:

POLICY

. . . The facility does and will continue to ensure that all alleged violations involving mistreatment[,] neglect[,] or abuse, including injuries of unknown sources 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)

*          *          *

Identification

*          *          *

3          Review the following to identify potential trends that may constitute abuse or to monitor for indicators

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leading to suspected abuse[,] neglect[,] and[/]or mistreatment

• Resident grievances

*          *          *

INVESTIGATION

1. The Shift Supervisor/Charge Nurse is identified as responsible for immediate initiation of the reporting process
2. The Administrator and Director of Nurses is [sic] identified as responsible for investigation and reporting

*          *          *

Employee Suspension from Duty

1. Any time an allegation is made involving abuse, neglect or mistreatment of a resident, which names a specific employee the employee is suspended until the completion of the investigation
2. The employee is not to remain on duty and is not to be assigned to any other area of the facility
3. The employee is relieved of his/her duties until the investigation is completed . . .

*          *          *

REPORTING

1. Notify the Shift Supervisor/Charge Nurse immediately if suspected abuse, neglect, mistreatment or misappropriation of property has occurred
2. Report the incident to the Director of Nurses and Administrator
3. Notify the local law enforcement immediately
4. Notify the appropriate State agency(s) as per the State requirement

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5. Notify the legal guardian or responsible family member of the allegation
6. Notify the Physician
7. Report to the State authorities a final report as per the State agencies protocol

CMS Ex. 31 at 1, 4-6.

Resident Grievances/Complaints

Petitioner maintained documentation of the following incidents alleged by residents or residents’ family members during the period June 2016 through November 2016:

On June 28, 2016, Resident 223 filed a grievance concerning her treatment by one of Petitioner’s physical therapists.  CMS Ex. 14 at 7, 21.  Resident 22’s diagnoses included coronary artery disease, hypertension, depression, anemia, muscle weakness, and fracture of left femur, among others.  CMS Ex. 21 at 87.  Her Minimum Data Sets (MDS) and Plan of Care record that Resident 22 required the extensive assistance of two persons for transfers; that she had limited range of motion in one lower extremity; and was at risk for pain related to her history of femur fracture.  Id. at 36, 37, 39-41, 64, 82.  Resident 22 reported that, on June 28, she asked the physical therapist for assistance in lifting her leg back into bed.  CMS Ex. 14 at 7.  According to Resident 22, the physical therapist responded “after that?” and “aggressively” transferred her leg into bed and walked out.  Id.  Petitioner’s Director of Rehabilitation (DOR) responded to the grievance.  Id.  The DOR documented that she spoke to the therapist about the resident’s concerns.  The therapist reportedly explained that he was trying to motivate the resident to do for herself.  Id.  Petitioner’s DOR documented that Resident 22 would be treated by a different therapist from then on.  Id.  There is no documentation that this incident was reported to Petitioner’s Administrator.  See, e.g., CMS Ex. 5 at 6.

On August 26, 2016, Resident 27 filed a grievance against a Certified Nurse Aide (CNA).4   CMS Ex. 14 at 12, 19.  On the date at issue Resident 27 was a 72-year-old female with diagnoses of hypertension, dysphagia, urinary tract infection, chronic obstructive pulmonary disease, and pneumonia, among others.  CMS Ex. 26 at 4, 50.  Her

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MDS and Plan of Care established that she was frequently incontinent of bladder and bowel, and required an assist of one to two staff for toilet use and incontinent care.  Id. at 21, 23, 53.  In her grievance, Resident 27 stated that the CNA was upset with her because she had an incontinent incident the night before and that the CNA cussed at her and told her she should have been able to hold her bladder.  CMS Ex. 14 at 12.  In a written statement, the CNA denied that she used inappropriate language or scolded the resident.  Id. at 13.  In response to the grievance, Petitioner’s DON documented that, “[t]he CNA is not allowed to care for this resident.”  Id. at 12.  There is no documentation that this incident was reported to the Administrator or to the state agency.  CMS Ex. 2 at 4‑5, 25‑27; see CMS Ex. 30.  Nor is there documentation that another CNA who may have been present was interviewed.CMS Ex. 2 at 4‑5, 25‑27; see also CMS Ex. 14 at 12-13.

On August 30, 2016, Resident 26 complained to one of Petitioner’s nurses about several unidentified CNAs.  CMS Ex. 14 at 11, 19.  The resident reported that she pushed her call light several times and staff came in to turn it off but then left without assisting her.  Id. at 11.  Resident 26 asked for a “mouth dry” but they said that they did not know what that was.  Id.  She also asked for assistance going to the restroom but a CNA turned off the call light without helping.  Id.  Resident 26 tried to use her bedside commode on her own and removed her CPAP (continuous positive airway pressure device) to put on a nasal cannula.  Id.  At that point “they came in to put her on [the] pot.”  Id.  Then they put her back into bed, putting the CPAP back on without removing the nasal cannula.  Id.  Resident 26 indicated that she was so upset she just wanted to go home.  Id.  Resident 26’s MDS and Plan of Care documented that she required a two‑person assist for bed mobility, transfers, toilet use, and that she was frequently incontinent of bladder.  CMS Ex. 25 at 26, 59.  The Plan of Care also required that the call light be within Resident 26’s reach and directed staff to “[p]rovide prompt response to all requests for assistance.”  Id. at 69.  Petitioner’s response to Resident 26’s grievance was signed by the assistant director of nursing (ADON) and indicated that staff would be “inserviced” (i.e. trained) on answering call lights and the toileting schedule.  CMS Ex. 14 at 11.  However, there is no documentation that this incident was reported to the Administrator, investigated, or that protective measures were implemented.  CMS Ex. 2 at 11‑13, 33‑45; CMS Ex. 30.  In particular, there was no documentation that Petitioner took steps to identify which staff were involved.  Id.

On September 27, 2016, Resident 28’s wife reported that the resident had not received his prescribed pain medication timely.  CMS Ex. 14 at 14, 18.  Resident 28 had diagnoses that included unspecified pain, central cord syndrome at C4 level of cervical spine, and muscle spasm.  CMS Ex. 27 at 8, 31.  When he was interviewed for his MDS assessment, Resident 28 reported that he frequently experienced pain.  Id. at 32.  He reported that, at its worst, his pain rated “10” on a scale of 0-10.  Id.  Resident 28’s physician ordered the following pain medications:  Gabapentin capsule 300 mg – one capsule three times per day; Percocet tablet 10‑325 mg – one tablet by mouth every four hours as needed; and Norco tablet 5‑325 mg – one tablet by mouth every six hours as needed.  Id. at 5.  The

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Plan of Care instructed staff to medicate as ordered with interventions and to anticipate the need for pain relief and respond immediately to any complaints of pain.  Id. at 86, 88.  In the grievance report, Resident 28’s wife stated that Resident 28 asked for pain medication at 2:20 p.m. but when she returned at 6:42 p.m. he had still not received any pain medication.  CMS Ex. 14 at 14.  They pushed the call light several times and both a CNA and Resident 28’s wife told Licensed Practical Nurse (LPN) 5 that the resident needed his pain medication.  Id.  When Resident 28’s wife followed up with LPN 5 several times, she was told “just a minute,” but it was several hours before Resident 28 received his medication.  Id.; CMS Ex. 27 at 93.  Petitioner’s DON documented that LPN 5 “was placed on 6 month probation.”  CMS Ex. 14 at 15.  However, there is no documentation that Resident 28’s wife’s allegation was reported to the Administrator or state agency.  CMS Ex. 30; CMS Ex. 2 at 13‑15, 34‑37.  In addition, Petitioner did not document that a full investigation was conducted.  For example, no interviews of LPN 5 or any other staff members who may have witnessed the events were documented.  Id.

On September 28, 2016, Resident 23’s daughter made a complaint concerning an unidentified CNA.  CMS Ex. 14 at 8, 18.  According to the daughter, Resident 23 stated that a male CNA on the night shift had been “hateful” to him and shined a light in his eyes.  CMS Ex. 14 at 8.  Resident 23 also reported that the bed monitor was shocking him.  Id.  In response, Petitioner’s ADON documented Petitioner’s conclusion that the grievance was unfounded.  Id.  The ADON determined that the grievance was unfounded because “we feel [Resident 23] is confused” due to a urinary tract infection.  Id.  However, there is no documentation that the allegations were reported to the DON, the Administrator, or the state agency.  Nor is there documentation that any investigation was conducted to support the conclusion that the grievance was unfounded.  CMS Ex. 30; CMS Ex. 2 at 15‑16, 37‑38.

On September 29, 2016, Resident 19 complained that CNA 8 refused to assist the resident with her colostomy bag.  CMS Ex. 14 at 4, 18.  Resident 19’s MDS and Plan of Care identify her as requiring the extensive assistance of one person for toilet use.  CMS Ex. 18 at 28, 57.  The Plan of Care did not identify any interventions for colostomy care.  Id. at 56‑76.  In her grievance, Resident 19 explained that she sought help with emptying her colostomy bag.  CMS Ex. 14 at 4.  CNA 8 allegedly responded that the resident did not need to ask for help and she should be doing it herself.  Id.; see also CMS Ex. 18 at 77.  There was no documentation that this incident was reported to the Administrator or to the state agency.  CMS Ex. 30.  Petitioner’s ADON documented Petitioner’s response, which was to inservice staff and to move CNA 8 to a different hall.  CMS Ex. 14 at 4.

Also on September 29, 2016, Resident 24 reported an incident involving CNA 8.  CMS Ex. 14 at 9, 18.  Resident 24’s MDS and Plan of Care indicate that she required the assistance of two staff members for toilet use and that she was frequently incontinent.  CMS Ex. 23 at 29, 31, 57.  In her complaint, Resident 24 stated that she had pushed her call light sometime between 10:00 p.m. and 6:00 a.m. for help using the restroom.  CMS

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Ex. 14 at 9.  According to Resident 24, CNA 8 asked the resident if she could walk.  Id.  Resident 24 responded “you know I can’t walk.”  Id.  CNA 8 then reportedly said “well you can’t go to the bathroom then” and left without assisting the resident.  Id.  In response to Resident 24’s complaint, Petitioner’s ADON documented that she spoke to CNA 8, coached her on how to respond to resident requests, and moved her to another hallway.  Id.  There is no documentation that the incident was reported to the Administrator, or to the state agency, or that any other protective measures were taken.  CMS Ex. 30; CMS Ex. 2 at 7‑8, 28‑29.

On October 17, 2016, Resident 21 complained that CNA 11 was rude to her, and left her in uncomfortable positions like beside the commode or unable to reach the call light.  CMS Ex. 14 at 6, 17.  Resident 21 declined to repeat what CNA 11 said, but stated that the comments made her “very uncomfortable and displeased.”  Id. at 6. Resident 21 requested that the CNA not be allowed in her room.  Id.  CNA 11 claimed that the allegations were unfounded and that she never made rude statements towards the residents.  Id.  Petitioner responded by prohibiting CNA 11 from entering Resident 21’s room but otherwise failed to report the incident to the Administrator, further investigate, or take additional protective measures.  Id.; CMS Ex. 30; CMS Ex. 2 at 19‑20, 40‑41.

On October 20, 2016, Resident 25 complained that CNA 12 was very “rude” and “hateful” to her.  CMS Ex. 14 at 10, 17.  The resident was very upset and crying and stated that she needed a “nerve pill.”  Id. at 10.  Petitioner’s ADON questioned CNA 12, who stated the resident had been laughing during their encounter.  Id.  The ADON further documented that, the next day, Resident 25 apologized to CNA 12 for her behavior and stated that everything was “ok”.  Id.  Nevertheless, the ADON documented that CNA 12 will not go into Resident 25’s room alone.  Id.  There is no documentation that this incident was reported to the Administrator or investigated further.  Id.; CMS Ex. 30; CMS Ex. 2 at 16-17, 38-39.

On November 15, 2016, Resident 18 complained that CNA 8 was hateful and mean and that she laughed at everyone and thought everything was funny.  CMS Ex. 14 at 2, 16.  Resident 18 reported that CNA 8 allowed his bed alarm to go off for an hour and he was unable to sleep.  CMS Ex. 14 at 2.  Resident 18 requested that CNA 8 not be allowed in his room again.  Id.  There is no documentation that this incident was identified as possible neglect, reported to the Administrator, or investigated beyond obtaining a statement from CNA 8.  Id. at 3; CMS Ex. 30; CMS Ex. 2 at 8‑9, 29‑31.  Petitioner’s ADON documented Petitioner’s response:  CNA 8 was not allowed to enter Resident 18’s room again and she received a written warning.  CMS Ex. 14 at 2.  However, no other protective measures were taken.  CMS Ex. 30; CMS Ex. 2 at 8‑9, 29‑31.

On November 17, 2016, Resident 20 filed a grievance in which he stated that CNA 8 told him she was going to take his clothes and throw them away.  CMS Ex. 14 at 5, 16.  Resident 20 was very upset by CNA 8’s remarks.  Id. at 5. He explained that he was only

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asking that his clothes be laundered.  Id.  In response to Resident 20’s grievance, Petitioner’s ADON recorded that CNA 8 received a “final written warning regarding rudeness to residents” and that she “is not allowed back in [Resident 20’s] room.”  Id.  However, there is no documentation that the incident was reported to the Administrator, or to the state agency, or that any other protective measures were taken.  CMS Ex. 30; CMS Ex. 2 at 9-10, 31.

On November 21, 2016, Resident 12 and her husband reported that the resident was scared to transfer/stand due to evening shift staff being abrasive and too rough.  CMS Ex. 14 at 1, 16.  Resident 12’s MDS showed that she required a one‑person assist for transfers.  CMS Ex. 15 at 5.  Resident 12’s husband recounted that CNA 8 was transferring Resident 12 using the Hoyer lift, when he heard the resident scream.  CMS Ex. 14 at 1.  He then heard CNA 8 tell the resident to shut up, that she hadn’t done anything to hurt her, and to stop screaming.  Id.  The husband indicated in a separate interview that CNA 8 was rough and abrasive.  CMS Ex. 2 at 11.  Petitioner’s ADON documented that the CNAs were inserviced on proper lift techniques and how to coach residents during lifts.  CMS Ex. 14 at 1.  Also, according to the ADON, CNA 8 denied telling Resident 12 to shut up.  Id.  However, there is no documentation that the incident was reported to the Administrator, investigated, or that other protective measures were implemented.  CMS Ex. 30; CMS Ex. 2 at 10‑11, 31‑33.

It was not until after November 30, 2016, the date the state agency surveyors notified Petitioner of their finding that Petitioner’s failure to report allegations of possible abuse or neglect constituted immediate jeopardy to resident health and safety, that the facility reported the allegations to the state agency.  See CMS Ex. 33 at 11 (Snoderly Declaration ¶ 24).

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

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

The regulations and Petitioner’s own policies require that allegations of abuse, neglect, or mistreatment be reported internally to Petitioner’s Administrator and DON and externally to law enforcement and to the state agency.  However, as described above, Petitioner’s grievance logs from June through November 2016 demonstrate that twelve residents complained of possible abuse or neglect by staff, but there is no evidence that the allegations were reported to the Administrator or the state agency, or that appropriate measures were taken to protect the residents from the risk of further abuse.

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a. Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(c)(1)‑(4)5 (Tag F225) because it failed to thoroughly investigate and report alleged incidents of resident abuse or neglect by Petitioner’s staff, nor did Petitioner take steps to prevent further possible abuse or neglect during any such investigation.

Each resident “has the right to be free from abuse, neglect, misappropriation of resident property, and exploitation as defined in this subpart.  This includes but is not limited to freedom from corporal punishment, involuntary seclusion and any physical or chemical restraint not required to treat the resident’s medical symptoms.”  42 C.F.R. § 483.12.  As described above, the provisions of 42 C.F.R. § 483.12(c)(1)‑(4) require facilities to ensure that all allegations of abuse, neglect, exploitation or mistreatment of residents are immediately reported and thoroughly investigated.

CMS argues that Petitioner failed to ensure that allegations of possible staff abuse or neglect of twelve residents were reported to the Administrator or to the state agency and that a thorough investigation was conducted.  CMS Br. at 13.  Significantly, Petitioner does not contend that its staff did report the alleged incidents to its Administrator or to the state agency.  To the contrary, Petitioner’s Administrator admitted that he was unaware of the resident grievances.  CMS Ex. 5 at 6; see also CMS Ex. 33 at 11 (Snoderly Declaration ¶ 23).  And, Petitioner did not report the allegations to the state agency until after the surveyors identified the deficient practices.  See CMS Ex. 33 at 11 (Snoderly Declaration ¶ 24).  Nevertheless, Petitioner argues that it was not out of substantial compliance because “there is no substantial evidence of any harm, to any resident at [Petitioner’s facility], and all allegations were promptly investigated and addressed.”  P. Br. at 9.  Petitioner further asserts that there is “no substantial evidence of any pattern of harm” because “none of the residents experienced physical injury and none required the attention of a physician.”  Id.  At most, Petitioner characterizes the

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allegations as involving “rude language by CNAs.”6   Id.  Finally, Petitioner contends that the state agency “found that the allegations of abuse against CNA 8 were unfounded, and therefore these allegations should not serve as the basis of adverse findings against the facility.”  Id.

However, the fact that Petitioner’s management – or even the state agency – ultimately concluded that no abuse had occurred does not establish that Petitioner’s staff substantially complied with the regulations.  The regulations require that allegations be reported and investigated, without regard to whether a resident suffered physical injury.7 Petitioner has not argued or demonstrated that it immediately reported the allegations of possible abuse or neglect, as required by the regulations.  Petitioner’s implication that, because (in its view) there was no abuse, there was no need to report, puts the cart before the horse.  The regulations require immediate reporting so that allegations or suspicions of abuse can be investigated and a determination can be made as to whether any abuse occurred.  The regulations do not countenance a backward-looking approach – using the assertion (or even a finding) that no abuse occurred to justify a decision that no reporting was required.  As an appellate panel of the Departmental Appeals Board (DAB) stated in Cedar View Good Samaritan:

[T]he salient question is not whether any abuse in fact occurred or whether [the facility] had reasonable cause to believe that any abuse occurred, but whether there was an allegation that facility staff had abused a resident . . . .  Since the allegations of abuse themselves gave rise to [the facility’s]

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duty under section 483.13(c)(2)[8 ] to report the . . . incidents to the State agency, [the facility’s] arguments that it did not have reasonable cause to believe that any abuse occurred have no bearing on the [administrative law judge’s] finding that [the facility] violated this regulation.

DAB No. 1897 at 11-12 (2003) (emphasis in original); see also Britthaven, Inc., DAB No. 2018 at 15 (2006); Grace Healthcare of Benton, DAB No. 2189 at 6 (2008) (the reasoning in Cedar View Good Samaritan “encompasses not only a direct allegation that the resident has been abused, but also an allegation of facts from which one could reasonably conclude that the resident has been abused”).  Where a facility reasonably should have suspected its staff may have abused or neglected a resident, then it must report to the state agency that suspicion and any investigation it undertook based on that suspicion.  See Bergen Reg’l Med. Ctr., DAB No. 1832 at 13-14 (2002) (upholding administrative law judge’s finding that the facility did not comply substantially with 42 C.F.R. § 483.13(c)(2)-(4) (redesignated as 42 C.F.R. § 483.12(c)(1)‑(4)).

In particular, the grievance reports detailed repeated allegations from which one might reasonably conclude that CNA 8’s conduct was abusive toward Petitioner’s residents.  Of the twelve residents whose complaints are at issue, six of them involved CNA 8.  CMS Ex. 14 at 1‑5, 9, 12‑13.  Some allegations involved more than just abrasive or rude language, contrary to Petitioner’s assertion.  See P. Br. at 9.  For example, at least one allegation involved rough handling during a transfer.  See CMS Ex. 14 at 1.  In any event, regardless of whether the alleged abuse was verbal or physical, or even if the allegations were limited to neglect, Petitioner did not take the required steps to thoroughly investigate and report the claims.  42 C.F.R. § 483.12(c)(2), (4).  Had Petitioner immediately and thoroughly investigated the resident grievances, it would have been aware of the pattern of allegations against CNA 8 and could have undertaken steps to protect its residents (by suspending CNA 8 pending its investigation, for example) as required by 42 C.F.R. § 483.12(c)(3).  But, far from being aware that CNA 8’s conduct was potentially abusive, Petitioner’s management disavowed knowledge of the grievances.  Indeed, the DON claimed to be unaware of this pattern of abuse allegations

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because she had not seen any of the grievances.9   CMS Ex. 5 at 5; see also CMS Ex. 33 at 10 (Snoderly Declaration ¶ 22).  Similarly, the Administrator acknowledged that he does not see grievance reports and had not seen these specific reports.  CMS Ex. 5 at 6; see also CMS Ex. 33 at 11 (Snoderly Declaration ¶ 23).

Petitioner’s contention that the allegations against CNA 8 were later determined to be unfounded (P. Br. at 10‑11) does not aid Petitioner’s case.  The fact that, after investigation, the state agency determined the allegations were unfounded does not alter Petitioner’s obligation under the regulations to immediately and thoroughly investigate and report each and every allegation of possible abuse or neglect.  While the allegations raised against CNA 8 may not have been substantiated and the record does not establish that any resident suffered physical injury, that outcome was essentially the result of chance and not due to any corrective or protective action by Petitioner.

In summary, the record shows that Petitioner failed to ensure that allegations of possible abuse and neglect of twelve residents by members of its staff were reported to the Administrator, or state agency, and thoroughly investigated as required by 42 C.F.R. § 483.12(c)(1), (2).  See CMS Ex. 30 (showing Petitioner conducted some investigations, but not of the grievances at issue here).  In addition, because Petitioner did not suspend CNA 8 pending its investigation, Petitioner failed to take protective measures to ensure that the alleged abuse and neglect did not continue, in violation of 42 C.F.R. § 483.12(c)(3).  Finally, because it undertook no investigations, it could not report the results of its investigations to the state agency within five working days, as required by 42 C.F.R. § 483.12(c)(4).  These failures put Petitioner’s residents at risk for further abuse or neglect, thus posing the risk of more than minimal harm.  For these reasons, Petitioner failed to comply substantially with 42 C.F.R. § 483.12(c)(1) - (4) (Tag F225).

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

As part of its obligation to keep residents free from abuse and neglect, a facility must develop and implement written policies and procedures that prohibit and prevent abuse,

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neglect, and exploitation of residents and misappropriation of resident property, as well as requiring the facility to investigate allegations of such conduct.  42 C.F.R. § 483.12(b)(1), (2).  A facility may fail to comply substantially with section 483.12(b)(1) if it fails to develop policies or procedures adequate to prevent abuse, or if it fails to implement such policies.  See, e.g., Southpark Meadows Nursing & Rehab. Ctr., DAB No. 2703 at 6 (2016) (quoting Glenoaks Nursing Ctr., DAB No. 2522 at 14 (2013)).10   In addition, facilities must provide training to their staff so that staff will recognize and report such conduct.  42 C.F.R. §§ 483.12(b)(3), 483.95(c).

Petitioner contends that it was in compliance with the regulatory requirements because it “had written policies and procedures regarding prevention of and investigations into abuse, and its staff has complied with those procedures.”  P. Br. at 10 (citing CMS Ex. 31 at 1‑6).  Petitioner explains that “[a]ll of the allegations . . . were promptly investigated by the Assistant Director of Nursing [ADON] or Director of Rehabilitation, and in eleven of the twelve grievance investigations, action was taken against the subject of the grievance, or an inservice [was] conducted, to prevent future problems.”  Id. at 9‑10.  Petitioner notes that the actions of the ADON in addressing the grievances were “successful” because “all of the residents expressed satisfaction after recording the grievances and there is no evidence of additional problems.”  Id. at 10.

While I agree that Petitioner had in place a policy to prevent and report abuse, Petitioner’s own records contradict the assertion that Petitioner’s staff acted in accordance with the provisions of that policy in response to the resident grievances and complaints described above.  Thus, Petitioner failed to implement its abuse prevention policy.

First, Petitioner failed to implement its policy requirement that “all alleged violations involving mistreatment[,] neglect[,] or abuse, including injuries of unknown sources 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 . . . .”  CMS Ex. 31 at 1 (emphasis added).  The policy identifies the Administrator and DON as the parties “responsible for investigating and reporting.”  Id. at 5.  Contrary to these policy requirements, none of the resident complaints were reported to the Administrator.  In fact, the Administrator admitted that he did not see them because it was the facility’s practice to have department heads handle the

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grievances.  CMS Ex. 33 at 11 (Snoderly Declaration ¶ 23); see also CMS Ex. 2 at 21.  Similarly, Petitioner’s DON disavowed knowledge of the grievances.  CMS Ex. 33 at 10 (Snoderly Declaration ¶ 22); see also CMS Ex. 2 at 20.  The Administrator’s and DON’s professed ignorance of the resident grievances was itself a violation of Petitioner’s policy that grievances would be reviewed “to identify potential trends that may constitute abuse or to monitor for indicators leading to suspected abuse[,] neglect[,] and[/]or mistreatment.”  CMS Ex. 31 at 4.  Finally, there is no documentation that any of the allegations contained in the grievances were reported to the state agency until after the survey identified the grievances as possible allegations of abuse.  See CMS Ex. 33 at 11 (Snoderly Declaration ¶ 24); see also CMS Ex. 30.

Second, Petitioner failed to implement the policy requirement that “[a]ny time an allegation is made involving abuse, neglect[,] or mistreatment of a resident, which names a specific employee[,] the employee is suspended until the completion of the investigation.”  CMS Ex. 31 at 6.  Further, the policy specifically prohibited an employee suspected of abuse from being assigned elsewhere in the facility:  “The employee is not to remain on duty and is not to be assigned to any other area of the facility.”  Id.  Six of the twelve affected residents named CNA 8 in their grievances.  CMS Ex. 14 at 1‑5, 9, 12‑13.  Nevertheless, Petitioner did not suspend CNA 8 in response to the grievances.  Moreover, the steps Petitioner did take in response to the allegations – such as preventing CNA 8 from entering resident rooms or moving her to a different hall (see CMS Ex. 14 at 4, 9, 12‑13) – were contrary to Petitioner’s own directive that employees suspected of abuse not be assigned to another area of the facility.  See CMS Ex. 31 at 6.

The allegations concerning CNA 8 spanned the period August 26 through November 21, 2016.  Had Petitioner followed its own policy upon the first allegation, it is possible that no further incidents would have occurred.  But, instead, Petitioner’s management was unaware of the pattern of abuse and neglect allegations against CNA 8.  CMS Ex. 5 at 5‑6; see also CMS Ex. 33 at 10-11 (Snoderly Declaration ¶¶ 22, 23).  Moreover, the grievances demonstrate that the affected residents experienced – at a minimum – mental distress as a consequence of CNA 8’s behavior.  I therefore find that Petitioner’s noncompliance with 42 C.F.R. §§ 483.12(b)(1)‑(3) and 483.95(c) was substantial because it had the potential to cause more than minimal harm.

c. I need not address CMS’s contention that Petitioner was not in substantial compliance with 42 C.F.R. §§ 483.24 and 483.25(k)(1) (Tag F309) because that allegation is not material to the outcome of this case.

Quality of life is a fundamental principle that applies to all care and services provided to SNF residents.  The regulations provide that “[e]ach resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, consistent with the resident's

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comprehensive assessment and plan of care.”  42 C.F.R. § 483.24.  CMS concluded that Petitioner was not in substantial compliance with the regulations because a member of Petitioner’s nursing staff (LPN 1) failed to administer CPR to a resident who was found without vital signs, even though the resident’s care plan indicated she was “full code.”  CMS Br. at 17; CMS Ex. 16 at 62, 63, 70.  The incident occurred on November 1, 2016.  CMS Ex. 2 at 48.  Petitioner terminated LPN 1’s employment the same day, after having determined that the nurse did not comply with Petitioner’s CPR policy.  CMS Ex. 16 at 200.  While there is no doubt that failure to provide CPR to a resident who was documented to be “full code” is a serious allegation, I need not address this deficiency.  I am permitted, “in the interests of judicial economy, [to] review only those deficiencies that have a material impact on the outcome of the dispute.”  Claiborne-Hughes Health Ctr. v. Sebelius, 609 F.3d 839, 847 (6th Cir. 2010).  As my analysis in sections IV.B.3 and IV.B.4, infra, shows, Petitioner’s noncompliance with 42 C.F.R. §§ 483.12(c)(1)‑(4), 483.12(b)(1)‑(3), and 483.95(c)(1)-(3) suffices to establish the existence of immediate jeopardy and the reasonableness of the CMPs proposed by CMS.  Therefore, whether or not Petitioner’s was in substantial compliance with 42 C.F.R. §§ 483.24 and 483.25(k)(1) is not material to the outcome of this case.  Accordingly, I decline to review the allegations that Petitioner failed to comply with those provisions.

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

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 determination as to the level of a facility’s substantial noncompliance (which includes an immediate jeopardy finding) unless it is “clearly erroneous.”  42 C.F.R. § 498.60(c).  The “clearly erroneous” standard imposes on facilities a heavy burden to overcome a finding of immediate jeopardy.  Appellate panels of the DAB have sustained determinations of immediate jeopardy where CMS presented evidence “from which ‘[o]ne could reasonably conclude’ that immediate jeopardy exists.”  See, e.g., Barbourville Nursing Home, DAB No. 1962 at 11 (2005) (citing Florence Park Care Ctr., DAB No. 1931 at 27-28 (2004)), aff’d, Barbourville Nursing Home v. U.S. Dep’t of Health & Human Servs., 174 F. App’x 932 (6th Cir. 2006).

CMS asserts that Petitioner’s deficiencies constituted a pattern of immediate jeopardy to resident health and safety (i.e. scope/severity level “K”) for November 30, 2016.11   CMS Ex. 1 at 1; CMS Ex. 2 at 1.  Petitioner argues that even if I were to find noncompliance,

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CMS’s immediate jeopardy finding was erroneous.  P. Br. at 12‑14.  Specifically, Petitioner contends that none of the grievances filed by the residents “involved actual harm.”  Id. at 12.  Petitioner again emphasizes that the allegations were later determined to be “unfounded.”  Id.  Finally, Petitioner points to the State Operations Manual “triggers” for finding immediate jeopardy based on a facility’s failure to protect residents from abuse, including:  serious injuries; non‑consensual sexual interactions; staff striking or roughly handling an individual; staff yelling, swearing, gesturing or calling an individual derogatory names; and unexplained bruising.  Id. at 13.  Petitioner explains that “[t]here were no physical injuries of any [of] the twelve residents . . . and the rude language did not include swearing or name‑calling;” therefore, “these grievances do not rise to the level of Immediate Jeopardy.”  Id.

Petitioner’s arguments are unavailing.  First, because Petitioner did not conduct a thorough investigation of the grievances, the record does not conclusively establish that no physical injuries occurred or that none of the “rude language” used included yelling, swearing, or name-calling.  For example, there is no documentation that Petitioner’s staff assessed Resident 12 for injuries following her allegation of rough treatment by CNA 8 (and rough treatment is, itself, a possible trigger according to the State Operations Manual).  See CMS Ex. 14 at 1.  Similarly, there is no evidence that Petitioner further investigated the content of the rude comments that CNA 11 and CNA 8 allegedly made to Resident 21 and Resident 27.  See id. at 6, 12.  Resident 21 stated that CNA 11’s comments made her “very uncomfortable,” while Resident 27 alleged that CNA 8 “cussed” at her.  Id.

Second, even if, as Petitioner argues, no injuries, swearing, or name-calling occurred, this would not preclude a finding of immediate jeopardy.  This is so because the failure to report allegations of abuse, standing alone, is sufficient to support a finding of immediate jeopardy.  As an appellate panel of the DAB confirmed in Rosewood Care Center of Swansea, a facility’s failure to report alleged abuse may constitute immediate jeopardy:

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

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

In this case, as in Rosewood, Petitioner’s repeated failures to promptly report to the state agency allegations of abuse, or to implement its internal policy requiring immediate

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reporting and investigation of such allegations, not to mention its failure to suspend an employee who was alleged to have abused or neglected residents, constitute a pattern of noncompliance that exposed all of Petitioner’s residents to the risk that they might suffer abuse that would go undetected and unreported.  Were that to occur, Petitioner’s frail and vulnerable residents would indeed be likely to experience serious injury, harm, impairment, or death.  This is so even if, as Petitioner argues, none of the complaining residents at issue here experienced actual abuse.  For these reasons, I conclude Petitioner has not overcome its heavy burden to show that CMS’s immediate jeopardy determination was clearly erroneous.

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

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 § 488.404 include:  (1) the seriousness of the deficiency (including the cited scope and severity); (2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and (3) the facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies.  Unless a facility contends that a particular regulatory factor does not support the CMP amount that CMS proposed, the administrative law judge must sustain it.  Coquina Ctr., DAB No. 1860 at 32 (2002).

The regulations specify that a CMP that is imposed against a facility on a per-day basis will fall into one of two ranges of penalties.12  42 C.F.R. §§ 488.408; 488.438.  The upper range of a CMP, $6,291 per day to $20,628 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, $103 to $6,188 per day, is reserved for deficiencies that do not pose immediate jeopardy, but either cause actual harm to residents, or cause no actual harm but have the potential for causing more than minimal harm.  42 C.F.R. § 488.438(a)(1)(ii).  In assessing the reasonableness of a CMP amount, an administrative law judge considers the per-day amount, rather than the total accrued CMP.  See Kenton Healthcare, LLC, DAB No. 2186 at 28 (2008).  The regulations leave the decision regarding the choice of remedy to CMS, and the amount of the remedy to CMS and the administrative law judge, requiring only that the regulatory factors at §§ 488.438(f) and 488.404 be considered when determining

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the amount of a CMP within a particular range.  42 C.F.R. §§ 488.408; 488.408(g)(2); 498.3(d)(11); see also 42 C.F.R. § 488.438(e)(2) and (3); Alexandria Place, DAB No. 2245 at 27 (2009); Kenton Healthcare, DAB No. 2186 at 28-29.

CMS imposed per-day CMPs in this case, and I have concluded that the determination of immediate jeopardy was not clearly erroneous.  For the single day on which CMS cited immediate jeopardy level noncompliance – November 30, 2016 – CMS imposed a CMP of $10,141.00, which is in the lower range for immediate jeopardy level noncompliance.  For the period of Petitioner’s below immediate jeopardy level noncompliance, CMS imposed a CMP of $303.00 per day, which is in the lower range for below immediate jeopardy level noncompliance.

CMS argues generally that the per-day CMPs proposed are reasonable because of the severity of Petitioner’s noncompliance and the risk of harm to Petitioner’s residents.  CMS Br. at 19.  Petitioner does not specifically argue that any particular regulatory factor supports a reduction of the CMP amounts proposed by CMS.  For that reason alone, I could conclude the CMPs are reasonable in amount and duration.  See Coquina Ctr., DAB No. 1860 at 32.  However, Petitioner does argue, generally, that the underlying deficiencies did not rise to the level of immediate jeopardy since no residents were actually injured.  P. Br. at 14.

In support of its argument that a CMP of $10,141.00 per day for a single day is unreasonable, Petitioner reiterates its argument that the finding of immediate jeopardy was clearly erroneous and “there was no proof of causal connection, any finding of a substandard level of care was wrong, and the penalties should therefore be figured at the lower range of 42 C.F.R. § [488.]483(a)[(ii)].”  Id. at 15.  However, for the reasons explained above, I have concluded that CMS’s finding of immediate jeopardy was not clearly erroneous.  Petitioner’s repeated failures to investigate resident allegations of possible abuse and neglect endangered a frail and vulnerable population.  As such, Petitioner’s noncompliance was very serious.  I also find that Petitioner was culpable for its noncompliance.  Petitioner was culpable because, over a period of several months, it had on record resident complaints suggesting possible abuse or neglect by its staff and yet Petitioner failed to report and investigate the allegations.  Nor did Petitioner protect the residents from an employee who was identified as a possible perpetrator of abuse or neglect.  These failures suggest, at a minimum, that Petitioner was indifferent to the residents’ allegations.  CMS imposed a CMP of $10,141.00, which is near the bottom of the immediate jeopardy range.  The regulatory factors of seriousness and culpability amply support the CMP amount.

With regard to the duration of the immediate jeopardy level CMP, Petitioner argues that the per‑day CMP imposed for November 30, 2016, was erroneous because Petitioner terminated LPN 1’s employment on November 1, 2016, the same day it determined that she did not comply with Petitioner’s CPR policy.  P. Br. at 15.  Thus, Petitioner argues,

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it had corrected the alleged problem well before the date the CMP was imposed.  Id.  I do not find Petitioner’s argument persuasive.  Petitioner misunderstands the basis for CMS’s imposing the immediate jeopardy level CMP.  While CMS cited Petitioner’s noncompliance with Tag F309, pertaining to LPN 1’s failure to administer CPR, as an immediate jeopardy violation, this was not the only immediate jeopardy noncompliance CMS identified.  CMS also determined that Petitioner’s noncompliance with Tags F225 and F226 (failure to investigate and report allegations of abuse) represented immediate jeopardy.  Petitioner did not resolve the immediate jeopardy for these violations until November 30, 2016, when it completed a “plan of removal,” to include, among other things, more thorough investigation of the resident grievances.  CMS Ex. 2 at 21‑22, 44‑45.  Therefore, I find no basis to conclude that Petitioner abated the immediate jeopardy earlier than November 30, 2016.

Petitioner has not raised any additional arguments as to the reasonableness or duration of the CMP imposed at the below immediate jeopardy level.  CMS submitted evidence that Petitioner returned to substantial compliance with Medicare participation requirements on December 28, 2016.  CMS Ex. 1 at 8.  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 ensure 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)), aff’d, Libertywood Nursing Ctr. v. Sebelius, 512 F. App’x 285 (4th Cir. 2013), accord 42 C.F.R. § 488.454(a) and (e).  A facility’s return to substantial compliance usually must be established through a resurvey.  42 C.F.R. § 488.454(a); Ridgecrest Healthcare Ctr., DAB No. 2493 at 2-3 (2013).  Petitioner failed to present evidence that it returned to substantial compliance prior to December 28, 2016.  I therefore conclude that the duration of the non-immediate jeopardy level CMP is reasonable.

V. Conclusion

For the reasons set forth above, I conclude that Petitioner was not in substantial compliance with the participation requirements at 42 C.F.R. §§ 483.12(c)(1)-(4), 483.12(b)(1)-(3), and 483.95(c)(1)-(3).  I further conclude that CMS did not clearly err in determining that Petitioner’s noncompliance posed immediate jeopardy to resident health and safety.  Finally, I conclude that the CMPs at issue, $10,141.00 per day effective November 30, 2016, and $303.00 per day effective December 1 through December 27, 2016, a total of $18,322.00, are reasonable.  I do not, however, address CMS’s

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determination that Petitioner was not in substantial compliance with the participation requirements at 42 C.F.R. §§ 483.24 and 483.25(k)(1) because that determination is not material to the outcome of this case.

1. The regulations governing Medicare participation requirements for skilled nursing facilities (SNFs) were revised, effective November 28, 2016. 81 Fed. Reg. 68,688 (Oct. 4, 2016). I apply the regulations in effect at the time of the survey. See Carmel Convalescent Hosp., DAB No. 1584 at 2 n.2 (1996). I note that, based on the November 2016 effective date, the revised regulations do not appear in the 2016 codification of Title 42 of the C.F.R. (dated October 1, 2016).
• back to note 1
2. These are the only deficiencies Petitioner challenges. Petitioner’s Brief at 1 n.1. The state agency and CMS cited several other deficiencies at scope/severity levels below that of immediate jeopardy and not at levels indicating a substandard quality of care. CMS Ex. 1 at 1.
• back to note 2
3. To protect their privacy, I refer to residents by the numerical identifiers assigned during the survey.
• back to note 3
4. The Grievance Form does not indicate that Resident 27 identified the CNA involved. However, Petitioner’s documented response to the grievance includes a written statement by “the CNA.” CMS Ex. 14 at 12. The written statement is signed by CNA 8. Id. at 13. I therefore infer that Resident 27’s grievance concerned CNA 8.
• back to note 4
5. The statement of deficiencies and CMS’s brief both cite to 42 C.F.R. § 483.12(a)(3) and (4) as included within Tag F225. These subsections refer to a facility’s responsibility not to employ or otherwise engage individuals who have been found guilty of abuse or neglect by a court of law and to report any such knowledge to the State nurse aide registry or licensing authorities. However, my review of the record does not indicate that subsections 42 C.F.R. § 483.12(a)(3) and (4) are applicable to this case. My analysis therefore considers only whether Petitioner failed to comply substantially with 42 C.F.R. § 483.12(c)(1)-(4).
• back to note 5
6. Of note, both the regulations and Petitioner’s own Abuse Prevention Policy prohibit verbal abuse. See 42 C.F.R. §§ 483.12, 488.301; CMS Ex. 31. Petitioner’s policy defined verbal abuse as “oral, written or gestured language that willfully includes disparaging and derogatory terms to the resident or their families or within their hearing distance, to describe resident regardless of their age, ability to comprehend or disability.” CMS Ex. 31 at 1. Thus, even if “rude language” were the only objectionable conduct alleged, this would not exclude the possibility that resident abuse had occurred or absolve Petitioner of the duty to investigate and report.
• back to note 6
7. The regulations require that any allegations involving “serious bodily injury” be reported within 2 hours, while allegations that do not involve such injury must be reported within 24 hours. 42 C.F.R. § 483.12(c)(1).
• back to note 7
8. When the regulations were updated, former 42 C.F.R. § 483.13(c)(2) was redesignated as 42 C.F.R. § 483.12(c)(1), albeit with substantial revisions. DAB decisions discussing noncompliance with former 42 C.F.R. § 483.13(c)(2) thus remain instructive in cases involving alleged noncompliance with 42 C.F.R. § 483.12(c)(1) to the extent the redesignation and revision of former 42 C.F.R. § 483.13(c)(2) did not alter the substance of the reporting obligations that provision imposed on SNFs.
• back to note 8
9. I am inclined to doubt the credibility of this statement, as the DON herself signed off on some of the grievance responses, including at least one grievance involving CNA 8. See, e.g., CMS Ex. 14 at 12-13, 16. Yet, even if the DON were aware of the allegations in some of the grievances, there is no indication that she reported the allegations to the Administrator or to the state agency, as required by regulation.
• back to note 9
10. The Southpark Meadows decision considered the facility’s alleged noncompliance with the former 42 C.F.R. § 483.13(c). Section 483.13(c) has since been redesignated as 42 C.F.R. § 483.12(b), with some additions. To the extent that the revised provision incorporates the duties imposed under the former provision, I find it appropriate to look to DAB decisions discussing noncompliance with former 42 C.F.R. § 483.13(c) for guidance in interpreting 42 C.F.R. § 483.12(b).
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11. The immediate jeopardy was removed and Petitioner’s noncompliance was lowered to scope/severity level “E” from December 1 through 27, 2016. CMS Ex. 2 at 21.
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12. Effective August 1, 2016, pursuant to the Inflation Adjustment Acts of 1990 and 2015, CMS implemented increased CMP amounts. 81 Fed. Reg. 61,538, 61,549 (Sept. 6, 2016). As the CMP in this case was imposed on December 21, 2016, the new, higher, CMP amounts are applicable.
• back to note 12