Country Villa Wilshire Convalescent Center, DAB CR5771 (2020)

DECISION

Country Villa Wilshire Convalescent Center (Petitioner or "the facility"), is a long-term care facility in Los Angeles, California, that participates in the Medicare program.  Based on a survey completed on August 1, 2017, the Centers for Medicare & Medicaid Services (CMS) determined that Petitioner was not in substantial compliance with the Medicare participation requirements at 42 C.F.R. §§ 483.12(b)(1)-(3) and 483.95(c)(1)-(3) and imposed a per-instance civil monetary penalty (PICMP) of $10,000.  For the reasons discussed below, I find that Petitioner was not in substantial compliance with Medicare program requirements and the remedy imposed is reasonable.

I.  Background

The Social Security Act (Act) establishes requirements for skilled nursing facility (SNF) participation in the Medicare program and authorizes the Secretary of Health and Human Services ("the Secretary") to promulgate regulations implementing those statutory provisions.  See 42 U.S.C. § 1395i-3; 42 C.F.R. pts. 483 and 488.  To participate in the Medicare program, an SNF must maintain substantial compliance with program participation requirements.  In order to be in substantial compliance, an SNF's deficiencies may "pose no greater risk to resident health or safety than the potential for

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causing minimal harm."  42 C.F.R. § 488.301.  "Noncompliance" means "any deficiency that causes a facility to not be in substantial compliance."  Id.

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.  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 U.S.C. § 1395i-3(h)(2)(B)(ii); 42 C.F.R. § 488.430(a).

If CMS imposes a remedy based on a noncompliance determination, then the facility may request a hearing before an administrative law judge (ALJ) to challenge the noncompliance finding and enforcement remedy.  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).

Surveyors from the California Department of Public Health Services (state agency) completed a complaint survey on August 1, 2017, at which time it determined that the facility was not in substantial compliance with Medicare program participation requirements.1   The state agency cited noncompliance with, inter alia, 42 C.F.R. §§ 483.12(b)(1)-(3) and 483.95(c)(1)-(3) (Tag F2262 – facility requirement to develop and implement policies to prevent abuse/neglect) at the "G" level of scope and severity.3 CMS Ex. 1.

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In a letter dated November 2, 2017, CMS notified Petitioner that it concurred with the state agency's findings and determined that Petitioner was not in substantial compliance with Medicare program participation requirements.  CMS Ex. 2.  CMS imposed a PICMP of $10,000 for Petitioner's noncompliance with 42 C.F.R. §§ 483.12(b)(1)-(3) and 483.95(c)(1)-(3) (Tag F226).  CMS Ex. 2 at 2.  In the same letter, CMS informed Petitioner that it had returned to substantial compliance effective August 9, 2017, based on a follow-up survey completed that same day.  CMS Ex. 2 at 5.

Petitioner, through counsel, timely requested a hearing on December 29, 2017.  Pursuant to an Acknowledgment and Pre-hearing Order issued by ALJ Carolyn Cozad Hughes,4 CMS filed a pre-hearing brief (CMS Br.) and 9 proposed exhibits (CMS Exs. 1-9), and Petitioner filed a pre-hearing brief (P. Br.) and 17 proposed exhibits (P. Exs. 1-17).

In its pre-hearing brief, CMS sought to add additional deficiencies based on noncompliance with 42 C.F.R. §§ 483.12(a)(1), (c)(2), and (c)(3) (Tags F223 and F225), at an unspecified level of scope and severity.  CMS Br. at 1 n.1.  In an order dated November 7, 2019 (Nov. 7, 2019 Order), I declined to add additional deficiencies, explaining that the remedies imposed had only been based on the deficiency cited under Tag F226.  See CMS Ex. 2 at 2.  I need not consider deficiencies that are not associated with a remedy, and Petitioner would have no right to appeal such deficiencies.  Therefore, I decline to consider any newly raised allegations of noncompliance.

Prior to the scheduled hearing, I admitted CMS Exs. 1-8 and P. Exs. 1-17 into the evidentiary record.  Nov. 7, 2019 Order.  Upon the appearance of CMS's witness, Ms. Dorothy Alford, for cross-examination at the January 16, 2020 video teleconference hearing, I admitted her testimony (CMS Ex. 9) into the evidentiary record.  Transcript (Tr.) at 4-6.

Both parties filed post-hearing briefs (CMS Post-Hrg. Br.; P. Post-Hrg. Br.) and reply briefs (CMS Post-Hrg. Reply and P. Post-Hrg. Reply).5

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II.  Issues

The issues presented are:

Whether Petitioner failed to substantially comply with the participation requirements at 42 C.F.R. §§ 483.12(b)(1)-(3) and 483.95(c)(1)-(3) (cited as Tag F226); and

If Petitioner was not in substantial compliance, whether the remedy imposed of a $10,000 PICMP was reasonable.   

III.  Discussion6

A.  Petitioner was not in substantial compliance with 42 C.F.R. §§ 483.12(b)(1)-(3) and 483.95(c)(1)-(3) (Tag F226) because it did not implement its written policies and procedures for preventing, reporting, and investigating abuse.  

Factual Background

Resident #1, a 66-year-old man, had an extended hospital stay prior to his admission to the facility on April 10, 2017.  According to the hospital's history and physical report, dated March 28, 2017, Resident # 1 "was transferred apparently secondary to alteration in his mental status."  P. Ex. 4 at 1.  Resident # 1 had a past medical history significant for numerous medical conditions, to include cirrhosis, hepatic encephalopathy, and a seizure disorder.  P. Ex. 4 at 1.  Upon his April 2017 return to the facility, Resident # 1's active diagnoses included altered mental status (unspecified), generalized muscle weakness, hepatic failure (unspecified without coma), and epilepsy.  P. Ex. 3.

According to a social services initial admission assessment conducted on or about April 10, 2017, Resident # 1 had an intact long and short-term memory, and was "able to let his needs known converse and respond to inquiry."  CMS Ex. 5 at 7.  Resident # 1 was alert, oriented (to self, staff names/faces, current season, location of room, and that he is in a nursing home), had clear speech, could make himself understood, and was able to understand others.  CMS Ex. 5 at 8-9.

On April 12, 2017, Resident # 1's physician conducted a physical examination, at which time he documented a medical history significant for numerous conditions, to include hepatic encephalopathy, cirrhosis, hyponatremia, and epilepsy.  The physician reported that Resident # 1 was "alert," but had a "poor memory."  P. Ex. 6.  The physician opined

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that Resident # 1 "does NOT have the capacity to understand and make decisions" due to hepatic encephalopathy.  P. Ex. 6.

According to the Form CMS-2567 Statement of Deficiencies (SOD), a Minimum Data Set (MDS) assessment dated April 16, 2017, assessed that Resident # 1 had "moderate cognitive impairment (a decline in decision-making abilities) and required extensive assistance with personal hygiene and toilet use."7   CMS Ex. 1 at 3; see Tr. at 31 (cross-examination of Ms. Alford).

On May 5, 2017, at approximately 11:30 am, Resident # 1 "wheeled himself into the Administrator's office" while the Director of Nursing (DON), Chuck Cornelius, RN, and the then-Administrator, Avraham Saada,8 were having a meeting.  P. Ex. 10 (May 5, 2017 statement by the DON); but see P. Ex. 8 at 1 (Administrator's May 10, 2017 report that he "call[ed] in" the DON as a "witness").  Resident # 1 informed the Administrator and DON that, at approximately 9:30 pm the previous evening, the CNA caring for him, R.M.,9 "had thrown a dirty diaper in his face."  P. Ex. 10 at 1; see P. Exs. 8 at 1; 12 at 2; 13 at 2.  Resident # 1 explained that he "[did not] want anyone to get in trouble or fired," but urged that "something needs to be done as this is not right."  P. Ex. 10.

According to the DON's May 5, 2017 statement regarding his actions, which he authored that same day, there "were 4 alert residents" on R.M.'s assignment on May 4, 2017, and interviews of those residents revealed "no complaints" and that R.M. "is great as she takes her time and gives [them] good care."  P. Ex. 10.  Mr. Cornelius also reported that "[w]hile passing the nursing station [he] asked the Charge Nurses and Supervisor if [Resident # 1] had reported anything unusual regarding any staff member," and that "[s]taff on duty indicated [Resident # 1] had not reported any thing [sic] unusual happening last night."  P. Ex. 10.  Although Mr. Cornelius reported that the charge nurses and supervisor who were currently working on the day shift reported that Resident # 1 did not report anything unusual, he did not indicate that he had interviewed the charge nurse(s) and nursing supervisor who had been working at 9:30 pm the previous evening.10

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P. Ex. 10.  A year later, in May 2018, Mr. Cornelius submitted written direct testimony in which he stated that he had "interview[ed]" the charge nurse and nursing supervisor who worked "on the evening of May 4, 2017," and who collectively reported that "they had not received any complaints or report of an unusual occurrence" and "had no concerns about [R.M.'s] work or her behavior."11   P. Ex. 13 at 2.

Petitioner reported the allegation of abuse to the state agency on May 5, 2017, at which time it "checked the boxes for physical abuse and psychological abuse."  CMS Ex. 9 at 2.12   On May 9, 2017, Ms. Alford, the state agency surveyor, visited the facility.  CMS Ex. 9; Tr. at 37-38.  Ms. Alford interviewed Resident # 1, who explained that at approximately 9:30 pm on May 4, 2017, he had called for assistance after he had urinated in his diaper several times.  CMS Ex. 4 at 1; Tr. at 39.  Resident # 1 recounted that R.M. removed his wet diaper and gown and then threw the wet diaper and a clean gown on his face.  CMS Ex. 4 at 1; see CMS Ex. 1 at 3.  Resident # 1 reported that he attempted to hide the wet diaper to show the Administrator, but R.M. took it from him.  CMS Ex. 4 at 1.  Per the SOD, Resident # 1 "was upset about [R.M.] throwing the wet incontinent on his face."  CMS Ex. 9 at 4.

In a letter dated May 10, 2017, the day after Ms. Alford visited the facility to conduct the survey, Mr. Saada discussed the measures he took on May 5, 2017, to investigate Resident # 1's allegation of abuse.  P. Ex. 8.  Mr. Saada detailed a six-step process that culminated with R.M. being cleared of the allegation within approximately three hours and returning to work in time for her scheduled 3:00 pm shift that day.  P. Ex. 8.

Mr. Saada explained that his "first step" was to call in the DON to listen to the allegation, at which time he told Resident # 1 he would investigate the matter.  P. Ex. 8 at 1; but see P. Ex. 10 (DON's statement).

Mr. Saada's letter discussed that the "second step would have been to suspend the nurse if she was in the building to eliminate further potential threats to [Resident # 1] and to the rest of the patients," 13 but he did not suspend R.M. because she had not yet reported for

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her scheduled shift beginning at 3:00 pm.14   P. Ex. 8 at 1.  Mr. Saada reported that he interviewed R.M. by telephone, and that she denied abusing Resident # 1.  P. Ex. 8 at 1; see P. Exs. 12 at 2; 17 at 2 (R.M.'s written testimony that she received a telephone call from Mr. Saada).  Mr. Saada reported that he directed R.M. not to return to work until he completed the investigation.  P. Ex. 12 at 2; see P. Ex. 17 at 2-3.

As for the third step of the investigation, Mr. Saada reported that he reviewed R.M.'s employee file and "everything was clear."  P. Ex. 8 at 2.  Mr. Saada also reported that he asked the Director of Staff Development (DSD) "if there was anything out of the ordinary that happened with [R.M.] that could possibly lead to 'burn out' and she said she knows of nothing at this time."  P. Ex. 8 at 2; see P. Ex. 14 (testimony of DSD Favian Guerrero).

The fourth step of Mr. Saada's investigation was "to interview other residents who are on [R.M.'s] assignments."15   P. Ex. 8 at 2.  Mr. Saada reported the four residents "all answered . . . that they were very happy with her care."  P. Ex. 8 at 2; see P. Ex. 11.  Mr. Saada did not explain why only four residents had been interviewed.  P. Ex. 8; see P. Ex. 10 (DON's statement that the four residents were "alert").  Mr. Saada also did not report that any staff members who had worked on the same shift with R.M. had been interviewed.16   P. Ex. 8; see CMS Ex. 1 at 7 ("The Administrator stated only four

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residents had been interviewed and no staff members were interviewed following the abuse allegation . . . . ").

For the fifth step of the investigatory process, Mr. Saada reported that Petitioner developed a continuity of care plan, consulted with Resident # 1's physician, care-planned for emotional distress, and "plac[ed] [Resident # 1] under observation."  P. Ex. 8 at 2.  Mr. Saada reported that he "had our social worker conduct a visit with [Resident # 1] immediately and make a psychosocial assessment."  P. Ex. 8 at 2.  However, Petitioner has not produced any records of a May 5, 2017 "psychosocial assessment."  See CMS Ex. 5 at 7-9 (example of a social services "assessment" that was performed at the time of admission); P. Ex. 2.  Rather, a social worker conducted a "psycho-social support session," as evidenced by the May 7, 2017 notes reported below, in their entirety:

On the afternoon[17 ] of Friday, May 05, 2017, Social Services met with resident for a psycho-social support session one.  Resident continues to attend daily activities of choice and socializing with staff and other residents.  Social Services asked resident if he felt safe, comfortable and satisfied with care rendered, resident responded with a 'yes.'  [Resident # 1] shared he was looking forward to celebrating National Nurses Week with the staff this coming week.

P. Ex. 2.  Remarkably, even though Resident # 1 had only hours earlier alleged he was the victim of abuse, Petitioner's social worker did not specifically question Resident # 1 about this allegation, but rather, addressed Resident # 1's feelings about National Nurses Week.  P. Ex. 2.  Likewise, although Mr. Saada reported that Petitioner was developing a care plan for potential emotional distress and that Resident #1 was under observation for signs of abuse, the first "psycho-social support session" lacked any discussion of whether Resident # 1 showed emotional distress or exhibited signs of abuse.  P. Exs. 2; 8 at 2.

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Petitioner developed a "POTENTIAL FOR EMOTIONAL DISTRESS" care plan for Resident # 1 that lists a handwritten initiation date of May 5, 2017.  CMS Ex. 5 at 6.  The care plan included goals that Resident # 1 "will express feeling safe [for] 3 days" and "will be free from psychosocial distress [for] 3 days."  CMS Ex. 5 at 6.  The care plan included a number of interventions, to include monitoring for both "changes in behavior or psychosocial functioning" and "non-verbal indicators of distress."  CMS Ex. 5 at 6.  The care plan also required staff to notify Resident # 1's physician "of any unusual behavior or sudden resident changes."  CMS Ex. 5 at 6.

Although Petitioner reported that it implemented Resident # 1's care plan on May 5, 2017, prior to R.M.'s return to work (P. Ex. 8 at 2), Resident # 1's clinical record entries reflect that Petitioner first entered clinical notes reflecting its monitoring of Resident # 1 in accordance with the care plan at 9:18 am the following day, on May 6, 2017, after R.M. had returned and already worked her May 5, 2017 shift.  CMS Ex. 5 at 2; see CMS Ex. 5 at 6; P. Ex. 8 at 2.  Clinical records do not include anyentries regarding the allegation of abuse, to include contact with Resident # 1's physician, prior to the May 6, 2017 entry.  CMS Ex. 5 at 2-3; but see CMS Ex. 5 at 1 (Petitioner's use of clinical records to document physician contact on a different occasion).

And finally, Mr. Saada reported that he completed a "sixth step" of his investigation in which he "looked into [Resident # 1's chart]."  P. Ex. 8 at 2.  Mr. Saada, who does not list any medical credentials, determined that due to hepatic encephalopathy, Resident # 1 "can become confused, disoriented, and drowsy, with changes in personality, behavior, and mood."  P. Ex. 8 at 2.  Mr. Saada cited a conversation with Resident # 1's physician reporting "altered mental status."  P. Ex. 8 at 2.  Mr. Saada determined that "[i]t is very well possible" that Resident # 1 "was having another period of confusion and either he misunderstood what [R.M.] was actually doing while cleaning him up or it may not have ever happened."  P. Ex. 8 at 2.

At the conclusion of his six-step investigation, Mr. Saada, "at around 2:30 PM, decided that this allegation could not be substantiated."  P. Ex. 8 at 2.  Mr. Saada explained that he "determined that [R.M.] should not be suspended since the outcome of this investigation turned out to be unsubstantiated."  P. Ex. 8 at 2.  Mr. Saada reported that he "called [R.M.] to come in at her normal scheduled shift for 3-11."  P. Ex. 8 at 2; see P. Exs. 12 at 3.

Mr. Saada reported to the state agency that, despite the fact the investigation did not substantiate abuse, the DON nonetheless "counseled [R.M.] on abuse policies and procedures and instructed her to take another assignment."  P. Ex. 8 at 2; see P. Ex. 17 at 3 (R.M.'s testimony that "[p]rior to the start of [her] shift . . . [she] received an in-service

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training on the facility's abuse policy from the [DON].").  Mr. Saada reported that Resident # 1 had told him, "I just don't want [R.M.] handling my care."  P. Ex. 8 at 2.18

Petitioner's abuse prevention, reporting, and investigation policies and procedures

Petitioner's "Abuse – Prevention Program" policy (CMS Ex. 6 at 1-3), revised November 2016, states that its purpose is "[t]o ensure the health, safety, and comfort of residents by preventing abuse and mistreatment."  CMS Ex. 6 at 1.  At its outset, the policy directs that "[t]he Facility does not condone any form of resident abuse, neglect, misappropriation of resident property, exploitation and/or mistreatment, and develops Facility policies, procedures, training programs, and systems in order to promote an environment free from abuse and mistreatment."  CMS Ex. 6 at 1.  The policy designates the Administrator as the "abuse prevention coordinator," and states that the Administrator is responsible for "the coordination and implementation of the Facility's abuse prevention policies and training."  CMS Ex. 6 at 1.

Petitioner also has a separate "Abuse – Reporting & Investigations" policy, revised November 2016.  CMS Ex. 6 at 4.  The stated purpose of the policy is "[t]o protect the health, safety, and welfare of Facility residents by ensuring that all reports of resident abuse . . . are promptly and thoroughly investigated."  CMS Ex. 6 at 4.  The policy further directs that the facility "will report all allegations of abuse as required by law and regulations to the appropriate agencies," and that it "promptly and thoroughly investigates reports of resident abuse, mistreatment, neglect, exploitation, misappropriation of resident property, or injuries of an unknown source when appropriate."  CMS Ex. 6 at 4.  The policy outlines procedures for investigating and reporting an allegation of abuse, and relevant provisions are summarized as follows:

• Allegations of abuse . . . are to be reported to the Administrator or designated representative immediately.
• When the Administrator or designated representative receives a report of an incident or suspected incident of resident abuse . . . the Administrator or designated representative will initiate an investigation immediately.
• The Administrator or designated representative will provide for a safe environment for the resident as indicated by the situation.

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• If the suspected perpetrator is an employee, remove the employee immediately from the care of the resident(s) and immediately suspend the employee pending the outcome of the investigation in accordance with facility policies.
• The administrator or designated representative conducting the investigation will interview individuals who may have information relevant to the allegation.
• Employees of this facility who have been accused of resident abuse will be suspended from duty until the results of the investigation have been reviewed by the Administrator.

CMS Ex. 6 at 4-6.

Relevant Authorities

42 C.F.R. § 483.12(b)(1)-(3) provides:

(b) The facility 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) Establish policies and procedures to investigate any such allegations, and

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

42 C.F.R. § 483.95(c)(1)-(3) provides:

(c) Abuse, neglect, and exploitation.  In addition to the freedom from abuse, neglect, and exploitation requirements in § 483.12, facilities must also provide training to their staff that at a minimum educates 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.

(3) Dementia management and resident abuse prevention.

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The Departmental Appeals Board (DAB) has examined the requirement to "implement written policies and procedures that prohibit mistreatment, neglect, and abuse" and held that a facility will not be found to be in substantial compliance with participation requirements if it has "successfully implement[ed] only some of its policies concerning abuse of residents."19   Maysville Nursing & Rehab., DAB No. 2874 at 15 (2018) (emphasis in original).  The DAB further explained that, in examining whether a facility has implemented policies and procedures to prohibit abuse, the issue is "whether the circumstances presented, viewed as a whole, demonstrate a systemic problem in implementing policies and procedures."  Columbus Nursing & Rehab. Ctr., DAB No. 2247 at 27 (2009) (citing Liberty Commons Nursing & Rehab Ctr.–Johnston, DAB No. 2031 at 14 (2006), aff'd, Liberty Commons Nursing & Rehab Ctr.–Johnston v. Leavitt, 241 F. App'x 76 (4th Cir. 2007)).

Discussion

CMS alleges that Petitioner failed to substantially comply with the aforementioned regulatory requirements because, over the span of three hours, it did not conduct a thorough investigation of an allegation of abuse, nor did it comply with its own policy requiring it to immediately suspend an employee who had been accused of abusing a resident.  CMS Br. at 4-5; CMS Post-Hrg. Br. at 1, 3-11.

Petitioner argues that it adhered to its policies and conducted a thorough investigation, and that it protected Resident # 1 and the other residents from the potential for abuse by R.M.  P. Post-Hrg. Br. at 2-3.  Petitioner acknowledges that although it did not formally suspend R.M. from duty, suspension was unnecessary under the circumstances.  P. Post-Hrg. Br. at 10 ("Because the investigation concluded prior to the start of [R.M.'s] next shift, there was no reason to formally suspend her.").  Petitioner also argues that Resident # 1's allegation of abuse was likely not credible, owing to his cognitive impairments associated with hepatic encephalopathy.  P. Post-Hrg. Br. at 3-4; see P. Ex. 8 at 2.

I find that Petitioner did not comply with Medicare participation requirements when it failed to implement its abuse reporting and investigation policy.  As a result, R.M. was allowed to return to work before Petitioner had completed a thorough investigation of the allegation of abuse.  Petitioner's policy required it to "promptly and thoroughly" investigate all reports of resident abuse, to include "interview[ing] individuals who may have information relevant to the allegation."  CMS Ex. 6 at 4-5; see 42 C.F.R. § 483.12(b)(1)-(2) (requirement for written policies and procedures that prohibit and

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prevent abuse and establish policies and procedures to investigate any such allegations).  Further, because the alleged abuser was a facility employee, Petitioner's policy required it to "immediately suspend [her] pending the outcome of the investigation in accordance with facilities [sic] policies."  CMS Ex. 6 at 4; see also CMS Ex. 6 at 6 (separate requirement, under the heading, "Suspension of Employees," that employees "who have been accused of resident abuse will be suspended from duty until the results of the investigation have been reviewed by the Administrator").  Petitioner failed to substantially comply with 42 C.F.R. §§ 483.12(b)(1)-(3) and 483.95(c)(1)-(3), and as a result, an alleged abuser was allowed to return to work absent a thorough investigation.

A. Petitioner failed to implement its policy requirement that it suspend an employee until a thorough investigation of an allegation of abuse had been completed.

Petitioner failed to comply with the policy requirement that it suspend an employee suspected of abuse during the pendency of the investigation.  Petitioner was notified, at approximately 11:30 am on May 5, 2017, of an allegation of resident abuse involving R.M.  P. Ex. 8 at 1.  Although Petitioner's policy required it to immediately suspend R.M. (CMS Ex. 6 at 4, 6), Mr. Saada acknowledged he did not suspend R.M.  P. Ex. 8 at 1.  Rather, Mr. Saada "advised [R.M.] that she was not permitted to return to work until [he] completed [his] investigation."  P. Ex. 12 at 2.

Petitioner argues that a "formal suspension was unnecessary" and characterizes the issue as a "matter of semantics."  P. Post-Hrg. Br. at 9, 10.  According to Petitioner, R.M. was not in the building or working at the time of the investigation (P. Ex. 8 at 1), and R.M. testified that she "understood that she was 'suspended' until the investigation was completed."  P. Post-Hrg. Br. at 9; P. Ex. 17 at 3.  Petitioner contends that because it concluded the three-hour investigation prior to the start of R.M.'s scheduled 3:00 pm shift, "there was no reason to formally suspend her."  P. Post-Hrg. Br. at 10.  

This is not a matter of semantics; Petitioner's policy required that "R.M. be suspended from duty" while the investigation was pending.  CMS Ex. 6 at 6.  Anything short of a suspension amounted to a failure by Petitioner to comply with its own policy.  Regardless of whether R.M. presumed she had been suspended (P. Ex. 17 at 2), Petitioner acknowledged that it did not immediately suspend her as soon it learned of an allegation of abuse.  CMS Ex. 6 at 4 ("If the suspected perpetrator is an employee . . . immediately suspend the employee pending the outcome of the investigation in accordance with facilities policies."); 6 ("Employees of this facility who have been accused of resident abuse will be suspended from duty until the results of the investigation have been reviewed by the administrator.").  Under Petitioner's policy, suspension was neither optional nor dependent on factors such as the suspected abuser's work schedule or the length of the investigation.

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Petitioner's abuse reporting and investigation policy included procedures to serve the stated purpose of protecting health, safety, and welfare of its residents, with one of the enumerated procedures explicitly requiring Petitioner to suspend any employee who was the subject of an allegation of resident abuse.20   CMS Ex. 6 at 1, 4, 6.  I can only speculate why the policy required suspension of an employee who had been accused of resident abuse, but several common sense reasons seem likely.  For instance, the status of a suspended employee is unambiguous, and Petitioner would be able to plan for staffing coverage on an indefinite basis.21   By ensuring coverage throughout an indefinite period of suspension, a facility would have no temptation to rush an investigation to completion.  Further, a suspension could minimize the opportunity for an alleged abuser to communicate with staff or residents during the pendency of the investigation.  Additionally, and depending on factors such as local law and facility policies, an investigatory suspension may impact the suspended employee's rights to receive certain benefits.  Suspension may also trigger a reporting obligation on the part of the accused employee, such as to a licensing body or another employer.  Further, a suspension would presumably be documented in the employee's personnel file, which could be particularly relevant in the event of a subsequent abuse allegation.22  See P. Ex. 8 at 2.  ("My third step was to look into [R.M.'s] employee file to see if there were any disciplinary actions against her relating to abuse which there were not.").  And finally, enforcing a policy requiring the suspension of an employee broadcasts Petitioner's commitment to enforcing its abuse reporting and investigation policy.

Petitioner's policy as written did not afford the Administrator the discretion to not suspend R.M. during the pendency of the investigation; the suspension was mandated under Petitioner's policy.  CMS Ex. 6 at 4, 6.  The State Operations Manual (SOM) (CMS Pub. 100-07), Appendix PP, 23 which provides guidance to state agency surveyors,

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instructs that facilities must adhere to their own abuse prevention policies.24  As relevant here, the SOM provision pertaining to 42 C.F.R. § 483.12(b)(1)-(3) (Tag F607), provides guidance that a facility must implement its own policies, stating:

INTENT

This regulation was written to provide protections for the health, welfare and rights of each resident residing in the facility.  In order to provide these protections, the facility must develop written policies and procedures to prohibit and prevent abuse, neglect, exploitation of residents, and misappropriation of resident property . . . . In order to ensure that the facility is doing all that is within its control to prevent such occurrences, these policies must be implemented (i.e., carried out), otherwise, the policies and procedures would not be effective. The facility is expected to provide oversight and monitoring to ensure that its staff, who are agents of the facility, implement these policies during the provision of care and services to each resident residing in the facility.  A facility cannot disown the acts of its staff, since the facility relies on them to meet the Medicare and Medicaid requirements for participation by providing care in a safe environment.

SOM, Appendix PP (emphasis added).  The SOM's guidance is consistent with section 483.12(b), which explicitly requires that a facility "develop and implement" its written policies and procedures regarding the investigation and prevention of abuse.

Consistent with the regulatory requirement and the guidance provided in the SOM, a facility must fully implement all aspects of its abuse policies in order to comply with the participation requirement that residents be free from abuse, as required by 42 C.F.R. § 483.12(b).  See Heritage Plaza Nursing Ctr., DAB No. 2829 at 5 (2017), citing Glenoaks Nursing Ctr., DAB No. 2522 at 14 (2013) ("[A] facility may be noncompliant with section 483.13(c) if it 'fail[s] to develop policies or procedures adequate to prevent

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neglect' or fails to implement its anti-neglect policy and procedures.").  By failing to suspend R.M., Petitioner failed to comply with its own policy and was not substantially compliant with section 483.12(b)(1)-(3).

B. Petitioner failed to implement its policy requirement that it interview individuals who may have information relevant to an abuse investigation when it conducted cursory interviews of only four residents who had been under R.M.'s care.

The Administrator and DON reported that they interviewed four residents, although contemporaneous records report only the DON's involvement in these interviews.  P. Exs. 12 at 2; 13 at 3; see P. Ex. 11.  Mr. Cornelius conducted the first resident interview at 2:10 pm, with the interview record not documenting the question(s) asked of that resident, but rather, reporting a general statement that they discussed care provided by R.M.  P. Ex. 11 at 1.  During a second interview conducted at 2:20 pm, the DON narrowly asked if the resident had "any concerns [with] care yesterday on evenings."  P. Ex. 11 at 2.  The third interview record, with a documented time of 2:35 pm, again does not report the precise question (or questions) asked of the resident.  P. Ex. 11 at 3.  And in a fourth interview documented at 2:45 pm, the DON asked the resident if he or she had "any concerns about the care provided . . . by [R.M.]"  P. Ex. 11 at 4.  The record does not document whether the residents were asked probative questions regarding whether they had reason to believe R.M. had ever abused any resident at any time, or if they had any information about an incident the prior evening.  P. Ex. 11.

Despite a requirement that Petitioner maintain documentation of a thorough investigation, the interview records contain little useful information from only four residents.  See 42 C.F.R. § 483.12(c)(2).25   And significantly, Petitioner has not offered documentation supporting its selection of only these four particular residents for interviews.  See Tr. at 72 ("And by restricting to four residents . . . I personally think that they were carefully selected . . . and the questions being asking were not directed to the actual incident.").  Further, and quite significantly, the timeline presented by the Administrator evidences that he had determined that the allegation of abuse had not been substantiated before the interviews of at least two of the four residents had been completed.  Despite the fact that at least two resident interviews had yet to be conducted, the Administrator had already completed his investigation by approximately 2:30 pm and requested that R.M. come in to work "her normal scheduled shift for 3-11 [pm]."  P. Ex. 8 at 2; see P. Ex. 11 at 3 (2:35 pm interview); 4 (2:45 pm interview).

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Petitioner, to date, has not provided any documentation, much less explanation, for how it determined that the aforementioned residents were alert and interviewable, but other residents could not be interviewed.26   See P. Ex. 10.  Petitioner has not offered any evidence, such as documentation or witness testimony, showing how it ascertained that the four interviewed residents were alert and interviewable, whereas other residents could not be asked simple questions such as, "has R.M. ever hurt you" or  "do you feel safe around R.M.?"  I note that even though Petitioner determined Resident # 1's allegation was not credible owing largely to his cognitive impairments, he nonetheless was able to wheel himself to the administrator's office and report his allegation of abuse — it is unclear whether Petitioner would deem a resident such as Resident # 1 to be "non-interviewable" based on the unknown criteria it employed to select interview subjects.

In explaining its choice to interview only four residents and not every resident under R.M.'s care, Petitioner claims that the four residents were the only "alert" and "interviewable" residents assigned to R.M. on the evening of May 4, 2017.27  P. Post-Hrg. Br. at 7; see P. Ex. 10.  Petitioner offered no evidence in support of this claim, such as a list of all residents who received care from R.M. or documentation evidencing that all of these residents were incapable of being interviewed.  Moreover, Petitioner has not even addressed how many total residents were under R.M.'s care on the night of May 4, 2017.

Petitioner's abuse reporting and investigation policy explicitly states that "other residents under the care of the staff member involved" are among those who may have relevant information about an abuse allegation.  CMS Ex. 6 at 5.  Petitioner's policy further states that it "will interview individuals who may have information relevant to the investigation."  CMS Ex. 6 at 5.  Petitioner's policy effectively presumes that it "will interview" other residents who "may" have knowledge of abuse, and the presumption

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should be that, based on this policy, all residents under R.M.'s care should have been interviewed, unless Petitioner's investigation showed why that was not possible.28   CMS Ex. 6 at 5.  Petitioner maintained no such documentation, and has not even argued, even in the absence of such evidence, how many residents received care from R.M. and the reason why each resident could not be interviewed.

Petitioner made a deliberate decision to limit its interviews to a pool of four residents, without documenting its bases for limiting its questioning to a small number of residents.  Further, by limiting this pool, Petitioner may have failed to identify other residents who could have been victims of abuse or were aware of abuse by R.M.  As part of its duty to thoroughly investigate the abuse allegation, Petitioner was required to make the effort to interview, as well as observe, all the residents cared for by R.M. to determine whether any of them had been abused by her.  It may be that no relevant information would have been obtained from some residents, but this does not relieve Petitioner of fulfilling its own requirement to interview all residents who may have had useful information or to otherwise show that interviews with certain residents were not feasible.

C. Petitioner failed to implement its own policy requirement that it interview individuals who may have information relevant to the abuse investigation when it had discussed the allegation with only a limited number of staff, none of whom it has identified by name, and did not interview other staff members who worked with R.M. on her shift.

Mr. Saada reported to the state agency that he interviewed the DSD and SSD; other than brief references in Mr. Saada's May 5, 2017 letter, there is no documentation memorializing these interviews.  P. Ex. 8 at 2 ("I asked the DSD if there was anything out of the ordinary that happened with R.M. that could possibly lead to 'burn out' and she said she knows of nothing at this time."; "Our social worker assessed that [Resident # 1] does feel safe and is confident in our ability to cater to his needs.  He is satisfied with the care being delivered here.").

Mr. Cornelius initially and contemporaneously reported, on May 5, 2017, that "[w]hile passing the nursing station [he] asked the Charge Nurses and Supervisor if [Resident # 1] had reported anything unusual regarding any staff member."  P. Ex. 10.  Mr. Cornelius reported that he received the collective response that Resident # 1 "had not reported any

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thing [sic] unusual happening last night."  P. Ex. 10.  Of note, Mr. Cornelius did not identify the charge nurses or nursing supervisor by name, nor did he report that he made a written record of their discussion, such as an interview record or witness statement.  P. Ex. 10.  Mr. Cornelius did not report that he had any other conversations or interviews with staff members, aside from the Administrator and R.M.  P. Ex. 10.

Mr. Cornelius submitted written direct testimony a year later in May 2018, at which time he reported different information regarding his efforts to investigate the allegation of abuse.  P. Ex. 13; see P. Ex. 10.  Mr. Cornelius reported that the Administrator had requested that he "interview" the charge nurse and nursing supervisor who had worked on the evening of May 4, 2017, and that "the charge nurse and nursing supervisor" reported that they had no concerns about R.M.'s work or behavior and "had not received any complaints or report [of] an unusual occurrence the night before."  P. Ex. 13 at 2.  Not only did Mr. Cornelius elevate what he previously explained was a question in passing to an "interview," but he also reported that he spoke with one charge nurse (as opposed to charge nurses), along with a nursing supervisor, who had worked on the evening of May 4, 2017.  P. Ex. 13 at 2; see P. Ex. 10.  Mr. Cornelius did not identify the charge nurse and nursing supervisor by name, nor did he identify any documents that memorialized these interviews.  See 42 C.F.R. § 483.12(c)(2).

Likewise, Mr. Saada submitted written direct testimony in May 2018 in which he recalled that he "interviewed" the DSD and SSD, both of whom "reported that they had never seen nor heard that [R.M.] abuse [sic], mistreated or acted improper or unprofessional in any way toward another staff member or resident."  P. Ex. 12 at 2; see P. Ex. 8 at 2 (asking the DSD if "there was anything out of the ordinary that happened with R.M. that could possibly lead to 'burn out'" and reporting that the social worker conducted a "psychosocial assessment" and assessed Resident # 1 feels safe, feels Petitioner can meet his needs, and is satisfied with his care).  Like Mr. Cornelius, Mr. Saada did not reference the creation of any documentation memorializing these interviews, such as an interview record or witness statement.

With respect to the SSD and DSD, Petitioner relies on undated declarations that notably contain the following identical statements: "there was nothing out of the ordinary with respect to [R.M.]"; "I have never seen nor heard that [R.M.] abuse [sic], mistreated or acted improper [sic] or unprofessional in any way toward another staff member or resident"; "Based upon my experience with [R.M.], I do not believe that she would abuse a resident, including Resident 1"; and "no resident has reported any complaints or issues to me with respect to [R.M.'s] care or behavior."  P. Exs. 14 at 1-2; 15 at 1-2. 

Notably, neither Mr. Saada nor Mr. Cornelius has at any point reported speaking with other CNAs who worked with R.M. on the same shift.  P. Exs. 8, 9, 12, 13.  The SOD reported that "[t]he Administrator] did not provide an explanation of why he had not interviewed any other CNAs regarding the allegation of abuse."  CMS Ex. 1 at 4.  In fact,

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Mr. Saada admitted to Ms. Alford that he had not obtained any statements from staff members.  CMS Ex. 4 at 5.  Petitioner's abuse reporting and investigation policy required that "[t]he administrator or designated representative conducting the investigation will interview individuals who may have information relevant to the allegation."  CMS Ex. 6 at 5 (emphasis added).  Although Petitioner claims that it "interviewed all individuals that the facility reasonably anticipated would have knowledge" of the allegation, the evidence indicates otherwise.  See Post-Hrg. Reply at 3-4.

Petitioner did not interview any CNAs other than R.M., despite the fact that Petitioner's policy required it to interview individuals who may have information regarding an abuse allegation.  Not only may another CNA have witnessed abuse, but another CNA may also have made behavioral observations while working alongside R.M.  Petitioner claims that "there was no logical reason" to expand the investigation because the alleged abuse was unwitnessed and Resident # 1 and R.M. were the only ones with "direct knowledge" of it.29   P. Post-Hrg. Reply at 4.  Moreover, according to Petitioner, had it received any negative reports about R.M., it would have expanded the interview pool.  P. Post-Hrg. Reply at 3-4.  However, in order to receive negative reports, potentially relevant witnesses need to be interviewed.  Petitioner had a duty to conduct a thorough investigation to determine whether Resident # 1's allegation was substantiated or unfounded.  Instead of interviewing all "individuals who may have information relevant to the allegation," Petitioner restricted its interview pool to a few select individuals and the interview records lack significant detail.

D. Petitioner failed to implement its own policy requirement when it allowed R.M. to return to work before it had completed a thorough investigation.

Based on the timeline of its investigation, Petitioner's claim that it completed the investigation before the start of R.M.'s work shift at 3:00 pm that same day is simply implausible.  See P. Post-Hrg. Br. at 10; P. Post-Hrg. Reply at 2, 5.  Mr. Saada's statement that he decided "around 2:30 PM" that the "allegation could not be substantiated" and called R.M. to let her know "she should come in for her normal scheduled shift for 3-11" is inconsistent with the timeline of his six-step process.  P. Ex. 8 at 2.  And although Petitioner argues that "the investigation ended on or about 2:45 p.m. on May 5, 2017," it cites to no supporting evidence.  P. Post-Hrg. Reply at 4-5.

The evidence shows that the DON conducted the fourth and final resident interview at 2:45 pm on May 5, 2017.  P. Ex. 11 at 4.  Based on this fact alone, Mr. Saada's assertion that he found the abuse allegation unsubstantiated at 2:30 pm is simply inconsistent with the evidence that the investigation remained ongoing at that time.  Moreover, it is obvious that if the DON was questioning a resident at 2:45 pm, then the investigation was still

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ongoing at that point and could not possibly have "ended on or about 2:45 p.m.," as Petitioner now claims.

Further, based on Mr. Saada's own report to the state agency of the six steps he employed to investigate the allegation, Petitioner's investigation could not possibly have ended by 2:30 pm, or even 2:45 pm.  P. Ex. 8.  Mr. Saada reports that the "fourth step" of his investigation "was to interview other residents who are on [R.M's] assignment.  4 residents were interviewed . . . ."  P. Ex. 8 at 2.  Mr. Saada then went on to detail the next two steps of his investigation, stating:

My fifth step was to have the COC carried out, SBAR communicated to the doctor, care-plan for emotional distress developed and place [Resident # 1] under observation.  I had our social worker conduct a visit with him immediately and make a psychosocial assessment . . . . My sixth step was that I looked into [Resident # 1's] chart and noted that he does suffer from diagnoses of Hepatic Encephalopathy."

P. Ex. 8 at 2 (emphasis added).

It is simply implausible that Petitioner was still interviewing residents at 2:45 pm, and then developed a care plan, contacted the physician, arranged for a psychosocial assessment,30 and then completed a chart review, all prior to informing R.M. that she could return to duty for her scheduled shift beginning at 3:00 pm.  It strains credulity to accept that, following the completion of resident interviews, Petitioner would have been able to complete the final two steps of its investigative process prior to 3:00 pm, let alone 2:30 pm.  See P. Ex. 8 at 2.

It is also noteworthy that Petitioner implemented a care plan that required staff to monitor Resident # 1 for "changes in behavior or psychosocial functioning" and "non-verbal indicators of distress" over the course of 72 hours, presumably because the abuse allegation had not definitively been unsubstantiated.31   And concerningly, clinical records

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show that Petitioner first entered clinic notes recording its assessments of Resident # 1 pursuant to the new care plan the following day, May 6, 2017.32   CMS Ex. 5 at 2.  In fact, even though Petitioner avoided a "staffing shortage" by allowing R.M. to work on May 5, 2017, it had not yet entered any clinical assessments of Resident # 1 pursuant to the "POTENTIAL FOR EMOTIONAL DISTRESS CARE PLAN."  CMS Exs. 1 at 4; 6 at 9.  The care plan also directed that Resident # 1 would be seen by a psychologist/psychiatrist and by social services as needed, with goals of Resident # 1 expressing that he felt safe and was free from "psychosocial distress" over the next 72 hours.  CMS Ex. 5 at 6.  Mr. Saada, in his May 10, 2017 statement, acknowledged that Petitioner had imposed a "72-hour observation period."  P. Ex. 8 at 2.

Considering that staff were required to monitor Resident # 1 for 72 hours for any signs of abuse and/or emotional distress, it is simply incredible that Petitioner completed a thorough investigation within approximately three hours.33   And based on the Administrator's rejection of a cognitively impaired resident's allegation of abuse based in part on his "confusion" or lack of understanding, the 72-hour monitoring period, which could yield objective evidence of signs of abuse or emotional distress, was of significant importance.  P. Ex. 8 at 2; see P. Post-Hrg. Br. at 4; CMS Ex. 1 at 2-3; P. Exs. 3 at 1; 6.

Although the Administrator dismissed Resident # 1's allegation based on his cognitive impairment, I point out that such an adverse credibility determination regarding a resident should not be dispositive; the DAB has held that "the salient question is not whether any abuse in fact occurred or whether [a facility] had reasonable cause to believe that any abuse occurred, but whether there was an allegation that facility staff had abused a resident."  Beverly Health Care Lumberton, DAB No. 2156 at 12-13 (2008), quoting

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Cedar View Good Samaritan, DAB No. 1897 at 11 (2003), citing 56 Fed. Reg. 48,843-844 (Sept. 26, 1991) (emphasis added).  The DAB's rationale plainly applies to the context of abuse investigations as well, such that any allegation of abuse must be investigated thoroughly, regardless of whether the facility finds it facially credible or not.  Petitioner's argument amounts to a defense that it need not believe an allegation of abuse raised by a cognitively impaired resident.  To the contrary, the fact that Resident # 1 was cognitively impaired placed a heightened need for Petitioner to thoroughly investigate his allegation of abuse, rather than dismissively treating the allegation as a product of Resident # 1's confusion or misunderstanding.  After all, residents who are unable to raise an allegation of abuse can be even more vulnerable to abuse than alert and interviewable residents, as abusers may target residents who are less likely to come forward.  Petitioner's failure to thoroughly investigate the allegation of abuse, and allowing a suspected abuser to return to work before a thorough investigation had been completed, was both a failure under its own policy and Medicare participation requirements.

Finally, Petitioner attempts to shift the focus to the state surveyor's investigation, arguing that the investigation into the abuse allegation was less thorough than its own, and thus cannot support a finding of noncompliance.  P. Post-Hrg. Br. at 5-9.  With this argument, Petitioner suggests that there were defects in the survey process.  However, the regulations are clear that "[i]nadequate survey performance does not [r]elieve a SNF . . . of its obligation to meet all requirements for program participation" or "[i]nvalidate adequately documented deficiencies."  42 C.F.R. § 488.318(b).  The DAB has addressed a similar argument, stating the following:

The [DAB's] holdings in this area emphasize that, under the governing administrative appeal regulations, the ultimate issue before an ALJ is not how the state agency performed the survey or what process it followed to reach its conclusions, but "whether the evidence as it is developed before the ALJ supports" CMS's independent "finding of noncompliance" under the relevant participation requirements.

Avon Nursing Home, DAB No. 2830 at 11 (2017) (emphasis in original).  The Avon decision also emphasized that "a state agency's survey findings constitute recommendations to CMS."  Id. at 14 (emphasis in original) (citing 42 C.F.R. §§ 488.11, 488.12).  The DAB further explained that "CMS makes its own determination of noncompliance, and decides what enforcement action to take, based on the survey's findings."  Id.  Petitioner may not absolve its own shortcomings through attacks on the survey process.

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Petitioner failed to substantially comply with 42 C.F.R. §§ 483.12(b)(1)-(3) and 483.95(c)(1)-(3).  Not only did Petitioner fail to suspend an alleged abuser, as required by its own policy, but it failed to thoroughly investigate an allegation of abuse, allowing an alleged abuser to return to resident care duties while the alleged victim had not yet completed the 72-hour observation period for signs of abuse or emotional distress.  As such, Petitioner failed to fully implement its abuse reporting and investigation policies and procedures, and did not comply with Medicare participation requirements.

E. A $10,000 PICMP is a reasonable enforcement remedy for Petitioner's noncompliance with 42 C.F.R. §§ 483.12(b)(1)-(3) and 483.95(c)(1)-(3).

If a facility is not in substantial compliance with program requirements, CMS has the authority to impose one or more of the enforcement remedies listed in 42 C.F.R.
§ 488.406, including a per-instance CMP.  In determining whether the per-instance CMP amount imposed against Petitioner is reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f).  42 C.F.R. § 488.438(e)(3).  These factors include:  (1) the facility's history of noncompliance; (2) the facility's financial condition; (3) the factors specified at 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.  42 C.F.R. § 488.438(f).  The absence of culpability is not a mitigating factor.  Id.  The factors at 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.

I consider whether the evidence supports a finding that the amount of the CMP is at a level reasonably related to an effort to produce corrective action by a provider with the kind of deficiencies found, and in light of the above factors.  I am neither bound to defer to CMS's factual assertions nor free to make a wholly independent choice of remedies without regard for CMS's discretion.  See, e.g., Barn Hill Care Ctr., DAB No. 1848 at 21 (2002).  Unless a facility contends that a particular regulatory factor does not support the CMP amount, an ALJ must sustain it.  Coquina Ctr., DAB No. 1860 (2002).

At the time of the survey, the baseline per-instance CMP range was from $1,000 to $10,000 prior to adjustment for inflation.  42 C.F.R. § 488.438(a)(2).  With inflation adjustment, the CMP range at the time of the survey was $2,097 to $20,965.  42 C.F.R. § 488.438(a)(2); 45 C.F.R. § 102.3; 82 Fed. Reg. 9174, 9182 (Feb. 3, 2017) (setting 2017 inflation adjustments).  CMS imposed a $10,000 PICMP for the noncompliance with 42 C.F.R. §§ 483.12(b)(1)-(3) and 483.95(c)(1)-(3), which falls in the middle of the per-instance penalty range.

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Petitioner argues that "the CMP is unreasonable because it is not supported by the factors in 42 C.F.R. § 488.438" and asserts also that it was not culpable for the cited deficiencies.  P. Post-Hrg. Br. at 10.

The record does not include any evidence of a history of noncompliance.  Petitioner has not offered any evidence showing an inability to pay the PICMP.  However, Petitioner's noncompliance was serious, in that it placed all residents at risk of abuse when it failed to thoroughly investigate an allegation of abuse raised by a resident whose claims of abuse were deemed not credible in part because of his cognitive impairments.  Not only did Petitioner fail to comply with its own abuse and reporting investigation policy, but it allowed an alleged abuser to return to work when a thorough investigation had not yet been conducted.  A mid-range $10,000 PICMP is entirely reasonable, if not inadequate, for Petitioner's noncompliance.

IV.  Conclusion

For the foregoing reasons, I conclude that Petitioner was not in substantial compliance with 42 C.F.R. §§ 483.12(b)(1)-(3) and 483.95(c)(1)-(3).The imposition of a $10,000 PICMP is a reasonable enforcement remedy.

1. Although CMS characterizes the August 1, 2017 survey as a complaint survey, it is more precisely described as an abbreviated survey that arose out of a complaint.  See CMS Ex. 1 at 1.
• back to note 1
2. Federal nursing home regulations substantially changed beginning on November 28, 2016.  81 Fed. Reg. 68.688 (Oct. 4, 2016).  In addition, CMS revised the F-tags in November 2017; as relevant here, Tag F226 is now designated as Tag F607.  See List of Revised F-Tags, https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/GuidanceforLawsAndRegulations/Downloads/List-of-Revised-FTags.pdf (last visited November 24, 2020).
• back to note 2
3. Scope and severity levels are used by CMS and state survey agencies when selecting remedies.  The scope and severity level is designated by letters A through L.  Pub. 100-7, State Operations Manual (SOM), chap. 7, § 7400.5.1 (Factors That Must be Considered When Selecting Remedies), "Assessment Factors Used to Determine the Seriousness of Deficiencies Matrix" (table) (Rev. 63, effective Sept. 10, 2010 (applicable at the time of the survey at issue)); see SOM, chap. 7, § 7400.3.1 (Rev. 185, effective November 16, 2018) (current version)); see also 42 C.F.R. § 488.408.  As relevant here, a scope and severity level of "G" indicates an isolated instance of actual harm that is not immediate jeopardy to resident health or safety.
• back to note 3
4. This case was reassigned to me on March 8, 2019.
• back to note 4
5. CMS filed an unopposed motion for leave to file an amended post-hearing brief, which I have granted.
• back to note 5
6. Findings of fact and conclusions of law are in bold and italics.
• back to note 6
7. I reference the SOD's discussion of the April 16, 2017 MDS because neither party submitted that document as an exhibit.  CMS Ex. 1 at 2-3.
• back to note 7
8. Mr. Saada testified that he is "now a Senior Administrator at Country Villa."  P. Ex. 12 at 1.
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9. Because the question of whether the CNA abused Resident # 1 is not an issue before me, I have opted to refer to this CNA by her initials, R.M., in order to protect her privacy.  The SOD refers to R.M. as "CNA 1."  CMS Ex. 1.
• back to note 9
10. Neither party has submitted any records identifying the charge nurse(s) and nursing supervisor who worked at the time of the alleged abuse on the evening of May 4, 2017, and/or the following day at the time Mr. Cornelius passed by the nursing station.  See P. Ex. 10.
• back to note 10
11. In addition to not listing the interview subjects by name, Mr. Cornelius did not report these employees' individual responses to his questions.  Further, Mr. Cornelius did not address how he interviewed these individuals (i.e., in person or by telephone).
• back to note 11
12. Ms. Alford references Petitioner's May 5, 2017 report to the state agency in her declaration; neither party submitted the report as a proposed exhibit.
• back to note 12
13. It is unclear why Mr. Saada referred to Petitioner's residents as "patients."
• back to note 13
14. A day earlier, Mr. Saada informed the surveyor that the CNA "was not suspended after the abuse allegation due to the CNA's minimal wages" and that "it was not right to suspend [her] and this would have resulted in a staffing shortage."  CMS Ex. 1 at 4; see Tr. at 81-82.  Petitioner does not dispute this statement.  P. Post-Hrg. Br. at 2.
• back to note 14
15. Although Mr. Saada and Mr. Cornelius both testified that they interviewed the four residents (P. Exs. 12 at 3; 13 at 3), and Mr. Saada's May 10, 2017 letter implied he had interviewed the residents (P. Ex. 8 at 2), the DON reported that he had interviewed the residents and provided a summary of his interviews to Mr. Saada.  P. Ex. 10.  Further, the interview records list only the DON as the interviewer and contain the DON's signature in the place reserved for the "Administrator Signature."  P. Ex. 11.
• back to note 15
16. Once again, Mr. Saada, in his May 2018 written testimony, reported new details that were not previously reported in his May 2017 letter or are documented in contemporaneous records.  Specifically, Mr. Saada reported that he "interviewed every individual that would have knowledge of the allegation," and that he "interviewed staff members and residents that may have knowledge regarding this allegation."  P. Ex. 12 at 3.  However, Mr. Saada's May 10, 2017 letter detailing his investigation reports that he discussed the abuse allegation with the DON, DSD, DSS (social worker), and R.M., and that four residents were interviewed.  P. Ex. 8 at 1-2.  Further, although Mr. Saada testified that he "requested that the DON interview the charge nurse that worked that evening," and that the DON "reported that both the charge nurse and supervising nurse had no concerns about [R.M.]'s work and her behavior and no unusual occurrences were reported from the May 4, 2017 evening shift" (P. Ex. 12 at 3), the DON's May 2017 letter indicates that he only questioned the current shift's charge nurses and nursing supervisor in "passing" about whether Resident # 1 had discussed the incident with them.  P. Ex. 10.
• back to note 16
17. Petitioner has not offered any documentation showing that Resident # 1 had a "psychosocial assessment" during the course of the three-hour investigation, nor has it submitted documentation showing that the "psycho-social support session" took place prior to the conclusion of the investigation.  Mr. Guerrero recorded his notes from the May 5, 2017 psychosocial session at the same time he recorded his notes from a May 7, 2017 session, and vaguely reported that the May 5, 2017 session occurred sometime in the "afternoon."  P. Ex. 2.  Likewise, Mr. Guerrero did not report the time of the May 5, 2017 session in his testimony.  P. Ex. 14.
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18. At the conclusion of his May 5, 2017 letter, Mr. Saada reported, "as I write this letter . . . [Resident # 1] had just called R.M. over to him and asked if she could be his nurse again."  P. Ex. 8 at 3; see P. Ex. 12 at 4.
• back to note 18
19. In discussing this requirement in Maysville, the DAB cited the regulation in effect at that time, 42 C.F.R. § 483.13(c), which is substantially similar to the current version found at 42 C.F.R. § 483.12(b).
• back to note 19
20. There is no regulatory requirement that a facility suspend an employee accused of abuse.  Further, there is no regulatory requirement that a suspension be without pay.
• back to note 20
21. The Administrator explained to the surveyor that the suspension of R.M. would have caused a "staffing shortage."  CMS Ex. 1 at 4; see P. Post-Hrg Br. at 2.
• back to note 21
22. The record does not indicate that Petitioner had made coverage arrangements for R.M.'s 3:00 pm shift.  To the contrary, the Administrator reported that after he completed the investigation at approximately 2:30 pm, he directed R.M. to report for her scheduled shift.  P. Ex. 8 at 2.
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23. Appendix PP of the SOM has been revised several times since the survey; the current version (Revision 173, dated November 22, 2017) can be found at https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/som107ap_pp_guidelines_ltcf.pdf (last visited Nov. 24, 2020).
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24. With respect to the SOM, Petitioner argues that the Administrator's actions were consistent with "[t]he intent of Section 483.12(c)," which is to "prevent further abuse . . . from occurring while the investigation is in progress."  P. Post-Hrg. Br. at 9 (citing SOM, App. PP at Tag F610).  However, neither Tag F610 (to include its predecessor, Tag F225) nor its corresponding regulation, 42 C.F.R. § 483.12(c)(2)-(4), were cited as a basis for a deficiency (CMS Exs. 1, 2), and I declined to add additional deficiencies that were not a basis for the remedy imposed.
• back to note 24
25. While a deficiency under 42 C.F.R. § 483.12(c)(2) is not at issue, I note that the investigation contains scant documentation; the Administrator largely based his investigative findings on verbal reports rather than documentary evidence.
• back to note 25
26. In describing the differences between "interviewable" and "non-interviewable" residents, Ms. Alford testified:



"interviewable" residents are those with whom "[y]ou're able to have a conversation . . . ask questions and they'll respond back," but non-interviewable residents are those who "can't speak up, can't talk, or the ones who are confused . . . both short-term and long-term concerns."

Tr. at 70.  Ms. Alford testified that the non-interviewable residents under R.M.'s care also needed to be assessed to determine whether they had suffered any abuse.  Tr. at 71-72.
• back to note 26
27. Neither Mr. Saada nor Mr. Cornelius addressed the mental status of the interviewed residents; for example, of the interviewed residents, no information has been provided to establish why Petitioner determined that these four residents could be interviewed.
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28. Petitioner has not stated how many residents R.M. cared for on May 4, 2017, but does not dispute that she cared for more than four residents.  According to Ms. Alford, it would be "highly unusual for a CNA to care for only four residents" on any shift, and a CNA working a night shift may have "slightly more" than 12 to 13 residents to care for.  Tr. at 69, 74.  I note that although the alleged abuse occurred at 9:30 pm, it would have occurred on the evening shift rather than the night shift.
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29. One cannot presume an incident was unwitnessed if potential witnesses have not been interviewed.  Even if another CNA was not present in the room, he or she may have been able to hear or see the incident from a hallway or adjacent room.
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30. As previously noted, the record evidences that Resident # 1 had a "psycho-social support session" at some point during the afternoon of May 5, 2017.  P. Ex. 2.
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31. While Resident # 1 continued to be monitored for abuse, R.M. was still allowed to work on his floor.  In fact, Mr. Saada acknowledged that Resident # 1 was able to communicate with her.  P. Ex. 8 at 3.  Petitioner not only allowed an employee who was suspected of abuse to work in proximity to a resident who continued to be monitored for signs of abuse, but it created a situation in which the alleged abuser had an opportunity to influence Resident # 1 during the 72-hour observation period.
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32. For example, Petitioner's delay in entering clinical notes documenting staff observations could have inhibited the efforts of the Administrator, DSS, or other staff to monitor whether Resident # 1 exhibited emotional distress or signs of abuse.
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33. Nothing in the record indicates that Resident # 1 was confused at the time of the alleged incident or when he reported it the following day.  A social services initial assessment, performed in close proximity to Resident # 1's April 10, 2017 admission, reported that he was alert and oriented, had no memory impairment, had clear speech, could express his needs, and was able to understand others.  CMS Ex. 5 at 7-9.  On May 3 and 4, 2017, nurses documented in progress notes, respectively, that he was "alert and oriented" and "alert and oriented x 3, able to verbalize needs to staff."  CMS Ex. 5 at 1, 4.  The May 5, 2017 "psycho-social support session" did not indicate any confusion; in fact, the social worker accepted, at face value, Resident # 1's claim that he felt safe and comfortable.  It is troubling that Mr. Saada discredited Resident # 1's allegation of abuse due to his cognitive impairment, yet unhesitatingly accepted his statements that he felt safe and wished for R.M. to resume caring for him.  P. Ex. 8 at 2-3.
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