Sweet Brook of Williamstorn Rehabilitation & Nursing Center, DAB CR5905 (2021)

DECISION

In this case, we consider yet again a long-term-care facility’s responsibility to protect its residents from abuse inflicted by other residents.

Petitioner, Sweet Brook of Williamstown Rehabilitation & Nursing Center, is a long‑term-care facility, located in Williamstown, Massachusetts, that participates in the Medicare program.  Following a complaint investigation survey, completed March 12, 2019, the Centers for Medicare and Medicaid Services (CMS) determined that the facility was not in substantial compliance with Medicare program requirements and that its deficiencies posed immediate jeopardy to resident health and safety.  CMS imposed a civil money penalty (CMP) of $8,671 per day for 23 days of substantial noncompliance that posed immediate jeopardy to resident health and safety. 

Petitioner appeals, and CMS has moved for summary judgment, which Petitioner opposes.

For the reasons discussed below, I find that no material facts are in dispute and that CMS is entitled to judgment as a matter of law.  The undisputed evidence establishes that, from

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March 8 through 30, 2019, the facility was not in substantial compliance with Medicare program requirements, and that its deficiencies posed immediate jeopardy to resident health and safety; the penalties imposed are reasonable. 

In the alternative, because there are no witnesses to cross-examine, even if summary judgment were not appropriate, an in-person hearing would serve no purpose, and the case could be resolved based on the written record. 

Background

The Social Security Act (Act) sets forth requirements for skilled nursing facilities to participate in the Medicare program and authorizes the Secretary of Health and Human Services to promulgate regulations implementing those statutory provisions.  Act § 1819.  The Secretary’s regulations are found at 42 C.F.R. Part 483.  To participate in the Medicare program, a skilled nursing facility must maintain substantial compliance with program requirements.  To be in substantial compliance, a facility’s deficiencies may pose no greater risk to resident health and safety than “the potential for causing minimal harm.”  42 C.F.R. § 488.301. 

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

Here, from February 5 through March 12, 2019, surveyors from the Massachusetts Department of Public Health (state agency) conducted the facility’s annual recertification survey.  Based on the survey findings, CMS determined that the facility did not comply substantially with two program requirements:

• 42 C.F.R. § 483.12 (Tag F600 – freedom from abuse and neglect) cited at scope and severity level K (pattern of noncompliance that poses immediate jeopardy to resident health and safety); and
• 42 C.F.R. § 483.21(b)(1) (Tag F656 – comprehensive, person-centered care planning), cited at scope and severity level K.

CMS Exs. 1, 2. 

Following a revisit survey, CMS determined that the facility returned to substantial compliance on May 3, 2019.  CMS Ex. 3.

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CMS imposed against the facility a CMP of $8,671 per day for 23 days of immediate jeopardy (March 8–30, 2019), for a total penalty of $199,433.  CMS Ex. 3. 

Petitioner timely requested review.  CMS filed a motion for summary judgment with supporting brief (CMS Br.) and 11 exhibits (CMS Exs. 1-11).  Petitioner filed a brief in opposition (P. Br.) with 56 exhibits (P. Exs. 1-56).  Petitioner objected to CMS’s proposed witness and to all of its exhibits (P. Objections).  CMS filed a reply in which it responded to those objections (CMS Reply). 

Witnesses.  CMS listed one potential witness, the lead surveyor, but did not provide her written declaration, explaining that she has been on medical leave and not available.  CMS indicated that, if necessary, it would obtain her testimony when she returned to the office.  Petitioner objected, arguing that the delayed filing violates my initial order and prejudices Petitioner in some unspecified way.1   Despite its objections to CMS presenting the surveyor as a witness and, without explaining the paradox, Petitioner lists her among its own witnesses.  Petitioner also lists unidentified state agency personnel.

Both my prehearing order and Civil Remedies Division Procedures require the parties to identify their witnesses.  Standing Order at 3 (¶ 4c(4)); CRDP ¶ 16a.  The untimely identification of a witness is prohibited.  CRDP ¶ 16c (“A party must identify all of its proposed witnesses with its prehearing exchange or at another time the ALJ directs.”).  I will not allow Petitioner to call as a witness any individual who has not been specifically named in its prehearing exchange.  Even if an in-person hearing were required, which it is not, the unnamed state agency personnel would not be testifying. 

My prehearing order also directs the parties to submit the written direct testimony of all proposed witnesses.  Standing Order at 3 (¶ 4c(4)); see CRDP ¶ 19(b).  Petitioner indicates that it is unable to offer a written declaration from the lead surveyor because it has no control over her (not to mention that she has not even been available to CMS).  Because it has no control, Petitioner cannot produce the witness unless I subpoena her.  But I am not be able to issue a subpoena unless Petitioner meets the criteria set forth in the regulations.  These include:  identifying the witnesses (which also eliminates all of the unidentified employees) and specifying the “pertinent facts the party expects to establish by the witnesses . . . and [indicating] why those facts could not be established without use of a subpoena.”  42 C.F.R. § 498.58(c) (emphasis added). 

Petitioner cannot satisfy these criteria.  According to Petitioner, the surveyor would “testify to her observations made during the course of the survey and those that allegedly support the allegations.”  P. Proposed Witnesses.  But this case does not turn on one surveyor’s “observations.”  As the statement of deficiencies (CMS Ex. 2) and CMS’s

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briefs set out, the underlying facts derive almost exclusively from the facility’s own documents, which Petitioner obviously already has.  Beyond that, the statement of deficiencies mentions surveyor interviews with facility employees.  Again, because these are the facility’s own employees, Petitioner is well able to establish any pertinent facts surrounding these interviews, without testimony from the surveyor.  In any event, as the following discussion establishes, the parties do not disagree on any material facts, and the matter can be decided on summary judgment.

If this matter were not resolved on summary judgment, the decision would be decided based on the written record.  As discussed above, no surveyors would be testifying.  This leaves two witnesses:  the facility administrator, Sharon LeBlanc (P. Ex. 1), and a physician, Barry Lobovits, M.D., who was the primary care physician for some of the facility residents (P. Ex. 2).  CMS has not asked to cross-examine either of these witnesses.  See Standing Order at 5 (¶ 10) (indicating that a hearing to cross-examine witnesses is necessary only if a party files admissible, written direct testimony, and the opposing party asks to cross-examine).  Thus, an in-person hearing would serve no purpose, and the case could also be decided based on the written record.

Exhibits.  Petitioner has submitted 56 exhibits (P. Exs. 1-56).  CMS has not objected to my admitting them.

CMS has submitted 11 exhibits (CMS Exs. 1-11).  These consist of:

• CMS’s notice letters (CMS Exs. 1, 3, and 4);
• the statement of deficiencies, CMS Form 2567 (CMS Ex. 2);
• a copy of the facility’s ASPEN (automated survey process environment) form, detailing the facility’s survey history (CMS Ex. 11); and
• the facility’s own documents, consisting of excerpts from residents’ medical records (CMS Exs. 5-10). 

Petitioner objects to my admitting all of CMS’s exhibits, arguing that “there is no evidentiary foundation for the consideration on a motion for summary judgment of CMS’s proposed exhibits, including the Form 2567[,] on which CMS grounds its case.” 
The absence of testimony, in Petitioner’s view, “precludes CMS from establishing that no genuine issues of material fact exist, rendering summary judgment inappropriate.”  Petitioner’s Objections and Motion to Preclude CMS’s Proposed Witness and to Strike CMS’s Proposed Exhibits at 3 (Sept. 23, 2019).

Petitioner’s suggestion that a motion for summary judgment must be accompanied by a written declaration is simply incorrect.  Under Rule 56 (a) and (b), Fed. R. Civ. P., either

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party may move for summary judgment “with or without supporting affidavits.”  The moving party is not required to submit affidavits or declarations in support of summary judgment, and none are necessary to establish material facts that the record shows are not in dispute.  Celotex Corp. v. Catrett, 477 U.S. 317, 323-324 (1986) (“[W]e find no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent’s claim.”); Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (“The movant is not required by the rules to support its motion with affidavits or other similar materials negating the opponent’s claim.”); Ill. Knights Templar Home, DAB No. 2274 at 6 (2009); Guardian Health Care Ctr., DAB No. 1943 at 13 (2004).   

Although I must consider all proffered evidence to determine whether it creates a material fact in dispute, in deciding this case on summary judgment, I need not rule on the parties’ objections to exhibits.  Lilia Gorovits, M.D., P.C., DAB No. 2985 at 3 n.4 (2020), aff’d, Gorovits v. Becerra, 20-1850 (E.D. Pa. May 17, 2021); Ill. Knights Templar Home, DAB No. 2274 at 6-7.

In any event, were I to decide this case based on the written record, CMS’s exhibits would be admissible.  For the most part, they are Petitioner’s own documents – its residents’ medical records.  In addition, CMS and the state agency provided the facility with the statement of deficiencies and with the state and federal notice letters.  The facility is also fully aware of its own survey history.  Had it any doubts about the authenticity of any of CMS’s documents, it could have raised specific objections.  It has not done so.  See Wills Eye Hosp., DAB No. 2743 at 7 n.3 (2016) (observing, in a different context, that the petitioner controlled and was free to submit relevant information about its history, operations, or other circumstances). 

In fact, Petitioner concedes that the state agency surveyed the facility between February 5 and March 12, 2019, and that CMS Ex. 2 is a copy of the resulting survey report form.  P. Br. at 2-3.  It also cites extensively to CMS’s exhibits in support of its own factual assertions.  See P. Br. at 4 (citing CMS Ex. 5 to establish a resident’s emergency hospitalization); P. Br. at 6 (citing CMS Ex. 8, a resident’s admission record); P. Br. at 8 (citing CMS Ex. 10 to establish a resident’s admission date); P. Br. at 18 (citing CMS Ex. 2 to establish the degree of a resident’s impairment); P. Br. at 9, 19 (citing CMS Ex. 10, a resident’s medical record, to establish the contents of his care plan).  And, in some instances, its own exhibits duplicate CMS’s.  Compare, e.g., CMS Ex. 8 at 7 with P. Ex. 33; CMS Ex. 8 at 10 with P. Ex. 22.2

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Moreover, under the regulations that govern these proceedings, I have broad discretion to admit evidence and am not bound by the federal rules of evidence.  42 C.F.R. § 498.61.  This means, for example, that I may admit hearsay “consistent with procedural ‘integrity and fundamental fairness.’”  Omni Manor Nursing Home, DAB No. 1920 (2004), quoting Richardson v. Perales, 402 U.S. 389, 410 (1971). 

I am required to “inquire[] fully into all of the matters at issue” and to admit any documents that are relevant and material (42 C.F.R. § 498.60(b)), which necessarily includes the statement of deficiencies.  The statement of deficiencies sets out the survey findings on which CMS based its enforcement actions that are the subject of appeal and, for that reason, is “unquestionably relevant and material evidence.”  Avalon Place Trinity, DAB No. 2819 at 38 (2017); see 42 C.F.R. § 498.60(b)(1); Guardian Health Care Ctr., DAB No. 1943 at 12 (indicating that the statement of deficiencies is a “contemporaneous record of the survey agency’s observations and investigative findings.”).  And the facility records, which describe incidents of abuse, the residents involved, and the facility’s response are all relevant and material, as is evidence of the facility’s history.

Because they are relevant and material, and Petitioner proffers no argument or evidence that challenges their authenticity, CMS’s exhibits are admissible.  As an alternative to granting summary judgment, I admit into evidence CMS Exs. 1-11 and P. Exs. 1-56. 

Issues

I first consider whether summary judgment is appropriate. 

On the merits, the issues before me are:

1. From March 8-30, 2019, was the facility in substantial compliance with Medicare program requirements;
2. If the facility was not then in substantial compliance, did its deficiencies pose immediate jeopardy to resident health and safety; and
3. If the facility was not in substantial compliance, is the penalty imposed – $8,671 per day – reasonable? 

Discussion

1. CMS is entitled to summary judgment because the undisputed evidence establishes that facility staff did not adequately monitor its aggressive residents to prevent them from attacking others, did not adequately monitor its vulnerable residents to protect them from abuse, and did not properly modify resident care

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plans when listed interventions proved ineffective.  These failings put the facility out of substantial compliance with 42 C.F.R. §§ 483.12 and 483.21(b).3

a)  Summary judgment.  Summary judgment is appropriate if a case presents no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.  Bartley Healthcare Nursing and Rehab., DAB No. 2539 at 3 (2013) (citing Celotex Corp. v. Catrett, 477 U.S. at 322-25); Ill. Knights Templar Home, DAB No. 2274 at 3-4, and cases cited therein.

The moving party may show the absence of a genuine factual dispute by presenting evidence so one-sided that it must prevail as a matter of law or by showing that the non-moving party has presented no evidence “‘sufficient to establish the existence of an element essential to [that party’s] case, and on which [that party] will bear the burden of proof at trial.’”  Livingston Care Ctr. v. U.S. Dep’t of Health & Human Servs.,388 F.3d 168, 173 (6th Cir. 2004) (quoting Celotex Corp. v. Catrett, 477 U.S. at 322).  To avoid summary judgment, the non-moving party must then act affirmatively by tendering evidence of specific facts showing that a dispute exists.  Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.11 (1986); Vandalia Park, DAB No. 1939 (2004); Lebanon Nursing & Rehab. Ctr.,DAB No. 1918 (2004); Crestview Parke Care Ctr., DAB No. 1836 at 5 (2002). 

General denials do not satisfy a party’s burden to identify specific evidence demonstrating a material fact is in dispute.  Shah v. Azar, 920 F.3d 987, 995 (5th Cir. 2019); Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994); Pearsall Nursing & Rehab. Ctr. - North, DAB No. 2692 at 7 (2016) (affirming summary judgment where Petitioner “refers broadly to ‘the evidence presented in [its] response’” but “identifies no specific evidence relevant to the material facts . . . .”); Ill. Knights Templar, DAB No. 2274 at 4 (finding that the non-moving party must furnish admissible evidence of a dispute concerning a material fact); Livingston Care Ctr., DAB No. 1871 at 5 (2003), aff’d, Livingston Care Ctr. v. U.S. Dep’t of Health & Human Servs.,388 F.3d 168.  The non-moving party must also show more than “some metaphysical doubt as to the material facts.”  W. Tex. LTC Partners, Inc., DAB No. 2652 at 6 (2015), aff’d, W. Tex. LTC Partners, Inc. v. U.S. Dep’t. of Health & Human Servs., 843 F.3d 1043 (5th Cir. 2016); 1866ICPayday.com L.L.C., DAB No. 2289 at 3 (2009) (quoting Matsushita Elec. Indus. Co., 475 U.S. at 587).

In examining the evidence for purposes of determining whether summary judgment is appropriate, I must draw all reasonable inferences in the light most favorable to the non-moving party.  Brightview Care Ctr., DAB No. 2132 at 2, 9 (2007); Livingston Care Ctr., 388 F.3d 172; Guardian Health Care Ctr., DAB No. 1943 at 8 (2004); see also

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Brightview, DAB No. 2132 at 10 (entry of summary judgment upheld where inferences and views of non-moving party are not reasonable).  However, drawing factual inferences in the light most favorable to the non-moving party does not require that I accept the non-moving party’s legal conclusions.  W. Tex. LTC Partners, DAB No. 2652 at 6-7, 14‑15; cf. Guardian Health Care, DAB No. 1943 at 11 (“A dispute over the conclusion to be drawn from applying relevant legal criteria to undisputed facts does not preclude summary judgment if the record is sufficiently developed, and there is only one reasonable conclusion that can be drawn from those facts.”); see Green Valley Healthcare & Rehab. Ctr., DAB No. 2947 at 8 (2019), quoting Johnson v. Perez, 823 F.3d 701, 705 (D.C. Cir. 2016) (noting that a genuine factual dispute does not exist “when a putatively disputed body of evidentiary material could not, even assuming a sympathetic factfinder, reasonably support a finding crucial to the nonmoving party’s legal position.”). 

Summary judgment applied to administrative review in Medicare cases.  It is well‑established that an administrative law judge is empowered to decide a case on a motion for summary judgment, without an evidentiary hearing.  Shah v. Azar, 920 F.3d at 996, citing Cedar Lake Nursing Home v. U.S. Dep’t of Health & Human Servs., 619 F.3d 453, 457 (5th Cir. 2010); see Fal-Meridian, Inc. v. U.S. Dep’t of Health & Human Servs., 604 F.3d 445, 449 (7th Cir. 2010).4  

There seems to be some confusion about applying such well-founded principles of civil litigation to these proceedings, with some suggesting that, to do so, denies a party a fundamental right.  In one succinct observation, Judge Posner of the Seventh Circuit Court of Appeals shattered this misconception:  “All it means for a decision to be based on a grant of summary judgment is that there are no issues that would benefit from being resolved in an evidentiary hearing.”  Fal-Meridian, 604 F.3d at 449 (emphasis added). 

Here, Petitioner lists three issues, which it characterizes as material facts in dispute: 

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• Whether the facility knew or should have known of the potential for aggressive behavior by some of its residents;
• Whether the facility implemented all reasonably necessary measures to prevent aggressive behavior by those residents; and
• Whether the facility’s aggressive residents had sufficient cognitive capacity to form the requisite intent to commit harm to substantiate a finding of abuse.

P. Br. at 22.  These do not present material facts in dispute that preclude my entering summary judgment. 

• First, where, as here, the facility’s assessments, care plans, and progress notes, are replete with descriptions of a resident’s aggressive behavior, even the most sympathetic fact-finder could not conclude that the facility did not know or could not have known about the resident’s potential for aggressive behavior;
• Second, whether the facility acted reasonably is not a fact, but a conclusion; and
• Third, whether the residents intended to commit harm is irrelevant.  The regulation does not require such intent; it requires that the individual acted deliberately.  42 C.F.R. § 488.301. 

Moreover, while relevant, the facility’s efforts to control the behavior of its most aggressive residents is not material.  Even if I accepted that the facility took all reasonable steps to control those behaviors (which I do not), there is a flip side to that problem.  Recognizing that several of its residents posed a serious threat to the safety of others, and that medical and psychiatric interventions had not prevented their aggressive and abusive behaviors, it was incumbent on the facility to develop effective strategies for keeping safe its other residents, particularly those whose behaviors made them especially vulnerable.  Petitioner has not even argued that it did so. 

b)  Program requirements:  42 C.F.R. § 483.12 (Tag F600).  The Act requires that facility residents be free from “physical or mental abuse, corporal punishment, [and] involuntary seclusion . . . .”  Act § 1819(c)(1)(A)(ii).  Consistent with that provision, the regulation governing abuse mandates that each resident has the right to be free from abuse, neglect, misappropriation of resident property, and exploitation.  42 C.F.R. § 483.12.  Abuse is defined as “the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.”  Instances of abuse, “irrespective of any mental or physical condition,” cause harm, pain, or mental anguish.  Abuse includes verbal, sexual, physical, and mental abuse.  “Willful”

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means that the individual acted deliberately, not that the individual must have intended to inflict injury or harm.  42 C.F.R. § 488.301.

In order to keep residents free from abuse, facilities must develop and implement written policies and procedures that prohibit and prevent abuse, neglect, and exploitation of residents.  42 C.F.R. § 483.12(b)(1).  It must establish policies and procedures to investigate allegations of abuse.  42 C.F.R. § 483.12(b)(2).  The facility must ensure that all alleged violations involving abuse are reported immediately, but not later than two hours after the allegation is made, to the facility administrator and appropriate state officials.  42 C.F.R. § 483.12(c)(1).5

The facility must have evidence that all alleged violations are thoroughly investigated, and it must prevent further potential abuse while the investigation is in progress.  The results of all investigations must be reported to the administrator (or designated representative) and to the appropriate state officials within five working days of the incident.  If the violation is verified, the facility must take appropriate action.  42 C.F.R. § 483.12(c)(2), (3), and (4).

42 C.F.R. § 483.21(b) (Tag F656).  The facility must develop and implement a comprehensive, person-centered care plan for each resident, consistent with the resident’s rights.  The plan must include measurable objectives and time-frames to meet the resident’s medical, nursing, and mental and psychosocial needs that are identified in the comprehensive assessment.  The plan must describe, among other items:  1) the services that are to be furnished to attain or maintain the resident’s highest practicable physical, mental, and psychosocial well-being; and 2) any services that would otherwise be required but are not provided due to the resident’s exercise of rights, including the right to refuse treatment. 

The comprehensive care plan must be developed within seven days after the comprehensive assessment is completed.  It must be prepared by an interdisciplinary team that includes, but is not limited to, the attending physician, a registered nurse with responsibility for the resident, a member of the food and nutrition services staff, the resident and representative (to the extent practicable), and other appropriate staff and professionals, as determined by the resident’s needs or requested by the resident.  The plan must be reviewed and revised by the interdisciplinary team after each assessment, including quarterly review assessments.  

c)  The residents.  As Petitioner acknowledges, the facility housed “a challenging population,” which included residents suffering from significant mental health disorders with behavioral issues.  P. Ex. 1 at 1-2 (LeBlanc Decl. ¶ 4); P. Ex. 2 at 1-2 (Lobovits

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Decl. ¶ 3).  Some of its residents were aggressive and violent.  Others exhibited behaviors that made them especially vulnerable to attack.  Petitioner repeatedly insists that the multiple attacks were unpredictable, but the undisputed evidence establishes otherwise.  Although staff might not always have been able to anticipate exactly when an aggressive resident would attack another, there were often identifiable triggers, which staff should have observed and responded to.  In any event, where an individual has a history of violent, aggressive behavior and repeatedly attacks others, the facility should anticipate that the aggression will reoccur and must take all reasonable steps to protect its vulnerable population. 

Resident 2 (R2).  R2 was a 68-year-old man at the time of the survey, admitted to the facility on April 5, 2018, suffering from schizophrenia, vascular dementia, and a cognitive communication deficit.  He had a history of unprovoked aggression toward residents and staff.  CMS Ex. 5 at 1-2; CMS Ex. 6 at 34.

Petitioner claims that R2 had no behavioral issues at the time of his admission, citing an occasional nursing note from his prior hospitalization.  P. Br. at 3, citing P. Ex. 3 at 2, 4, 5.  I accept that, while hospitalized, R2 did not attack anyone, and, on occasion, staff noted that he had not exhibited behavioral issues on a particular shift, specifically:

• at 6:28 on March 26, 2018, staff reported “no behavior issues” (in fact, he slept for six and a half hours that shift);
• at 10:12 a.m. on March 27, staff reported “no behavioral issues”;
• at 10:45 p.m. on March 29, “no behaviors to note”;
• at 6:39 a.m. on March 30, “no behavior issues”; and
• at 8:49 a.m. on March 31, “no behavior issues.” 

P. Ex. 3 at 2, 4, 5.  

However, no fact-finder – even the most sympathetic – would conclude, based on this handful of hospital entries, that the facility could not have anticipated that R2 had behavior problems.  Indeed, virtually no resident, no matter how impaired, would be expected to exhibit problem behaviors all day, every day.  The fact that hospital staff specifically reported the absence of behaviors suggests that they were monitoring his behavior.  Why do so unless behavior is an issue?  And the hospital’s progress notes also establish that, in fact, R2 had behavior problems (although they did not include assaulting other residents or staff):

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• On March 26, 2018, R2 is described as exhibiting “poor insight and judgment,” and demonstrating “poverty of thought.”  He has “akathisia, stepping in place while talking.”6
• Although the March 27 entry, concludes “no behavioral issues,” it also describes him as “restless, walking the halls” and “repetitive in speech.” 
• On the evening of March 27, R2 is described as “flat, minimal, and restless.”  Following his shower, he was observed standing in the hall, naked, stating “I need clothes.” 
• During the afternoon of March 31, staff describe R2 as “hyperactive,” ambulating in the hall throughout the day, with “increased verbalization of [his] preoccupation with food.”  He was hugging other patients and was observed following a female patient into her room for a hug. 

P. Ex. 3 at 1, 2, 5.

The undisputed evidence also establishes that the facility well understood that R2 had behavior problems, because it identifies them in his care plans.  His April 2018 behavior care plan describes him as verbally abusive and wandering.  Its goal is that he will not harm himself or others secondary to his behaviors.  Multiple interventions are checked off on the plan form:  report to physician changes in new or acute behavioral status; anticipate care needs and provide them before the resident becomes overly stressed; reinforce positive behavior; address wandering behavior by walking with or attempt to redirect from inappropriate area; engage in divisional (sic) activity; administer and monitor the effectiveness and side effects of medications as ordered; investigate/monitor need for psychological/psychiatric support; provide services, if desired and as ordered by the physician; invite and encourage activities programs consistent with established interests; monitor behavior episodes and attempt to determine underlying cause:  consider location, time of day, person involved, etc.; intervene, as needed, to protect the rights and safety of others; approach in a calm manner; divert attention, remove from situation and take to another location, as needed.  P. Ex. 4. 

Similarly, R2’s mood plan indicates that he was subject to alteration in mood related to his “neurocognitive disorder with behavioral disturbances.”  Again, the plan checks off a long list of interventions:  approach resident warmly and calmly; establish trusting relationship through regular one-on-one visits; encourage resident to discuss feelings of sadness, anxiety, loss, or frustration; document symptoms and any change in mood or behavior; administer medication as ordered; monitor response and potential side effects

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and report; assist resident to identify triggers or events that may precipitate symptoms; encourage resident to attend and participate in activities of interest for socialization and diversion; refer to psych services as needed; and provide one-on-one supportive visits during stressful times.  P. Ex. 5. 

Evidence is sparse as to which, if any, of these interventions were actually implemented.  If implemented, they plainly did not prevent R2 from harming others (see below for descriptions of the incidents). 

Ultimately, the issue of whether R2 exhibited behavior disorders immediately prior to or at the time of his admission is not material.  By August 2018, the facility was unquestionably well aware of R2’s potential for “abusive/aggressive/ assaultive behavior” toward other residents.  Staff reported it in his care plan and added some additional interventions.  P. Ex. 6.  The record includes no details of the incident or incidents that precipitated staff’s open acknowledgment of R2’s abusive behavior.  Neither party produced an incident report or evidence of any investigation.  A physician’s note, dated August 24, 2018, referred to R2’s recent “altercation” with another resident (which, he opines, might have been associated with R2’s complaints of lower back pain).  The physician, Barry J. Lobovits, M.D., wrote that the facility would “attempt to avoid overstimulation,” which “may promote mood and behavioral deregulation.”  The record is silent as to how the facility would accomplish this.  In addition, according to Dr. Lobovits, R2 would be reoriented frequently; would be offered “the production of the therapeutic milieu”; and would be monitored closely.  P. Ex. 7. 

An October 23, 2018 nurse’s note refers to R2’s “increase in behaviors.”  He struck a staff member “hard” on the back, knocking him off his feet, and then continued walking.  He was striking other residents.  The LPN reported these incidents to the supervisor.  Although the note indicates the staff would “continue to monitor/supervise,” a subsequent report indicates that he struck a nurse on a different unit, which suggests that any supervision was inadequate.  Staff called his physician, who increased his medications.  P. Exs. 9, 10.

A new care plan, dated November 2018, identifies R2’s problem behaviors:  potential for alterations in behavior; socially inappropriate, disruptive behavior; verbal abuse; and physical abuse related to his schizophrenia, neurological disorder, behavioral disturbances, and dementia.  The plan’s goal:  that R2 would not harm himself or others for 90 days.  The listed interventions were:  monitor for swearing and brisk pacing; keep resident safe and do not attempt to provide care while he is combative; re-approach when calm; assess behavior, attempt to redirect and educate; praise appropriate behavior; “determine need for PRN, administer per order”; monitor for effectiveness of medication; notify family, physician, and psych services of changes in behavior; and offer small meals and extra fluids when – the rest of that intervention is cut off.  P. Ex. 11 at 1.

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Resident 3 (R3).  R3 was a 62-year-old woman, admitted to the facility on September 22, 2016.  She suffered from dementia, a major depressive disorder, a cognitive communication deficit, and obsessive-compulsive disorder.  CMS Ex. 6 at 1.  She required assistance with all activities of daily living, ambulated independently, and had a history of “being intrusive,” which made her vulnerable to attack.  CMS Ex. 6 at 34.  Her physician determined that she was unable to make legal or medical decisions for herself and required a health care proxy.  CMS Ex. 6 at 3.  Nursing notes reported that she wandered with no sense of direction and entered the rooms of other residents; she was continuously redirected.  CMS Ex. 6 at 7, 8, 9, 10.  In notes dated December 9 and 10, 2018, staff reported that she had to be redirected “many times” to prevent her from stealing from other residents.  CMS Ex. 6 at 9.

R3’s care plan does not identify as problems her intrusiveness or her stealing from other residents.  The sole suggestion of such problems is an undated, handwritten note calling for 15-minute checks for 24 hours.  CMS Ex. 6 at 4.  This provision was probably added on January 14, 2019, after she was brutally attacked by another resident as she tried to enter his room (described below).  CMS Ex. 6 at 32.

Resident 4 (R4).  The record includes scant information about R4, except that he was the victim of abuse (see below).  According to social service progress notes, he was alert and confused, at one point wandering the facility looking for his dead wife.  CMS Ex. 7 at 2. 

Resident 6 (R6).  At the time of the survey, R6 was a 64-year old man, admitted to the facility on June 16, 2016, suffering from Wernicke’s encephalopathy, hypertension, and hypothyroidism.  He had a history of alcohol abuse.  CMS Ex. 8 at 1, 13.7   On June 14, 2016, the Probate and Family Court for the Commonwealth of Massachusetts adjudged R6 incapacitated and appointed a temporary guardian to act on his behalf, giving the guardian the authority to make R6’s health care decisions.  CMS Ex. 8 at 2-6. 

According to social service progress notes, dated June 20 and 27, 2016, R6 was admitted to the facility because his family (son and significant other) were unable to provide the level of care he needed.  He had exhibited “increasing episodes of aggression towards his family[,] resulting in the need for police intervention and hospitalization.”  P. Ex. 31 at 1 (emphasis added).  Medications were used to address his symptoms, and, as of June 27, he had not displayed any aggressive behaviors, although he had refused medications and

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assistance with personal care.  P. Ex. 31 at 2.  His English was minimal; according to his son, he could understand but would not speak it.  P. Ex. 31 at 2-3. 

A progress note, dated November 8, 2016, describes R6 as “intrusive into other’s rooms” and engaging in “sexually inappropriate behavior.”  It provides no specifics.  P. Ex. 34 at 1; P. Ex. 39 at 1.  R6’s care plan, which describes “alterations in behavior-social” is dated November 10, 2016.  The listed interventions, are very general and seem to address aggressive behavior:  “monitor for” [behavior] – the care plan form asks that a specific behavior be filled in, but the facility did not do so until more than two years later, (February 2019); “keep resident safe and do not attempt to provide care while combative; re-approach when calm”; assess behavior, attempt to redirect resident and educate resident; praise appropriate behavior; notify family, physician, and psych services of changes in behavior.  CMS Ex. 8 at 10; P. Ex. 32; see P. Ex. 36.  The care plan instruction to “monitor for effectiveness of medication” is scratched out, indicating that such monitoring was not called for in the resident’s care plan.  CMS Ex. 8 at 10; P. Ex. 32.  This seems inconsistent with a subsequent “behavioral health follow-up,” which concludes that medications could be changed, based on his behaviors.  CMS Ex. 8 at 7; P. Ex. 33.

As with the other residents, evidence is sparse as to which, if any, of these interventions were actually implemented.  If implemented, they plainly did not prevent R6 from engaging in aggressive and sexually inappropriate behaviors.  On November 11, 2016, according to progress notes, the resident “remains sexually aggressive.”  Again, no details are provided.  The note says that the resident was redirected.  P. Ex. 35 at 1, P. Ex. 39 at 1.  A physician ordered Zoloft, 25 mg. (a psychotropic medication) that day.  P. Ex 35 at 2. 

On December 21, 2016, handwritten additions to the care plan refer to “sexual behavior outside of his room,” and “intrusive wandering.”  A hand-written note indicates that, through a Spanish interpreter, the resident was instructed that masturbation should be done in the privacy of his room.  But no other interventions were added to the plan at that time.  CMS Ex. 8 at 10; P. Ex. 32.

Resident 8 (R8).  R8 was a 79-year-old woman, admitted to the facility on November 1, 2018.  She suffered from dementia with behavioral disturbance.  CMS Ex. 9 at 1.  She had experienced losses of cognition and executive function and lacked the capacity to make her own healthcare decisions.  CMS Ex. 9 at 2.  Her care plans, dated November 15, 2018, identified multiple problems, including her tendency to wander; decreased cognition; dementia; potential for falls; “alteration in comfort”; and use of psychotropic medications.  CMS Ex. 9 at 3-9, 12.  She was at risk for exacerbation of depression and the adverse effects of psychotropic medications.  CMS Ex. 9 at 12-13.

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Apparently, sometime in November 2018, R8 made sexual advances on her son-in-law.  It seems that the incident was not reported until March 7, 2019, according to a March 30, 2019 addendum reporting a subsequent incident.  CMS Ex. 9 at 20. 

A care plan dated November 15, 2019, identifies verbal abuse as R8’s problem.  The interventions are virtually identical to those listed in R6’s care plan, except that, in R8’s plan, staff identified the behavior to be monitored.  Next to “monitor for” they wrote in “can become aggressive with other residents.”  The other interventions were:  “keep resident safe and do not attempt to provide care while combative; re-approach when calm”; assess behavior, attempt to redirect resident and educate resident; praise appropriate behavior; determine need for PRN, administer per order; monitor for effectiveness of medication; notify family, physician, and psych services of changes in behavior.  P. Ex. 42 at 1.

Petitioner has come forward with almost no evidence to show whether or how most of these interventions were implemented. 

Resident 10 (R10).  R10 was a 58-year-old man, admitted to the facility on August 16, 2013, suffering from Alzheimer’s disease, unspecified dementia with behavioral disturbance, bipolar disorder, major depressive disorder, and an anxiety disorder.  CMS Ex. 10 at 1-2.  His gait was abnormal.  CMS Ex. 10 at 2.  On June 14, 2017, the Probate and Family Court for the Commonwealth of Massachusetts adjudged R10 incapacitated and appointed a guardian to act on his behalf, which included the authority to make health care decisions.  CMS Ex. 10 at 3-4.  The letters of guardianship indicated that R10 could be physically and verbally aggressive to other residents.  He cursed at them and struck them.  These outbursts were unpredictable (according to the written justification) and possibly related to delusional thinking.  CMS Ex. 10 at 4. 

R10’s care plan, initially dated July 19, 2018, identified him as physically and verbally abusive.  He resisted care and wandered.  All of the potential interventions listed on the care plan form – which is a very long and not very specific list – are checked:  providing a non-confrontational environment for care; anticipating his needs and meeting them before he becomes overly stressed; explaining his care in advance; “reducing the following stressors that may be contributing to the resident’s inappropriate behavior” (after which nothing is listed); share other options for dealing with feelings; reinforce positive behavior; educate [no names are filled in]/responsible party on the causal factors of the behavior and the planned intervention; address wandering behavior by walking with the resident and attempt to redirect from an inappropriate area; engage in divisional (sic) activity; administer and monitor the effectiveness and side effects of medications as ordered; investigate/monitor need for psychological/psychiatric support; provide services, if desired, and as ordered by physician; invite and encourage activity programs consistent with established interests; monitor behavior episodes & attempt to determine underlying cause; consider location, time of day, person involved, etc.; intervene as needed to protect

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the rights & safety of others; approach in calm manner; divert attention, remove from situation and take to another location, as needed; if reasonable, discuss behavior, explain/reinforce why behavior is unacceptable; when agitated, approach at a later time, when resident is less agitated.  CMS Ex. 10 at 9.

Little evidence establishes whether or how the facility implemented these interventions. 

Resident 11 (R11).  R11 was an 85-year-old man, admitted to the facility on January 27, 2016, with diagnoses of dementia, Alzheimer’s, anxiety disorder, restlessness and agitation.  He had a history of aggression toward other residents and staff and could become confrontational “when others get in his space.”  He walked independently throughout the unit.  CMS Ex. 10 at 14. 

d)  The incidents and the facility’s responses.  Petitioner insists that its planned interventions were effective.  This is not a fact in dispute that would preclude summary judgment; it is a conclusion.  And the undisputed evidence establishes that resident‑on‑resident abuse occurred with astonishing frequency and that the facility’s efforts to prevent it were ineffectual.  I accept, for purposes of summary judgment, that staff generally informed the physician and psychiatric services of behavioral incidents and that they responded, usually by increasing a resident’s psychotropic medications.  However, I see little to no evidence that facility staff effectively monitored the residents in order to protect the vulnerable.  Most striking:  staff were so often absent when abuse occurred.8

i)  Early incidents of inappropriate sexual behavior involving R6 and R8. 

R6 began displaying disturbing behaviors as early as November 2016.  A behavioral health report, dated November 15, 2016,9 describes him masturbating over another (unidentified) resident.  CMS Ex. 8 at 7; P. Ex. 33.  According to the report, staff planned to monitor his behavior and remind him to confine that activity to his room.  No care plan

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changes were recommended, although the report suggests that R6’s Zoloft could be increased, if necessary.  CMS Ex. 8 at 7; P. Ex. 33.  I am not sure how the facility would conclude that medications should be increased inasmuch as R6’s care plan had eliminated the instruction that staff monitor medications for their effectiveness (noted above).  CMS Ex. 8 at 10; P. Ex. 33.

The facility’s administrator, Sharon LeBlanc, testified that the facility’s interventions were so effective that, for two years after his admission, staff stopped R6’s sexual misbehavior before it began.  P. Ex. 1 at 4 (LeBlanc Decl. ¶ 10).  This assertion does not create a material fact in dispute because it is not an allegation of fact; it is a conclusion.  It is a conclusion that is not supported by the underlying, undisputed facts, which establish that, by as early as March 2017, the facility’s interventions were not preventing R6’s abusive behaviors. 

While the record of R6’s behavior is sparse – there are few progress notes, virtually no incident reports, and little evidence of investigations – incidents of R6’s sexual misconduct are alluded to with some frequency.  A December 16, 2016 nurse’s note indicates that staff decided to stop 15-minute checks on R6 because he had not engaged in sexual activity in the halls.  P. Ex. 37.  However, the undisputed evidence shows that this cessation of R6’s inappropriate conduct was short-lived.  A nurse’s note dated January 27, 2017, describes him as “gazing at a female [resident] – watching her as she ambulates in [the] hall.”  He was again placed on 15-minute checks.  P. Ex. 41 at 1.  Petitioner has not produced any evidence as to the system it had in place (if any) to ensure that the 15-minute checks were carried out.10

On March 17, 2017, Dr. Lobovits reported that R6 had previously taken Zoloft to address his inappropriate sexual activity, with a satisfactory response.  Subsequently, however, the resident was seen “menacing” and harassing a female patient and masturbating openly.  Dr. Lobovits doubled R6’s Zoloft prescription.  P. Ex. 38.  A progress note, dated April 19, 2017, says that R6 “continues to be sexually inappropriate and intrusive into female residents’ rooms and personal space.”  It indicates that his Zoloft would be increased to 100 mg daily.  P. Ex. 39 at 1.

On June 7, 2017, R6’s prescription for Zoloft was increased to 150 mg daily, although I don’t see an explanation for it.  P. Ex. 40 at 1.

On February 16, 2018, a nurse’s note reports that R6 made “multiple attempts” to touch a female staff member “in an inappropriate manner.”  With each attempt, he was redirected.  P. Ex. 41 at 3.

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In the meantime, in December 2018, R8 was referred to psych services because of her increasing sexual promiscuity, delusions, and worsening cognitive decline.  A psychiatric examination, dated December 13, 2018, describes R8 as “sexually inappropriate,” her thought content “hypersexual.”  The nurse practitioner increased R8’s Zoloft to target her symptoms and “perhaps gain some help with the side effect of sexual dysfunction.”  P. Ex. 43 at 3.

December 2018 incidents.  On December 4, 2018, R6 was observed “placing his hands” on R8’s and resting his hand on her lap.  No additional details are provided.  CMS Ex. 9 at 14. 

On December 5, 2018, R8 was observed disrobing in a public area.  She told staff that she was trying to seduce R6.  CMS Ex. 9 at 14. 

On December 6, 2018, a nurse aide responded to a call light and discovered R6 and R8 alone, in the room of a third resident, engaging in a sex act.  CMS Ex. 8 at 35; CMS Ex. 9 at 20.  Staff separated them without incident.  Within a few hours, each was interviewed.  R8 insisted that nobody was going to tell her that she couldn’t have a sexual relationship.  R6 couldn’t remember anything.  Their health care proxies were contacted.  CMS Ex. 9 at 14, 19.11   Given their significant cognitive impairments, the facility was required to assess whether they were able to consent to such conduct.  Neighbors Rehab. Ctr., LLC, DAB No. 2859 at 16 (2018).

The facility put the residents on 15-minute checks for 18 hours.  The social services department interviewed the residents and was to arrange family meetings.  Speech therapy, the physician, and psychiatric services were to evaluate each resident regarding the individual’s ability to consent to sexual activity.  CMS Ex. 9 at 14-15, 19.  Nurses’ notes, dated December 8 and 9, 2018, refer to 15-minute checks.  A note dated December 13, 2018, also mentions 15-minute checks on the night shift, with R6 described as wide‑awake and refusing to go to bed.  P. Ex. 46.  Except for these references, the record includes no evidence that the facility had any system in place to assure that the checks were performed. 

By its own admission, the facility did not thoroughly investigate or accurately report the December 6 incident to the state agency.  CMS Ex. 9 at 20.12   In an addendum, dated

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March 30, 2019, the facility’s administrator, Sharon LeBlanc, reported that the residents’ physician, Barry Lobovits, M.D., had opined that, because both residents had lost the capacity for consent, the conduct was not appropriate.  R6’s decision-making capacity and executive function were so severely compromised that his judgment and insight were irretrievably impaired.  He would be put on Depo-Provera (a hormone-suppressing drug) to address the disinhibition syndrome that was part of his cognitive impairment.  CMS Ex. 9 at 20-21; see P. Exs. 43, 44. 

Administrator Le Blanc now testifies that her March representation to the state agency was incorrect.  When he opined that neither resident had the capacity to consent to sexual relations, Dr. Lobovits had been responding to a different sexual encounter involving R6, and someone other than R8.  P. Ex. 1 at 3 (LeBlanc Decl. ¶ 13).  This doesn’t help Petitioner’s case.  Two of the facility’s residents, R6 and someone who is not identified, lacked the capacity to consent but were nevertheless engaging in sexual activities.  It also means that, notwithstanding the facility’s representation to the state agency that speech therapy and psychiatric services would evaluate each resident regarding the individual’s ability to consent to sexual activity, no evidence establishes that anyone other than the physician considered whether R6 could consent, or that anyone (including the physician) considered whether R8 could consent.  CMS Ex. 9 at 14-15, 19.

Petitioner now claims that the encounters were perfectly appropriate because they were consensual.  P. Br. at 17.  While I agree that a dementia diagnosis does not automatically preclude a resident from consenting to sexual interactions, the facility must, at a minimum, assess whether the demented individual has the capacity to consent.  Neighbors Rehab., DAB No. 2859 at 16.  Here, from the times of their admissions, R6 and R8 were acting out in sexually inappropriate ways.  Yet, the facility did not assess R6’s capacity to consent to sexual activity until two years after his admission, when it concluded that he had lost the capacity to consent.  CMS Ex. 44.  Apparently, R8 was not assessed. 

The record is silent as to R8’s subsequent behaviors, but, on March 8, 2019, her care plan was updated to add as a goal:  keeping the resident safe and injury-free despite her wandering and sexual behaviors.  Interventions included:  use a calm, slow approach when interacting with the resident; monitor for a pattern of problem behaviors (“openly

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expressing sexual desires, increased pacing, combative when attempting to be redirected, weeping”); encourage appropriate socialization with peers and staff by sitting down, talking about her family, and reminiscing; talk about her daughters and granddaughter; encourage her to participate in activities to promote appropriate socialization; show her old photos and provide one-on-one conversation or small group activities; contact the physician, psychiatric practitioner, and family for additional intervention recommendations; discuss medication review.  CMS Ex. 9 at 21.

          ii)  R10’s December 9, 2018 assault on R3.

A medication management assessment for R10, dated August 8, 2017, identifies “behavioral disturbances” as a problem.  Staff reported that he had been “yelling and threatening other residents.”  P. Ex. 49 at 1.  I see no investigations or additional reports of this.  The psychiatric nurse practitioner prescribed Prozac.  P. Ex. 49 at 2-3.  A September 26, 2017 medication management assessment characterizes R10’s behavioral disturbances as an “ongoing problem,” although there had been no recent reports of him yelling or making threats.  P. Ex. 50. 

By the next assessment, dated May 29, 2018, the facility’s director of nursing (DON) had requested four weekly visits with psych services because R10 had been involved in (unspecified) resident-to-resident altercations.  “[H]e loses his temper quickly.”  P. Ex. 51 at 1.  The nurse practitioner increased his prescription for Fluoxetine (Prozac) to 20 mg daily, explaining that the resident was not fully responsive to non-drug interventions.  P. Ex. 51 at 3.

The facility did not change R10’s care plan. 

An October 16, 2018 assessment reports that R10 was “involved in a [resident-to-resident] altercation; he struck another resident who sat in his chair.”  P. Ex. 51 at 4.  Again, the record includes no incident report or indication of any investigation.  The nurse practitioner recommended increasing his Prozac to 30 mg daily.  P. Ex. 51 at 5. 

The next medication management assessment, dated October 23, 2018, reports that R10 was involved in a resident-to-resident altercation; he struck another resident who sat in his chair.  P. Ex. 51 at 6.  The nurse practitioner again recommended increasing his Prozac to 30 mg daily.  P. Ex. 51 at 8.  Once more, the record includes no incident report or indication of any investigation. 

A medication assessment, dated December 6, 2018, describes R10’s behavioral disturbances as “worsening.”  P. Ex. 51 at 9.  The nurse practitioner notes past attempts to harm others and reports that R10 was again involved in an altercation.  She writes that his behaviors affect safety or are extremely distressing.  Somewhat inconsistently, she also writes that his current medication regime is managing his symptoms well, without need

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for inpatient psychiatric care, and, according to his mental status exam, he is not a danger to himself or others.  She speculates that Prozac might be increasing his behaviors.  P. Ex. 51 at 10-11. 

Three days later, R10 showed the danger he presented to others.  On December 9, 2018, R3 (the 62-year-old woman suffering from dementia, who wandered the halls without any sense of direction and would steal from other residents) was roaming through her unit.  She went into the day room and took a carton of milk that belonged to R10.  R10 became angry and “smacked [R3] on the side of the head.”  The activities director was in the vicinity but neither she nor anyone else was supervising the residents.  CMS Ex. 6 at 19.  The nurse reported that R3 was assessed and had no apparent injuries.  According to the notes, staff separated the residents, placed them on 15-minute checks, and notified the residents’ physicians and families.  CMS Ex. 6 at 9, 14, 17.  Again, no evidence shows that the facility had a system in place to assure that the checks occurred. 

The facility did not report the incident to the state agency until two days later.  CMS Ex. 6 at 17-18; see 42 C.F.R. § 483.12(c)(1) (requiring facilities to report allegations of abuse not later than two hours after the allegation is made).

On December 13, 2018, the nurse practitioner conducted another medication management assessment.  Again, she describes R10’s behavioral problems as worsening and reports that he struck yet another resident who sat in his chair.  P. Ex. 51 at 12.  Notwithstanding his repeated acts of violence, she estimated that his risk for violence was absent and opined that he was not a danger to himself or others and that his current medications were managing his symptoms well.  On the other hand, she recommended increasing his Depakote and questioned again whether his Prozac could be increasing his behaviors.  P. Ex. 51 at 13-14. 

On December 14, 2018, Dr. Lobovits discontinued R10’s Prozac, and, on December 29, 2018, he increased the resident’s Depakote from 1200 mg to 1250 mg.  P. Ex. 52. 

iii)  R2’s December 2018 assaults on unidentified residents. 

Petitioner argues that the facility “reasonably believed that the combination of psychiatric interventions, social services, existing care plans related to mood and behavior (which the facility revisited shortly after the resident’s return from the hospital), continued PRN administration of Ativan and Trazadone, and close monitoring would prevent [R2’s] future behavior.”  P. Br. at 4.  Inasmuch as these interventions did not prevent R2’s abusive behavior, and he repeatedly attacked other residents, this so-called belief was not reasonable.

It seems that R2 physically attacked residents on December 18, 2018, although, again, the record includes no specifics as to what those attacks entailed.  An application for

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temporary involuntary hospitalization characterizes R2 as “combative; striking out” and says that he presents a substantial risk of serious harm to others “as manifested by evidence of homicidal or other violent behavior or evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them.”  CMS Ex. 5 at 2.  A resident transfer form identifies the reason for his transfer as “striking other residents.”  P. Ex. 14. 

On December 18, 2018, the Massachusetts Department of Mental Health applied for authorization to hospitalize R2 involuntarily, citing his combative behavior, which presented substantial risk of physical harm to others.  The application cited evidence “of homicidal or other violent behavior,” placing others in reasonable fear of serious harm to them.  CMS Ex. 5 at 2.  Again, the record does not indicate what incident or incidents precipitated the facility’s action.  

According to a subsequent psychiatric evaluation, dated December 26, 2018, after the facility sent R2 to an emergency facility, the emergency facility sent him on to the hospital for crisis evaluation, reporting that he was combative, threatening staff and other residents.  CMS Ex. 5 at 4-5.  The record includes no additional information about that evaluation, assuming it occurred.  

A medication management assessment, dated December 19, 2018, describes R2’s worsening lability and aggression.  Increasing his Depakote (an anticonvulsant used to treat psychiatric disorders, such as bipolar) provided minimal relief.  The examining nurse practitioner expressed concern that his “benzo” (a depressant) could be disinhibiting and recommended a more potent antipsychotic, Zyprexa.  P. Ex. 16 at 2. 

R2 returned to the facility on December 19 and was supervised one-on-one for a day or two.  During this time, he threw a table tray and, according to the nurse who reported it, had to be redirected many times.  P. Ex. 17.  But, notwithstanding these behaviors, it seems that this close supervision did not last long.  On December 21, 2018, he had “an interaction” with another resident who entered his room.  Again, the progress notes are heavily redacted, and the record includes virtually no details of this incident.  A social service progress note indicates that staff were looking for alternative placements.  P. Ex. 18.

In an office note, dated December 28, 2018, Dr. Lobovits describes a serious attack:  “[A]fter active episodic behavioral disturbance,” R2 pushed another resident who had inadvertently confronted him “causing her to experience an occipital hematoma.” P. Ex. 19 at 1 (emphasis added).13   The note alludes to “a similar episode two days ago,”

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that resulted in the facility sending R2 to the emergency department for further evaluation.  P. Ex. 19 at 1.  Dr. Lobovits consulted psychiatric services and met with the facility’s director of nursing and the head nurse on R2’s unit.  They decided not to send R2 back to the emergency room but opted to increase his dosage of Seroquel (an antipsychotic) “in an attempt to mitigate the frequency of his behavioral outbursts.”  In the meantime, “we will approach him in a calm, confident, non-threatening manner” and treat him with empathy.  Dr. Lobovits also suggested that staff would attempt to “isolate him to the degree that we avoid inadvertent confrontational experiences.”  These approaches are similar to those listed in R2’s earlier care plans, which, assuming they were implemented, had not been effective in preventing his abusive behavior.  P. Ex. 19 at 1; see P. Exs. 4, 5. 

iv)  R2’s January 14, 2019 assault on R3.

By December 14, 2018, it seems that R3’s behaviors were escalating.  (She was the 62‑year-old woman suffering from dementia, who wandered the halls without any sense of direction and would steal from other residents).  Staff reported that they redirected her “many times” from wandering into the rooms of other residents, taking trash cans, antagonizing other residents, and taking items from walkers, tables, etc.  CMS Ex. 6 at 10. 

Social service progress notes, dated December 22, 2018, indicate that staff from the social services department met with R3 after an “interaction” with another resident the night before.  Again, the record offers no evidence of an investigation or any other details of the incident.  The resident was unable to complete the BIMS (Brief Interview for Mental Status) assessment and was unable to vocalize any recollection of the event.  She displayed no signs or symptoms of distress.  According to the note, R3 was then under one-on-one supervision.  CMS Ex. 6 at 11. 

On January 14, 2019, R3 attempted to enter R2’s room.  R2 “grabbed [R3’s] head and slammed it into the door frame of his room.”  CMS Ex. 6 at 29, 31, 34; P. Ex. 22 at 1.  No staff witnessed the incident; they heard a “loud thump.”  CMS Ex. 6 at 26-32; P. Ex. 22 at 1.  The LPN who assessed R3’s injuries reported that R3’s forehead was swelling, and red bruising appeared on its right side.  CMS Ex. 6 at 28.  The RN on duty also noted that R3 had two red marks down her face, from forehead to chin with a white mark in the middle.  The residents were placed on 15-minute checks.  CMS Ex. 6 at 31, 34; P. Ex. 22 at 1.  Staff treated R3’s facial injuries with ice, administered acetaminophen, and notified her daughter and her physician.  According to the assessment, she experienced mild to moderate pain.  CMS Ex. 6 at 22-25. 

The facility reported the incident to the state agency.  CMS Ex. 6 at 33-34.  However, in that report, R3’s swelling, bruising, and marks from forehead to chin were described as a

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“reddened area.”  CMS Ex. 6 at 33.  Either the individual reporting the incident was unaware of the severity of R3’s injuries or she deliberately minimized them. 

On January 22, 2019, a state reviewer noted that R2 had been involved in multiple incidents of resident abuse, six since October 2018.  The reviewer recommended that the state conduct an onsite review, given that R2 had been the aggressor in multiple resident-on-resident incidents and had demonstrated “extreme force” with his assaults.  The reviewer also opined that the plan for 15-minute checks “seems insufficient to ensure the safety of all residents.”  Further, “the facility was aware that the resident was territorial and could predict a resident with wandering behaviors would be at risk should the resident wander into this room.”  CMS Ex. 6 at 33. 

In a social service progress note dated January 15, 2019, staff reported that R3 “had an altercation” with another resident the evening before.  Again, R3 was unable to complete the BIMS and, according to the report, showed no signs that she was distressed by the incident.  CMS Ex. 6 at 11-12. 

On the same day, social services staff met with R2, who did not recall the “interaction.”  His BIMS score was 8, indicating a moderate impairment.  Staff spoke to R2’s “primary contact,” who agreed to transferring the resident to a facility that could better accommodate his behavioral needs.  P. Ex. 23. 

The interdisciplinary team discussed possible approaches to addressing R2’s behaviors:  changing rooms, closing the doors between units.  No evidence shows that the team developed an approach other than deciding that psych services would continue to monitor his behaviors and make recommendations.  P. Ex. 23 at 2.  The record does not reflect what, if any, recommendations psych services made.  

v)  R2’s January 28, 2019 assault on R4. 

According to nurses’ notes, on January 28, 2019, R4 was walking past R2’s room, when R2 came out and pushed R4 to the floor.  No staff witnessed the incident.  Another resident helped the resident up.  R4 suffered a laceration to the right eyebrow, which was bleeding, and a black eye.  He subsequently complained of dizziness and was placed in a wheelchair for a short time.  CMS Ex. 7 at 2.

It seems that this was not the first time R4 had been assaulted.  Because of “all the recent interactions [with] others,” the facility transferred R4 to a different room on a different unit.  CMS Ex. 7 at 3. 

The facility drafted another care plan on January 29, 2019.  The new plan described in greater detail R2’s behavior issues:  physical aggression toward staff and residents; wandering; verbal aggression/swearing; taking other’s food items; removing nursing

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items from medication carts; and flipping over tables in the day room when upset.  The “new” interventions were, for the most part, variations on the (unsuccessful) interventions from prior care plans, adding some examples of the activities R2 enjoyed.  P. Ex. 30.

vi)  R10’s February 7, 2019 assault on R11.

R10’s aggressive behaviors continued, although, as usual, the record is short on details.  A couple of random nurse’s notes, dated January 16 and February 6, 2019, describe frequent outbursts, threats toward other residents, his being placed on 15-minute checks, and one instance of one-on-one supervision.  P. Exs. 55, 56. 

At 10:30 a.m. on February 7, 2019, R11 was sitting in a chair in the day room.  R10 entered and demanded to know if R11 had been in his room.  R11 did not respond, and R10 “pulled back his right arm” and struck him on the left side of his head, above the ear.  No staff were present in the day room, although a housekeeper observed the incident from the hallway.  When they heard a shout, staff came to the dayroom and intervened, separating the residents.  They removed R10 from the room and kept him on one-on-one supervision.  One report says that staff continued this level of supervision until he calmed down.  CMS Ex. 10 at 11.  Another says that they continued it for 24 hours.  CMS Ex. 10 at 15.  Then they put him on 15-minute checks.  CMS Ex. 10 at 11, 14-15. 

The facility reported to the state agency that, as a corrective measure, staff put a stop sign and motion sensor at R10’s door to deter others from entering and to alert staff if anyone entered or left the room.  CMS Ex. 10 at 11.  His behavior plan was amended to add this intervention and to include his asking staff for assistance when agitated by other residents.  CMS Ex. 10 at 9, 15. 

Staff assessed R11 and reported “no harm.”  He was place on 15-minute checks for 48 hours.  CMS Ex. 10 at 15.  According to the incident report, staff updated R11’s care plan “for potential altercation due to history of wandering and noncompliance of waiting for assistance.”  CMS Ex. 10 at 11, 15. 

vii)  R6’s February 7, 2019 sexual assault of R3.

At about 1:30 p.m. on February 7, 2019, as a housekeeping employee was walking past the day room, she glanced in and saw R3 (the 62-year-old woman with dementia and obsessive-compulsive disorder, who could not complete a BIMs assessment) standing next to R6 (the 64-year old sexually aggressive man suffering from Wernicke’s encephalopathy) who was seated.  No staff members were in the day room.  R3’s hand was down R6’s pants, and she appeared to be rubbing his penis.  The housekeeper immediately alerted a nurse aide, who came to the room and saw R6 forcing R3 to engage in the sexual behavior.  The nurse

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aide told him to stop, but he refused.  The nurse aide then broke up the behavior and directed R6 to leave the day room, but he refused.  When a second employee asked him to return to his room, he did so.  CMS Ex. 8 at 36, 42-43. 

Staff placed R3 on 15-minute checks and asked the social services department to evaluate her for signs and symptoms of psychological distress.  They reported that they updated her care plan to address her potential for victimization due to her wandering, rummaging, and echolalia (repeating or echoing words or sounds).  The record does not reflect any changes, with the possible exception of adding 15-minute checks, although that entry is undated and might have been added in response to an earlier incident.  CMS Ex. 6 at 4. 

They sent R6 to the emergency department for evaluation.  CMS Ex. 8 at 37.

e)  The facility’s substantial noncompliance:  abuse (42 C.F.R. § 483.12). 

Analogizing a facility’s responsibility to that of a school, the Board has written:

No school or long-term-care facility is able to or expected to guarantee that no untoward events will ever occur on their premises.  Both are expected to take all reasonable measures to make the environment safe for those in their charge, with the appropriate level of supervision depending on the capacity and needs of the charges.  It may not be reasonable to expect a school to foresee every playground quarrel, but it is reasonable to expect it to watch children closely and intervene effectively when vulnerable children are repeatedly subject to harmful behavior, without shifting the blame to its vulnerable or incompetent charges.  Similarly [the facility], having undertaken the care of vulnerable and dependent elderly residents, is responsible to provide care to protect them from harmful events that they are not themselves capable of avoiding. 

Woodstock Care Ctr., DAB No. 1726 at 30 (2000) (emphasis added).

As the lengthy discussion above reflects, the undisputed evidence establishes that resident-on-resident abuse at the facility was ongoing, and that the facility did not “provide care to protect [its vulnerable residents] from harmful events that they [were] not themselves capable of avoiding.”  Virtually any one of the cited incidents, by itself, would support a finding of substantial noncompliance.

Petitioner, nevertheless, defends its actions (or inaction) by arguing:  1) it could not have anticipated that its residents were capable of such aggressive behavior; 2) it implemented

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all reasonable measures to prevent the aggressive behavior; and 3) because of their cognitive impairments, the aggressive residents were not capable of abusing others. 

All of these arguments fail. 

Nothing in this record supports Petitioner’s suggestion that the facility could not have anticipated its residents’ aggressive behaviors.  Where, as here, individuals have histories of aggression and violence and have repeatedly attacked others, the facility should anticipate that the aggression will reoccur.  The Bridge at Rockwood, DAB No. 2954 at 11-13 (2019) (holding that, where a resident had a history of violence and aggression, the facility knew or should have known the significant risk he posed to the facility’s vulnerable residents); see Woodstock Care Ctr., DAB No. 1726 at 27 (rejecting the facility’s contention that a resident’s history of assaults did not provide it notice sufficient to trigger a “higher duty of reasonable care”).

And, as set forth above, this record includes overwhelming evidence of resident aggression and the facility’s specific awareness of it, including:

• R2’s care plans consistently describe him as verbally and physically abusive.  P. Exs. 4, 11.  He violently attacked other residents.  P. Exs. 7, 9, 10.  Dr. Lobovits describes him as a “challenging” patient and concedes that it was “difficult to establish a combination of medications and interventions that would help control his behavioral disturbances.”  P. Ex. 2 at 2 (Lobovits Decl. ¶ 7). 
• Prior to his admission, R6 had exhibited increasing episodes of aggression.  P. Ex. 31 at 1.  As early as November 2016, his behavior was described as “sexually aggressive.”  CMS Ex. 8 at 7, 10; P. Exs. 32, 33; P. Ex. 34 at 1; P. Ex. 36; P. Ex. 39 at 1; see P. Ex. 2 at 3 (Lobovits Decl. ¶ 8).
• R10’s letters of guardianship describe him as “physically and verbally abusive.”  CMS Ex. 10 at 9.  His July 19, 2018 care plan identified him as physically and verbally abusive.  CMS Ex. 10 at 9. 

Although staff might not always have been able to anticipate exactly when an aggressive resident would attack another, they knew the incidents were likely and had a duty to

provide appropriate care to prevent the foreseeable results.  See Woodstock Care Ctr., DAB No. 1726 at 27 (rejecting the notion that the facility must be “provided advance warning for each adverse event in order to be responsible for taking reasonable measures to prevent injurious occurrences [that] it knows to be likely to take place at some point, if not at a particular time or place.”). 

Moreover, there were identifiable triggers – for example, when a wandering resident approached an aggressive resident’s room (CMS Ex. 6, at 26-32; P. Ex. 22 at 1; CMS

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Ex. 7 at 3); or when someone sat in “R10’s chair.”  P. Ex. 51 at 4, 6, 12.  Incidents also occurred when residents were left alone and unsupervised in the day room and elsewhere.  CMS Ex. 7 at 2; CMS Ex. 8 at 35; CMS Ex. 9 at 20; CMS Ex. 10 at 11. 

By themselves, the circumstances surrounding R6’s sexual assault of R3, for example, are sufficient to put the facility out of substantial compliance.  Two of the facility’s most problematic residents – one, a known sexual aggressor, and the other, a known victim – were left alone and unsupervised in the day room, which had been the scene of other incidents.  Had staff been monitoring the residents effectively, they could have anticipated potential problems and intervened to prevent them.

Petitioner lists dozens of interventions from the aggressive residents’ care plans and argues that, because there were so many, the facility “took all reasonable steps” to prevent the behavior.  P. Br. at 12-18.  But simply listing multiple interventions does not satisfy the facility’s obligation to keep its residents safe from abuse.  For an intervention to be effective, staff must be aware of it.  They must understand it, and they must implement it.  To this end, a facility should have in place systems to assure that the interventions have been implemented, and staff must monitor their effectiveness.  If the interventions are ineffective, the facility should amend the resident’s care plan.  Here, most of the interventions Petitioner lists had been in place from the onset of the residents’ admissions and, assuming they were implemented, they had not effectively controlled the behaviors.

I accept Petitioner’s representation that the physician and psychiatric services were actively involved in treating the most aggressive residents (R2, R6, and R10).  Indeed, the evidence of their involvement is substantial.  However, the undisputed evidence also establishes that their efforts did not prevent the abusive behavior and everyone – the practitioners and the facility staff – realized this.  Because the threats continued, it was incumbent on the facility to devise strategies for keeping its vulnerable residents safe.  The facility failed miserably, as evidenced by the frequent and serious abuses that occurred, almost inevitably in the absence of any staff witnesses.14

On the other hand, during periods of close supervision, particularly one-on-one supervision, aggressive episodes seem to have decreased, if not ended completely.  So close supervision was demonstrably effective.  However, these interventions tended to be

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short-lived, and when the aggressive resident was again left unsupervised, the abusive behavior resumed. 

Petitioner focuses exclusively on the facility’s efforts to control the behaviors of its most aggressive residents and says virtually nothing about efforts to protect its most vulnerable, notably R3, whose behaviors made her especially vulnerable:  she wandered; she was “intrusive”; she stole from other residents, including the most aggressive.  The undisputed evidence shows that facility staff did not implement effective measures to prevent her from being abused but reacted only after she had been abused.  And their most effective interventions were short-lived.  She was unsupervised on December 9, 2018, when she wandered into a very public area and stole R10’s milk, subjecting herself to attack.  CMS Ex. 6 at 19.  In response, staff imposed 15-minute checks, but those stopped after a short time. 

Thereafter, even though her behaviors were escalating, no one was monitoring R3 when, within weeks, she was involved in a poorly-documented “interaction” with another resident.  CMS Ex. 6 at 11.  Immediately thereafter, she was supervised one-on-one, but that didn’t last.  No one was monitoring her when, the following month, she attempted to enter R2’s room and was seriously assaulted.  CMS Ex. 6 at 26-32; P. Ex. 22 at 1.  And, a month later, she was unsupervised in the day room when a sexually aggressive resident molested her.  CMS Ex. 8 at 36, 42, 43.

Recognizing that several of its residents posed a serious threat to the safety of others, and that medical and psychiatric interventions had not prevented their aggressive and abusive behaviors, it was incumbent on the facility to develop effective strategies for keeping her and others like her safe.  Thus, even if I accepted, for purposes of summary judgment, that the facility took reasonable steps to rein in the behaviors of its most aggressive residents (which I do not), that finding would not materially affect the outcome of this case.  The undisputed evidence establishes that the facility’s interventions to protect R3 fell far short.  This failure, by itself, puts the facility out of substantial compliance with section 483.12. 

Petitioner also argues that no abuse occurred because its residents were far too demented to be capable of abusing others.  Citing an administrative law judge’s decision, Petitioner argues that, because of their mental impairments, its aggressive residents lacked the requisite willfulness to cause injury or harm.  The decision Petitioner relies on was apparently not appealed, and, as the Board repeatedly points out, decisions by administrative law judges are not precedential.  Donald W. Hayes, D.P.M., DAB No. 2862 at 6, n.8 (2018); Avalon Place Trinity, DAB No. 2819 at 12 (2017); Green Oaks Health & Rehab. Ctr., DAB No. 2567 at 9 (2014).

And the Departmental Appeals Board has itself considered and resolved this issue.  It is settled that, so long as the actions are “deliberate” rather than accidental or inadvertent,

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they are considered “willful” within the meaning of the regulation.  Merrimack Cty. Nursing Home, DAB No. 2424 at 4 (2011); Britthaven, Inc., DAB No. 2018 at 4 (2006); cf. Singing River Rehab. & Nursing Ctr., DAB No. 2232 at 13 (2009) (suggesting that, so long as a mentally ill resident did not act “by accident,” his conduct was abusive).  The attacks by R2, R6, and R10 were undeniably deliberate and constituted abuse. 

The undisputed evidence thus establishes that the facility did not keep its residents free from physical and mental abuse.  Indeed, some residents were subjected to such abuse on multiple occasions.  Failing to protect them put the facility out of substantial compliance with 42 C.F.R. § 483.12.

By itself, the abuse deficiency is sufficient to sustain the penalty imposed.  An ALJ need not consider all of the deficiencies cited, so long as the deficiencies she affirms support the sanctions imposed.  See Perry Cty. Nursing Ctr. v. U.S. Dep’t of Health & Human Servs., 603 F. App’x 265, 271 (5th Cir. 2015) (agreeing that the regulations require ALJs to review only those findings that are material to the outcome of a case); Claiborne-Hughes Health Ctr. v. Sebelius, 609 F.3d 839, 847 (6th Cir. 2010); Rockcastle Health & Rehab. Ctr., DAB No. 2891 at 23-24 (2018); Carrington Place of Muscatine, DAB No. 2321 at 20-21 (2010); Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 6 n.5 (2010), aff’d, Senior Rehab. & Skilled Nursing Ctr. v. Health & Human Servs., 405 F. App’x 820 (5th Cir. 2010).  In an abundance of caution, I also consider the facility’s substantial noncompliance with section 483.21(b).

f)  The facility’s substantial noncompliance:  care planning (42 C.F.R. § 483.21(b)). 

Petitioner suggests that because the facility developed multiple care plans and reviewed them periodically, it satisfied the requirements of the regulation.  In fact, unless a resident’s care plan addresses the resident’s identified medical, nursing, and mental and psychosocial needs, it does not meet the requirements of the regulation.  Further, the facility must revise a resident’s care plan when it becomes apparent that the planned interventions are not working.  Countryside Rehab. & Health Ctr., DAB No. 2853 at 21 (2018), citing Meridian Nursing Ctr., DAB No. 2265 at 18 (2009), aff’d, Fal-Meridian, Inc., 604 F.3d 445.  Failing to update a resident’s care plan to include new interventions after the resident has exhibited sexually inappropriate behavior violates the regulation.  Countryside Rehab., DAB No. 2853 at 20-22.

As the above discussion establishes, in multiple instances the facility’s care plans were inadequate, and when it became apparent that planned interventions were not working, the facility failed to revise them in any meaningful way.   

• R6’s November 10, 2016 care plan directs staff to monitor for a specific behavior but neglects to identify that behavior.  CMS Ex. 8 at 10; P. Ex. 32.

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• R6’s care plan explicitly eliminated the instruction that staff monitor for the effectiveness of his medications.  CMS Ex. 8 at 7; P. Ex. 32.  Whenever a resident is administered psychotropic medications, their effectiveness should be monitored.  See 42 C.F.R. § 483.45(e) (requiring clinical justification for use of psychotropic drugs).  In R6’s case, specifically, his physician needed to know how his medications were working, in order to adjust them based on his behavior.  Unless staff were monitoring their effectiveness, the physician would not have the information he needed.
• As early as November 8, 2016, staff identified R6’s sexually inappropriate behavior.  P. Ex. 34 at 1; P. Ex. 39 at 1.  On December 6, 2018, R6 was found engaging in sexual behavior with R8, and his physician determined that he lacked the capacity to consent.  The facility’s response was short-lived:  for 18 hours, staff implemented 15-minute checks.  The facility did not amend R6’s care plan to add “sexually inappropriate behavior” until at least December 21, 2016; they did not add strategies aimed at addressing inappropriate sexual behavior until February 7, 2019, after he was found assaulting R3.  CMS Ex. 8 at 10; P. Ex. 32.15
• R8’s sexually inappropriate behaviors were obvious from the time of her admission.  Yet, until March 8, 2019 (during the survey), her care plan did not address these problematic behaviors.  CMS Ex. 9 at 3-9, 12, 21; P. Ex. 42 at 1. 
• Although R10 physically attacked R3 on December 9, 2018, the facility did not review or amend R10’s care plan until February 7, 2019.  CMS Ex. 10 at 9.
• R3’s care plan did not identify as problems or address her intrusiveness or her propensity to steal from other residents, even after December 14, 2018, when staff recognized that her behaviors were escalating; these were behaviors that made her vulnerable to attack by other residents.  CMS Ex. 6 at 4.

2. CMS’s determination that the facility’s substantial noncompliance posed immediate jeopardy to resident health and safety is 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.  CMS’s determination as to the level of a facility’s noncompliance (which would include an

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immediate jeopardy finding) must be upheld unless it is “clearly erroneous.”  42 C.F.R. § 498.60(c).  The Board has observed repeatedly that the “clearly erroneous” standard imposes on facilities a “heavy burden” to show no immediate jeopardy and has sustained determinations of immediate jeopardy where CMS presented evidence “from which ‘[o]ne could reasonably conclude’ that immediate jeopardy exists.”  Barbourville Nursing Home, DAB No. 1962 (2005), citing Florence Park Care Ctr., DAB No. 1931 at 27‑28 (2004); Daughters of Miriam Ctr., DAB No. 2067 at 7, 9 (2007).

Except to argue that it was in substantial compliance with Medicare program requirements, Petitioner does not challenge CMS’s immediate jeopardy finding.  I have discussed in detail why the facility was not in substantial compliance.  Here, aggressive and unsupervised residents physically and sexually attacked others, resulting in multiple injuries, particularly, head injuries.  By their very nature, incidents of physical or sexual abuse are likely to cause serious injury or harm.  Here, in one case, the assault caused an occipital hematoma; in other cases, the attacks caused swelling and bruising to a resident’s head; and a laceration to a resident’s eyebrow, accompanied by bleeding, dizziness, and a black eye. 

CMS’s determination that the deficiencies posed immediate jeopardy to resident health and safety is therefore not clearly erroneous.

3. The penalties imposed are reasonable.

Except to argue that it was in substantial compliance so that no penalty should be imposed, Petitioner has not argued that the penalty is unreasonable.  It has therefore waived the issue.  See Standing Order at 3 (¶ 4c(1)) (“I may not consider an argument and evidence that relates to the argument if a party fails to address it in its brief.”).

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

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.  Barn Hill Care Ctr., DAB No. 1848 at 21 (2002);

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Cmty. Nursing Home, DAB No. 1807 at 22 et seq. (2002); Emerald Oaks, DAB No. 1800 at 9 (2001); CarePlex of Silver Spring, DAB No. 1683 at 8 (1999).

The burden is on the facility to demonstrate that a reduction is necessary to make the CMP amount reasonable.  Heritage Plaza Nursing Ctr., DAB No. 2829 at 22 (2017).

Here, CMS imposed a penalty of $8,671 per day for each day of immediate jeopardy, which is in the low end of the penalty range ($6,524 to $21,393).  42 C.F.R. §§ 488.408(e), 488.438; 45 C.F.R. § 102.3; 83 Fed. Reg. 51369 (Oct. 11, 2018); 84 Fed. Reg. 59549 (Nov. 5, 2019).16   Considering the relevant factors, this penalty is reasonable.

The facility has a less-than-stellar history, and had previously been cited, at the immediate jeopardy level for failing to keep its residents safe from abuse.  Specifically:

• A complaint investigation, completed November 22, 2016, determined that the facility was not in substantial compliance because of its inadequate comprehensive care plans (CMS Ex. 11 at 15);
• Based on a complaint investigation, completed April 11, 2017, the facility was not in substantial compliance because it failed to protect its residents from abuse, failed to investigate and report allegations of abuse, failed to develop and implement policies to prevent abuse and neglect, and failed to provide services that meet professional standards of care (CMS Ex.  11 at 14); and
• Based on a complaint investigation, completed September 11, 2017, the facility was not in substantial compliance with multiple program requirements, including the requirements that it protect its residents from abuse, investigate and report allegations of abuse, and develop and implement policies to prevent abuse and neglect.  It also failed to ensure that its residents received supervision and assistive devices to prevent accidents.  All of these deficiencies were cited at the immediate jeopardy level (CMS Ex. 11 at 14).

By itself, the facility’s history justifies imposing a penalty well above the minimum.

Petitioner does not claim that its financial condition affects its ability to pay the penalties.

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Applying the remaining factors, I have discussed in some detail the facility’s multiple failures here, for which the facility is culpable.

For these reasons, I find that the relatively modest CMP is reasonable.

Conclusion

CMS is entitled to summary judgment because the undisputed evidence establishes that, from March 8 through 30, 2019, the facility was not in substantial compliance with Medicare program requirements and that its deficiencies posed immediate jeopardy to resident health and safety.  The penalty imposed – $8,671 per day for 23 days of immediate jeopardy – is reasonable.

In the alternative, I admit into evidence CMS Exs. 1-11 and P. Exs. 1-56 and decide this case based on the written record.  CMS presents no witnesses and has not asked to cross‑examine Petitioner’s witnesses.  See Standing Order at 5 (¶ 10) (indicating that a hearing to cross-examine witnesses is necessary only if a party files admissible, written direct testimony, and the opposing party asks to cross-examine).  Thus, an in-person hearing would serve no purpose.  I find that, from March 8 through 30, 2019, the facility was not in substantial compliance with Medicare program requirements and that its deficiencies posed immediate jeopardy to resident health and safety.  The penalty imposed – $8,671 per day for 23 days of immediate jeopardy – is reasonable.

1. Absent extraordinary circumstances, a witness’s illness would be good cause for the delay in submitting her written declaration.
• back to note 1
2. In fact, as my discussion of the evidence shows, Petitioner’s exhibits, by themselves, are generally sufficient to resolve the issues in this case.  They establish that the facility was not in substantial compliance and that its deficiencies posed immediate jeopardy to resident health and safety.
• back to note 2
3. My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision.
• back to note 3
4. Deciding a case on summary judgment does not mean that it is decided without a hearing, and, in applying the principles of summary judgment to administrative proceedings, courts have been careful to avoid any suggestion that the case is decided without a hearing.  Throughout their decisions, they refer to deciding the case without an “oral hearing” or without an “evidentiary hearing.”  Although a case may be decided on summary judgment (or based on the written record), an administrative law judge, by considering the evidence and applying the law, has granted the petitioner a hearing, as required by sections 205(b) and 1866(h) of the Act.  See CNG Transmission Corp. v. FERC, 40 F.3d 1289, 1293 (D.C. Cir. 1994) (holding that a “paper hearing” satisfies statutory requirements for “notice and opportunity for hearing”).
• back to note 4
5. Here, neither party proffered any of the facility’s policies aimed at preventing abuse and neglect.
• back to note 5
6. Akathisia is a movement disorder that makes it hard to stay still and causes an uncontrollable urge to move.  It is usually associated with antipsychotic medications.
• back to note 6
7. Wernicke’s encephalopathy is an acute neurological condition caused by a thiamine deficiency, and is associated with alcohol abuse.  It is characterized by an acute onset of confusion, nystagmus (uncontrolled eye movements), partial ophthalmoplegia (paralysis or weakness of the eye muscles), and ataxia (impaired balance or coordination).  https://www.merckmanuals.com/professional/special-subjects/recreational-drugs-and-intoxicants/wernicke-encephalopathy.
• back to note 7
8. The facility has produced few progress notes for these residents, and, for reasons it has not explained, the few pages of notes are heavily redacted.  From Petitioner’s submissions, it is impossible to tell whether or how planned interventions were implemented.  This is a problem for Petitioner because it ultimately bears the burden of establishing that it took all reasonable steps to protect its residents from abuse.  See Omni Manor Nursing Home, DAB No. 1920 (2004); Batavia Nursing & Convalescent Ctr., DAB No. 1904 at 8-21 (2004); Batavia Nursing & Convalescent Inn, DAB No. 1911 at 8-22 (2004).
• back to note 8
9. The record refers to many incidents for which there are no detailed reports and for which it is impossible to pinpoint the date and time of the event.  I highlight, in bold, the date of the closest reference to each incident.
• back to note 9
10. Such systems need not be elaborate.  Facilities may set up charts, for example, and every 15 minutes, the responsible staff member initials that he/she has checked on the resident.
• back to note 10
11. The report indicates that the incident occurred on December 6, 2019.  CMS Ex. 9 at 14.  This is obviously an error.  See CMS Ex. 9 at 20 (addendum to report).
• back to note 11
12. Failing to report timely, by itself, justifies a finding of substantial noncompliance with the abuse regulation.  Any allegation of abuse triggers the responsibility to report.  Beverly Healthcare Lumberton v. Leavitt, 338 F. App’x 307, 313 (4th Cir. 2009) (agreeing that the facility’s failure to implement its policies for reporting and investigating abuse “indicated a wider systemic problem in the facility” that leaves its residents “at real risk for serious harm”); Rockcastle Health & Rehab. Ctr., DAB No. 2891 at 11 (2018).  By failing to report the allegation, the facility is not ensuring that its residents are free from abuse.  See, e.g., Rosewood Care Ctr. of Swansea, DAB No. 2721 at 12-13 (2016) (finding that failing to report leaves facility residents unprotected against additional instances of abuse); Century Care of Crystal Coast, DAB No. 2076 at 25 (2007) (concluding that, where an incident went unreported and uninvestigated, the facility could not even identify, much less correct, the flaws in its systems).
• back to note 12
13. An occipital hematoma is a collection of blood at the back of the head.  The bleeding occurs between the skull and the brain cover.  It is often caused by a blow to the head and can lead to coma or even death.
• back to note 13
14. These medical and psychiatric interventions relied heavily on increasing the resident’s medications.  But, as this case demonstrates and the Board has recognized, psychotropic medications are not a panacea.  See , DAB No. 1726 at 28.  In Woodstock, as here, the facility attempted to manage behavior through a predictable collection of interventions:  medication, one-on-one talks, and redirection of maladaptive behavior.  The approaches were ineffective and, as the Board determined, they did not satisfy the facility’s obligation to keep its residents safe.  Id.
• back to note 14
15. In fact, the facility may not have added the behavior to R6’s care plan until February 7, 2019.  The entry is undated.  Although Petitioner should not be rewarded for staff’s failing to date all entries, for purposes of summary judgment, I draw all reasonable inferences in Petitioner’s favor and assume the earlier date.  Inasmuch as the facility did not add interventions to address R6’s sexually inappropriate behavior until February 7, 2019, the date the behavior was added to the resident’s care plan is not material.
• back to note 15
16. Penalties are inflation-adjusted and change annually.  The amount is determined as of the date the penalty is assessed, in this case, early 2019 (CMS has not provided the initial notice letter, which would have provided the exact date).  See CMS Ex. 3; 83 Fed. Reg. at 51380.
• back to note 16