Union City Care Center, DAB CR5939 (2021)

DECISION

Petitioner, Union City Care Center (Petitioner or facility), challenges the determination by Respondent, the Centers for Medicare & Medicaid Services (CMS), that it was not in substantial compliance with Medicare program participation requirements such that it placed its residents in immediate jeopardy of harm.  Petitioner also challenges CMS’s imposition of a $13,841 per-day civil money penalty (CMP) from June 3, 2016, through June 7, 2016, and a $303 per-day CMP from June 8, 2016, through June 23, 2016, a total CMP of $74,053.  For the reasons set forth here, I affirm CMS’s determination and find the duration and amount of the CMP reasonable.

I.  Background

Petitioner is a skilled nursing facility located in Union City, Ohio, certified by and participating in the Medicare/Medicaid programs.  In April 2016, after receiving allegations of abuse against the facility, agents from the Ohio Attorney General’s Healthcare Fraud Section (Ohio AG) placed a hidden camera in the room of Resident 13, a facility resident at all times relevant to this decision.  P. Exhibit (Ex.) 8 at 2; CMS Ex. 5 at 1; CMS Ex. 11 at 1.  On June 3, 2016, Ohio AG investigators showed still frames from the hidden camera video to the facility’s administrator and the facility’s director of nursing.  P. Ex. 8 at 2; CMS Ex. 5 at 1-2.  According to the investigators, the still frames

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and corresponding video demonstrated instances of abuse by facility staff towards Resident 13 on April 5, 2016 and April 24, 2016.  Id.

On June 23, 2016, the Ohio Department of Health (state agency) conducted a complaint investigation and partial extended survey of the facility.  CMS Ex. 1.  Based on the incidents that occurred April 5, 2016 and April 24, 2016, the state agency surveyors cited the facility for three deficiencies involving the failure to meet the abuse prevention and reporting requirements of 42 C.F.R. § 483.13,1 all at the immediate jeopardy level:

Tag F223, 42 C.F.R. § 483.13(b), (c)(1)(i), scope and severity level (s/s) J;2
Tag F225, 42 C.F.R. § 483.13(c)(1)(ii)-(iii), (c)(2)-(4), s/s K; and
Tag F226, 42 C.F.R. § 483.13(c), s/s K.  

Id.  The surveyors found that for each deficiency, the facility had removed the circumstances resulting in immediate jeopardy on June 8, 2016, but remained out of substantial compliance because it was still in the process of implementing its corrective action plan and monitoring to ensure compliance.  Id. at 2-3, 5, 14-15, 17, 26, 29.

Accordingly, the state agency notified Petitioner on June 30, 2016, that it recommended CMS impose the following remedies:  (1) a mandatory denial of payment for new admissions (DPNA) effective September 23, 2016, and continuing until the facility came

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into compliance; (2) a per-day CMP effective April 5, 2016 continuing until Petitioner achieved substantial compliance; and (3) termination of Petitioner’s Medicare provider agreement if Petitioner did not achieve substantial compliance by December 23, 2016.  CMS Ex. 3.  The state agency also advised Petitioner that because the facility had been subject to an extended or partial extended survey resulting in a finding of substandard quality of care, federal law required the state agency to withdraw approval of Petitioner’s nurse aide training and competency evaluation program (NATCEP), and bar it from offering or conducting such a program for two years.  Id. at 4. 

On August 3, 2016, the state agency completed a follow up survey and notified Petitioner on August 16, 2016 that it determined the facility had corrected the alleged deficiencies and achieved substantial compliance on June 24, 2016.  CMS Ex. 4.  As a result, the state agency rescinded its recommendation that CMS impose a DPNA and recommended CMS discontinue enforcement remedies as of June 24, 2016.  Id. at 2. 

By notice letter dated October 26, 2016, CMS notified Petitioner that it would not impose a mandatory DPNA or terminate Petitioner’s participation agreement.  CMS Ex. 7 at 1-2.  However, CMS informed Petitioner that it would impose a per-day CMP of $13,841 for five days of noncompliance at the level of immediate jeopardy from June 3 through June 7, 2016, and a per-day CMP of $303 for 16 days, from June 8 through June 23, 2016, for a total CMP of $74,053.  Id.  CMS also barred Petitioner from operating a NATCEP for two years beginning June 23, 2016.  Id. at 3-4.

Petitioner timely sought review by an Administrative Law Judge in the Civil Remedies Division.  This case was docketed as C-17-258 and assigned to the docket of Administrative Law Judge Scott Anderson.  On January 13, 2017, Judge Anderson issued an Acknowledgment and Pre-hearing Order (APHO) that among other things, set forth deadlines by which the parties were required to file their pre-hearing exchanges, including briefs, exhibits, witness lists, and the direct testimony of any witnesses identified.  APHO at 3.

On March 24, 2017, CMS, filed a “Motion for Entry of a Confidentiality Order, For Extension of Filing Deadlines, As Appropriate, And For Waiver of Certain Filing Requirements” (CMS Motion).  CMS stated the deficiencies alleged in this case “center on events captured on video by the [Ohio AG] during its own investigation.  During the survey, the [Ohio AG] provided the Ohio Department of Health with 12 image files that were stills from a video, described in the Statement of Deficiencies.”  CMS Motion at 1.  CMS averred that the Ohio AG’s Office agreed to release two video clips to CMS to use as evidence in this case if CMS sought a confidentiality order before filing the clips as exhibits or providing them to Petitioner.  Id. 

On March 27, 2017, Judge Anderson stayed proceedings in the case pending Petitioner’s response to CMS’s motion and his ruling thereupon.  On April 11, 2017, Petitioner filed

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its objection to CMS’s motion, as well as a motion to issue a subpoena duces tecum to the Ohio AG’s office to release its complete investigative file and the entire video surveillance footage pertaining to the deficiencies at issue here.  On April 17, 2017, CMS filed a response opposing Petitioner’s subpoena request, to which Petitioner replied on May 1, 2017.

On August 25, 2017, this matter was transferred to me to hear and decide.  On March 9, 2018, I issued an order requiring CMS to file, by March 23, 2018, the Statement of Deficiencies (SOD) issued to Petitioner following the June 23, 2016 survey at issue.  In response, CMS filed the SOD on March 12, 2018.

On March 20, 2018, I issued an order granting CMS’s motion for a confidentiality order, setting requirements for the parties to limit the disclosure of the videos at issue, denying CMS’s request to waive filing requirements, and denying, without prejudice, Petitioner’s subpoena requests.  I found that Petitioner had not specified the pertinent facts it expected to establish using the entire 360 hours of video footage.  Nor did Petitioner demonstrate that it could not establish relevant evidence through other means, as required by 42 C.F.R. § 498.58(c)(3).  I noted, however, that Petitioner would be able to renew its motion after the parties filed their pre-hearing exchanges if it could articulate a basis consistent with the authorizing regulations to require production of footage of the entire surveillance period.  I also lifted the stay of proceedings, set new exchange deadlines, and clarified that the directives in the APHO remained in effect.

On April 20, 2018, CMS filed its pre-hearing exchange, consisting of a pre-hearing brief (CMS Prehrg. Br.) and 28 proposed exhibits, including the written direct testimony of its three proposed witnesses.  On June 18, 2018, Petitioner filed its pre-hearing exchange, consisting of a pre-hearing brief (P. Prehrg. Br.) and seven proposed exhibits, including the written direct testimony of its three witnesses.  As part of its pre-hearing exchange, Petitioner also renewed its request for a subpoena duces tecum for the Ohio AG Office’s “investigative file as well as those agents responsible for installing, operating, maintaining, updating, and withdrawing video files from the hidden surveillance device and any AG agents or personnel to which those agents reported from the inception of the investigation through its termination.”  P. Prehrg. Br. at 26.

On June 27, 2018, CMS filed a submission titled “Request to Cross-examine Witnesses, Objections to Proposed Exhibits or Witnesses, and Response to Renewed Request for Subpoena.”  Concerning Petitioner’s renewed subpoena request, CMS noted that Petitioner had expanded the scope of its request, and renewed its objection on the same grounds.  CMS also objected to Petitioner Exhibits 1 and 2 and requested to cross-examine each of Petitioner’s witnesses.

On July 10, 2018, I issued an order denying Petitioner’s renewed motion for a subpoena duces tecum and setting a hearing date.  I found that Petitioner had again failed to specify

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the pertinent facts it expected to establish and to show that it could not establish such evidence through some other means, as required under 42 C.F.R. § 498.58(c)(3).  I also set this matter for hearing from January 29, 2019 through February 1, 2019.

On August 22, 2018, Petitioner filed a motion to supplement its pre-hearing submission, accompanied by a proposed exhibit, P. Ex. 8.  Petitioner requested that I allow it to supplement its pre-hearing exchange with the documents comprising P. Ex. 8, citing as good cause the fact they were relevant and did not exist at the time Petitioner filed its pre-hearing exchange.  On September 5, 2018, CMS filed a response, along with an exhibit labeled as CMS Ex. 29, and moved for leave to supplement its pre-hearing exchange if I granted Petitioner’s August 22, 2018 motion or, alternatively, moved that I deny Petitioner’s motion on grounds that it would likely result in confusion of the record.  On September 10, 2018, I granted the parties’ respective motions to supplement the record and accepted P. Ex. 8 and CMS Ex. 29 as supplemental filings.

On September 17, 2018, I issued an order rescheduling the hearing to take place from January 29 to January 31, 2019.  That same day, CMS filed a motion for summary judgment and its brief in support of that motion.  On September 28, 2018, Petitioner filed a response to CMS’s motion for summary judgment (P. Response).  On November 8, 2018, CMS filed an unopposed motion for a continuance of the hearing date and stay of the remaining pre-hearing deadlines.  On November 30, 2018, I issued an order denying CMS’s motions for summary judgment and a continuance and reminded the parties that the case remained scheduled for hearing beginning on January 29, 2019.  I explained that, viewing the evidence before me at that time and in the light most favorable to Petitioner, and drawing all inferences in Petitioner’s favor, there were genuine disputes as to material facts that precluded summary judgment.

On January 29, 2019, I held a hearing by videoconference, during which Petitioner cross-examined CMS’s three witnesses:  Jason Dorstewitz, a fraud analyst in the Ohio AG’s office; state surveyor Brian Elliott, R.N.; and state surveyor Eric Stammen, R.N.  CMS cross-examined Petitioner’s three witnesses:  Maci Reynolds, STNA (STNA #95); Pam Idle, R.N, Petitioner’s director of nursing (DON); and Greg Bratton, LHNA, Petitioner’s administrator.  CMS Exs. 22-24; P. Exs. 1-3; Transcript (Tr.) at 20-24, 26-51, 53-79, 81-94, 97-114, and 115-122.  I also overruled CMS’s objections to P. Ex. 1 and P. Ex. 2.  There being no other objections to the proposed exhibits, I admitted CMS Exhibits 1 through 29 and Petitioner Exhibits 1 through 8 into the record.  Tr. at 7.

On February 28, 2019, I issued an order notifying the parties that my office had received the transcript of the hearing and setting a deadline for the parties to simultaneously submit post-hearing briefs.  I noted that response briefs would not be permitted absent a showing of good cause.  The parties filed their respective post-hearing briefs (CMS Br. and P. Br.).  CMS subsequently moved for leave to file a response to Petitioner’s post-

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hearing brief and attached its proposed response (CMS Response).  Petitioner filed an opposition to CMS’s motion that also included a reply to CMS’s Response (P. Reply).3

II. Pending Motions and Admission of Exhibits

Petitioner asserts CMS’s Response is simply an attempt to obtain “a second bite at the apple” and to rebut Petitioner’s arguments with additional factual and legal arguments.  P. Reply at 1.  However, in its own post-hearing brief, Petitioner raised new objections to CMS Exhibits 19 and 20, asserting the exhibits are photographs that should be excluded (or, alternatively, afforded little or no weight) based on their lack of relevance, reliability and foundation.  P. Br. at 11-13.  I therefore find good cause to permit CMS to file its Response in order to respond to Petitioner’s new evidentiary objections.  I therefore grant CMS’s motion for leave to file a response to Petitioner’s post-hearing brief.

Turning to these exhibits, I overrule Petitioner’s objections to CMS Exhibits 19 and 20.  First, Petitioner’s objections are untimely.  Judge Anderson’s APHO, which I adopted on March 20, 2018, required Petitioner to raise any objections to CMS’s proposed exhibits in its pre-hearing exchange.  APHO at 5, ¶ 7.  CMS Exhibits 19 and 20 were submitted as part of CMS’s pre-hearing exchange, but Petitioner failed to file objections with its own exchange or even at the outset of the hearing, when Petitioner’s counsel confirmed the facility had no objections.  Tr. at 7.

Nevertheless, because I need receive only material and relevant evidence into the record, see 42 C.F.R. 498.60(b)(1), I have considered the substance of Petitioner’s objections.  Petitioner asserts the images contained in CMS Exhibits 19 and 20 are not relevant because they are grainy, unclear, and do not actually show the abuse alleged to have occurred.  P. Br. at 11-13.  Petitioner also asserts the exhibits are unreliable because two of the photographs have the same time stamp but depict different images.  Id. at 12-13.  Petitioner’s objection is without merit.  I have reviewed the videos CMS submitted as CMS Exhibits 25 and 26, identified as videos from the hidden camera in Resident 13’s room, to which Petitioner did not object.  As explained in greater detail infra, the timestamps on the photographs in CMS Exhibits 19 and 20 clearly correspond to timestamps in the videos submitted as CMS Exhibits 25 and 26.  Because the videos include timestamps in hour, minute, second format and appear to have a frame rate of two frames per second, it is entirely possible that still frames with the same timestamp may depict slightly different images of the encounters in question.

Petitioner otherwise asserts CMS has not established foundation for the admissibility of these exhibits because the agency failed to establish the identity of the individual who set up the video camera before it was placed in Resident 13’s room as well as how (and by

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whom) data was extracted from the video camera.  Id.  As with Petitioner’s other objections, its attack on the foundation for these exhibits is remarkably untimely.  In any case, Petitioner does not appear to claim the photographs at issue do not depict events that occurred in Resident 13’s room on the dates at issue, or that they were manufactured or otherwise inaccurate.  Its attack on CMS’s photographic evidence is purely formalistic.  If Petitioner wished to challenge the authenticity of CMS’s exhibits, it should not have waited until post-hearing briefing to do so.

Petitioner’s objections are therefore overruled.  CMS Exhibits 1 through 29 and Petitioner’s Exhibits 1 through 8 are admitted into the record.

III. Issues

The issues presented are:

1. Whether Petitioner was in substantial compliance with 42 C.F.R. § 483.13(b), (c)(1)(i) (Tag F223); 42 C.F.R. § 483.13(c)(1)(ii)-(iii), (c)(2)-(4), (Tag F225); and 42 C.F.R. § 483.13(c) (Tag F226).
2. Whether CMS’s determination of noncompliance at the immediate jeopardy level is clearly erroneous; and
3. If Petitioner was not in substantial compliance, then whether the per-day CMP amounts and duration selected by CMS are reasonable.

IV. Jurisdiction

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

V. Discussion

A. Applicable Legal Authority

The Social Security Act (Act) sets forth requirements for participation by a skilled nursing facility (SNF) in the Medicare program and authorizes the Secretary of Health and Human Services (the Secretary) to promulgate regulations implementing those statutory provisions.  42 U.S.C. § 1395i-3.  The Secretary’s regulations are found at 42 C.F.R. Parts 483 and 488.  To participate in the Medicare program, a SNF must maintain substantial compliance with program participation requirements.  To be in substantial compliance, a SNF’s deficiencies may “pose no greater risk to resident health

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or safety than the potential for causing minimal harm.”  42 C.F.R. § 488.301.  “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.”  Id.

The Secretary contracts with state agencies to conduct periodic surveys to determine whether SNFs are in substantial compliance.  42 U.S.C. § 1395aa(a); 42 C.F.R. § 488.10.  The Act also authorizes the Secretary to impose enforcement remedies against SNFs that are not in substantial compliance with the program participation requirements.  42 U.S.C. § 1395i-3(h)(2).  The regulations specify the enforcement remedies that CMS may impose, including CMPs.  42 C.F.R. § 488.406(a)(3).  CMS may impose a per-day CMP for the number of days a SNF is not in substantial compliance or a per-instance CMP for each instance of the SNF’s noncompliance.  42 C.F.R. § 488.430(a).

Relevant here, a per-day CMP may range from either $50 to $3,000 per day for less serious noncompliance, or $3,050 to $10,000 per day for more serious noncompliance that poses immediate jeopardy to the health and safety of residents.  42 C.F.R. § 488.438(a).4  “Immediate jeopardy” exists when “the provider’s noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.”  42 C.F.R. § 488.301.

If CMS imposes a CMP based on a noncompliance determination, then the facility may request a hearing before an Administrative Law Judge to challenge the noncompliance finding and enforcement remedy.  42 U.S.C. §§ 1320a-7a(c)(2), 1395i-3(h)(2)(B)(ii); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13).  However, the facility may not appeal CMS’s choice of remedies.  42 C.F.R. § 488.408(g)(2).

CMS has the burden to produce evidence sufficient to make a prima facie case that Petitioner is out of substantial compliance with participation requirements to establish a basis to impose an enforcement remedy.  See, e.g., Evergreene Nursing Care Ctr., DAB No. 2069 at 7 (2007).  If CMS makes this prima facie showing, then Petitioner bears the ultimate burden of persuasion as to whether it substantially complied.  In other words, Petitioner must show, by a preponderance of the evidence on the record as a whole that it was in substantial compliance with participation requirements.  Id.  Petitioner has both the burden of coming forward and the burden of persuasion as to any affirmative defense.  Evergreene Nursing Care Ctr., DAB No. 2069 at 7; Batavia Nursing & Convalescent

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Inn, DAB No. 1911 (2004), aff’d, Batavia Nursing & Convalescent Ctr. v. Thompson, 129 F. App’x 181 (6th Cir. 2005).

With respect to the deficiencies at issue here, the regulations at 42 C.F.R. § 483.13(b) and (c) provide, in relevant part:

(b) Abuse.  The resident has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion.

(c)  Staff treatment of residents.  The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property.

(1)  The facility must—

(i)  Not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion;

(ii)  Not employ individuals who have been—

(A)  Found guilty of abusing, neglecting, or mistreating residents by a court of law; or
(B)  Have had a finding entered into the State nurse aide registry concerning abuse, neglect, mistreatment of residents or misappropriation of their property; and

(iii)  Report any knowledge it has of actions by a court of law against an employee, which would indicate unfitness for service as a nurse aide or other facility staff to the State nurse aide registry or licensing authorities.

(2)  The facility must ensure that all alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source, and misappropriation of resident property are reported immediately to the administrator of the facility and to other officials in

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accordance with State law through established procedures (including to the State survey and certification agency).

(3)  The facility must have evidence that all alleged violations are thoroughly investigated and must prevent further potential abuse while the investigation is in progress.

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

B. Analysis5

CMS’s finding that Petitioner was not in substantial compliance with the abuse prevention requirements of 42 C.F.R. § 483.13(b), (c)(1)(i) (Tag F223) arose from incidents involving Resident 13 on April 5 and April 24, 2016. 

Resident 13 was a 43-year old male who had sustained a traumatic brain injury in a car crash and was admitted to the facility on February 6, 2014.  CMS Ex. 14 at 1-3, 15.  His diagnoses included, among other conditions, intracranial injury, encephalopathy, major depressive disorder, anxiety disorder, muscle weakness, conduct disorder, loss of purposeful movement, impulse control disorder, diabetes, and full incontinence.  Id. at 1-3. 

His February 2014 care plan, in effect on the dates at issue, reflected that he required total care from staff with bathing, mouth care, grooming, dressing, and toileting.  Id. at 3; Tr. at 102.  He required assistance with positioning, two-person assistance or use of a Hoyer mechanical lifting device for transfers, and a wheelchair for mobility.  Id. at 3.  

Resident 13 exhibited memory problems, impaired decision-making, resistance to care, sexual aggressiveness, and daily sexual impropriety.  Id. at 3, 6.  His behavioral symptoms were noted to be “not easily altered and potentially harmful to [him] or others.”  Id. at 4.  Resident 13’s care plan called for facility staff to use interventions for his behavioral issues, including allowing him to calm down before attempting to continue with care and for staff to use redirection and cueing when necessary.  Id.  Resident 13

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also demonstrated severe cognitive impairment, scoring 2 out of 15 on the Brief Interview for Mental Status (BIMS) assessment.  CMS Ex. 1 at 6.

CMS contends that, on April 5, 2016, Petitioner’s employee, hospitality aide (HA) #70, abused Resident 13 in front of another staff member, state tested nursing assistant (STNA) #95, by pinching his ear after he grabbed her breast while they provided him incontinence care.  CMS Prehrg. Br. at 7-8, 13; CMS Ex. 1 at 8; CMS Ex. 12 at 1.  CMS argues the hidden video camera placed in Resident 13’s room, along with still frames from the video, confirm that HA #70 either pinched Resident 13’s ear or behind his ear in the presence of STNA #95.  Id. at 7- 8.

CMS also asserts that on April 24, 2016, another facility staff member, STNA #100, abused Resident 13 by pulling his hair, an incident again witnessed by STNA #95.  Id. at 9-10; CMS Ex. 12 at 1.  CMS contends hidden camera footage, along with still frames from that footage, show that after the staff members transferred Resident 13 into his wheelchair, STNA #100 reached with an open hand toward the top of Resident 13’s head, closed her hand on his head, and pulled his head down and toward her.  CMS Prehrg. Br. at 9.

CMS alleges that in both instances Petitioner violated the requirements set forth at 42 C.F.R. § 483.13(b), (c)(1)(i), which describe nursing facility residents’ right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion, and that a facility must not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion.  CMS Prehrg. Br. at 11-18; CMS Br. at 3-18.

Petitioner contends it was in substantial compliance with 42 C.F.R. § 483.13(b) and (c)(1)(i) and denies that any member of its staff abused Resident 13 in either incident.  See, e.g., P. Prehrg. Br. at 7-16.  Petitioner asserts STNA #95 denied witnessing abuse in either incident, that neither Resident 13 nor his father reported abuse to the facility, and that in both cases, its staff engaged in self-defense from Resident 13’s sexually inappropriate conduct, not abuse.  See, e.g., P. Br. at 13-21.

As explained below, I find the record before me demonstrates by a preponderance of the evidence that Petitioner’s staff abused Resident 13 on both occasions.

1. Petitioner was not in substantial compliance with 42 C.F.R. § 483.13(b), (c)(1)(i) (Tag F223) because HA #70 abused Resident 13 on April 5, 2016.

In response to CMS’s contention that HA #70 abused Resident 13 on April 5, 2016, Petitioner asserts the video footage from that date, which shows HA #70 approach Resident 13, lean over him, and withdraw, does not demonstrate abuse, and that HA

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#70’s actions were instead either an attempt to redirect Resident 13 or an act of self-defense to prevent her from being assaulted.  P. Response at 3, 4-5, 9.

Upon review of the hidden camera video of the incident and accompanying still photos, I cannot agree with Petitioner.  CMS Ex. 25.6  At 16:40:45, STNA #95 enters Resident 13’s room, puts latex gloves on, and walks to the left-hand side of Resident 13’s bed, in which the resident is situated.  HA #70 enters the room at 16:40:53, begins to put her gloves on at 16:41:15, and walks toward the resident’s bed.  At 16:41:29, STNA #95 moves to the left and is momentarily out of the camera’s view as HA #70 approaches the right-hand side of the bed.

Between 16:41:31 and 16:41:32, as STNA #95 re-enters the camera’s frame from the left, Resident 13 rolls to his right (toward HA #70), reaches across his body with his left hand, and grabs HA #70’s left breast.  CMS Ex. 19 at 1.  HA #70 immediately pushes Resident 13’s hand away with her left hand, moves slightly back, and briefly looks at Resident 13.  These actions are captured from 16:41:32 to 16:41:33 and partially depicted in the second of two still frames timestamped 16:41:32.  Id.

From 16:41:34 to 16:41:35, HA #70 moves toward Resident 13, leans forward while placing her left hand on Resident 13’s right hand, and reaches her right arm toward his head.  Her right hand makes contact with his head, a moment partially depicted in the first of two still frames timestamped 16:41:34.  Id.  From 16:41:35 to 16:41:36, Resident 13 reaches up with his left hand, grabs HA #70’s right elbow, and pushes her arm away as she moves back slightly.  These moments are depicted in the four still frames timestamped 16:41:35 and 16:41:36.  Id. at 2-3.  At 16:41:37, HA #70 turns back toward Resident 13 and begins providing incontinence care.  During this incident, STNA #95 is facing Resident 13 and HA #70 but did not intervene.  CMS Ex. 25 at 16:41:32-16:41:36.

Although the video clearly shows HA #70’s right hand making contact with Resident 13’s head, neither the video nor the corresponding still frames are of a high enough resolution to conclusively determine the nature of HA #70’s contact with Resident 13.  CMS Ex. 25 at 13:41:34; CMS Ex. 19 at 1.  However, according to Surveyor Elliott, whose survey notes are memorialized in the Statement of Deficiencies, HA #70 confirmed to her during a June 8, 2016 interview that she pinched Resident 13 “behind the ear” after he grabbed her left breast.  CMS Ex. 1 at 8; CMS Ex. 22 at 1.  HA #70 explained to Surveyor Elliott that she “pinched Resident 13’s ear as a reaction to [him]

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grabbing her breast” and, though she acknowledged her act was “inappropriate,” denied it was an act of abuse.  Id.  HA #70 stated that she had never previously touched a resident in that manner and that she usually told Resident 13 “no” and backed up on prior occasions when he had tried to touch her inappropriately.  Id.

Meanwhile, in a facility incident summary dated June 3, 2016, HA #70 admitted to the facility’s Administrator and Director of Nursing (DON) that she “tugged Resident 13’s hair” to prevent what she characterized as continued sexual assault.7   CMS Ex. 21 at 2.

Petitioner conceded in its pre-hearing brief that HA #70 admitted to “pinching [Resident] 13’s ear” but claimed “[t]here was nothing retaliatory about HA #70 pinching [Resident] 13 behind the ear.”  P. Prehrg. Br. at 9, 15.  Petitioner now contends I should give no weight to HA #70’s admissions as to the nature of her contact with Resident 13 because they are inconsistent:  Surveyor Elliot recorded that HA #70 admitted she “pinched Resident 13 behind the ear,” while Surveyor Stammen testified that HA #70 admitted she pinched Resident 13 “in” the ear.  P. Br. at 4-6; Tr. at 63.  Petitioner asserts these admissions are again inconsistent with HA #70’s admission to the facility that she in fact “tugged Resident 13’s hair.”  P. Br. at 6; CMS Ex. 21 at 1-2.  Petitioner argues the discrepancies in HA #70’s admissions are material and undermine CMS’s reliance on them to establish the nature of HA #70’s contact with Resident 13.  P. Br. at 6.

I am unpersuaded that the discrepancies in HA #70’s admissions merit their outright dismissal as competent evidence.  The variance between HA #70’s admissions as recorded by Surveyors Elliott and Stammen is slight; both surveyors provided evidence that HA #70 admitted to pinching Resident 13 in, on, or behind his ear.  Petitioner’s attempt to point to HA #70’s later admission to facility management that she had instead “tugged [Resident 13’s] hair” as evidence of the unreliability of all HA #70’s admissions fails as well, because any of the contact admitted to by HA #70 would constitute abuse. Tr. 102:8-19 (the DON testifying neither form of contact would be an appropriate form of intervention).8

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To the extent there is uncertainty as to the exact nature of HA #70’s contact with Resident 13 on April 15, 2016, CMS correctly argues that Petitioner cannot prevail by

claiming absolute certainty is required.  CMS Br. at 8, citing Golden Living Ctr.–Riverchase, DAB No. 2314 at 14 (2010); Jennifer Matthew Nursing & Rehab Ctr., DAB No. 2192 at 19-20 (2008) (under the preponderance of the evidence standard, “the fact that an ALJ cannot ‘know’ with absolute certainty whether the disputed facts were one way or another does not mean that the evidence is in equipoise.”).

Here, CMS has established by preponderance that HA #70 made contact with Resident 13, and that based on her admissions, that contact was either pinching in, on, or behind the resident’s ear, and/or pulling of the resident’s hair.  CMS Ex. 1 at 8; CMS Ex. 19 at 1; CMS Ex. 21 at 2; CMS Ex. 22 at 1; CMS Ex. 25 at 13:41:34.  Petitioner has not shown why a distinction between a pinch or hair pull is material to the outcome here, as either could constitute abuse under 42 C.F.R. § 483.13(b), (c)(1)(i).  CMS has made its prima facie case of non-compliance, meaning Petitioner must either rebut CMS’s evidence or affirmatively demonstrate substantial compliance.  Evergreen Nursing Care Ctr., DAB No. 2069 at 7 (2007).

To that end, Petitioner claims no abuse took place at all, pointing out that STNA #95 denied witnessing HA #70 pinching Resident 13’s ear or pulling his hair in interviews with the state agency surveyor on June 7, 2016, and with the facility’s Administrator and DON on June 3, 2016.  P. Prehrg. Br. at 10; P. Br. at 17-19; CMS Ex. 1 at 7-8; CMS Ex. 21 at 1-2.  In both her declaration and at the hearing, STNA #95 affirmed under oath that she did not see HA #70 pinch Resident 13 or tug his hair.  P. Ex. 3 at 2; Tr. at 93-94.

I do not find STNA #95’s testimony on this point credible or entitled to any weight.  In the first place, STNA #95 did not explain what sort of contact took place between HA #70 and Resident 13 despite having a clear view of that incident from her vantage point.  See P. Ex. 3 at 2; Tr. at 93-94.  She cannot credibly assert no contact took place, because the video footage and accompanying still photographs make clear HA #70 contacted Resident 13’s head in a manner both surveyors described as having no clinical purpose.  CMS Ex. 25 at 16:41:35-16:41:36; CMS Exs. 19, 22 at 3-4, and 23 at 2-3.  STNA #95’s failure to explain the nature of the contact she must have observed is notable.  I cannot ascribe much probative value to her conclusory denial that no abuse took place when she does not bother to explain what she in fact witnessed.  See Golden Living Ctr., DAB No. 2314 at 14 (describing a facility’s responsibility to fill an evidentiary vacuum where circumstances otherwise indicate a facility is not in substantial compliance).  A blanket denial of abuse by an observing member of the facility’s staff is simply insufficient.

STNA #95’s testimony is otherwise inconsistent with the admissions made by HA #70 concerning the nature of her contact with Resident 13 made to the surveyors and facility management.  CMS Ex. 1 at 8; Tr. at 63 (Surveyor Stammen testifying HA #70 admitted she had pinched Resident 13 in the ear); P. Prehrg. Br. at 9, 15 (Petitioner’s concessions

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that HA #70 admitted to surveyor Elliott that she had pinched Resident 13).  Accordingly, STNA #95’s testimony fails to provide a sufficient basis for me to conclude no abuse occurred on April 5, 2016.

Petitioner also relies on the alleged denial of abuse made by Resident 13 himself during a June 3, 2016 interview with DON Idle, as well as the fact that neither Resident 13 nor his father complained about abuse to the facility’s staff.  P. Prehrg. Br. at 2; CMS Ex. 21 at 2; P. Ex. 2 at 2.  Surveyor Elliott did confirm Resident 13 denied being abused and his father “denied any knowledge of abuse.”  Tr. at 34, 51; see CMS Ex. 1 at 7.  However, I cannot ascribe any probative value to Resident 13’s denial of abuse on April 5, 2016.

First, Resident 13 suffered extreme cognitive impairment resulting from traumatic brain injury, encephalopathy, major depressive disorder, and anxiety disorder.  CMS Ex. 14 at 1-3, 15.  He exhibited significant memory problems and scored only 2 out of 15 on the BIMS assessment.  CMS Ex. 1 at 6; CMS Ex. 14 at 3, 6; Tr. at 50 (Surveyor Elliott testifying an individual with a BIMS score of 2 is “severely cognitively impaired.”); Tr. at 112 (DON Idle confirming Resident 13 “couldn’t repeat three questions or the answers to three questions.”).

Second, Resident 13 was interviewed by DON Idle on June 3, 2016, and by Surveyor Elliott on June 7, 2016, approximately two months after the incident.  Id.  Even a reasonably neurotypical individual without major limitations in cognition or deficits in memory might have difficulty remembering details of a brief incident two months after the fact.  But an individual with Resident 13’s significant memory and cognitive issues could not reasonably be relied upon to provide accurate testimony that would rebut admissions made by a facility employee.  Similarly, I cannot ascribe any weight to the lack of a complaint or report from Resident 13’s father, as he was not in the room during the incident and would only have known what Resident 13 was able to remember and convey to him.

But in any case, the actions or inaction of Resident 13 or his father are simply immaterial to the question of whether abuse occurred within the meaning of the Secretary’s regulations governing skilled nursing facilities.  Petitioner appears to believe that Resident 13’s failure to report HA #70’s contact to either his treating physician,9 the facility, or in later interviews demonstrates abuse did not take place.  But even an unimpaired resident could be unaware that smaller acts of abuse (like pinching or hair

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pulling) are nevertheless incidents of abuse that require reporting.  Petitioner cannot rely on the failure of a cognitively limited individual with brain trauma and a host of mental issues to know when to signal possible abuse to his care providers.  That burden does not rest on the resident.  See, e.g., Ill. Knights Templar Home, DAB No. 2369 at 8 (2011) (finding unpersuasive a facility’s “speculative” argument that a resident was not frightened by another resident’s behavior because “she did not make any contemporaneous complaint about [the other resident] or even remember the incident” when interviewed by surveyors).

Petitioner next attempts to frame HA #70’s contact with Resident 13 as non-abusive.  Citing 42 C.F.R. § 488.301, which defines “abuse” to mean an action resulting in harm to a resident, Petitioner contends that Resident 13 was not harmed by HA# 70’s action and that a “non-harmful ‘pinch’ or tweak of the ear” could serve as a redirecting cue to distract “children or child-like persons” or alert them to discontinue a certain activity.  P. Prehrg. Br. at 12-14.10  Petitioner also relies on testimony by the facility’s Administrator and Director of Nursing, both of whom opined that no abuse occurred.  P. Ex. 1, Tr. 121; P. Ex. 2, Tr. 113.

I find no merit in Petitioner’s claim that HA #70’s conduct was not abuse because it caused no harm and was intended to redirect his behavior.  The opinions of the facility’s Administrator and the DON are incredible and self-serving, and I give them no weight.  As CMS points out, the Administrator had no experience providing care, no training with respect to abuse, and incorrectly believed abuse required the intent to inflict harm.  CMS Br. at 17, citing Tr. 120-21.  Meanwhile, the DON’s opinion is inconsistent and unsupported by the record; despite her claim at the hearing that the facility’s investigation found abuse was unsubstantiated, the contemporaneous report from the facility to the state, presumably generated with her input, indicated suspected abuse and resulted in the firing of HA #70 and STNA #95.  Compare Tr. 113, with CMS Ex. 21 at 3.

In any event, Petitioner cannot plausibly assert that pinching Resident 13’s ear (or behind it) or pulling his hair did not, at minimum, cause pain, and therefore harm.11

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The examples of non-abusive contact Petitioner identified (a handshake, touching a resident’s hair, or holding their hand) are poor comparators to pinching or hair pulling, which are atypical forms of non-care contact intended to cause pain.  Id. at 13 n.3.

Petitioner’s argument is profoundly undercut by the fact that its own abuse policy defines such contact as abuse without regard for intent or the degree of harm caused.  That policy (mirroring CMS guidance in the SOM) specifies that “Physical Abuse . . . includes, but is not limited to hitting, slapping, pinching, and kicking.  It also includes controlling behavior through corporal punishment.”  CMS Ex. 15 at 2 (emphasis added); SOM, App. PP - Guidance to Surveyors for Long Term Care Facilities (eff. Oct. 9, 2015) (SOM App. PP) at 78; CMS Ex. 2 at 6.  

Petitioner’s DON confirmed under oath that pinching and hair pulling were not interventions condoned by the facility for its staff to use.  Tr. at 102.  Such interventions were not otherwise called for or permitted by Resident 13’s care plan, which was presumably tailored for an adult with a severe cognitive impairment.  CMS Ex. 14 at 3-13.  That care plan instructed care providers to allow Resident 13 to calm down before attempting to continue with care and to use redirection and cueing when necessary.  Id. at 3.  As Surveyor Stammen declared, HA #70 “had an opportunity to follow the care plan—by backing up, stepping away, and allowing [Resident] 13 to calm down before re-approaching—but did not do so.”  CMS Ex. 23 at 3.

Petitioner’s characterization of HA #70’s contact with Resident 13 as a non-abusive method of redirecting his behavior was therefore not permitted under the SOM, the facility’s own abuse policy, or the resident’s care plan.  In sum, I find it more likely than not that HA #70 did not attempt to redirect Resident 13, but instead engaged in retributive contact in reaction to Resident 13’s inappropriate conduct that caused him physical harm.  CMS Ex. 22 at 3-4 (Surveyor Elliott declaring that HA #70 admitted that “the action was not related to care but was a pinch in retaliation for [Resident] 13’s behavior.”).  HA #70’s contact with Resident 13 on April 5, 2016 therefore meets the regulatory definition of physical abuse.

Petitioner next attempts to characterize HA #70’s actions as non-abusive because she engaged in self-defense.  P. Prehrg. Br. at 14-16; P. Br. at 7-9.  Petitioner contends Resident 13 consistently made sexually inappropriate and harmful contact with facility staff and that the measure found in his care plan to address that behavior – “requiring ‘redirecting prn’” – was “undisputedly ineffective.”  Id. at 8.  Petitioner explains HA #70 did not intend to harm Resident 13,12 and in support cites STNA #95’s testimony in her

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declaration that “[r]etreating from [Resident] 13’s attacks is impossible as doing so makes the other [staff member] more likely to be harmed and in danger of [his] attacks.”  Id. at 9-10; P. Ex. 3 at 1.  Petitioner asserts criminal law principles pertaining to self-defense are applicable in this case, citing an Ohio appellate court decision affirming a state ALJ’s finding that an employee of the Ohio Department of Youth Services was justified in using a closed fist to strike a child incarcerated in a facility of that department.  P. Br. at 19-20, citing Dep’t of Youth Services v. Grimsley, Ohio App. 10th, No. 18AP-546 (2019).

CMS disputes Petitioner’s characterization of HA #70’s actions as self-defense, observing it is not uncommon for nursing facility residents to exhibit physical aggression or resistance to care towards staff.  CMS Br. at 12.  CMS asserts that a facility’s obligation to ensure residents are free from abuse plainly forbids use of physical force or intimidation tactics against a resident who resists care or is verbally or physically aggressive toward staff, even where a resident has made “sexual advances” to female aides.  Id., citing Honey Grove Nursing Ctr., DAB No. 2570 at 8-9, 12 (2014), aff’d Honey Grove Nursing Ctr. v. U.S. Dep’t of Health & Human Servs., 606 F. App’x 164 (5th Cir. 2015).

Petitioner’s reliance on principles of self-defense arising under state law is unavailing.  There may be a scenario where a facility could be found substantially compliant with its obligation to ensure residents are free from abuse where an employee exercises physical force against a resident for the purpose of self-defense; this is not that case.  The record makes plain Petitioner never gave any credence to the notion that HA #70 simply defended herself.  The facility suspended HA #70 on June 3, 2016 and, after conducting an investigation, terminated her employment on June 9, 2016.  CMS Ex. 1 at 3-4; CMS Ex. 18 at 2; P. Prehrg. Br. at 2-3.

State regulatory and enforcement bodies similarly declined to find self-defense applicable here.  The state of Ohio determined HA #70 abused a resident and therefore placed her on a registry to ensure she would be ineligible to work in a long-term care facility.  CMS Ex. 29 at 1-5.  Meanwhile, state authorities charged HA #70 with felony counts of patient abuse and neglect, which she resolved by pleading to a lesser charge.  CMS Ex. 12 at 1; CMS Ex. 27 at 1.  If HA #70 could have made out a colorable claim of self-defense, it is doubtful she would have been suspended, terminated, placed on a non-employment registry, and criminally prosecuted.  Petitioner cannot now assert HA #70 acted in self-defense under a theory of state law no state actor – or at the time, Petitioner – found plausible.

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Certainly, it is difficult by any standard to understand HA #70’s conduct as self-defense.  The record establishes HA #70 pinched Resident 13 after he grabbed her breast.  CMS Exs. 1 at 8; CMS Ex. 25 at 16:41:31-16:41:36.  As Surveyor Stammen credibly testified, “defensive contact would be immediate and merely to allow [a caregiver] to clear him or herself from the reach of an aggressive resident . . . .”  CMS Ex. 23 at 3.  Here, consistent with his care plan, HA #70 did step back and clear herself from Resident 13’s reach, but then moved back toward him and pinched him on or behind his ear.  CMS Ex. 25 at 16:41:32-16:41:36.  HA #70 admitted to Surveyor Elliott that she “pinched Resident 13 as a reaction to [him] grabbing her breast.”  CMS Ex. 1 at 8.  This does not reflect defensive action by HA #70.

I recognize HA #70 was placed in the difficult situation of caring for a resident that repeatedly sought to sexually assault her.  Nevertheless, HA #70’s act of pinching Resident 13 on or behind his ear simply cannot be characterized as “self-defense.”  The SOM specifies that CMS “does not consider striking a combative resident an appropriate response in any situation” and that “[r]etaliation by staff is abuse and should be cited as such.”  SOM, App. PP at 80.   The facility’s abuse policy similarly prohibited pinching or the use of corporal punishment to control behavior.  CMS Ex. 15 at 2.  HA #70’s action was retaliatory in nature, not defensive.  I conclude the evidence of record demonstrates by a preponderance that HA #70 abused Resident 13 on April 5, 2016.  Petitioner was not in substantial compliance with 42 C.F.R. § 483.13(b), (c)(1)(i) (Tag F223) as of that date.

2. Petitioner was not in substantial compliance with 42 C.F.R. § 483.13(b), (c)(1)(i) (Tag F223) because STNA #100 abused Resident 13 on April 24, 2016.

Petitioner disputes CMS’s contention that video footage of the contact between STNA #100 and Resident 13 on April 24, 2016 supports the conclusion that STNA #100 abused Resident 13.  Like the April 5, 2016 video, the April 24, 2016 footage does not include audio and is slightly grainy, but is sufficiently clear for a viewer to ascertain the individuals involved and their movements.13   CMS Ex. 26.  Petitioner asserts that after STNA #95 and STNA #100 placed Resident 13 in his wheelchair, Resident 13 “immediately made a threatening move toward STNA #100’s face.”  P. Prehrg. Br. at 10.  Petitioner explains that “[i]n attempting to defend herself, STNA #100 placed her hand on [Resident] 13’s head, which [he] was already lowering and then backed away” from Resident 13.  Id.  Petitioner contends that video does not show a “sudden jerk” of

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Resident 13’s head as one might expect if, as CMS asserts, STNA #100 had used his hair to bend “[his body] forward and down to almost [his] chest.”  Id. at 11.

Contrary to Petitioner’s assertion, I find the video footage of the April 24, 2016 incident more likely than not demonstrates abusive contact by STNA #100 towards Resident 13.  At 16:40:00, STNA #95 enters Resident 13’s room while Resident 13 is in his bed.  CMS Ex. 26.  STNA #100 enters the room at 16:40:50.  Id.  At 16:41:47, Resident moves his left hand toward STNA #100’s upper body and she moves his hand away with her left hand.  Id.  From 16:42:06 to 16:42:11, STNA #100 helps Resident 13 to a seated position near the right edge of his bed and, from 16:42:22 to 16:42:28, STNA #95 and STNA #100 help Resident 13 into his wheelchair.  Id.  STNA #100 is directly in front of Resident 13, and STNA #95 is directly behind him.  Id.

At 16:42:29, Resident 13 lifts his left arm toward STNA #100, who is standing to his front and left.  Id.  This moment is captured in the still frame with the same timestamp.  CMS Ex. 20 at 1.  At 16:42:30, STNA #100 moves back slightly, then reaches forward with her left hand, places it on top of Resident 13’s head while forming a fist, and moves her hand downward and toward her body as his head and neck tilt downward and to his left, toward STNA #100.  CMS Ex. 20 at 1-2; CMS Ex. 26 at 16:42:30-16:42:31.  In contrast to the video of the April 5, 2016 incident, the footage here indisputably demonstrates STNA #100 had a hold of Resident 13’s hair in her fist.  Id.

Petitioner argues Resident 13’s head “was already lowering” and that the video “does not show a sudden jerk” of his head that could be expected if STNA #100 had pulled his head and body toward her.  P. Prehrg. Br. at 10-11.  However, the video footage clearly shows that Resident 13’s head and neck are pulled down and toward STNA #100 while her hand grasped Resident 13’s hair.  CMS Ex. 26 at 16:42:30-16:42:32; CMS Ex. 20 at 1-2.  As a result of STNA #100’s action, Resident 13 immediately lifted his left arm in an apparent attempt to move her hand away from her, while at the same time STNA #95 moved his wheelchair backwards.  CMS Ex. 26 at 16:42:30-16:42:33.

Petitioner points out that when interviewed by Surveyor Elliott, STNA #100 denied pulling Resident 13’s hair.  P. Prehrg. Br. at 4; P. Br. at 2-3; CMS Ex. 1 at 8.  I do not find STNA #100’s denial credible.  The video footage of the incident plainly demonstrates she made contact with Resident 13’s head, causing it to move downwards.  There is no care-related reason for STNA #100 to have made contact with Resident 13’s head, as by that point she had already assisted him in transferring to a chair.  CMS Ex. 22 at 4.  In addition, STNA #100’s statement to Surveyor Elliott that she did not recall the identity of the only other staff member in the room at the time of this incident suggests either an unreliable recollection of the event or a self-serving intent to obfuscate.  CMS Ex. 1 at 8.

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STNA #95’s claim that she witnessed no abusive contact by STNA #100 on April 24, 2016 is equally incredible.  The video footage reflects STNA #95 reacted in a manner inconsistent with her claim:  after STNA #100 grabbed Resident 13’s hair and pulled his head down, STNA #95 immediately moved Resident 13’s wheelchair away from STNA #100 in response.  CMS Ex. 26 at 16:42:30-16:42:31; CMS Ex. 20 at 1-2.  And, as with her recollection of the April 5, 2016 incident, STNA #95 provides no alternate explanation for what she did observe that would be consistent with the video footage.  P. Ex. 3.

As with the April 5, 2016 incident, Petitioner seeks to rely on the fact that Resident 13 denied STNA #100 abused him on April 24, 2016.  For the same reasons I discussed pertaining to the prior incident, I ascribe no weight to the denial of abuse made by a resident with documented cognitive issues and memory problems who was not interviewed until approximately six weeks after the incident at issue.  Similarly, a lack of complaint from the resident’s father carries little weight because the resident’s father was not present for the incident and could only have reported what Resident 13 was able to recall and relay to him.

Petitioner also contends, as it did with respect to the April 5, 2016 incident, that STNA #100 acted in self-defense and in any event did not cause actual harm to Resident 13.  P. Prehrg. Br. at 14-16; P. Br. at 19-21.  As I previously explained, the regulation defining “abuse” only requires the act to be “willful,” meaning deliberate; the intent to cause pain is not necessary to find abuse occurred.  42 C.F.R. § 488.301; Merrimack Cty., DAB No. 2424 at 4-5.  Petitioner cannot credibly assert STNA #100’s actions were not deliberate, or that pulling a resident’s hair to yank his head down would not cause pain.  And as Surveyor Stammen credibly testified, STNA #100 “had an opportunity to follow the care plan—by backing up, stepping away, and allowing [Resident] 13 to calm down before re-approaching—but did not do so.”  CMS Ex. 23 at 3.  Instead, the video footage shows STNA #100 moved toward Resident 13 to pull his hair after clearing herself from his reach.  CMS Ex. 26 at 16:42:29-16:42:32.  By clearing herself from Resident 13’s reach and then returning to make physical contact with him by pulling his hair, STNA #100 did not engage in self-defense.

Petitioner’s contemporaneous reaction to STNA #100’s conduct undermines its present claim that she did not abuse Resident 13 or that she acted in self-defense.  Petitioner suspended STNA #100 on June 3, 2016, and, after investigating the incident, terminated her employment on June 9, 2016.  CMS Ex. 1 at 3-4; CMS Ex. 18 at 2; P. Br. at 2-3.  Petitioner’s argument is further undermined by its lack of documentation concerning the possibility that STNA #100 defended herself, a reasonably self-serving measure one would expect a facility to take if one of its employees had been accused of abusing a resident.  As Surveyor Stammen credibly observed, “if an incident with a resident required a nurse or nurse aide to defend him or herself physically, [he] would expect to find documentation in the facility’s records about the event and the facility’s plan to

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prevent another occurrence,” but, during the survey, he “saw no such documentation.”  CMS Ex. 23 at 3.  Petitioner has offered no evidence it ever considered STNA #100’s actions to amount to self-defense until it became expedient to do so in the course of litigation.

And as with HA #70, state authorities did not consider STNA #100’s actions on April 24, 2016 to be either non-abusive or defensive in nature, as they charged STNA #100 with felony patient abuse, a charge she subsequently resolved by pleading guilty to a lesser charge.14   CMS Ex. 12 at 1; CMS Ex. 28 at 1, 3-4.  The fact that state criminal authorities viewed the same videographic evidence before me and believed criminal charges to be warranted confirms there is little merit to the notion STNA #100 either engaged in non-abusive conduct or engaged in self-defense.

Finally, Petitioner relies on a Report and Recommendation made by a hearing officer for the Ohio Department of Health, pertaining to STNA #100’s nursing aide licensure, which concluded the state had presented insufficient evidence to conclude STNA #100 had abused Resident 13 on April 24, 2016.  P. Br. at 2; P. Ex. 8.  I give this report no weight.  In the first place, a state hearing officer’s conclusions are not binding on me.  Ridgecrest Healthcare, DAB No. 2598 at 11 (2014), citing Britthaven of Chapel Hill, DAB No. 2284 at 6-7 (2009) (internal citations omitted) (“[We have] also held, moreover, that determinations of compliance by state agencies are not binding on the ALJ, who is charged with making a de novo determination based on the record before him as to whether the facility was in substantial compliance with the requirements in the federal regulations.”).

The hearing officer’s analysis is otherwise entitled to little weight because he applied state law to reach his conclusions.  Noting Ohio state law defined abuse to mean an individual knowingly or recklessly caused physical harm through physical contact, the hearing officer concluded “there was no credible evidence presented to demonstrate that the resident suffered any injury or pain or that [STNA #100] acted knowingly to inflict harm.”  P. Ex. 8 at 3-4.  But as I have already explained, the relevant federal regulations do not require CMS to show STNA #100 intended to harm Resident 13 to demonstrate abuse.  42 C.F.R. § 488.301.

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Beyond that, the hearing officer did not have access to the broader swathe of evidence  before me, which includes testimony and reports from the surveyors and Petitioner’s own investigative report which resulted in STNA #100’s suspension and termination.  The hearing officer also made findings inconsistent with the evidence he reviewed.  See P. Ex. 8 at 5 (acknowledging STNA #100’s claim that she had been assisting Resident 13 in pulling up his pants to be a “self-serving characterization” that was inconsistent with the video footage and photographic evidence of record, but nevertheless finding her credible).

It also appears the hearing officer’s decision was driven in part by his concern with the fact that STNA #100’s counsel had “abruptly” withdrawn from representing STNA #100, which resulted in the Ohio Department of Health providing notice of the hearing to STNA #100 using an incorrect mailing address (despite being provided a correct mailing address by her former attorney).  Id.  The hearing officer thought STNA #100’s failure to appear at the hearing may have resulted from this error by the state, which he framed as inconsistent with the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution.  Id. (citation omitted).  It is unclear why the hearing officer did not simply delay the hearing upon becoming aware that the state government had misdelivered notice of the hearing to STNA #100, but it is reasonable to conclude he may have let his concern with the issue of defective notice sway his analysis of the facts.

Ultimately, as set forth above, I find the preponderance of the evidence of record before me shows STNA #100 abused Resident 13 on April 24, 2016, and that Petitioner was therefore not in substantial compliance with 42 C.F.R. § 483.13(b), (c)(1) (Tag F223).

3. Petitioner Did Not Substantially Comply With 42 C.F.R. § 483.13(c)(1)(ii)-(iii), (c)(2)-(4) (Tag F225) Because Its Staff Failed to Immediately Report Abuse of Resident 13.

The applicable regulations require a facility to ensure “that all alleged violations involving . . . abuse . . . are reported immediately to the administrator of the facility and to other officials in accordance with State law through established procedures (including to the State survey and certification agency).”  42 C.F.R. § 483.13(c)(2).

Consistent with these regulatory abuse reporting requirements, Petitioner’s abuse prevention policy required staff to monitor care “to assure residents are free from abuse” and stated “[i]t is the responsibility of all staff to provide a safe environment for the residents.”  CMS Ex. 15 at 3.  The facility’s abuse reporting policy mandated that “[a]ny person(s) witnessing or having knowledge of [an] alleged violation involving mistreatment, misappropriation of property, abuse, exploitation, or neglect of a resident has the responsibility to report the incident to the Administrator, Director of Nursing, or designee immediately.”  Id. at 5.

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Petitioner contends that it was in substantial compliance with the abuse reporting requirements of 42 C.F.R. § 483.13(c)(2) because in both instances there was no abuse to report.  P. Prehrg. Br. at 16-17.  However, as I have discussed, the record provides a sufficient evidentiary basis to conclude HA #70 and STNA #100 abused Resident 13 on April 5 and April 24, 2016, respectively.  On both occasions, the same employee, STNA #95, was present and in a position to observe her colleagues’ conduct towards Resident 13, but did not intervene.  CMS Ex. 19; CMS Ex. 20; CMS Ex. 25 at 16:41:32 to 16:41:36; CMS Ex. 26 at 16:42:29 to 16:42:33.

Petitioner does not dispute that the three employees failed to report the April 5, 2016 or April 24, 2016 incidents to the facility’s administrator, as required by 42 C.F.R. § 483.13(c)(2) and the facility’s abuse prevention policy.  See, e.g., P. Prehrg. Br. at 16-17.  Nor did HA #70, STNA #100, STNA #95, or any other facility staff member report the abuse to the state survey and certification agency, as required by 42 C.F.R. § 483.13(c)(2).  In fact, both incidents of abuse remained unreported until June 3, 2016, when investigators from the state AG’s office alerted Petitioner’s administrator and director of nursing.  P. Ex. 8 at 2; CMS Ex. 5 at 1; see P. Prehrg. Br. at 17.  But for the placement of a hidden camera in Resident 13’s room, it is likely the incidents of abuse at issue here would never have been identified.  I find that Petitioner was not in substantial compliance with 42 C.F.R. § 483.13(c)(1)(ii)-(iii), (c)(2)-(4) (Tag F225).

4. Petitioner Did Not Substantially Comply With 42 C.F.R. § 483.13(c) (Tag F226) Because the Facility Failed to Implement Its Abuse Prevention Policies and Procedures.

The regulation at 42 C.F.R. § 483.13(c) provides that a facility “must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property.”

To rebut CMS’s assertion that Petitioner failed on a systemic basis to implement an abuse policy, Petitioner claims it trained its staff on abuse prevention and provided a handbook to its employees identifying its abuse prevention procedures.  P. Prehrg. Br. at 18, citing P. Exs. 1-7.  Petitioner’s abuse policies align with the abuse prevention and reporting requirements set forth at 42 C.F.R. §§ 483.13(b) and (c).  CMS Ex. 15.  Its abuse prevention policy required staff members “to assure residents are free from abuse” and provided that it was “the responsibility of all staff to provide a safe environment for the residents.”  Id. at 3.  The policy defined “Abuse” as “willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish” and “Physical Abuse” to include “hitting, slapping, pinching, and kicking” as well as “controlling behavior through corporal punishment.”  Id. at 2.

The question, however, is not only whether the facility had a policy, but whether the facts before me “demonstrate an underlying breakdown in the facility’s implementation” of

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that policy.  Oceanside Nursing & Rehab. Ctr., DAB No. 2382 at 11 (2011) (discussing failure to implement in the context of an anti-neglect policy).  That breakdown can be demonstrated by either “multiple or sufficient examples . . . .”  Dumas Nursing & Rehab., L.P., DAB No. 2347 at 15 (2010) (citations omitted).

The actions of HA #70, STNA #100, and STNA #95 demonstrate such a breakdown occurred.  The facility’s abuse prevention policy required its employees “to assure residents are free from abuse” and take responsibility “to provide a safe environment for the residents.”  CMS Ex. 15 at 3.  It also forbade punitive measures and physical abuse, which the policy expressly defined to include pinching and the use of corporal punishment to control behavior.  Id. at 2.  But despite these clear edicts, HA #70 pinched Resident 13 on or behind his ear on April 5, 2016.  STNA #100 pulled his hair on April 24, 2016.  On both occasions, despite their awareness that Resident 13’s cognitive limitations and medical impairments caused him to act inappropriately, Petitioner’s employees willfully engaged in acts of physical abuse for retributive purposes, in direct contradiction of the facility’s abuse prevention policy.

Petitioner’s abuse reporting policy also mandated that “[a]ny person(s) witnessing or having knowledge of [an] alleged violation involving mistreatment, misappropriation of property, abuse, exploitation, or neglect of a resident has the responsibility to report the incident to the Administrator, Director of Nursing, or designee immediately.”  Id. at 5.  On both occasions, another employee, STNA #95, was present and observed abusive contact but did not intervene.  And none of these three employees reported contact with Resident 13 that the facility’s abuse policy plainly defined as abuse.  As I have noted, but for the presence of a hidden camera in Resident 13’s room, he would likely still be subject to similar forms of abuse.

These facts lead me to conclude the conduct of HA #70, STNA #100, and STNA #95 were not isolated instances but sufficient in their severity to reflect a breakdown in the facility’s implementation of its abuse policy.  For these reasons, I find that Petitioner failed to implement its abuse prevention and reporting policies and thus was not in substantial compliance with 42 C.F.R. § 483.13(c) (Tag F226).

5. CMS’s determination that Petitioner’s deficiencies posed immediate jeopardy was not clearly erroneous.

Immediate jeopardy exists if a facility’s noncompliance with one or more participation requirements has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.  42 C.F.R. § 488.301.  The regulation does not require that a resident actually be harmed.  Lakeport Skilled Nursing Ctr., DAB No. 2435 at 8 (2012).  I must uphold CMS’s determination as to the level of a facility’s substantial noncompliance (which includes an immediate jeopardy finding) unless it is “clearly erroneous.”  42 C.F.R. § 498.60(c)(2).  The “clearly erroneous” standard imposes on facilities a heavy

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burden to overcome a finding of immediate jeopardy.  The Board has sustained determinations of immediate jeopardy where CMS presented evidence “from which ‘[o]ne could reasonably conclude’ that immediate jeopardy exists.”  See, e.g., Barbourville Nursing Home, DAB No. 1962 at 11 (2005) (citing Florence Park Care Ctr., DAB No. 1931 at 27-28 (2004)), aff’d, Barbourville Nursing Home v. U.S. Dep’t of Health & Human Servs., 174 F. App’x 932 (6th Cir. 2006).

CMS contends the abuse by HA #70 and STNA #100, and STNA #95’s failure to report the abuse, caused serious harm to Resident 13 and was likely to cause additional harm because the perpetrators continued to work at the facility, which allowed repeated retaliatory abuse in response to his chronic behavioral issues.  CMS Prehrg. Br. at 21-22.  Petitioner asserts no immediate jeopardy existed because it was in substantial compliance, and further contends Resident 13 did not suffer harm and was not at imminent risk of serious harm.  P. Prehrg. Br. at 18-21.  Petitioner points out that neither Resident 13 nor his legal guardian complained of abuse at any time during its own investigation of the incidents at issue.  Id. at 20.

I have already sustained CMS’s determination that Petitioner was not in substantial compliance with the participation requirements of 42 C.F.R. § 483.13(b), (c)(1)(i) (Tag F223); 42 C.F.R. § 483.13(c)(1)(ii)-(iii), (c)(2)-(4), (Tag F225); and 42 C.F.R. § 483.13(c) (Tag F226).  I have also placed no probative weight on the fact that neither Resident 13 nor his father complained of abusive treatment, owing to Resident 13’s memory problems and cognitive issues.  I similarly decline to afford significant weight to a lack of reporting from other facility residents, nearly half of whom had severe conditions impacting memory.  CMS Ex. 13 (facility census detailing that 19 of the facility’s 40 residents had a form of dementia or Alzheimer’s disease).

CMS’s finding of immediate jeopardy is not clearly erroneous.  Here, the failure of Petitioner’s staff to report abuse is by itself sufficient to support a finding of immediate jeopardy, even if the specific interactions between Resident 13 and HA #70 and STNA #100 were not likely to cause serious injury, harm, impairment, or death.  Rosewood Care Ctr. of Swansea, DAB No. 2721 at 12-13 (2016) (providing that a facility’s failure to report even the allegation of abuse constituted immediate jeopardy because such failure “had the consequence of leaving residents unprotected against additional instances of abuse, an extremely dangerous situation for the frail and vulnerable individuals who resided at [the] facility.”).

And this case did not involve one isolated instance of a failure to report.  On two occasions, three employees uniformly failed to abide by the facility’s abuse reporting policy.  This more widespread failure exposed all 40 of the facility’s residents to the risk that they might suffer abuse that would go unreported.  The failure of STNA #95 to report abuse that occurred on April 5, 2016 likely increased the possibility of a future

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instance of abuse towards Resident 13, a threat that materialized less than three weeks later.

Like many of the facility’s residents, Resident 13 relied almost entirely on facility staff for care; his severe cognitive impairment and inadvertently inappropriate behavior left him particularly vulnerable to retributive conduct from employees who did not prioritize compliance with the facility’s abuse and reporting policies.  See CMS Ex. 13; CMS Ex. 14 at 9.  Absent intervention, the facility’s residents would indeed be likely to experience serious injury, harm, impairment, or death.  I cannot conclude CMS’s immediate jeopardy determination is clearly erroneous and therefore uphold that determination.

6. CMS’s determination of the amount and duration of the CMP is reasonable.

In determining whether per-day CMP amounts imposed against a facility are reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f).  42 C.F.R. § 488.438(e)(3).  These factors include: 

(1) the facility’s history of compliance;
(2) the facility’s financial condition;
(3) the factors specified at 42 C.F.R. § 488.404;15 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.  42 C.F.R. § 488.438(f).  Unless a facility contends that a particular regulatory factor does not support the CMP amount, I must sustain it.  Coquina Ctr., DAB No. 1860 at 32 (2002).

Petitioner asserts the CMP imposed by CMS is unreasonable because the facility remained in substantial compliance with participation requirements.  P. Prehrg. Br. at 21.  Petitioner also points out it has a solid history of compliance and has not received a substandard quality of care citation or been cited for a deficiency above the “E” level in the scope and severity matrix for at least eight years.  Id. at 22-23.  Petitioner asserts that the CMP, along with the loss of its NATCEP, would severely impact its financial condition and impair it from attracting and recruiting necessary staff.  Id. at 23.  Petitioner also asserts that is has no degree of culpability because “it was not even made aware of the situation until almost 60 days past the first incident.”  Id.

Because I have upheld a deficiency under section 483.13 at the immediate jeopardy level, which constitutes “substandard quality of care” as defined at 42 C.F.R. § 488.301,

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Petitioner was correctly subject to a two-year prohibition on approval for its NATCEP pursuant to 42 C.F.R. §§ 483.151(b)(2)(iii) and 488.310(c).  See Act § 1819(f)(2)(B)(iii)(I).  And, while Petitioner summarily asserts a $74,053 CMP would severely impact its financial condition, it did not introduce any evidence to substantiate that claim.  Petitioner claims the lack of such evidence cited by CMS shows the agency did not take the facility’s financial condition into account when assessing the CMP.  P. Prehrg. Br. at 23.  But “the burden is on the [facility] to demonstrate, through argument and the submission of evidence addressing the regulatory factors, that a reduction is necessary to make the CMP amount reasonable.”  Brian Ctr. Health & Rehab./Goldsboro, DAB No. 2336 at 12 (2010).  Petitioner has proffered no evidence concerning its financial condition.  It therefore has not met its burden to demonstrate the CMP amount would severely impact its financial condition.  42 C.F.R. § 488.438(f).

I have also considered Petitioner’s compliance history and find it demonstrates a significant degree of past non-compliance.  Petitioner’s ASPEN16 Enforcement Module (AEM) Nursing Home Enforcement History report submitted by CMS includes a synopsis of findings from the two survey cycles conducted in June 2014 and September 2015.  CMS Ex. 8.  The AEM report reflects a significant history of noncompliance in these survey cycles immediately preceding the June 23, 2016 survey.  Petitioner was cited for six deficiencies at the “E” scope and severity level during the September 2015 survey cycle as well as one “F” level deficiency and three at the “E” level in the June 2014 cycle.  CMS Ex. 8 at 2.

I have also considered Petitioner’s culpability and find it significant.  Petitioner’s staff abused Resident 13, an individual with severe cognitive and physical impairments, on two separate occasions.  Another member of staff witnessed both incidents.  None of these three employees reported either incident.  Petitioner contends it “met its duties as a facility to train its staff and had no reason to suspect that any of its employees would abuse a resident.”  P. Br. at 29.  But to the extent Petitioner attempts to disclaim responsibility for its staff members’ actions, it is well-settled that a facility acts through its staff and cannot disown the consequences of the actions of its employee.  Gateway Nursing Ctr., DAB No. 2283 at 8 (2009); N. Carolina State Veterans Nursing Home, Salisbury, DAB No. 2256 at 12 (2009).  Petitioner also faults the Ohio AG’s office for not informing it of the abuse until June 3, 2016.  P. Br. at 30.  It should be self-evident that a skilled nursing facility’s obligation to keep its residents free from abuse arises independently and is not dependent on notification by an outside state investigative agency.

Here, CMS imposed a per-day CMP of $13,841 for the five days of non-compliance at the immediate jeopardy level (from June 3, 2016, through June 7, 2016).  This is near the

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midway point ($13,459.50) of the higher range for per-day CMPs pertaining to deficiencies at the immediate jeopardy level.  With respect to Petitioner’s 16 days of non-compliance at a level that was not immediate jeopardy – from June 8, 2016, through June 23, 2016 – the $303 per-day CMP that CMS imposed is near the bottom of the range reserved for deficiencies that do not pose immediate jeopardy.  Given the seriousness of Petitioner’s noncompliance, its significant history of prior deficiency citations, and its high degree of culpability, both CMP amounts are reasonable.

With respect to the duration of the CMP, a facility “has the substantive burden of proving that it achieved substantial compliance earlier than the date CMS determined.”  West Texas LTC Partners, Inc., DAB No. 2652 at 18 (2015); see also Chicago Ridge Nursing Ctr., DAB No. 2151 at 26 (2008) (providing CMS may impose remedies on a facility found out of substantial compliance “beginning as early as the date that the facility was first out of substantial compliance and continuing in effect until the facility establishes that it has achieved substantial compliance or is terminated from the program.”).

Petitioner has not shown that immediate jeopardy was abated before June 8, 2016, or that it returned to substantial compliance earlier than June 24, 2016.  The record instead reflects immediate jeopardy was abated on June 8, 2016, when Petitioner’s staff completed in-service training on the facility’s abuse policies, and that the facility returned to substantial compliance on June 24, 2016, when the facility fully implemented its corrective action plan.  CMS Ex. 1 at 3; CMS Ex. 4 at 2-3.  In addition, while the state agency found Petitioner out of compliance at the immediate jeopardy level beginning on April 5, 2016 and recommended CMS impose a per-day CMP from that date, CMS did not impose a per-day CMP until June 3, 2016, nearly two months later.  CMS Ex. 1 at 1-2; CMS Ex. 3 at 1-2.  Given that CMS could have imposed a substantially longer period of immediate jeopardy but chose not to do so, the duration of the per-day CMP imposed here is reasonable.

Finally, Petitioner asserts the total CMP amount CMS imposed in this case is unreasonable because it is nearly double the $38,850 total amount of the per-day CMP imposed in Honey Grove Nursing Ctr., DAB CR3039 (2013), where a resident suffered actual physical harm including “significant bruising” and a “new skin tear on his right wrist.”  P. Prehrg. Br. at 24.  This argument is entirely without merit.  My review of the reasonableness of a CMP stems exclusively from the factors set forth in the applicable regulations, which do not include consideration of other cases involving other facilities.  See Kenton Healthcare, LLC, DAB No. 2186 at 28-29 (2008) (rejecting the facility’s argument that the total amount of a CMP was unreasonable and explaining an ALJ only considers the factors in 42 C.F.R. § 488.438(f) in reviewing the amount within the applicable CMP range).  As I have discussed, the total amount of the CMP here is reasonable given the seriousness and duration of Petitioner’s noncompliance.

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VI. Conclusion

I affirm CMS’s determination that Petitioner was not in substantial compliance with Medicare program participation requirements and that the facility’s noncompliance posed immediate jeopardy to its residents.  I conclude the $13,841 per-day CMP from June 3, 2016, through June 7, 2016, and the $303 per-day CMP from June 8, 2016, through June 23, 2016, for a total CMP of $74,053, are reasonable.

1. Effective November 28, 2016, CMS revised and reorganized many of the participation requirements for skilled nursing facilities codified in 42 C.F.R. pt. 483.  81 Fed. Reg. 68,688 (Oct. 4, 2016).  The regulations at issue in this case are now found at 42 C.F.R. § 483.12.  81 Fed. Reg. 68,855.  CMS subsequently modified its deficiency tags to conform to the reorganized regulations on June 30, 2017, though the changes to the tags did not become effective until November 28, 2017.  Ctrs. for Medicare & Medicaid Servs., Center for Clinical Standards and Quality/Survey & Certification Group, Revisions to State Operations Manual (SOM) App. PP for Phase 2, F-Tag Revisions, and Related Issues, available at https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-17-36.pdf (eff. Nov. 28, 2017).  Because the date of the survey preceded the regulatory revisions, I refer to the version of the regulations and corresponding deficiency tags in effect at the time of the survey.
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2. Scope and severity levels are used by CMS and state survey agencies when selecting remedies.  The scope and severity level is designated by letters “A” through “L,” selected from the scope and severity matrix published in the SOM, Ch. 7, § 7400.3.1.  Facilities with deficiencies of levels A, B, or C remain in substantial compliance.  See 42 C.F.R. § 488.301.  Levels D, E, or F indicate a deficiency that presents no actual harm but has the potential for more than minimal harm that does not amount to immediate jeopardy.  Levels G, H, or I indicate a deficiency that involves actual harm that does not amount to immediate jeopardy.  Scope and severity levels J, K, and L contain deficiencies that constitute immediate jeopardy to resident health or safety.  The matrix specifies which remedies are required and optional at each level based upon the pervasiveness of the deficiency.  Relevant here, a scope and severity level of “J” indicates an isolated deficiency that poses immediate jeopardy to resident health or safety, and a scope and severity level of “K” indicates there is a pattern of deficiency that poses immediate jeopardy to resident health or safety.
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3. Although Petitioner did not seek leave to file responsive briefing in addition to opposing CMS’s own motion, I have considered all arguments made by both parties in all their post-hearing pleadings.
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4. Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Pub. L. No. 114-74, 129 Stat. 584, 599, CMS increased CMP amounts beginning August 1, 2016, to account for inflation.  The adjusted amounts apply to CMPs, such as the CMPs at issue in this case, assessed after August 1, 2016, for deficiencies cited after November 2, 2015.  See 81 Fed. Reg. 61,538 (Sept. 6, 2016).  In this case, the applicable per-day CMP range is between $103 to $6,188 per day for less serious noncompliance, and $6,291 to $20,628 per day for noncompliance that poses immediate jeopardy to the health and safety of residents.  45 C.F.R. § 102.3 (2016); 81 Fed. Reg. 61,538, 61,549.
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5. My findings of fact and conclusions of law appear as numbered headings in bold italic type.
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6. The video begins at timestamp 16:38:56 and is nearly six hours long, but the parties agree that the relevant portion capturing the incident at issue here occurs near the beginning of the video, from 16:40:45 to 16:46:28.  CMS Ex. 25; P. Prehrg. Br. at 8 (describing the period during which HA #70 and STNA #95 provided care to Resident 13 as occurring between timestamps 16:41:12-16:44:00); CMS Prehrg. Br. at 8 (describing the “entire episode of care” as occurring between timestamps 16:40:45 to 16:46:28).  The video does not include audio and is slightly grainy but is sufficiently clear for a viewer to identify the individuals involved and follow their movements.
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7. The facility’s incident summary indicates this incident occurred on April 4, 2016, but this appears to be a scrivener’s error, as both parties now represent the incident in fact took place on April 5, 2016, the date identified in the SOD.  See, e.g., P. Br. at 4; CMS Br. at 4; CMS Ex. 1 at 1-2.
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8. Incident footage provides another possibility that Petitioner has not accounted for that would explain the discrepancy between the surveyors’ reports and the facility’s incident report:  that HA #70 pinched Resident 13 in or around his ear and pulled his hair.  The footage shows HA #70 made contact with Resident’s head at 16:43:03, approximately two minutes after the first contact at 16:41:32.  CMS Ex. 25 at 16:43:03.  Surveyor Elliott declared he focused on the incident captured in timestamps 16:41:32 to 16:41:36, but added “the video shows that HA #70 repeats the same action of reaching toward [Resident] 13’s head a couple minutes later, at approximately 16:43:03.”  CMS Ex. 22 at 3-4.  It is therefore possible HA #70 admitted to Surveyor Elliott that she pinched on or behind Resident 13’s ear in the first instance of contact and admitted to facility management that she tugged the resident’s hair in the second instance.
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9. Petitioner points to a physician’s note from April 6, 2016, the day after the incident at issue, wherein his treating physician described Resident 13’s mental state after the recent death of his mother and opined he was “getting over that okay.”  P. Br. at 16-17; CMS Ex. 14 at 16.  Petitioner contends the physician’s observation shows that Resident 13 had a meaningful conversation with his physician but did not report abuse.  P. Br. at 16-17.  That inference is not reasonable, however, as the physician documents in the same paragraph that Resident 13 “won’t speak to me.”  CMS Ex. 14 at 16.
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10. It is somewhat disconcerting that Petitioner appears to imply pinching or tweaking of ears would be more appropriate for children or “child-like persons,” which I take to mean individuals with intellectual deficiencies.  Whatever the facility’s standards for abuse prevention are, they are presumably not lower for children or the cognitively deficient than they are for competent adults.
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11. In its guidance, CMS “presumes that instances of abuse of all residents, even those in a coma, cause physical harm or pain or mental anguish.”  Ctr. for Medicare & Medicaid Servs., SOM, App. PP at 78.  Petitioner objects to the imposition of this presumption via guidance, P. Prehrg Br. at 13, but the facility’s own abuse policy defined both pinching and the use of corporal punishment as a priori examples of abuse.  CMS Ex. 15 at 2.  Petitioner can hardly object now to the imposition of a presumption of harm from abuse when that presumption derives from its own abuse policy.  And Petitioner’s instant claim that its abuse policy in fact permitted its staff to engage in pinching or other corporal punishment with residents so long as those acts fell short of actual physical harm or pain, see P. Prehrg Br. at 13-14, is, as CMS observes, unconvincing.  CMS Br. at 4-5.
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12. Petitioner appears to believe it necessary to prove HA #70 intended to abuse Resident 13, but the regulation defining ‘abuse’ only requires the conduct at issue to be “willful.”  42 C.F.R. § 488.301.  “Willful” means “that the actor must have acted deliberately, not that the actor must have intended to inflict injury or harm (or one of the other specified types of prohibited conduct).”  Merrimack Cty. Nursing Home, DAB No. 2424 at 4-5 (2011).  HA #70’s conduct here was clearly deliberate, i.e., not accidental or inadvertent.  Her intent to harm is thus irrelevant in determining whether Petitioner was in substantial compliance with 42 C.F.R. § 483.13(b), (c)(1).
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13. The video begins at timestamp 15:14:52 and is five hours, 17 minutes, and 27 seconds long.  Id.  The parties agree that the incident in question is captured approximately and hour and a half into the video, between timestamps 16:39:57 and 16:46:30.  CMS Prehrg. Br. at 9 (citing timestamps 16:39:57 to 16:46:30 to describe the “entire episode of care”); P. Prehrg. Br. at 10-11 (citing timestamps from 16:41:11 to 16:45:00 in describing the incident).
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14. Petitioner claims that because HA #70 and STNA #100 ultimately pleaded guilty to charges of misdemeanor failure to report a crime, their conduct cannot amount to “a criminal offense relating to the neglect of abuse of patients in connection with the delivery of a health care item or service.”  P. Prehrg. Br. at 5.  Petitioner’s claim is without merit.  I do not rely on HA #70’s and STNA #100’s offenses of conviction as evidentiary bases to conclude abuse occurred.  Instead, I consider the fact that state authorities opted to prosecute both HA #70 and STNA #100 for their conduct towards Resident #13 as evidence that significantly militates against Petitioner’s claims their employees either did not engage in abusive conduct towards Resident #13, or engaged in self-defensive measures that would obviate the facility’s liability for substantial noncompliance under the regulations at issue here.
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15. These include the scope and severity of the deficiency, the relationship of the deficiency to other deficiencies resulting in noncompliance, and the facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies.
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16. Automated Survey Processing Environment, a system used by CMS and state agencies to record and access both survey results and enforcement data.
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