Griffith Park Healthcare Center, DAB CR5979 (2021)

DECISION

The Centers for Medicare & Medicaid Services (CMS) moves for summary judgment on its allegations that Griffith Park Healthcare Center (Petitioner or facility) was not in substantial compliance with Medicare participation requirements at 42 C.F.R. §§ 483.12(a)(1) (Tag F600) and 483.12 (Tag F602);1 that Petitioner’s alleged noncompliance posed immediate jeopardy to resident health and safety; and that the civil money penalties (CMPs) CMS imposed as a consequence of Petitioner’s alleged noncompliance are reasonable in amount.  Petitioner contests these allegations.

I conclude that summary judgment is appropriate in this case because the undisputed facts, even when viewed in the light most favorable to Petitioner, establish that:  1) Petitioner did not substantially comply with the Medicare participation requirements found at 42 C.F.R. §§ 483.12(a)(1) and 483.12; 2) CMS did not clearly err in determining that Petitioner’s noncompliance with § 483.12(a)(1) posed immediate jeopardy to resident health and safety; and 3) the imposed CMPs are reasonable in amount.  I therefore grant CMS’s motion for summary judgment.

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I. Background and Procedural History

Petitioner is a skilled nursing facility (SNF) located in Glendale, California.  CMS Exhibit (Ex.) 1 at 1.2   Surveyors from the California Department of Public Health (state agency) conducted a survey of Petitioner’s facility that ended on March 22, 2019.  Petitioner’s (P.) Exs. 1, 3; see also P. Ex. 2 (Docket No. C-19-970).  The state agency found that the facility was not in substantial compliance with the following Medicare participation requirements:  42 C.F.R. §§ 483.12(a)(1) (Tag F600) and 483.12 (Tag F602).  P. Ex. 2 (Docket No. C-19-970).  The state agency found that the most serious deficiency was an isolated incident involving actual harm that was not immediate jeopardy (S/S “G”).  P. Ex. 1; see also P. Ex. 2 (Docket No. C-19-970).  By letter dated May 20, 2019, CMS notified Petitioner that it agreed with the state agency’s findings of noncompliance and was imposing a CMP of $1,345 per day from February 14, 2019, through May 7, 2019.  P. Ex. 3.

Thereafter, CMS reopened and revised the May 20, 2019 initial determination.  CMS Ex. 13.  By letter dated October 10, 2019, CMS stated that, based on further review, it had determined that the March 22, 2019 survey findings “reflected an immediate jeopardy level noncompliance.”  Id. at 2.  Based on CMS’s revised determination, the state agency issued a new statement of deficiencies (SOD).  CMS Ex. 1.  The revised SOD, completed October 4, 2019, found that the facility’s noncompliance with 42 C.F.R. §§ 483.12(a)(1) (Tag F600) represented an isolated incident of immediate jeopardy to resident health and safety (S/S “J”).  Id. at 3.  In its revised determination, CMS imposed a CMP of $7,050 per day from February 14-18, 2019, and a reduced CMP of $110 per day from February 19, 2019, through May 7, 2019.  Id.  The total CMP amount at issue is $43,830.3   CMS concluded that Petitioner returned to substantial compliance with Medicare participation requirements on May 8, 2019.4  Id.

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Petitioner timely requested hearings as to the May 20 and October 10, 2019 determinations and the cases were assigned to me.  On December 18, 2019, I issued an order consolidating the cases and setting a briefing schedule.  In accordance with the schedule I set, CMS and Petitioner filed prehearing exchanges, including prehearing briefs (CMS Br. and P. Br., respectively), exhibit and witness lists, and proposed exhibits.  Within its prehearing brief, CMS moved for summary judgment, which Petitioner opposed in its own prehearing brief.  CMS submitted 19 exhibits (CMS Exs. 1-19), and Petitioner submitted 11 exhibits (P. Ex. 1-11).  Petitioner objected to CMS Exs. 15, 16, and 18.  CMS did not object to Petitioner’s exhibits.

Petitioner has objected to CMS Exs. 15, 16, and 18, which are the declarations of CMS’s witnesses, Minerva Reyes, RN; Davona Hoang, RN; and Zosima Carina D. Gaerlan, RN.  The witnesses are employed by the state agency as Health Facility Evaluator Nurses (HFEN) and supervisors.  I refer to them in this decision as state agency surveyors.  Petitioner argues that the surveyors are attempting to provide both improper expert witness testimony and improper lay witness testimony outside the scope of their personal knowledge, some of which may be based on hearsay.  In ruling on CMS’s motion for summary judgment, I have considered Petitioner’s objections.  Although hearsay evidence is admissible in this administrative proceeding (see 42 C.F.R. § 498.60(b)(1)), for purposes of summary judgment, I have not accorded weight to any contested hearsay statement.  Similarly, to the extent Petitioner objects that the state agency surveyors’ testimony includes improper opinion testimony, I have disregarded any testimony that purports to opine on the ultimate legal issues reserved for my decision.  With these limitations, I admit all of the parties’ proposed exhibits (in both Docket Nos. C-19-970 and C‑20‑172) into evidence.

II. Issues

The issues in this case are:

1. Whether summary judgment is appropriate;
2. Whether Petitioner failed to comply substantially with Medicare participation requirements;
3. If the facility did not comply substantially with Medicare participation requirements, whether CMS’s finding of immediate jeopardy is clearly erroneous; and
4. If the facility did not comply substantially with Medicare participation requirements, whether the remedies proposed are reasonable.

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III. Jurisdiction

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

IV. Discussion

1. Statutory and Regulatory Framework

The Act sets requirements for SNFs to participate in the Medicare program.  The Act authorizes the Secretary of the U.S. Department of Health & Human Services (Secretary) to promulgate regulations implementing those statutory provisions.  Act § 1819 (42 U.S.C. § 1395i-3); 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 facility’s deficiencies may pose no greater risk to resident health and safety than “the potential for causing minimal harm.”  42 C.F.R. § 488.301.

The Secretary contracts with state agencies to conduct periodic surveys to determine whether SNFs are in substantial compliance with the participation requirements.  Act § 1864(a) (42 U.S.C. § 1395aa(a)); 42 C.F.R. §§ 488.10, 488.20.  The Act and regulations require that facilities be surveyed on average every twelve months, and more often if necessary, to ensure that identified deficiencies are corrected.  Act § 1819(g)(2)(A) (42 U.S.C. § 1395i-3(g)(2)(A)); 42 C.F.R. §§ 488.20(a), 488.308.  The Act also authorizes the Secretary to impose enforcement remedies against SNFs that are not in substantial compliance with program participation requirements.  Act § 1819(h)(2) (42 U.S.C. § 1395i-3(h)(2)).  The regulations specify the enforcement remedies that CMS may impose.  42 C.F.R. § 488.406.  Among other enforcement remedies, CMS may impose a per-day CMP for the number of days a SNF is not in substantial compliance.  42 C.F.R. § 488.430(a).  For CMPs assessed after October 11, 2018, relating to noncompliance occurring after November 2, 2015, per-day CMPs could range from $107 to $6,418 per day for less serious noncompliance, or from $6,524 to $21,393 per day for more serious noncompliance that poses immediate jeopardy to the health and safety of residents.  42 C.F.R. § 488.438(a)(1) (as updated at 83 Fed. Reg. 51,369, 51,380 (Oct. 11, 2018)).  “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 remedy 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.  Act §§ 1128A(c)(2), 1819(h)(2)(B)(ii) (42 U.S.C.

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§§ 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).

2. Findings of Fact, Conclusions of Law, and Analysis
   1. Summary judgment is appropriate.5

Summary judgment is appropriate if there is “no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law.”  Mission Hosp. Reg’l Med. Ctr., DAB No. 2459 at 5 (2012) (citations omitted), aff`d sub nom., Mission Hosp. Reg’l Med. Ctr. v. Burwell, 819 F.3d 1112 (9th Cir. 2016).  In order to prevail on a motion for summary judgment, the moving party must show that there is no genuine dispute of material fact requiring an evidentiary hearing and that it is entitled to judgment as a matter of law.  Id.  If the moving party meets this initial burden, the non-moving party must “come forward with ‘specific facts showing that there is a genuine issue for trial.’”  Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. Pro. 56(e)).  “To defeat an adequately supported summary judgment motion, the non-moving party may not rely on the denials in its pleadings or briefs, but must furnish evidence of a dispute concerning a material fact – a fact that, if proven, would affect the outcome of the case under governing law.”  Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010), aff’d, 405 F. App’x 820 (5th Cir. 2010).

In evaluating a motion for summary judgment, an administrative law judge does not address credibility or evaluate the weight of conflicting evidence.  Holy Cross Village at Notre Dame, Inc., DAB No. 2291 at 5 (2009).  Rather, in examining the evidence to determine the appropriateness of summary judgment, an administrative law judge must draw all reasonable inferences in the light most favorable to the non-moving party.  See Brightview Care Ctr., DAB No. 2132 at 9-10 (2007) (upholding summary judgment where inferences and views of non-moving party are not reasonable).  “[A]t the summary judgment stage the judge’s function is not . . . to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.”  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).  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.  Cedar Lake Nursing Home, DAB No. 2344 at 7 (2010).

Petitioner argues that summary judgment is inappropriate because there is a factual dispute as to whether a resident of Petitioner’s facility, Resident 1, was competent to consent to a sexual relationship with one of Petitioner’s employees, CNA 1.  See, e.g., P. Br. at 19.  As I explain in greater detail below, Resident 1’s capacity to consent is

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irrelevant as a matter of law.  As such, any dispute regarding that issue is not material to my decision.  Therefore, summary judgment is appropriate.

1. 2. I find that the following facts are undisputed.

The documents in the record establish the following undisputed facts.

Petitioner’s Policies and Training Materials:  Petitioner maintained policies for preventing, investigating, and reporting resident abuse (anti-abuse policies).  CMS Ex. 11 at 1-6.  Petitioner’s anti-abuse policies affirm that residents have the right to be free from abuse, neglect, and misappropriation of resident property perpetrated by any actor, including staff members.  Id. at 1, 6.  Petitioner’s anti-abuse policies define sexual abuse to include sexual coercion or assault.  Id. at 1.  Petitioner’s training materials also instruct staff that sexual relationships with residents constitute harmful and unethical boundary violations.  CMS Ex. 12 at 2.  The materials further provide that, to maintain professional boundaries, staff must “[n]ever engage in sexual relations with a patient.”  Id.  Petitioner’s anti-abuse policies define exploitation as abuse, and its training materials prohibit staff from accepting gifts or money from residents.  CMS Ex. 11 at 1; CMS Ex. 12 at 2.  Petitioner’s anti-abuse policies requires staff to report any incidents or suspected incidents of resident abuse or misappropriation of resident property to facility management.  CMS Ex. 11 at 1.

Resident 1:  In February of 2019, Resident 1 was a 52-year-old woman who was admitted to the facility on September 19, 2018.  CMS Ex. 5 at 1.  Upon admission, Resident 1 was diagnosed with, inter alia, generalized muscle weakness, chronic pain, unspecified bipolar disorder, recurrent depressive disorders, and other specified anxiety disorders.  Id. at 2.  Resident 1 was responsible for herself and was assessed as having the capacity to understand and make decisions.  Id. at 1, 3.  Nevertheless, at the time of her admission, Petitioner’s interdisciplinary team determined that Resident 1’s mental limitations prevented her from safely self-administering her own medications.  Id. at 23.  Resident 1 was readmitted to the facility on December 13, 2018, following a hospitalization during which she was treated for her psychiatric diagnoses.  Id. at 1, 15‑16.  A psychiatric consultation report from that hospitalization described a history of multiple psychiatric hospitalizations.  Id. at 15.  After Resident 1 was readmitted to Petitioner’s facility, staff developed a care plan, dated December 13-14, 2018.  Id. at 40‑66.  Among the problems addressed in the care plan were Resident 1’s psychiatric diagnoses “that caused cognitive impairments, impaired judgment, and poor insight & poor safety awareness.”  Id. at 48.  Resident 1 also experienced episodes of persistent verbalization of sadness and worthlessness.  Id. at 56.  Resident 1 was prescribed multiple psychotropic medications, including medications containing methamphetamine, which her care plan warned may cause a cumulative effect on her health.  Id. at 60.  Finally, the care plan noted that Resident 1 had a history of alcohol and narcotic abuse and that she

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was at risk for complications such as recurrence of substance abuse, post-acute withdrawal symptoms, and mood or behavior disturbances.  Id. at 66.

Resident 1’s Allegations of Sexual Assault:  On February 17, 2019, Resident 1 asked to be transferred to the hospital because she had been experiencing vaginal bleeding for three days.  Id. at 139.  One of Petitioner’s nurses asked to examine the resident, but she refused.  Id.  Resident 1 informed the nurse that “she called 911 earlier.”  Id.  Emergency medical personnel arrived and transported Resident 1 to a hospital for evaluation.  Id.  At the hospital, the emergency department (ED) physician documented Resident 1’s allegation that “one of [Petitioner’s] staff members proposition[ed] her for sex and she finally gave in but she regrets it and felt coerced.”  Id. at 197.  The ED physician documented that he made an external genitourinary examination which revealed “[n]o obvious lesions or injuries, discharge or bleeding are evident grossly.”  Id. at 198.  He concluded that Resident 1 did “not have any emergent injuries that require immediate intervention at this time in the emergency room.”  Id.  Nevertheless, the ED physician noted a primary clinical impression of “[s]exual assault of adult by bodily force by caregiver.”  Id. at 199.  The ED physician also documented that Resident 1 would be “taken by Glendale PD to a designated SART [sexual assault response team] facility for further evaluation and forensic testing.”  Id. at 198.  Resident 1 subsequently returned to Petitioner’s facility, but she was discharged to a different hospital for medical and psychiatric evaluation on February 18, 2019.  Id. at 139.  At that time, Resident 1 requested not to return to Petitioner’s facility.  Id.  At the second hospital, Resident 1 was placed on an involuntary hold for psychiatric stabilization (“5150”).  Id. at 205; see also Request for Hearing (RFH) at 149 (Resident 1 was “placed on a 72-hour hold for danger to self”).

Police Investigation:  On February 17, 2019, an ED nurse reported to Glendale Police that a patient (Resident 1) told her she had been “raped” at the convalescent home at which she resided.  CMS Ex. 6 at 5.  A police officer was dispatched and interviewed Resident 1 at the hospital.  Id.  According to the officer’s narrative report, Resident 1 told him that one of Petitioner’s certified nursing assistants (CNA 1) had sexual intercourse with her on February 14, 2019, after pursuing her romantically over the previous three months.  Id. at 5-7.  Resident 1 reported that she felt manipulated into having sex with CNA 1 because she believed they would get married and live together.  Id. at 7.  Resident 1 reported that CNA 1 hurt her physically, she cried during the encounter, and that the encounter resulted in vaginal bleeding for several days.  Id.  She further stated that CNA 1 did not force her into having sex and that she did not tell him to stop during sexual intercourse.  Id.

On February 18, 2019, police officers interviewed CNA 1, who admitted that he had sexual intercourse with Resident 1 on February 14, 2019, and that he ejaculated inside of her without wearing a condom.  Id. at 8-9.  CNA 1 admitted that he could see Resident 1 was in pain while he was having sexual intercourse with her and she was bleeding, but

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reported that Resident 1 asked him to continue.  Id. at 8.  CNA 1 admitted that he knew all of the residents at Petitioner’s facility are dependent adults with medical problems.  Id.  CNA 1 also admitted that he knew Resident 1 had a history of depression, substance abuse, and attempted suicide.  Id.  CNA 1 reported that he and Resident 1 were in a relationship for approximately two months, that Resident 1 had given him a hand job three or four times and they kissed occasionally, but that he had ended the relationship.  Id.  The officers arrested CNA 1 and charged him with elder/dependent adult abuse and rape because of Resident 1’s status as a dependent adult in a 24-hour care facility, Resident 1’s mental illness diagnoses, and CNA 1’s admission that he had sexual intercourse with Resident 1 with knowledge that she is a dependent adult.  Id. at 9.

CNA 1’s Elder Abuse Conviction:  On August 8, 2019, CNA 1 pleaded nolo contendere to criminal elder abuse.  CMS Ex. 8 at 4-5.  Pursuant to his plea, CNA 1 was convicted of violating section 368(b)(1) of the California Penal Code, which states:

A person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured, or willfully causes or permits the elder or dependent adult to be placed in a situation in which his or her person or health is endangered, is punishable by imprisonment in a county jail not exceeding one year, or by a fine not to exceed six thousand dollars ($6,000), or by both that fine and imprisonment, or by imprisonment in the state prison for two, three, or four years.

Cal. Penal Code § 368(b)(1) (West 2019).  The statute defines a dependent adult as a person between “18 and 64, who has physical or mental limitations which restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons . . . admitted as an inpatient to a 24-hour health facility.”  Cal. Penal Code § 368(h).  A caretaker is defined as “a person who has the care, custody, or control of, or who stands in a position of trust with . . . a dependent adult.”  Cal. Penal Code § 368(i).

Resident 1’s Gifts and Property:  Resident 1 reported to the state agency surveyor that she gave CNA 1 a necklace and cash, and CNA 1 promised to marry her.  CMS Ex. 1 at 11-12.  Resident 1 also reported to the investigating officers that CNA 1 took $350 from her.  CMS Ex. 6 at 7.  CNA 1 admitted he accepted a soda from Resident 1.  CMS Ex. 15 at ¶ 27; CMS Ex. 4 at 33.  CNA 1 also admitted he secretly ran personal errands for

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Resident 1, including going to a store to activate a cell phone purchased by Resident 1.  CMS Ex. 1 at 11-12; CMS Ex. 4 at 33-34; CMS Ex. 15 at ¶ 27.  According to a note that Petitioner identifies as having been written by Resident 1 to CNA 1 (P. Br. at 4-5), the cell phone was worth $150 and was a gift from Resident 1 to allow CNA 1 to communicate with her.  P. Ex. 7.

Petitioner’s Response to the February 2019 Allegations of Abuse:  When Petitioner was informed of Resident 1’s allegations of abuse, Petitioner suspended CNA 1.  P. Ex. 8 at ¶ 5; CMS Ex. 4 at 6.  Petitioner investigated Resident 1’s allegations of abuse, submitted an initial report of suspected abuse to the state agency on February 18, 2019, and submitted a final report detailing the results of Petitioner’s abuse investigation on February 22, 2019.  P. Ex. 8 at ¶ 6; CMS Ex. 7.  Petitioner’s report to the state agency concluded that Petitioner could not “substantiate or validate any claims of abuse at this time.”  CMS Ex. 7 at 58.  Petitioner terminated CNA 1’s employment effective March 8, 2019.  CMS Ex. 1 at 2; see also P. Br. at 7.

1. 3. Petitioner was not in substantial compliance with Medicare participation requirements.
      1. Petitioner was not in substantial compliance with 42 C.F.R. §483.12(a)(1) (Tag F600) because one of its employees, CNA 1, sexually abused Resident 1.

SNF Residents have the right to be free from abuse.  42 C.F.R. § 483.12.  A facility must not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion.  42 C.F.R. § 483.12(a)(1).  In pertinent part, the regulations define “abuse” as “the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.”  42 C.F.R. § 483.5.  The regulations also define “sexual abuse” as “non-consensual sexual contact of any type with a resident.”  Id.  “Willful . . . means the individual must have acted deliberately, not that the individual must have intended to inflict injury or harm.”  Id.  When a facility’s staff member abuses a resident, “that wrongful act, committed while the [staff member] was providing care to facility residents, effectively ‘becomes the act of the facility’ . . . for purposes of establishing a violation of section 483.13(c)(1)(i) [now codified at 483.12(a)(1)].”6   Kindred Transitional Care & Rehab – Greenfield, DAB No. 2792 at 17 (2017).

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Petitioner does not dispute that CNA 1 had sexual intercourse with Resident 1.  RFH at 2, 4-6; P. Br. at 4-5, 17.  Petitioner additionally concedes that CNA 1 was convicted of elder abuse and that Petitioner cannot “disprove the alleged sexual abuse allegations.”  P. Br. at 7.  Nevertheless, Petitioner contends that the sexual activity between CNA 1 and Resident 1 was not abuse because the resident consented.  Id. at 11‑16.  Petitioner further argues that, even if CNA 1’s conduct is considered abuse, the facility is not responsible because it did not know or have reason to know “that CNA 1 would become involved in [a] sexual relationship with Resident [1].”  Id. at 6.  Neither of these arguments has merit.

As to the first point, Petitioner argues, “[t]he evidence in this case plainly demonstrates not only that Resident 1 had capacity to consent, but that she did consent to having sexual intercourse with [CNA 1].”  RFH at 6.  Petitioner argues that Resident 1’s mental health diagnoses did not negate her consent because “there is no evidence that those conditions were so severe that Resident 1 could no longer exercise reasonable judgment at the time of the incident.”  P. Br. at 6.  Petitioner points to facts it believes demonstrate that CNA 1’s abuse of Resident 1 was not the result of duress or coercion, but the result of Resident 1’s own romantic interest in and pursuit of CNA 1.  For example, Petitioner asserts that Resident 1 purchased “expensive lingerie and underwear” and sent a love note to CNA 1 prior to CNA 1 having sexual intercourse with Resident 1.  Id. at 14.  Petitioner also points to Resident 1 having remorse and regret about her interactions with CNA 1 and having a propensity to make false accusations.  Id. at 14-16.  According to Petitioner, “Resident 1 had both capacity and a resident right to engage in sex, and she willingly and consciously chose to do so with CNA 1.”  Id. at 18.  However, even assuming for purposes of summary judgment that Resident 1 subjectively had the capacity to make decisions regarding sexual activity, and did so, the conduct of CNA 1 constituted abuse as a matter of law.

Petitioner’s contention that Resident 1 could and did consent to a sexual relationship with CNA 1 completely ignores the facility’s duty – and that of its employees – to safeguard Resident 1’s psychological and physical wellbeing.  As a full-time resident of Petitioner’s facility, Resident 1 was a “dependent adult,” as defined by statute.  Cal. Penal Code § 368(h) (“‘Dependent adult’ includes a person between the ages of 18 and 64 who is admitted as an inpatient to a 24‑hour health facility”).7  Petitioner employed CNA 1 to provide care and services to facility residents.  Accordingly, CNA 1 was a “caretaker” under the statute.  Cal. Penal Code § 368(i) (“‘caretaker’ means a person who has the care, custody, or control of, or who stands in a position of trust with, an elder or a dependent adult.”).  Thus, even if Resident 1 were competent to engage in a sexual relationship with a peer, CNA 1 was not a peer.  He was Petitioner’s employee, responsible for the care of Resident 1 and all Petitioner’s residents.  Under California state law, sexual conduct between a caretaker and a dependent adult is a criminal act of

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abuse regardless of whether the dependent adult has the capacity to consent to the sexual conduct.  See Cal. Penal Code §§ 288(c)(2), (f)(1), (f)(3); 368(b)(1), (h), (i).8   Because, by statute, a dependent adult is unable to consent to sexual intercourse with a caretaker, any such conduct is non-consensual, and therefore constitutes sexual abuse under 42 C.F.R. § 483.5.

I reject Petitioner’s implication that I may not rely on the language of Cal. Penal Code § 288(c)(2) in finding CNA 1’s conduct was per se abusive because he was convicted of “criminal elder abuse, not sexual abuse.”  P. Br. at 12.  As I have explained above, section 288(f) and section 368(h) and (i) define caretaker and dependent person (or adult) in parallel terms.  CNA 1 was convicted under section 368(b)(1), which makes it a crime for a person who cares for a dependent adult to cause the dependent adult injury or to endanger the dependent adult’s person or health.  As I have further found, there is no dispute that the factual basis for this conviction was the sexual encounter that CNA 1 had with Resident 1.  That CNA 1 may have pleaded no contest to a lesser offense than sexual assault does not alter the fact that he abused his position as a caretaker when he engaged in sexual intercourse with Resident 1.

Both guidance in the State Operations Manual (SOM)9 and Petitioner’s own internal guidance support the conclusion that a sexual relationship between facility staff and a facility resident is inherently coercive and, thus, abusive.  The SOM specifically addresses a “relationship” between a facility resident and an employee:

Nursing home staff are expected to recognize that engaging in a sexual relationship with a resident, even an apparently willingly engaged and consensual relationship, is not consistent with the staff member’s role as a caregiver and will be considered an abuse of power . . . .

*          *          *

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Any sexual relationship between a staff member and a resident with or without diminished capacity may constitute sexual abuse in the absence of a sexual relationship that existed before the resident was admitted to the facility, such as a spouse or partner, and must be thoroughly investigated.  However, in a rare situation, it may not be considered to be sexual abuse when a nursing home employee has a pre-existing sexual relationship with an individual (i.e., spouse or partner) who is then admitted to the nursing home, unless there are concerns about the relationship not being consensual.

SOM, CMS Pub. 100-07, Appendix PP (Tag F600 § 483.12) (Trans. 173, eff. Nov. 28, 2017) (emphasis supplied).

Consistent with the SOM, Petitioner’s own training materials instruct staff that they should never engage in sexual relationships with residents because such relationships constitute harmful and unethical boundary violations.  CMS Ex. 12 at 2.  As several appellate decisions of the Departmental Appeals Board (DAB) make clear, by violating its own internal policy, a facility may fail to comply with Medicare participation requirements.  See, e.g., Bivins Memorial Nursing Home, DAB No. 2771 at 9 (2017) (“failure to comply with its own policies can support a finding that the facility did not achieve compliance with the regulatory standard.”); Life Care Ctr. of Bardstown, DAB No. 2233 at 22 (2009) (a facility’s failure to comply with its own policies can constitute a deficiency); Sheridan Health Care Ctr., DAB No. 2178 at 32 (2008) (adoption of a resident care policy supports an inference that the policy was “necessary to attain or maintain resident well-being”).

In summary, under California law and consistent with the SOM and Petitioner’s own policies, a sexual relationship between a caretaker and a dependent adult is inherently abusive.  Consequently, the capacity of the dependent adult to consent is irrelevant as a matter of law.  Because consent is irrelevant, it is equally irrelevant if, as Petitioner alleges, the surveyor made no effort to investigate or determine Resident 1’s capacity to consent or to assess Resident 1’s mental state.  See P. Br. at 12-13.  In any event, even if the surveyor’s investigation were inadequate, inadequate survey performance does not invalidate adequately documented deficiencies.  42 C.F.R. § 488.318(b).  Consistent with the regulation, appellate decisions of the DAB hold that, whatever may be in a surveyor’s mind when he or she decides to cite a deficiency and decides what scope and severity to assign, that initial decision is merely a recommendation to CMS.  See, e.g., Britthaven of Chapel Hill, DAB No. 2284 at 6-7 (2009) (state agency merely recommends a finding of compliance or noncompliance; CMS ultimately determines whether the facility is in substantial compliance and whether immediate jeopardy exists).  Further, because the administrative law judge decides compliance issues de novo, “the quality of the

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surveyors’ information gathering or thought processes is immaterial.”  Oaks of Mid City Nursing & Rehab. Ctr., DAB No. 2375 at 33 (2011).

Petitioner argues in the alternative that, even if the relationship between Resident 1 and CNA 1 constituted abuse, Petitioner could not have foreseen the abuse because the resident and CNA 1 kept their relationship secret.  P. Br. at 1, 6.  For purposes of summary judgment, I accept that Petitioner’s staff did not become aware of Resident 1’s allegation that CNA 1 had raped her (or even that she had a romantic relationship with CNA 1) until Glendale Police arrived to investigate the allegations on or about February 18, 2019.  However, because the acts that constituted abuse were perpetrated by Petitioner’s employee, the abuse need not have been foreseeable.  Springhill Senior Residence, DAB No. 2513 at 15 (2013) (“because a facility is responsible for its staff’s actions, ‘considerations of foreseeability are inapposite when staff abuse has occurred.’” (quoting Gateway Nursing Ctr., DAB No. 2283 at 8 (2009)).

To the contrary, these decisions make clear that, “for the purpose of evaluating a facility’s compliance with the Medicare and Medicaid participation requirements, the facility acts through its staff and cannot dissociate itself from the consequences of its employees’ actions.”  Springhill, DAB No. 2513 at 14; see also Gateway, DAB No. 2283 at 8 (facilities are responsible for their staff’s actions); Emerald Oaks, DAB No. 1800 at 7 n.3 (2001) (employees are the agents of their employers, “empowered to make and carry out daily care decisions.”).  Having elected “to meet its commitments to provide care and protect residents’ rights through these employees, [a facility] cannot . . . reasonably claim that their misconduct [i]s in effect irrelevant for the purpose of evaluating the facility’s compliance.”  Springhill, DAB No. 2513 at 14; see also Emerald Oaks, DAB No. 1800 at 7 n.3.  Additionally, this “rationale for holding a facility accountable for the actions of its staff applies equally to all staff members who, in the course of carrying out their assigned duties, fail to act in a manner consistent with the regulations and the facility’s policies pertaining to resident abuse.”  North Carolina State Veterans Nursing Home, Salisbury, DAB No. 2256 at 12 (2009).  Here, “[t]he CNA was in the facility and had access to the resident[] because the facility placed in him in the position to provide personal care to the resident[], in the course of which he committed these acts.”  Kindred Transitional Care & Rehab, DAB No. 2792 at 14.   As the Kindred Transitional decision elaborated, a facility’s contractual relationship with its employees warrants a different standard for liability for abuse perpetrated by employees in contrast to abuse perpetrated by non-employees, such as outsiders or other residents.  Id. at 10-11.

The above-cited cases are entirely consistent with the Act.  Section 1128A(l) of the Act, made applicable by Section 1819(h)(2)(B)(ii)(I) of the Act to cases, like this one, involving CMPs, provides, “[a] principal is liable for penalties . . . under this section for the actions of the principal’s agent acting within the scope of the agency.”  42 U.S.C. § 1320a-7a(l); see also 42 U.S.C. § 1395i-3(h)(2)(B)(ii)(I).  The appellate decision in Kindred Transitional interpreted this statutory provision “to mean that facilities may

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indeed be held responsible for the actions of their employees in determining whether the facilities have complied with applicable regulations.”  DAB No. 2792 at 12 (citing Ridge Terrace, DAB No. 1834 at 7-8 (2002)).  Petitioner fails to cite,10 let alone come to grips with, any of the foregoing DAB decisions in its attempt to avoid responsibility for CNA 1’s abuse of Resident 1.

In sum, having elected to provide care to Resident 1 through CNA 1, Petitioner cannot now disclaim responsibility for CNA 1’s abuse of Resident 1 while providing her care.  As the DAB has made clear, Petitioner is responsible for its employees’ misconduct, regardless of whether that misconduct was foreseeable.  Springhill, DAB No. 2513 at 14‑15.  As discussed above, a dependent adult is, by California statute, unable to consent to sexual intercourse with a caretaker, making such conduct non-consensual, and therefore sexual abuse, under 42 C.F.R. § 483.5.  Consequently, the undisputed facts show that Petitioner, through CNA 1, violated Resident 1’s right to be free from abuse and the regulatory prohibition against using physical or sexual abuse against facility residents.  42 C.F.R. § 483.12(a)(1).

Further, Petitioner’s noncompliance had the potential to cause more than minimal harm.  The record includes accounts by Resident 1 from which one could conclude that she experienced physical and psychological harm as a result of her interactions with CNA 1; however, Petitioner disputes the accuracy of Resident 1’s accounts.  P. Br. at 15-16.  For example, Petitioner acknowledges that Resident 1 experienced an “acute psychiatric crisis” following the incident.  Id. at 16.  But, Petitioner contends that this crisis was “the natural sequelae of Resident 1’s underlying health conditions.”  Id.  For purposes of summary judgment, I do not rely on Resident 1’s statements or her psychiatric hospitalization to conclude that she suffered harm.  Instead, I find that, as a matter of law, abuse of a resident causes harm.  The applicable regulations establish a presumption that “[i]nstances of abuse of all residents, irrespective of any mental or physical condition, cause physical harm, pain[,] or mental anguish.”  42 C.F.R. § 483.5 (definition of abuse).  Accordingly, I conclude that Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(a)(1) (Tag F600).

1. 1. 2. Petitioner was not in substantial compliance with 42 C.F.R. § 483.12 (Tag F602) because one of its employees, CNA 1, accepted gifts from Resident 1.

Residents of SNFs have the right to be free from misappropriation of resident property and exploitation.  42 C.F.R. § 483.12.  “Misappropriation of resident property” is defined

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as “the deliberate misplacement, exploitation, or wrongful, temporary, or permanent use of a resident’s belongings or money without the resident’s consent.”  42 C.F.R. § 483.5.  “Exploitation” means “taking advantage of a resident for personal gain through the use of manipulation, intimidation, threats, or coercion.”  Id.

Petitioner does not dispute that CNA 1 accepted sodas and snacks from Resident 1.  P. Br. at 17.  Further, Petitioner offered evidence that it contends shows Resident 1 gave CNA 1 “a Valentine’s Day gift of a cell phone.”  Id. at 5; see also P. Ex. 7.  From this evidence, Petitioner urges me to conclude that Resident 1 willingly pursued a romantic relationship with CNA 1.  P. Br. at 5.  However, even if Resident 1 was romantically interested in CNA 1, and gave him gifts as a result, CNA 1’s acceptance of the gifts was inherently manipulative and therefore exploitive because of his role as a caregiver.11   As provided in Petitioner’s training materials, staff members may not “give or accept gifts, loans, money, or other valuables to or from [residents].”  CMS Ex. 12 at 2; See also CMS Ex. 18 at ¶ 7 (Petitioner’s Assistant Administrator conceded it was against Petitioner’s policy for staff to accept gifts from residents).  For similar reasons to those discussed in the previous section of this decision, I find that Petitioner’s policy is evidence of the standard of care.

Because Petitioner’s employee, CNA 1, exploited Resident 1 by accepting gifts from her, Petitioner failed to protect Resident 1 from misappropriation of her property and/or exploitation as required by 42 C.F.R. § 483.12.  CMS cited this deficiency as an isolated incident that did not cause actual harm, but had the potential to cause more than minimal harm (S/S “D”).  CMS Ex. 1 at 11.  Petitioner’s evidence suggests that the value of the cell phone Resident 1 gave CNA 1 was $150.  P. Ex. 7.  Even recognizing that the value of the phone may be uncertain, I find it a sufficient basis to conclude that the potential harm was more than minimal.  Accordingly, Petitioner was not in substantial compliance with 42 C.F.R. § 483.12 (Tag F602).  Having concluded that Petitioner did not comply substantially with Medicare participation requirements, I next consider whether CMS’s finding of immediate jeopardy was clearly erroneous.

1. 4. CMS’s immediate jeopardy determination was not clearly erroneous.

CMS asserts that Petitioner’s violation of the requirements at 42 C.F.R. § 483.12(a)(1) constituted an isolated instance of immediate jeopardy to resident health and safety (S/S “J”) from February 14, 2019, through February 18, 2019.  CMS Br. at 2, 8-9, 19-21.

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Petitioner argues that even if I were to find noncompliance, there is insufficient factual and legal justification for a finding of immediate jeopardy.  P. Br. 15‑16.

Immediate jeopardy exists if a facility’s noncompliance has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.  42 C.F.R. § 488.301.  The regulation does not require that a resident actually be harmed.  Lakeport Skilled Nursing Ctr., DAB No. 2435 at 8 (2012).  I must uphold CMS’s determination as to the level of a facility’s substantial noncompliance (which includes an immediate jeopardy finding) unless it is “clearly erroneous.”  42 C.F.R. § 498.60(c).  The “clearly erroneous” standard imposes on facilities a heavy burden to overcome a finding of immediate jeopardy.  Appellate panels of the DAB have sustained determinations of immediate jeopardy where CMS presented evidence “from which ‘[o]ne could reasonably conclude’ that immediate jeopardy exists.”  See, e.g., Barbourville Nursing Home, DAB No. 1962 at 11 (2005) (citing Florence Park Care Ctr., DAB No. 1931 at 27-28 (2004)), aff’d, Barbourville Nursing Home v. U.S. Dep’t of Health & Human Servs., 174 F. App’x 932 (6th Cir. 2006).

In this case, CMS’s finding of immediate jeopardy is not clearly erroneous.  Resident 1 reported that she experienced pain and vaginal bleeding during and after sexual intercourse with CNA 1.  CMS Ex. 6 at 6.  CNA 1 corroborated Resident 1’s account to a certain extent.  Id. at 8.  Resident 1 also required psychiatric hospitalization after the incident.  CMS Ex. 5 at 205; CMS Ex. 15 at ¶¶ 19, 22; RFH at 149.  Nevertheless, because Petitioner disputes these effects, or that they were the result of the sexual relationship between Resident 1 and CNA 1, I do not rely on them in concluding that the finding of immediate jeopardy is not clearly erroneous.

Even if Resident 1 had not sustained actual harm, sexual abuse puts residents at risk of serious injury or harm, including emotional trauma.  See SOM, Appendix Q (“serious adverse outcomes may not always effect physical functioning, but may have an effect on mental or psychosocial functioning (e.g., noncompliance which causes a recipient to suffer psychosocial harm, such as from sexual abuse)”); see also Kindred Transitional Care, DAB No. 2792 at 23 (“[p]sychological harm is a cognizable form of injury for purposes of an abuse violation.”).  As in the Kindred Transitional decision, in the present case, Petitioner’s records amply demonstrate Resident 1’s psychological diagnoses, suggesting her “susceptibility or vulnerability to exacerbated psychological harm attributable to the CNA’s actions.”  Id. at 24.  Thus, whether or not she in fact experienced serious harm as a result of the abuse perpetrated by CNA 1, Resident 1 was likely to experience such harm.  Moreover, given that CNA 1 engaged in an inappropriate relationship with Resident 1, he demonstrated that he was unable to respect professional boundaries, which may have placed other residents at risk of similar harm.  Had Resident 1 not called 911 to report the unwanted sexual intercourse, CNA 1 may have continued to pursue sexual contact with Resident 1 or other residents.  Because CNA 1 was a member of Petitioner’s staff, Petitioner is responsible for his actions, for the reasons discussed

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above.  Thus, Petitioner’s failure to substantially comply with 42 C.F.R. § 483.12(a)(1) was likely to cause serious injury or harm to its residents.

Petitioner primarily argues that in declaring immediate jeopardy, CMS failed to account for Resident 1’s ability to exercise reasonable judgment in engaging in a secret affair with CNA 1 and consent to sexual contact.  P. Br. at 5-6, 11-16.  Petitioner also argues that Resident 1 was not “under coercion or duress at the time she submitted to sexual intercourse with CNA 1.”  P. Br. at 14.  However, for the same reasons discussed above, even if Resident 1 had the capacity to consent to sex, and did so, CNA 1’s position as a caretaker of a dependent adult made any sexual relationship inherently coercive.  Moreover, CNA 1 would not have had access to Resident 1 but for his position as an employee of Petitioner.  See Kindred Transitional Care, DAB No. 2792 at 14 (“[t]he CNA was in the facility and had access to the residents because the facility placed him in the position to provide personal care to the residents, in the course of which he committed these acts.”).  Had Petitioner ensured that its employee did not engage in an inappropriate relationship with Resident 1, she would not have had to “submit” to any sexual intercourse.

Regardless of Resident 1’s mental state or capacity to consent, she was a resident of Petitioner’s facility and therefore a dependent adult.  CNA 1 was convicted of elder abuse for having sexual intercourse with Resident 1, a fact that Petitioner does not dispute.  Resident 1 reported that she experienced harm from the sexual encounter, including bleeding, bruising, and suicidal thoughts.  But, even if Resident 1 did not experience the injuries she claimed, the regulations presume that “[i]nstances of abuse of all residents, irrespective of any mental or physical condition, cause physical harm, pain[,] or mental anguish.”  42 C.F.R. § 483.5 (definition of abuse).  Consequently, I conclude that CMS did not clearly err in citing immediate jeopardy.

1. 5. The remedies proposed are reasonable in amount and duration.

Regarding the amount of the CMP, I examine whether a CMP is reasonable by applying the factors listed in 42 C.F.R. § 488.438(f):  1) the facility’s history of noncompliance; 2) the facility’s financial condition; 3) the factors specified in 42 C.F.R. § 488.404; and 4) the facility’s degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort, or safety.  The absence of culpability is not a mitigating factor.  The factors listed in § 488.404 include:  1) the 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.  Unless a facility contends that a particular regulatory factor does not support the CMP amount that CMS proposed, the administrative law judge must sustain it.  Coquina Ctr., DAB No. 1860 at 32 (2002).

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The regulations specify that a per-day CMP will fall into one of two ranges of penalties.  42 C.F.R. §§ 488.408, 488.438.  The upper range of a CMP, from $6,524 to $21,393 per day, is reserved for deficiencies that pose immediate jeopardy to a facility’s residents and, in some circumstances, for repeated deficiencies.  42 C.F.R. § 488.438(a)(1)(i), (d)(2); see also 83 Fed. Reg. at 51,380.  The lower range of a CMP, $107 to $6,418 per day, is reserved for deficiencies that do not pose immediate jeopardy, but either cause actual harm to residents, or cause no actual harm but have the potential for causing more than minimal harm.  42 C.F.R. § 488.438(a)(1)(ii); see also 83 Fed. Reg. at 51,380.  The reasonableness of a CMP amount is assessed based on the per-day amount, rather than the total accrued CMP.  See Kenton Healthcare, LLC, DAB No. 2186 at 28 (2008).  The regulations leave the decision regarding the choice of remedy to CMS, and the amount of the remedy to CMS and the administrative law judge, requiring only that the regulatory factors be considered when determining the amount of a CMP within a particular range.  42 C.F.R. §§ 488.408; 488.408(g)(2); 498.3(d)(11); see also 42 C.F.R. § 488.438(e)(2) and (3); Alexandria Place, DAB No. 2245 at 27 (2009); Kenton Healthcare, LLC, DAB No. 2186 at 28-29.

CMS imposed two per-day CMPs in this case, and I have found that the citation of immediate jeopardy was not clearly erroneous.  For the period of Petitioner’s immediate jeopardy level noncompliance, CMS proposed a CMP of $7,050 per day, which is near the bottom of the range for immediate jeopardy level noncompliance.  For the period of Petitioner’s below immediate jeopardy level noncompliance, CMS proposed a CMP of $110 per day, which also is near the minimum for below immediate jeopardy level noncompliance.

Amount:  As my analysis in section IV(b)(3), supra, shows, Petitioner’s immediate jeopardy noncompliance was very serious.  CNA 1 would not have had access to Resident 1 but for his position as an employee of Petitioner.  Petitioner was obligated to protect Resident 1 from all abuse.  CNA 1, as a caretaker for dependent adult Resident 1, was prohibited from engaging in any sexual relationship with Resident 1.  As a matter of law, sexual intercourse between Resident 1 and CNA 1 was inherently coercive and, accordingly, abusive.  Despite the steps Petitioner took to prevent staff from entering into sexual relationships or having sexual contact with Petitioner’s residents, CNA 1 was able to have sexual intercourse with Resident 1, unobserved in Petitioner’s facility, and it was only after Resident 1 called 911 and requested medical assistance that anyone became aware of CNA 1’s abuse of Resident 1.  Furthermore, Petitioner’s noncompliance could have affected other residents who CNA 1 may have wanted to pursue for sex, leading to similar risks of harm to those residents.

Petitioner recognized these risks, conceded CNA 1 had sexual intercourse with Resident 1, and did not dispute that this contact resulted in CNA 1 being convicted of criminal elder abuse.  I therefore reject as a matter of law Petitioner’s argument that Resident 1’s capacity to consent to sexual contact reduces its culpability and/or precludes

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me from concluding that the CMP proposed by CMS for Petitioner’s immediate jeopardy level noncompliance is reasonable.  On the other hand, I acknowledge that Petitioner had policies and training materials in place that prohibited staff from entering into sexual relationships with residents.  I also accept Petitioner’s representation that it was unaware of CNA 1’s abuse of Resident 1 until police investigators brought it to their attention.  In addition, the fact that Petitioner suspended and then terminated CNA 1’s employment once it became aware of his inappropriate conduct suggests that Petitioner did not knowingly employ a CNA who would exploit a resident.  Based on all these considerations, I find that a CMP in the low range for immediate jeopardy noncompliance is reasonable.

Petitioner’s other general arguments as to why I should not find the CMPs reasonable are similarly unavailing.  First, although CMS does not go into great detail in arguing why the regulatory factors support the proposed CMPs, it does make more-than-conclusory arguments about why two of those factors (factors three and four, at 42 C.F.R. § 488.438(f)(3)-(4)) support the proposed CMPs.  Finally, aside from its general attacks on the reasonableness of the CMPs, Petitioner makes no specific argument as to why the per-day CMP proposed for its below immediate jeopardy level noncompliance ($110) is not reasonable in amount.  Given that Petitioner had alleviated the immediate jeopardy situation by February 19, 2019, but had not fully returned to substantial compliance with § 483.12, a CMP in the low range of non-immediate jeopardy noncompliance is reasonable for Petitioner’s continued noncompliance.

Duration:  The parties’ arguments about the reasonableness of the CMPs focus on the amount of the CMPs; they make no specific arguments about the reasonableness of the proposed duration of the CMPs.  Petitioner argues that it was at all times in substantial compliance and, for that reason, no CMPs should be imposed.  P. Br. at 20.  For all the reasons discussed above, I have concluded that Petitioner was out of substantial compliance and that the finding of immediate jeopardy is not clearly erroneous.

It is well-settled that, once CMS has demonstrated a facility is not in substantial compliance with Medicare participation requirements, continuing noncompliance is presumed and the burden is on the facility to demonstrate it returned to substantial compliance earlier than the date alleged by CMS.  Premier Living & Rehab. Ctr., DAB No. 2146 at 23 (2008) (“[O]nce a facility has been found to be out of substantial compliance, it remains so until it affirmatively demonstrates that it has achieved substantial compliance once again.”).  CMS found that Petitioner returned to substantial compliance with Medicare participation requirements on May 8, 2019.  CMS Ex. 13 at 2.  Petitioner presented no evidence that, should I find it noncompliant, it returned to substantial compliance prior to May 8, 2019.  Accordingly, Petitioner has not raised a dispute of material fact as to the reasonableness of the duration of the proposed CMPs.  I therefore conclude as a matter of law that the duration of the proposed CMPs is reasonable.

V. Conclusion

For the reasons explained above, I conclude that Petitioner was not in substantial compliance with the participation requirements at 42 C.F.R. §§ 483.12(a)(1), 483.12 (Tags F600 and F602).  I further conclude that CMS did not clearly err in determining that Petitioner’s noncompliance with § 483.12(a)(1) posed immediate jeopardy to resident health and safety.  Finally, I conclude that the proposed CMPs, a $7,050 per-day CMP effective February 14, 2019, through February 18, 2019, and a $110 per-day CMP effective February 19, 2019, through May 7, 2019, are reasonable.  In light of the foregoing, I grant CMS’s motion for summary judgment.

1. The regulations governing Medicare participation requirements for SNFs were revised, effective November 28, 2016. 81 Fed. Reg. 68,688 (Oct. 4, 2016); 82 Fed. Reg. 32,256 (July 13, 2017). I apply the regulations in effect at the time of the survey. See Carmel Convalescent Hosp., DAB No. 1584 at 2 n.2 (1996).
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2. The parties filed exhibits in the electronic files for both Docket No. C-20-172 and Docket No. C-19-970, which I consolidated by order dated December 18, 2019. In this decision, I cite to the exhibits filed in Docket No. C-20-172, except where I specify otherwise.
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3. I note that, while CMS’s revised determination resulted in a higher scope and severity for one deficiency, the total amount of the CMP’s imposed decreased by more than 50% ($1,345 x 82 days = $110,290).
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4. CMS’s letter of October 10, 2019, states that Petitioner returned to substantial compliance with Medicare participation requirements effective May 8, 2018. CMS Ex. 13 at 2. I take this to be a typographical error. The letter states that the CMP stopped accruing after May 7, 2019, and the revisit survey was completed on May 8, 2019. Id.; see also P. Ex. 3 (Docket No. C-19-970). I therefore find it more likely than not that the notice letter intended to identify May 8, 2019, as Petitioner’s return to compliance date.
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5. My conclusions of law appear as headings in bold italic type. My findings of fact appear in the supporting text.
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6. As part of the regulatory revisions in 2016, former 42 C.F.R. § 483.13(c)(1)(i) was redesignated without revision as 42 C.F.R. § 483.12(a)(1). Departmental Appeals Board (DAB) cases discussing noncompliance with former 42 C.F.R. § 483.13(c)(1)(i) thus remain instructive in cases, like this one, involving alleged noncompliance with 42 C.F.R. § 483.12(a)(1).
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7. California law includes skilled nursing facilities in the definition of 24-hour health facilities. Cal. Health & Safety Code § 1250(c)(1).
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8. California Penal Code Section 288(c)(2) prohibits a caretaker of a dependent person from committing a “lewd or lascivious act . . . with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires” of either the caretaker or the dependent person. See Cal. Penal Code § 288(a). If the act was committed by force or violence, or under duress, the offense is a felony punishable by 5-10 years’ imprisonment. Cal. Penal Code § 288(b)(2). Absent force or violence, the crime is defined as a “public offense” punishable by 1-3 years’ imprisonment. Cal. Penal Code § 288(c)(2).
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9. I acknowledge that the SOM represents sub-regulatory guidance from CMS to state surveyors conducting surveys on CMS’s behalf and is, therefore, not binding on me. I nevertheless consider this guidance persuasive evidence of the standard of care.
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10. Petitioner cites to Emerald Oaks, DAB No. 1800 at 7 (2001) in disputing the CMP amount, but fails to cite the Emerald Oaks case in connection with its defense against the violation of 42 C.F.R. § 483.12(a)(1). See P. Br. at 19-20.
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11. There is evidence in the record from which one could infer that CNA 1 manipulated Resident 1 by allowing her to believe that they were in a relationship and would get married or otherwise live together outside the facility. See, e.g., CMS Ex. 6 at 6, 8. However, I do not draw such an inference for purposes of ruling on CMS’s motion for summary judgment.
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