Belmont Manor, DAB CR6034 (2022)

DECISION

Belmont Manor (Petitioner or the facility) challenges the determination by the Centers for Medicare & Medicaid Services (CMS) that it was not in substantial compliance with Medicare program participation requirements at 42 C.F.R. § 483.12(a)(1) (residents have the right to be free from abuse).  Petitioner also challenges the imposition of a civil money penalty (CMP) of $505 per day for 32 days, a total of $16,160.  CMS found noncompliance and imposed the CMP based on an incident in which a dentist, who was providing services to Petitioner’s residents under a contract, shouted, cursed at, and handled roughly a resident he was attempting to treat.  Petitioner contends that it was not to blame for the dentist’s actions.  For the reasons discussed below, I find that Petitioner failed to ensure that one or more of its residents was free from abuse and therefore failed to comply substantially with 42 C.F.R. § 483.12(a)(1).  I also conclude that the amount of the per-day CMP imposed is reasonable.

I.   Background and Procedural History

Petitioner is a skilled nursing facility (SNF) located in St. Clairsville, Ohio, that participates in the Medicare program.  See, e.g., CMS Exhibit (Ex.) 11 at 1.  The Ohio Department of Health (state agency) completed a complaint investigation of Petitioner’s

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facility on November 2, 2017.  Id.; see also CMS Ex. 1.  Following the survey, the state agency concluded that Petitioner was not in substantial compliance with, inter alia, 42 C.F.R. § 483.12(a)(1) (Tag F223).  CMS Ex. 11 at 1.  The facility’s noncompliance was cited at a scope and severity level “G.”1   Id.  The state agency recommended that CMS impose remedies for the noncompliance.  See CMS Ex. 8 at 2.  By letter dated June 12, 2018, CMS imposed a CMP of $505 for 32 days beginning October 19, 2017 and continuing through November 19, 2017, totaling $16,160.  Id. at 1-2.  CMS also notified Petitioner that it was subject to a two-year prohibition on conducting a Nurse Aide Training and Competency Evaluation Program.  Id. at 4-5.

Petitioner timely requested a hearing before an administrative law judge.  The case was assigned to me for hearing and decision.  On August 15, 2018, I issued an Acknowledgement and Pre-Hearing Order (Pre-Hearing Order) establishing a schedule for exchanging evidence and pre-hearing briefs.  In compliance with the Pre-Hearing Order, CMS filed a pre-hearing exchange, consisting of a combined pre-hearing brief and motion for summary judgment (CMS Br.) and 33 proposed exhibits, including the written declaration of one proposed witness (CMS Exs. 1-33).  Petitioner filed a pre-hearing exchange, consisting of a combined pre‑hearing brief, opposition to CMS’s motion for summary judgment, and cross motion for summary judgment (P. Br.) and 11 proposed exhibits, including the written declarations of five proposed witnesses (P. Exs. 1-11).  Each party requested to cross-examine the witnesses proposed by the opposing party.

In a Ruling and Order dated March 5, 2020, I denied CMS’s motion for summary judgment.  I convened a telephone pre-hearing conference to set a hearing date and to rule on evidentiary objections.  During the conference, I stated that CMS Exs. 1-32 and P. Exs. 1-5 would be admitted without objection.  I overruled CMS’s objection to P. Ex. 6 and stated that it would be admitted, but that I would consider CMS’s objection in determining what weight to give the exhibit.  I reserved ruling on the admissibility of

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the witness declarations until the hearing.  Also at the prehearing conference, I gave the parties leave to amend their witness and exhibit lists.  CMS amended its witness and exhibit lists to propose one additional witness and four additional exhibits (CMS Exs. 34‑37).  Petitioner did not propose any additional witnesses or exhibits.

On August 11, 2020, I held a hearing via video-teleconference (VTC), and a transcript (Tr.) was made of the proceeding.  I presided from my office in the Washington, D.C. metropolitan area.  Counsel for Petitioner, Geoffrey Webster, Esq., and Petitioner’s witnesses appeared via VTC from Petitioner’s facility in St. Clairsville, Ohio.  Counsel for CMS, Chung-Han Lee, Assistant Regional Counsel, appeared via VTC from the CMS Regional Office in Chicago, Illinois.  CMS’s witnesses appeared separately from their homes or offices.  I admitted all remaining exhibits (CMS Exs. 33-37 and P. Exs. 7-11).  See Tr. at 3-4, 12, 45, 67, 100, 111, 145, 162.2   During the hearing, counsel for Petitioner cross-examined Stacy L. Pickenpaugh, R.N., a state agency surveyor, and Douglas B. Berkey, DMD, M.P.H., M.S., Professor Emeritus, University of Colorado School of Dental Medicine (Dr. Berkey).  Counsel for CMS cross-examined S.K., DDS (Dr. S.K.),3 a contract dentist who provided care to several residents of Petitioner’s facility; Becky Parsons, RN, Petitioner’s staff nurse; Karrie McCarthy, RN, Petitioner’s Director of Nursing (DON); Giuseppe Lancia, Petitioner’s administrator; and Thomas B. Cranfill, DMD (Dr. Cranfill), National Director of Dental Clinical Services for 360care, Dr. S.K.’s former employer.

Following the hearing, each party submitted a post-hearing brief (CMS Posthrg. Br.; P. Posthrg. Br.) and a reply brief (CMS Reply; P. Reply).

II.   Issues

The issues in this case are:

1. Whether Petitioner failed to comply substantially with Medicare participation requirements; and
2. If Petitioner did not comply substantially with Medicare participation requirements, whether the CMP amount is 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. §§ 4388.408(g), 488.434(a)(2)(viii), 498.3(b)(13).

IV.   Burden of Proof

CMS must make a prima facie showing that Petitioner failed to comply substantially with federal participation requirements.  If this occurs, Petitioner must prove substantial compliance by a preponderance of the evidence in order to rebut CMS’s showing and to prevail.  Hillman Rehab. Ctr., DAB No. 1611 at 8 (1997), aff’d, Hillman Rehab. Ctr. v. U.S. Dep’t of Health & Human Servs., No. Civ. A 98-3789 (GEB), 1999 WL 34813783(D.N.J. May 13, 1999); Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004), aff’d, Batavia Nursing & Convalescent Ctr. v. Thompson, 129 F. App’x 181 (6th Cir. 2005); Emerald Oaks, DAB No. 1800 (2001); Cross Creek Health Care Ctr., DAB No. 1665 (1998).

V.   Discussion

A. Statutory and Regulatory Framework

The Act sets requirements for SNF participation in the Medicare program.  The Act authorizes the Secretary of Health & Human Services (Secretary) to promulgate regulations implementing those statutory provisions.  Act § 1819 (42 U.S.C. § 1395i-3).  The Secretary’s regulations are found at 42 C.F.R. pt. 483.

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

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

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not in substantial compliance with the program participation requirements.  Act § 1819(h)(2) (42 U.S.C. § 1395i-3(h)(2)).  Among other enforcement remedies, CMS may impose a per-day CMP for the number of days a facility is not in substantial compliance.  42 C.F.R. § 488.430(a).  CMS may also impose a per-day CMP for the number of days of past noncompliance.  42 C.F.R. § 488.430(b).  At the time of the November 2017 survey at issue in this case, the range for a per-day CMP at the immediate jeopardy level was $6,394-$20,965, while the range for a per-day CMP at the non-immediate jeopardy level was $105-$6,289.  42 C.F.R. § 488.438(a)(1); 45 C.F.R. § 102.3; see also 82 Fed. Reg. 9174, 9182-83 (Feb. 3, 2017).

Regarding the specific participation requirements at issue in the present case, the regulations require facilities to ensure that residents are free from abuse:

The resident has the right to be free from abuse, neglect, misappropriation of resident property, and exploitation as defined in this subpart.  This includes but is not limited to freedom from corporal punishment, involuntary seclusion and any physical or chemical restraint not required to treat the resident’s medical symptoms.

42 C.F.R. § 483.12.  In addition, subsection 483.12(a)(1) provides that facilities must “[n]ot use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion[.]”

Section 483.5 of the regulations defines “abuse” as follows:

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

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

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

Petitioner’s Abuse Prevention Policy

At the time of the incident at issue, Petitioner had a policy titled “Abuse, Mistreatment, Neglect and/or Misappropriation of Resident Property” dated July 18, 2012.  CMS Ex. 25.  The abuse policy states, in relevant part:

Lancia Nursing Homes ensures that each resident has the right to be free from abuse, corporal punishment, and involuntary seclusion.  Resident[s] will not be subjected to abuse by anyone, including, but not limited to, facility staff, other residents, consultants or volunteers, staff of other agencies serving the resident, family members or legal guardians, friends, or other individuals.

Id. at 1.  Petitioner’s abuse prevention policy defines abuse as “the willful infliction of injury, unreasonable confinement, intimidation or punishment with resulting physical harm, pain or mental anguish,” and defines verbal abuse as “the use of oral, written or gestured language that willfully includes disparaging and derogatory terms to resident[s] or their families, or within their hearing distance, regardless of their age, ability to comprehend, or disability.”  Id.  Petitioner’s abuse prevention policy further provides that, “[a]ny/all staff that may feel there is a situation in the facility that may lead to abuse, neglect or misappropriation of resident property is asked to report” to someone in management, such as the charge nurse, DON, facility manager, or administrator.  Id. at 3.  Petitioner’s abuse policy directs staff to “[t]ell someone, whoever you feel most comfortable.”  Id.  In addition, the abuse prevention policy directs that “[s]taff is advised to immediately separate the resident from the alleged source of abuse.”  Id. at 4.

Resident 414

At the time of the incident, Resident 41 was an 88-year-old woman who was admitted to Petitioner’s facility in 2016.  CMS Ex. 18.  Resident 41’s diagnoses included Alzheimer’s disease, anxiety disorder, and depression.  CMS Ex. 16 at 1.  According to the Statement of Deficiencies, Resident 41’s Minimum Data Set (MDS) assessment, dated October 4, 2017, documented that she was severely cognitively impaired for daily decision making.  CMS Ex. 11 at 2.  The MDS also indicated that Resident 41 required supervision with

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bed mobility, ambulation, and limited assistance of one staff member with transfers, locomotion on and off the unit, eating, toilet use, and personal hygiene.  Id.  The MDS further documented that Resident 41 had not exhibited behaviors of hitting, kicking, scratching, or grabbing, but at times displayed verbal behavioral symptoms directed toward others such as threatening, screaming, and cursing.  Id.; see also CMS Ex. 16 at 1.

Events of October 19, 20175

On the evening of October 19, 2017, at approximately 5:00 p.m., Dr. S.K. arrived at Petitioner’s facility to provide dental services for Resident 41 and another of Petitioner’s residents.  CMS Ex. 4 at 1-2; CMS Ex. 20.  Dr. S.K. was affiliated with 360care, LLC (360care),6 a contractor that provided on-site dental care for Belmont residents.  CMS Ex. 4 at 1.  Dr. S.K. was accompanied by a dental assistant.  Id. They arrived several hours late for the appointments.  CMS Ex. 20; CMS Ex. 22 at 1; CMS Ex. 23 at 1.  When Dr. S.K. arrived, Becky Parsons, a registered nurse employed by Petitioner, informed him that it was the residents’ dinner time.  CMS Ex. 22 at 1; CMS Ex. 23 at 1.  Either Dr. S.K. or his assistant stated, “We are already behind[;] we need to get started[;] we will be quick.”  CMS Ex. 23 at 1; see also CMS Ex. 22 at 1.

The dental assistant requested to see Resident 41.  CMS Ex. 23 at 1.  The purpose of the appointment was to fit Resident 41 for dentures.  See P. Ex. 7 at ¶ 10.  Nurse Parsons advised Dr. S.K. that Resident 41 had advanced Alzheimer’s disease and anxiety, that she was easily agitated, and could become combative.  CMS Ex. 23 at 1.  Dr. S.K. acknowledged the information, responding, “that’s fine.”  Id.

Nurse Parsons brought Resident 41 to the exam room where the dentist had set up.  Id. Nurse Parsons also asked State Tested Nurse Aide Telia Boone (STNA Boone) to assist in the exam room.  CMS Ex. 22 at 1.  Resident 41 was confused and started resisting care.  CMS Ex. 23 at 1.  The dental assistant spoke calmly with Resident 41 and was able to get her to cooperate with putting the wax molds for the dentures in her mouth.  Id. 

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However, once the molds were in her mouth, Resident 41 would not allow Dr. S.K. or the dental assistant to assess the fit of the wax molds or to remove them from her mouth.  Id.  The dental assistant continued to speak calmly to Resident 41 and, after some time, was able to get the resident to remove the bottom mold from her mouth.  Resident 41 held the mold in her left hand and refused to give the mold to the dental assistant.  Id.  Furthermore, Resident 41 refused to allow anyone to remove the upper mold from her mouth.  Id.  After 10-15 minutes of trying to convince Resident 41 to cooperate, it was very clear to Nurse Parsons that Resident 41 was too agitated to continue with the procedure.  Id.

Nurse Parsons and STNA Boone were trying to calm Resident 41 down when Dr. S.K. suddenly lunged between Nurse Parsons and the dental assistant to get to Resident 41.  Id.  He forcefully snatched the bottom mold out of the resident’s hand and stated, “These are mine and you will give them back to me.”  Id. at 1-2; see also CMS Ex. 16 at 2; CMS Ex. 17 at 1; CMS Ex. 19; CMS Ex. 22 at 1.  Dr. S.K. threw the bottom mold onto the side table and quickly grabbed Resident 41 by the face and jaw area with his right hand, shoved his fingers into the resident’s mouth and yanked the upper mold out of her mouth. CMS Ex. 23 at 2.  As he was removing the mold from Resident 41’s mouth, Dr. S.K. said to her, “You don’t like me. Well, I don’t like you.”  CMS Ex. 22 at 2.

As Resident 41 struggled with Dr. S.K. and tried to kick and push him away, Resident 41 said “you stop that you son of a bitch.”  CMS Ex. 23 at 2; see also CMS Ex. 17 at 1; CMS Ex. 22 at 2.  Dr. S.K. responded, “I’m a son of a bitch?  No, you’re a son of a bitch.  You will not talk to me in that way.”  CMS Ex. 23 at 2; see also CMS Ex. 17 at 1, CMS Ex. 22 at 2.  Dr. S.K. continued to yell and argue with Resident 41 while STNA Boone tried to stand between them.  CMS Ex. 22 at 2; CMS Ex. 23 at 2.  The dental assistant tried calm Dr. S.K. down by telling him, “That’s enough doctor, this isn’t necessary.  Please, this is enough doctor.”  CMS Ex. 23 at 2.  At that point, Nurse Parsons stood up, assisted Resident 41 to her feet and told the dentist, “That is enough.”  CMS Ex. 23 at 2; see also CMS Ex. 22 at 2.  As Nurse Parsons and STNA Boone assisted Resident 41 out of the examination room to return her to her room, they heard Dr. S.K. say to the dental assistant, “If you pussy foot around like that we would be here for eight hours.”  CMS Ex. 23 at 2; see also CMS Ex. 22 at 2.

Nurse Parsons and STNA Boone had difficulty getting Resident 41 out of the examination room given her agitated state.  CMS Ex. 17 at 1-2.  She was screaming incoherently, kicking, and punching on the way back to the secured area where she resided.  Id.  Staff was able to calm the resident down by using therapeutic talking and coloring activities.  CMS Ex. 16 at 2.  Resident 41 did not sustain any injuries during the appointment, and there were no signs or symptoms of injuries or any complaints of pain in the days that followed the incident.  CMS Ex. 16 at 2; CMS Ex. 19.

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At 7:19 p.m. (19:19) on October 19, 2017, Nurse Parsons entered the following progress note in Resident 41’s medical record:

Dentist in to see resident.  Dentist was attempting to try on a wax mold to resident.  Once the mold was in resident[’]s mouth she did not want to return mold to dentist.  Nurse and nurses aide present as well as dental assistant.  [Resident 41] kept top wax mold in her mouth and bottom wax mold in her hand and refused to give them back.  Dentist then aggressively grabbed wax mold out of resident[’]s hand[;] resident screamed for dentist to get away from her.  Dentist then aggressively and with unnecessary force grabbed top wax mold out of resident[’]s mouth[;] resident became very irritated.  Nurse and nurses aide removed resident from the presence of dentist.  [Resident 41] was returned to the secure unit and was calmed down using therapeutic talking and coloring activities.  No injuries present at this time.

CMS Ex. 19.  Dr. S.K. saw another resident, Resident 18, immediately following the incident with Resident 41.  CMS Ex. 24 at 3; see also CMS Ex. 15.

Petitioner’s internal investigation

On the evening of October 19, 2017, Nurse Parsons prepared and signed a Resident Incident Report form.  CMS Ex. 21.  STNA Boone and the dental assistant also signed the form.  Id.  In the space headed “Description of Incident,” Nurse Parsons wrote: 

Dentist working on [Resident 41’s] teeth used excessive and unnecessary force to remove mold from [Resident 41’s] mouth.  [Resident 41] was upset and refusing to give mold back.  Dentist grabbed mold out of [her] mouth and the one in her hand. 

Id.  Nurse Parsons elaborated that the –

[d]entist working on [Resident 41] got very frustrated . . . that [Resident 41] wouldn’t remove the mold so the dentist very aggressively grabbed the one out of the resident’s hand and then grabbed the resident by the face and forcefully grabbed the mold out of her mouth.  He then proceeded to cuss and argue with the resident and stated he didn’t like her.

The report also includes a statement from the dental assistant, who wrote:

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Dentist working on [Resident 41] got loud [and] stated, “you don't like me, that’s my denture give it to me.”  [The dentist] grabbed [the mold] aggressively out of patient’s mouth[,] very excessive holding of the patient’s hands and very aggressively standing over her.  [The dentist] threw [the] wax [mold] on . . . computer [and] kept swearing about it.  [The Dentist] calmed down then apologized to [STNA Boone] who also was in the room. 

Id.

Petitioner’s DON, Karrie McCarthy, came into the facility at or about 8:30 p.m. on October 19, 2017, to fill out the self-reported incident (SRI) form for the state agency.  CMS Ex. 24 at 1; see also Tr. at 167.  In the form, DON McCarthy summarized the incident as follows: 

Dr. [S.K.] and his assistant arrived at facility several hours late.  He was informed by the nurse on duty that it was dinner time.  He stated “we are already behind and we will need to get started.  We will be quick.”  The doctor was informed that the resident he would be seeing had advanced Alzheimer's disease and could easily become combative and was easily agitated.  Dr. [S.K.] stated[,] “this is fine”[,] acknowledging his understanding.  During the encounter with the resident, Dr. [S.K.] became extremely aggressive and forceful with resident.  

CMS Ex. 27 at 2.  On the form, DON McCarthy checked boxes to indicate that the report concerned allegations of “[n]eglect/mistreatment” and “[e]motional/verbal abuse.”  Id. at 1.  She also checked a box to indicate that the alleged perpetrator was “[f]acility staff or other care provider.”  Id.  DON McCarthy reported that, based on the facility’s investigation, the abuse allegation was “[s]ubstantiated.”  Id. at 2.  Finally, DON McCarthy reported that the facility took the following actions: 

Dr. [S.K.] was asked to leave the facility after the resident was safely removed from the area at the time the incident occurred.  As a result of the investigation, the facility has contacted [360care] and told them that Dr. [S.K.] is not permitted in any of their buildings.  The facility has also filed a formal complaint with the Ohio State Dental Board.

Id. at 3; see also CMS Ex. 24 at 1.  

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State agency complaint investigation

State Surveyor Stacy Pickenpaugh conducted a complaint investigation survey at Petitioner’s facility on November 2, 2017.  During the survey, she interviewed Nurse Parsons and STNA Boone, who witnessed the alleged abuse of Resident 41.  CMS Ex. 17 at 1-2; CMS Ex. 33 at ¶ 4.  Surveyor Pickenpaugh also interviewed DON McCarthy, who confirmed that the facility’s internal investigation substantiated the allegation of abuse and determined that abuse had occurred.  CMS Ex. 33 at ¶ 5.  Surveyor Pickenpaugh reported her findings in the statement of deficiencies (Form CMS-2567).  Id. at ¶ 3; see also CMS Ex. 11.

During her investigation, Surveyor Pickenpaugh recorded notes of her interviews.  CMS Ex. 17; see also CMS Ex. 33 at ¶¶ 3, 4.  I find it is more likely than not that CMS Ex. 17 accurately records the substance of the interviews Surveyor Pickenpaugh conducted.  Surveyor Pickenpaugh’s notes reflect that Nurse Parsons and STNA Boone recounted the incident involving Dr. S.K. and Resident 41 in substantially similar terms to their written statements described above.  CMS Ex. 17 at 1-2.  Surveyor Pickenpaugh additionally noted that both Nurse Parsons and STNA Boone felt that Resident 41 had been subjected to verbal and physical abuse.  Id. at 2.  STNA Boone also told the surveyor that Dr. S.K. failed to treat Resident 41 with dignity and respect.  Id.

Nurse Parsons told Surveyor Pickenpaugh that Dr. S.K. provided care to another resident while she was escorting Resident 41 back to her room and calming her down.  See CMS Ex. 17 at 2.  The second resident (Resident 18) denied any concerns with Dr. S.K.’s treatment.  Id.  Based on this information, Surveyor Pickenpaugh determined that Petitioner’s staff did not prevent Dr. S.K. from providing treatment to Resident 18 after the alleged altercation with Resident 41.  See CMS Ex. 11 at 6; see also CMS Ex. 33 at ¶ 6.  In Surveyor Pickenpaugh’s opinion, Dr. S.K. should not have been permitted to see another resident after Resident 41.  Id.  

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

2. Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(a)(Tag F223) because it failed to ensure that Resident 41 was free from abuse.

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. 

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“Willful . . . means the individual must have acted deliberately, not that the individual must have intended to inflict injury or harm.”  Id.

CMS argues that Petitioner failed to comply substantially with 42 C.F.R. § 483.12 when Dr. S.K. used excessive force in removing the wax molds from Resident 41’s mouth and when he yelled and cursed at her.  CMS Posthrg. Br. at 13.  Petitioner denies that Dr. S.K. abused Resident 41 because he did not willfully cause her harm.  See, e.g., P. Posthrg. Br. at 7-12.  In the alternative, Petitioner argues that, even if I conclude that Dr. S.K.’s conduct was abusive, I should not hold Petitioner responsible for the abuse, because the altercation between Dr. S.K. and Resident 41 was not foreseeable.  Id. at 12‑15.  Neither argument has merit.

a. Dr. S.K.’s conduct toward Resident 41 falls within the regulatory definition of abuse.

Petitioner first contends that Dr. S.K.’s actions could not have constituted abuse because those actions “were within the dental standard of care and performed to protect Resident 41 from injuring herself.”  P. Posthrg. Br. at 5.  Petitioner’s position that Dr. S.K. acted to protect Resident 41 from injury is premised on Dr. S.K.’s assertion that if the wax molds remained in the resident’s mouth too long, they could melt or soften and break apart, posing a choking hazard.  P. Ex. 7 at ¶¶ 13, 16; see also P. Posthrg. Br. at 3.  Petitioner also relies on the testimony of Dr. Cranfill, 360care’s National Director of Dental Clinical Services in support of this contention.  See P. Ex. 11 at ¶¶ 6-7; see also P. Posthrg. Br. at 3.  Finally, Petitioner contends that the Ohio State Dental Board (Dental Board) “vindicated” Dr. S.K. in this belief.  P. Posthrg. Br. at 1.  Petitioner’s examination of the evidence is selective.  The record, as a whole, does not support Petitioner’s contention that Dr. S.K. acted to protect Resident 41.

First of all, the testimony of the expert witnesses does not prove it is more likely than not that Resident 41 was in danger from the molds on October 19, 2017.  Petitioner’s expert, Dr. Cranfill, did opine that the impression material “can cause choking and airway obstruction . . . particularly in a situation where the material has been in a patient’s mouth for a protracted period and the patient has been aggressively biting or chewing the material.”  P. Ex. 11 at ¶ 7.  However, Dr. Cranfill did not specify how long a “protracted period” would be.  See, e.g., Tr. at 153.  Further, there is nothing in the record to suggest that Resident 41 was “aggressively biting or chewing” the wax mold she had in her mouth.7   Further, Dr. Cranfill did not opine that Resident 41 was actually in danger of choking during the incident on October 19, 2017.

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CMS’s expert, Dr. Berkey, agreed with the proposition that “the wax rims might break apart with prolonged exposure to heat and moisture if it stayed in the mouth.”  CMS Ex. 36 at ¶ 5.  However, Dr. Berkey elaborated that it would take “substantially longer” than the 15-20 minutes the molds were in Resident 41’s mouth for the impression materials to break down.  Id.  Consistent with Dr. Berkey’s understanding of the time involved, Dr. S.K. testified that the wax molds “stayed in about 20 minutes.”  Tr. at 29; see also id. at 38 (molds were in Resident 41’s mouth for “only about 25” minutes).  Similarly, Nurse Parsons stated that at the time the dentist and dental assistant began trying to remove the molds, they had been in the resident’s mouth 15 minutes.  Id. at 121.  Moreover, none of the eyewitnesses to the events of October 19, 2017, noted that Resident 41 showed any signs of choking or that she experienced difficulty breathing.  See, e.g., Tr. at 121-22.  For all these reasons, I do not find credible the explanation that Dr. S.K. grabbed the wax molds from Resident 41’s mouth to prevent her from injuring herself.8

To the contrary, I find it is more likely than not that Dr. S.K. lost patience with Resident 41 and gave in to frustration and anger when he forcefully grabbed the molds from the resident’s hand and mouth.  When Dr. S.K. arrived at Petitioner’s facility, he was already reluctant to be there, because he had previously treated residents at two other facilities and still had a 2½ hour drive home ahead of him.  See Tr. at 24-25.  Moreover, when Dr. S.K. learned that Resident 41 was diagnosed with Alzheimer’s disease, he called 360care and requested to be excused from treating her.  Id. at 26.  He did so because he did not feel qualified to treat Alzheimer’s patients.  Id.; see also id. at 18.  Nevertheless, 360care informed Dr. S.K. that if he did not treat Resident 41, he would lose his job.  Id. at 26.  Then, according to Dr. S.K.’s recollection, when he first encountered Resident 41, she said she didn’t like men and kicked him in the groin.  Id. at 36.  Dr. S.K. admitted that he was upset when Resident 21 kicked him.  Id. at 28.  He further recalled that Resident 41 “bickered” at him the whole time he worked on her.  Id. at 36.  Although Dr. S.K. testified that he does not remember getting into an argument with Resident 41 (id.),9

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I find credible Nurse Parsons’ and STNA Boone’s written statements, which were prepared the same day as the incident.  See CMS Exs. 22, 23.  As I have described above, both Nurse Parsons and STNA Boone reported that Dr. S.K. shouted and cursed at Resident 41 and expressed frustration with the delay Resident 41’s combativeness caused.

Petitioner urges me to conclude that the Dental Board accepted Dr. S.K.’s explanation of the incident and, for that reason, decided not to pursue administrative action against his dental license.  P. Posthrg. Br. at 1-2; see also P. Ex. 5.  It appears to be Petitioner’s position that I should defer to the Dental Board’s findings, based on the Board’s expertise in the field of dentistry.  P. Posthrg. Br. at 1-5.  I find nothing in the record to support Petitioner’s assertion that the Dental Board accepted Dr. S.K.’s version of the October 19, 2017, incident.

The Dental Board sent a letter to Dr. S.K., dated February 7, 2018, in which it stated the following:

The [Dental Board] has conducted an investigation regarding a complaint filed against you.

. . . Based on the results of the investigation, the [Dental] Board has determined that administrative action is not warranted in this matter and the case has been closed.

P. Ex. 5.  As far as the record reveals, the quoted language is the only statement of the Dental Board as to its findings.  As far as the record reveals, no hearing was held, and the Board did not interview Dr. S.K., Nurse Parsons, or any other staff member of Petitioner’s facility.  Tr. at 37, 96, 103-04, 136.  On its face, the letter sheds no light on why the Dental Board decided not to pursue administrative action against Dr. S.K.’s license to practice dentistry.10

More significantly, even if Petitioner’s interpretation of the Dental Board’s letter were correct, Petitioner has not explained why a determination based on Ohio state laws and administrative procedures would be dispositive of whether Dr. S.K.’s conduct constituted

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abuse as defined by the federal Medicare participation requirements for SNFs.11   For all these reasons, I do not find that P. Ex. 5 tends to show it is more likely than not that Dr. S.K. acted to protect Resident 41’s safety when he grabbed the wax mold out of her mouth on October 19, 2017.

Furthermore, even if I were to accept the premise that Dr. S.K. subjectively intended to protect Resident 41 and did not intend to injure or harm her, this would not disprove that abuse occurred.  As several appellate decisions of the DAB have held, “[t]he term ‘willful’ as used in the applicable definition of abuse does not require that the perpetrator intends to injure or harm the victim, but only that the action be deliberate and not inadvertent or accidental.”  Honey Grove Nursing Ctr., DAB No. 2570 at 5 (2014), aff’d, Honey Grove Nursing Ctr. v. Dep’t of Health & Human Servs., 606 F. App’x 164 (5th Cir. 2015) (citing Merrimack Cty. Nursing Home, DAB No. 2424 at 5 (2011)).  There is no dispute that Dr. S.K. acted deliberately when he grabbed the wax molds from Resident 41.  Even Dr. S.K.’s explanation that he intended to protect Resident 41 acknowledges that he acted deliberately to remove the mold from her mouth.

In addition, Nurse Parsons, STNA Boone, and the dental assistant all describe that Dr. S.K. acted with excessive force when he grabbed the molds from Resident 41’s hand and mouth.  CMS Exs. 21, 22, 23.  The use of force to provide care to a resident may support a finding of abuse.  See, e.g., Honey Grove, DAB No. 2570 at 4-5; Merrimack, DAB No. 2424 at 8-9.

Petitioner makes much of the fact that its administrator and DON, as well as Nurse Parsons, testified that their opinions about whether Dr. S.K.’s actions were abusive changed after they learned of his explanation.  P. Posthrg. Br. at 8-9.  Petitioner argues that “CMS’s entire case is based on [Petitioner’s] SRI [self-reported incident].  Since [Petitioner] filed the SRI, however, everybody involved has testified that once they understood the reasoning behind Dr. S.K.’s actions, their opinions changed.”  Id. at 8.  However, the fact that the opinions of Petitioner’s staff may have changed does not compel a conclusion that there was no deficiency.

The opinions of Petitioner’s staff – whether that Dr. S.K. abused Resident 41 or that he did not do so – are immaterial to my decision.  My role as an administrative law judge is to decide the compliance issues presented de novo based on the evidence presented by the parties during this proceeding.  Oaks of Mid City Nursing & Rehab. Ctr., DAB No. 2375 at 33 (2011).  As appellate decisions of the DAB have stated, a hearing before an

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administrative law judge “is not a review of how or why CMS decided to impose remedies, nor is it restricted to the facts or evidence that were available to CMS when it made its decision.  Rather, the . . . hearing provides a fresh look by a neutral decision-maker at the legal and factual basis for the deficiency findings underlying the remedies.”  Id. (quoting Britthaven of Chapel Hill, DAB No. 2284, at 6 (2009)).  Thus, the issue before me is not whether Petitioner’s staff believed Dr. S.K.’s actions constituted abuse, but whether the evidence before me proves it is more likely than not that his actions fell within the regulatory definition of abuse.  For the reasons already explained, I have concluded that Dr. S.K.’s actions in forcibly removing the wax molds from Resident 41 constitute physical abuse as that term is defined in 42 C.F.R. § 483.5.

Nevertheless, even if Dr. S.K. did not physically abuse Resident 41 when he snatched the molds from her hand and mouth, he undoubtedly verbally abused her by swearing and yelling at her when she refused to return the molds.  Other than Dr. S.K., whose version of events I do not find credible for the reasons previously discussed,12 no one has “changed their opinion” about whether he swore and shouted at Resident 41 during the procedure.  In her written direct testimony, Nurse Parsons acknowledged that there was a “verbal exchange” between Dr. S.K. and Resident 41, after which STNA Boone “stepped in to separate Dr. S.K. from Resident [41].”  P. Ex. 8 at ¶ 21.  At the hearing, Nurse Parsons confirmed that Dr. S.K. and Resident 41 had a “verbal exchange” during the procedure, and “there was a lot of yelling going on.”  Tr. at 124.  I note that, while her testimony was carefully worded, Nurse Parsons did not disavow her written statement that Dr. S.K. yelled and cursed at Resident 41.  See CMS Ex. 23 at 2.  Moreover, Nurse Parsons testified that, in her opinion, caregivers in a SNF should not yell or curse at a resident, even if the resident is yelling or cursing at them.  Tr. at 132-33.  I therefore find that, at a minimum, Dr. S.K. verbally abused Resident 41 while treating her on October 19, 2017.

Petitioner argues that there can be no finding of abuse because Resident 41 was not harmed.  Petitioner contends that the only harm Resident 41 suffered during the incident was the “trauma of a self-imposed medical emergency.”  P. Br. at 15 (emphasis omitted).As a result, Petitioner contends that CMS failed to make a prima facie showing of noncompliance with respect to Tag F223.  P. Posthrg. Br. at 9-12.  I disagree.  When Dr. S.K. forcefully grabbed the mold from Resident 41’s mouth, she reacted by trying to push him away and saying, “You stop that, you son of a bitch.”  CMS Ex. 23 at 2.  I infer from Resident 41’s reaction that she was, at a minimum, emotionally distressed by Dr. S.K.’s actions.  That alone is a sufficient showing of harm.  However, even if the resident was too confused to understand what was going on, the applicable regulations establish a

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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 find as a matter of law that the abuse Resident 41 experienced caused her harm.

b. Petitioner is responsible for Dr. S.K.’s abuse of Resident 41 because the abuse occurred during dental care for which Petitioner contracted.

In the alternative, Petitioner asserts that, even if Dr. S.K. abused Resident 41, Petitioner should not be held responsible for the abuse because Dr. S.K. was under contract and not an employee of the facility.13   P. Reply at 7.  Petitioner argues additionally that because it had never previously experienced a problem with a dentist from 360care, it was unforeseeable that one of 360care’s dentists would abuse a resident.  P. Posthrg. Br. at 12‑14.  Petitioner’s arguments miss the point.  Appellate decisions of the DAB hold that “because a facility is responsible for its staff’s actions, ‘considerations of foreseeability are inapposite when staff abuse has occurred.’”  Springhill Senior Residence, DAB No. 2513 at 15 (2013) (quoting Gateway Nursing Ctr., DAB No. 2283 at 8 (2009)).  I recognize that the cited decisions analyze a facility’s responsibility for the actions of staff employed directly by the facility.  Nevertheless, I conclude that the rationale of these decisions applies equally to abuse by a contractor the facility has engaged to provide a service for which the facility is responsible.

Pursuant to 42 C.F.R. § 483.55(a), SNFs are required to “provide or obtain from an outside resource, in accordance with § 483.70(g), routine and emergency dental services to meet the needs of each resident.”  In turn, 42 C.F.R. § 483.70(g) provides, in pertinent part:

(1) If the facility does not employ a qualified professional person to furnish a specific service to be provided by the facility, the facility must have that service furnished to residents by a person or agency outside the facility under an

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arrangement described in section 1861(w) of the Act or (with respect to . . . dental services furnished to SNF residents) an agreement described in paragraph (g)(2) of this section.

(2) Arrangements as described in section 1861(w) of the Act or agreements pertaining to services furnished by outside resources must specify in writing that the facility assumes responsibility for –

(i) Obtaining services that meet professional standards and principles that apply to professionals providing services in such a facility[.]

42 C.F.R. § 483.70(g) (emphasis added); see also 42 C.F.R. § 483.21(b)(3).  As the regulations make clear, if a facility does not provide dental services to its residents directly, it is responsible for ensuring that the services for which it contracts meet professional standards and are provided consistent with “principles that apply to professionals providing services” to SNF residents.  I find that Dr. S.K.’s treatment of Resident 41 on October 19, 2017, did not meet the professional standard of care; nor was it consistent with Petitioner’s own policies forbidding resident abuse.14

I conclude that Dr. S.K.’s treatment of Resident 41 did not meet professionally recognized standards of care based on the expert testimony of Dr. Berkey.  Dr. Berkey opined that Dr. S.K.’s conduct “did not meet the standard of care for dentists treating and communicating with an elderly patient with Alzheimer’s disease and/or dementia.”  CMS Ex. 35 at ¶ 3.  Nothing in Petitioner’s cross-examination of Dr. Berkey causes me to doubt the credibility of his opinion.  See Tr. at 67-83.  By contrast, Petitioner’s expert, Dr. Cranfill, did not opine that Dr. S.K.’s behavior toward Resident 41 met professionally recognized standards of dental care.  P. Ex. 11; see also Tr. at 156-58.  Moreover, for the reasons discussed above, I do not find that the Dental Board’s determination not to impose sanctions on Dr. S.K.’s license is equivalent to a finding that his conduct met professionally recognized standards.  For all these reasons, I find it more likely than not that Dr. S.K.’s conduct toward Resident 41 did not meet professionally recognized standards of dental care.  Petitioner thus failed in its responsibility to ensure that its

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residents received care that met professionally recognized standards.  See Blossom South Nursing & Rehab. Ctr., DAB CR3013 at 22 n.13 (2013), aff’d, DAB No. 2578 (2014).15

I further find that Dr. S.K.’s treatment of Resident 41 violated Petitioner’s policy forbidding abuse of its residents “by anyone, including, but not limited to . . . consultants . . . .”  CMS Ex. 25 at 1.  I interpret the phrase “principles that apply to professionals providing services in [a SNF]” in 42 C.F.R. § 483.70(g)(2) to mean that a facility must ensure that contractors providing professional services adhere to the facility’s resident care policies.  This expectation is consistent with many appellate decisions of the DAB which hold that a facility’s “failure to comply with its own policies can support a finding that the facility did not achieve compliance with the regulatory standard.”  Bivins Memorial Nursing Home, DAB No. 2771 at 9 (2017); see also Life Care Ctr. of Bardstown, DAB No. 2233 at 22 (2009) (finding that a facility’s failure to comply with its own policies can constitute a deficiency under section 483.25); Sheridan Health Care Ctr., DAB No. 2178 at 32 (2008) (observing that a facility’s adoption of a resident care policy supports an inference that the policy was “necessary to attain or maintain resident well-being”).

As stated in the regulations, facilities such as Petitioner “assume responsibility” for contractors providing care to the facilities’ residents.  42 C.F.R. § 483.70(g).  Thus, Dr. S.K.’s abusive treatment of Resident 41 is attributable to Petitioner because Petitioner arranged for him to provide dental care to its residents.  Indeed, had Petitioner not arranged for Dr. S.K. to provide dental care to Resident 41, she would not have been subjected to his abusive conduct.  Cf. Madison Cty. Nursing Home, DAB No. 2895 at 9 (2018) (“an employee’s deliberate wrongdoing . . . may properly be imputed to the facility where the employee had ‘the means and opportunity’ to commit the misfeasance, by virtue of his or her assigned duties and facility access.”).

Holding a facility responsible for the conduct of its agent – whether employee or contractor – is entirely consistent with the Act.  Section 1128A(l) of the Act (codified at 42 U.S.C. § 1320a-7a(l)), made applicable by section 1819(h)(2)(B)(ii)(I) (42 U.S.C. § 1395i-3(h)(2)(B)(ii)(I)) to cases 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.”  A dentist contracted to provide dental services for which a facility is responsible under the regulations is just as much an agent of the facility as is the facility’s employee.  See The Wanaque Center for Nursing & Rehab., DAB CR6030 at 7

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(2022) (“The Medicare statute makes facilities responsible for any misconduct of their staff and agents that violate federal participation standards.”).  I therefore find persuasive the reasoning of the appellate decision in Kindred Transitional Care and Rehab - Greenfield, which interpreted the statute “to mean that facilities may 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 (2017) (citing Ridge Terrace, DAB No. 1834 at 7-8 (2002)).  

In sum, having elected to provide dental care to Resident 41 through Dr. S.K., Petitioner cannot now disclaim responsibility for Dr. S.K.’s abusive treatment of Resident 41 while providing her care.  Consequently, I find that Petitioner, through Dr. S.K., violated Resident 41’s right to be free from abuse.  42 C.F.R. § 483.12(a)(1).  Because I have concluded that Dr. S.K.’s conduct was abusive as defined in the regulations, I may presume that Resident 41 experienced harm as a result.  42 C.F.R. § 483.5 (definition of abuse).  Moreover, Petitioner has not denied that Dr. S.K. provided treatment to Resident 18 following the altercation between Dr. S.K. and Resident 41.  Given Dr. S.K.’s inappropriate conduct towards Resident 41, I find it more likely than not that, by allowing Dr. S.K. to treat Resident 18, Petitioner’s staff exposed Resident 18 to the risk of more than minimal harm.  For all these reasons, I conclude that Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(a)(1) (Tag F223).

3. A CMP of $505 per day from October 19, 2017 through November 19, 2017, is reasonable in amount and duration.

I evaluate 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 imposed, the administrative law judge must sustain it.  Coquina Ctr., DAB No. 1860 at 32 (2002).

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, $6,394 to $20,965 per day, is reserved for deficiencies that pose immediate jeopardy to a facility’s residents and, in

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some circumstances, for repeated deficiencies.  42 C.F.R. § 488.438(a)(1)(i), (d)(2).16   The lower range of a CMP, $105 to $6,289 per day, is reserved for deficiencies that do not pose immediate jeopardy, but either cause actual harm to residents, or cause no actual harm but have the potential for causing more than minimal harm.  42 C.F.R. § 488.438(a)(1)(ii).  In assessing the reasonableness of a CMP amount, an administrative law judge considers the per day amount, rather than the total accrued CMP.  See Kenton Healthcare, LLC, DAB No. 2186 at 28 (2008).  The regulations leave the decision regarding the choice of remedy to CMS, and the amount of the remedy to CMS and the administrative law judge, requiring only that the regulatory factors at §§ 488.438(f) and 488.404 be considered when determining 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.

In this case, CMS imposed a CMP of $505 per day for 32 days of noncompliance (October 19, 2017 through November 19, 2017).  The CMP amount imposed is less than 10% of the maximum per-day CMP amount for non-immediate jeopardy level noncompliance.  I have no difficulty in concluding that such a relatively modest CMP is reasonable.  Contrary to Petitioner’s arguments, Petitioner’s noncompliance was serious and Petitioner was culpable (in the sense of responsible) for that noncompliance.

Petitioner’s noncompliance was serious because Petitioner’s contracted dentist, Dr. S.K., engaged in a physical struggle with Resident 41, who was diagnosed with advanced Alzheimer’s disease.  During this struggle, it is more likely than not that Dr. S.K. used excessive force to remove the wax dental molds from Resident 41’s mouth and yelled and cursed at her.  As I have concluded above, it is likely that Dr. S.K.’s actions, at a minimum, caused Resident 41 emotional distress.  In any event, the regulations presume that any incidence of abuse causes physical harm, pain or mental anguish to a resident.  42 C.F.R. § 483.5 (definition of abuse).

Petitioner argues it was not culpable for Dr. S.K.’s actions because “staff were in no way at fault or [in] control of the situation.”  P. Posthrg. Br. at 17.  However, as I have explained above, Petitioner is responsible for Dr. S.K.’s actions because Petitioner elected to provide care to its residents through him.  Petitioner argues additionally that it was not culpable because Resident 41 was unharmed during the incident.  Id. at 16.  I have concluded above that Petitioner’s noncompliance did cause harm to Resident 41.  I therefore find that Petitioner was culpable (in the sense of responsible) for failing to ensure that Resident 41 was free from abuse and that this noncompliance caused harm to at least one of its residents.  In addition, Petitioner’s staff placed another resident

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(Resident 18) at risk of abuse by allowing Dr. S.K. to treat her immediately after the altercation with Resident 41.

With respect to other factors, Petitioner has a prior history of noncompliance.  Petitioner has consistently been cited for noncompliance during survey cycles going back to 2015.  CMS Ex. 10.  Finally, Petitioner has not argued that its financial condition precludes it from paying a CMP totaling $16,160.

Nor has Petitioner proved that CMS erred in calculating the duration of the CMP.  Petitioner argues that an incident lasting “a matter of seconds” does not justify a CMP of $16,160.  P. Posthrg. Br. at 16.  Furthermore, Petitioner asserts that, even if there were noncompliance, the facility returned to compliance “promptly following” the October 19, 2017 incident.  Id. at 19.  I reject this contention.  As CMS correctly points out, CMS does not calculate the CMP based on the length of the incident that resulted in the deficiency finding.  Rather, the CMP is calculated based on the duration that the facility was not in substantial compliance with Medicare regulations.  See CMS Reply at 15.  Petitioner’s plan of correction states a correction date of November 20, 2017, and Petitioner has not provided evidence proving compliance prior to that date.  See CMS Ex. 3 at 2.  CMS found that Petitioner returned to substantial compliance as of November 20, 2017.  CMS Ex. 8 at 2.  Accordingly, I find that the duration of the CMP, from October 19, 2017 through November 19, 2017, is reasonable.

V.   Conclusion

For the foregoing reasons, I conclude that Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(a) (Tag F223).  I further conclude that the CMP of $505 per day effective October 19, 2017 through November 19, 2017, is reasonable in amount and duration.

1. CMS and state survey agencies consider the scope and severity of deficiencies when selecting enforcement remedies.  See 42 C.F.R. § 488.408.  CMS summarizes the scope and severity levels in a matrix published in the State Operations Manual (SOM).  At the time of the survey at issue, the matrix was published at section 7400.5.1. of the SOM.  CMS Pub. 100-07, ch. 7, § 7400.5.1 (Rev. 63, eff. Sept. 10, 2010) available at https://www.cms.gov/Regulations-and-Guidance/Guidance/transmittals/downloads/R63SOMA.pdf (last visited February 16, 2022).  In the current version of the SOM, the matrix appears at section 7400.3.1.  Id. (Rev. 185, eff. Nov. 16, 2018), available at https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/som107c07pdf.pdf (last visited February 16, 2022).  As relevant here, a scope and severity level of “G” indicates an isolated deficiency that involves actual harm but does not pose immediate jeopardy to resident health and safety.
• back to note 1
2. I cite to the page numbers printed at the top right-hand corner of the transcript pages.  This number differs from the PDF page number as displayed in the electronic record.
• back to note 2
3. I refer to this individual by his initials to protect his privacy.
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4. To protect the resident’s privacy, I refer to the resident by the numerical identifier assigned during the survey.  See CMS Ex. 15.
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5. I find it more likely than not that the events occurred in the manner I describe.  I base these findings primarily on the contemporaneous written statements of staff members who witnessed the incident.  The staff members’ statements are in evidence as CMS Exs. 22 and 23.  I find the statements credible because they are consistent with one another and with the statements the witnesses gave to the state agency surveyor, which I describe below.  The statements are further corroborated by a written statement from a dental assistant who also witnessed the incident.  Finally, I find that all these statements are reliable because they were prepared close in time to the incident. 
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6. Dr. Cranfill, the National Clinical Director of Dental Clinical Services for 360care, testified at the hearing that Dr. S.K. was an independent contractor with 360care.  Tr. at 150; see also P. Ex. 11 at ¶ 3.
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7. Dr. S.K.’s assertion that Resident 41 bit him “while the rims were in place” does not establish that she was otherwise chewing or biting the mold.  See P. Ex. 7 at ¶ 12.
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8. I infer that, had Dr. S.K. truly been concerned for Resident 41’s safety on the evening of October 19, 2017, he would more than likely have explained his concerns to Nurse Parsons and STNA Boone to enlist their aid.  This inference leads me to suspect that Dr. S.K.’s expressed concern for the resident’s safety was an explanation devised after the fact.  I note that Petitioner filed a lawsuit against Dr. S.K. and 360care following the incident.  Tr. at 20; see also P. Ex. 1.  Although the lawsuit was subsequently settled, Dr. S.K. was terminated by 360care after the incident and was investigated by the Dental Board.  Tr. at 20, 37.  I therefore infer that he had a strong motivation to provide an explanation that would excuse his behavior.
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9. In his written direct testimony, Dr. S.K. denied engaging in any “physical, verbal, or emotional abuse of the resident.”  P. Ex. 7 at ¶¶ 20-21.  However, whether abuse occurred is a legal conclusion, not a description of what occurred as a matter of fact.
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10. At the hearing, counsel for Petitioner stipulated that the Dental Board’s letter does not state that the board “determined there was no violation of the rules and standards governing the practice of dentistry.”  Tr. at 94.
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11. When analyzing whether a SNF is in substantial compliance with Medicare participation requirements, the Act and implementing regulations take precedence over state law.  See, e.g., Cedar View Good Samaritan, DAB No. 1867 (2003) (affirming the administrative law judge’s analysis, which “clearly concluded that the . . . requirement in the Act and regulations takes precedence over [state] law”).
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12. Indeed, at the time of the incident, Dr. S.K. apologized to STNA Boone and appeared to acknowledge that, at a minimum, he may have hurt Resident 41’s feelings.  CMS Ex. 17 at 2; CMS Ex. 22 at 2; see also CMS Ex. 21.
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13. Petitioner also asserts that it shouldn’t be held strictly liable for Dr. S.K.’s conduct, because Dr. S.K. is a “twice removed” contractor who is not subject to the facility’s “hiring, training and practices.”  P. Reply at 7.  Appellate decisions of the DAB note that “strict liability” is a tort concept that is inapplicable in proceedings conducted under 42 C.F.R. Part 498.  Springhill Senior Residence, DAB No. 2513 at 14 (2013) (citing Jennifer Matthew Nursing & Rehab. Ctr., DAB No. 2192 (2008); Briarwood Nursing Ctr., DAB No. 2115 at 11 n.8 (2007)).  Holding facilities “to standards set forth in the Medicare and Medicaid participation regulations . . . is not tantamount to applying ‘strict liability.’”  Springhill, DAB No. 2513 at 14.
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14. To the extent Petitioner may object that CMS did not allege that it failed to comply with 42 C.F.R. § 483.55(a) or § 483.70(g), this is immaterial.  “If a given set of facts demonstrates that a SNF has violated more than one participation requirement, CMS may, in its discretion, charge the SNF with violating any, or all, of the applicable requirements.”  Brian Ctr. Health and Rehab./Goldsboro, DAB No. 2336, at 6 (2010).
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15. The U.S. District Court for the Western District of New York dismissed Blossom South’s complaint claiming (among other things) that termination of its provider agreement violated its right to due process of law under the Constitution.  Blossom South, LLC v. Sebelius, 987 F. Supp. 2d 289 (W.D.N.Y. 2013).  The district court did not consider the merits of the cited deficiencies.  Id.
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16. The CMP ranges listed in the regulations are adjusted annually for inflation under 45 C.F.R part 102.  The amounts I cite here were those in effect at the time CMS imposed the remedies at issue in the present case.  See 82 Fed. Reg. at 9182-83.
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