Golden Living Center - Trussville, DAB CR6146 (2022)

DECISION

I conclude that Petitioner was not in substantial compliance with the Medicare participation requirements for skilled nursing facilities (SNF) at 42 C.F.R. §§ 483.13(b), (c), (c)(3), 483.75.  See 42 U.S.C. § 1395i-3(c)(1)(A)(ii), (d)(1)(A).  Further, I conclude that it was not clearly erroneous for the Centers for Medicare & Medicaid Services (CMS) to determine that Petitioner immediately jeopardized the health and safety of residents.  Finally, I conclude that the civil money penalties (CMP) imposed on Petitioner were appropriate under relevant statutory and regulatory factors. 

I.   Legal Framework

The Medicare program “provides basic protection against the costs of . . . related post-hospital . . . care” for individuals over the age of 65 who are eligible for Social Security retirement benefits and for individuals under 65 who meet other criteria.  42 U.S.C. § 1395c.  Post-hospital care includes extended care services provided at an SNF.  42 U.S.C. §§ 1395f(a)(2)(B), 1395x(h)-(i).

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For Medicare program purposes, an SNF is an institution that is primarily engaged in providing skilled nursing care and/or rehabilitation services for its residents but is not primarily engaged in the care and treatment of mental diseases.  42 U.S.C. §§ 1395x(j), 1395i-3(a)(1).  Because an SNF is a “provider of services” in the Medicare program, each SNF that participates in the program must file a provider agreement with the Secretary of Health and Human Services (Secretary).  42 U.S.C. §§ 1395cc(a), 1395x(u). 

In addition to complying with the terms of the provider agreement, a participating SNF must meet a variety of ongoing statutory requirements regarding how it provides services, maintains the rights of its residents, and administers its facility.  42 U.S.C. § 1395i-3(a)(3), (b)-(d).  SNFs also must comply with “such other requirements relating to the health, safety, and well-being of residents or relating to the physical facilities thereof as the Secretary may find necessary.”¹  42 U.S.C. § 1395i-3(d)(4)(B); see 42 U.S.C. § 1395i-3(c)(1)(xi), (f).  The Secretary promulgated regulations to establish those additional requirements.  See 42 C.F.R. pt. 483, subpt. B.² 

When an SNF fails to meet a statutory or regulatory participation requirement, then the SNF has a “deficiency.”  42 C.F.R. § 488.301; see 42 U.S.C. § 1395i-3(h)(1).  “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.”  42 C.F.R. § 488.301.  To maintain “substantial compliance,” an SNF’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. 

Broadly, noncompliance that subjects an SNF to enforcement remedies is divided into two levels.  One level is comprised of deficiencies that immediately jeopardize the health or safety of residents and the other level is composed of deficiencies that do not.  42 U.S.C. § 1395i-3(h)(1).  “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. 

The Secretary has the duty to enforce the statutory and regulatory participation requirements for SNFs.  42 U.S.C. § 1395i-3(f)(1).  To do so, the Secretary contracts with state agencies to conduct surveys to determine whether SNFs are in substantial compliance.  42 U.S.C. §§ 1395aa(a), 1395i-3(g); 42 C.F.R. § 488.10.  Standard surveys

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are unannounced and occur at least once every 15 months.  42 U.S.C. § 1395i-3(g)(2)(A)(i), (iii)(I).  State agencies also conduct investigations into complaints against SNFs.  42 U.S.C. § 1395i-3(g)(1)(C), (4).  When the results of a survey show that an SNF is not in substantial compliance with program participation requirements, the Secretary may impose enforcement remedies on the SNF.  42 U.S.C. § 1395i-3(h)(2); 42 C.F.R. § 488.406.  When CMS selects an enforcement remedy to impose on an SNF, it determines the scope (i.e., the number of residents affected or potentially affected) and severity (i.e., the degree of harm or potential harm) for each deficiency.³  See 42 C.F.R. § 488.404(a)-(b). 

One such remedy is a CMP.  42 U.S.C. § 1395i-3(h)(2)(B)(ii).  CMS may impose a per‑instance CMP for each instance of the SNF’s noncompliance or a per‑day CMP for the number of days an SNF is not in substantial compliance.  42 U.S.C. § 1395i‑3(h)(2)(A), (h)(2)(B)(ii)(I); 42C.F.R. § 488.430(a).  For CMPs assessed in 2014, the CMP amounts may range as follows:  $1,000 to $10,000 for per-instance CMPs; $50 to $3,000 per day for less serious noncompliance; or $3,050 to $10,000 per day for more serious noncompliance that poses immediate jeopardy to the health and safety of residents.  42 C.F.R. § 488.438(a); see 42 U.S.C. § 1395i-3(h)(2)(B)(ii)(I) (limiting CMPs to a maximum of $10,000 per day). 

If CMS imposes a CMP based on a finding of substantial noncompliance, then the SNF may request a hearing before an administrative law judge (ALJ) to challenge CMS’s initial determination of noncompliance that led to the imposition of an enforcement remedy and/or the level of noncompliance (if a successful challenge to the level would affect the range of CMP amounts imposed on the SNF).  42 U.S.C. §§ 1320a-7a(c)(2), 1395i‑3(h)(2)(B)(ii); 42 C.F.R. §§ 488.330(e)(3)(ii), 488.408(g)(1), 488.434(a)(2)(viii), 498.3(b)(13)-(14), (d)(10); see also 5 U.S.C. §§ 554, 556.  However, CMS’s choice of remedies is not reviewable.  42 C.F.R. §§ 488.438(e)(2), 488.408(g)(2), 498.3(b)(13). 

If an SNF challenges the existence of a deficiency, CMS must make a prima facie case that the SNF failed to substantially comply with federal participation requirements and, if CMS makes such a showing, the SNF must then prove substantial compliance by a preponderance of the evidence.  Hillman Rehabilitation Ctr., DAB No. 1611 at 8 (1997);

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see Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004); 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).  If an SNF challenges CMS’s determination as to the level of noncompliance, CMS’s determination must be upheld unless it is clearly erroneous.  42 C.F.R. § 498.60(c)(2). 

If an ALJ concludes that there was a basis for imposing a CMP on an SNF, then the SNF may dispute the amount of the CMP.  The ALJ’s review of the CMP amount is limited to considering the statutory and regulatory factors for setting a CMP amount.  42 C.F.R. § 488.438(e)(3); see 42 U.S.C. §§ 1320a-7a(d), 1395i-3(h)(2)(B)(ii)(I); 42 C.F.R. § 488.438(f).  The ALJ may not reduce a CMP to zero.  42 C.F.R. § 488.438(e)(1). 

Either the SNF or CMS may request Departmental Appeals Board (DAB) review of an ALJ’s decision.  42 C.F.R. § 498.80. 

II.   Background and Procedural History

Petitioner is an SNF that participates in the Medicare program and is located in Trussville, Alabama.  CMS Ex. 1 at 1. 

A.  Abbreviated Survey and Statement of Deficiencies (SOD)

From November 5-7, 2014, the Alabama Department of Public Health (state agency) conducted an “Abbreviated and Partial Extended Survey” at Petitioner’s facility to investigate an allegation of resident abuse.  CMS Ex. 1 at 1; CMS Ex. 5 at 1; see also CMS Ex. 3.  Based on the survey results, the state agency surveyors drafted a Statement of Deficiencies (SOD) indicating that Petitioner was noncompliant, at the immediate jeopardy level, with the following three Medicare requirements: 

- 42 C.F.R. § 483.13(b), (c)(1)(i) (Tag F-223) (Free From Abuse/Involuntary Seclusion) (scope and severity level J). 

- 42 C.F.R. § 483.13(c) (Tag F-226) (Develop/Implement Abuse/Neglect Policies and Procedures) (scope and severity level J). 

- 42 C.F.R. § 483.75 (Tag F-490) (Effective Administration/Resident Well-Being) (scope and severity level J). 

CMS Ex. 1; CMS Ex. 5 at 2.  The SOD indicated all three deficiencies immediately jeopardized the health and safety of residents. 

The first deficiency involved 42 C.F.R. § 483.13(b), (c)(1)(i) (Tag F-223) (Free From Abuse/Involuntary Seclusion).  The SOD summarized the factual premise for this deficiency as Petitioner failing to prevent a male visitor from sexually abusing Resident 1.  The SOD alleged that the male visitor entered the facility in an intoxicated state on

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October 25, 2014, at approximately 1:30 p.m.  Between 3:30 and 4:15 p.m., a certified nursing assistant (CNA) opened the door to Resident 1 and 2’s room and found the room dark with the shades pulled.  After turning on the lights, the CNA saw Resident 1’s male visitor, who was holding his unbuckled and unzipped pants up, and whose shoes were off.  The CNA turned the lights off, left the room, and did not report the matter.  CMS Ex. 1 at 2. 

Later in the afternoon of October 25, a licensed practical nurse (LPN) entered Resident 1 and 2’s room to assess Resident 2’s skin.  The door was closed and, when the LPN entered the room, it was dark and a curtain separated the residents.  The room smelled of alcohol.  Resident 1’s male visitor was present, and the LPN saw him move to sit in a wheelchair next to Resident 1’s bed.  One of the visitor’s shoes and socks was off.  Resident 2 twice warned the LPN that the male visitor was “messing with” Resident 1.  The LPN then left the room leaving Residents 1 and 2 alone with the male visitor.  Upon returning to Resident 1 and 2’s room, the LPN observed that:  the male visitor was at the end of Resident 1’s bed holding his pants up at the waist; his belt was located on the floor; and he sat very quickly again in the wheelchair.  CMS Ex. 1 at 2. 

The LPN again left Residents 1 and 2’s room, this time to walk approximately 350 feet to find her supervisor because the LPN was uncomfortable with the situation, i.e., entering a dark room with a male visitor holding his pants up at the waist, with this belt off, with the smell of alcohol, and Resident 2 having warned that the visitor was “messing with” Resident 1.  A registered nurse (RN) supervisor arrived at Resident 1 and 2’s room to find Resident 1 in bed, naked from the waist down, with her vaginal area completely exposed to view.  The RN believed the male visitor to have been drinking because the room smelled of alcohol.  The RN observed the male visitor’s pants to be unzipped and wide open.  The visitor had a shoe off.  CMS Ex. 1 at 3.  

Petitioner’s staff assessed Resident 1, and Resident 1 complained of back and vaginal pain.  Resident 1 was transferred to the hospital.  The emergency room examination indicated Resident 1 had bruising on her hymen, a membrane that partially closes the opening to the vagina, and several scratches and bruises on the bilateral lower extremities.  CMS Ex. 1 at 3. 

The male visitor was arrested at Petitioner’s facility for public intoxication and later charged with rape and sexual assault.  The facility’s investigation substantiated that Resident 1 was sexually abused by the male visitor.  CMS Ex. 1 at 3. 

The SOD stated that “[t]his deficient practice affected [Resident 1] . . . identified by facility as being sexually abused.  This deficient practice posed an immediate threat to the health and safety of [Resident 1], as it was likely to cause serious harm, injury, impairment, or death.”  CMS Ex. 1 at 3-4.  The SOD provided detailed information from the state agency survey to support this basic summary of events.  CMS Ex. 1 at 4-19. 

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The second deficiency involved 42 C.F.R. § 483.13(c) (Tag F-226) (Develop/Implement Abuse/Neglect Policies and Procedures) (scope and severity level J).  The SOD summarized the factual premise for this deficiency as Petitioner failing to ensure that the CNA and LPN, who entered Resident 1 and 2’s room on the afternoon of October 25, implemented the facility abuse policy on protection.  CMS Ex. 1 at 22.  The SOD based this assertion on the facts related to the CNA and LPN leaving Residents 1 and 2 alone with the male visitor despite the unusual circumstances surrounding the visitor’s state of undress, alcohol intoxication, and the warning of Resident 2 that the visitor was “messing with” Resident 1.  The SOD stated that the deficient practice affected Resident 1 because it was sexual abuse, which posed an immediate threat to the health and safety of Resident 1 as it was likely to cause serious harm, injury, impairment, or death.  CMS Ex. 1 at 22. 

The SOD provided specific details to support the summary of the reasons for the deficiency.  CMS Ex. at 1 at 23-29.  The SOD also identified the facility policy, revised on March 1, 2013, indicating that the facility would take all appropriate measures to immediately protect residents from suspected perpetrators of abuse who are visitors to the facility.  CMS Ex. 1 at 23.  In addition, the SOD detailed information obtained from interviews with facility staff and Petitioner’s investigation report. 

The third deficiency involved 42 C.F.R. § 483.75 (Tag F-490) (Effective Administration/ Resident Well-Being) (scope and severity level J).  The SOD summarized the factual premise for this deficiency as the failure of Petitioner’s administrator and director of nursing (DON) to ensure facility staff were aware of what measures to take when a male visitor in a resident room is only partially dressed, acts erratically and smells of alcohol, and one of the residents repeatedly states that the visitor is “messing with” the other resident.  The SOD stated that the deficient practice affected one resident reviewed for sexual abuse and that it posed an immediate threat to the health and safety of Resident 1 as it was likely to cause serious harm, injury, impairment, or death.  CMS Ex. 1 at 31-32. 

The SOD stated that, before the October 25 incident with Resident 1, staff had not been trained on how to immediately secure and protect the safety and well-being of a resident when suspected abuse was occurring.  This deficiency also relied on the fact that the LPN and CNA entered Resident 1 and 2’s room and, despite previous stated observations by those individuals, left Residents 1 and 2 alone with the male visitor.  CMS Ex. 1 at 31-32. Further, the SOD indicated that the RN supervisor on-duty on October 25 stated in an interview with surveyors that the facility had not discussed that policy much with staff.  The SOD also stated that a review of the training records of the facility’s most recent sexual abuse training before the October 25 incident, which was held on October 13, 2014, did not indicate how staff were to immediately secure the safety and well-being of a resident when the staff suspects abuse.  CMS Ex. 1 at 32-33. 

For all of the deficiencies, the SOD stated that the immediate jeopardy began on October 25, 2014, and that Petitioner abated the immediate jeopardy situation on November 7,

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2014.  CMS Ex. 1 at 1.  However, the SOD also stated that, as of November 7, 2014, the deficiencies remained at the lower scope and severity level of D.  CMS Ex. 1 at 1. 

B.  Initial Determination and Decision on Summary Judgment

In a December 2, 2014 notice of an initial determination, CMS stated that it reviewed the SOD and, based on those survey findings, imposed on Petitioner a $5,000 per-day CMP from October 25, 2014 through November 6, 2014, and a $100 per-day CMP from November 7, 2014, and continuing until Petitioner achieved substantial compliance with SNF standards.  CMS Ex. 2 at 1-2. 

Following a December 18, 2014 revisit survey, the state agency found that, as of December 9, 2014, Petitioner corrected the noncompliance cited in the SOD.  P. Ex. 2 at 2.  However, based on a December 23, 2014 survey, the state agency found that Petitioner remained noncompliant with Medicare participation requirements.  P. Ex. 2 at 1.  In a January 15, 2015 notice, CMS informed Petitioner of the following CMPs it was imposing: 

- $5,000 per-day CMP from October 25, 2014 through November 6, 2014. 

- $100 per-day CMP from November 7, 2014 through December 1, 2014. 

- $250 per-day CMP from December 2, 2014 until Petitioner achieved substantial compliance with Medicare requirements. 

P. Ex. 3 at 2. 

Petitioner timely requested a hearing to challenge CMS’s noncompliance findings stemming from the survey completed on November 7, 2014, and the imposition of CMPs based on those findings.  The Civil Remedies Division (CRD) assigned the case to an ALJ, who issued a prehearing order that included procedures and deadlines for prehearing filings. 

In compliance with the prehearing order, CMS filed an exchange, including a prehearing brief, a list of proposed exhibits and witnesses, and 21 proposed exhibits.  Two of the proposed exhibits were the written direct testimony from witnesses.  (CMS Exs. 19-20). 

In its prehearing brief, CMS gave notice that, in addition to the deficiencies cited in the SOD, Petitioner also had been noncompliant with 42 C.F.R. § 483.13(c)(3) because Petitioner allegedly failed to thoroughly investigate the incident involving two residents (identified for purposes of this case as Resident 1 and Resident 2) and Resident 1’s son.  CMS Prehearing Br. at 8, 10-12; see also 42 C.F.R. § 498.56(a). 

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Petitioner filed its exchange, including a prehearing brief (in which Petitioner objected to CMS Ex. 8); a list of proposed exhibits and witnesses; and 18 proposed exhibits.  Six of the proposed exhibits were the written direct testimony for witnesses.  (P. Exs. 13-18).  In its exchange, Petitioner clarified that it was only appealing the CMPs arising from the deficiencies related to the survey that ended on November 7, 2014 (i.e., the $5,000 and $100 per-day CMPs), but not the $250 per-day CMP and the findings of noncompliance on which that was based.  P. Prehearing Br. at 7. 

Petitioner requested to cross-examine CMS’s witnesses.  CMS did not request to cross-examine Petitioner’s witnesses. 

Later, Petitioner moved for summary judgment.  CMS opposed that motion and cross-moved for summary judgement.  Petitioner replied to CMS’s motion, and CMS filed a final reply. 

On March 31, 2016, the CRD transferred this case to me because the ALJ originally assigned to the case moved to a different component within the Department of Health and Human Services.  See 42 C.F.R. § 498.44(b). 

On August 10, 2017, I issued a decision in which I granted CMS’s motion for summary judgment and denied Petitioner’s motion.  Due to a minor error, on August 11, 2017, I issued an amended decision.  Golden Living Center – Trussville, DAB CR4916 (2017).  In the decision, I admitted the proposed exhibits into the record; however, I noted that, because Petitioner questioned the authentication of the documents in CMS Exhibit 8, I would not rely on that exhibit for purposes of granting summary judgment.  Golden, DAB CR4916 at 5-6.  Further, I limited the scope of the decision to concluding that Petitioner was noncompliant with 42 C.F.R. §§ 483.13(b), (c)(1)(i), 483.75.  Golden, DAB CR4916 at 6 n.5, 17-19.  I also concluded that CMS’s determination, that this noncompliance immediately jeopardized the health and safety of residents, was not clearly erroneous.  Golden, DAB CR4916 at 19-21.  Finally, I upheld the CMP amounts imposed on Petitioner.  Golden, DAB CR4916 at 21-22. 

C.  DAB’s Decision to Remand Case for Hearing

Petitioner appealed my decision.  On appeal, the DAB vacated my decision on summary judgment and remanded the case for a hearing.  Golden Living Center – Trussville, DAB No. 2937 (2019).  The DAB “determined that there are genuine disputes of material fact relating to Petitioner’s compliance with the facility administration requirement at 42 C.F.R. § 483.75, whether CMS’s immediate jeopardy determination was clearly erroneous, and whether the corresponding immediate jeopardy CMPs were reasonable.”  Golden, DAB No. 2937 at 1.  However, the DAB did “concur” with me “that the undisputed facts alone suffice to establish that Petitioner was not in substantial compliance with section 483.13.”  Golden, DAB No. 2937 at 9.  Regarding the deficiency

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at 42 C.F.R. § 483.13(b), the DAB explained:  “The pertinent issues here are whether some risk of abuse to residents posed by R[esident] 1’s son was reasonably foreseeable under the circumstances found and, if so, whether Petitioner acted appropriately to protect its residents from the risk.”  Golden, DAB No. 2937 at 11.  The DAB reasoned that the undisputed facts showed Petitioner was deficient, but also noted that remand afforded the opportunity to make a full presentation of the situation underlying that deficiency because a new decision following a hearing would allow other, disputed facts to be resolved.  Golden, DAB No. 2937 at 14-19. 

Regarding the 42 C.F.R. § 483.75 deficiency, the DAB stated that, following remand, the relevant facts should be determined based on the full evidentiary record.  Golden, DAB No. 2937 at 21-23.  The DAB pointed out that the record contains evidence concerning gaps between policy and staff performance that would be relevant to determine whether the 42 C.F.R. § 483.13 deficiency demonstrates a related management failure under 42 C.F.R. § 483.75.  Golden, DAB No. 2937 at 22.  Further, evidence of the training Petitioner provided to staff, before the incident in this matter concerning abuse prevention, may be important.  Golden, DAB No. 2937 at 22-23. 

Concerning CMS’s finding of immediate jeopardy, the DAB thought there was no specific articulation as to the serious harm that could occur and why it was likely.  Golden, DAB No. 2937 at 25.  The DAB did not believe that the “narrow set of undisputed facts” demonstrated a likelihood of serious harm.  Golden, DAB No. 2937 at 25.  

The DAB summarized its remand order as follows: 

We therefore vacate the summary judgment ruling so that the ALJ may:  (1) consider and evaluate all of the record evidence, make all appropriate credibility and weight determinations, draw appropriate inferences, and make factual findings to determine whether the violations of sections 483.13(b), 483.13(c)(1)(i), and 483.75 should be upheld;  (2) if he upholds them, determine whether the immediate jeopardy determination may be upheld as not clearly erroneous, applying the correct standard and evaluating the likelihood of serious harm; and (3) if he determines that the immediate jeopardy determination was not clearly erroneous, assess the reasonableness of the CMPs as imposed. 

Golden, DAB No. 2937 at 25. 

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Finally, the DAB stated the following regarding the deficiencies that I did not discuss in the decision:  “Nevertheless, since we are remanding this case for adjudication based on the full record, a determination of whether additional analysis of Tag F225 and/or Tag F226 is warranted will be for the ALJ to make.”  Golden, DAB No. 2937 at 27. 

D.  Proceedings Following Remand

Following remand, on May 3, 2019, I issued an order in which I explained that the parties had previously been afforded a full opportunity to submit evidence in this matter and that the only additional record development necessary was to hold a hearing so that Petitioner could cross-examine CMS’s witnesses.  On May 17, 2019, I notified that parties I would hold a hearing on August 29, 2019. 

On August 20, 2019, CMS submitted a number of proposed “rebuttal” exhibits consisting of articles mostly concerning elder abuse.  Petitioner objected to these proposed exhibits, and CMS replied to the objections.  On August 22, 2019, I sustained Petitioner’s objections, noting that rebuttal exhibits had been due 20 days after Petitioner filed its exchange.  See 42 C.F.R. § 498.17(b)(1); Hearing Transcript (Tr.)179-180. 

On August 29, 2019, I held a hearing at which Petitioner cross-examined CMS’s witnesses.  At my direction, on September 24, 2019, CRD issued a notice that the parties would file simultaneous post-hearing briefs.  The notice specifically instructed the parties to provide pinpoint citation to the parts of the record that support proposed findings of fact and informed the parties not to simply cross-reference their prehearing briefs because the post-hearing briefs will serve as the parties’ final arguments for me to consider.  Both parties subsequently filed post-hearing briefs (CMS Br. and P. Br.). 

III.   Issues

1)  Whether Petitioner was in substantial compliance with the Medicare requirements for SNFs at 42 C.F.R. §§ 483.13(b), (c), (c)(1)(i), (c)(3), and/or 483.75. 

2)  If Petitioner was not in substantial compliance with one or more Medicare requirements for SNFs, whether CMS’s determination that Petitioner’s noncompliance immediately jeopardized the health and safety of the facility’s residents is clearly erroneous; and

3)  If Petitioner was not in substantial compliance with one or more Medicare requirements for SNFs, whether a $5,000 per-day CMP for 13 days and a $100 per-day CMP for 25 days are appropriate under the statutory and regulatory factors for setting a penalty amount.  42 U.S.C. § 1320a-7a(d); 42 C.F.R. § 488.438(f). 

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IV.   Findings of Fact

1.  Petitioner had a written anti-abuse policy, revised on October 24, 2013, to take appropriate steps to prevent abuse.  The policy required staff to immediately report suspected or alleged abuse, thoroughly investigate allegations of abuse, and receive annual training on the anti-abuse policy. 

Petitioner had a written anti-abuse policy, revised on October 24, 2013, contained within its Human Resources Management Policies and Procedures Manual.  CMS Ex. 16.  Petitioner’s general anti-abuse policy was “to take appropriate steps to prevent the occurrence of abuse.”  CMS Ex. 16 at 1, 7. 

The anti-abuse policy required that alleged violations of law involving abuse “are reported immediately” to the Executive Director and the Director of Rehabilitation and to state agencies in accordance with state law.  The Executive Director or the Director of Rehabilitation “will direct a thorough investigation” and “report the results of all investigations to the state agencies as required by state and federal law.”  CMS Ex. 16 at 2.  The policy provided that “[t]he investigation shall include interviews of employees, visitors, residents, volunteers and vendors who may have knowledge of the alleged incident.”  CMS Ex. 16 at 5. 

The anti-abuse policy required new employees to receive training on the obligation to report alleged violations and to “assist staff in detection of such incidents.”  CMS Ex. 16 at 3.  Further, “[e]ach employee shall receive annual training on the requirements of the center/location’s policies and procedures regarding alleged violations and the requirements of state and federal law.”  CMS Ex. 16 at 3. 

Under the heading of “Prevention,” the anti-abuse policy requires staff, families, and employees to report incidents of suspected abuse.  CMS Ex. 16 at 4.  Under the heading “Identification,” the anti-abuse policy states that “[r]eporting of suspected alleged violations is required of every employee.”  CMS Ex. 16 at 4.  Under the heading of “Reporting Alleged Violations,” the policy makes it the responsibility of employees “to immediately report” any alleged abuse.  CMS Ex. 16 at 7; see CMS Ex. 16 at 10. 

The anti-abuse policy provided the following for visitors suspected of abuse:  “If the suspected perpetrator is a . . . visitor . . . the [Executive Director] or [Director of Rehabilitation] shall take all appropriate measures immediately to secure the safety and well-being of the resident.  Said measures may include disallowing contact between the resident and alleged perpetrator while an investigation is conducted.”  CMS Ex. 16 at 4-5. 

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2.  Between October 13 and 24, 2014, Petitioner provided anti-abuse training to its staff. 

Petitioner’s anti-abuse policy required new employees to receive training on the obligation to report alleged violations and to “assist staff in detection of such incidents.”  CMS Ex. 16 at 3.  Further, “[e]ach employee shall receive annual training on the requirements of the center/location’s policies and procedures regarding alleged violations and the requirements of state and federal law.”  CMS Ex. 16 at 3. 

On October 13, 2014, Petitioner commenced providing in-service training for its staff on resident abuse and completed the training on October 24, 2014.  CMS Ex. 17 at 33-35; see also P. Ex. 4.  The record contains limited information concerning the specific content of this training.  Many of the training documents were for training provided after October 25, 2014. 

3.  Resident 1 was an 83-year-old woman who was admitted to Petitioner’s facility on October 14, 2014, following a stay at an acute care hospital due to a fall and potential seizure.  Petitioner’s staff assessed Resident 1 as requiring extensive assistance/assistance of one staff member for many physical activities, including transfers and locomotion.  Petitioner’s staff also assessed Resident 1 as having a moderately impaired cognitive ability. 

In October 2014, Resident 1 was an 83-year-old woman.  CMS Ex. 12 at 5.  On October 9, 2014, Resident 1 was admitted to an acute care hospital due to a possible seizure related to alcohol use and a fall.  CMS Ex. 12 at 14; CMS Ex. 13 at 1-6, 24-25; P. Ex. 6 at 1.  Resident 1 did not have any seizure activity in the hospital.  CMS Ex. 12 at 14.  On October 14, 2014, Resident 1’s discharge diagnoses from the hospital were:  alcohol dependency with single seizure, hypertension, chronic back pain, debility, and decreased appetite.  CMS Ex. 13 at 24.  The physician at the hospital transferred Resident 1 to an SNF for rehabilitation.  CMS Ex. 13 at 25. 

Resident 1 was admitted to Petitioner’s facility on October 14, 2014, from the acute care hospital.  CMS Ex. 12 at 5, 23.  She was transferred to an SNF due to general debility, multiple falls, and a need for physical and occupational therapy.  CMS Ex. 12 at 14; P. Ex. 6 at 1.  The hospital’s transfer document indicated that Resident 1 was occasionally confused.  CMS Ex. 13 at 26. 

On October 14, 2014, Petitioner’s staff conducted a clinical health status assessment of Resident 1.  That assessment indicated that Resident 1’s current diagnoses were:  syncope, seizure, history of falls, and alcohol dependence.  CMS Ex. 12 at 6.  The assessment also indicated that Resident 1 had problems with both short- and long-term memory, was cognitively impaired, and had impaired decision-making skills.  CMS Ex. 12 at 6, 10.  The assessment of Resident 1’s skin revealed six bruises of unknown origin

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on her right ankle, left hip, and the outside of the left upper leg.  CMS Ex. 12 at 7.  Resident 1’s Braden Scale score placed her at moderate risk for pressure sores.  CMS Ex. 12 at 8.  The assessment concluded that Resident 1 could not ambulate or transfer independently, had left side weakness, and was unsteady either sitting or standing.  CMS Ex. 12 at 19.  Resident 1 needed liners or briefs due to occasional urinary incontinence.  CMS Ex. 12 at 9.  

Also on October 14, 2014, Petitioner established a care plan for Resident 1, which included fall preventions.  CMS Ex. 12 at 74-77.  Petitioner decided to use side-rails on Petitioner’s bed.  CMS Ex. 12 at 72.  While at Petitioner’s facility, a physician prescribed, and the facility administered, opioid medication, Norco/Hydrocodone, on a regular basis.  CMS Ex. 12 at 16-17, 19-20.  On October 20, 2014, a physician recertified Resident 1 for physical, occupational, and speech therapy.  CMS Ex. 12 at 81. 

The Minimum Data Set (MDS) completed on October 21, 2014, provided similar results as the initial assessment on October 14, 2014.  CMS Ex. 12 at 21-41.  Resident 1 needed extensive assistance by one staff member with bed mobility, transfers between surfaces, locomotion within the unit in which she resided, and dressing.  CMS Ex. 12 at 31.  When moving from a seated to standing position, walking, or making surface-to-surface transfers, Resident 1 was not steady and could only stabilize with staff assistance.  CMS Ex. 12 at 32.  Resident 1 used a wheelchair.  CMS Ex. 12 at 32.  Resident 1 was frequently incontinent (CMS Ex. 12 at 33), complained of constant pain (CMS Ex. 12 at 36) and scored an 11 (moderate cognitive impairment) on the Brief Interview for Mental Status (BIMS).  CMS Ex. 12 at 26. 

4.  According to Resident 1’s admission record at Petitioner’s facility, two of Resident 1’s sons were listed as her emergency contacts.  One of those sons, S.B., was listed as her agent.  S.B. signed documents for Resident 1, attended her care plan meeting, and visited her at the facility. 

When admitted to Petitioner’s facility, Resident 1’s two sons were each listed as the first emergency contact.  One of those sons, S.B., was also listed as her “agent.”  CMS Ex. 12 at 5.  S.B. lived with Resident 1.  P. Ex. 18 at 1.  S.B. signed a number of admission-related documents on Resident 1’s behalf.  CMS Ex. 12 at 79-80; P. Ex. 5; see CMS Ex. 12 at 60 (indicating Resident 1’s son was with her on October 14, 2014). 

S.B. visited Resident 1 at the facility.  CMS Ex. 12 at 56; P. Ex. 7.  On October 20, 2014, S.B. attended the Interdisciplinary Care Plan Meeting concerning Resident 1.  CMS Ex. 12 at 57, 73.  In October 2014, S.B. was 57-years-old.  P. Ex. 12 at 1. 

5.  One or more times between October 14, 2014, i.e., Resident 1’s date of admission to Petitioner’s facility, through October 24, 2014, Petitioner’s staff believed S.B. to be intoxicated while visiting Resident 1.  S.B. was an alcoholic

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and had previously been convicted of public intoxication and disorderly conduct. 

The parties dispute whether S.B. would, at times, visit Resident 1 at the facility in an intoxicated state.  Petitioner denies this ever happened before October 25, 2014.  Petitioner’s DON, Janie Dawson, R.N., testified that she had seen S.B. several times when he visited the facility and “[s]o far as I could tell he never was intoxicated, and he never was belligerent or talked ugly to me.”  P. Ex. 18 at 1.  Although Petitioner submitted the written direct testimony for LPN Melinda Amy, in which she stated that she was familiar with S.B., “who visited often,” Nurse Amy’s testimony made no mention as to whether she ever observed S.B. to be in an intoxicated state.  See P. Ex. 16. 

For the proposition that S.B. visited Resident 1 at Petitioner’s facility in a state of alcohol intoxication, CMS relies mostly on signed interview statements taken from Petitioner’s employees during the survey as well as a document from the hospital emergency room. 

As an initial matter, it is possible that S.B. visited Resident 1 at the facility while intoxicated.  S.B. admitted to a police detective that he was an alcoholic (CMS Ex. 8 at 5), and S.B.’s brother, who is a physician, confirmed during the state agency survey that S.B. was an alcoholic.  CMS Ex. 9 at 6.  Further, in August 2012, S.B. pleaded guilty to public intoxication and disorderly conduct.  P. Ex. 12 at 5. 

More specific to Resident 1’s stay at Petitioner’s facility, a hospital document from Resident 1’s October 25, 2014 visit to the emergency room recorded that “nursing home staff states son comes to nursing home intoxicated frequently.”  CMS Ex. 11 at 7.  While this statement lacks specific detail, the source of the information is a staff member at Petitioner’s facility and that staff member indicated that S.B. visited Resident 1 in an intoxicated state more than once before October 25, 2014. 

This general statement from a facility staff member to emergency room personnel is supported by a statement made by LPN Folami Brown, an employee of the facility who was interviewed during the state agency survey.  She stated that facility staff always knew S.B. to come to the facility drunk.  CMS Ex. 9 at 16.  The context of this sentence means that facility staff knew S.B. came to the facility in an intoxicated state before October 25, 2014. 

At the hearing, Petitioner questioned Wykeshia Horne, the surveyor who interviewed Ms. Brown, and asked her about Ms. Brown’s other statements, which appeared to indicate that other employees, and not Ms. Brown, observed S.B. to smell of alcohol.  Tr. 96-98.  Ms. Horne testified to the following overall impression from the interview with Ms. Brown:  “Your question to me is:  Did the staff know he comes into the facility drunk prior to October 25?  Yes, they did.”  Tr. 96. 

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Even if Ms. Brown relied on her general understanding of the staff at the facility, it evidences again that Petitioner’s staff perceived S.B. to come and visit Resident 1, before October 25, in an intoxicated state.  I give weight to Ms. Brown’s view that staff believed S.B. to visit Resident 1 while intoxicated because Ms. Brown signed her interview statement and Petitioner did not submit written direct testimony from Ms. Brown contradicting her signed interview statement.  CMS Ex. 9 at 19. 

Finally, Mattie Showers, a CNA employed at Petitioner’s facility, saw S.B. intoxicated at the facility.  During a November 6, 2014 interview, Ms. Horne asked Ms. Showers whether she ever heard of S.B. coming to the facility intoxicated.  Ms. Showers answered:  “Yes, I have witnessed myself.  I notified [social worker] and [unit manager] about the issue.”  CMS Ex. 9 at 43.  Ms. Showers also stated that her report concerning S.B. was met with the response that the facility would keep an eye on him.  CMS Ex. 9 at 43.  Ms. Showers indicated she reported her observation on October 9 or 13, but then immediately corrected by saying:  “no maybe 16th/17th.”  CMS Ex. 9 at 43.  Ms. Showers signed the document with the questions asked of her and the answers she gave.  CMS Ex. 9 at 43. 

Petitioner argues that Ms. Showers’s statement concerning S.B. is unreliable because of the dates on which Ms. Showers indicated she saw S.B. intoxicated, noting that Resident 1 had only become a resident at the facility on October 14, 2014.  P. Br. at 13. Petitioner asserts that the surveyor did not corroborate Ms. Showers’s statement that she reported S.B.’s intoxicated state.  P. Br. at 13.  Similarly, during the hearing, Petitioner questioned Ms. Horne as to whether she determined that Ms. Showers worked on October 16 or 17, 2014.  Tr. 86. 

I credit Ms. Showers’s statement that she observed S.B., within a week of Resident 1 being admitted to the facility, to appear intoxicated at the facility.  While Ms. Showers was uncertain of the exact date on which she observed S.B. to be intoxicated, it appears to have happened earlier, rather than later, in Resident 1’s short time at the facility.  Further, although Ms. Showers first provided dates that were before October 14, she quickly corrected the possible dates to after October 14.  CMS Ex. 9 at 43.  Because Ms. Showers could not provide a specific date, attempting to determine whether Ms. Showers worked on either or both October 16 and 17 is irrelevant.  If Ms. Showers had not worked during Resident 1’s first week at the facility, Petitioner was certainly in a position to provide documentation to that point, but did not.  Further, Petitioner was in the position to obtain written direct testimony from Ms. Showers refuting her statement to Ms. Horne if that statement were not true. 

Although the evidence as to S.B.’s appearances at the facility in an apparently intoxicated state before October 25, 2014, is limited and not detailed, the weight of the record shows that at least some staff at Petitioner’s facility perceived S.B. to be intoxicated during

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visits to see Resident 1 at the facility before October 25.  Despite this, either staff failed to report it or management ignored it. 

6.  Resident 2 was a 76-year-old woman who was admitted to Petitioner’s facility on October 23, 2014.  Resident 2 shared a room with Resident 1.  Resident 2 was diagnosed with dementia, had severe cognitive impairment, had adequate hearing, and could make herself known to others. 

In October 2014, Resident 2 was a 76-year-old woman.  CMS Ex. 14 at 10; P. Ex. 10 at 1.  Resident 2 was admitted to Petitioner’s facility on October 23, 2014, and shared a room with Resident 1.  CMS Ex. 14 at 10; P. Ex. 10 at 1. 

Resident 2’s diagnoses included dementia with behavioral disturbances and acute venous embolism, acute renal failure, and thrombosis of unspecified deep vessels of lower extremity.  CMS Ex. 14 at 10; P. Ex. 10 at 1. 

Petitioner’s staff assessed Resident 2 on admission and determined that Resident 2 had short-term memory problems, needed assistance with decision-making, had the ability to understand others and make herself understood to others, heard adequately, and had the physical ability to leave the facility.  CMS Ex. 14 at 8-9. 

Based on an October 31, 2014 MDS, Resident 2 had a BIMS score of 7 (severe cognitive impairment).  P. Ex. 10 at 2. 

7.  On October 25, 2014, S.B. arrived at Petitioner’s facility at approximately 1:30 p.m. to visit Resident 1.  There was no one at the facility’s reception desk; therefore, S.B. entered without staff interacting with him.  Between then and 2:30 p.m., a CNA entered Resident 1 and 2’s room to pick up Resident 1’s food tray.  S.B. asked the CNA about Resident 1’s medications.  The CNA told S.B. that he would need to speak with a nurse.  The CNA thought that she smelled alcohol when speaking with S.B. 

On October 25, 2014, S.B. arrived at Petitioner’s facility at approximately 1:30 p.m.  CMS Ex. 9 at 46.  Although S.B. would normally need to enter Petitioner’s facility through the lobby where a receptionist sat, there was no one serving as a receptionist on October 25.  CMS Ex. 19 ¶ 18.  

At some time before ending her shift at 2:30 p.m., CNA Janie Colley entered Resident 1 and 2’s room to pick up Resident 1’s food tray.  CMS Ex. 9 at 46.  When she did this, S.B. asked CNA Colley about Resident 1’s medications; however, CNA Colley stated that S.B. would have to discuss that with a nurse.  CMS Ex. 9 at 46-47.  CNA Colley also stated that she thought she remembered smelling alcohol during her interaction with S.B.  CMS Ex. 9 at 47; see CMS Ex. 19 ¶ 20. 

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8.  On October 25, 2014, at approximately 2:00 p.m., S.B. asked an LPN to administer opioid pain medication to Resident 1; however, when the LPN attempted to provide the medication to Resident 1, Resident 1 declined to accept it.  The LPN did not note anything that concerned or alarmed her concerning Resident 1. 

LPN Melinda Amy testified that she was the charge nurse responsible for Resident 1 from 7 a.m. to 3 p.m. on October 25, 2014.  At about 2 p.m., S.B. came to the nursing station and stated to Nurse Amy that Resident 1 was in pain and needed a pain pill.  Because Resident 1 was prescribed Norco as needed, Nurse Amy obtained a pill and went to Resident 1’s room.  Nurse Amy observed Resident 1 to be “half asleep” and Resident 1 declined the pill.  Nurse Amy testified that Resident 1 appeared to be calm and made no complaints.  She also testified that:  “I saw nothing that concerned or alarmed me . . . and returned to the nursing station where I destroyed the pill and documented that the dose was ‘wasted’ because the Resident refused it.”  P. Ex. 16 at 1-2; see CMS Ex. 12 at 19. 

9.  On October 25, 2014, between 3:30 and 4:15 p.m., a CNA entered Resident 1 and 2’s room because the door to the room had been closed for a long time.  The room was dark.  The CNA turned on the lights and noticed a blue diaper on the floor.  She then noticed S.B. standing near Resident 1’s bed.  S.B.’s pants were unbuckled and unzipped, and S.B. was holding his pants up.  The CNA could see S.B.’s shirt or underwear where his pants were open.  After checking on Resident 2, the CNA turned the lights out, closed the door, and did not report the situation to her supervisors. 

On October 25, 2014, at some time between 3:30 and 4:15 p.m., CNA Debbie Smoot was making her rounds and thought she should check on Resident 1 because her door had been closed a while and Resident 1 had difficulty getting up.  CMS Ex. 9 at 50; P. Ex. 8 at 1.  CNA Smoot knocked on the door of Resident 1 and 2’s room and entered.  P. Ex. 8 at 1.  The room was dark, the shades were pulled, and Residents 1 and 2 were separated by a curtain.  CMS Ex. 9 at 51; P. Ex. 8 at 1.  CNA Smoot turned on the lights and noticed a blue diaper on the floor.  CMS Ex. 9 at 51; P. Ex. 8 at 1.  CNA Smoot noticed S.B. in the room when he walked from beside the bed to being in front of the bed.  CMS Ex. 9 at 51; P. Ex. 8 at 1. 

In a summary of the questions asked by Surveyor Horne to CNA Smoot and the answers CNA Smoot gave in response, CNA Smoot described S.B. as follows:  “had socks on[,] no shoes[,] his pants were unzipped because I saw t[-]shirt or underwear showing[,] it was white[.]  He was holding his pants @ the waist[.]  Pants unzipped and unbuckled[.]”  CMS Ex. 9 at 51.  The interview was on November 6, 2014, and CNA Smoot signed the summary.  CMS Ex. 9 at 50, 53; see CMS Ex. 19 ¶ 21 (Surveyor Horne testifying that she interviewed CNA Smoot). 

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In a statement signed on December 16, 2014, for Petitioner, CNA Smoot described S.B. as “he had socks on, no shoes, and his jeans and shirt were on.  His pants were unzipped.  his hands were at his waist.”  P. Ex. 8 at 1. 

These statements differ in that the one made during the state agency survey indicated that S.B.’s pants were unbuckled and S.B. was holding his pants up.  I give weight to CNA Smoot’s November 6, 2014 statement because it was made significantly closer in time to October 25. 

CNA Smoot further stated that she took care of her duties related to Resident 2 and left without thinking anything was amiss.  CNA Smoot did not notice a smell of alcohol.  CNA Smoot turned the lights out and shut the door to Resident 1 and 2’s room when she left.  CMS Ex. 9 at 51, 53; P. Ex. 8 at 1. 

CNA Smoot stated to Surveyor Horne that she felt guilty for closing Resident 1 and 2’s door, turning the lights out, and not reporting the situation.  CNA Smoot did not want to erroneously accuse S.B. of something.  CMS Ex. 9 at 53.  In her December 16, 2014 statement for her employer, she said that she did not see anything that caused her to suspect that S.B. was abusing Resident 1.  I give more weight to CNA Smoot’s statement, to Surveyor Horne, that she regretted not reporting the situation she observed on October 25, because that statement was made closer in time to the incident.  See CMS Ex. 19 ¶ 21 (Surveyor Horne testifying that CNA Smoot acknowledged that she made a mistake). 

10.  On October 25, 2014, between 4:00 and 5:00 p.m., an LPN entered Resident 1 and 2’s room.  The lights were off and, when the LPN turned them on, S.B. jumped from the side of the bed into a wheelchair and crossed his legs.  S.B.’s right shoe and sock were off.  The LPN smelled alcohol after entering the room.  A curtain was pulled between Residents 1 and 2.  The LPN checked on Resident 2.  Resident 2 twice stated to the LPN that S.B. “is messing with” Resident 1.  The LPN left the room to go to the nursing station to check Resident 2’s chart to determine if she had cognitive impairments.  Upon returning to the room, S.B. moved from the bottom of Resident 1’s bed to the wheelchair.  The LPN noticed that S.B. was holding his pants up and that his belt was on the floor.  The LPN was concerned by the situation and again left the room.  She called the facility DON on the phone and explained the situation to her, including that S.B. appeared drunk.  The DON told the LPN to find her supervisor and remove S.B. from the facility.  The LPN walked to the other side of the facility and located the supervisory RN.  The LPN returned to Resident 1 and 2’s room with the supervisor, although the supervisor made it to the room first. 

On October 25, 2014, between 4:00 and 5:00 p.m., LPN Verwanda Evans, a treatment nurse, entered Resident 1 and 2’s room to do a skin assessment on Resident 2.  P. Ex. 8

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at 2; see also CMS Ex. 6 at 56.  In a “General Note” that Nurse Evans authored for Resident 1’s medical records on October 25, 2014, at 5:30 p.m., Nurse Evans described her observations and actions following her entry into the room:  

Knocked on door.  Walked into room to access [Resident 2].  Room completely dark.  Turn light on.  [Resident 1’s] son at side of [Resident 1’s] bed.  Jumps into chair and crosses legs.  He has his right shoe off with no socks on.  Room smells like alcohol[.]  I speak with [Resident 2].  [Resident 2] states “he[’]s messing with her.”  I asked her to repeat her statement and she repeats “He’s messing with her.[”]  Left room [to] look at chart.  I left the lights on and the door open.  I returned to the room.  [Resident 1’s] son is at the bottom half of the bed.  H[e] moves quickly while holding on to pants and sits back in the wheelchair.  His belt is lying o[n] the floor ne[x]t to the right outer leg of the chair and half way underneath it.  Left to notify the supervisor left the door to the room open[.]  Supervisor returned to room ahead of me.  Supervisor with son at bedside asking him to leave.  Son became belligerent and defensive.  911 called.  [S]on finally leaves room.  Body Audit performed.  Diaper off of resident [1].  Bottom back of shirt damp that is on resident.  Diaper found in bathroom. 

P. Ex. 9 at 1.  Also on October 25, 2014, Nurse Evans handwrote and signed a witness statement for the Trussville Police Department that was nearly identical to the nursing note.  CMS Ex. 6 at 49. 

On November 5 and 7, 2014, Surveyor Horne interviewed Nurse Evans, and Nurse Evans signed the written summary of the interview.  CMS Ex. 9 at 10-15, 58-61.  Nurse Evans provided more details of the incident.  

In response to interview questions, she stated that she only entered the room after knocking, announcing herself, and hearing someone say to come into the room.  She said the room was dark, a curtain separated Residents 1 and 2, and a male (i.e., S.B.) was at the end of Resident 1’s bed.  However, S.B. sat down quickly in a wheelchair that was in between the locations of Residents 1’s and 2’s beds.  Nurse Evans told S.B. that she was going to see Resident 2.  As Nurse Evans walked toward Resident 2’s bed, she noticed that S.B.’s right shoe and sock were off.  CMS Ex. 9 at 10. 

Nurse Evans noted that Resident 1 was in bed and covered, and nothing looked out of place.  Nurse Evans stated that she smelled alcohol in the room.  CMS Ex. 9 at 13. 

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Nurse Evans told the surveyor that Resident 2 stated that “he’s messing with her.”  Resident 2 said it in a matter-of-fact manner, loud enough for Nurse Evans to hear it but not loud enough for S.B. to hear it.  Nurse Evans asked Resident 2 to repeat her statement and Resident 2 repeated it.  Nurse Evans told Resident 2 that she would be right back and then left the room, with the door open and lights on, to check Resident 2’s chart because Resident 2 was a new resident and Nurse Evans wanted to make sure Resident 2 was not confused (i.e., wanted to check her cognitive status).  Nurse Evans estimated that she was gone for two minutes.  CMS Ex. 9 at 10-11, 13. 

When Nurse Evans returned, S.B. was at the end of Resident 1’s bed holding his pants up.  S.B. again moved back into the wheelchair very fast.  Nurse Evans noticed that S.B.’s belt was on the floor beneath the wheelchair.  CMS Ex. 9 at 11.  Resident 1 was still in bed under her covers.  CMS Ex. 9 at 13. 

Nurse Evans stated that she asked S.B. to step out of Resident 1 and 2’s room; however, he did not do that.  CMS Ex. 9 at 59-61. 

Nurse Evans stated that she immediately went to get her supervisor, Terry Wyatt, RN.  Nurse Wyatt was located on the other side of the building.  Nurse Evans walked “around the front of the [building]” to get her.  Nurse Evans stated that Nurse Wyatt immediately came back to Resident 1 and 2’s room with her.  CMS Ex. 9 at 11.  

When they arrived at Resident 1 and 2’s room, Nurse Evans stated that Nurse Wyatt asked S.B. to leave.  S.B. “became belligerent and argumentative.”  Nurse Evans asked another nurse to call 911.  CMS Ex. 9 at 12. 

After S.B. left the room, Nurse Evans conducted a body audit on Resident 1.  She did not notice bruising but did notice that Resident 1’s shirt was damp and her diaper was off.  Resident 1 told Nurse Evans that she did not have pain.  Nurse Evans recalled that the police came to the room and a doctor, that they called on the phone, ordered Resident 1 to go to the hospital.  CMS Ex. 9 at 12-13. 

Nurse Evans provided Petitioner with a written statement in December 2014 concerning the October 25 incident (P. Ex. 8) and written testimony in this case.  While these statements are generally consistent with her previous statements, they also conflict with them and with each other. 

At the beginning of Nurse Evans’s written testimony, she acknowledged having provided several statements about what she saw and did on October 25.  She stated that she did not intend for the testimony to be any different from the previous statements.  Nurse Evans indicated that Petitioner’s counsel drafted the testimony based on an interview.  P. Ex. 15 at 1. 

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She testified that “[s]ome time in the mid-afternoon” on October 25, 2014, she went to the room shared by Residents 1 and 2 “in order to do a skin assessment on Resident # 2.”  P. Ex. 15 at 1.  Nurse Evans testified that, at the time, she “had not provided services to either Resident [1 or Resident 2] before, did not know either of them at all, and d[id] not recall hearing any reports of any unusual visitors or behaviors relating to either of them.”  P. Ex. 15 at 1-2.  Upon arriving at the room, Nurse Evans found the door closed, so she knocked on the door before entering.  P. Ex. 15 at 2.  Hearing no response, Nurse Evans “opened the door a crack and announced [her]self,” which elicited an invitation from a “male voice” to enter the room.  P. Ex. 15 at 2.  When she walked into the room, Nurse Evans found that it “was dark, the lights off, and the blinds pulled, and the privacy curtain between the bed[s] was pulled out.”  Resident 2 “was in the far bed, nearer the window,” and Nurse Evans saw “a wheelchair between the beds, and a man standing near the end of the closer bed, who sat down in the wheelchair as [she] entered the room.”  P. Ex. 15 at 2.  Nurse Evans claims in her sworn testimony that when she first entered the room on October 25, 2014, she did not smell alcohol or notice anything unusual about his clothing.  P. Ex. 15 at 1-2.  As far as Nurse Evans knew, she “had not seen the man before.”  P. Ex. 15 at 2.  Nurse Evans told the man that she was there to check on Resident 2, turned the light on, and walked to Resident 2’s bed.  At that point, she “noticed that the man’s right shoe and sock were off.”  P. Ex. 15 at 2.  Immediately after Nurse Evans reached Resident 2, Resident 2 “said, ‘[H]e’s been messing with her’ in a soft, matter of fact, calm voice.”  Nurse Evans “asked [her] to repeat what she said, and she repeated the same words in the same calm voice.”  Resident 2 said nothing more despite Nurse Evans asking her what she meant.  P. Ex. 15 at 2.  Seeing that “nothing looked out of the ordinary” and believing Resident 2 might be confused, Nurse Evans “left the room . . . and went to the nearby nursing station to check Resident # 2’s chart to determine her cognitive status.”  P. Ex. 15 at 3 (Nurse Evans testified that “confused residents often talk nonsense.”).  After checking Resident 2’s chart, which revealed that she was “moderately impaired” and thus “could have been confused,” Nurse Evans “returned to the room.”  P. Ex. 15 at 3.  Upon returning, Nurse Evans “saw the man again standing at the end of the bed, appearing to hold his pants up,” and when she walked in “he again sat down in the wheelchair next to the bed.”  His belt and “maybe a shoe” were on the floor and there was an “odor of alcohol” in the room.  In addition, Resident 1 was “awake, sitting up, and calm.”  P. Ex. 15 at 3. 

After observing all this, Nurse Evans became “uncomfortable,” suspecting “the man might have been drinking,” and “began to wonder what was going on”; she thought “something about the situation looked odd” and thought that “if the man had been drinking, [she] might need help from another nurse.”  P. Ex. 15 at 3-4.  Before leaving, Nurse Evans testified that she might have told the man to step into the hallway because she smelled alcohol, but is not certain that she did this.  P. Ex. 15 at 4.  Nurse Evans then left the room a second time to find the nurse supervisor on duty, Nurse Wyatt.  P. Ex. 15 at 4. 

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Nurse Evans testified that it took at least one minute to find Nurse Wyatt at the nursing station “on the other wing of the building,” whereupon she asked Nurse Wyatt to come with her, explaining that she smelled alcohol in Resident 1’s room and needed Nurse Wyatt’s “assessment of the situation.”  P. Ex. 15 at 4.  Nurse Evans returned to Resident 1’s room with Nurse Wyatt “two or three minutes” after leaving.  P. Ex. 15 at 4. 

According to Nurse Evans, when the two returned, Nurse Wyatt entered first and discovered Resident 1 lying in her bed with her “sheet pulled away” and “her genital area exposed.”  P. Ex. 15 at 4; see also P. Ex. 9 at 1; CMS Ex. 11 at 5, 7.  After covering up Resident 1, Nurse Wyatt asked the man what was going on but the man “became somewhat belligerent” in response to this inquiry and “asked whether [Nurse Wyatt] was accusing him of being a pedophile.”  P. Ex. 15 at 4.  Nurse Wyatt then told the man that he would have to leave because he was “partially undressed” and escorted him from the room.  P. Ex. 9 at 1; P. Ex. 15 at 4-5.  Nurse Evans testified that even “[a]t this point, I still did not even consider the possibility that the man might be abusing one of the residents; I just thought he had been drinking, and that it was not appropriate for him to be in the nursing facility in that condition.  I recall seeing a diaper on the floor in the bathroom, and I know that the CNAs are pretty good about making sure diapers are disposed of properly, but again, I did not connect that fact to the visitor.”  P. Ex. 15 at 4-5. 

“At some point, someone at the facility did call 911,” and the man was arrested and removed from the facility premises.  P. Ex. 15 at 5; P. Ex. 9 at 1; CMS Ex. 3 at 1-2, 4.  Nurse Evans testified that she assessed Resident 1 after S.B. left, and Resident 1 stated that she was not in pain, although Resident 1 pointed to areas on her body when asked by other nurses if she had pain.  P. Ex. 15 at 5-6. 

As demonstrated above, the General Note authored by Nurse Evans, contemporaneous statements that she made to Petitioner’s administrator and the police, as well as statements from others are generally consistent with Nurse Evans’s testimony.  However, Nurse Evans’s testimony differs from her earlier statements on the particularly important point as to when she first smelled alcohol in Resident 1 and 2’s room.  Further, Nurse Evans also contradicted her December 2014 written statement indicating she knew S.B. was Resident 1’s son during the October 25 incident.  Below I resolve these inconsistencies.  

Nurse Evans’s claim, in her testimony, that she did not smell alcohol in Resident 1 and 2’s room until she entered the room for a second time is directly contradicted by several other pieces of evidence in the record.  For example, the General Note written by Nurse Evans at 5:30 p.m. on October 25, 2014, states that when Nurse Evans walked into the room initially, the “[r]oom smell[ed] like alcohol.”  P. Ex. 9 at 1.  Hospital records for Resident 1, dated October 25, 2014, include a note that Resident 1’s son was “[n]oted to be intoxicated” by Nurse Evans when she first entered the room.  CMS Ex. 11 at 5. 

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Petitioner’s incident report, dated October 26, 2014, confirms that “there was a smell of alcohol in the room” when Nurse Evans first entered.  CMS Ex. 3 at 3.  Nurse Evans’s statement to police, dated October 25, 2014, also says that the “[r]oom smell[ed] like [alcohol]” the first time she entered.  CMS Ex. 8 at 8.  The October 25, 2014 police report also states that “Evans noticed a strong smell of an alcoholic beverage about the person of [S.B.]” during Nurse Evans’s first entry into Resident 1 and 2’s room.  CMS Ex. 8 at 2.  Even in her statement made on December 17, 2014, for Petitioner, Nurse Evans stated that upon her first entry into Resident 1 and 2’s room that “I did smell alcohol in the room.”  P. Ex. 8 at 2.  DON Dawson’s testimony is consistent with this when she testified that Nurse Evans told her that she was preparing to do a skin assessment of Resident 2 “when she noticed that Resident # 1’s son, who was visiting, appeared to be drunk.”  P. Ex. 18 at 1.  Finally, Petitioner’s report following its investigation also concluded that Nurse Evans smelled alcohol in Resident 1 and 2’s room when she initially entered the room.  CMS Ex. 6 at 4. 

I resolve this contradiction by finding that the weight of the reliable evidence indicates that Nurse Evans smelled alcohol in Resident 1 and 2’s room the first time she entered the room. 

Nurse Evans also testified that she had never seen either Residents 1 or 2 before October 25 and “[s]o far as I know, I had not seen the man [S.B.] before.”  P. Ex. 15 at 1-2.  However, in her December 2014 statement, Nurse Evans defends her actions during the October 25 incident by saying that “I did smell alcohol in the room, but I know that we are not permitted to interfere with the visits of family members except under extraordinary circumstances.  I had never seen or heard of [Resident 1’s] son doing anything unusual or alarming during his previous visits. . . . I did not want to make a scene with a family member because I know they have a right to be there.”  P. Ex. 8 at 2. 

If Nurse Evans had never had contact with Resident 1 and her son before, then she would not have known S.B. was a family member and would not have made decisions based on that.  Further, she would not have known anything as to S.B.’s prior visits.  In her interview with Surveyor Horne, Nurse Evans did not express any concern over family visitation rights when making her decision to leave the room and get her supervisor.  Nurse Evans explained that she personally went to get her supervisor because she was uncomfortable with the situation and did not know what was happening:  “I was uncomfortable with him holding his pants, his belt being off & smell of alcohol . . . .[I] didn’t know what had happened or what was going to happen just zoned out & did what I thought I had to do.”  CMS Ex. 9 at 14. 

I resolve this contradiction by finding that the weight of reliable evidence indicates that Nurse Evans had not previously seen Residents 1 and 2, and S.B. 

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Finally, while consistently stated, I question Nurse Evans’s estimate that she only left Resident 1 and 2’s room the second time for two to three minutes.  As discussed above, Nurse Evans described that she had to walk out around the front of the facility to the other end of the facility to find Nurse Wyatt.  She also had to inform Nurse Wyatt of the situation before returning. 

Not clearly mentioned is that Nurse Evans called DON Dawson after she left Resident 1 and 2’s room for the second time.  DON Dawson testified that Nurse Evans called her to tell her that the man in Resident 1’s room “appeared to be drunk.”  DON Dawson testified that she “told Nurse Evans to get her supervisor, and to call the police to help remove the visitor from the building.”  DON Dawson further testified that shortly after this call, Nurse Wyatt called, and DON Dawson “told her the same thing” she had told Nurse Evans.  P. Ex. 18 at 1-2. 

DON Dawson’s testimony appears to contradict Nurse Evans’s account of events and suggests that Nurse Evans may have taken longer than “two or three minutes” to return to Resident 1’s room because Nurse Evans made a phone call to the DON before going to Nurse Wyatt, and then Nurse Wyatt called the DON as well before going to Resident 1 and 2’s room.  P. Ex. 15 at 4. 

Further, in a statement made in December 2014, Nurse Wyatt confirmed that she was in a different wing of the facility when Nurse Evans found her and Nurse Evans merely expressed there was an unusual situation (i.e., not an emergency one) with which she wanted Nurse Wyatt’s assistance, and they spoke while walking back across the facility to Resident 1 and 2’s room.  P. Ex. 8 at 3.  Other than saying that she immediately acceded to Nurse Evans’s request, Nurse Wyatt expressed no urgency in how they walked back to Residents 1 and 2’s room.  P. Ex. 8 at 3.  Therefore, I find that Nurse Evans took considerably longer than two or three minutes to make it back to Resident 1 and 2’s room after she exited for the second time. 

11.  On October 25, 2014, between 4:00 and 5:00 p.m., the supervisory RN at Petitioner’s facility was brought to Resident 1 and 2’s room by the LPN who informed the supervisory RN that a man in the room, i.e., S.B., was partially disrobed, smelled of alcohol, and had been, in Resident 2’s words, “messing with” Resident 1.  The supervisory RN walked to Resident 1 and 2’s room first and found Resident 1 on her bed naked from the waist down.  The supervisory RN noticed the zipper on S.B.’s pants was down, his belt was only loosely on his pants, and his pants were loose and slightly falling from his waist.  The supervisory RN questioned S.B. about his appearance.  S.B. asked if the RN was accusing him of something.  The RN told S.B. that his state of undress was inappropriate for a room with two female residents.  The RN told S.B. to end his visit and leave.  S.B. left the facility.  The RN spoke to Resident 2, and Resident 2 stated that she heard Resident 1 saying:  “Stop,

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Stop, Stop.”  The facility called the police.  Facility staff assessed Resident 1’s body.  Resident 1 complained of pain in her back and vaginal area.  Resident 1’s physician ordered Resident 1 to be sent to the hospital emergency room. 

Nurse Wyatt, the supervisory RN at the facility during the October 25 incident, wrote and signed a statement on October 25, 2014, concerning the incident with Resident 1.  Ms. Wyatt first indicated that Nurse Evans came to her to report the situation in Resident 1’s room.  Then she summarized the first and second times Nurse Evans entered Resident 1’s room with S.B. present.  CMS Ex. 6 at 52.  Ms. Wyatt then recorded her observations from that point as follows: 

I went to check on [Resident 1] & assess situation.  Upon entrance to room, noted son in wheelchair, zipper/pants open . . . pants loosely on and belt loosely around waist, one shoe tied and one shoe untied.  Son looks at me as though all is well.  I ask why is his zipper open?  He stands & states, “Can’t tell you how many times I have forgotten to zip my pants.”  Noted belt loosely in pants & pants falling slightly.  Asked him, “Why is your belt loose, your pants loose and one shoe untied.”  He states, “What are you trying to say?”  I look to resident who is exposed @ her groin with sheet over one leg.  Bed with hips elevated.  I . . . informed son that it would be best he call it a day and go home.  Son states, “Are you trying to accuse me of something?”  I call the police, I stated, “I call them for you, if you don’t go home.  This is a semi-private room with a female you are not related to and you are disrobing.  It’s unacceptable behavior.  We will call you on Monday about future visits to see your mother.”  At this point he started to leave. . . . I then asked roommate if she was alright and if she heard anything unusual.  Roommate stated, “She said stop, stop, stop.”  At this time another nurse went to stop son from exiting the building due to possible situation that may require intervention.  Police notified and Director of Nursing notified.  Full body assessment done and reported to Medical Doctor and orders to send resident to hospital for assessment. 

CMS Ex. 6 at 52-53. 

Nurse Evans also told LPN Folami Brown about the situation in Resident 1 and 2’s room, and Nurse Brown came to the room while S.B. was still present.  Nurse Brown assisted in assessing Resident 1 and interacted with S.B. while he was leaving the facility.  CMS Ex.

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9 at 16-18.  Nurse Brown authored a General Note in Resident 1 medical record on October 25, 2014, at 10:37 p.m.  She stated as follows: 

Resident’s son arrived to facility intoxicated.  Treatment nurse reports that she walked into the resident’s room in total darkness with door closed.  When she entered, the son jumped back into the wheelchair from the foot of the bed with his belt on the floor and pants undone.  [Resident 2] states that the resident’s son had been messing with her, and the resident was continually telling him no.  Notified MOD, DON, Administrator, head to toe assessment performed, and police notified.  Upon assessment, noted that brief was off, and in the restroom trashcan, and her legs were crossed tight.  Resident was only wearing a t-shirt with wet areas on the back of the t-shirt[.]  When asked resident stated that her back and vaginal area hurts, and very upset.  MD notified, and received order to send resident out for evaluation.  Sponsor notified, report called in to St Vincent’s East ER, and transportation arranged.  Case # 20130 Office Golden responded. 

P. Ex. 9 at 1.  Nurse Brown also signed a brief statement on October 31, 2014, indicating that she had been on duty at the facility on October 25, 2014, and the events described by Nurse Evans took place between 4 p.m. and 5 p.m. on October 25, 2014.  CMS Ex. 6 at 56. 

12.  Resident 2, the roommate of Resident 1, told Nurse Evans when she entered Residents 1 and 2’s room for the first time on October 25, 2014, that S.B. was “messing with” Resident 1.  After Nurse Wyatt told S.B. to leave the facility, Resident 2 told her that she heard Resident 1 say “Stop, Stop, Stop.”  Resident 2 told a state agency surveyor that Resident 1 told S.B. to leave her alone so she could sleep, thought that S.B. was drunk, and was concerned that S.B. might hurt Resident 1.  Resident 2’s statements are credible. 

Debra Freeman, RN, was a surveyor who participated in the survey of Petitioner’s facility by interviewing Resident 2 on November 5, 2014.  CMS Ex. 20 at ¶¶ 1-2, 4-5.  Ms. Freeman reviewed Resident 2’s medical record and “saw nothing . . . which would indicate that she was incapable of being a reliable witness.”  CMS Ex. 20 at ¶ 5.  Ms. Freeman testified that, at the beginning of the interview, Resident 2 was a little confused about her stay in an SNF; however, she thought Resident 2’s recall of the October 25 incident was good, and Resident 2 was a reliable witness.  CMS Ex. 20 at ¶ 7; Tr. 19. 

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On cross-examination, Ms. Freeman stated that when she commenced her interview of Resident 2, she initially had concerns about Resident 2 because Resident 2 said she had been at Petitioner’s facility for years, thought she worked at the facility rather than lived there, could not remember the name of Resident 1, and did not recall her previous statement as to the October 25 incident.  Tr. 26-27, 29-32; CMS Ex. 14 at 5.  Ms. Freeman asked Resident 2, based on Resident 2’s October 25, 2014 written statement to police (CMS Ex. 8 at 9), whether she remembered a lady who was being “messed with” a few weeks ago.  Tr. 37; CMS Ex. 14 at 6.  Ms. Freeman testified that, upon being asked this question, it was like a “light bulb” went on for Resident 2.  Tr. 31, 53.  Ms. Freeman described it as follows:  “It was when I said, messing with her, she immediately started into he was - - she just knew what I was talking - - I knew she knew what I was talking about.  I had no question in my mind that the man that was in that room he was messing with her.”  Tr. 53. 

Ms. Freeman took Resident 2’s description as “messing with” to mean inappropriate sexual contact and that Resident 2 was afraid the man would hurt Resident 1.  Tr. 38, 53.  Ms. Freeman’s notes indicate the following questions and answers: 

Q  How do you know that he was messing with her? 
A  I think that man was about drunk.  I could tell by his actions.  I thought it was her husband.  She kept telling him to leave her alone so she could go to sleep. 

* * * * *

Q  Did the nurses come check on her? 
A  I don’t know if they knew it.  He didn’t get violent, he was drunk. 

Q  Had you ever saw [sic] that man before?  
A  Yes, he had been there all day.  I was afraid to go to sleep[.]  I was afraid he was going to hurt her.  I was lying in my bed.  I didn’t think he was going to bother me.  I wasn’t afraid him [sic].  I thought it was her husband & I didn’t want to get into it. 

Q  Do you remember what he look [sic] like? 
A  Little short fellow, wearing khaki pants.  I thought he knew her.  He was slick alright.  I didn’t see anything but I could hear her saying let me sleep I’m tired.  I didn’t want to get in it.  I sure think he was drunk. 

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CMS Ex. 14 at 6. 

Ms. Freeman interpreted Resident 2’s responses that “[s]he wasn’t afraid for herself.  She was afraid for her roommate” to mean that “she knew something inappropriate was happening.”  Tr. 49.  

Petitioner asserts that Resident 2 “plainly was not a reliable historian, and many of the Resident’s responses to the Surveyor’s questions, even as prompted by the Resident’s police statement, were fantastic and nonsensical.”  P. Br. at 6.  It should be noted that similar skepticism is what resulted in Nurse Evans leaving Residents 1 and 2 alone with S.B. to check Resident 2’s chart for cognitive issues after Resident 2 alerted Nurse Evans that S.B. was “messing with” Resident 1. 

I disagree with Petitioner’s deprecating view of Resident 2.  Although Resident 2 suffers from cognitive difficulties, which may be severe, I credit Ms. Freeman’s testimony that Resident 2 could remember the October 25 incident, in part based on Resident 2’s statement to police and because it was an unusual situation that is likely to stand out in anyone’s memory, even for more than a week.  Given Resident 2’s condition, I would expect Resident 2 to have difficulty remembering the name of Resident 1, a person with whom she shared a room for only two days.  Further, as explained above, Petitioner’s staff had assessed Resident 2 as being able to hear well and make herself understood to others. 

Further, I credit Resident 2’s statements concerning the October 25 incident to Ms. Freeman because Resident 2 signed the surveyor’s summary of the questions and answers (CMS Ex. 14 at 6), correctly observed and recalled that S.B. was intoxicated on October 25 (CMS Ex. 8 at 2), correctly described S.B. as short (see CMS Ex. 9 at 51 (CNA Smoot describing S.B. as “a short man.”)), and correctly discerned that S.B. was in fact “messing with” Resident 1 (CMS Ex. 8 at 5, 10). 

Resident 2’s statements indicate that Resident 2 was concerned that S.B. was a threat to Resident 1.  Further, I credit Ms. Freeman’s view that Resident 2 was reliable in relaying information from the October 25 incident.  Ms. Freeman is an RN with decades of experience, including with geriatric patients.  CMS Ex. 20 ¶¶ 1-2, 7. 

In addition, it is undisputed that Resident 2 twice informed Nurse Evans, during Nurse Evans’s initial entry into Resident 1 and 2’s room, that S.B. was “messing with” Resident 1.  Nurse Evans consistently reported this, and Resident 2 confirmed this in her statement taken by police or Petitioner’s staff.  CMS Ex. 8 at 8, 9; P. Ex. 8 at 2; P. Ex. 15 at 2.  It is also undisputed that Resident 2 informed Nurse Wyatt that Resident 2 heard Resident 1 say:  “Stop, Stop, Stop.”  CMS Ex. 8 at 6-7.  These statements by Resident 2 are consistent with the answers she provided to Ms. Freeman, i.e., that she was concerned for

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Resident 1’s safety based on what she was hearing.  Therefore, I credit Resident 2’s statements as quoted above. 

13.  At or around 5:00 p.m. on October 25, 2014, a local police officer arrived at Petitioner’s facility based on a call from facility staff.  The police made contact with S.B. as he was leaving the front door of the facility.  The officer observed S.B. to stagger when he walked, to have bloodshot eyes, and to smell of alcohol.  The officer arrested S.B. for public intoxication.  The police commenced an investigation into a possible sexual assault of Resident 1 and took statements from witnesses.  The police attempted to interview Resident 1; however, she was too heavily medicated and was incoherent. 

Staff at Petitioner’s facility called the police at about the time that Nurse Wyatt told S.B. to leave the facility on October 25, 2014.  An October 25, 2014 Trussville Police Department report, made at 5:00 p.m. on October 25, 2014, indicated that a police officer arrived at Petitioner’s facility when S.B. was attempting to leave.  It stated: 

When officer made contact with the suspect he was leaving out the front door.  [S.B.] staggered when he walked, had bloodshot eyes and the smell of an alcoholic beverage about his person.  While office[r] attempted to identify the suspect, he spontaneously declared “I don’t know why you are stopping me, I’m not a pedophile or anything. 

CMS Ex. 8 at 3.  The police arrested S.B. for public intoxication.  CMS Ex. 8 at 3. 

The October 25, 2014 police report provided a factual summary of the events in Resident 1 and 2’s room that is consistent with the written statements that Nurses Evans and Wyatt provided to the police officers, as well as the progress notes authored about the incident involving S.B.  CMS Ex. 8 at 1-2, 6-8.  The police also took a brief statement from Resident 2.  CMS Ex. 8 at 3, 9.  

The report stated that “Officer interviewed [Resident 1] however she was heavily medicated and could not make any coherent statement.”  CMS Ex. 8 at 2-3. 

14.  Shortly after 6:00 p.m. on October 25, 2014, Resident 1 arrived at the emergency room of an acute care hospital.  Petitioner’s staff identified possible sexual assault or abuse as the reason for the transfer.  A crisis nurse at the emergency room conducted a sexual assault examination and found bruising on Resident 1’s hymen with several scratches and bruises on bilateral lower extremities.  On October 28, 2014, Resident 1 was discharged to a different SNF. 

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Petitioner sent Resident 1 to the emergency department of a hospital indicating that Resident 1 may have been sexually abused.  CMS Ex. 6 at 64, 74-79; CMS Ex. 11 at 3, 6.  Resident 1’s other son authorized the hospital to conduct a rape examination.  CMS Ex. 6 at 76; CMS Ex. 11 at 5. 

A crisis nurse at the hospital completed a rape kit and indicated that Resident 1 “had bruising noted on her hymen with several scratches and bruises on bilateral lower extremities.”  CMS Ex. 6 at 79; CMS Ex. 11 at 7.  Surveyor Horne testified that she interviewed the nurse who performed the sexual assault examination and that she learned the following: 

The sexual assault nurse noted that Resident 1 was very sleepy during the exam.  The sexual assault exam revealed that Resident 1 had redness below the clitoris area at the junction where the labia minor met; petechiae, which are broken blood vessels, at the hymen; a ton of bruises located on the left side below the pelvic bone, the top part of her thigh, and her right abdomen; small finger print like bruises mostly on left leg; and multiple bruises on left wrist. 

CMS Ex. 19 ¶ 11. 

The notes from the emergency department chart also noted that “nursing home staff states son comes to the nursing home intoxicated frequently.”  CMS Ex. 6 at 79; CMS Ex. 11 at 7.  The chart also indicated that Resident 1 denied being harmed by anyone and said “I can’t believe that the nursing home would think my son [S.B.] would do those things to me”; however, the chart immediately indicated that “[Resident 1] was also unaware that her son drinks and did not remember son being at the nursing home today.”  CMS Ex. 6 at 79; CMS Ex. 11 at 7. 

An October 28, 2014 hospital discharge/transfer summary indicated that the hospital was not taking any further action concerning the alleged abuse because the authorities were aware of that matter.  CMS Ex. 11 at 42-44. 

15.  On October 26, 2014, at approximately 1:46 p.m., Petitioner’s staff reported to the state agency the possible sexual abuse that had taken place on October 25, 2014. 

Petitioner reported the incident between Resident 1 and Resident 1’s son, S.B., to the state agency on October 26, 2014, at 1:46 p.m.  CMS Ex. 3 at 1-2.  Petitioner indicated the incident as “Sexual Abuse” by Resident 1’s “son” on October 25, 2014, at 2:30 p.m.  CMS Ex. 3 at 1.  Petitioner described the incident as follows: 

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[Resident 1’s] son was observed in the resident[’]s room very intoxicated.  The son was observed with his shoes off, belt removed, and pants undone.  Roommate noted hearing [Resident 1] saying “no and to stop.”  Facility immediately intervened.  Son was removed from resident[’]s room and held while police were contacted.  Police arrived and the son was arrested for public intoxication and was taken in for questioning.  Resident was assessed and there was no evidence of abuse noted.  MD notified and order given for resident to be sent to ER for further evaluation.  Sponsor was notified. 

CMS Ex. 3 at 1-2. 

16.  On October 30, 2014, S.B. met with a police detective to be interviewed about the October 25, 2014 incident at Petitioner’s facility.  S.B. confessed to having intercourse with Resident 1 and stated that Resident 1 would not remember the incident.  S.B. wrote and signed a confession on October 30, 2014.  The police arrested S.B. on December 1, 2014, and charged him with rape in the first degree. 

S.B. met with Detective Short on October 30, 2014, to be interviewed about the October 25, 2014 incident.  An October 30, 2014 police report stated the following concerning the questioning and that S.B. admitted to having intercourse with Resident 1: 

On 10/30/2014 at or around 1000 hours Det. Short met with [S.B.] at the Trussville Police Department and conducted an interview. . . . [S.B.] was advised of Miranda before he provided a written statement in which he admits to having intercourse with his mother.  Prior to the admission [S.B.] changed his story from he didn’t do anything to he possibl[y] did something but blacked out and can’t remember before advising Det. Short that he was comforting her as she was crying upon his arrival.  [S.B.] went on to state that he climbed into bed with his mom and she “touched him” and then they had intercourse.  Det. Short asked [S.B.] if his mother remembered them having sex to which he stated she did not . . . .  Det. Short asked the suspect if he ejaculated inside of her to which he stated he did not.  Det. Short asked [S.B.] if he jumped off of her when the nurse came in and he looked away without saying anything else.  [S.B.] admitted that he is an alcoholic and had two “stiff drinks” before going into [Petitioner’s facility.] 

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CMS Ex. 8 at 5. 

On October 30, 2014, S.B. wrote and signed a Suspect Statement and Waiver of Rights that provided the following: 

I had 2 drinks, went inside and got into bed with my mom, started comforting her, petting her, and then we fell into position with her underneat[h], she touched . . . and had intercourse. 

CMS Ex. 8 at 10. 

The report also indicated that the charge against S.B. was changed to Rape in the First Degree.  CMS Ex. 8 at 5.  According to District Attorney and Sheriff Office documents, S.B. was charged with “Rape 1st/Sexual Abuse 1st.”  CMS Ex. 8 at 11, 13. 

Electronic documents from Alabama’s court system in the case of State of Alabama v. S.B. show that S.B. was arrested on December 1, 2014, based on the charge of Rape in the First Degree due to the October 25 incident.  P. Ex. 12 at 1.  One electronic court document has a section entitled “Disposition Charges,” which lists the charge of Rape in the First Degree with a court action as “Waived to GJ” on February 24, 2015.  P. Ex. 12 at 2.  Further, it shows that S.B. was sentenced on February 24, 2015; however, it is unclear if S.B. had been convicted by that time.  P. Ex. 12 at 2-3.  

I credit these documents related to the police investigation.  Petitioner objected to CMS Exhibit 8 as potentially unreliable because the documents in that exhibit were not authenticated.  I overruled the objection.  For purposes of assigning weight to the contents of CMS Exhibit 8, I note that state agency surveyor Horne testified that, as part of her investigation, she spoke with Detective Short and obtained the police records concerning the October 25 incident, which were submitted as part of CMS’s exchange.  CMS Ex. 19 ¶ 8.  Further, Ms. Horne testified that she spoke with another detective who had taken over the criminal case involving S.B. and indicated that S.B. had been booked on charges of sexual abuse by force and rape.  The Detective also indicated that public information confirming this was available online and that Ms. Horne obtained that information, which was submitted with CMS’s exchange.  CMS Ex. 19 ¶ 9. 

There is further reason not to doubt these records.  As discussed more fully below, Petitioner’s administrator signed a statement that was included with Petitioner’s five-day investigation report indicating that he spoke with Detective Short who stated that the police would complete a report related to its investigation of the October 25 incident and that S.B. had confessed.  CMS Ex. 6 at 88.  Petitioner relied on these comments, in part, to support the five-day investigation report’s conclusion that Resident 1 was sexually

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abused by S.B.  CMS Ex. 6 at 5.  Therefore, Petitioner’s administrator found the police information reliable. 

Finally, Petitioner’s efforts, through counsel, to obtain the Trussville Police Department’s reports and other documents related to its investigation of the October 25 incident show that CMS, through the state agency, received those documents.  Petitioner confirmed with the police department that CMS could provide those documents to Petitioner.  P. Ex. 1 at 4-11.  Therefore, I consider the documents in CMS Exhibit 8 to be authentic and reliable, and I give their contents evidentiary weight. 

17.  On October 31, 2014, Petitioner’s administrator provided the state agency with the facility’s five-day investigative report concerning the October 25, 2014 incident involving S.B. and Resident 1.  Based on interviews with three facility nurses as well as with a police detective who stated that S.B. confessed to engaging in intercourse with Resident 1, the administrator concluded that sexual abuse of Resident 1 by S.B. had been substantiated.  The report included detailed factual findings. 

On October 31, 2014, Petitioner provided the state agency with its five-day investigative report and exhibits concerning the October 25 incident.  CMS Ex. 6.  The investigation included joint interviews by Petitioner’s administrator and Trussville Police of three facility staff members (Nurses Evans, Wyatt, and Brown).  CMS Ex. 6 at 3.  The report noted that a detective with the police department told Petitioner’s administrator that S.B. confessed to police, and the report included a written statement from the administrator that a detective “stated that they had received a confession from the son to the acts that were in question,” and that there would be a police report concerning the incident with Resident 1.  CMS Ex. 6 at 4, 88.  The facility’s report concluded the following: 

Based on the eyewitness account of Verwanda Evans, the observations of Terri Wyatt and Folami Brown, and Detective Short’s statement that he received a confession from [S.B.], [the facility] substantiates that [Resident 1] was sexually abused by her son and sponsor [S.B.]. 

CMS Ex. 6 at 5. 

When summarizing the facts found during the investigation of the October 25 incident, Petitioner notably found the following: 

- Nurse Evans knocked and entered Resident 1 and 2’s room, which was dark;

- Nurse Evans turned the light on and S.B. was on the side of Resident 1’s bed;

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- S.B. “jumped from the bed into a chair” and S.B. was “missing his right shoe and he was not wearing socks”;

- “The room smelled of alcohol”;

- Resident 2 twice stated to Nurse Evans that [S.B.] is “messing with her”;

- Nurse Evans left Resident 1’s room, with the lights on and door open to check a chart;

- Nurse Evans returned to Resident 1 and 2’s room and found S.B. moving quickly while holding up his pants;

- S.B.’s belt was on the floor;

- Nurse Evans left the room with the lights on and door open to notify a supervisor;

- Nurse Wyatt came to Resident 1 and 2’s room and observed S.B.’s zipper wide open and the belt loosely around his waist;

- Nurse Wyatt questioned S.B. about his state of undress;

- Nurse Wyatt questioned Resident 2 if she heard anything unusual, and Resident 2 said that Resident 1 said “Stop, Stop, Stop”;

- Nurse Brown also came to Residents 1 and 2’s room and observed that Resident 1’s diaper had been thrown in the restroom and that Resident 1 only wore a t-shirt;

- Trussville police arrived at the facility and arrested S.B. for public intoxication;

- Nursing staff at the facility completed a full-body assessment of Resident 1 and Resident 1 stated that her back and vaginal area hurt;

- Resident 1 appeared very upset;

- Petitioner’s medical director ordered Resident 1 to be sent to the hospital;

- Hospital staff completed a rape kit and observed bruising on Resident 1’s hymen with several scratches and bruises on her bilateral lower extremities; and

- The rape kit results were pending when Resident 1 was discharged from the hospital to a different SNF. 

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CMS Ex. 6 at 4-5.  The report included exhibits.  CMS Ex. 6 at 7-90. 

V.   Conclusions of Law and Analysis

1.  Petitioner was not in substantial compliance with 42 C.F.R. § 483.13(b) and CMS’s determination that this noncompliance immediately jeopardized the health and safety of residents is not clearly erroneous. 

As stated above, the DAB remanded this case, in part, for me to hold a hearing and to render a decision on the full record, unconstrained by the restrictions that summary judgment placed on my fact finding.  Although the DAB agreed that Petitioner was not in substantial compliance with 42 C.F.R. § 483.13(b), the DAB indicated that on remand, an evaluation of the deficiency based on the full record was possible.  Further, the DAB wanted me to evaluate whether CMS’s determination that Petitioner’s noncompliance with § 483.13(b) created an immediate jeopardy situation was clearly erroneous. 

This deficiency, and all of the deficiencies in this case, revolve around abuse of a resident.  Congress decided that each resident of an SNF has a right to be free from physical or mental abuse and that all Medicare participating SNFs have the duty to promote and protect each resident’s right to be free from abuse.  42 U.S.C. § 1395i-3(c)(1)(A)(ii).⁴  The regulatory provision cited as the primary deficiency in this case reiterates that each resident has the right to be free from abuse, and makes it clear that abuse includes verbal, mental, sexual, or physical abuse.  42 C.F.R. § 483.13(b).⁵ 

The following is that pertinent legal standard, as stated by the DAB, to be applied in this case regarding the § 483.13(b) deficiency.  The DAB explained that:  

[A] facility is responsible for keeping residents free from sexual or other types of abuse and could be found in violation if its staff failed to take reasonable precautions in a situation that made the possibility of abuse reasonably foreseeable, whether or not the abuse materialized, was of the type foreseen, or was ultimately provable.  The pertinent issues here are whether some risk of abuse to residents posed by R[esident] 1’s son was reasonably foreseeable under the

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circumstances found and, if so, whether Petitioner acted appropriately to protect its residents from the risk. 

* * * *

[T]he issue is not whether R[esident] 1’s son actually abused his mother sexually or whether Petitioner’s staff had or should have anticipated the possibility of sexual abuse of R[esident] 1 by her son.  Although both section 483.13(b) and section 483.13(c)(1)(i) expressly refer to sexual abuse as one of multiple forms or types of abuse (to include verbal, physical, mental, corporal punishment, involuntary seclusion) and the nature of the October 25, 2014 incident reasonably raises the possibility of sexual abuse of a resident, that does not then mean that sexual abuse of R[esident] 1 or another resident by R[esident] 1’s son specifically must have been foreseeable.  It certainly does not mean that sexual abuse actually must have in fact occurred for CMS’s enforcement action to stand.  Instead, the ALJ properly asked whether a man who was found partially clothed and appeared to be under the influence of alcohol, in a room with two women with cognitive and physical limitations under the circumstances presented (including the expression of some concern by one of the women) should have raised red flags of risks (whether of sexual, physical, or verbal abuse or other forms of abusive behavior) to those residents and possibly other facility residents, and whether leaving him alone in the room with the residents was a reasonable response. 

Golden, DAB No. 2937 at 11-12. 

Despite discussing the 42 C.F.R. § 483.13 deficiency in detail and concluding that Petitioner was noncompliant with that requirement, the DAB noted that remand affords the opportunity to make a full presentation of the situation underlying that deficiency because a new decision following a hearing would allow disputed facts to be resolved.  Golden, DAB No. 2937 at 14-19.⁶ 

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A.  Resident 1 Was Abused

The Secretary’s regulations applicable to this case 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. § 488.301.  Based on the record as a whole, as discussed in the Findings of Fact above, I conclude that Resident 1 was subject to abuse, as defined in 42 C.F.R. § 488.301.  Specifically, there is significant evidence, including S.B.’s oral and written confession to police, that he had sexual intercourse with Resident 1, his mother, on October 25, 2014, while Resident 1 was medicated and drowsy.  CMS Ex. 8 at 10.  There is no doubt that Resident 1 was not in a position to physically ward S.B. off although she told him to stop multiple times.⁷ 

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Petitioner urges me not to specifically resolve the question as to whether S.B. engaged in sexual intercourse with Resident 1 because it is unnecessary.  Petitioner also claims that its conclusion in its five-day report, that sexual abuse of Resident 1 had been substantiated, was merely based on a conversation with a detective who said S.B. confessed.  Petitioner states that the police report casts doubt on that confession and there is no definitive evidence that Resident 1 was sexually abused.  P. Br. at 2 n.1. 

Petitioner also argues that the confession is insufficient evidence to conclude that S.B. had sexual intercourse with Resident 1.  Petitioner states that the police report indicated that S.B. had changed his story to police.  First, S.B. said he did nothing to Resident 1.  Then, S.B. conceded that he may have done something to Resident 1 but blacked out.  Finally, S.B. admitted to engaging in sexual intercourse with Resident 1 and described how and why that happened.  See CMS Ex. 8 at 5. 

I am unconvinced that S.B.’s changing stories during the police interview mean that the final one cannot be accepted as true.  Rather, his first two stories show an effort to evade responsibility for his actions (he was, after all, under criminal investigation), while his last one shows that he finally accepted responsibility for his actions.  The detective who took the confession did not question it, and the confession was used to justify a charge of Rape in the First Degree against S.B. 

Further, as explained below, there is much evidence to corroborate the confession.  See Tr. 74.  S.B. was observed by multiple staff with his pants unbuckled and unzipped while in Resident 1’s room.  P. Ex. 8 at 1-2.  Nurse Wyatt not only observed S.B. in a state of undress but at the same time saw Resident 1, lying on her bed with her genitals exposed, in S.B.’s presence.  CMS Ex. 8 at 6.  In addition, the emergency room sexual assault examination revealed injuries to Resident 1’s vaginal and pelvic region.  Finally, Resident 2 heard Resident 1 say “Stop, Stop, Stop.”  These facts are consistent with S.B.’s confession that he had nonconsensual sexual intercourse with Resident 1.  

A scholarly article that Petitioner submitted as evidence in this case also supports the finding that S.B. engaged in nonconsensual intercourse with Resident 1.  It states that “One study ‘revealed a relatively homogeneous group of older adults, most of whom were women with cognitive and functional limitations residing in nursing homes,’ most likely to be the victims of sexual abuse.  The study showed that most victims had reduced orientation to place and time, required assistance with ambulation, and were unable to manage their own finances.”  P. Ex. 11 at 13.  Resident 1 generally meets this description.  The article went on to state:  

Physical signs and symptoms of sexual assault include vaginal and rectal bleeding, vaginal and rectal discharge, genital and rectal scarring, sexually transmitted diseases, and urinary irritations.  Other signs of physical abuse, which may

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be related to the sexual assault, include bruises, abrasions, lacerations, fractures, general body soreness, fatigue, and rope burns, which could occur if the victim was restrained. 

P. Ex. 11 at 17.  This is consistent with the results of the emergency room’s sexual abuse examination of Resident 1.  

Further, an article attached to the written testimony of Petitioner’s expert witness, Ms. O’Brien, provides further support to conclude that S.B., as an alcoholic son living with his elderly mother, was more likely to engage in sexual abuse of Resident 1.  The article states that for victims of domestic abuse, “[t]he mean age was 78.4 and about one-third were in their 70’s and one-third in their 80’s.  Contrary to common assumption, research obviously demonstrates that advanced age certainly does not protect one from becoming a victim of sexual assault.”  P. Ex. 17 at 24.  It also states that:  “A qualitative analysis concluded, ‘Like other forms of domestic violence, elder sexual abuse within the family tends to be primary a problem of male violence directed against female victims.’”  P. Ex. 17 at 24.  “In a study of domestic cases, 81% of the alleged perpetrators provided some care to their victims and 78% were family members, predominantly sons and husbands.  Characteristics of offenders who sexually victimized elders within their own families were found to include . . . substance abuse. . . . An analysis of 125 elder sexual abuse cases found that 44% of the perpetrators were under the influence of drugs or alcohol at the time of the assault.”  P. Ex. 17 at 25.  The article quoted this profile for a child who abuses a parent: 

An Adult Child who is unmarried, unemployed or under-employed, and resides in the home of an elderly parent, financially supported by the parent.  The adult child displays poor social, occupational, and financial functioning, and often substance abuse or mental illness.  As the parent becomes increasingly elderly and ill, she becomes more and more available to her poorly functioning offspring as a potential victim.  It is not unusual to find a pattern of multifaceted abuse, which may involve neglect, psychological and physical abuse, financial exploitation, and in some cases, sexual abuse.  

P. Ex. 17 at 20.  Therefore, the evidence of record indicates S.B.’s confession to nonconsensual intercourse with Resident 1 is corroborated by the rest of the record. 

In addition, I conclude that S.B. acted willfully in inflicting injury resulting in harm, pain, or mental anguish when he engaged in nonconsensual sexual intercourse with Resident 1.  According to S.B., the situation started because Resident 1 was upset and crying, so S.B. got into bed with her and started to comfort her.  S.B. alleged that Resident 1 “touched him” and then he went on top of her and engaged in intercourse.  CMS Ex. 8 at 5, 10. 

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While S.B.’s story implies that Resident 1 initiated sexual contact by touching him, this is highly improbable and, even if she did, such action by S.B.’s medicated and cognitively impaired mother could not be rationally interpreted as an invitation for her son to engage in sexual intercourse. 

Indeed, there is absolutely no evidence in the record to support S.B.’s apparent effort to indicate that he may have engaged in consensual sexual intercourse.  The facility staff indicated that Resident 1 was sleepy in the afternoon of October 25 and, S.B. himself, admitted to the detective that Resident 1 did not remember the sexual intercourse because she was heavily medicated at the time.  CMS Ex. 8 at 5; P. Ex. 8 at 1; P. Ex. 16 at 1.  Resident 2 stated that she heard Resident 1 tell S.B. to leave her alone so she could sleep.  CMS Ex. 14 at 6.  When the police tried to speak to Resident 1 at about 5:00 p.m. on October 25, the police noted that she was heavily medicated and could not make a coherent statement.  CMS Ex. 8 at 2.  At the emergency room more than an hour later, staff also noted that she was “drowsy” and that she “did not remember son being at nursing home today.”  CMS Ex. 11 at 4, 7.  The nurse who performed the sexual assault examination of Resident 1 at the emergency room commented that Resident 1 was “very sleepy during the exam.”  CMS Ex. 19 ¶ 11.  It is not possible, on the record before me, to conclude that S.B.’s actions were consensual.  This conclusion is reinforced by Resident 2, who heard S.B. “messing with” Resident 1 and then later heard Resident 1 to say “Stop, Stop, Stop” to him. 

S.B.’s nonconsensual intercourse was plainly a willful infliction of injury that caused pain, harm, and/or anguish.  When facility staff assessed Resident 1 after S.B. was told to leave the facility, Resident 1 complained of pain in her side and vaginal area.  P. Ex. 9 at 1.  As already discussed above, the sexual assault nurse’s examination at the emergency room revealed bruising, scratches, redness, and broken blood vessels in her vaginal and pelvic area.  CMS Ex. 6 at 79; CMS Ex. 11 at 7; CMS Ex. 19 ¶ 11. 

Therefore, I conclude that Resident 1 was subject to abuse. 

B.  Foreseeability of Risk to Residents and Failure to Take Reasonable Action

As the DAB stated in its remand, I must determine whether the abuse suffered by Resident 1 was reasonably foreseeable and whether Petitioner’s staff took reasonable action to protect Resident 1.  This analysis is necessary because S.B. was not Petitioner’s employee, otherwise the deficiency analysis could end at the finding of abuse.  Bridge at Rockwood, DAB No. 2954 at 24 (2019). 

I conclude that the record establishes that Petitioner’s staff was aware, through various interactions with S.B., that he posed a threat to the residents at the facility, most especially Resident 1. 

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In Finding of Fact 5 above, I found that, while not universally known by all of Petitioner’s staff, at least some of Petitioner’s staff knew that S.B. visited Resident 1 at the facility while intoxicated.  One of the staff interviewed by surveyors personally observed S.B. to be in an inebriated state before October 25, 2014.  And even if the record is not clear as to each person who witnessed S.B. intoxicated before October 25, the record shows that various staff had the perception that he was visiting drunk.  While facility management disavows knowing this, for purposes of a foreseeable risk, it is enough that staff had witnessed it.   

Based on testimony provided by Petitioner’s witnesses, it is odd that Petitioner’s staff and management were not fully prepared to deal with an intoxicated visitor.  Stacey Merritt Hord, the Vice President of Quality for Petitioner’s parent company, testified about visitors acting oddly or under the influence of alcohol from the perspective of a nursing home administrator.  P. Ex. 13 at 1-2.  Ms. Hord said that it “is not all that unusual for a visitor to arrive at a nursing facility intoxicated (or even to bring alcohol with him or herself and drink while visiting).  We serve a cross-section of the community, including residents with family members who have drinking problems, or who may prepare themselves for visits, which can be stressful, by drinking.”  P. Ex. 13 at 4.  Ms. Hord testified that Petitioner’s intoxicated-visitor policy (a copy of which was not submitted as an exhibit in this case), “is that if a staff member suspects that a visitor is intoxicated or impaired, the staff person (or staff persons, if warranted) should escort the person out, or, if needed, call 911.”  P. Ex. 13 at 4.  According to Ms. Hord, the concern motivating this policy “is not necessarily that the intoxicated person is a threat to other residents, but is based upon the common knowledge . . . that intoxicated persons can be loud, disruptive, or argumentative, and could frighten residents and staff or even interfere with care.”  P. Ex. 13 at 4-5. 

Ms. Hord’s testimony is significant for its acknowledgement that it is not unusual for intoxicated individuals to enter the facility and that staff should remove intoxicated individuals if staff suspected they are intoxicated.  Contradictorily, Ms. Hord believes intoxicated visitors are only a threat to interfering with care at the facility, causing residents to become frightened of them, and being disruptive, but are not a physical threat to residents.  Even accepting Ms. Hord’s limited concerns, intoxicated visitors could still cause verbal or mental abuse of residents. 

However, I do not credit Ms. Hord’s effort to make a distinction between an intoxicated visitor being a physical threat versus being a threat for interfering with care, frightening residents, and being disruptive.  Ms. Hord’s effort to thread the needle of acknowledging that Petitioner thinks inebriated visitors need to be removed from the facility without acknowledging that such individuals pose a physical threat to residents contradicts published studies that CMS submitted into the record.  A study on alcohol dose and aggression, authored by individuals from the University of Kentucky’s Department of Psychology stated:  “The fact that alcohol intoxication facilitates violence is no longer in

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question.”  CMS Ex. 21 at 1; see CMS Ex. 21 at 39.  The study concluded that:  “Our findings also have clear public health implications:  Violence and excessive drinking go hand in hand.”  CMS Ex. 21 at 9.  Further, a National Institutes of Health study attempted to determine whether individual character traits for aggression in men may be accentuated with alcohol consumption.  That study concluded there is a “link between personality and alcohol-related aggression.  Specifically, lower levels of agreeableness were associated with higher levels of trait aggressivity, which in turn predicted extreme aggression among intoxicated, but not sober, men.”  CMS Ex. 21 at 23. 

Based on this evidence in the record, I conclude that the general knowledge among some of Petitioner’s staff that S.B. would visit Resident 1 in an intoxicated state means that Petitioner was responsible to make all staff aware to be watchful that S.B. may come to the facility intoxicated and need to be escorted from the facility under its policy. 

Petitioner did not remove S.B. before October 25, 2014.  On that day, some staff noticed various things about S.B. that should have been considered as warning signs that Resident 1 or other residents could be at risk from S.B. 

As discussed above in Finding of Fact 7, CNA Colley entered Resident 1 and 2’s room at some point not long after S.B. arrived for a visit.  CNA Colley thought she smelled alcohol while in the room.  Although the facility allegedly had a policy against intoxicated visitors, there is no evidence CNA Colley took any action concerning the smell of alcohol in the room. 

As discussed above in Finding of Fact 8, Nurse Amy testified that, while she did not notice anything out of the ordinary, S.B. came to the nursing station expressing concern at Resident 1’s pain and need for pain medication.  However, when Nurse Amy brought opioids to Resident 1, Resident 1 was sleepy and denied the need for the pill.  Despite this, Nurse Amy did not think it was unusual or disconcerting that a visitor misled her into believing that Resident 1 was in pain when she clearly was not. 

As discussed above in Finding of Fact 9, CNA Smoot entered Residents 1 and 2’s room and it was all dark although it was afternoon.  She saw a diaper on the floor and then realized S.B. was in the room with his pants unzipped and unbuckled, holding his pants at the waist with his underwear or a shirt showing through the open pants.  CNA Smoot disregarded evidence that Resident 1 no longer had a brief on under the covers along with a male visitor who was partially disrobed (as Nurse Wyatt would later point out) in a room with two female residents.  CNA Smoot did not question what was going on or report this situation to anyone. 

These three interactions with S.B. occurred from about 2:00 p.m. to 4:00 p.m. on October 25, 2014.  Despite one person smelling alcohol, another being misled concerning Resident 1’s pain level and the need for an opioid pill, and a third seeing evidence that

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Resident 1 might be unclothed under her covers and S.B. having to hold up his pants because the pants were unbuckled and unzipped, no one reported anything amiss. 

Shortly after CNA Smoot left, Nurse Evans entered the dark room and encountered S.B.  As explained above in Finding of Fact 10, Nurse Evans saw S.B. move quickly from Resident 1’s bed to sit in a wheelchair, noticed that one of S.B.’s feet was shoeless and sockless, and she smelled alcohol.  In violation of Petitioner’s apparent policy to remove intoxicated visitors from the facility, Nurse Evans did not determine whether S.B. was intoxicated and needed to be removed from the facility.  This point is critical, which is likely why Nurse Evans provided testimony that contradicted her previous statements as to when she smelled the alcohol.  However, she was clear on October 25 when she provided a statement to police and wrote a note for Resident 1’s medical record – she smelled alcohol upon her initial entry into the room. 

Nurse Evans, who had never encountered either Residents 1 or 2 or S.B. before, walked past Resident 1 to do a skin assessment on Resident 2.  When she walked around the curtain separating the residents, Resident 2 stated, in a voice that only Nurse Evans would hear:  “He’s messing with her.”  Asked to repeat what she said, Resident 2 repeated, “He’s messing with her.”  At this juncture, a reasonable person would be concerned that a potentially drunk male visitor was doing something untoward with Resident 1.  The fact that Resident 2 gave the warning in a low voice meant she did not want to be heard by S.B., and this should have made it clear that Resident 2 was voicing a significant concern. 

However, all Nurse Evans thought was that Resident 2 might be cognitively impaired and confused.  Needing to test this theory, Nurse Evans walked right out of the room, albeit with the lights on and door open, to go to the nursing station and look at Resident 2’s chart.  Having checked the chart and seen that Resident 2 was assessed as severely cognitively impaired, Nurse Evans discounted Resident 2’s statements.  See P. Ex. 18 at 2-3 (Nurse Evans told DON Dawson during their phone call on October 25 that Resident 2 was confused).  

It bears mentioning at this point that Nurse Evans not only left Residents 1 and 2 in a room alone with a male visitor that she did not know, who smelled of alcohol, but she did so after Resident 2 voiced a warning about S.B. to Nurse Evans that S.B. could have overheard. 

Nurse Evans’s’ failure to properly act on Resident 2’s warning appears to be a common problem when cognitively impaired elderly persons report abuse.  An article on elder abuse that Petitioner’s expert witness attached to her testimony states that: 

Vulnerability to all forms of abuse rises dramatically for people who experience disabilities. . . . Conditions that cause individuals to be unable to care for themselves or

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communicate place seniors at elevated risk for all abuse, including sexual.  Furthermore, people with dementia and psychiatric illness are unlikely to be considered credible if they disclose abuse.  Ironically, conditions that elevate risk of assault also tend to impede victims from effectively self-protecting, seeking and receiving help, and cooperating with criminal prosecution of their offenders. 

P. Ex. 17 at 24 (emphasis added). 

This quote provides useful information as to Resident 1’s vulnerability as a physically and cognitively impaired person as well as Nurse Evans’s prejudice against taking any immediate action based on Resident 2’s warning that S.B. was “messing with her.”  Although, in her December 2014 statement, Nurse Evans stated that she did not know what Resident 2 meant by “He’s messing with her” (P. Ex. 8 at 2), that phrase clearly meant S.B. was doing something inappropriate to Resident 1 and, to the extent there was ambiguity, Nurse Evans ought to have interpreted it so as to protect Resident 1 no matter the situation. 

However, Nurse Evans, having confirmed that Resident 2 was “confused,” retuned to the room after two minutes to find S.B. back at the end of Resident 1’s bed holding his pants up.  S.B. again quickly moved to sit in the wheelchair.  Nurse Evans saw S.B.’s belt on the floor near the wheelchair.  Resident 1 was still under her covers.  CMS Ex. 9 at 13. 

Nurse Evans had already left the residents alone with S.B. after smelling alcohol and hearing a warning from Resident 2.  Now she was back in the room and the situation rightly caused Nurse Evans concern since S.B. had partially disrobed.  By this point, anyone would be concerned.  Rather than call for assistance and remain in the room, Nurse Evans chose to extricate herself from the situation and left the residents alone again with S.B.  Nurse Evans did not go to the nursing station and call for assistance.  Instead, according to DON Dawson, Nurse Evans called her at home.  P. Ex. 18.  

DON Dawson testified that Nurse Evans generally indicated that she smelled alcohol in Resident 1 and 2’s room and that S.B. “appeared to be drunk.”  P. Ex. 18 at 1.  DON Dawson told Nurse Evans to get her supervisor and call the police to help remove S.B.  CMS Ex. 18 at 2. 

Nurse Evans appears to have interpreted the first part of these instructions literally and walked out across the front of the building to the other wing of the facility to find Nurse Wyatt.  But she disregarded the instruction to call the police.  All the while, Residents 1 and 2 were left alone with a drunk man who Nurse Evans did not know, a man whom she had been warned was “messing with” Resident 1 and who had started to disrobe while Nurse Evans had first left the room to check Resident 2’s chart. 

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Somewhat astoundingly, Nurse Evans did not raise an alarm with Nurse Wyatt when she found her on the other side of the facility.  Nurse Wyatt stated in a December 2014 statement that Nurse Evans simply voiced the need for assistance with a “very strange and unusual” situation she observed, and Nurse Evans told her about it as “we were walking down the hall towards [Resident 1 and 2’s] room.”  P. Ex. 8 at 3.  As indicated when discussing Finding of Fact 10, I rejected Nurse Evans’s estimate that she only left Residents 1 and 2 alone with S.B., the second time, for two to three minutes because that is simply not reasonable given what transpired and the lack of evidence that anyone hurried or ran from one end of the facility to the other.  Further, DON Dawson testified that she spoke with Nurse Wyatt, shortly after speaking with Nurse Evans, and obviously before Nurse Wyatt entered Resident 1 and 2’s room.  P. Ex. 18 at 2.  This added additional time before Nurse Wyatt made it to Residents 1 and 2’s room. 

However long it lasted, as discussed in Finding of Fact 11, when Nurse Wyatt entered the room, Resident 1 was on her bed with her genitals exposed and S.B.’s pants were open and unzipped with his belt only loosely around his waist and his pants hanging slightly and loose.  Nurse Wyatt told S.B. to end his visit and, when S.B. wanted to know what he was being accused of, Nurse Wyatt told him that it was inappropriate for a man to be disrobing in a semi-private room with female residents. 

While S.B. was attempting to leave, a police officer arrived who observed him staggering while he walked and having bloodshot eyes.  S.B. was clearly very intoxicated, yet Petitioner’s various staff members who encountered him did not act to have him removed from the facility before Nurse Wyatt arrived. 

Petitioner provided written direct testimony from several witnesses who opined that Nurse Evans conducted herself perfectly when faced with the situation in Residents 1 and 2’s room.  I discuss those opinions and my reasons for rejecting them below.    

DON Dawson testified that “[i]n my opinion, Nurse Evans did exactly the right thing to call me, and then to get her supervisor to help deal with a visitor who she believed was intoxicated.”  P. Ex. 18 at 2.  She also testified that “[e]ven in retrospect, I am aware of no evidence that would cause me to consider Resident # 1’s son a potential predator, or to require Nurse Evans or anyone else to take any additional actions to protect Resident # 1 or anyone else[,] that she did not.”  P. Ex. 18 at 4.  However, DON Dawson based her opinion on Resident 2 being confused, having seen visitors often nap at their family member’s bedside, and her personal observation of having “frequently see[n] male visitors leave the restroom with their fly unzipped or belt unbuckled.”  P. Ex. 18 at 3.  

I reject DON Dawson’s opinion.  It is premised on disregarding Resident 2’s warning simply because she was assessed as cognitively impaired (i.e., “Nurse Evans said that the roommate was confused.”).  P. Ex. 18 at 2-3.  It also seems heavily based on her

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somewhat unusual personal experience of often seeing men leave restrooms with their pants unzipped and unbuckled. 

Ms. Hord also ventured her opinion about Nurse Evans’s conduct on October 25 and testified that she did not think that Nurse Evans’s first entry into Residents 1 and 2’s room would have caused any concern because Resident 2’s statement that S.B. was “messing with her” was too ambiguous and there was nothing else to conclude there was a problem.  P. Ex. 13 at 6.  On Nurse Evans’s second entry into the room after leaving Residents 1 and 2 alone with S.B., Ms. Hord testified that Nurse Evans was correct to leave the room again to report the smell of alcohol to a supervisor.  “Again, I see no red flags at this point that would dictate that the nurse should have stayed with the Resident and called or sent someone else for assistance.”  P. Ex. 13 at 6.  Ms. Hord testified that the first “red flag” occurred when Ms. Wyatt entered the room and found Resident 1 exposed and S.B. responded belligerently.  P. Ex. 13 at 6. 

I do not credit Ms. Hord’s testimony.  Ms. Hord’s opinion is based on Nurse Evans’s alternative factual scenario that she did not smell alcohol until the second time she entered the room rather than when she initially entered the room.  As stated above, Nurse Evans was clear that she smelled alcohol when she initially entered the room and only came up with an alternative scenario when she, with the express help of counsel, prepared her testimony for this case.  Ms. Hord’s decision to base her opinion on testimony that contradicted all of Nurse Evans’s prior statements and the findings of the facility’s five-day investigation report undermines her own testimony. 

In addition, Ms. Hord’s testimony skipped over S.B.’s state of undress.  She also trivialized Resident 2’s warning that S.B. was “messing with her” by saying that could mean anything, including “fiddling with her pillows or blankets, or was playing with the air conditioning.”  P. Ex. 13 at 6.  By doing this, Ms. Hord displayed the same bias against cognitively impaired residents as Nurse Evans did on October 25, 2014.  Of all the people in Petitioner’s facility that day, Resident 2 appears to have been the only one concerned for Resident 1’s safety and tried, at potential risk to herself, to warn Nurse Evans quietly. 

Finally, I find Ms. Hord’s testimony of little use because she testified that “[a]s I understand it, Resident # 1’s son actually had no relevant criminal record, and no record of alcohol-related offenses.”  P. Ex. 13 at 4.  Petitioner’s own exhibits contradict her testimony because they show that S.B. pleaded guilty on August 13, 2012, to public intoxication and disorderly conduct, and pleaded guilty on September 24, 2014 (a mere month before the October 25 incident) to theft of property.  P. Ex. 12 at 5. 

Petitioner also put forward opinion testimony from Brenda Barton, RN, a nurse employed by the corporate entity that owns Petitioner’s facility.  Unsurprisingly, Ms. Barton’s opinion is that staff acted appropriately in relation to the October 25 incident.  P. Ex. 14. 

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I do not give weight to Ms. Barton’s opinion that Petitioner’s staff acted properly.  Ms. Barton relied on Nurse Evans’s alternate version of the facts, i.e., that she only smelled alcohol during the second time she entered Resident 1 and 2’s room.  P. Ex. 14 at 4.  Again, unsurprisingly, Ms. Barton also considered it appropriate for Nurse Evans to leave the room the first time to check Resident 2’s chart to determine cognitive status after Resident 2 stated that “he’s messing with her,” instead of taking the claim seriously.  P. Ex. 14 at 4.  She stated:  “Again, so far as I know, there was nothing at that time that would be a ‘red flag’ for abuse, or any reason why she should have thought it might be dangerous to leave the son alone with his mother and her roommate.”  P. Ex. 14 at 4.  But, of course, there was another “red flag,” because Nurse Evans had smelled alcohol in the room during the first time she entered the room, and Nurse Evans did not know S.B. was Resident 1’s son.  

Even if Ms. Barton were aware that there were two obvious red flags on Nurse Evans’s first trip into the room, Ms. Barton’s opinion would likely not have been affected because she testified that “when Nurse Evans returned and smelled alcohol, again I think it was completely reasonable for her to seek assistance from her supervisor.”  P. Ex. 14 at 4.  Interestingly, at this point in her testimony, Ms. Barton does not try to say the smell of alcohol was not a “red flag.”  Indeed, she actually now considered this to be a “potentially dangerous” situation.  P. Ex. 14 at 4.  However, even when there is a potentially dangerous situation, she thought it proper to leave cognitively and physically impaired residents alone because Ms. Barton said that nurses should not deal with potentially dangerous situations alone but should get assistance.  P. Ex. 14 at 4-5.  Ms. Barton’s view directly contradicts the training that Petitioner provided to its staff regarding abuse; therefore, I do not credit it.  See CMS Ex. 17 at 23.  Although Ms. Barton states that she “would not advise or expect a nurse to confront a visitor who had been drinking – and thereby possibly trigger or escalate a situation – by herself,” Ms. Barton fails to mention that Nurse Evans could have called for assistance while remaining in the room.  P. Ex. 14 at 4-5. 

Ms. Barton also testified that a visitor who had been drinking alcohol is not, in itself, a “red flag” for potential abuse.  This is because “[i]t actually is not unusual for impaired or inebriated visitors to come to nursing facilities, as some residents have family members or other visitors who drink, or who fortify themselves for visits by drinking, and I am not aware of any regulatory guidance or reason to believe that all drinkers are potential predators, or pose the potential for harm to residents.”  P. Ex. 14 at 5.  I reject Ms. Barton’s view because the issue is not whether all intoxicated people are likely to become abusive but rather whether intoxicated people have a higher likelihood of doing so.  Further, this case does not involve a person who had a drink to “fortify” himself for a visit with a relative, but a person who was so drunk that a police officer arrested him for public intoxication because he was staggering out of the facility and had bloodshot eyes. 

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Ms. Barton’s disregard for the context of the situation and facts of the October 25 incident make her opinions of little value in this adjudication. 

Finally, Petitioner hired an outside expert witness to testify in this case.  I also give little weight to her opinion. 

Petitioner’s expert witness, Annette O’Brien, R.N., summarized Nurse Evans’s nursing note related to the October 25 incident and pointed out that Nurse Evans said there was a smell of alcohol, S.B. was moving about with his pants unzipped, and Resident 2 stated that S.B. is “messing with her.”  Ms. O’Brien indicated that Resident 2 was only an “ear-witness” because the curtain was drawn between the two residents and this comment “could have been referring to some more benign activity.”  P. Ex. 17 at 13.  While it is possible that it could have, Nurse Evans did not know that to be the case. 

Interestingly, Ms. O’Brien concedes in relation to an intoxicated visitor:  “I have experienced similar situations in which the impaired/mentally-disturbed person can become very unpredictable and unmanageable.”  P. Ex. 17 at 13; accord CMS Ex. 21.  However, despite her experience, Ms. O’Brien opines that Nurse Evans correctly left Residents 1 and 2 alone twice with an intoxicated man despite Resident 2 expressing concern that the man was “messing with” Resident 1.  P. Ex. 17 at 14. 

Ms. O’Brien notes without comment that, Nurse Evans, having left Resident 1 alone with S.B. for a second time, resulted in Ms. Wyatt arriving in the room to Resident 1 now naked from the waist down.  P. Ex. 17 at 14.  Neither this nor S.B.’s state of undress seemed to matter to her. 

I reject Ms. O’Brien’s opinion that staff, in particular Nurse Evans, acted “commendably,” as Ms. O’Brien put it.  P. Ex. 17 at 17.  Such a conclusion shows the bias of an expert paid to produce testimony.  It is not commendable to leave an intoxicated male visitor in a room with two cognitively and physically impaired residents, especially when one of the residents warned that the male was “messing with” the other resident. 

Ms. O’Brien ends that “there is little more that they [Petitioner] could have done or should have done to deal with an exceptionally uncommon and unexpected event.”  P. Ex. 17 at 16.  This opinion is perplexing because Ms. O’Brien failed to apply basic common sense, which is that Nurse Evans could and should have remained in Residents 1 and 2’s room while calling for assistance from other staff.  Given that two of Petitioner’s witnesses have stated that it is not unusual for visitors to arrive intoxicated, Nurse Evans should have been prepared to deal with this situation and should understand that she is expected to protect the residents. 

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C.  Timing of the Abuse and Potential for More than Minimal Harm

The record does not definitively provide an exact time when S.B. engaged in nonconsensual sexual intercourse, and thus abuse, with Resident 1.  During these proceedings, Petitioner has posited that if there had been any abuse, it occurred before Nurse Evans entered Residents 1 and 2’s room because Resident 2 gave the warning that S.B. was “messing with her” during Nurse Evans’s first entry into the room.  Based on the evidence in this case, I find it more likely than not that S.B. engaged in the nonconsensual intercourse between the time Nurse Evans left the room for the second time and Nurse Wyatt entered.  In the alternative, should the nonconsensual intercourse have occurred before Nurse Evans entered the room, I still conclude that Nurse Evans’s actions put Residents 1 and 2 at risk for more than minimal harm by leaving the room twice with a partially dressed, intoxicated man whom Nurse Evans did not know, but who Resident 2 had accused of “messing with” Resident 1. 

As found in detail above, S.B. was first seen with his zipper down, holding up his pants, sometime between 3:30 and 4:15 p.m. when CNA Smoot entered the room.  Further, an adult diaper was on the floor that probably belonged to Resident 1.  CNA Smoot checked on Resident 2, and CNA Smoot did not report any warning from Resident 2.  Therefore, at this point, the evidence only supports that S.B. was in preparation to engage in intercourse with Resident 1. 

Between 4:00 and 5:00 p.m., Nurse Evans entered the room, and Resident 2 provided the warning that S.B. was “messing with” Resident 1.  During the survey, Resident 2 told Ms. Freeman that S.B. had been bothering Resident 1, and Resident 1 kept saying that she wanted to sleep.  Resident 2 thought from these interactions that S.B. was Resident 1’s husband.  The phrase “messing with” has some ambiguity; however, based on Resident 2’s subsequent comments, it is unlikely to have meant nonconsensual intercourse.  This conclusion is consistent with Nurse Evans’s statements that she did not notice anything amiss with Resident 1 during either entry into the room, i.e., Resident 1 was under the covers and resting in her bed. 

As I found above, it took longer than two to three minutes for Nurse Evans to leave the room, call DON Dawson, walk across to the other end of the facility while having to pass the front of the building, talk to Nurse Wyatt, for Nurse Wyatt to call and speak with DON Dawson on the phone, and for Nurse Wyatt and Nurse Evans to walk back across the entire facility to Residents 1 and 2’s room.  In that time, S.B. had removed Resident 1’s sheet/blanket, and Resident 1 was naked from the waist down.  Due to S.B.’s state of undress, Nurse Wyatt told him to leave the facility.  S.B. then asked what he was being accused of and protested that he was not a pedophile. 

Given his highly intoxicated state, S.B.’s odd denial suggests that he had been engaging in inappropriate sexual behavior (as he later confessed).  Significantly, once S.B. left,

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Nurse Wyatt checked on Resident 2, who now reported that Resident 1 had been saying “Stop, Stop, Stop.”  Resident 1’s protestation indicated that S.B. likely moved on from “messing with her” to engaging in nonconsensual intercourse. 

I note that the police detective who investigated this case and interviewed S.B. came to this same conclusion.  His report states the following: 

The suspect went on to state that he climbed into bed with his mom and she “touched him” and then they had intercourse.  Det. Short asked the suspect if his mother remembered them having sex to which he stated she did not as she was heavily medicated.  Det. Short asked if he ejaculated inside of her to which he stated he did not.  Det. Short asked the suspect if he jumped off of her when the nurse came in and he looked away without saying anything else. 

CMS Ex. 8 at 5 (emphasis added). 

Although S.B. did not confirm the specific time that he had nonconsensual intercourse with Resident 1, his silence is suspicious.  The detective’s logical thinking, that S.B. was interrupted in his nonconsensual intercourse by Nurse Wyatt, makes sense given that S.B. had not completed his sexual act.  Nurse Wyatt, finding Resident 1 lying uncovered in bed, would be consistent with S.B. having too little time to both separate himself from Resident 1 and cover her up again. 

Given that actual harm occurred, there is no doubt, based on my analysis above, that Petitioner was in noncompliance with § 483.13(b).  The statute requires Petitioner to promote and protect each resident’s right to be free from abuse.  Petitioner failed to act on staff knowledge that S.B. visited Resident 1 in an intoxicated state before October 25, and, on October 25, staff continually failed to notice warning signs that ought to have been investigated or taken more seriously.  Nurse Evans should have called for assistance based on the warning signs during her first entry into the room.  By entering and leaving the room twice, S.B. may not have thought she would not return a third time. 

Even in Petitioner’s alternative scenario, where S.B. engaged in nonconsensual intercourse before Nurse Evans arrived in the room, there was still a risk of more than minimal harm due to staff conduct.  It is unlikely that S.B. engaged in nonconsensual intercourse before CNA Smoot was in the room because Resident 2 gave no warning of it.  However, it was by this time that other warning signs had already begun to surface.  CNA Smoot, encountering a partially disrobed man, ought to have reported the situation.  Before that, CNA Colley does not appear to have reported the smell of alcohol in the room.  But most important, if S.B. had engaged in nonconsensual intercourse before Nurse Evans arrived for the first time, there was still a risk to Residents 1 and 2 given

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that S.B. was intoxicated and still present.  Nurse Evans left them alone with him.  After doing that, Resident 1 was found naked from the waist down in S.B.’s presence when Nurse Wyatt arrived, indicating a serious and improper situation, which is suggestive of further sexual abuse. 

Nurse Evans failed to react properly and remain with the residents to ensure their safety based on the warning signs.  Certainly, by her second entry into the room, Nurse Evans knew something was wrong, but left the room anyway.  Nurse Evans admitted during the survey that she had been wrong to leave.  When asked by Surveyor Horne if she would do anything differently, Nurse Evans stated that she would not leave the room and would tell someone to go get help.  CMS Ex. 9 at 15. 

Nurse Evans’s answer, that she would have stayed in the room, is exactly right based on the training material that Petitioner provided to staff.  See CMS Ex. 20 at ¶ 3 (Surveyor Freeman, an RN, testified that “[p]art of any nurse’s job is to help prevent the abuse of her patients.”).  In those materials, there is a hypothetical scenario where a housekeeper believed that a cognitively impaired resident might be suffering sexual abuse in the television room by a male resident.  The housekeeper left the scene to find the charge nurse.  However, the training article indicated that this was incorrect.  The training article stated that “rather than going straight to the charge nurse in this situation, [the housekeeper] should have immediately intervened and then alerted nursing to the situation.  It is important to remember that anyone who witnesses any act of abuse must immediately intervene and protect the resident from further abuse.”  CMS Ex. 17 at 23. 

Resident 2 warned Nurse Evans something was wrong, and Nurse Evans knew S.B. smelled of alcohol.  When she returned the first time, S.B. was partially undressed.  Nurse Evans should have stayed and protected the residents.  Failing to do so put the residents at risk for more than minimal harm. 

D.  Immediate Jeopardy

CMS determined that the level of Petitioner’s noncompliance with 42 C.F.R. § 483.13(b) was at the immediate jeopardy level.  Immediate jeopardy exists if an SNF’s noncompliance has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.  42 C.F.R. § 488.301. 

Significantly, an ALJ must uphold CMS’s determination that an SNF’s noncompliance caused, or was likely to cause, serious injury, harm, impairment, or death to a resident so long as that determination is not clearly erroneous.  42 C.F.R. § 498.60(c)(2). The DAB has summarized the SNF’s burden when challenging the level of noncompliance as follows: 

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In reviewing an immediate jeopardy determination, the ALJ (and the Board) must defer to CMS’s determination absent a showing of clear error.  42 C.F.R. § 498.60(c)(2).  This regulatory standard means, as the Board has explained, that a facility bears a heavy burden in challenging the assessment of immediate jeopardy, which, of necessity, includes an element of judgment.  Meadowwood Nursing Ctr., DAB No. 2541, at 14 (2013); Britthaven of Havelock, DAB No. 2078, at 29 (2007), and cases cited therein.  The Board has also long held that immediate jeopardy need not be based on the occurrence of actual harm but, rather, requires only the “likelihood” that serious harm may result from the noncompliance.  Crawford Healthcare and Rehab., DAB No. 2738, at 17 (2016); Woodstock [Care Ctr.], DAB No. 1726, at 39 [(2000)]. 

Neighbors Rehab. Ctr., LLC, DAB No. 2859 at 18 (2018).  Further the DAB has provided elucidation on the clearly erroneous standard: 

The “clearly erroneous” standard means that CMS's immediate jeopardy determination is presumed to be correct, and the burden of proving the determination clearly erroneous is a heavy one.  See, e.g., Maysville Nursing & Rehabilitation Facility, DAB No. 2317, at 11 (2010); Liberty Commons Nursing and Rehab Center - Johnston, DAB No. 2031, at 18 (2006), aff’d Liberty Commons Nursing and Rehab Ctr. - Johnston v. Leavitt, 241 F. App'x 76 (4th Cir. 2007).  When CMS issued the nursing facility survey, certification, and enforcement regulations, it acknowledged that “distinctions between different levels of noncompliance . . . do not represent mathematical judgments for which there are clear or objectively measured boundaries.”  59 Fed. Reg. 56, 116, 56, 179 (Nov. 10, 1994).  “This inherent imprecision is precisely why CMS’s immediate jeopardy determination, a matter of professional judgment and expertise, is entitled to deference.”  Daughters of Miriam Center, DAB No. 2067, at 15 (2007). 

Mississippi Care Ctr. of Greenville, DAB No. 2450 at 15 (2012). 

In the present case, the DAB stated that there must be fact finding to support CMS’s determination before CMS’s determination of immediate jeopardy can be upheld.  The DAB stated: 

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In reviewing an immediate jeopardy determination, the reviewing body must consider the facts upon which CMS relied in making the determination, as well as any evidence presented at the hearing.  Because the definition of “immediate jeopardy” requires that there be some causal connection between the facility’s noncompliance and the existence of serious injury or a threat of injury, the nature and circumstances of the facility’s noncompliance are of obvious importance to the evaluation. 

Franklin, DAB No. 2869 at 14 (quoting Spring Meadows Health Care Ctr., DAB No. 1966 at 36 (2005) (citations omitted)). 

When remanding this case, the DAB stated the following: 

The ALJ correctly stated that Petitioner has a heavy burden because section 498.60(c)(2) requires the ALJ and the Board to defer to CMS’s immediate jeopardy determination absent clear error.  Id. at 19-20.  Nevertheless, the ALJ’s analysis is not fully consistent with the standard for immediate jeopardy, which requires the likelihood of serious harm.  “Immediate jeopardy” is a “situation in which the [facility’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.  Immediate jeopardy need not be based on the occurrence of actual harm but, rather, requires only the “likelihood” that serious harm may result from the noncompliance. Crawford Healthcare & Rehab., DAB No. 2738, at 17 (2016); see also Franklin Care Ctr., DAB No. 2869, at 9 (2018) (An immediate jeopardy deficiency is one that creates more than a “potential” for or possibility of serious harm or death; it must have either “caused” actual serious harm, impairment, or death, or have been “likely to cause” that result.); Daughters of Miriam Ctr., DAB No. 2067, at 10 (2007) (The term “likely” means “probable” and “reasonably to be expected,” and suggests that the degree of probability that an event may occur is greater than “possible” or “potential.”); Innsbruck HealthCare Ctr., DAB No. 1948, at 5 (2004) (“[M]ere risk” or possibility of harm is not equivalent to a likelihood of harm.). 

Golden, DAB No. 2937 at 24. 

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In this case, Petitioner argues that CMS’s basis for immediate jeopardy is primarily based on a false premise that the police said S.B. confessed to rape and incest and on Resident 2’s recollection of events despite her cognitive limitations.  P. Br. at 5-6.  Petitioner asserts that CMS’s premise as to the risk that S.B. posed prior to October 25 was colored by CMS’s knowledge of S.B.’s alleged confession, causing CMS to interpret facility staff statements about S.B. prior to October 25 as evidence that Petitioner knew he was a threat.  P. Br. at 7.  Petitioner also states that even accepting that the DAB believed that Nurse Evans leaving Residents 1 and 2 alone with S.B. for a few moments created a risk of potential harm, it does not mean that the risk posed likely death or serious harm.  P. Br. at 7-8.  Petitioner further argues that there must be an evidentiary foundation for what serious harm is likely and not simply possible harm.  What may have happened due to Nurse Evans’s actions would be mere speculation.  P. Br. at 9.  Finally, Petitioner argues that “the [DAB] has made clear that ‘immediate jeopardy’ cannot be sustained simply because there is some hypothetical possibility that some intoxicated person might behave badly.”  P. Br. at 24. 

In this decision, I have found that Resident 1 was subject to abuse because S.B. engaged in nonconsensual sexual intercourse with her while they both were at the facility.  I have also concluded that Petitioner’s conduct was noncompliant with § 483.13(b) because Petitioner’s staff did not properly promote and protect Resident 1’s right to be free from abuse while at Petitioner’s facility.  I further found that, under the regulatory definition of “abuse,” S.B. willfully inflicted injury that caused pain, harm, and/or anguish to Resident 1.  In doing so, I pointed to the record that indicated that Resident 1 complained of pain in her back and vaginal area shortly after S.B. left, and the results of the emergency room’s sexual assault examination showed bruising and scratches in the vaginal and pelvic area.  Finally, I found that, based on the record as a whole, it is more likely than not that S.B. engaged in nonconsensual intercourse with Resident 1 after Nurse Evans left Resident 1 and 2’s room for the second time but before Nurse Wyatt appeared in the room.  As a result, it is clear that Petitioner’s deficient conduct caused serious injury or harm to Resident 1. 

Forced sexual intercourse would necessarily cause serious injury or harm to an individual.  Petitioner’s scholarly article provides a useful description of the results of sexual assault: 

Physical signs and symptoms of sexual assault include vaginal and rectal bleeding, vaginal and rectal discharge, genital and rectal scarring, sexually transmitted diseases, and urinary irritations.  Other signs of physical abuse, which may be related to the sexual assault, include bruises, abrasions, lacerations, fractures, general body soreness, fatigue, and rope burns, which could occur if the victim was restrained. 

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Emotional signs and symptoms include denial, humiliation, flashbacks, intense fear, guilt, anxiety, depression, feelings of hopelessness and helplessness, phobias, and rage.  These conditions are symptomatic of post-traumatic stress disorder or rape trauma syndrome. 

Because victims of sexual abuse are likely to be cognitively impaired, practitioners must consider additional effects of abuse.  Often cognitively impaired individual are “unable to describe the assault event, the fears, or the feelings of helplessness.”  This makes it more difficult to provide these victims with necessary services because they are unable to express their needs.  

P. Ex. 11 at 17. 

As indicated earlier, should the timing of S.B.’s nonconsensual intercourse with Resident 1 be questioned, and the abuse be found to have occurred at a time earlier in S.B.’s visit, I still conclude that immediate jeopardy occurred.  Had S.B. engaged in nonconsensual intercourse before Nurse Evans arrived in Residents 1 and 2 room, Nurse Evans’s actions in leaving Residents 1 and 2 alone with S.B. still establish that CMS was not clearly erroneous when it determined that serious injury or harm would likely occur.  S.B. was very intoxicated and, in this scenario had already engaged in sexual abuse of Resident 1.  S.B. was continuing to act strangely, leaving his pants unbuckled and unzipped while being intoxicated.  Resident 2 gave Nurse Evans a warning about S.B. “messing with her.”  These do not appear to be the actions of a sated individual.  In fact, when Nurse Wyatt appeared in the room, she caught S.B. engaging in sexual behavior because he had exposed Resident 1’s genitals.  Before Nurse Wyatt arrived, Resident 2 told S.B. to “Stop, Stop, Stop.”  In this scenario, further sexual abuse was likely.  But for Nurse Wyatt appearing, it is likely that worse would have transpired.  Therefore, even if S.B. engaged in nonconsensual intercourse at some point in the afternoon of October 25 before Nurse Evans arrived in the room, there was still an immediate jeopardy situation based on Nurse Evans’s subsequent actions. 

2.  Petitioner was not in substantial compliance with 42 C.F.R. § 483.13(c), and CMS’s determination that this noncompliance immediately jeopardized the health and safety of residents is not clearly erroneous. 

The regulations require SNFs to “develop and implement written policies and procedures that prohibit the mistreatment, neglect, and abuse of residents.”  42 C.F.R. § 483.13(c). 

As stated in more detail in Finding of Fact 1 above, Petitioner had a written anti-abuse policy, revised on October 24, 2013, that indicated Petitioner would take appropriate

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steps to prevent abuse, investigate incidents, and, if a suspected abuser is a visitor to the facility, that Petitioner will immediately take all appropriate measures to secure the safety of the resident, including disallowing contact between the resident and the suspected abuser.  CMS Ex. 16 at 1, 4-5, 7. 

The SOD indicated that Petitioner’s deficient behavior involved a failure by CNA Smoot and LPN Evans to implement Petitioner’s anti-abuse policy.  CMS Ex. 1 at 22.  The SOD primarily relied on the facts related to the § 483.13(b) deficiency to support this deficiency and that the deficient behavior immediately jeopardized residents.  CMS Ex. 1 at 22-29. 

CMS argues that Petitioner’s anti-abuse policy provides little specific information as to how staff will prevent abuse.  CMS Br. at 19.  Despite this, Surveyor Horne testified that the survey did not result in any concern over the adequacy of the policy.  Tr. 147.  Therefore, while CMS appears to be correct, the only question for me to resolve is whether Petitioner implemented the policy. 

Because Petitioner’s anti-abuse policy involved taking appropriate steps to prevent abuse and to immediately remove a visitor who was suspected of abuse, I conclude that Petitioner failed to implement its policy.  As indicated in the SOD, and discussed at length above, CNA Smoot and LPN Evans did not take action to prevent the abuse of Resident 1 by S.B., despite several warning signs.  For the same reasons as discussed concerning the § 483.13(b) deficiency above, I also conclude that CMS’s determination of immediate jeopardy related to this deficiency is not clearly erroneous. 

3.  Petitioner was not in substantial compliance with 42 C.F.R. § 483.13(c)(3). 

In its prehearing brief, CMS stated that it was giving notice that it now alleged that Petitioner was noncompliant with 42 C.F.R. § 483.13(c)(3).  CMS Prehearing Br. at 8 n.3.  That regulation requires that “[t]he facility must have evidence that all alleged violations are thoroughly investigated.”  42 C.F.R. § 483.13(c)(3). 

The basis for CMS’s allegation was that Petitioner did not identify all facility staff with relevant information.  CMS Prehearing Br. at 10.  CMS stated more specifically that Petitioner’s five-day investigation report only indicated interviews with three staff members:  Nurse Evans, Nurse Wyatt, and Nurse Brown.  CMS Prehearing Br. at 12.  CMS asserted that Petitioner did not interview other employees who had been in Residents 1 and 2’s room while S.B. was present, such as CNA Smoot and CNA Colley.  CMS Prehearing Br. at 11-12. 

CMS notified Petitioner of this new deficiency in its brief and cited DAB cases for the proposition that “CMS may raise, and the ALJ may sustain, regulatory citations not contained in the original statement of deficiencies, as long as the Petitioner has adequate

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notice of the factual findings on which the citations are based.”  CMS Prehearing Brief at 8 n.3.  Petitioner responded to CMS’s request to add the § 483.13(c)(3) deficiency by arguing that CMS had not stated why it wanted to add the new deficiency and that “the basis for such a charge is not readily apparent, as the staff cooperated with the police investigation, including providing statements, and the Resident never returned.”  P. Prehearing Br. at 25. 

The regulations permit an ALJ to allow new issues to be adjudicated in a case on request of a party.  42 C.F.R. § 498.56(a)(1).  CMS sought to add a deficiency based on narrow alleged facts, i.e., Petitioner did not interview all potential witnesses.  CMS was clear on that point.  In the Notice of Hearing in this case, I informed the parties I would consider whether Petitioner was in substantial compliance with § 483.13(c)(3). 

However, in the prehearing brief, CMS did not clearly state or give Petitioner notice that the deficiency posed immediate jeopardy, as CMS now indicates in its post-hearing brief.  CMS Br. at 22.  Because there was insufficient notice of this, I will only review this deficiency as to whether there was substantial compliance.⁸ 

In post-hearing briefing, CMS argues that Petitioner’s anti-abuse policy requires Petitioner to conduct an investigation into allegations of abuse, including “interviews of employees . . . who may have knowledge of the alleged incident.”  CMS Br. at 20; CMS Ex. 16 at 5.  CMS specified that Petitioner failed to interview four other staff members who had contact with S.B. on October 25, 2014, i.e., Nurse Brown, Nurse Amy, CNA Colley, and CNA Smoot.  CMS Br. at 20-21.  CMS added that there was also no evidence that Petitioner tried to understand staff failures, before October 25, to follow its policy to have an intoxicated visitor removed or supervised.  CMS Br. at 20-21.  Finally, CMS stated that without a thorough investigation, Petitioner’s ability to protect residents from abuse was compromised.  CMS Br. at 22. 

Petitioner did not address these arguments specifically in its post-hearing brief.  However, looking at Petitioner’s five-day report of its investigation, Petitioner’s administrator took statements from Nurse Evans, Nurse Wyatt, Nurse Brown (although the statement is brief, Nurse Brown’s more detailed nursing note was also reviewed), and interviewed several residents in the vicinity of Resident 1 and 2’s room.  The administrator also obtained Resident 1’s medical records from the facility and from the hospital emergency room.  Further, the administrator contacted the police department and learned of the results of their criminal investigation (i.e., that S.B. confessed).  The administrator drafted a detailed report citing the documents he collected.  CMS Ex. 6. 

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Despite an otherwise good job, the administrator did not comply with Petitioner’s anti-abuse policy and interview all employees with knowledge of the alleged incident of abuse.  CMS Ex. 16 at 5.  I conclude that Petitioner failed to produce sufficient evidence that it conducted a thorough investigation based on its failure to find and interview all employees who had entered Residents 1 and 2’s room on October 25 while S.B. was present.  In particular, Petitioner inexplicably failed to interview CNA Smoot and CNA Colley. 

As discussed in Finding of Fact 7, CNA Colley entered Resident 1 and 2’s room on October 25, 2014, shortly after S.B. arrived.  She thought she smelled alcohol in the room.  As discussed in Finding of Fact 9, CNA Smoot entered Resident 1 and 2’s room shortly before Nurse Evans entered for the first time.  CNA Smoot witnessed S.B. having to hold his pants at the waist with his zipper down.  She also noticed an adult diaper on the floor.  

Surveyor Horne testified that Petitioner failed to conduct a thorough investigation, specifying that Petitioner should have interviewed CNA Smoot.  CMS Ex. 19 ¶ 22.  Surveyor Horne agreed on cross-examination that Petitioner did an investigation and staff provided statements to the police, and those statements were included in the investigation.  Tr. 133-134.  But Surveyor Horne believed it inadequate because it did not include an interview with CNA Smoot.  Tr. 134. 

Surveyor Horne testified that the state agency quality assurance review ultimately decided that Petitioner should not be cited for failing to adequately investigate the October 25 incident because the facility’s investigation and the state agency’s investigation both came to the same conclusion – sexual abuse had occurred.  Tr. 135.  However, Surveyor Horne appears to have disagreed with that decision because she testified that a facility needs to conduct a thorough investigation to find the root cause and avoid the problem happening again.  Tr. 164. 

I agree with Surveyor Horne that Petitioner’s failure to try to learn information from staff who had encountered S.B. and Resident 1 shortly before Nurse Evans entered Residents 1 and 2’s room was necessary for a thorough investigation of the incident on October 25.  Petitioner had no records it conducted all necessary interviews.  Therefore, I conclude that Petitioner was not in substantial compliance with 42 C.F.R. § 483.13(c)(3). 

4.  Petitioner was not in substantial compliance with 42 C.F.R. § 483.75, and CMS’s determination that this noncompliance immediately jeopardized the health and safety of residents is not clearly erroneous. 

The Social Security Act and the regulations require the following: 

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A facility must be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident. 

42 U.S.C. § 1395i-3(d)(1); 42 C.F.R. § 483.75. 

The SOD specified that Petitioner was is noncompliance with 42 C.F.R. § 483.75 and that this noncompliance immediately jeopardized the health and safety of residents. 

The SOD summarized the factual premise for this deficiency as the failure of Petitioner’s administrator and DON to ensure that facility staff were aware of what measures to take when a male visitor in a resident room is only partially dressed, acts erratically with the smell of alcohol, and one of the residents repeatedly states that the visitor is messing with the other resident.  The SOD stated that the deficient practice affected one resident reviewed for sexual abuse and that it posed an immediate threat to the health and safety of Resident 1 as it was likely to cause serious harm, injury, impairment, or death.  CMS Ex. 1 at 31-32.  The SOD also stated that a review of the training records of the facility’s most recent sexual abuse training before the October 25 incident, which was held on October 13, 2014, did not indicate how staff were to immediately secure the safety and well-being of a resident when the staff suspects abuse.  CMS Ex. 1 at 32-33.  The SOD, therefore, relied on the facts related to the incident involving S.B.’s sexual abuse as the general background for showing that Petitioner’s staff were insufficiently trained and did not know what measures to take in the situation presented by S.B. on October 25. 

CMS similarly argues in briefing that evidence of Petitioner’s failure to properly administer the facility can be seen by the fact that facility staff members, who came into contact with S.B. on October 25, failed to act appropriately to protect the residents in the facility.  CMS Br. at 12.  Although staff members noticed the smell of alcohol in Resident 1 and 2’s room and/or saw S.B. in a state of undress, staff continually left Residents 1 and 2 alone with S.B.  CMS Br. at 12. 

CMS points to Nurse Evans’s statements to Surveyor Horne, which Nurse Evans signed, indicating that she became uncomfortable based on the smell of alcohol and S.B. holding his open pants up.  CMS quotes Nurse Evans as saying she “zoned out” and thought that it more effective to leave and get her supervisor than call for help.  CMS says that Nurse Evans also did not want to confront S.B. alone, but left Residents 1 and 2 in that situation alone.  CMS Br. at 13. 

CMS also discusses CNA Smoot’s statements to Surveyor Horne in which she said she made a mistake leaving the room and shutting the door, but that she did not know what to think and did not want to think about it.  CMS Br. at 13. 

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CMS makes the point that DON Dawson instructed Nurse Evans to get Nurse Wyatt rather than call for Nurse Wyatt and return to Resident 1 and 2’s room to monitor the safety of the residents.  As CMS stated, DON Dawson thought the situation serious enough to tell Nurse Evans to call the police but not to tell Nurse Evans to watch S.B. and the residents.  CMS Br. at 14.  Nurse Evans could have used the call button in the room, yelled for help, or used her own personal cell phone to call for help.  CMS Br. at 15. 

CMS argues that even Nurse Wyatt, who ended S.B.’s visit, failed to have anyone escort S.B. out of the building, thus endangering other residents if S.B. had decided to enter another room instead of leaving.  CMS Br. at 15-16.  Based on all of the errors of Petitioner’s staff, CMS argues that Petitioner failed to properly supervise staff.  CMS Br. at 17. 

CMS also says that Petitioner failed to adequately train staff.  CMS Br. at 17.  CMS asserts that the scholarly article submitted by Petitioner indicates that training is the best way to deter abuse, which should include prevention and intervention strategies, reporting guidelines, and preservation of evidence.  However, a review of Petitioner’s training materials in the record lacks concrete steps to protect residents from abuse.  Conversely, the training materials for staff provided after October 25 required staff to immediately secure the safety of residents, remove perpetrators from the victim, use the call light, holler for assistance, and never to leave the resident alone with the perpetrator.  CMS Br. at 16. 

CMS also considers Petitioner’s failure to deal with S.B.’s visits to the facility while intoxicated as further evidence of a failure in administration.  Petitioner allegedly had a policy to remove intoxicated visitors from the facility; however, this policy was not used to remove S.B. before October 25.  CMS Br. at 17-18. 

Petitioner argues that it was in substantial compliance with § 483.75 because it had an anti-abuse policy that Surveyor Horne testified was sufficient.  Further, Petitioner states that it had trained its staff on resident abuse just days before the October 25 incident.  P. Br. at 20. 

Regarding Nurse Evans’s actions, Petitioner asserts that no abuse prevention policy can cover all conceivable circumstances and that SNFs should not train staff to be overly suspicious of visitors.  P. Br. at 20.  Nurse Evans needed to exercise her professional judgment because training and policies cannot provide all she would need to know.  P. Br. at 21.  Petitioner argues: 

It simply does not logically follow that any time a staff member misinterprets a situation, or even miscalculates the potential risk posed by an uncomfortable or unfamiliar interaction with a visitor, that the Center’s training, in itself,

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must have failed or was inadequate.  For instance, it is one thing to cite inadequate training where a surveyor interviews many staff members who are unsure of, say, basic reporting requirements, or to whom to report suspected abuse; it is quite another to say that the Center’s administration failed because surveyors – or the Court or the [DAB] – conclude that Nurse Evans made a poor judgment or could have handled a situation differently. 

P. Br. at 21-22. 

I agree in large measure with CMS’s arguments.  The reaction that staff had to S.B. on October 25 shows staff members were not prepared for handling situations when visitors display warning signs that something is wrong.  

In its decision to remand this case, the DAB stated that “[a] facility provides such training, supervision, and direction [of its staff] by establishing facility resident care policy, educating its staff on that policy, and ensuring that the policy is implemented and followed.”  Golden, DAB 2937 at 21.  The DAB noted that the record had evidence that there were gaps between Petitioner’s anti-abuse policy and how staff acted on October 25.  Golden, DAB 2937 at 22.  The DAB also noted that the evidence concerning employee training does not appear to indicate exactly what training materials were used for the October 13, 2014 training.  Golden, DAB 2937 at 22.  

As stated in Finding of Fact 1 in this decision, Petitioner had an anti-abuse policy.  The most fundamental provision in the policy was “to take appropriate steps to prevent the occurrence of abuse.”  CMS Ex. 16 at 1.  Under the heading of “Prevention,” the anti-abuse policy requires staff, families, and employees to report incidents of suspected abuse.  CMS Ex. 16 at 4.  Under the heading of “Identification,” the anti-abuse policy states that “[r]eporting of suspected alleged violations is required of every employee.”  CMS Ex. 16 at 4.  Under the heading of “Reporting Alleged Violations,” the policy makes it the responsibility of employees “to immediately report” any alleged abuse.  CMS Ex. 16 at 7; see CMS Ex. 16 at 10.  The anti-abuse policy provided the following for visitors suspected of abuse:  “If the suspected perpetrator is a . . . visitor . . . the [Executive Director] or [Director of Rehabilitation] shall take all appropriate measures immediately to secure the safety and well-being of the resident.  Said measures may include disallowing contact between the resident and alleged perpetrator while an investigation is conducted.”  CMS Ex. 16 at 4-5. 

Although Petitioner stated that Nurse Evans had to apply this policy in the specific situation she faced on October 25, it appears that CMS is correct that this policy has few specific requirements to ensure the safety of residents.  While Surveyor Horne may say

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the policy is adequate, it is vague on instructing staff exactly what the “appropriate steps” are to prevent abuse.  This is likely where training would fill in the gaps. 

As stated in Finding of Fact 2, the facility’s anti-abuse policy required annual training for all staff on the policy.  As luck would have it, Petitioner provided this annual training right before the October 25 incident.  CMS Ex. 17 at 33-35; see also P. Ex. 4.  However, the specific content of this training is unclear because most of the documents provided appear to be from training provided after October 25, 2014.  Therefore, I am unable to credit that the training was adequate because Petitioner’s staff, who encountered S.B. on October 25, failed to identify obvious warning signs and to report them or otherwise act to ensure resident safety.  Further, Ms. Hord’s testimony supports the notion that Petitioner’s training would not emphasize action.  She testified at the “unfairness and disruption caused by unwarranted public accusations of sexual abuse, so we want to make sure that suspicions of abuse are well-founded and not purely speculative.”  P. Ex. 13 at 3.  Unfortunately, on October 25, staff waited until the possibility of abuse was no longer speculative, and had occurred, before taking action to protect residents. 

Therefore, I conclude that Petitioner was in noncompliance with § 483.75.  Further, I conclude that CMS’s determination, that this deficiency caused or was likely to cause serious harm or injury, was not clearly erroneous.  Like the immediate jeopardy analysis regarding § 483.13(b), the action/inaction of staff resulted in Resident 1 being a victim of nonconsensual sexual intercourse, which was serious harm/injury.  Given that Petitioner’s staff were inadequately trained to identify and stop potential abuse, and Petitioner’s policy did not compensate for that lack of training by providing specific steps to protect residents, I conclude that this deficiency had a role in causing serious harm/injury to Resident 1 because staff were not adequately trained to protect Resident 1. 

5.  The $5,000 per‑day CMP for 13 days from October 25, 2014, through November 6, 2014, and the $100 per-day CMP for 25 days from November 7, 2014 through December 1, 2014, are appropriate under relevant statutory and regulatory factors for determining the amount of CMPs. 

CMS imposed a $5,000 per‑day CMP for 13 days from October 25, 2014 through November 6, 2014, and a $100 per-day CMP for 25 days from November 7, 2014 through December 1, 2014.  When CMS imposes a per-day CMP, an SNF may challenge the duration and amount of the CMP. 

As the DAB noted in its decision to remand this case, Petitioner has not “specifically raised any argument before the ALJ or the [DAB] concerning the duration of the immediate jeopardy, or the duration of noncompliance below the immediate jeopardy level, or the CMP amounts imposed ($5,000 per day for the immediate jeopardy period; $100 per day from November 7, through December 1, 2014).”  Golden, DAB No. 2937 at 27.  Petitioner’s Post-Hearing brief also does not challenge the amount and duration of

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the CMPs imposed in this case.  However, the DAB ordered on remand that I assess the reasonableness of the CMPs.  Golden, DAB No. 2937 at 27. 

Duration of CMP

The SNF bears the burden of showing that its noncompliance was of shorter duration than alleged by CMS.  Owensboro Place & Rehab. Ctr., DAB No. 2397 at 12 (2011) (citing Kenton Healthcare, LLC, DAB No. 2186 at 24-25 (2008); Lake Mary Health Care, DAB No. 2081 at 30 (2007)).  Petitioner has made no attempt to show the duration should be shorter.  Therefore, I accept the duration as found by CMS. 

Amount of CMP

When determining whether a CMP amount is appropriate, I apply 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.  See 42 U.S.C. §§ 1320a-7a(d)(2), 1395i-3(h)(2)(B)(ii)(I).  The absence of culpability is not a mitigating factor.  42 C.F.R. § 488.438(f).  The factors listed in 42 C.F.R. § 488.404 include:  1) the scope and severity of the deficiency; 2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and 3) the facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies.  See 42 U.S.C. §§ 1320a-7a(d)(1), (3), 1395i-3(h)(2)(B)(ii)(I). 

The regulations leave the decision regarding the choice of remedy to CMS, and the amount of the remedy to CMS and the ALJ, 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 (2008).  However, unless a facility contends that a particular regulatory factor does not support the CMP amount, an ALJ must sustain it.  Coquina Ctr., DAB No. 1860 (2002). 

Facility’s History of Non-Compliance:  CMS does not argue that Petitioner has a history of noncompliance with 42 C.F.R. Part 483.  See CMS Br. at 24-25. 

Scope and Severity of Deficiencies and Relationship Between Deficiencies:  This case involves three deficiencies involving immediate jeopardy related to sexual abuse of a resident, as well as a non-immediate jeopardy level deficiency for failure to thoroughly investigate the abuse.  The sexual abuse involved nonconsensual sexual intercourse and resulted in bruising and scrapes in the vaginal and pelvic area of the resident.  This factor weighs in favor of a relatively high CMP. 

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Culpability:  Petitioner bears significant culpability for the sexual abuse suffered by Resident 1.  As CMS argues, Petitioner’s staff knew that S.B. had, before October 25, visited Resident 1 in an intoxicated state; however, there was no one at the facility’s reception desk on October 25 to notice S.B. arriving and, in any event, Petitioner had taken no other action to protect Resident 1 from S.B. visiting while drunk.  CMS Br. at 24-25.  CMS also points out that multiple facility personnel encountered S.B. on October 25, often in a state of partial undress with the smell of alcohol and did nothing to ensure Resident 1’s safety.  CMS Br. at 25.  This factor weighs in favor of a relatively high CMP. 

Financial Condition of the Facility:  Petitioner presents no evidence of its financial condition.  Therefore, this is not a factor that impacts the CMP amount in this case. 

CMP Amount:  The $5,000 per-day CMP for the period of immediate jeopardy is in the lower end of the $3,050 to $10,000 CMP range for deficiencies that involve immediate jeopardy.  42 C.F.R. § 488.438(a)(i).  The $100 per-day CMP for the period of non-immediate jeopardy noncompliance is nearly at the bottom of the applicable CMP range of $50 to $3,000.  42 C.F.R. § 488.438(a)(ii). 

VI.   Conclusion

Petitioner was not in substantial compliance with 42 C.F.R. §§ 483.13(b), (c), (c)(3), 483.75.  See 42 U.S.C. § 1395i-3(c)(1)(A)(ii), (d)(1)(A).  Further, Petitioner’s noncompliance with 42 C.F.R. §§ 483.13(b), (c), 483.75 immediately jeopardized the health and safety of Petitioner’s residents.  Finally, the $5,000 per‑day CMP for 13 days from October 25, 2014 through November 6, 2014, and the $100 per-day CMP for 25 days from November 7, 2014 through December 1, 2014, is appropriate under relevant statutory and regulatory requirements. 

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Endnotes

¹ “It is the duty and responsibility of the Secretary to assure that requirements which govern the provision of care in skilled nursing facilities . . . are adequate to protect the health, safety, welfare, and rights of residents and to promote the effective and efficient use of public monies.”  42 U.S.C. § 1395i-3(f)(1). 

² All citations to the Code of Federal Regulations are to the version in effect at the time of the survey unless otherwise indicated. 

³ State agencies designate the scope and severity level using a matrix published in the State Operations Manual, chap. 7, § 7400.5 (Sep. 10, 2010).  Scope and severity levels of A, B, or C are deficiencies for which CMS cannot impose enforcement remedies.  Scope and severity levels of D, E, or F are deficiencies that present no actual harm, but have the potential for more than minimal harm that do not amount to immediate jeopardy.  Scope and severity levels of G, H, or I indicate deficiencies that involve actual harm that do not amount to immediate jeopardy.  Scope and severity levels J, K, and L are deficiencies that constitute immediate jeopardy to resident health or safety. 

⁴ “[S]killed nursing facilit[ies] must protect and promote the rights of each resident, including . . . [t]he right to be free from physical or mental abuse . . . .” 

⁵ “The resident has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion.”  

⁶ The state agency cited Tag F-223, which includes 42 C.F.R. § 483.13(b) and (c)(1)(i).  I only discuss paragraph (b) for this deficiency because paragraph (c)(1)(i) prohibits the facility from abusing residents.  This case does not involve allegations of abuse by the facility or its staff. 

⁷ CMS counsel asserts strongly that S.B. “raped” Resident 1 because nothing in the record shows she was not and there is plenty of evidence that she was.  CMS counsel was vexed that Petitioner’s counsel has neither conceded that Resident 1 was raped or sexually abused.  She condemned Petitioner’s counsel for referring only to the “alleged” abuse and “alleged” sexual assault and condemned me for permitting Petitioner’s counsel to do so at the hearing.  CMS Br. at 6.  Near the close of the hearing, CMS counsel accused Petitioner’s counsel, the DAB, and me of “incest denial.”  Tr. 173.  I do not use the word “rape” in this decision, other than to discuss the state law criminal charges made against S.B., because CMS never provided evidence that S.B. was convicted of rape.  If I were to use a legal term, such as rape, in this decision, a reviewing body on appeal may believe that I concluded CMS proved the Alabama state law elements for the crime of rape.  Perhaps the record in this case shows those elements were met.  However, neither party has expressly discussed them, and I do not discuss them here.  Further, deciding whether the facts in this case constitute “rape” is more than I am charged with concluding.  Rather, the statutory and regulatory provisions in this case require me to find whether there had been abuse—which expressly includes sexual abuse—and whether Petitioner promoted and protected Resident 1’s right to be free from that abuse.  Abuse is defined in the regulations but rape is not.  Neither is incest.  CMS counsel’s job is to show CMS had a legitimate basis to impose enforcement remedies on Petitioner.  Petitioner’s counsel’s duty is to defend his client.  This is a necessary aspect of due process, even if one disagrees how far an attorney should go in making a defense.  A judge must avoid prejudging a case or acting/appearing less than neutral while holding a hearing or developing the evidentiary record.  Within the bounds of the law, applicable rules, and permissible (as well as civil) advocacy, a party must be permitted to make its defense.  As stated in this decision, even in the absence of the evidence as to the outcome in S.B.’s criminal case, I conclude that the evidence shows that S.B. abused Resident 1, as that term is defined in the regulation, when he engaged in nonconsensual sexual intercourse with his medicated and drowsy mother, who protested that he should “Stop, Stop, Stop.”  However, whether these findings meet the Alabama criminal statute for rape and incest is not a matter for me to decide. 

⁸ If CMS had given notice that this deficiency immediately jeopardized residents, I would have found that determination to be clearly erroneous.  As stated below, Petitioner’s investigation was relatively well done, even if it failed to be completely thorough.