Autumn Healthcare of Cambridge, DAB CR5175 (2018)

DECISION

Petitioner, Autumn Healthcare of Cambridge, was not in substantial compliance with program participation requirements from July 17 through October 7, 2014, due to violations of 42 C.F.R. §§ 483.13(b) and (c)(1)(i), and 483.13(c).1 There is a basis for the imposition of enforcement remedies. The following enforcement remedies are reasonable: a civil money penalty (CMP) of $4,050 per day for 5 days of immediate jeopardy, from July 17 through 21, 2014, and a CMP of $100 per day for 78 days of noncompliance that did not pose immediate jeopardy but posed a risk for more than minimal harm without actual injury, from July 22 through October 7, 2014, a total CMP of $28,050. Petitioner was ineligible to conduct a Nurse Aide Training and Competency Evaluation Program (NATCEP) for a period of two years beginning August 11, 2014.

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I. Background

Petitioner was located in Cambridge, Ohio, and participated in Medicare as a skilled nursing facility (SNF). On August 11, 2014, Petitioner was subject to a complaint investigation by the Ohio Department of Health (state agency) and found not in substantial compliance with program participation requirements due to two regulatory violations. Parties’ Joint Stipulations and Statement of Issues (Jt. Stip.) ¶¶ I.1-2.

The Centers for Medicare & Medicaid Services (CMS) notified Petitioner by letter dated September 3, 2014, that the state agency determined Petitioner was not in substantial compliance with program participation requirements; there was immediate jeopardy that began on July 17, 2014 that was abated on July 22, 2014; there was substandard quality of care; and noncompliance continued after the immediate jeopardy was abated. CMS proposed the following enforcement remedies: termination of Petitioner’s provider agreement and participation in Medicare effective February 11, 2015, unless Petitioner achieved substantial compliance by that date; a CMP of $4,050 per day for 5 days, from July 17 through 21, 2014, a CMP of $100 per day beginning July 22, 2014, and continuing until Petitioner returned to substantial compliance or was terminated; and a denial of payment for new admissions (DPNA) beginning November 11, 2014, if Petitioner did not achieve substantial compliance before that date. CMS also advised Petitioner that it was prohibited from offering a NATCEP for two years beginning August 11, 2014. CMS Exhibit (CMS Ex). 1; Jt. Stip. ¶¶ I.7-9.

CMS notified Petitioner by letter dated November 26, 2014, that a revisit survey completed on October 1, 2014, found that Petitioner remained out of substantial compliance with program participation requirements. Another revisit survey completed on November 18, 2014, found that Petitioner returned to substantial compliance effective October 8, 2014. CMS advised Petitioner that termination of Petitioner’s provider agreement and DPNA were rescinded. CMS proposed a CMP of $4,050 per day for 5 days, from July 17 through 21, 2014, and $100 per day for 78 days, from July 22 through October 7, 2014, a total CMP of $28,050. CMS Ex. 2; Jt. Stip. ¶¶ I.5-8.

Petitioner requested a hearing before an administrative law judge (ALJ) by letter dated October 30, 2014 (RFH). The case was assigned to me for hearing and decision on December 1, 2014, and an Acknowledgment and Prehearing Order was issued at my direction.

On April 30, 2015, the parties filed a joint settlement status report in which Petitioner and CMS both waived an in-person oral hearing. On May 7, 2015, I issued an order in which I accepted the parties’ joint waiver of oral hearing and established a schedule for briefing

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on the merits.2 On June 8, 2015, the parties filed opening briefs (CMS Br. and P. Br., respectively) and on July 6, 2015, they filed reply briefs (CMS Reply and P. Reply, respectively). CMS offered CMS Exs. 1 through 22 and Petitioner offered Petitioner’s exhibits (P Ex.) 1 through 11. The parties filed no objections to my consideration of CMS Exs. 1 through 22 and P. Exs. 1 through 11, and they are admitted as evidence. I have reviewed the parties’ briefs and evidence and agree that an oral hearing is unnecessary. 

II. Discussion

A. Issues

Whether there is a basis for the imposition of enforcement remedies; and 

Whether the remedies imposed are reasonable.

B. Applicable Law

The statutory and regulatory requirements for participation of a SNF in Medicare are found at section 1819 of the Social Security Act (Act) and at 42 C.F.R. pt. 483. Section 1819(h)(2) of the Act authorizes the Secretary to impose enforcement remedies against a SNF for failure to comply substantially with the federal participation requirements established by sections 1819(b), (c), and (d) of the Act.3 The Act requires that the Secretary terminate the Medicare participation of any SNF that does not return to substantial compliance with participation requirements within six months of being found not to be in substantial compliance. Act § 1819(h)(2)(C). The Act also requires that the Secretary deny payment of Medicare benefits for any beneficiary admitted to a SNF, if the SNF fails to return to substantial compliance with program participation requirements

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within three months of being found not to be in substantial compliance – commonly referred to as the mandatory or statutory DPNA. Act § 1819(h)(2)(D). The Act grants the Secretary discretionary authority to terminate a noncompliant SNF’s participation in Medicare, even if there has been less than 180 days of noncompliance. The Act also grants the Secretary authority to impose other enforcement remedies, including a discretionary DPNA, CMPs, appointment of temporary management, and other remedies such as a directed plan of correction. Act § 1819(h)(2)(B).

The Secretary has delegated to CMS and the states the authority to impose remedies against a long-term care facility that is not complying substantially with federal participation requirements. “Substantial compliance means a level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm.” 42 C.F.R. § 488.301 (emphasis in original). A deficiency is a violation of a participation requirement established by sections 1819(b), (c), and (d) of the Act or the Secretary’s regulations at 42 C.F.R. pt. 483, subpt. B. Noncompliance refers to any deficiency that causes a facility not to be in substantial compliance. 42 C.F.R. § 488.301. State survey agencies survey facilities that participate in Medicare on behalf of CMS to determine whether the facilities are complying with federal participation requirements. 42 C.F.R. §§ 488.10-.28, 488.300-.335. The regulations specify the enforcement remedies that CMS may impose if a facility is not in substantial compliance with Medicare requirements. 42 C.F.R. § 488.406.

The regulations specify that a CMP that is imposed against a facility on a per-day basis will fall into one of two ranges of penalties. 42 C.F.R. §§ 488.408, 488.438. The upper range of a CMP, $3,050 per day to $10,000 per day, is reserved for deficiencies that pose immediate jeopardy to a facility’s residents and, in some circumstances, for repeated deficiencies. 42 C.F.R. § 488.438(a)(1)(i), (d)(2). “Immediate jeopardy means a situation in which 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 (emphasis in original). The lower range of CMPs, $50 per day to $3,000 per day, is reserved for deficiencies that do not pose immediate jeopardy, but either cause actual harm to residents, or cause no actual harm but have the potential for causing more than minimal harm. 42 C.F.R. § 488.438(a)(1)(ii). CMS is also authorized to impose a per instance CMP for each instance that a facility is not in substantial compliance, whether or not the deficiency poses immediate jeopardy. 42 C.F.R. § 488.430(a). The authorized range for a per instance CMP is $1,000 to $10,000. 42 C.F.R. § 488.438(a)(2).

CMS notified Petitioner in its letter dated September 3, 2014, that Petitioner was ineligible to be approved to conduct a NATCEP for two years because a partial extended survey was conducted. CMS Ex. 1 at 4-5. Pursuant to sections 1819(b)(5) and 1919(b)(5) of the Act, SNFs and NFs may only use nurse aides who have completed a

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training and competency evaluation program. Pursuant to sections 1819(f)(2) and 1919(f)(2) of the Act, the Secretary was tasked to develop requirements for approval of NATCEPs and the process for review of those programs. Sections 1819(e) and 1919(e) of the Act impose upon the states the requirement to specify what NATCEPs they will approve that meet the requirements that the Secretary established and a process for reviewing and re-approving those programs using criteria the Secretary set. The Secretary promulgated regulations at 42 C.F.R. pt. 483, subpt. D. Pursuant to 42 C.F.R. § 483.151(b)(2) and (f), a state may not approve and must withdraw any prior approval of a NATCEP offered by a SNF or NF that has been: (1) subject to an extended or partial extended survey under sections 1819(g)(2)(B)(i) or 1919(g)(2)(B)(i) of the Act; (2) assessed a CMP of not less than $5,000; or (3) subject to termination of its participation agreement, a DPNA, or the appointment of temporary management. Extended and partial extended surveys are triggered by a finding of “substandard quality of care” during a standard or abbreviated standard survey and involve evaluating additional participation requirements. “Substandard quality of care” is identified by the situation where surveyors identify one or more deficiencies related to participation requirements established by 42 C.F.R. §§ 483.13 (Resident Behavior and Facility Practices), § 483.15 (Quality of Life), or § 483.25 (Quality of Care) that are found to constitute either immediate jeopardy, a pattern of or widespread actual harm that does not amount to immediate jeopardy, or a widespread potential for more than minimal harm that does not amount to immediate jeopardy and there is no actual harm. 42 C.F.R. § 488.301. 

The Act and regulations make a hearing before an ALJ available to a long-term care facility against which CMS has determined to impose an enforcement remedy. Act §§ 1128A(c)(2), 1866(h); 42 C.F.R. §§ 488.408(g), 498.3(b)(13). A facility has a right to appeal a “certification of noncompliance leading to an enforcement remedy.” 42 C.F.R. §§ 488.408(g)(1); 488.330(e), 498.3. However, the choice of remedies, or the factors CMS considered when choosing remedies, are not subject to review. 42 C.F.R. § 488.408(g)(2). A facility may only challenge the scope and severity level of noncompliance determined by CMS if a successful challenge would affect the range of the CMP that may be imposed or impact the facility’s authority to conduct a NATCEP. 42 C.F.R. § 498.3(b)(14), (b)(16), (d)(10)(i). The CMS determination as to the level of noncompliance, including the finding of immediate jeopardy, “must be upheld unless it is clearly erroneous.” 42 C.F.R. § 498.60(c)(2); Woodstock Care Ctr., DAB No. 1726 at 9, 38 (2000), aff’d, 363 F.3d 583 (6th Cir. 2003). The Departmental Appeals Board (the Board) has long held that the net effect of the regulations is that a provider has no right to challenge the scope and severity level assigned to a noncompliance finding, except in the situation where that finding was the basis for an immediate jeopardy determination. See, e.g., Ridge Terrace, DAB No. 1834 (2002); Koester Pavilion, DAB No. 1750 (2000). ALJ review of a CMP is subject to 42 C.F.R. § 488.438(e). 

The hearing before an ALJ is a de novo proceeding, that is, “a fresh look by a neutral decision-maker at the legal and factual basis for the deficiency findings underlying the

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remedies.” Life Care Ctr. of Bardstown, DAB No. 2479 at 33 (2012) (citation omitted). The Board has long held that the petitioner bears the burden of persuasion to show by a preponderance of the evidence that it was in substantial compliance with participation requirements or any affirmative defense. Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004); Batavia Nursing & Convalescent Ctr., DAB No. 1904, aff’d, Batavia Nursing & Convalescent Ctr. v. Thompson, 129 F. App’x 181 (6th Cir. 2005); Emerald Oaks, DAB No. 1800 (2001); Cross Creek Health Care Ctr., DAB No. 1665 (1998); Hillman Rehab. Ctr., DAB No. 1611 (1997) (remand to ALJ), DAB No. 1663 (1998) (after remand), aff’d, Hillman Rehab. Ctr. v. United States, No. 98-3789 (GEB), 1999 WL 34813783 (D.N.J. May 13, 1999). However, only when CMS makes a prima facie showing of noncompliance, is the facility burdened to show, by a preponderance of the evidence on the record as a whole, that it was in substantial compliance or had an affirmative defense. Evergreene Nursing Care Ctr., DAB No. 2069 at 4 (2007). 

The standard of proof, or quantum of evidence required, is a preponderance of the evidence. CMS has the burden of coming forward with the evidence and making a prima facie showing of a basis for imposing an enforcement remedy. The Board has stated that CMS must come forward with “evidence related to disputed findings that is sufficient (together with any undisputed findings and relevant legal authority) to establish a prima facie case of noncompliance with a regulatory requirement.” Evergreene Nursing Care Ctr., DAB No. 2069 at 7; Batavia Nursing & Convalescent Ctr., DAB No 1904. “Prima facie” means generally that the evidence is “[s]ufficient to establish a fact or raise a presumption unless disproved or rebutted.” Black’s Law Dictionary 1228 (8th ed. 2004). In Hillman Rehab. Ctr., the Board described the elements of the CMS prima facie case in general terms as follows:

HCFA [now known as CMS] must identify the legal criteria to which it seeks to hold a provider. Moreover, to the extent that a provider challenges HCFA’s findings, HCFA must come forward with evidence of the basis for its determination, including the factual findings on which HCFA is relying and, if HCFA has determined that a condition of participation was not met, HCFA’s evaluation that the deficiencies found meet the regulatory standard for a condition-level deficiency.

DAB No. 1611 at 8. Thus, CMS has the initial burden of coming forward with sufficient evidence to show that its decision to impose an enforcement remedy is legally sufficient under the statute and regulations. To make a prima facie case that its decision was legally sufficient, CMS must: (1) identify the statute, regulation or other legal criteria to which it seeks to hold the petitioner; (2) come forward with evidence upon which it relies for its factual conclusions that are disputed by the petitioner; and (3) show how the deficiencies it found amount to noncompliance that warrants an enforcement remedy; that is, that there was a risk for more than minimal harm due to the regulatory violation. In

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Evergreene Nursing Care Ctr., the Board explained its “well-established framework for allocating the burden of proof on the issue of whether a SNF is out of substantial compliance” as follows:

CMS has the burden of coming forward with evidence related to disputed findings that is sufficient (together with any undisputed findings and relevant legal authority) to establish a prima facie case of noncompliance with a regulatory requirement. If CMS makes this prima facie showing, then the SNF must carry its ultimate burden of persuasion by showing, by a preponderance of the evidence, on the record as a whole, that it was in substantial compliance during the relevant period.

DAB No. 2069 at 7. CMS makes a prima facie showing of noncompliance if the credible evidence CMS relies on is sufficient to support a decision in its favor absent an effective rebuttal. The regulation gives Petitioner notice of the criteria or elements it must meet to comply with the program participation requirement established by the regulation. 5 U.S.C. §§ 551(4), 552(a)(1). Therefore, in order to make a prima facie showing of noncompliance, CMS must show that Petitioner violated the regulation by not complying with one or more of the criteria or elements of the regulation, which is a deficiency. CMS must also show that the deficiency amounted to “noncompliance,” that is, that Petitioner was not in substantial compliance because the deficiency posed a risk for more than minimal harm. See Jennifer Matthew Nursing & Rehab. Ctr., DAB No. 2192 at 20-21 n.12 (2008). A facility can overcome CMS’s prima facie case either by rebutting the evidence upon which that case rests, or by proving facts that affirmatively show substantial compliance. “An effective rebuttal of CMS’s prima facie case would mean that at the close of the evidence the provider had shown that the facts on which its case depended (that is, for which it had the burden of proof) were supported by a preponderance of the evidence.” Evergreene Nursing Care Ctr., DAB No. 2069 at 7-8 (citations omitted). 

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

My conclusions of law are set forth in bold text followed by my findings of fact and analysis. I have carefully considered all the evidence and the arguments of both parties, though not all may be specifically discussed in this decision. I discuss in this decision the

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credible evidence given the greatest weight in my decision-making.4 I also discuss any evidence that I find is not credible or worthy of weight. The fact that evidence is not specifically discussed should not be considered sufficient to rebut the presumption that I considered all the evidence and assigned such weight or probative value to the credible evidence that I determined appropriate within my discretion as an ALJ. There is no requirement for me to discuss the weight given every piece of evidence considered in this case, nor would it be consistent with notions of judicial economy to do so. Charles H. Koch, Jr., Admin. L. and Prac. § 5:64 (3d ed. 2013).

The state agency completed a complaint investigation and partial extended survey of Petitioner on August 11, 2014. CMS Ex. 3; Jt. Stip. ¶¶ I.2-3. Revisit surveys were conducted on October 1, 2014 (CMS Ex. 10) and November 18, 2014 (CMS Ex. 17). Based on the survey completed on August 11, 2014, the surveyors cited Petitioner for the following noncompliance: 42 C.F.R. §§ 483.13(b) and (c )(1)(i) (Tag F223,5 scope and severity level (s/s) J6); and 483.13(c) (Tag F226, s/s D). CMS Ex. 3; Jt. Stip. ¶¶ I.2-3. 

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The deficiency cited under Tag F223 at a scope and severity of J alleged immediate jeopardy that the surveyor concluded began on July 17, 2014, and was abated on July 22, 2014. CMS Ex. 3 at 2. The revisit survey completed on October 1, 2014, determined Petitioner continued to be noncompliant with the same participation requirements as cited by the August 2014 survey. The noncompliance cited by the October 1, 2014 survey was based on different incidents involving different residents than the August 2014 survey and the scope and severity of each deficiency was cited as “D,” i.e., the regulatory violations posed a risk for more than minimal harm without actual harm or immediate jeopardy. CMS Exs. 3, 10; Jt. Stip. ¶ I.5. The revisit survey completed on November 18, 2014, found that Petitioner returned to substantial compliance with program participation requirements on October 8, 2014, as Petitioner corrected the noncompliance cited as violations of 42 C.F.R. §§ 483.13(b) and (c)(1)(i) (Tag F223) and 42 C.F.R. § 483.13(c) (Tag F226) as of that date. CMS Ex. 17; Jt. Stip. ¶ I.6. CMS proposes a per-day CMP of $4,050 for 5 days of immediate jeopardy for the period July 17 through 21, 2014, and a per-day CMP of $100 for 78 days of noncompliance that did not pose immediate jeopardy during the period July 22 through October 7, 2014, a total CMP of $28,050. The finding of substandard quality of care that triggered the partial extended survey and Petitioner’s ineligibility to conduct a NATCEP was the noncompliance with 42 C.F.R. § 483.13(b) and (c)(1)(i) (Tag F223) at the level of immediate jeopardy from the August 2014 survey. CMS Exs. 1-2. 

1. Petitioner did not request review as to the noncompliance cited by the survey that ended October 1, 2014 under Tags F223 and F226, beginning about September 8, 2014 (RFH; Jt. Stip. ¶¶ I.10-12; CMS Ex. 10 at 2, 4):

a. The findings and conclusions of noncompliance under Tags F223 and F226 cited by the survey completed on October 1, 2014, are final and not subject to review; and

b. The imposition of a $100 per day CMP beginning September 8, 2014 and continuing through October 7, 2014, is final and not subject to review.

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2. Petitioner violated 42 C.F.R. § 483.13(b) and (c)(1)(i) (Tag F223) as cited by the August 2014 survey and the violation amounted to noncompliance as it posed a risk for more than minimal harm.

3. Petitioner violated 42 C.F.R. § 483.13(c) (Tag F226) as cited by the August 2014 survey and the violation amounted to noncompliance as it posed a risk for more than minimal harm.

a. Facts

The parties stipulated that the alleged deficiencies cited by the August 2014 survey are based upon physical abuse of two residents, Residents 4 and 5, committed by a state-tested nursing assistant (STNA), Annastacia Dailey. The parties agree that Resident 5 was abused at about 6:45 p.m. on July 17, 2014. The parties agree that Resident 4 was abused at about 7:15 p.m. on July 17, 2014. The parties agree that both instances of abuse were witnessed by another nursing aide, STNA Brittney McCulley. Joint Stip. ¶¶ I.13-18. The parties’ stipulations are consistent with and supported by the evidence. CMS Exs. 8, 9; P. Br. at 2-5.

Petitioner explains the sequence of events clearly in its brief and proposed findings of fact. At 6:45 p.m. on July 17, 2014, STNA Dailey placed Resident 5 in her recliner, causing the resident to bump her leg on the chair, causing a skin tear. STNA Dailey left the scene to seek medical care for Resident 5, while STNA McCulley, who witnessed the incident, stayed with the resident. STNA Dailey returned with the charge nurse, registered nurse (RN) Amber Jones, also around 6:45 p.m. Resident 5 told RN Jones that “that girl did it,” not clearly indicating STNA Dailey caused her injury, and STNA Dailey identified another resident as causing the injury. After STNA Dailey left the scene, STNA McCulley advised RN Jones that STNA Dailey was lying and that STNA Dailey caused the injury while seating Resident 5 in the recliner in a forceful manner. Thus, RN Jones was clearly on notice at that time that STNA Dailey was the alleged perpetrator of abuse. At 6:50 p.m., RN Jones notified Resident 5’s doctor and daughter. RN Jones recorded the conflicting statements of the STNAs and called the Director of Nursing (DON) to report. The DON directed RN Jones to remove STNA Dailey from the facility pending investigation. While RN Jones was going to remove STNA Dailey, STNA McCulley reported to RN Jones that STNA Dailey improperly restrained Resident 4. According to Petitioner, the incident with Resident 4 occurred about 7:15 p.m. when Resident 4 became combative while being put to bed and STNA Dailey used her knee to restrain the resident. STNA Dailey was then removed from the facility by RN Jones and another staff member. STNA Dailey never returned to the facility and was terminated on July 18, 2014. P. Br. at 2-5; Petitioner’s “Proposed Findings of Fact and Conclusions of Law ¶¶ 13-31. 

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(i) Resident 5

Resident 5, a woman, was 86 years old when she was abused by STNA Dailey. She was admitted to Petitioner’s facility on June 13, 2014. P. Ex. 9 (Part 1) at 4. She had multiple diagnoses including hypertension, dementia, anxiety, and a history of a right hip fracture. P. Ex. 9 (Part 1) at 2, 37, 39. Her minimum data set dated June 20, 2014, indicated that she was cognitively impaired. CMS Ex. 8 at 8-9; P. Ex. 9 (Part 6) at 261-62. 

The abuse incident involving Resident 5 occurred on July 17, 2014. Petitioner’s Self-Reported Incident Form reports that around 6:45 p.m. on July 17, 2014, STNA Dailey roughly sat Resident 5 in her chair, causing a skin tear to the resident’s leg. CMS Ex. 8 at 2. The form indicates that statements were taken from a witness (STNA McCulley) and from STNA Dailey. Resident 5 was interviewed and able to provide meaningful information. The form notes that the resident had a skin tear on her right lower leg. The form shows that Administrator Rebecca Moore investigated this incident and the incident involving Resident 4 and found both abuse allegations were substantiated. According to the form, STNA Dailey was removed from the premises and the investigation was concluded. CMS Ex. 8 at 1-4.

The record also contains internal reports, dated July 17, 2014, completed by Petitioner’s staff: a Resident Abuse Report Form signed by RN Jones (who reported the abuse) and Administrator Moore; and a Resident Accident/Incident Report prepared by RN Jones. CMS Ex. 8 at 5-7. Regarding Resident 5, the reports show Resident 5 was in the lounge and she was trying to get out of her recliner. STNA Dailey forced the resident back into the recliner, causing the resident’s legs to hit the recliner foot rest, causing a skin tear and bleeding. STNA McCulley was present and witnessed the incident. CMS Ex. 8 at 4-6. The reports show that Resident 5 sustained a one-by-two centimeter skin tear on her right lower leg with bleeding. Resident 5 received medical attention for her injury and was re-oriented. CMS Ex. 8 at 5, 7; CMS Ex. 9 at 4. RN Jones prepared a written statement as part of Petitioner’s investigation. According to RN Jones, STNA Dailey came to her and reported Resident 5’s leg was bleeding. When RN Jones accompanied STNA Dailey to Resident 5, the resident identified “that girl” as the perpetrator and STNA Dailey blamed another person. Later, STNA McCulley advised RN Jones that STNA Dailey had lied because STNA McCulley had seen STNA Dailey putting Resident 5 into her recliner, slamming her legs into the recliner footrest, causing the skin tear and bleeding. CMS Ex. 9 at 4.

According to the Resident Accident/Incident Report prepared by RN Jones, she telephoned Resident 5’s physician and the resident’s daughter around 6:50 p.m. to notify them of Resident 5’s injury. CMS Ex. 8 at 7. RN Jones also obtained statements from STNA Dailey and STNA McCulley and telephoned the DON to report the incident. CMS Ex. 8 at 7. In the section of the report titled “Describe Immediate Action Taken to

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Treat Injuries/Provide Safety,” RN Jones did not note that any action was taken to ensure STNA Dailey did no further harm to this resident or others. CMS Ex. 8 at 7.

(ii) Resident 4

Resident 4 was an 85-year-old woman when she was abused by STNA Dailey. She was admitted to Petitioner’s facility on November 5, 2011. P. Ex. 7 at 1. She had multiple diagnoses including dementia, Alzheimer’s disease, arthritis, history of a left hip fracture, gait instability, osteoporosis, and anxiety. P. Ex. 7 at 7-8, 39-40, 77-78. Her minimum data sets dated March 18, 2014, April 10, 2014, April 17, 2014, May 6, 2014, and July 28, 2014, indicated that Resident 4 was severely cognitively impaired. CMS Ex. 9 at 9-10; P. Ex. 7 at 45-46, 114-15, 118-19, 122-23, 126-27.

The abuse incident involving Resident 4 occurred on July 17, 2014 at about 7:15 p.m., roughly 30 minutes after Resident 5 was abused by STNA Dailey. Petitioner’s Self-Reported Incident Form shows that Resident 4 was resisting being put to bed and so STNA Dailey put her knee on the chest of Resident 4. This incident was also witnessed by STNA McCulley. The report indicates Resident 4 suffered no injury from the incident. CMS Ex. 9 at 1-2. The form shows that Administrator Moore investigated this incident and the incident involving Resident 5, and found both abuse allegations were substantiated. According to the form, STNA Dailey was removed from the premises and the investigation was concluded. CMS Ex. 9 at 1-2. 

The record also contains internal reports, dated July 17, 2014, completed by Petitioner’s staff that report the incident involving Resident 4, including a Resident Abuse Report Form signed by RN Jones and Administrator Moore; and a Resident Accident/Incident Report prepared by RN Jones. CMS Ex. 9 at 6-8. The reports show the abuse incident occurred in Resident 4’s room around 7:15 p.m. CMS Ex. 9 at 6-7. STNA McCulley, who witnessed this incident, reported to RN Jones that STNA Dailey put her knee on Resident 4’s chest when the resident became combative. CMS Ex. 9 at 4, 6-7. The reports indicate that Resident 4, who was confused and disoriented prior to the incident, did not suffer any apparent injury and did not require medical attention. CMS Ex. 9 at 6-8. According to the Resident Accident/Incident Report prepared by RN Jones, she was unable to obtain a statement from Resident 4. RN Jones telephoned Resident 4’s physician and her daughter around 7:15 p.m. to notify them of the incident. CMS Ex. 9 at 8. In the section of the report titled “Describe Immediate Action Taken to Treat Injuries/Provide Safety,” RN Jones wrote that the “Accused aide was escorted out of facility.” CMS Ex. 9 at 8. 

The incident involving Resident 4 apparently occurred while Nurse Jones was on the telephone with Petitioner’s DON reporting the earlier incident involving Resident 5. P. Br. at 5; CMS Ex. 3 at 6. RN Jones states in her statements that she was informed by STNA McCulley about the incident involving Resident 4 while she was investigating the

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incident involving Resident 5. CMS Ex. 9 at 4-5. Based on their interviews, the surveyors determined that the DON told RN Jones to remove STNA Dailey from the building. CMS Ex. 3 at 7. Nurse Jones removed STNA Dailey from Petitioner’s premises around 7:15 p.m., and STNA Dailey never returned to the facility and was terminated on July 18, 2014. CMS Ex. 3 at 2, 7; P. Br. at 5.

(iii) Petitioner’s Abuse Policy

Petitioner had a policy prohibiting abuse and establishing investigation and reporting procedures. P. Ex. 6; CMS Ex. 7. The policy required that a person who observed an incident of resident abuse or who suspected resident abuse report immediately to the charge nurse or supervisor. Upon receiving a report, the charge nurse was to examine immediately the resident; an investigation was to begin; an employee suspected of abuse was to be immediately suspended pending completion of the investigation; and any other suspected abuser, not employed by the facility, was to be denied unsupervised access to the resident. The Administrator was to be notified immediately so he or she could make required reports. P. Ex. 6 at 3-4; CMS Ex. 7 at 2-3. The policy provided that an employee be immediately placed on suspension but it does not specify that the employee is to be removed from the facility or denied access to residents. The policy only specifies that an abuse victim is to be safeguarded in the event of resident-on-resident abuse. When the abuser is not an employee or resident, the policy only requires supervised access to the victim; the policy does not address protecting other residents. P. Ex. 6; CMS Ex. 7. 

Although Petitioner had an abuse policy,7 the policy was not followed in this case. The evidence shows that STNA McCulley witnessed STNA Dailey abuse Resident 5. STNA McCulley did not act to prevent the incident or protect Resident 5. It may not have been possible for STNA McCulley to have acted quickly enough to prevent the abuse, but there is no evidence of any attempt or even a verbal protest. STNA McCulley did not call for assistance or immediately report the incident to the supervising nurse or the DON or Administrator. While it was appropriate for STNA McCulley to remain with Resident 5, there is no evidence STNA McCulley attempted to secure assistance by using the call light, her cell phone, or by simply hollering for assistance. Petitioner suggests that STNA McCulley could reasonably rely upon STNA Dailey to go and report, but it is not reasonable to rely upon one who just committed an abusive act to report themselves. There is no evidence that STNA McCulley had a reasonable belief STNA Dailey left to

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secure assistance for Resident 5 or whether she intended to run from the building. P. Reply at 2. STNA Dailey advised RN Jones that Resident 5 was injured and bleeding. STNA McCulley told RN Jones that STNA Dailey caused Resident 5’s injury but RN Jones did not act immediately to prevent STNA Dailey from having further access to Resident 5 or other residents. Within approximately 30 minutes of the abuse of Resident 5, STNA Dailey also abused Resident 4, and only after the second instance of abuse was STNA Dailey prevented from having access to residents while the investigation of abuse proceeded. 

b. Analysis

(i) The violation of 42 C.F.R. § 483.13(b) and (c)(1)(i) (Tag F223).

Abuse is defined in the federal regulations 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. Pursuant to 42 C.F.R. § 483.13(b), a “resident has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion.” A facility must “[n]ot use verbal, mental, sexual, or physical abuse, corporal punishment or involuntary seclusion.” 42 C.F.R. § 483.13(c)(1)(i). There is no dispute in this case that both Residents 4 and 5 were abused by STNA Dailey. P. Br. at 2-5, 13; P. Reply; Jt. Stip. ¶¶ I.13-18.

The surveyors allege in the Statement of Deficiencies (SOD) under Tag F223 that Petitioner violated 42 C.F.R. § 483.13(b) and (c)(1)(i) because Petitioner failed to protect Resident 4 and Resident 5 from physical abuse by STNA Dailey. CMS Ex. 3 at 1-2. Petitioner does not dispute that the noncompliance occurred or that it posed immediate jeopardy, at least until STNA Dailey was removed from the facility on July 17, 2014. P. Br. at 10. I conclude, based on the foregoing facts, that CMS has made a prima facie showing that Petitioner violated 42 C.F.R. § 483.13(b) and (c)(1)(i), resulting in actual harm to Resident 5. The existence of immediate jeopardy and its duration are discussed hereafter. 

(ii) The violation of 42 C.F.R. § 483.13(c) (Tag F226).

Petitioner is required, as a condition for participating in Medicare, to “develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property.” 42 C.F.R. § 483.13(c). The regulation also requires that Petitioner “ensure that all alleged violations involving mistreatment, neglect, or abuse . . . are reported immediately to the administrator of the facility and to other officials in accordance with State law.” 42 C.F.R. § 483.13(c)(2). Petitioner “must have evidence that all alleged violations are thoroughly investigated, and

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must prevent further potential abuse” during the investigation. 42 C.F.R. § 483.13(c)(3). Petitioner must ensure that the results of all investigations are “reported to the administrator or his designated representative and to other officials in accordance with State law . . . within 5 working days of the incident.” 42 C.F.R. § 483.13(c)(4).

The surveyors allege in the SOD under Tag F226 that Petitioner violated 42 C.F.R. § 483.13(c) because its staff failed to implement its abuse prevention policy, and the failure affected two residents, Resident 4 and Resident 5. CMS Ex. 3 at 8-9. Under Tag F226, the surveyors repeat the facts related to the abuse of Resident 4 and Resident 5. 

In examining whether a facility has implemented policies and procedures prohibiting abuse, neglect, mistreatment, and misappropriation, the Board has held that the issue under 42 C.F.R. § 483.13(c) is “whether the circumstances presented, viewed as a whole, demonstrate a systemic problem in implementing policies and procedures” to prevent abuse. Columbus Nursing & Rehab. Ctr., DAB No. 2247 at 27 (2009) (citing Liberty Nursing and Rehab Ctr.–Johnston, DAB No. 2031 at 14 (2006), aff’d, Liberty Commons Nursing & Rehab Ctr.–Johnston v. Leavitt, 241 F. App’x 76 (4th Cir. 2007). I conclude that the facts I have found related to the abuse of Residents 4 and 5 clearly show that Petitioner had a systemic failure in implementing the policies and procedures required by 42 C.F.R. § 483.13(c). The evidence shows that neither STNA McCulley nor RN Jones reacted to an incident of abuse in a manner consistent with knowledge of the provisions of Petitioner’s abuse policy. Resident 5 suffered actual harm from being abused. Resident 4 was not injured but she could have suffered physical harm, pain, or mental anguish. Resident 4’s abuse could have been avoided if RN Jones had acted to isolate STNA Dailey from all residents as soon as STNA McCulley informed her of STNA Dailey’s abuse of Resident 5. 

I conclude that Petitioner had an abuse prevention policy as required by 42 C.F.R. § 483.13(c). The inadequacies of that policy were not cited as a basis for noncompliance and I do not find noncompliance based on the inadequacies of the policy. However, CMS has made a prima facie showing that Petitioner’s staff failed to properly implement Petitioner’s policy in violation of 42 C.F.R. § 483.13(c). Petitioner argues that it had the required policy and its staff followed it. P. Br. at 15-19; Petitioner’s Proposed Conclusion of Law ¶ 6. However, I conclude that Petitioner has failed to rebut the prima facie showing of noncompliance or establish an affirmative defense. 

The evidence shows that STNA McCulley witnessed STNA Dailey abuse Resident 5. There is no evidence that STNA McCulley acted to prevent the incident or protect Resident 5 or even verbally protested STNA Dailey’s abusive behavior. I accept it was appropriate for STNA McCulley to remain with Resident 5 until help could arrive but note that her presence did not prevent the abuse of Resident 5. The fact that STNA Dailey left the area where Resident 5 was located offered some measure of protection for Resident 5 from further abuse. However, there is no evidence that STNA McCulley

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attempted to use her cell phone, a call light, or simply holler for help. It is not clear from the evidence that STNA McCulley was sufficiently trained to recognize that abuse had just occurred. RN Jones arrived at the scene and STNA McCulley told her that STNA Dailey had lied about the cause of Resident 5’s injury and that STNA Dailey caused the injury. The evidence does not show that RN Jones recognized that there was an allegation of abuse by STNA Dailey against Resident 5. The evidence shows that RN Jones left the scene to call Resident 5’s physician, family, and the DON without taking action to protect Resident 5 or other residents from further abuse by STNA Dailey, who was allowed to remain free in the facility with access to residents. Petitioner has not presented evidence to show it was more likely than not that RN Jones immediately took action to protect the residents. Within approximately 30 minutes of the abuse of Resident 5, STNA Dailey also abused Resident 4. Only after the second instance of abuse was STNA Dailey prevented from having access to residents while the investigation proceeded because she was ejected from the facility. The evidence shows that RN Jones took the action because she was told what to do by the DON, not based on RN Jones’ knowledge or understanding of Petitioner’s abuse policy. 

The evidence related to the actions and inactions of STNA McCulley and RN Jones are inconsistent with Petitioner’s arguments that it had an adequate policy that was fully implemented. Petitioner focuses only upon the violation of the policy by STNA Dailey without addressing the failures of STNA McCulley and RN Jones to actually follow the policy. STNA McCulley did not intervene or protest or call for help. When STNA McCulley told RN Jones that STNA Dailey caused Resident 5’s injury, RN Jones failed to isolate STNA Dailey from the residents. RN Jones, knowing the allegation, allowed STNA Daily to remain unmonitored on the facility premises for an additional 30 minutes during which time STNA Dailey abused Resident 4. Petitioner attempts to explain RN Jones’ failure to take action by pointing out that RN Jones was taking other actions as required by its policy, including calling the DON to report the abuse of Resident 5. However, Petitioner’s argument is no defense. RN Jones’ responsibility to call the DON should not have distracted her from her paramount duty to protect Petitioner’s residents. RN Jones failed to confront STNA Dailey immediately with the accusation. RN Jones could have taken STNA Dailey to her office while she called the physician, family, and DON. Alternatively, RN Jones could have had another staff member monitor and restrict STNA Dailey’s access to the residents while RN Jones made the calls to the physician, family, and DON. However, RN Jones did not act to protect Resident 5 and the other residents when she was told STNA Dailey caused the injury and she should have recognized that there was an allegation of abuse. Rather, RN Jones allowed STNA Dailey to continue to have unsupervised access to residents for another 30 minutes, which was plenty of time for STNA Dailey to abuse Resident 4. 

Petitioner argues that it returned to substantial compliance when STNA Dailey was removed from the facility and that her removal abated immediate jeopardy. P. Br. at 6-9. However, the risk for more than minimal harm was only mitigated partially by STNA

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Dailey’s removal. The facts show that at least two staff members did not carry out Petitioner’s abuse policy. Petitioner has presented insufficient evidence to show that the actions or inactions of STNA McCulley and RN Jones were not due to Petitioner’s failure to implement properly its anti-abuse policy. Therefore, requiring that all staff be trained and tested in their knowledge of the policy and required actions is clearly necessary to ensure that Petitioner actually implemented its policy. Petitioner acknowledges that it has the burden to show by a preponderance of the evidence that it returned to substantial compliance earlier than July 22, 2014. P. Br. at 9. Petitioner has not met its burden. 

4. Petitioner has failed to show that the determination of the duration of the immediate jeopardy related to the violation of 42 C.F.R. § 483.13(b) and (c)(1)(i) (Tag F223) was clearly erroneous. 

The surveyors determined that Petitioner’s violation of 42 C.F.R. § 483.13(b) and (c)(1)(i) posed immediate jeopardy to Petitioner’s residents beginning on July 17, 2014 and continuing through July 21, 2014. Petitioner does not dispute that immediate jeopardy existed on July 17, 2014, at least before STNA Dailey was removed from the facility. P. Br. at 10. Petitioner argues that the citation of continuing immediate jeopardy after STNA Dailey’s removal from the facility on July 17, 2014, is clearly erroneous. Petitioner’s theory is that it was only STNA Dailey’s presence that posed immediate jeopardy, not the failures of STNA McCulley and RN Jones or any of its staff to understand and execute Petitioner’s anti-abuse policy. P. Br. at 10-15, 19. Petitioner is in error. 

The regulation is clear that the CMS determination of immediate jeopardy must be upheld unless Petitioner shows the declaration of immediate jeopardy to be clearly erroneous. 42 C.F.R. § 498.60(c)(2). CMS’s determination of immediate jeopardy is presumed to be correct, and Petitioner has a heavy burden to demonstrate clear error in that determination. Yakima Valley Sch., DAB No. 2422 at 8-9 (2011); Cal Turner Extended Care Pavilion, DAB No. 2384 at 14 (2011); Brian Ctr. Health & Rehab./Goldsboro, DAB No. 2336 at 9 (2010) (citing Barbourville Nursing Home, DAB No. 1962 at 11 (2005), aff’d, Barbourville Nursing Home v. U.S. Dep’t of Health & Human Srvs.,174 F. App’x 932 (6th Cir. 2006)); Maysville Nursing & Rehab. Facility, DAB No. 2317 at 11 (2010); Liberty Commons Nursing & Rehab Ctr. – Johnston, DAB No. 2031 at 18-19 (2006), aff’d, Liberty Commons Nursing & Rehab Ctr.–Johnston v. Leavitt, 241 F. App’x 76 (4th Cir. 2007). “Once CMS presents evidence supporting a finding of noncompliance, CMS does not need to offer evidence to support its determination that the noncompliance constitutes immediate jeopardy; rather, the burden is on the facility to show that that determination is clearly erroneous.” Cal Turner, DAB No. 2384 at 14-15, citing Liberty Commons, 241 F. App’x at 81. 

“Immediate jeopardy” under the regulations refers to “a situation in which the provider’s noncompliance with one or more requirements of participation has caused, or is likely to

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cause, serious injury, harm, impairment, or death to a resident.” 42 C.F.R. §§ 488.301, 489.3 (emphasis in original). In the context of survey, certification, and enforcement related to SNFs and NFs under the regulations, a conclusion by the state agency and CMS that noncompliance with program participation requirements poses immediate jeopardy to the facility residents triggers specific regulatory provisions that require enhanced enforcement remedies, including authority for CMS to impose a larger CMP than may be imposed when there is no declaration of immediate jeopardy. 42 C.F.R. §§ 488.408(e), 488.438(a)(1)(i), (c), (d). The regulations also require termination of the facility’s provider agreement on an expedited basis or the removal of the immediate jeopardy through appointment of temporary management. 42 C.F.R. §§ 488.410, 488.440(g), 488.456, 489.53(d)(2)(ii). 

Many appellate panels of the Board have addressed “immediate jeopardy.”8 In Mississippi Care Center of Greenville, DAB No. 2450 at 15 (2012), the Board commented:

CMS’s determination that a deficiency constitutes immediate jeopardy must be upheld unless the facility is able to prove that the determination is clearly erroneous. 42 C.F.R. § 498.60(c)(2); Woodstock Care Center. 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

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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).

The Board’s statement that the CMS immediate jeopardy determination is entitled to deference is subject to being misunderstood to limit ALJ and Board review of immediate jeopardy beyond what was intended by the drafters of the regulations. In the notice of final rulemaking on November 10, 1994, the drafters of 42 C.F.R. § 498.60(c)(2), discussing the merits of the reviewability of deficiency citations, selection of remedy, and scope and severity, commented: 

We believe that a provider’s burden of upsetting survey findings relating to the level of noncompliance should be high, however. As we indicated in the proposed rule, distinctions between different levels of noncompliance, whether measured in terms of their frequency or seriousness, do not represent mathematical judgments for which there are clear or objectively measured boundaries. Identifying failures in a facility’s obligation to provide the kind of high quality care required by the Act and the implementing regulations most often reflect judgments that will reflect a range of noncompliant behavior. Thus, in civil money penalty cases, whether deficiencies pose immediate jeopardy, or are widespread and cause actual harm that is not immediate jeopardy, or are widespread and have a potential for more than minimal harm that is not immediate jeopardy does not reflect that a precise point of noncompliance has occurred, but rather that a range of noncompliance has occurred which may vary from facility to facility. While we understand the desire of those who seek the greatest possible consistency in survey findings, an objective that we share, the answer does not lie in designing yardsticks of compliance that can be reduced to rigid and objectively calculated numbers. Survey team members and their supervisors ought to have some degree of flexibility, and deference, in applying their expertise in working with these less than perfectly precise concepts. For these reasons, we have revised the regulations to require an administrative law judge or appellate administrative review authority to uphold State or HCFA findings on the seriousness of facility deficiencies in civil money penalty cases unless they are clearly erroneous.

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59 Fed. Reg. 56,116, 56,179 (Nov. 10, 1994) (emphasis added). It is clear from this regulatory history that the drafters of 42 C.F.R. § 498.60(c)(2) ensured that the state agency or CMS determination that there was immediate jeopardy would receive deferential consideration, by adopting the clearly erroneous standard of review. Thus, caution must be exercised to ensure that the Board’s decisions in Mississippi Care Center of Greenville, Daughters of Miriam Center, and other decisions that have mentioned deference relative to immediate jeopardy not be read to require deference for the determination that there was immediate jeopardy beyond that imposed by adoption of the clearly erroneous standard. Giving deference to the immediate jeopardy determination or requiring that it be given deference in addition to applying the “clearly erroneous” standard would be contrary to the intent of the drafters of the regulation, would significantly limit the review of the determination by an ALJ and the Board, and would impermissibly deny an affected party the due process right to review intended by the drafters of the regulation. 

In the foregoing quotation from Mississippi Care Center of Greenville, that panel of the Board states that the clearly erroneous standard means that “the immediate jeopardy determination is presumed to be correct, and the burden of proving the determination clearly erroneous is a heavy one.” DAB No. 2450 at 15. Similar formulations have been used in other Board decisions when referring to the “clearly erroneous standard.” However, the Board’s characterization of the “clearly erroneous standard” in Mississippi Care Center and other cases does not define the standard. The “clearly erroneous standard” is described in Black’s Law Dictionary as a standard of appellate review applied in judging the trial court’s treatment of factual issues, under which a factual determination is upheld unless the appellate court has the firm conviction that an error was committed. Black’s Law Dictionary 269 (8th ed. 2004). The Supreme Court has addressed the “clearly erroneous standard” in the context of the Administrative Procedure Act (APA). The Court described the preponderance of the evidence standard, the most common standard, as requiring that the trier-of-fact believe that the existence of a fact is more probable than not before finding in favor of the party that had the burden to persuade the judge of the fact’s existence. In re Winship, 397 U.S. 358, 371-72 (1970) (Harlan, J., concurring); Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers, 508 U.S. 602, 622 (1993). The “substantial evidence” standard considers whether a reasonable mind might accept a particular evidentiary record as adequate to support a conclusion. Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938); Dickinson v. Zurko, 527 U.S. 150, 162 (1999). Under the “clearly erroneous” standard a finding is clearly erroneous even though there may be some evidence to support it if, based on all the evidence, the reviewing judge or authority has a definite and firm conviction that an error has been committed. United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); Dickinson, 527 U.S. at 162; Concrete Pipe, 508 U.S. at 622. The clearly erroneous standard has been characterized by the Court as being stricter than the substantial evidence test and significantly deferential. In discussing the clearly erroneous standard,

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the Court stressed the importance of not simply rubber-stamping agency fact-finding. The Court also commented that the APA requires meaningful review.9 Dickinson, 527 U.S. at 162; Concrete Pipe, 508 U.S. at 622-23.

Various panels of the Board have recognized other principles applicable to the review of the immediate jeopardy issue. A finding of immediate jeopardy does not require a finding of actual harm, only a likelihood of serious harm. Dumas Nursing & Rehab., L.P., DAB No. 2347 at 19 (citing Life Care Ctr. of Tullahoma, DAB No. 2304 at 58 (2010), aff’d, Life Care Ctr. of Tullahoma v. Sec’y of U.S. Dep’t of Health & Human Servs., 453 F. App’x 610). The definition of immediate jeopardy at 42 C.F.R. § 488.301 does not define “likelihood” or establish any temporal parameters for potential harm. Agape Rehab. of Rock Hill, DAB No. 2411 at 18-19 (2011). The duration of the period of immediate jeopardy is also subject to the clearly erroneous standard. Brian Ctr. Health & Rehab./Goldsboro, DAB No. 2336 at 7-8. There is a difference between “likelihood” as required by the definition of immediate jeopardy and a mere potential. The synonym for likely is probable, which suggests a greater degree of probability that an event will occur than suggested by such terms as possible or potential. Daughters of Miriam Ctr., DAB No. 2067 at 10. Jeopardy generally means danger, hazard, or peril. The focus of the immediate jeopardy determination is how imminent the danger appears and how serious the potential consequences. Woodstock Care Ctr., DAB No. 1726. 

What is the meaning of serious injury, harm, or impairment as used in the definition of immediate jeopardy found in 42 C.F.R. § 488.301? How does serious injury, harm, or impairment compare with “actual harm”? On the first question the Board recognized in Yakima Valley School, DAB No. 2422 at 8, that the regulations do not define or explain the meaning of the term “serious” as used in the definition of immediate jeopardy.10 The

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Board suggested that the definitions may be unimportant because the Board has held that, under the clearly erroneous standard, once the state agency or CMS declares immediate jeopardy there is a presumption that the actual or threatened harm was serious and the facility can only rebut the presumption of immediate jeopardy by showing that the harm or threatened harm meets no reasonable definition of the term “serious.” Id. (citing Daughters of Miriam Ctr., DAB No. 2067 at 9). In Daughters of Miriam Center, the Board discussed that the ALJ attempted to define “serious,” finding meanings such as dangerous, grave, grievous, or life-threatening. The Board noted that the ALJ stated that serious harm is outside the ordinary, requiring extraordinary care, or having lasting consequences. The Board further noted that the ALJ stated that a serious injury may require hospitalization, result in long-term impairment, or cause severe pain, as opposed to harm, injury, or impairment that is temporary, easily reversible with ordinary care, does not cause a period of incapacitation, heals without special medical intervention, or does not cause severe pain. The Board did not endorse or adopt the ALJ’s definitional exercise but concluded that it was simply unnecessary in the context of that case. The Board reasoned, as already noted, that the facility bore the burden to rebut the presumption by showing that the actual or threatened harm met no reasonable definition of serious. Daughters of Miriam Ctr., DAB No. 2067 at 9-10.

Applying the clearly erroneous standard to the record before me related to the noncompliance I have found based on the violation of 42 C.F.R. § 483.13(b) and (c)(1)(i), I have no definite and firm conviction that an error has been committed in the determination that immediate jeopardy existed from July 17 through 21, 2014. STNA Dailey subjected two of Petitioner’s residents to abuse, Resident 5 and Resident 4. Petitioner’s staff failed to take steps to protect its residents and ensure that Petitioner’s abuse prevention policy was properly implemented. STNA McCulley did not intervene to protect Resident 5 or protest STNA Dailey’s abusive behavior and she did not call for help. STNA McCulley told RN Jones that STNA Dailey caused Resident 5’s injury. However, RN Jones failed to act immediately to prevent STNA Dailey from being able to access other residents, including Resident 4 who STNA Dailey abused within 30 minutes of RN Jones being informed of STNA Dailey’s alleged abuse of Resident 5. Resident 5 suffered actual harm when STNA Dailey forced her down into her recliner, and Resident 4 faced serious harm or death when STNA Dailey used her knee to push against Resident 4’s chest. The failures of STNA McCulley and RN Jones to implement Petitioner’s

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abuse prevention policy exposed all of Petitioner’s residents to the risk of serious injury, harm, impairment, or death, and that risk continued until Petitioner adequately demonstrated that it had fully implemented its policy by adequately training its staff. Petitioner has failed to show that it fully implemented its policy prior to July 21, 2014, and that the declaration of immediate jeopardy was clearly erroneous. 

Accordingly, I conclude that immediate jeopardy existed from July 17 through July 21, 2014.

5. A CMP of $4,050 per day is a reasonable enforcement remedy for the period July 17 through July 21, 2014, during which noncompliance under Tag F223 posed immediate jeopardy.

6. A CMP of $100 per day is a reasonable enforcement remedy for the period July 22 through September 7, 2014, for noncompliance under Tags F223 and F226 that did not pose immediate jeopardy but posed a risk for more than minimal harm without actual harm or immediate jeopardy.

7. Petitioner did not request review of the findings of noncompliance cited by the survey that ended October 1, 2014 or the related enforcement remedy of a $100 per day CMP beginning September 8, 2014 and continuing through October 7, 2014, which is final and not subject to review. RFH; Jt. Stip. ¶¶ 10-12.

Petitioner does not challenge a $4,050 per day CMP for one day of immediate jeopardy on July 17, 2014. Petitioner argues that any CMP beyond the one day on July 17, 2014, is unreasonable. Petitioner’s Proposed Conclusion of Law 7. 

I have concluded that Petitioner violated 42 C.F.R. §§ 483.13(b) and (c)(1)(i) (Tag F223) and 483.13(c) (Tag F226) as cited by the survey completed on August 11, 2014; the violation of 42 C.F.R. § 483.13(b) and (c)(1)(i) (Tag F223) caused actual harm to Resident 5 and posed immediate jeopardy for Petitioner’s residents from July 17 through 21, 2014. I have also concluded that Petitioner has failed to show that the declaration of immediate jeopardy for the period July 17 through 21, 2014 was clearly erroneous. 

If a facility is not in substantial compliance with program requirements, CMS has the authority to impose one or more of the enforcement remedies listed in 42 C.F.R. § 488.406, including a CMP. CMS may impose a per day CMP for the number of days that the facility is not in compliance or a per instance CMP for each instance that a facility is not in substantial compliance, whether or not the deficiencies pose immediate jeopardy. 42 C.F.R. § 488.430(a). A CMP that is imposed against a facility on a per day basis will fall into one of two ranges of penalties. 42 C.F.R. §§ 488.408, 488.438.

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The upper range of CMPs, $3,050 per day to $10,000 per day, is reserved for deficiencies that pose immediate jeopardy. 42 C.F.R. § 488.438(a)(1)(i), (d)(2). The lower range of CMPs, $50 per day to $3,000 per day, is reserved for deficiencies that do not pose immediate jeopardy but either cause actual harm to residents, or cause no actual harm but have the potential for causing more than minimal harm. 42 C.F.R. § 488.438(a)(1)(ii). 

CMS proposes a CMP of $4,050 for each of the five days of immediate jeopardy from July 17 through 21, 2014. CMS proposes a CMP of $100 per day for each day after immediate jeopardy was abated to the date on which Petitioner has conceded it was not in substantial compliance and waived further review, which was on or about September 8, 2014, based on the survey completed on October 1, 2014.11 The total CMP proposed is $28,050. I note that the proposed per day CMP in the upper range ($4,050) and the proposed per day CMP ($100) in the lower range are near the low end of the authorized ranges. I conclude based on the following analysis that the proposed CMP is in the reasonable range. 

If I conclude, as I have in this case, that there is a basis for the imposition of an enforcement remedy and the remedy proposed is a CMP, my authority to review the reasonableness of the CMP is limited by 42 C.F.R. § 488.438(e). The limitations are: (1) I may not set the CMP at zero or reduce it to zero; (2) I may not review the exercise of discretion by CMS in selecting to impose a CMP; and (3) I may only consider the factors specified by 42 C.F.R. § 488.438(f) when determining the reasonableness of the CMP amount. In determining whether the amount of a CMP is reasonable, the following factors specified at 42 C.F.R. § 488.438(f) must be considered: (1) the facility’s history of noncompliance, including repeated deficiencies; (2) the facility’s financial condition; (3) the seriousness of the deficiencies as characterized by 42 C.F.R. § 488.404(b), the same factors CMS and/or the state were to consider when setting the CMP amount; and (4) the facility’s degree of culpability, including but not limited to the facility’s neglect, indifference, or disregard for resident care, comfort, or safety, and the absence of culpability is not a mitigating factor. The factors that CMS and the state were required to consider when setting the CMP amount and that I am required to consider when assessing the reasonableness of the amount are set forth in 42 C.F.R. § 488.404(b): (1) whether the deficiencies caused no actual harm but had the potential for minimal harm; no actual

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harm with the potential for more than minimal harm, but not immediate jeopardy; actual harm that is not immediate jeopardy; or immediate jeopardy to resident health or safety; and (2) whether the deficiencies are isolated, constitute a pattern, or are widespread. My review of the reasonableness of the CMP is de novo and based upon the evidence in the record before me. I am not bound to defer to the CMS determination of the reasonable amount of the CMP to impose but my authority is limited by regulation as already explained. I am to determine whether the amount of any CMP proposed is within reasonable bounds considering the purpose of the Act and regulations. Emerald Oaks, DAB No. 1800 at 10 (2001); CarePlex of Silver Spring, DAB No. 1683 at 14-18 (1999); Capitol Hill Cmty. Rehab. & Specialty Care Ctr., DAB No. 1629 (1997).

I have received no evidence that Petitioner had a history of noncompliance prior to the survey at issue. Petitioner has not argued that its financial condition affects its ability to pay the proposed CMP. I conclude that Petitioner’s deficiencies are serious. Petitioner was culpable in that its staff failed to ensure that its residents were free from abuse and Petitioner failed to ensure its staff could properly implement its abuse policies and procedures. Petitioner’s staff member abused a resident, who suffered actual harm. Petitioner’s staff failed to immediately react to the witnessed incident of abuse and ensure that the perpetrator could not continue to abuse residents. Petitioner’s failures exposed its residents to the risk for serious harm, impairment, or death. Considering that the CMPs at both the immediate jeopardy level and non-immediate jeopardy level are at the low end of the authorized ranges and also considering the regulatory factors, I conclude that the proposed CMPs are reasonable enforcement remedies.

III. Conclusion

For the foregoing reasons, I conclude that Petitioner was not in substantial compliance with program participation requirements from July 17 through October 7, 2014, due to violations of 42 C.F.R. §§ 483.13(b) and (c)(1)(i), and 483.13(c). I further conclude that the following enforcement remedies are reasonable: a CMP in the amount of $4,050 per day for 5 days of noncompliance that posed immediate jeopardy from July 17 through 21, 2014, and a CMP of $100 per day for 78 days of noncompliance from July 22 through October 7, 2014, that did not pose immediate jeopardy but posed a risk for more than minimal harm without actual injury, a total CMP of $28,050. Petitioner was ineligible to be approved to conduct a NATCEP for two years beginning August 11, 2014.

• 1. Citations are to the 2013 revision of the Code of Federal Regulations (C.F.R.) in effect at the time of the initial determination, unless otherwise indicated.
• 2. CMS also filed a motion for summary judgment when the waiver of oral hearing was filed. However, because the parties waived oral hearing, it is possible to resolve this case on the merits based on the documentary evidence and the parties’ pleadings. Accordingly, there is no need to resort to summary judgment and the limitations associated therewith. See e.g. Fed. R. Civ. P. 56.
• 3. Participation of a nursing facility (NF) in Medicaid is governed by section 1919 of the Act. Section 1919(h)(2) of the Act gives enforcement authority to the states to ensure that NFs comply with their participation requirements established by sections 1919(b), (c), and (d) of the Act.
• 4. “Credible evidence” is evidence that is worthy of belief. Black’s Law Dictionary 596 (8th ed. 2004). The “weight of evidence” is the persuasiveness of some evidence compared to other evidence. Id. at 1625. 
• 5. This is a “Tag” designation as used in CMS Publication 100-07, State Operations Manual (SOM), app. PP – Guidance to Surveyors for Long Term Care Facilities (http://www.cms.hhs.gov/Manuals/IOM/list.asp). The “Tag” refers to the specific regulatory provision allegedly violated and CMS’s policy guidance to surveyors. Although the SOM does not have the force and effect of law, the provisions of the Act and regulations interpreted clearly do have such force and effect. Ind. Dep’t of Pub. Welfare v. Sullivan, 934 F.2d 853 (7th Cir. 1991); Northwest Tissue Ctr. v. Shalala, 1 F.3d 522 (7th Cir. 1993). Thus, while the Secretary may not seek to enforce the provisions of the SOM, he may seek to enforce the provisions of the Act or regulations as interpreted by the SOM.
• 6. Scope and severity levels are used by CMS and a state when selecting remedies. The scope and severity level is designated by an alpha character, A through L, selected by CMS or the state agency from the scope and severity matrix published in the SOM, chap. 7, § 7400.5 (Sep. 10, 2010). A scope and severity level of A, B, or C indicates a deficiency that presents no actual harm but has the potential for minimal harm, which is an insufficient basis for imposing an enforcement remedy. Facilities with deficiencies of a level no greater than C remain in substantial compliance. 42 C.F.R. § 488.301. A scope and severity level of D, E, or F indicates a deficiency that presents no actual harm but has the potential for more than minimal harm that does not amount to immediate jeopardy. A scope and severity level of G, H, or I indicates a deficiency that involves actual harm that does not amount to immediate jeopardy. Scope and severity levels J, K, or L indicate deficiencies that constitute immediate jeopardy to resident health or safety. The matrix, which is based on 42 C.F.R. § 488.408, specifies which remedies are required and optional at each level based upon the frequency of the deficiency.
• 7. Petitioner had the policy but based on my review I conclude the policy was deficient in many respects. This decision must not be read to suggest that Petitioner’s policy was adequate. However, because Petitioner was not cited for not having the policy, I do not find any deficiency based on the obvious defects in the policy. 
• 8. Decisions often cited include: Lakeport Skilled Nursing Ctr., DAB No. 2435 at 7 (2012); Liberty Health & Rehab of Indianola, LLC, DAB No. 2434 at 13, 18-19 (2011); Yakima Valley Sch., DAB No. 2422 at 8; Lutheran Home at Trinity Oaks, DAB No. 2111 (2007); Britthaven of Havelock, DAB No. 2078 (2007); Daughters of Miriam Ctr., DAB No. 2067; Koester Pavilion, DAB No. 1750; Woodstock Care Ctr., DAB No. 1726 at 39.
• 9. The Board’s characterization of the clearly erroneous standard as being highly deferential to the fact-finding by the state agency surveyor and CMS, and even triggering a rebuttal presumption, is entirely consistent with the Supreme Court’s characterization of the standard. However, the Court’s cautions about ensuring meaningful review rather than rubber-stamping agency decisions show it is important for the ALJ and the Board not to be tempted to simply defer to the surveyor, the state agency, or CMS on the immediate jeopardy issue. 
• 10. Appendix Q of the SOM also fails to provide surveyors a working definition of the term “serious” that they can use to determine whether harm, injury, or impairment is serious when deciding whether or not to declare immediate jeopardy. The Act does not define the phrase “immediately jeopardize” and does not introduce the concept of serious harm, injury, or impairment as the basis for finding immediate jeopardy. Thus, one is not in error concluding that absent a definition of the term “serious” in the Act, the regulations, the SOM, or decisions of the Board, it is essentially up to individual surveyors, who rely on whatever unpublished guidance they receive from their superiors or CMS officials, to exercise their individual discretion and judgment to decide that there was immediate jeopardy, which subjects a facility to the maximum imposable CMPs. 
• 11. In their briefs, the parties debate whether Petitioner preserved a challenge to the reasonableness of the non-immediate jeopardy CMP based on the noncompliance cited by the August 2014 survey. CMS argues Petitioner waived review as to the entire CMP in the lower range. CMS Br. at 12 n.10. Petitioner argues it preserved its right to review of the CMP in the lower range based on the August 2014 citations of noncompliance. P. Br. at 7. I conclude that Petitioner has preserved its right to review of the CMP in the lower range.