Rock Island Nursing & Rehabilitation Center, DAB CR5301 (2019)

DECISION

Rock Island Nursing & Rehabilitation Center (Rock Island or Petitioner) challenges the determination by the Centers for Medicare & Medicaid Services (CMS) that it was not in substantial compliance with Medicare program participation requirements, such that it placed its residents in immediate jeopardy of harm. Rock Island also challenges CMS’s imposition of a $56,400 civil money penalty (CMP) as unreasonable. For the reasons discussed below, I affirm CMS’s determination and find the CMP amount it selected reasonable.

I. Background

Rock Island is a skilled nursing facility (SNF) located in Rock Island, Illinois that participates in the Medicare program. On June 9, 2015, the Illinois Department of Health (IDPH or State agency) completed an unannounced complaint survey at Rock Island’s facility. As a result of that survey, the State agency surveyor completed a CMS-2567 Statement of Deficiencies (SOD) specifying her findings and conclusions. CMS Ex. 3. Based on that SOD, IDPH cited Rock Island for eleven deficiencies, two of which were related to resident abuse and cited at the immediate jeopardy (IJ) level. CMS adopted

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those findings and conclusions, which included the determination that Rock Island’s actions placed residents in immediate jeopardy commencing on May 24, 2015. CMS therefore imposed a $5,900 per-day CMP beginning May 24, 2015, which would continue until Rock Island achieved substantial compliance with SNF standards.

Based on a July 17, 2015 re-visit survey, CMS determined that Rock Island was still not in substantial compliance with SNF standards, but that immediate jeopardy ceased on May 31, 2015. CMS Ex. 1. As a result, CMS maintained the $5,900 per-day CMP from May 24, 2015 through May 31, 2015. Id. at 3. However, because Rock Island had failed to correct several other deficiencies that still persisted, CMS imposed a $200 per-day CMP commencing June 1, 2015. Id. at 2. Regarding those deficiencies, CMS determined that Rock Island returned to substantial compliance on July 16, 2015, and CMS therefore ended the $200 per-day CMP as of July 17, 2015. Id.

In total, CMS imposed $56,400 in penalties against Rock Island, stemming from a $5,900 per-day CMP for the eight-day period of immediate jeopardy from May 24, 2015 through May 31, 2015, and a $200 per-day CMP for the 46-day period from June 1, 2015 through July 16, 2015, when the facility was in substantial noncompliance but did not subject its residents to immediate jeopardy. Id. at 3.

The parties have agreed that Rock Island does not challenge the non-IJ deficiency findings from the June 9, 2015 survey (specifically those deficiencies tagged under F157, F279, F280, F312, F323, F329, F332, F371, F431, and F441). Joint Statement of Issues. Rock Island does contest the two IJ deficiencies:

• 42 C.F.R. §§ 483.13(c)(1)(ii)-(iii), (c)(2)-(4) (Tag F225 – Investigate and Report Abuse and Neglect) at a K level of scope and severity.1
• 42 C.F.R. § 483.13(c) (Tag F226 – Abuse and Neglect Policies and Procedures) at an L level of scope and severity.

Joint Statement of Issues. IDPH found that Rock Island had abated the two relevant deficiencies (Tags F225 and F226) on May 31, 2015. CMS Ex. 4. IDPH therefore determined that the conditions resulting in immediate jeopardy had been removed as of June 1, 2015. CMS Ex. 15.

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Rock Island timely requested a hearing before an administrative law judge to dispute CMS’s imposition of enforcement remedies. The case was first assigned to Judge Joseph Grow, who directed the parties to file pre-hearing submissions that included written direct testimony for all proposed witnesses, proposes exhibits, and pre-hearing briefs. CMS filed a pre-hearing brief (CMS Br.) and 17 proposed exhibits (CMS Exs. 1-17) which included written direct testimony for one witness. Rock Island filed a pre-hearing brief (P. Br.) and 42 proposed exhibits (P. Exs. 1-42) which included written direct testimony for eleven witnesses.

CMS sought leave to file a response to Rock Island’s brief, and Judge Grow permitted the parties to submit supplemental briefing. CMS subsequently filed a reply (CMS Reply), to which Rock Island filed a sur-reply (P. Sur-Reply). This matter was subsequently transferred to Judge Scott Anderson and then to me.

Because neither party asked to cross-examine the other party’s witnesses, an in-person hearing would serve no purpose. I will decide this matter based on the written record before me. Civ. Remedies Div. P. 19(d).

II. Issues

The issues presented are:

1. Whether Petitioner failed to be in substantial compliance with the Medicare participation requirements.2
2. If so, whether CMS’s determination of noncompliance at the immediate jeopardy level is clearly erroneous; and
3. Whether the CMP amount selected by CMS is reasonable.

III. Jurisdiction

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

IV. Applicable Law

The Social Security Act (Act) sets forth requirements for a SNF’s participation in the Medicare program and authorizes the Secretary of Health and Human Services (the Secretary) to promulgate regulations implementing those statutory provisions. 42 U.S.C.

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§ 1395i-3. The Secretary’s regulations are found at 42 C.F.R. Parts 483 and 488. To participate in the Medicare program, a SNF must maintain substantial compliance with program participation requirements. To be in substantial compliance, a SNF’s deficiencies may “pose no greater risk to resident health or safety than the potential for causing minimal harm.” 42 C.F.R. § 488.301. “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.” Id.

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

Relevant here, a per-day CMP may range from either $50 to $3,000 per day for less serious noncompliance, or $3,050 to $10,000 per day for more serious noncompliance that poses immediate jeopardy to the health and safety of residents. 42 C.F.R. § 488.438(a). “Immediate jeopardy” exists when “the provider’s noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.” 42 C.F.R. § 488.301. If CMS imposes a CMP based on a noncompliance determination, then the facility may request a hearing before an administrative law judge to challenge the noncompliance finding and enforcement remedy. 42 U.S.C. §§ 1320a-7a(c)(2), 1395i-3(h)(2)(B)(ii); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13).

V. Statement of Facts

A. Resident 4.

Resident 4, a resident of Rock Island at times relevant to this decision, had diagnoses including acute respiratory failure, end-stage renal disease, metabolic encephalopathy, subdural hemorrhage, senile dementia, hypertension, and hypothyroidism. CMS Ex. 7 at 1. Resident 4 exhibited severe cognitive impairment and was dependent on staff for transfers. CMS Ex. 7 at 1, 3; CMS Ex. 12 at 8, 15. Resident 4 had difficulty expressing herself both verbally and non-verbally. CMS Ex. 12 at 6. Her cognitive limitations caused her to be incoherent and nonsensical at times. CMS Ex. 14 at 3-4.

Resident 4 had a history of dermatological conditions in her perineal area, including abscesses in her vulva and labia majora. P. Exs. 10, 20-25. A July 2014 progress note indicated Resident 4 engaged in “[continuing] scratching of pelvic area.” P. Ex. 17 at 2. On September 14, 2014, Rock Island transferred Resident 4 to a hospital where she was

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admitted for treatment of vaginal itching and multiple abscesses on the labia majora by means of incision and drainage. P. Ex. 19.

           B. The Events of May 24 to May 25, 2015.

In an interview with IDPH Surveyor Jeanette Heitzler, CNA Josh Cline indicated that he first saw Resident 4 around 7:00 a.m. on Sunday, May 24, 2015, and noticed “a few bruises on her arms,” but nothing unusual while providing perineal care. CMS Ex. 10 at 5. CNA Cline further relayed that Resident 4 had stayed in bed all day and that it was not until “around 5:00 when CNAs [and] nurses started talking about it.” Id.

Tammy Gustafson, LPN confirmed in her interview with Surveyor Heitzler that around 5:00 p.m., CNA Adrienne Gibson informed her of a possible problem with Resident 4. CMS Ex. 10 at 1, 12. Nurse Gustafson stated:

“[Resident 4’s] covers were down. She was very guarded of her vaginal area. She kept her knees closed, she didn’t want anyone looking at it. I noticed right away that the right side of her vagina (the labia) was very swollen and she had scratch marks on her right thigh. There appeared to be a hand print on the right thigh . . . I also noticed swelling and bruising under her right eye.”

CMS Ex. 10 at 1. Deborah Brower, RN reported to Surveyor Heitzler that Nurse Gustafson asked her to “come look at something on [Resident 4] around 5:00 pm.” Id. at 2. Nurse Brower specified that Resident 4’s vagina was swollen and red and that she had “fresh bruising on inner thighs.” Id. Nurse Brower indicated “[Resident 4] was withdrawn, which wasn’t like her, fearful . . . she was trying to push covers down . . . she had a bruise to her right eye around [her] cheek bone . . . I said we need to report it.” Id.

Nurse Gustafson entered her own examination notes at 7:03 p.m., and indicated Resident 4’s vaginal area was red, specifically observing her “right side [labia] is red and swollen and residents [sic] clitoris has obvious swelling.” CMS Ex. 11 at 6. Nurse Gustafson noted “the origin of swelling and redness was unknown” and indicated she would inform the oncoming shift for monitoring and have a nurse practitioner examine Resident 4 in the morning. Id.

CNA Cindy Mentria reported to Surveyor Heitzler that she went into Resident 4’s room around 10:00 p.m., stating “I went in her room . . . she had her private area exposed . . . it looked unusual. There was a flap of skin hanging from the vagina. There was reddness [sic].” CMS Ex. 10 at 3.

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June DeNeve, LPN stated to Surveyor Heitzler that she became aware of the problem regarding Resident 4 at 10:00 p.m. on May 24, 2015. CMS Ex. 10 at 11. Nurse DeNeve indicated that she noted Resident 4’s vaginal area (labia) was swollen, red, and protruding. Id. Nurse DeNeve also observed Resident 4 “was acting different. She kept trying to pull her gown down as we were trying to look.” Id.

Nurse DeNeve entered an examination note at 12:46 a.m. on May 25, 2015 observing Resident 4’s “vaginal area remains red and swollen and very tender to touch.” CMS Ex. 11 at 5. At 5:36 a.m., Nurse DeNeve entered another examination note indicating she had noticed bruising to Resident 4’s inner thighs and notified the facility administrator, Elizabeth Webster, at 5:25 a.m. Id.

Rock Island’s Director of Nursing (DON), Sandy Williamson, reported to Surveyor Heitzler that Administrator Webster was out of town on May 25, 2015, but she alerted the administrator at 5:30 that morning of a possible abuse allegation based on the observation of bruising on Resident 4’s inner thigh and redness of her labia. CMS Ex. 10 at 6, 8.

DON Williamson arrived at Rock Island at approximately 6:30 a.m. and attempted to interview and examine Resident 4, but was unable to do so as she was undergoing dialysis. P. Ex. 16 at 2. She attempted to call the local police department, with whom she spoke at some point after 7:45 a.m. Id. DON Williamson explained she had called concerning a possible abuse allegation; when asked if there were actual signs of abuse, she replied that “staff had reported bruising but no actual signs of abuse or trauma.” Id. at 3. The individual to whom she spoke told her to call back if there were any signs of abuse, and did not generate a report or dispatch an officer. Id. DON Williamson also attempted to contact the local Elder Abuse Officer, left a message, and then generated and faxed an initial report to IDPH. Id.

After Resident 4 completed dialysis, DON Williamson examined her along with Nurse Henderson, and observed Resident 4’s labia to be “a little puffy” and that she had bruising along the upper right thigh, but no signs of trauma or bleeding.3 Id.

Nurse Sandy Windisch entered an examination note at 9:40 a.m. noting swelling in Resident 4’s labia, as well as bruising on Resident 4’s “upper legs” and “inner left upper thigh.” CMS Ex. 11 at 5. Nurse Windisch noted staff had used a sling that crossed between Resident 4’s legs to transport Resident 4, and educated staff on not using this type of sling. Id.

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At around 12:14 p.m., Nurse Practitioner Marisa McCune evaluated Resident 4 for reported bruising to her arms, left hip, and inner thighs. Id. at 2. Nurse Practitioner McCune concluded from her examination that the bruising had been caused by the use of a “criss-cross [H]oyer sling” and ordered its use discontinued. Id. at 5.

At 8:33 p.m., Nurse Gustafson noted Resident 4 had “what appears to look-like [sic] scratch mark on her right inner thigh,” and was “very ‘guarded of her genital’ area.” Id. at 1.

C. Post-incident Investigation.

On May 28, 2015, Rock Island submitted a final report to IDPH (Final Report) indicating an investigation had been initiated after Resident 4 exhibited redness and swelling in the vaginal area. P. Ex 4 at 2. The report (which does not identify its author) noted that Resident 4 was assessed by DON Williamson, who observed labial edema and inner thigh bruising consistent with the use of a Hoyer sling. Id. The report characterized the labial swelling as chronic, which it explained by noting Resident 4’s history of touching herself. Id. at 2-3. It concluded the bruising was caused by use of a criss-cross Hoyer sling, which it indicated would no longer be used for Resident 4. Id. Finally, the report indicated Rock Island notified the police department’s Elder Officer Sloan, who it characterized as “satisfied with findings of investigation.” Id. at 3.

From May 29 to June 9, 2015, IDPH Surveyor Heitzler conducted a complaint investigation at the Rock Island facility. CMS Ex. 3 at 3-5; CMS Ex. 7 at 4. She examined Resident 4 and noted she had bruising around her right eye, bruises on both arms including “fingertip bruising” on her right arm, bilateral upper thigh bruises including a “hand print” bruise on her left leg, scratches on her right leg, and bruising on her right labia, and redness and swelling on her labia in general. Id.  Surveyor Heitzler also conducted interviews with Rock Island employees, memorialized in short statements written by Surveyor Heitzler which were signed by those employees. CMS Ex. 10.

D. Rock Island Employee Declarations.

On January 26, 2016, as part of its pre-hearing exchange, Rock Island submitted declarations from several employees involved with this incident. Because Rock Island relies on them to dispute certain aspects of the surveyor’s notes and findings, I summarize them here:

• Deborah Brower, RN declared that she noted redness and swelling of Resident 4’s vaginal area on May 24, 2015, but saw no fresh bruising on the resident’s thighs. P. Ex. 9 at 2. Nurse Brower also declared that she “never stated that R[esident] 4 had been acting withdrawn.” Id. Nurse Brower claimed that her statement to Nurse Gustafson, that they “needed to

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• report,” was in reference to the fact that they needed to report the issues of vaginal swelling/redness to the next shift, not that they should report the issues as potential abuse. Id.
• June DeNeve, LPN declared that she examined Resident 4 after being informed by Tammy Gustafson that Resident 4 had swelling in her vaginal area. P. Ex. 10. Nurse DeNeve noted Resident 4’s labia and the surrounding area seemed swollen, and “presented as though R[esident] 4’s depends had irritated her.” Id. at 2. Nurse DeNeve indicated that she did not see any bruising on Resident 4’s inner thighs. Id.
• Marisa McCune, FNP-BC declared that based upon Resident 4’s medical history of vaginal swelling and irritation, she would not have expected facility staff to contact her immediately upon noticing redness or irritation to Resident 4’s vaginal area. P. Ex. 14 at 3. Nurse Practitioner McCune stated she observed slight edema to Resident 4’s labia and that “redness, irritation, or swelling” to Resident 4’s vaginal area is consistent with her medical condition and her behaviors. Id. at 3-4. McCune also stated that because Resident 4’s vaginal opening is “extremely small and atrophied, if there had been trauma, it would have been obvious.” Id. at 4.
• Jackie Madunic, MSW declared she was not interviewed by the surveyor as part of the June 9, 2015 survey. P. Ex. 7 at 1. Ms. Madunic indicated Resident 4 could not always verbalize her needs, but did make her needs known by her actions and was very expressive with her body language. Id. She asserted that Resident 4 “also does speak” and “is capable of responding to simple questions, especially questions about herself and how she is feeling.” Id. at 2.
• Tammy Gustafson, LPN declared that Resident 4 had a history of vaginal infections and scratching herself in her perineal area. P. Ex. 15. Nurse Gustafson stated that when she entered Resident 4’s room, she saw her with her covers pulled up over her (not down), and that upon examination, Resident 4 exhibited redness on the right side of her labia and slight swelling. Id. at 2. Nurse Gustafson claimed that the surveyor’s notes were inaccurate and that when she described Resident 4 as “guarded” of her vaginal area, she meant “she was getting mad that so many people had been examining her over the past two days down there,” and that she “never meant that R[esident] 4 seemed fearful.” Id. Nurse Gustafson also indicated she never saw a “hand print” on Resident 4’s right thigh, saw no signs of abuse, and was never told to report the incident as an allegation of abuse. Id. at 2-3.

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• DON Sandy Williamson declared that she received a call at 5:30 a.m. on May 25, 2015 from Administrator Liz Webster about a possible abuse allegation. P. Ex. 16 at 1-2. Upon her arrival to Rock Island, Resident 4 was in dialysis, where DON Williamson was unable to examine or interview her. Id. At that time, DON Williamson called police, whom DON Williamson told “staff had reported bruising but no actual signs of abuse or trauma.” Id. at 3. DON Williamson then faxed the initial report to IDPH. Id. At that point DON Williamson went to Resident 4’s room to examine her, at which time she found her “labia to be a little puffy” however she claimed there were no signs of trauma. Id. DON Williamson asked Resident 4 if she itched down there, to which Resident 4 “shook her head yes,” and if she hurt down there, to which Resident 4 “shook her head no.” Id. DON Williamson then states “I asked R[esident] 4 if anyone had hurt her down there and she shook her head no and looked at me like it was silly for me to have asked that question.” Id.

VI. Discussion4

A. Applicable Law.

CMS requires skilled nursing facilities to maintain substantial compliance with program requirements in order to participate in the program. To be in substantial compliance, a facility’s deficiencies may pose no greater risk to resident health and safety than “the potential for causing minimal harm.” 42 C.F.R. § 488.301.

This requirement necessarily obligates a facility to keep residents free from verbal, sexual, physical, and mental abuse. W. Care Mgmt. Corp., DAB No. 1921 at 12 (2004). CMS defines “abuse” to mean “the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.” 42 C.F.R. § 488.301.

To that end, facilities must comply with several more specific requirements. 42 C.F.R. § 483.13(c)5 provides in relevant part:

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

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(2) The facility must ensure that all alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source, and misappropriation of resident property are reported immediately to the administrator of the facility and to other officials in accordance with State law through established procedures (including to the State survey and certification agency).

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

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

Consistent with these regulatory requirements, Rock Island had at all times relevant to this decision a formal policy prohibiting abuse of residents, including sexual abuse, which in turn included sexual assault. CMS Ex. 6 at 1. The policy intended to prevent such abuse in part by implementing systems to “promptly” investigate reports or allegations of abuse. Id. This included a requirement that the facility would “assess possible patterns or trends of suspicious bruising,” document the appearance of suspicious bruises or other abnormalities, assess the resident, review documentation, and report to the administrator. Id. at 5. Facility employees were obliged to “immediately” report “suspicions of potential abuse . . . they observe, hear about, or suspect. . .” Id.

In the event of such a report, the facility administrator was required to initiate an incident investigation. Id. Where an injury occurred absent an allegation of abuse, the administrator had to appoint a fact-finder who would determine whether the injury was “of unknown source,” meaning the injury was not observed or explained by the resident and was otherwise suspicious because of its extent, location, or frequency. Id. at 6. Where an injury was found to be of unknown source, Rock Island’s policy demanded “the procedures and timeframes for reporting and investigating abuse allegations will be followed.” Id. at 6-7.

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B. Analysis.

1. Rock Island Was Not In Substantial Compliance With 42 C.F.R. § 483.13(c)(2) (Tag F225) Because Its Staff Failed to Immediately Report Signs of Suspected Abuse of Resident 4.

The essential dispute between the parties concerns when Rock Island’s obligation to report and investigate the possibility of sexual abuse of Resident 4 was triggered. CMS argues that Rock Island employees should have recognized the obligation to immediately report the possible abuse of Resident 4 at around 5:00 p.m. on May 24, 2015, when at least four facility nurses observed signs that were “highly suggestive” of abuse, referring here to vaginal swelling and redness and guarded behavior. CMS Br. at 10-11.

Rock Island asserts that its staff, being familiar with Resident 4’s history of dermatological conditions in her perineal area, recognized the physical signs relied upon by CMS as simply non-emergent symptoms of a recurring medical condition, and therefore properly did not initiate the facility’s abuse reporting protocol. P. Br. at 6-7, 11. Rock Island further argues that its staff properly initiated and followed the facility’s abuse protocol at approximately 5:30 a.m. of May 25, 2015, when bruising to Resident 4’s thighs was first observed. Id. at 7.

I find Rock Island’s argument unpersuasive for several reasons. First, the contemporaneous charting notes fail to confirm the facility’s contention that its staff were aware of Resident 4’s history of treatment for vaginal redness and swelling when they observed these signs and chose not to report them. For example, Nurse Gustafson entered a treatment note at 7:03 p.m. on May 24, 2015 taking note of Resident 4’s vaginal swelling and redness, after a nurse aide who noted the same symptoms asked her to examine Resident 4. CMS Ex. 11 at 6. Critically, Nurse Gustafson stated the “[o]rigin of swelling and redness is unknown. . .” Id. She then asked another staff member, Nurse Brower, to examine Resident 4. CMS Ex. 10 at 2. Nurse Brower also noted Resident 4’s vagina was swollen and red and indicated that she thought they needed to report the issue, which suggests an unusual situation. CMS Ex. 10 at 2; P. Ex. 9 at 2.6

Similarly, Nurse Aide Mentria noted around 10:00 p.m. the same day that Resident 4’s private area looked “unusual.” CMS Ex. 10 at 3. Around the same time, Nurse DeNeve observed Resident 4’s “vaginal area remain[ed] red and swollen and very tender to touch.” Id. at 11.

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Treatment notes preceding the incident fail to corroborate Rock Island’s assertion that Resident 4’s vaginal swelling and redness were chronic conditions. Progress notes submitted by CMS only go back to May 18, 2015, but in the six-day period before May 24, 2015, Resident 4’s chronic conditions are listed by diagnosis on two occasions, and in neither instance does a diagnosis associated with redness or swelling of the vagina appear. CMS Ex. 11 at 7, 13.

Rock Island cites more historical treatment notes to support its claim that its staff would not have thought these symptoms indicative of abuse because of their chronic nature, but can only point to treatment notes from the fall of 2014 and one treatment note from February 2015, three months before the incident at issue here. P. Br. at 5-6, citing P. Exs. 19-27. These records in fact confirm that as of May 2015, vaginal redness and swelling were not documented as usual or typical symptoms for Resident 4.

Reports by facility staff to the surveyor days after the incident further demonstrate these employees observed signs that were suggestive of abuse, but took no action. Nurse Gustafson recollected her examination of Resident 4 at around 5:00 p.m. on May 24, 2015, and reported:

[Resident 4’s] covers were down. She was very guarded of her vaginal area. She kept her knees closed, she didn’t want anyone looking at it. I noticed right away that the right side of her vagina (the labia) was very swollen and she had scratch marks on her right thigh. There appeared to be a hand print on the right thigh . . . I also noticed swelling and bruising under her right eye.

CMS Ex. 10 at 1. Nurse Brower examined Resident 4 after Nurse Gustafson asked her to do so, and reported she had “fresh bruising on [her] inner thighs” and was withdrawn, fearful, and exhibited a bruise to her right eye around cheek bone, concluding, “we need to report it.” Id. at 2. Nurse DeNeve also examined Resident 4 that day, and reported that she thought Resident 4 was “acting different.” Id. at 11.

In sum, contemporaneous treatment notes and staff statements to the surveyor clearly demonstrate that between approximately 5:00 p.m. on May 24, 2015 and 12:46 a.m. on May 25, 2015, no fewer than five members of the facility’s staff observed redness and swelling in Resident 4’s vaginal area, and thought it unusual enough to ask other members of staff to examine Resident 4. They also noted guarded behavior by Resident 4 that was suggestive of abuse. The resulting actions taken by the facility’s staff simply do not corroborate Rock Island’s assertion that they treated Resident 4’s vaginal swelling and redness as chronic conditions.

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In response to the substance of these signed statements made by its staff to Surveyor Heitzler only days after the incident, Rock Island has submitted declarations from some of them that purport to correct errors in the original statements. Nurse Gustavson declared that she had not seen a hand print on Resident 4’s thigh and did not mean to characterize her as fearful when she described Resident 4 as “guarded.” P. Ex. 15 at 2. Nurse Brower denied that she had described Resident 4 as “acting withdrawn,” and that the phrase “we need to report it” only referred to notifying the oncoming shift of these issues, not that a reportable instance of possible abuse had occurred. P. Ex. 9 at 2. Nurse DeNeve offered an explanation for the swelling she had observed, opining that Resident 4 presented as if her adult undergarments had irritated her. P. Ex. 10 at 2. Notably, all three denied the presence of bruising on Resident 4’s thighs, though only one of them, Nurse Gustafson, had mentioned a “hand print” in her statement to the surveyor.

To the extent these declarations attempt to amend the statements made contemporaneously to Surveyor Heitzler by these witnesses, I do not accept them as fully credible. Rock Island contends that the contemporaneous statements should be accorded less weight because the surveyor did not convey to facility staff that they were affirming and adopting her words by affixing their signatures to her summary of their statements. P. Sur-reply at 2. Rock Island also contends these statements are less credible because they are a mere summary of what the surveyor heard, and that in any event, the witnesses would have felt pressured or bullied into signing the notes because of the surveyor’s authority. Id. at 2-3.

These arguments are without merit. There is no Miranda­­-like obligation for a surveyor to warn facility employees that their words could be used against the facility; in any event, the context of the interview would make that possibility plain. Certainly, any competent adult who is interviewed and then asked to sign a recorded version of a statement, even a handwritten one, should know affixing his or her signature serves to validate that statement. In any event, Rock Island has not demonstrated actual evidence of duress or bias on the part of Surveyor Heitzler. I have no basis to even consider giving less or no weight to statements taken by her.7 I note further that the perceived authority of the surveyor is a two-edged sword; if it is significant enough to intimidate the facility’s employees, then surely it is significant enough to discourage them from making or casually signing factually inaccurate statements.

Rock Island’s witness declarations are also entitled to less weight because they were made months after this incident took place, in January 2016. Surveyor Heitzler interviewed these employees in the days following the incident. I find it more likely that their recollections at the time were more accurate than in statements made seven to eight months later.

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Finally, the changes in their testimony seem uniquely suited to serve Rock Island’s litigation interests. Given the facility’s theory of the case is that it had no obligation to report abuse until bruises appeared on May 25, 2015, it is surely no coincidence that Nurses Gustavson, Brower, and DeNeve all made statements attempting to explain away any signs of bruising that occurred on May 24, 2015.

For these reasons, I find these declarations less credible than the contemporaneous statements made by facility staff to Surveyor Heitzler, and I find no basis to conclude the surveyor’s notes were intentionally or inadvertently inaccurate with respect to memorializing the statements of facility staff.8

As outlined above, I find that Rock Island had an obligation to initiate an abuse investigation on May 24, 2015 at approximately 5:00 p.m., when Nurse Aide Gibson informed Nurse Gustafson of a possible problem with Resident 4, leading Nurse Gustafson to examine the resident and observe vaginal swelling, bruising on her right thigh and under her right eye, and guarded behavior, all of which taken together should have triggered an abuse notification to the facility administrator followed by an investigation.9 CMS Ex. 10 at 1.

Rock Island did eventually initiate an investigation, but did not do so within the timeframe required by the applicable regulations, which require a facility to immediately report possible abuse. The regulation in effect at the time of this incident did not define the term ‘immediately,’ but the Board has observed that used elsewhere in Part 483, the term was intended to be accorded its ordinary dictionary meaning, “at once” or “without delay.” Rockcastle Health & Rehab Ctr., DAB No. 2891 at 11 n.12 (2018). The updated version of this regulation now states that where possible abuse has occurred, including injuries of unknown origin, a facility’s staff is required to make an ‘immediate’ report to the facility administrator within two hours. 42 C.F.R. § 483.12(c)(1).

Under either version of the regulation, Rock Island did not act immediately. It did not initiate an investigation or report to the facility administrator until 5:30 a.m. on May 25, 2015, over 12 hours later, when DON Williamson contacted Administrator Webster and alerted her to a possible abuse allegation. CMS Ex. 10 at 6, 8. Because it failed to

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recognize signs of potential abuse and immediately initiate an investigation, Rock Island did not substantially comply with 42 C.F.R. § 483.13(c)(2).

2. Rock Island Did Not Substantially Comply With 42 C.F.R. § 483.13(c)(3) (Tag F225) Because the Facility Failed to Thoroughly Investigate the Suspected Abuse of Resident 4.

Rock Island also failed to substantially comply with the applicable regulations or its own abuse policy because it did not thoroughly investigate Resident 4’s signs of potential abuse. 42 C.F.R. § 483.13(c)(3); CMS Ex. 6 at 5. First, it is clear the facility did not take steps to thoroughly ascertain whether Resident 4 may have been subject to abuse, but instead assumed such abuse had not taken place. DON Williamson asserted that she immediately attempted to interview Resident 4 at approximately 6:30 a.m. on May 25, 2015, but could not examine her because she was undergoing dialysis. P. Ex. 16 at 2. As a result, she could not examine Resident 4 until 10:00 a.m. that day. CMS Ex. 11 at 5.

Nevertheless, at approximately 8:40 a.m., DON Williamson faxed an initial report to IDPH alerting the agency of Resident 4’s vaginal swelling and redness,10 as well as bruising on the inner thigh, but identifying non-abuse related reasons for these symptoms. P. Ex. 4 at 6 (noting a history of abscesses in the vulvar region, frequent self-touching in the perineal area, and the presence of a dialysis catheter in the left groin, which coupled with the use of anti-coagulants, presumably explained the bruising in the inner thigh area). This decision to notify IDPH and explain away signs of possible abuse without even examining or interviewing the resident harmonizes with CMS’s contention that Rock Island investigated the potential abuse of Resident 4 in a perfunctory manner. CMS Br. at 13.

Equally troubling, the facility failed to adequately advise the local police department of a possible abuse situation. DON Williamson advised IDPH in her initial contact that the facility had already notified the local police department, P. Ex. 4 at 6, but in fact, she failed to make a meaningful effort to notify the Rock Island police that a possible incident of abuse had occurred. Instead, DON Williamson used a non-emergency line to contact the police at approximately 7:45 a.m., and when asked if there were signs of abuse, replied that “staff had reported bruising but no actual signs of abuse or trauma.” P. Ex. 16 at 2. It is hardly surprising, then, that the police department opted to take no further action. Rock Island cannot now rely on the lack of response by the local police as justification for its lackluster investigation. DON Williamson characterized the situation as non-emergent and flatly denied signs of abuse to the police, all before even examining

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or interviewing the resident. This is not the “thorough investigation” contemplated by the regulations.

Rock Island’s own written policy demanded more from an internal investigation, stating that “[r]eports should be documented and a record kept of the documentation.” CMS Ex. 6 at 5. And where an “injury of unknown source” takes place, Rock Island’s policy explicitly requires the investigator “. . . at a minimum, attempt to interview the person who reported the incident, anyone likely to have direct knowledge of the incident and the resident, if interviewable.” Id. at 7.

But there is little if any documentation of the investigation that allegedly took place. Rock Island claims it conducted interviews of staff “who worked in the days prior to May 25th” regarding their involvement with Resident 4. P. Sur-reply at 9. But the facility did not generate or preserve any record of these interviews, as required by its policy. Rock Island points to the fact that it mentions these interviews in its Final Report to IDPH as proof of their existence. P. Sur-reply at 9; P. Ex. 4. However, the Final Report does not in fact identify the employees interviewed or the substance of any statements made. The facility would have been better served by documenting its investigation rather than alluding to it. Finally, to the extent Rock Island’s Final Report documents its efforts to interview Resident 4 (and I have no other contemporaneous documents I could consider), it is clear that the facility made little effort to meaningfully interview her. The Final Report notes only that DON Williamson asked Resident 4 “if she was in pain and resident stated no. Resident made no other complaints of injury. Resident typically will answer yes or no questions.” P. Ex. 4 at 2. Even if I credit the facility’s assertion that Resident 4 was able to effectively communicate,11 DON Williamson did not attempt to ask Resident 4 questions that would rule out or confirm whether she had been abused.12

For these reasons, I conclude Rock Island did not take appropriate action to thoroughly investigate suspected abuse of Resident 4 and was therefore not in substantial compliance with 42 C.F.R. § 483.13(c)(3).

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3. Rock Island Did Not Substantially Comply With 42 C.F.R. § 483.13(c)(3) (Tag F226) Because the Facility Failed to Implement Its Abuse Prevention Policies and Procedures.

Given the foregoing discussion, it is not difficult for me to conclude that Rock Island did not substantially comply with Tag F226 by failing to implement a system-wide policy and procedure regarding resident abuse, as required at that time by 42 C.F.R. § 483.13(c). Rock Island did have a written policy, see CMS Ex. 6, but the actions of its staff, from the first moment Resident 4 exhibited an observable sign of potential abuse to the conclusion of the investigation, demonstrate the facility did not adequately implement that policy because its staff did not appear to be cognizant of it.

The facility’s policy required its staff to immediately report suspicion of potential abuse to the administrator. CMS Ex. 6 at 5. But numerous Rock Island employees saw signs of abuse on May 24, 2015 – vaginal swelling and redness, bruises, scratches, and guarded behavior – which they thought significant enough to identify to co-workers but not to report.

Prompted by Nurse Aide Gibson’s concern, Nurse Gustafson observed Resident 4 was “very guarded of her vaginal area,” kept her knees closed, had scratch marks and a hand print on her right thigh, and swelling and bruising under her right eye. Id. Nurse Gustafson asked Nurse Brower to examine Resident 4, who similarly noted bruising on the inner thighs and around the right eye, and observed Resident 4 was withdrawn and fearful. Id. at 2. She concluded “we need to report it.” Id. Later that evening, Nurse Aide Mentria thought Resident 4’s private area looked unusual. Id. at 3. Nurse DeNeve noted Resident 4’s vaginal area (labia) was swollen, red, and protruding. Id. at 11. She also observed Resident 4 “was acting different. She kept trying to pull her gown down as we were trying to look.” Id.

Taken in concert, these symptoms overwhelmingly suggest the possibility of abuse. Nevertheless, Resident 4’s treatment team opted not to inform the facility administrator or even Resident 4’s attending physician. Id. at 9. Yet I find no evidence that these individuals acted maliciously. From their collective reactions, however, it is clear they were not aware of their reporting obligations under Rock Island’s abuse prevention policy.

The facility’s more highly placed employees fared no better at complying with Rock Island’s policy. The facility administrator, upon discovering possible sexual abuse of a resident, delegated the investigation to the director of nursing and disappeared from the

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documentary record.13 DON Williamson, to whom the investigatory role fell, failed to document her investigation, properly alert local law enforcement, or even adequately interview the resident. Again, there is no evidence of malice or an attempt to cover up wrongdoing. Rock Island’s staff simply appears to have been unfamiliar with the basic elements of the facility’s abuse policy with respect to recognizing signs of possible abuse or the steps to take when such signs arose.

As the Board has observed, non-compliance with Tag F226 is evident even in one instance of possible abuse where “management and multiple staff members did not know how to respond properly to an injury of unknown origin under circumstances suggesting sexual abuse” and where “[t]he facility . . . failed to follow the action steps set out in [its abuse policy] before prematurely abandoning any effort to determine whether the injury was the result of abuse.” Columbus Nursing & Rehab. Ctr., DAB No. 2247 at 26 (2009).

These elements are present here. One instance of non-compliance with the facility abuse policy occurred, but the non-compliance was significant and widespread, as multiple staff members failed to recognize signs of possible abuse and act in a timely fashion, while facility management did not respond to or investigate the possibility of abuse in an appropriate manner. Non-compliance was not limited to one or two individuals, but was instead systemic, suggesting that Rock Island’s employees were simply not sufficiently aware of the abuse policy to actually apply it. Accordingly, I find Rock Island did not properly implement its abuse policy and therefore was not in substantial compliance with Tag F226.

4. CMS’s determination that Rock Island’s deficiencies posed immediate jeopardy was not clearly erroneous.

Rock Island contests the findings of immediate jeopardy in this case, asserting its actions did not cause and were not likely to cause serious injury, harm, impairment, or death to a resident. P. Br. at 19. CMS contends that the immediate jeopardy findings under Tags F225 and F226 were justified because Rock Island’s inadequate response on behalf of Resident 4 on May 24 and May 25, 2015 demonstrated that all of the residents, particularly vulnerable residents, were susceptible to sexual or other abuse. CMS Br. at 16.

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Immediate jeopardy exists when a facility’s noncompliance “has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.” 42 C.F.R. § 488.301. I must affirm an immediate jeopardy determination unless Rock Island shows that it is clearly erroneous. 42 C.F.R. § 498.60(c)(2). The “clearly erroneous” standard imposes a heavy burden on SNFs, and CMS will prevail where it presents evidence “from which ‘[o]ne could reasonably conclude’ that immediate jeopardy exists.” Barbourville Nursing Home, DAB No. 1962 at 11 (2005), citing Florence Park Care Ctr., DAB No. 1931 at 27-28 (2004).

The regulations nowhere require that a resident actually be harmed. Lakeport Skilled Nursing Ctr., DAB No. 2435 at 8 (2012). Nor is CMS required to prove that abuse actually occurred. Columbus Nursing & Rehab. Ctr., DAB No. 2247 at 21; Beverly Health Care Lumberton, DAB No. 2156 at 12-13 (2008); Somerset Place, DAB No. 2164 at 4 (2010). Instead, the relevant issue is whether Rock Island’s failure to substantially comply with the regulations was likely to cause serious injury, harm, impairment, or death.

Here, CMS found a pattern of immediate jeopardy under Tag F225 (scope/severity level “K”) and widespread immediate jeopardy under Tag F226 (scope/severity level “L”). I cannot say CMS’s determination of immediate jeopardy in either instance was clearly erroneous. As I discussed above, facility staff failed to recognize potential signs of abuse and timely report them. When the potential abuse situation was finally recognized and reported, the facility quickly arrived at its conclusion that no abuse took place without thoroughly investigating the possibility. As Surveyor Heitzler put it, Rock Island’s staff was both too slow to recognize signs of potential abuse, and then too quick to find no abuse occurred after performing only a cursory investigation. CMS Ex. 17 at 2.

The facility-wide lack of awareness of the abuse policy allowed the staff to indulge a tendency towards minimization in this particular instance. The same lack of sensitivity towards the possibility of abuse under a different set of circumstances could have led to profound or prolonged abuse of any other resident in the facility, not just Resident 4. See Columbus Nursing & Rehab., DAB No. 2247 at 28 (“[W]e note further that the lack of competent follow-up also demonstrated that other residents were exposed to likely harm because they could not rely on the facility to act effectively to protect them from abuse and to respond appropriately to any injury or allegation.”).

Rock Island’s failure to identify, timely report, and investigate possible signs of sexual assault or abuse placed all of the facility’s residents in immediate jeopardy. Therefore, I conclude CMS’s determination – that Rock Island’s failure to substantially comply with the requirements of Tags F225 and F226 resulted in a period of immediate jeopardy lasting from May 24, 2015, through May 31, 2015 – is not clearly erroneous.

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

In determining whether the per-day CMP amounts imposed against Rock Island are reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f). 42 C.F.R. § 488.438(e)(3). These factors include: (1) the facility’s history of compliance; (2) the facility’s financial condition; (3) the factors specified at 42 C.F.R. § 488.404;14 and (4) the facility’s degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort, or safety. The absence of culpability is not a mitigating factor. Unless a facility contends that a particular regulatory factor does not support the CMP amount, I must sustain it. Coquina Ctr., DAB No. 1860 at 32 (2002).

Here, CMS opted to impose a CMP of $5,900 per day for eight days of immediate jeopardy (May 24, 2015, through May 31, 2015), and $200 per day for 46 days of substantial noncompliance that was not at the level of immediate jeopardy (June 1, 2015, through July 16, 2015), for a total CMP of $56,400. Rock Island does not appear to dispute the period during which per-day fines were imposed.15 Instead, the facility confines its objection to the finding of immediate jeopardy, arguing it properly investigated any alleged abuse, and that even if it did not, its misconduct did not rise to the level of immediate jeopardy. P. Br. at 19. As I have already discussed, however, I conclude the findings of immediate jeopardy with respect to both deficiencies are not clearly erroneous.

With respect to duration, CMS properly determined that Rock Island’s deficiency was at the immediate jeopardy level from May 24, 2015, through May 31, 2015, as this was the period from the date the suspected abuse occurred to the date Rock Island took the proper measures to return to compliance. CMS Ex. 15. I also conclude that CMS properly continued to penalize Rock Island at a non-immediate jeopardy level from June 1, 2015, through July 16, 2015.

Furthermore, after considering the required applicable factors, I find that the CMP amounts imposed in this case are reasonable. Rock Island has a history of noncompliance that includes citations of F225 and F226 predating the instant matter,

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arising from two surveys in 2014. CMS Ex. 2 at 2. The fact that this prior history relates to the same two citations at issue here reinforces the CMP selected by CMS. 42 C.F.R. § 488.404(c)(2). Rock Island’s culpability in this matter is high. By virtue of her age and infirmity, Resident 4 was a vulnerable resident, and exhibited several signs of potential abuse that caused multiple staff members who treated her to express their concern. But the facility’s failure to sensitize its employees to the need to expeditiously report such signs of abuse caused a delay in reporting those signs. Its failure to familiarize its staff with its abuse policy also resulted in a cursory and undocumented investigation of that alleged abuse. I also note Rock Island has not alleged an inability to pay the CMP due to financial hardship. 42 C.F.R. § 488.438(e)(3).

Finally, a $5,900 per-day CMP sits reasonably in the middle of the range for penalties at the immediate jeopardy level, which can range from $3,050 to $10,000. 42 C.F.R. § 488.438(a)(1)(i). For these reasons, I conclude that the $5,900 per-day CMP imposed during the immediate jeopardy period is reasonable, as is a $200 per-day CMP for the period where deficiencies existed below the level of immediate jeopardy.

VII. Conclusion

I affirm CMS’s determination that Rock Island was not in substantial compliance with Medicare program participation requirements and that Rock Island’s substantial noncompliance posed immediate jeopardy to residents. Further, I conclude that a $5,900 per-day CMP from May 24, 2015, through May 31, 2015, and a $200 per-day CMP from June 1, 2015, through July 16, 2015, are reasonable.

• 1. Scope and severity levels are used by CMS and state survey agencies when selecting remedies.  The scope and severity level is designated by letters A through L, selected from the scope and severity matrix published in the State Operations Manual, Ch. 7, § 7400.3.1 (Nov. 16, 2018).  Facilities with deficiencies of levels A, B, or C remain in substantial compliance.  42 C.F.R. § 488.301.  Levels D, E, or F indicate a deficiency that presents no actual harm, but has the potential for more than minimal harm that does not amount to immediate jeopardy.  Levels G, H, or I indicate a deficiency that involves actual harm that does not amount to immediate jeopardy.  Scope and severity levels J, K, and L contain deficiencies that constitute immediate jeopardy to resident health or safety.  The matrix specifies which remedies are required and optional at each level based upon the pervasiveness of the deficiency.
• 2. Because the parties have stipulated that Rock Island challenges only the two deficiencies that occurred at the IJ level, I will not discuss the remaining deficiencies.
• 3. Surveyor Heitzler’s interview notes record DON Williamson stating that when she examined Resident 4 with Nurse Henderson, she saw redness under the right thigh, a small bruise on the left inner thigh, and “nothing obvious to the vaginal area.”  CMS Ex. 10 at 6.
• 4. My conclusions of law are in italics and bold.
• 5. CMS re-housed this regulation at 42 C.F.R. § 483.12(c).  81 Fed. Reg. 68,688, 68,855 (Oct. 4, 2016).  Because the survey at issue here occurred prior to that change, I will cite to the regulations in effect at that time.
• 6. In her declaration, Nurse Brower clarified that “needed to report” meant passing along their observations to the next nursing shift, not initiating an abuse report.  P. Ex. 9 at 2.  But the fact remains that Nurse Brower thought Resident 4’s symptoms unusual enough to take some sort of reporting action.
• 7. I am not inclined, and in fact not permitted, to exclude evidence based upon unsubstantiated allegations of surveyor bias.  Cmty. Northview Care Ctr., DAB No. 2295 at 27 (2009).
• 8. Even if I were to fully credit these declarations, they would not serve to allow Rock Island to prevail, because I have rejected the facility’s theory that it had no obligation to report the possibility of abuse until May 25, 2015, when staff first took note of bruises.
• 9. Accepting for the sake of argument Rock Island’s claim that its duty to report and investigate was not triggered until bruises were observed, I note Nurse Aide Josh Cline stated he noticed bruises on Resident 4’s arms at around 7:00 a.m. on May 24, 2015.  CMS Ex. 10 at 5.  Rock Island has made no effort to explain or address Nurse Aide Cline’s statement.  However, CMS does not argue the facility needed to take action at that point.
• 10. Curiously, Rock Island now asserts that Resident 4’s vaginal swelling and redness were not signs of possible abuse that triggered its obligation to initiate an investigation, but on that day, DON Williamson thought it necessary to identify these signs to IDPH as part the facility’s initial report of possible abuse.
• 11. As the government points out, there is in fact ample evidence in Resident 4’s clinical record to suggest she was an unreliable communicator and had significant difficulty expressing her wants and needs.  CMS Reply at 8 (citing CMS Ex. 12 at 6; CMS Ex. 14 at 3-4; P. Ex. 30 at 1).  This documented limitation would require the facility to take extra care in interviewing Resident 4, which it did not do.
• 12. Williamson later declared that she actually did “ask[] R[esident] 4 if anyone had hurt her down there and she shook her head no and looked at me like it was silly for me to have asked that question.”  P. Ex. 4 at 2.  If true, this would mean Resident 4 expressly told Rock Island during its investigation into possible abuse against her that no one had “hurt her down there” but that Rock Island somehow failed to document this critical information in any manner or include it in its Final Report to IDPH.  I do not find this likely to be true.
• 13. Months later, Administrator Webster supplied a declaration claiming she directed the investigation, was in “constant communication” with DON Williamson during the investigation, and ultimately concluded no abuse took place.  P. Ex. 12 at 2.  But a self-serving statement made in anticipation of litigation has hardly the same impact as actual documentary evidence of the investigation purportedly conducted in this case would have in my assessment of the thoroughness of the facility’s efforts.  Put another way, I have no greater insight into Rock Island’s investigatory efforts with Administrator Webster’s declaration than I did without it.
• 14. These include the scope and severity of the deficiency, the relationship of the deficiency to other deficiencies resulting in noncompliance, and the facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies.
• 15. Any such argument would be futile, since CMS based the dates of Immediate Jeopardy on Rock Island’s own estimation of when it would have completed its training in order to abate immediate jeopardy.  CMS Ex. 15; CMS Br. at 17.  Rock Island’s plan for abatement of immediate jeopardy indicated the facility would perform in-service training regarding the abuse prevention program, and that “any staff not receiving training by 5-31-2015 will be removed from schedule until training completed.”  CMS Ex. 15.