Benbrook Nursing & Rehabilitation Center, DAB CR5351 (2019)

DECISION

I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) to impose a per-instance civil money penalty of $20,000 against Petitioner, Benbrook Nursing & Rehabilitation Center, a skilled nursing facility.

I. Background

I held a hearing on February 12, 2019.  I received into evidence exhibits from CMS, identified as CMS Ex. 1-CMS Ex. 20.  I received into evidence exhibits from Petitioner, identified as P. Ex. 1-3; 5-13; 15-16; and 18-25.  The parties filed post-hearing briefs.  With its post-hearing brief CMS filed two additional exhibits, identified as CMS Ex. 21 and CMS Ex. 22.

Petitioner objected to my receiving CMS Ex. 21 and CMS Ex. 22, primarily on the ground that CMS offered them untimely. I find CMS Ex. 21 and CMS Ex. 22 to be non-controversial inasmuch as they identify facts that are publicly available and not in

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dispute. The exhibits, consisting of an affidavit and a report, recount Petitioner’s history of noncompliance with Medicare participation requirements and identify which past findings of noncompliance are administratively final and which findings remain under appeal.  I receive these exhibits into evidence solely to identify publicly available facts.  I also receive into evidence Petitioner’s supplemental affidavits, identified as P. Exhibit A.

II. Issues, Findings of Fact and Conclusions of Law

A. Issues

The issues are whether Petitioner failed to comply substantially with a Medicare participation requirement and whether CMS’s remedy determination is reasonable.

B. Findings of Fact and Conclusions of Law

CMS asserts that Petitioner failed to comply with a Medicare participation requirement stated at 42 C.F.R. § 483.12(a)(1).  In relevant part the regulation states in its opening paragraph that a resident of a skilled nursing facility has the right to be free from abuse.  In subsection (a)(1) the regulation reiterates that a facility must not use abuse.  “Abuse” is defined by regulation to mean a deliberate act by an individual that inflicts injury.  42 C.F.R. § 488.301.  “Abuse” includes both physical and sexual abuse.  Id.

Petitioner asserts that CMS incorrectly labels its alleged noncompliance as violating 42 C.F.R. § 483.12(a)(1), noting that this subsection applies to abuse committed by a facility.  This case involves resident-on-resident abuse and I agree that citing this subsection is inapt.  However, the broader language of the preamble of 42 C.F.R. § 483.12 subsumes the abuse that is at issue here.  Therefore, any mislabeling of the regulatory basis for noncompliance is harmless and does not prejudice Petitioner.

However, Petitioner goes farther by arguing that in reality, CMS is alleging not abuse, but that Petitioner “neglected” the needs of one of its residents.  That mischaracterizes CMS’s allegations.  This is not a case about resident neglect; it is a case about whether Petitioner failed to protect its residents from sexual abuse.

CMS alleges that Petitioner violated 42 C.F.R. § 483.12 because it allowed a resident of its facility to perpetrate sexual abuse against another resident.  More specifically, CMS contends:  that Petitioner knew or should have known that it had admitted into its facility a resident who had a proclivity for inappropriate sexual behavior; that it failed to assess this resident for the risks that he posed to other residents before housing him with the resident population; that it failed to develop interventions in order to protect other residents from sexual abuse; and that it did not adequately supervise the resident in a situation in which the resident had the opportunity to abuse another resident and exercised that opportunity.

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The evidence strongly supports CMS’s contentions.  It establishes that Petitioner failed, in violation of 42 C.F.R. § 483.12, to take actions that might have prevented a resident, identified as Resident #2, from sexually abusing another resident, Resident #1.  Most notably, Petitioner failed to act on information in its possession prior to admission of Resident #2 to its facility suggesting that the resident engaged in inappropriate behavior of a sexual nature including exposing himself in public.  CMS Ex. 10 at 34.  Petitioner’s failure to protect its residents violated Petitioner’s policy against abuse, which states in relevant part that its staff will:  “identify residents with needs and behaviors which might lead to conflict or neglect.”  CMS Ex. 15 at 1.

Resident #1 is a severely disabled woman who had resided at Petitioner’s facility since 2005.  At the time of the abuse the resident was 70 years old.  She was both mentally and physically incapacitated.  She suffered from intellectual disabilities, unspecified psychosis, a major depressive disorder, and an anxiety disorder.  CMS Ex. 5 at 3; CMS Ex. 9 at 1-2, 5.  She had severely impaired speech, rarely or never understood others, and exhibited severely impaired cognition.  CMS Ex. 5 at 3; CMS Ex. 9 at 53, 55.  She was blind.  She suffered from impairments to one side of the upper half of her body and to both sides of the lower half of her body.  CMS Ex. 5 at 4;CMS Ex. 9 at 63.

Resident #1 was totally dependent on Petitioner’s staff for her activities of daily living.  She was totally dependent on staff for dressing, toilet use, personal hygiene, and bathing.  CMS Ex. 5 at 3-4; CMS Ex. 9 at 62-63.  She was unable to move independently and depended on staff to move her from one location to the next.  CMS Ex. 5 at 4; CMS Ex. 9 at 63.

Petitioner admitted Resident #2 to its facility on February 1, 2018, and discharged him on February 8, 2018.  At the time of his admission Resident #2 was a man aged 88 years.  The resident had diagnoses that included dementia with behavioral disturbance.  CMS Ex. 5 at 6; CMS Ex. 10 at 1.  Although his cognition was severely impaired, the resident had clear speech and was able to understand others.  CMS Ex. 5 at 6; CMS Ex. 10 at 56.

On February 4, 2018, a certified nursing assistant observed Resident #s 1 and 2 seated next to each other in the television viewing area across from Petitioner’s nursing station.  CMS Ex. 5 at 4-5; CMS Ex. 11 at 23; CMS Ex. 12 at 1.  She observed Resident #1 attempting to push Resident #2’s hand away from her.  On closer observation the nursing assistant realized that Resident #2 had placed his hand down Resident #1’s pants.  CMS Ex. 5 at 4-5; CMS Ex. 11 at 23; CMS Ex. 12 at 1.  When the nursing assistant asked Resident #2 what he was doing he replied by saying “nothing.”

The nursing assistant did not separate Residents #s 1 and 2.  She left the two residents unattended while she reported the incident to a licensed vocational nurse at about 11:20 a.m. on February 4.  CMS Ex. 5 at 5; CMS Ex. 11 at 23.

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Reacting to the nursing assistant’s report, Petitioner’s staff decided to monitor Resident #2 throughout the nursing shift.  CMS Ex. 5 at 5; CMS Ex. 10 at 46, 100.  However, and despite this decision, the staff did not closely monitor Resident #2 for approximately an hour after the nursing assistant reported the sexual abuse incident.  It was not until 12:26 p.m. on February 4 that the staff commenced one-to-one monitoring of Resident #2’s behavior.  The sexual abuse incident was not the precipitating event for the commencement of one-to-one monitoring.  Rather, staff initiated one-to-one monitoring only after Resident #2 attempted to elope Petitioner’s facility.  CMS Ex. 5 at 5; CMS Ex. 10 at 46, 100.

Resident #2 sexually abused Resident #1 despite Petitioner’s staff knowing that Resident #2 had a proclivity for inappropriate sexual behavior.  On January 26, 2018, just six days prior to Resident #2’s admission to Petitioner’s facility, a nurse practitioner evaluated the resident to identify services that he potentially needed.  In his report the nurse practitioner stated:

[Resident #2’s] daughter-in-law raised concern about the patient[’]s ability to live on his own due to some inappropriate behavior and his dementia.  His daughter-in-law says that the police have been called out to his home because he exposes himself in public and to people who come to his home i.e. Cable lady.

CMS Ex. 10 at 34.  Petitioner received the nurse practitioner’s report.  It appears as part of the documents that Petitioner assembled when it admitted Resident #2 to its premises.  CMS Ex. 10.

The nurse practitioner’s report warned anyone assuming the duty to provide care for Resident #2 that the resident had a proclivity for inappropriate sexual conduct.  At the least, it imposed a duty on Petitioner to assess Resident #2 carefully to determine what risk he posed to other residents of Petitioner’s facility.

However, the evidence establishes that Petitioner failed to react to this report in any meaningful way.  It effectively allowed Resident #2 free reign to perpetrate sexual abuse against other residents.

Resident #2’s treatment record contains no assessment of the resident’s sexual behavior and proclivities.  Petitioner did not generate an interim care plan for the resident that mentioned the possibility of inappropriate sexual behavior as an issue requiring its staff’s attention.  The record is devoid of any evidence showing that caregivers were warned that the resident might engage in inappropriate behavior.

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There is, furthermore, no evidence showing that the staff undertook measures to protect its residents from the possibility that Resident #2 might engage in sexually abusive conduct.  Prior to February 4, 2018, the staff was not instructed to watch the resident.  Resident #2’s movements were not restricted or monitored.  He was free to interact with other residents including those who were helpless and incapacitated, such as Resident #1.

Petitioner’s staff failed to protect other residents from Resident #2 even in the immediate aftermath of sexual abuse of Resident #1.  The staff did not commence one-to-one monitoring of Resident #2 for at least an hour after the nursing assistant saw and reported the abuse.

Petitioner makes several arguments to support its assertion that it complied substantially with the regulation governing abuse.  I find these arguments to be without merit.

Its principal arguments reduce to the following:  first, Petitioner argues at great length that the surveyor who identified the abuse at Petitioner’s facility failed to do her job properly.  This alleged failure, according to Petitioner irretrievably taints the surveyor’s noncompliance findings, rendering them invalid.  Second, Petitioner claims that, prior to admitting Resident #2 to its premises, its staff investigated the warnings contained in the nurse practitioner’s report and found them to be without substance.  See CMS Ex. 10 at 34.  According to Petitioner, its staff conducted a reasonable investigation and found no basis to conclude that Resident #2 posed a threat to other residents in the facility.  Therefore, according to Petitioner, it must be excused from its failure to further assess the resident for the possibility of inappropriate sexual behavior and to plan for the possibility that the resident might pose a threat.

I address Petitioner’s second argument first.

Petitioner contends that its assertion that it reasonably investigated the possibility that Resident #2 might pose a threat to other residents prior to his admission to Petitioner’s facility finds support in four affidavits that I received into evidence as P. Ex. 19-P. Ex. 22.  In fact, three of these affidavits, P. Ex. 19-P. Ex. 21, are derivative and provide no support for Petitioner’s claim.  None of the witnesses in the first three affidavits claim to have investigated the allegations about Resident #2 and none of those witnesses have first-hand evidence concerning that resident.  For that reason I find these affidavits to be irrelevant to the issue of whether Petitioner investigated the allegations concerning Resident #2’s proclivities prior to admitting him into its facility.

The fourth affidavit comprises the sworn statement of Rita Love, Petitioner’s Marketing/Admissions Director.  P. Ex. 22.  Ms. Love asserts that she became aware of some claims of inappropriate sexual behavior by Resident #2 while processing the application for his admission to Petitioner’s facility.  Id. at 1.  She asserts that she:

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spoke with . . . [the resident’s] granddaughter who explained that the reported incident happened at his home.  Res. #2 had been in his private room, in his home, with the door closed, masturbating when a cable company employee came into the room without knocking.

Id.  According to Ms. Love and Petitioner what the resident did in the privacy of his bedroom created no inference that he might sexually abuse other residents of Petitioner’s facility.  Therefore, according to Petitioner, it discharged its duty to investigate the resident’s proclivities once it verified that the resident’s behavior was limited to masturbating in private.

I find this evidence to be unpersuasive.  Ms. Love – as she describes her efforts – inadequately researched the hazards potentially posed by Resident #2.  She spoke with no one who verified that he or she had first-hand knowledge of the allegations made in the nurse practitioner’s report. She failed even to contact individuals who might have had first-hand knowledge, and the information she received failed to resolve the allegations concerning the resident’s alleged proclivity to expose himself in public.

The report generated by the nurse practitioner attributes the allegations about Resident #2’s behavior, including the allegation that he “exposes himself in public” to the resident’s daughter-in-law and not to the resident’s granddaughter. CMS Ex. 10 at 34. Ms. Love spoke to the granddaughter and not to the daughter-in-law.  P. Ex. 22 at 1.1 Ms. Love doesn’t suggest that she made any attempt to speak to the daughter-in-law. There is nothing in Ms. Love’s testimony that indicates that she made any effort to ascertain how the granddaughter knew that Resident #2’s conduct was limited to masturbating in private. Ms. Love does not recite that the granddaughter claimed that she was present at the resident’s home when the incident occurred nor does she explain how the granddaughter came into possession of whatever knowledge she contended to have.

Indeed, Resident #2 lived alone.  His daughter-in-law’s concern about his inability to continue living alone was the basis for seeking to admit him to Petitioner’s facility. CMS Ex. 10 at 34. There is nothing in the record of this case explaining how the daughter-in-law learned of the facts that she recited to the nurse practitioner. Was she or the granddaughter present when the incident involving the “Cable lady” occurred?  Nothing in the record answers that question.

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Despite Ms. Love’s affidavit, the facts surrounding the resident’s alleged public exposure and the incident involving the “Cable lady” are unclear. Ms. Love certainly didn’t clear up the ambiguities by speaking with the granddaughter, who may not even have been a witness to the incident. Neither she, nor anyone else at the facility spoke with the daughter-in-law, the “Cable lady,” or with the police, who allegedly received a report of the incident.

The allegations about Resident #2’s behavior remained unresolved even after Ms. Love spoke with the resident’s granddaughter. The ambiguity of those allegations imposed a duty on Petitioner’s staff to investigate further before admitting the resident, and certainly before they put him into the resident population essentially unsupervised.

I find Petitioner’s other principal argument to be without merit as well.  The surveyor who obtained the evidence relied on by CMS – evidence that establishes a prima facie case of Petitioner’s noncompliance – is not on trial.  Her thoroughness in investigating Petitioner is a non-issue.  To be blunt, the surveyor could have selected documents and interviewed staff at random and completely haphazardly and, if the evidence she obtained established a prima facie case of Petitioner’s noncompliance, then that shifted the burden to Petitioner to rebut it.  Suffice it to say that the evidence obtained by CMS in this case – no matter what methodology the surveyor used to obtain it – is powerful proof of Petitioner’s noncompliance, and constitutes proof that Petitioner did not rebut.

That said, there is considerable irony to Petitioner’s allegations about the surveyor’s allegedly inadequate performance.  Petitioner asserts that the surveyor failed precisely to do what Petitioner was obligated to do but that it did not do.  Indeed, in alleging that the surveyor inadequately did her job Petitioner underscores its own failure to protect its residents from sexual abuse perpetrated by Resident #2.

Petitioner asserts that the surveyor admitted that she:

never interviewed Resident 2’s daughter in law or granddaughter . . . .  Neither did she interview the “cable lady”. . . . [The surveyor] never interviewed Resident 2’s treating physician or Physician’s Assistant, and she never talked to the police department about any supposed incidents with Resident 2 . . . .

Petitioner’s post-hearing brief at 3.

Petitioner’s staff should have conducted all of these interviews prior to admitting Resident #2.  The information that the staff had in its possession raised alarms about the resident’s behavior.  Speaking only with the granddaughter did not resolve any of those

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issues.  The daughter-in-law, the “Cable lady” and the police all potentially had information that might have created a clear image of what threats Resident #2 posed.

Petitioner also argues that its staff adequately supervised Resident #2 because he and Resident #1 “were in the day room, in plain line of sight from the nurses’ station.”  Petitioner’s post-hearing brief at 6.  But, the evidence makes it obvious that this supervision, if one can even call it that, was inadequate.  None of the nurses working at the nurses’ station observed Resident #2 insert his hand into Resident #1’s pants.

I find to be reasonable the $20,000 per-instance civil money penalty that CMS imposed against Petitioner.  The penalty is commensurate with the risks posed by Petitioner’s allowing Resident #2 to reside in its facility without adequately assessing the resident’s proclivity for inappropriate behavior and without taking reasonable measures to protect other residents from Resident #2.  The noncompliance here was very serious.

The helplessness of Resident #1 in the face of Resident #2’s sexual abuse graphically evidences the seriousness of Petitioner’s noncompliance.  Resident #1 was, at the time of Resident #2’s assault, completely dependent.  She could neither see nor communicate and was unable to move without assistance.  She was utterly vulnerable to assault.  Despite that, Petitioner left her alone with Resident #2, essentially unsupervised.  That is due directly to Petitioner’s staff’s failure to research the potential for harm that Resident #2 posed to other residents and its failure to recognize that other residents needed protection from Resident #2.

Indeed, Petitioner’s staff left Resident #2 without close supervision even after he perpetrated his sexual assault against Resident #1.  As I have discussed, staff did not commence one-to-one supervision of Resident #2 for an hour after he assaulted Resident #1.  It did so because Resident #2 attempted to elope Petitioner’s facility and not because the resident had abused another resident sexually.

Although the per-instance penalty that CMS imposed against Petitioner is near the top of the range of penalties that CMS may impose per instance of noncompliance, it remains modest when compared with the penalties that CMS could have imposed.  The evidence proves that Resident #2 was allowed to reside in Petitioner’s facility for four days after the resident entered Petitioner’s facility with an inadequate assessment of his proclivity for abuse and without adequate supervision.  CMS reasonably could have imposed per-diem penalties for this noncompliance that in sum exceeded the amount of the per-instance penalty.  It could have continued to impose those penalties on dates after the incident until Petitioner satisfied CMS that it had rectified its noncompliance.  The penalty that CMS imposed is thus modest given what CMS might have imposed and given the seriousness of Petitioner’s noncompliance.

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Petitioner argues that at independent dispute resolution (IDR) a panel reduced the scope and severity of Petitioner’s noncompliance from immediate jeopardy to a much lower level of scope and severity.  It complains that CMS should have reduced the penalty amount based on the reduction granted by the IDR panel.  But, IDR determinations, whatever they may be in a given case, are not binding on CMS nor are they binding on me.  At this level I make a de novo review of Petitioner’s noncompliance and I base my decision on my conclusion as to the seriousness of that noncompliance, among other factors.  See 42 C.F.R. §§ 488.438(f)(1)-(3), 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)).  I have conducted a de novo review here and I find that the seriousness of Petitioner’s noncompliance more than justifies the $20,000 penalty amount.

CMS argues that Petitioner manifests a history of poor compliance with Medicare participation requirements, noting that since 2013 there have been numerous non-compliance findings that resulted in substantial remedies being imposed against Petitioner.  Some of these findings and remedies, including two findings and remedies that CMS determined to impose in 2017, are presently under appeal and are not administratively final.  CMS Ex. 21-CMS Ex. 22.

I base my finding as to reasonableness of the per-instance penalty on the seriousness of Petitioner’s noncompliance and not on its compliance history.  As the record establishes, the more recent findings of noncompliance are being appealed.  I draw no conclusion from them inasmuch as they are not administratively final.  Nor do I rely on noncompliance findings made in 2013 and 2014 because these findings occurred in the fairly remote past when Petitioner was under different management.  But, as I have stated, the seriousness of Petitioner’s noncompliance more than suffices to justify the penalty amount.

• 1. In her post-hearing brief Petitioner’s counsel asserts that Ms. Love spoke with Resident #2’s granddaughter and his daughter-in-law. Petitioner’s Closing Argument Post-Hearing Brief (Petitioner’s post-hearing brief) at 4. But, that is not what Ms. Love avers in her affidavit. In her affidavit she recites speaking only with the resident’s granddaughter. I accept her testimony as an accurate recitation that she spoke only with the granddaughter and not with both the granddaughter and daughter-in-law.