Sun Health La Loma Care Center, DAB CR5816 (2021)

DECISION

In this case, a long-term-care facility recognized that one of its residents engaged in sexually inappropriate behavior toward women.  To address this problem, the facility directed staff not to place him near women residents and to monitor him closely.  Yet, he was able to molest an unknowing and vulnerable resident who sat at his table in the dining room.  I now consider whether the facility fulfilled its obligation to keep its residents free from sexual abuse. 

Petitioner, Sun Health La Loma Care Center, LLC, is a long-term-care facility, located in Litchfield Park, Arizona, that participates in the Medicare program.  Following a federal survey, completed August 7, 2018, the Centers for Medicare & Medicaid Services (CMS) determined that the facility was not in substantial compliance with Medicare program requirements and imposed a civil money penalty of $710 per day for 261 days (January 13 – September 30, 2018).

Petitioner appealed.

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I find that no material facts are in dispute and that this case turns on a question of law, so it may appropriately be decided on summary judgment.  I find that, from January 13 through September 30, 2018, the facility was not in substantial compliance with the Medicare regulation governing abuse, neglect, and exploitation, 42 C.F.R. § 483.12.  I also find that the penalty imposed ($710 per day) is reasonable.

Background

The Social Security Act (Act) sets forth requirements for nursing facilities to participate in the Medicare program and authorizes the Secretary of Health and Human Services to promulgate regulations implementing those statutory provisions.  Act § 1819.  The Secretary’s regulations are found at 42 C.F.R. Part 483.  To participate in the Medicare program, a nursing facility must maintain substantial compliance with program requirements.  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. 

The Secretary contracts with state survey agencies to survey skilled nursing facilities in order to determine whether they are in substantial compliance.  Act § 1864(a); 42 C.F.R. § 488.20.  Each facility must be surveyed annually, with no more than fifteen months elapsing between surveys, and must be surveyed more often, if necessary, to ensure that identified deficiencies are corrected.  Act § 1819(g)(2)(A); 42 C.F.R. §§ 488.20(a); 488.308.  The state agency must also investigate all complaints.  Act § 1819(g)(4).

The Secretary also conducts his own surveys.  By statute, he surveys a representative sample of skilled nursing facilities within two months of the date of the state surveys.  Act § 1819(g)(3)(A).  Such a survey is referred to as a “validation survey,” and its purpose is to monitor the state survey agency’s performance.  42 C.F.R. § 488.301.  In the case of a validation survey, the Secretary’s determination as to the facility’s noncompliance is binding and takes precedence over a state agency’s certification of compliance.  Act § 1819(g)(3)(A); 42 C.F.R. § 488.330(a)(1)(ii); see 42 C.F.R. § 488.452.

In this case, following a federal “focused concern survey,”1 completed on August 7, 2018, CMS determined that the facility was not in substantial compliance with the program requirement aimed at preventing abuse:  42 C.F.R. § 483.12 (Tag F0600) (freedom from abuse, neglect, and exploitation), citing the deficiency at scope and

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severity level G (isolated instance of noncompliance that causes actual harm but does not pose immediate jeopardy to resident health and safety).  CMS Exs. 1, 3.

Based on a re-visit survey, completed October 15, 2018, CMS determined that the facility returned to substantial compliance on October 1, 2018.  CMS Ex. 4. 

CMS imposed against the facility a civil money penalty of $710 per day for 261 days of substantial noncompliance (January 13 – September 30, 2018), for a total penalty of $185,310.  CMS Ex. 4. 

Petitioner timely requested review.

The parties filed pre-hearing briefs (CMS Br.; P. Br.) and proposed exhibits (CMS Exs. 1-19; P. Exs. 1-8).  Based on their submissions, it appeared that no material facts are in dispute.  In an order dated November 4, 2020, I invoked Rule 56 of the Federal Rules of Civil Procedure and advised the parties that I have the authority to enter summary judgment on my own motion.  I identified the material facts that I deemed are not in dispute and directed the parties to respond no later than December 4, 2020.  Order (Nov. 4, 2020); see Livingston Care Ctr. v. U.S. Dep’t of Health & Human Servs., 388 F.3d 168, 172 (6th Cir. 2004); FRCP 56(f). 

Petitioner did not respond to my order. 

CMS responded, agreed that no material facts are in dispute, and filed its own motion for summary judgment (CMS MSJ).  Petitioner subsequently responded to CMS’s motion (P. Response).  Although it opposes summary judgment, Petitioner does not identify any material fact in dispute that would preclude my entering judgment in CMS’s favor.

Issues

As a threshold matter, I consider whether summary judgment is appropriate. 

On the merits, the issues are:

1. From January 13 through September 30, 2018, was the facility in substantial compliance with 42 C.F.R. § 483.12 (preventing abuse and neglect);
2. If the facility was not in substantial compliance, is the penalty imposed – $710 per day – reasonable?

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Discussion

Summary judgment.  Summary judgment is appropriate if a case presents no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.  Bartley Healthcare Nursing & Rehab., DAB No. 2539 at 3 (2013) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986)); Ill. Knights Templar Home, DAB No. 2274 at 3-4 (2009), and cases cited therein.

The moving party may show the absence of a genuine factual dispute by presenting evidence so one-sided that it must prevail as a matter of law or by showing that the non-moving party has presented no evidence “sufficient to establish the existence of an element essential to [that party’s] case, and on which [that party] will bear the burden of proof at trial.”  Livingston Care Ctr. v. Dep’t of Health & Human Servs., 388 F.3d 168, 173 (6th Cir. 2004) (quoting Celotex Corp. v. Catrett, 477 U.S. at 322).  To avoid summary judgment, the non-moving party must then act affirmatively by tendering evidence of specific facts showing that a dispute exists.  Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.11 (1986); Vandalia Park, DAB No. 1939 (2004); Lebanon Nursing & Rehab. Ctr., DAB No. 1918 (2004); Crestview Parke Care Ctr., DAB No. 1836 at 5 (2002). 

General denials do not satisfy a party’s burden to identify specific evidence demonstrating a material fact is in dispute.  Shah v. Azar, 920 F.3d 987, 995 (5th Cir. 2019); Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994); Pearsall Nursing & Rehab., DAB No. 2692 at 7 (2016) (affirming summary judgment where Petitioner “refers broadly to ‘the evidence presented in [its] response’” but “identifies no specific evidence relevant to the material facts . . . .”); Ill. Knights Templar, DAB No. 2274 at 4 (finding that the non-moving party must furnish admissible evidence of a dispute concerning a material fact); Livingston Care Ctr., DAB No. 1871 at 5 (2003), aff’d, Livingston Care Ctr. v. U.S. Dep’t of Health & Human Servs., 388 F.3d 168.  The non-moving party must also show more than “some metaphysical doubt as to the material facts.”  W. Tex. LTC Partners, Inc., DAB No. 2652 at 6 (2015), aff’d, W. Tex. LTC Partners, Inc. v. U.S. Dep’t. of Health & Human Servs., 843 F.3d 1043 (5th Cir. 2016); 1866ICPayday.com L.L.C., DAB No. 2289 at 3 (2009) (quoting Matsushita Elec. Indus. Co., 475 U.S. at 587).

In examining the evidence for purposes of determining whether summary judgment is appropriate, I must draw all reasonable inferences in the light most favorable to the non-moving party.  Brightview Care Ctr., DAB No. 2132 at 2, 9 (2007); Livingston Care Ctr., 388 F.3d 172; Guardian Health Care Ctr., DAB No. 1943 at 8 (2004); see also Brightview, DAB No. 2132 at 10 (entry of summary judgment upheld where inferences and views of non-moving party are not reasonable).  However, drawing factual inferences in the light most favorable to the non-moving party does not require that I accept the non-moving party’s legal conclusions.  W. Tex. LTC Partners, DAB No. 2652 at 6-7, 14-

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15; cf. Guardian Health Care, DAB No. 1943 at 11 (“A dispute over the conclusion to be drawn from applying relevant legal criteria to undisputed facts does not preclude summary judgment if the record is sufficiently developed, and there is only one reasonable conclusion that can be drawn from those facts.”); see Green Valley Healthcare & Rehab. Ctr., DAB No. 2947 at 8 (2019) (quoting Johnson v. Perez, 823 F.3d 701, 705 (D.C. Cir. 2016) (noting that a genuine factual dispute does not exist “when a putatively disputed body of evidentiary material could not, even assuming a sympathetic factfinder, reasonably support a finding crucial to the nonmoving party’s legal position.”)). 

Summary judgment applied to administrative review in Medicare cases.  It is well-established that an administrative law judge is empowered to decide a case on a motion for summary judgment, without an evidentiary hearing.  Shah v. Azar, 920 F.3d 987, 996 (5th Cir. 2019) (citing Cedar Lake Nursing Home v. U.S. Dep’t of Health & Human Servs., 619 F.3d 453, 457 (5th Cir. 2010)); see Fal-Meridian, Inc. v. U.S. Dep’t of Health & Human Servs., 604 F.3d 445, 449 (7th Cir. 2010). 

There seems to be some confusion about applying such well-founded principles of civil litigation to these proceedings, with some suggesting that, to do so, denies a party a fundamental right.  In one succinct observation, Judge Posner of the Seventh Circuit Court of Appeals shattered this misconception:  “All it means for a decision to be based on a grant of summary judgment is that there are no issues that would benefit from being resolved in an evidentiary hearing.”  Fal-Meridian, 604 F.3d at 449 (emphasis added).  

Finally, deciding a case on summary judgment does not mean that it is decided without a hearing, and, in applying the principles of summary judgment to administrative proceedings, courts have been careful to avoid any suggestion that the case is decided without a hearing.  Throughout their decisions, they refer to deciding the case without an “oral hearing” or without an “evidentiary hearing.”  Although a case may be decided on summary judgment (or based on the written record), an administrative law judge, by considering the evidence and applying the law, has granted the petitioner a hearing, as required by sections 205(b) and 1866(h) of the Act.  See CNG Transmission Corp. v. FERC, 40 F.3d 1289, 1293 (D.C. Cir. 1994) (holding that a “paper hearing” satisfies statutory requirements for “notice and opportunity for hearing.”).

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1.  The facility was not in substantial compliance with 42 C.F.R. § 483.12 because staff did not carefully monitor a sexually aggressive resident, which allowed him to sit next to and molest an unsuspecting and unprotected resident.2

Program requirements:  42 C.F.R. § 483.12  (Tag F600).  The Act requires that facility residents be free from “physical or mental abuse, corporal punishment, [and] involuntary seclusion . . . .”  Act § 1819(c)(1)(A)(ii).  Consistent with that provision, the regulation governing abuse mandates that each resident has the right to be free from abuse.  42 C.F.R. § 483.12.  Abuse is defined as “the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.”  It includes verbal, sexual, physical, and mental abuse.  “Willful” means that the individual acted deliberately, not that the individual must have intended to inflict injury or harm.  42 C.F.R. § 488.301.

In order to keep residents free from abuse, facilities must develop and implement written policies and procedures that prohibit and prevent abuse, neglect, and exploitation of residents.  42 C.F.R. § 483.12(b)(1).  A facility must establish policies and procedures to investigate allegations of abuse.  42 C.F.R. § 483.12(b)(2).  The facility must ensure that all alleged violations involving abuse are reported immediately, but not later than two hours after the allegation is made, to the facility administrator and appropriate state officials.  42 C.F.R. § 483.12(c)(1). 

The facility must have evidence that all alleged violations are thoroughly investigated, and it must prevent further potential abuse while the investigation is in progress.  The results of all investigations must be reported to the administrator (or designated representative) and to the appropriate state officials within five working days of the incident.  If the violation is verified, the facility must take appropriate action.  42 C.F.R. § 483.12(c)(2), (3), and (4).

Facility policy:  abuse, neglect, and exploitation.  The facility had in place a policy mandating that each resident be free from abuse.  The policy provides that residents “must not be subject to abuse by anyone,” including other residents.  CMS Ex. 12 at 1.  It adopts the regulatory definitions of “abuse” and “willful” found at 42 C.F.R. § 488.301.  It recognizes that “[i]nstances of abuse of all residents, irrespective of any mental or physical condition, causes physical harm, pain, or mental anguish.”  Id.

The policy defines sexual abuse as “non-consensual sexual contact of any type with a resident.”  It provides that physical abuse includes (but is not limited to) “hitting, slapping, pinching, and kicking.”  Id.

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The policy calls for an “abuse coordinator,” who is either the facility’s director of nursing (DON), its administrator, or an appointed designee.  Staff must report suspected abuse or allegations of abuse immediately to the administrator or designee, to “other officials in accordance with state law,” and to the state survey and certification agency.  Id. 

To prevent abuse, the policy directs the facility to (among other strategies):

• Train staff in appropriate interventions to deal with aggressive reactions by residents;

• Observe resident behavior and reactions to other residents, roommates, and tablemates.  Place residents in accommodations and environments that keep them calm;

• Educate staff on what constitutes abuse;

• React to all allegations or questions of abuse;

• “Take appropriate actions when abuse . . . is suspected”;

• Provide residents, staff, and family members with information on how and to whom they may report concerns and incidents without fear of reprisal;

• Provide feedback to residents, staff, and family members who voice grievances;

• Identify areas of the physical environment that may make abuse more likely to occur;

• Instruct staff on resident care needs;

• Assess, monitor, and develop appropriate plans of care for residents with needs and behaviors that might lead to conflict or neglect;

• Assess, monitor, and develop appropriate plans of care for residents with inappropriate sexual behavior, whether toward staff or other residents.

CMS Ex. 12 at 2-3. 

The policy lists factors that indicate possible abuse:

• The resident, staff, or family report abuse;

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• Physical marks on a resident’s body;

• Physical injury of unknown source; and

• Physical abuse observed.

CMS Ex. 12 at 3.

The policy also calls for investigations of alleged abuse.  According to the policy, when abuse is suspected or reported, “an investigation is immediately warranted.”  The components of an investigation include:  interview the involved resident, if possible, and document all responses.  CMS Ex. 12 at 3.3

Resident 91 (R91).  R91 was a 77-year-old man, admitted to the facility on December 19, 2017, to receive physical and occupational therapy.  He suffered from sepsis, pneumonia, difficulty walking, muscle weakness, dysphagia, acute respiratory failure with hypoxia, and dementia, among other conditions.  He had an artificial right knee joint.  CMS Ex. 8 at 1, 2.

Initially, it seems that R91’s stay was unremarkable.  He was forgetful and confused, but no records suggest any behavior problems.  See, e.g., CMS Ex. 8 at 3-6.  In late December, however, R91 became acutely ill, suffering from flu and pneumonia, which may have altered his mental state (referred to as AMS in medical records).  He was placed in isolation because of his infectious disease.  CMS Ex. 8 at 6-7; P. Ex. 1 at 1-3.   

R91’s inappropriate sexual behaviors. 

• On January 9, 2018, R91 inappropriately touched his occupational therapist.  He attempted to touch her hand/arm throughout the session and asked for a hug at the end of the session.  When she attempted a side hug, he grabbed at her, grabbing her breast.  She told him that his behavior was not appropriate and reported the incident to nursing staff.  CMS Ex. 8 at 42; P. Ex. 3 at 14. 

• On January 10, 2018, R91 inappropriately touched his occupational therapist.  As the therapist was attempting to transfer him (from sitting to standing), he tried to hug and kiss her.  She immediately sat him back down.  On the second attempt, he touched her breast.  She reported the incident to the DON, the administrator, the

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medication nurse, and the social services director.  CMS Ex. 8 at 34; P. Ex. 2 at 15; P. Ex. 3 at 14.

• On January 12, 2018, R91 again inappropriately touched his occupational therapist by “touching [her] on butt.”  She notified social services.  CMS Ex. 8 at 35; P. Ex. 3 at 14. 

Care plan changes.  At some point, the facility staff responded to the inappropriate behaviors by updating R91’s care plan.  They added to the problem list:  “sexually inappropriate behavior.”  Interventions included:  “do not place resident close to female residents”; inform resident that his sexual behavior is not appropriate and tell resident to stop his behavior; do not touch resident when interacting with resident other than providing care; and therapy to use male therapist whenever possible.  The entries are not dated.  CMS Ex. 6 at 21, 22; CMS Ex. 8 at 18, 20.  However, in one copy of the care plan, someone hand-wrote “start 1/10.”  CMS Ex. 8 at 18, 20.4

According to the facility’s administrator, Chuck Kerby, nursing staff “were made aware” – through changes to his care plan and “verbal endorsement during report at each shift change” – that they needed to monitor R1 closely.  Nurse aides “were also aware of this intervention based on information being passed along at each shift change.”  P. Ex. 6 at 2 (Kerby Decl. ¶ 9). 

R91 left isolation on January 12, 2018.  CMS Ex. 8 at 28.   

Resident 92 (R92).  R92 was a 76-year-old woman admitted to the facility on January 11, 2018, with a fractured femur.  She was admitted for physical therapy and rehabilitation services after undergoing hip surgery.  She was fully alert and oriented and suffered no cognitive impairments.  CMS Ex. 9 at 1, 9, 26.

The January 13, 2018 incident.  For purposes of summary judgment, I accept Petitioner’s version of the January 13 incident, which, in any event, is undisputed.  During dinner that day, staff seated R91 at a table by himself.  R92 entered the dining room.  Because she was new to the facility, she didn’t know where to sit.  No one assisted her until R91 told her to sit at his table.  She did so.  They were talking when he rubbed her arm and pinched her breast.  She pushed him away and left the table.  She reported the incident to staff.  CMS Ex. 9 at 9, 10; CMS Ex. 10.

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Petitioner claims that the facility “immediately” reported the incident to the state agency.  I need not accept this because no evidence supports it.  Green Valley Healthcare, DAB No. 2947 at 8.  To the contrary, according to its own investigative report, staff “called in” the report to the state agency (Arizona Department of Health Services) at 4:35 p.m. on January 16, and submitted their investigative report on January 19, six days after the incident.  CMS Ex. 10.5   This is neither “immediate” nor within two hours of the allegation of abuse, as required by the regulation.  42 C.F.R. § 483.12(c)(1).    

I accept, for purposes of summary judgment, Petitioner’s claims regarding staff’s efforts to comfort and protect R92 following the abuse.  CMS Ex. 10 at 2.  At the same time, Petitioner does not dispute that, after the incident, R92 feared that R91 would enter her room; she refused to go to the dining room for her meals; and she left the facility on January 19, four days before her scheduled discharge.  CMS Ex. 6 at 3, 44; CMS Ex. 9 at 9, 12.  She unquestionably suffered actual harm.     

Petitioner concedes these facts, but argues that an isolated instance of resident-to-resident abuse does not put it out of substantial compliance.  The “core issue,” in Petitioner’s view, is not whether the abuse occurred, but “whether the facility engaged in deliberate or neglectful conduct which failed to protect a resident from abuse.”  P. Br. at 6; P. Response at 6.  In fact, the undisputed evidence establishes that facility staff were well aware of the threat R91 posed to women.  Facility policy mandated that staff assess, monitor, and develop appropriate interventions.  CMS Ex. 12 at 3.  R91’s care plan directed staff to keep him away from women residents.  According to Administrator Kerby, nursing staff were reminded at every shift that they needed to monitor him closely.  P. Ex. 6 at 2 (Kerby Decl. ¶ 9). 

And yet, nobody was monitoring R91 at all when R92 entered the dining room, looking for a place to sit.  Because they were not monitoring him, no one noticed R91 invite the unsuspecting woman to sit at his table; and no one witnessed the assault.  Staff failed to follow facility policy and failed to follow the resident’s care plan because they did not monitor him at all, much less to monitor him closely.  Failing to follow facility policies and failing to follow a resident’s care plan put the facility out of substantial compliance with 42 C.F.R. § 483.12.  See Guardian, DAB No. 1943 at 23 (citing Lebanon Nursing & Rehab. Ctr., DAB No. 1918 at 9); Windsor Health Care Ctr., DAB No. 1902 (2003) (holding that summary judgment is appropriate when (as here) the undisputed facts show that the facility did not follow its own care plan in keeping a resident safe).

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Moreover, what happened to R92, while serious, does not, in itself, constitute the underlying deficiency.  The facility’s failure to meet a participation requirement “is what constitutes the deficiency, not any particular event that was used as evidence of the deficiency.”  Oceanside Nursing & Rehab. Ctr., DAB No. 2382 at 18 (2011) (quoting Regency Gardens Nursing Ctr., DAB No. 1858 at 21 (2002)).

As a result of the facility’s failures, R92 suffered both sexual (improper touching) and physical (pinching) abuse.  See CMS Ex. 12 at 1 (describing sexual abuse as non-consensual sexual contact of any type and defining pinching as a form of physical abuse).

Because the facility here did not keep its residents free from physical and sexual abuse and did not implement its own policies for preventing such abuse, it was not in substantial compliance with section 483.12. 

2.  Where CMS and the state disagree, CMS’s findings of noncompliance take precedence.

Much of Petitioner’s appeal is based on a legal question:  the effect of the state agency’s determination that the facility was in substantial compliance.   

Petitioner points out that, following a June 20, 2018 complaint investigation, the state agency concluded that “the allegations were unable to be substantiated.”  P. Ex. 7.  But when the federal surveyors followed up with the August 7, 2018 survey, CMS determined that the allegations were valid and that the facility was not in substantial compliance.  Petitioner maintains that it should be allowed to question state and federal surveyors as to how two different survey teams arrived at contradictory results “under the same facts.”  P. Response to CMS’s Objections to P. Listed Witnesses at 3; P. Response at 6.

Petitioner’s position fails for several reasons.  First, Petitioner misunderstands the nature of these de novo proceedings.  I am not concerned with the means by which either CMS or the state agency reached its determination; rather I take a “fresh look” at the legal and factual bases for the deficiency findings underlying the remedies to determine whether those findings and remedies accord with the Act and regulations.  Britthaven of Chapel Hill, DAB No. 2284 at 6 (2009), and cases cited therein; Avalon Place Trinity, DAB No. 2819 at 12 n.8 (2017) (pointing out that, on appeal, the ALJ does not review CMS’s conclusions or determinations about earlier state agency-level review, but rather reviews the record de novo and determines whether the facility was in substantial compliance with applicable requirements). 

Second, the state agency’s determination is not binding.  As discussed above, the statute mandates that CMS survey a representative sample of skilled nursing facilities within two months of the date of the state surveys.  CMS’s determination as to the facility’s

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noncompliance is binding and supersedes a state agency’s certification of compliance.  Act § 1819(g)(3)(A); 42 C.F.R.§§ 488.301, 488.330(a)(1)(ii); see 42 C.F.R. § 488.452(a)(2); see Lopatcong Ctr.,, DAB No. 2443 at 12-13 (2012) (finding that the state survey agency’s determination that the facility was in substantial compliance is not binding on CMS).

In any event, although the state agency’s conclusions are not relevant here, the state surveyors’ factual findings may be.  And those findings (indeed, even the surveyor conclusions) – are wholly consistent with those CMS relies on to find substantial noncompliance.  The state surveyors focused on the facility’s failing to report timely, rather than the abuse itself.  Nevertheless, both the state and federal surveyors found that the facility did not meet the requirements of section 483.12.  The state’s survey report form concludes that the facility did not meet the requirements of sections 483.12(b)(1)-(3) and 483.12(c)(1), (4) because it failed to implement its abuse policy – it did not report R92’s allegation of abuse to the state agency within two hours after the allegation was made.  CMS Ex. 16.  Failure to report timely, by itself, justifies a finding of substantial noncompliance with the abuse regulation.  Any allegation of abuse triggers the responsibility to report.  Beverly Healthcare Lumberton v. Leavitt, 338 F. App’x 307, 313 (4th Cir. 2009); Rockcastle Health & Rehab. Ctr., DAB No.  2891 at 11 (2018).6

3.  The penalties imposed are reasonable.

To determine whether the CMPs are reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f):  1) the facility’s history of noncompliance; 2) the facility’s financial condition; 3) factors specified in 42 C.F.R. § 488.404; and 4) the facility’s degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort or safety.  The absence of culpability is not a mitigating factor.  The factors in 42 C.F.R. § 488.404 include:  1) the scope and severity of the deficiency; 2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and 3) the facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies. 

I consider whether the evidence supports a finding that the amount of the CMP is at a level reasonably related to an effort to produce corrective action by a provider with the kind of deficiencies found, and in light of the above factors.  I am neither bound to defer to CMS’s factual assertions, nor free to make a wholly independent choice of remedies without regard for CMS’s discretion.  Barn Hill Care Ctr., DAB No. 1848 at 21 (2002); Cmty. Nursing Home, DAB No. 1807 at 22 et seq. (2002); Emerald Oaks, DAB No. 1800 at 9 (2001); CarePlex of Silver Spring, DAB No. 1638 at 8 (1999).

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The burden is on the facility to demonstrate that a reduction is necessary to make the CMP amount reasonable.  Heritage Plaza Nursing Ctr., DAB No. 2829 at 22 (2017).

Here, CMS imposes a penalty of $710 per day for each day of substantial noncompliance, which is at the low to very low end of the applicable penalty range ($105 to $6,289).  42 C.F.R. §§ 488.408(d); 488.438; 45 C.F.R. § 102.3 (2017); 82 Fed. Reg. 9174, 9182-83 (Feb. 3, 2017).7   Considering the relevant factors, these penalties are reasonable.

Although it claims otherwise, the facility has a less-than-stellar history.  A March 2015 survey found that it was not in substantial compliance with:

• 42 C.F.R. § 483.10(g)(14) (then Tag F157, now Tag F580),8 which requires the facility to consult the resident’s physician immediately following a significant change in condition;

• 42 C.F.R. § 483.15(c)(7) (then Tag F204, now Tag F624), which requires planning for a resident’s safe and orderly transfer and discharge;

• 42 C.F.R. § 483.21(b)(3)(i) (then Tag F281, now Tag F658), which requires that the services provided meet professional standards of quality;

• 42 C.F.R. § 483.25(d)(1), (2) (then Tag F323, now Tag F689), which requires that the facility ensure an environment free of accident hazards and that the facility provide supervision and assistive devices to prevent accidents; and

• 42 C.F.R. § 483.45(d) (then Tag F329, now Tag F757), which requires that drug regimens be free of unnecessary drugs.

All were cited at scope and severity level D (isolated instance of noncompliance that causes no actual harm with the potential for more than minimal harm).  CMS Ex. 5 at 1. 

A year later, the facility was again out of substantial compliance with multiple program requirements.  Some of the deficiencies, including those requiring proper supervision, had been cited during the 2015 survey.  One deficiency was cited at the immediate jeopardy level.  In April 2016 the facility was not in substantial compliance with:

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• 42 C.F.R. § 483.20(h)-(j) (then Tag F278, now Tag F642), which requires that a registered nurse coordinate resident assessments with appropriate health professionals, cited at scope and severity level D;

• 42 C.F.R. § 483.20(d) (then Tag F279, now Tag F639), which requires the facility to use assessments in care planning, cited at scope and severity level D;

• 42 C.F.R. § 483.21(b)(3)(i) (then Tag F281, now Tag F658), which requires that services provided meet professional standards of quality, cited at scope and severity level D.  This was a repeat deficiency;

• 42 C.F.R. § 483.25(b)(1)(i), (ii) (then Tag F314, now Tag F686), which requires that the facility ensure that residents receive care to prevent pressure ulcers and to promote healing of existing ulcers, cited at scope and severity level E (pattern of substantial noncompliance that causes no actual harm with the potential for more than minimal harm);

• 42 C.F.R. § 483.25(d)(1), (2) (then Tag F323, now Tag F689), which requires that the facility ensure an environment free of accident hazards and that the facility provide supervision and assistive devices to prevent accidents, cited at scope and severity level E.  This was a repeat deficiency;

• 42 C.F.R. § 483.45(d) (then Tag F329, now Tag F757), which requires that drug regimens be free of unnecessary drugs, cited at scope and severity level E.  This was a repeat deficiency;

• 42 C.F.R. § 483.60(i)(1), (2) (then Tag F371, now Tag F812), which governs food safety, cited at scope and severity level D;

• 42 C.F.R. § 483.80(a) (then Tag F441, now Tag F880), which governs infection control, cited at scope and severity level J (isolated instance of noncompliance that poses immediate jeopardy to resident health or safety); and

• 42 C.F.R. § 483.75(a)(2) (then Tag F520, now Tag F865), which requires a quality assurance and performance improvement program, cited at scope and severity level E.

CMS Ex. 5 at 1.

In April 2016, the facility also had multiple life safety code deficiencies, cited at scope and severity levels E and F (widespread substantial noncompliance that causes no actual harm with the potential for more than minimal harm).  CMS Ex. 5 at 2.

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The facility’s history – particularly its repeated failures to supervise its residents adequately – justifies a significant increase above the minimum penalty ($106). 

Petitioner claims that it “would suffer a severe financial hardship” if required to pay the CMP.  P. Br. at 9.  It provides some financial records but does not explain them.  P. Ex. 8. 

The facility has the burden of proving, by a preponderance of the evidence, that paying the CMP would render it insolvent or would compromise the health and safety of its residents.  Van Duyn Home & Hosp., DAB No. 2368 (2011); Gilman Care Ctr., DAB No. 2357 (2010).  To meet the standard for lowering a CMP based on financial condition, a facility’s claims must be supported by compelling financial documentation.  In Guardian Care Nursing & Rehab. Ctr., DAB No. 2260 (2009), for example, the facility could not even afford to represent itself on appeal.  Its Medicaid census was 90%; its annual shortfall was $250,000; and it relied on charitable contributions for its continuing viability.  The Board nevertheless concluded that it had not established that additional resources would not be available and reinstated the original CMP amount imposed by CMS. 

Petitioner has fallen far short of establishing that paying this penalty would render it insolvent or compromise the health and safety of its residents. 

Applying the remaining factors, I have discussed above the facility’s failure to keep one of its residents safe from abuse.  The facility well knew that R91 threatened its vulnerable women residents.  Yet, he was able to molest a new resident who unwittingly sat at his table.  When the attack occurred, no one noticed.  Staff delayed reporting.  And the resident herself suffered real harm.  The facility is culpable for these serious failings.

For these reasons, I find that the relatively low per-day CMP is reasonable.

4.  CMS’s determination as to the duration of the facility’s substantial noncompliance is consistent with statutory and regulatory requirements, and I have no authority to review the timing of the state’s or CMS’s surveys.

Notwithstanding how low the per-day penalty is, the total penalty is relatively significant because of the duration of the non-compliance. 

Petitioner complains about long delays between the triggering incident (January 2018) and the surveys (June and August 2018), which, in Petitioner’s view, increased the amount of the CMP.  I have no authority to review the timing of the surveys.  See 42 C.F.R. § 498.3(b).    

Petitioner also complains that CMS made the per-day CMP retroactive to the date of the abuse – January 13.  The regulations authorize CMS to do so.  It may impose a CMP for

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every day the facility is not in substantial compliance, including “the number of days of past noncompliance since the last standard survey.”  42 C.F.R. § 488.430.  Here, as the above discussion shows, the facility’s substantial noncompliance began at least as early as January 13, 2018. 

Finally, Petitioner has not established that it achieved substantial compliance any earlier than October 1, 2018. 

Once a facility has been found to be out of substantial compliance, it remains so until it affirmatively demonstrates that it has achieved substantial compliance once again.  Ridgecrest Healthcare Ctr., DAB No. 2493 at 2-3 (2013); Taos Living Ctr., DAB No. 2293 at 20 (2009); Premier Living & Rehab Ctr., DAB No. 2146 at 23 (2008); Lake City Extended Care Ctr., DAB No. 1658 at 12-15 (1998).  The burden is on the facility to prove that it is back in compliance, not on CMS to prove that deficiencies continued to exist.  Asbury Ctr. at Johnson City, DAB No. 1815 at 19-20 (2002), aff’d, Asbury Ctr. at Johnson City v. Dep’t of Health & Human Servs., 77 F. App’x 853 (6th Cir. 2003).

The facility must show that the incidents of noncompliance have ceased and that it has implemented appropriate measures to insure that similar incidents will not recur.  Libertywood Nursing Ctr., DAB No. 2433 at 15 (2011) (citing Life Care Ctr. of Elizabethton, DAB No. 2367 at 16 (2011)), aff’d, Libertywood Nursing Ctr. v. Sebelius, 512 F. App’x 285 (4th Cir. 2013); accord, 42 C.F.R. § 488.454(a) and (e); Hermina Traeye Mem’l Nursing Home, DAB No. 1810 at 12 (2002) (holding that, to be found in substantial compliance earlier than the date of the resurvey, the facility must supply documentation “acceptable” to CMS showing that it was in substantial compliance and was capable of remaining in substantial compliance on the earlier date), aff’d sub nom. Sea Island Comprehensive Healthcare Corp. v. U.S. Dep’t of Health & Human Servs., 79 F. App’x 563 (4th Cir. 2003); Cross Creek Health Care Ctr.,, DAB No. 1665 (1998).  A facility’s return to substantial compliance usually must be established through a resurvey.  42 C.F.R. § 488.454(a); Ridgecrest, DAB No. 2493 at 2-3.

Failing to protect a resident from abuse is the type of deficiency that the regulators contemplated when they specified that a facility’s return to substantial compliance would usually be established through a resurvey.  42 C.F.R. § 488.454(a).  Unlike a leaky roof or broken dishwasher, failing to protect a resident from abuse is a deficiency that does not lend itself to a quick fix. 

Where, as here, the facility’s practices were inadequate to prevent abuse, it must review and change them in order to insure that no other resident will be abused.  Simply declaring that staff have been trained to monitor the residents more closely is insufficient.  After all, that was the facility’s approach at the time of the January 13 abuse.  To achieve substantial compliance, staffing must be adequate to ensure proper supervision, and staff

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must be trained properly; and management must then ensure that its revised practices are effective in keeping residents safe.

Conclusion

From January 13 through September 30, 2018, the facility was not in substantial compliance with Medicare program requirements, specifically 42 C.F.R. § 483.12.  The penalty imposed – $710 per day – is reasonable.

• 1. A “focused concern survey” is a type of validation survey.  Following a state survey, a federal survey team looks at specific areas of concern to determine whether the state investigated thoroughly and made appropriate compliance decisions.  CMS Ex. 15 (CMS Memo 18-06-NH (Jan. 5, 2018)).
• 2. My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision.
• 3. The exhibit appears to be incomplete inasmuch as it stops mid-sentence and does not provide comprehensive instructions, consistent with regulatory requirements, for investigating abuse.
• 4. The copy found in CMS Ex. 6 is undated.  It was submitted to the state on September 21, 2018, as part of an informal dispute resolution proceeding.  It appears that the 1/10 date was added to the document sometime after that.
• 5. The report to the state agency incorrectly indicates that the incident occurred on January 14.  CMS Ex. 10 at 1.  The report’s narrative, however, correctly indicates that the event occurred on January 13.  CMS Ex. 10 at 2.  In addition, the facility’s progress notes show the January 13 date, and the parties agree that the abuse occurred on January 13.  CMS Ex. 9 at 9, 10.
• 6. The state agency’s conclusion is all the more baffling in light of the state surveyors’ reported findings.
• 7. Penalties are inflation-adjusted and change annually.  The amount is determined as of the date the penalty is assessed, in this case, on September 7, 2018.  See CMS Ex. 3 at 1; 82 Fed. Reg. at 9182-83.
• 8. Effective November 28, 2016, CMS re-organized and re-numbered the tag numbers corresponding to the nursing home regulations.