York Healthcare and Wellness Centre, DAB CR5828 (2021)

DECISION

Following a survey by the California Department of Public Health (state agency), the Centers for Medicare & Medicaid Services (CMS) concluded that York Healthcare and Wellness Centre (Petitioner or facility) was not in substantial compliance with Medicare participation requirements at 42 C.F.R. §§ 483.12(a), (c), and 483.35(d)(7).1   CMS determined that Petitioner’s noncompliance resulted in actual harm to a resident and imposed a per day civil money penalty (CMP).  Petitioner requested a hearing to challenge CMS’s findings and the remedies it imposed.

For the reasons explained in this decision, I conclude that Petitioner did not substantially comply with Medicare participation requirements found at 42 C.F.R. §§ 483.12(a), (c), and 483.35(d)(7), and the per day CMP imposed is reasonable.

Page 2

I.     Background and Procedural History

Petitioner is a skilled nursing facility (SNF) located in Los Angeles, California.  See, e.g., CMS Exhibit (Ex.) 1 at 1.  Surveyors from the state agency completed a survey of Petitioner’s facility on May 23, 2017.  Id.  Based on the survey findings, CMS determined that the facility was not in substantial compliance with the following participation requirements:  42 C.F.R. §§ 483.12(a)(1) (Tag F223); 483.12(a)(3), (4), and (c)(1)-(4) (Tag F225); and 483.35(d)(7) (Tag F497).  CMS Ex. 1; see also CMS Ex. 8.

By letter dated May 24, 2017 and corrected June 21, 2017, CMS informed Petitioner of its determination of substantial noncompliance and the imposition of a civil money penalty (CMP) of $505 per day effective May 23, 2017, as well as the denial of payment for new admissions (DPNA) effective June 14, 2017.  CMS Ex. 8.  After a revisit survey, CMS found that Petitioner had returned to substantial compliance as of June 30, 2017.  CMS Ex. 10 at 2.  CMS informed Petitioner that, as of June 29, 2017, the DPNA was discontinued and the CMP stopped accruing.  Id.

Petitioner timely requested a hearing, and the case was assigned to me.  I issued an acknowledgment and prehearing order (Prehearing Order) establishing a briefing schedule.  In accordance with the schedule, CMS and Petitioner filed prehearing exchanges, including prehearing briefs (CMS Br. and P. Br., respectively), exhibit and witness lists, and proposed exhibits.  As part of their prehearing exchanges, CMS offered the written direct testimony of two witnesses.  CMS Exs. 13, 14.  Petitioner offered the written direct testimony of two witnesses.  P. Exs. 1, 2.  Each party requested to cross‑examine the opposing party’s witnesses.

On February 26, 2019, I held a hearing via video-teleconference (VTC), and a transcript (Tr.) was made of the proceeding.  I presided from the Departmental Appeals Board office in Washington, D.C.  Counsel for each party, and their respective witnesses, appeared via VTC from Los Angeles, California.  Sara Avakian, Esq., Jonathon E. Cohn, Esq., and Mark Orloff, Esq., represented Petitioner.  Melissa Manson, Esq., Assistant Regional Counsel, represented CMS.  I admitted CMS Exs. 1-14 and P. Exs. 2-4 into the record.  Tr. at 7, 16, 115, 161.  During the hearing, counsel for Petitioner cross-examined two employees of the state agency who participated in the survey of Petitioner’s facility.  Counsel for CMS cross-examined Petitioner’s Director of Nursing (DON), and the parties agreed that Resident 1, a witness, would appear by telephone for cross- and re-direct examination.  Tr. at 8.  However, Resident 1 failed to appear for the hearing.  Tr. at 154‑55.  The hearing was continued until March 20, 2019, at which time Resident 1 appeared by telephone from Petitioner’s facility.  During the continuation of the hearing on March 20, I admitted P. Ex. 1 into the record.  Tr. at 216.

Following the hearing, each party submitted a post-hearing brief (CMS Posthrg. Br.; P. Posthrg. Br.) and a reply brief (CMS Reply; P. Reply).

Page 3

II.     Issues

The issues in this case are:

1. Whether Petitioner failed to comply substantially with Medicare participation requirements; and, if not,
2. Whether the CMP amount is reasonable.

III.   Jurisdiction

I have jurisdiction to hear and decide this case.  Social Security Act (Act) §§ 1128A(c)(2), 1819(h)(2)(B)(ii) (codified at 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.    Discussion

A.   Statutory and Regulatory Framework

The Act sets requirements SNFs must meet to participate in the Medicare program.  The Act authorizes the Secretary of Health & Human Services (Secretary) to promulgate regulations implementing those statutory provisions.  Act § 1819 (42 U.S.C. § 1395i-3).  The Secretary’s regulations are found at 42 C.F.R. part 483.

A facility must 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 or safety than the potential for causing minimal harm.”  42 C.F.R. § 488.301.  A deficiency is a violation of a participation requirement established by sections 1819(b), (c), and (d) of the Act (42 U.S.C. § 1395i-3(b), (c), and (d)), or the Secretary’s regulations at 42 C.F.R. part 483, subpart B.  “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.”  42 C.F.R. § 488.301.

The Secretary contracts with state agencies to conduct periodic surveys to determine whether SNFs are in substantial compliance with the participation requirements.  Act § 1864(a) (42 U.S.C. § 1395aa(a)); 42 C.F.R. §§ 488.10, 488.20.  The Act and regulations require that facilities be surveyed on average every 12 months, and more often if necessary, to ensure that identified deficiencies are corrected.  Act § 1819(g)(2)(A) (42 U.S.C. § 1395i-3(g)(2)(A)); 42 C.F.R. §§ 488.20(a), 488.308.

Regarding the specific participation requirements at issue in the present case, the regulations require facilities to ensure that residents are free from abuse:

Page 4

The resident has the right to be free from abuse, neglect, misappropriation of resident property, and exploitation as defined in this subpart.  This includes but is not limited to freedom from corporal punishment, involuntary seclusion and any physical or chemical restraint not required to treat the resident’s medical symptoms.

42 C.F.R. § 483.12.

The regulations define “abuse” as follows:

Abuse is the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.  Abuse also includes the deprivation by an individual, including a caretaker, of goods or services that are necessary to attain or maintain physical, mental, and psychosocial well-being.  Instances of abuse of all residents, irrespective of any mental or physical condition, cause physical harm, pain or mental anguish.  [Abuse] includes verbal abuse, sexual abuse, physical abuse, and mental abuse including abuse facilitated or enabled through the use of technology.  Willful, as used in this definition of abuse, means the individual must have acted deliberately, not that the individual must have intended to inflict injury or harm.

42 C.F.R. § 483.5; see also id. § 488.301.

Subsection 483.12(a)(1) provides that facilities must:

(1) Not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion;

Subsections 483.12(c)(1)-(4) provide that, in response to allegations of abuse, facilities must:

(1) Ensure that all alleged violations involving abuse, neglect, exploitation or mistreatment, including injuries of unknown source and misappropriation of resident property, are reported immediately, but not later than 2 hours after the allegation is made, if the events that cause the allegation involve abuse or result in serious bodily injury, or not later than 24 hours if the events that cause the allegation do not involve abuse and do not result in serious bodily injury, to the administrator of the facility

Page 5

and to other officials (including to the State Survey Agency and adult protective services where state law provides for jurisdiction in long-term care facilities) in accordance with State law through established procedures.

(2) Have evidence that all alleged violations are thoroughly investigated.

(3) Prevent further potential abuse, neglect, exploitation, or mistreatment while the investigation is in progress.

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

Finally, subsection 483.35(d)(7) requires that the facility:  “complete a performance review of every nurse aide at least once every 12 months.”

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

1.    I find the following facts by a preponderance of the evidence.

Petitioner’s Abuse Prevention and Reporting Policies

During the relevant time period, Petitioner maintained policies prohibiting abuse and requiring that allegations of abuse be reported and investigated.  CMS Ex. 7 at 1-6.  Petitioner’s policy on abuse prevention prohibited abuse in all forms and mandated training for all staff on abuse prevention and reporting.  Id. at 1-2.  Petitioner’s policy on abuse reporting and investigations provided that “all reports of resident abuse . . . are promptly and thoroughly investigated” and required that “the facility will report all allegations of abuse as required by law and regulations to the appropriate agencies.”  Id. at 4.  The abuse reporting policy guaranteed that “[t]he facility will not inhibit facility staff from their mandated reporter obligations.”  Id.  It stated that any allegations of abuse are to be “reported to the administrator or designated representative immediately.”  Id.  If the suspected perpetrator was an employee, the policy required management to “remove the employee immediately from the care of the resident(s) and immediately suspend the employee pending the outcome of the investigation in accordance with facilities [sic] policies.”  Id.  It established a process for the facility to report suspected abuse to appropriate outside agencies.  Id. at 6.

Page 6

Resident 12

At the time of the survey, Resident 1 was a 77-year-old man with diagnoses that included hypertension, Type 2 Diabetes, ulcerative colitis, hemiplegia affecting the left non‑dominant side, dysarthria following unspecified cerebrovascular disease, gout, Parkinson’s disease, generalized muscle weakness, and other mental disorders due to known physiological condition.  CMS Ex. 5 at 1-2; P. Ex. 2 at ¶ 12.  I infer that “other mental disorders due to known physiological condition” refers to non-Alzheimer’s dementia, which is listed as one of Resident 1’s active diagnoses on his Minimum Data Set (MDS) assessment, assessment reference date February 1, 2017.  CMS Ex. 5 at 5, 19.  At the time Resident 1 was admitted to the facility, one of Petitioner’s nurses assessed him as “forgetful.”  Id. at 39-40.  The February 2017 MDS assessment documented that Resident 1 scored 13 on the Brief Interview for Mental Status (BIMS).3  Id. at 7.  The MDS assessment also documented that Resident 1 displayed no indication of psychosis and no physical, verbal, or other behavioral symptoms directed at others.  CMS Ex. 1 at 2-3; CMS Ex. 5 at 10.  The MDS also reflected that Resident 1 required significant assistance with his activities of daily living (ADLs).  CMS Ex. 1 at 3; CMS Ex. 5 at 13.  For example, Resident 1 required assistance for bathing and transfers.  CMS Ex. 5 at 13.

The April 2017 Incident

Sometime in early April 2017, an incident occurred while Certified Nursing Assistant (CNA) 1 was attempting to provide care to Resident 1.  There are a number of conflicting accounts of exactly what occurred and when.  See CMS Ex. 1 at 4-5; CMS Ex. 3 at 2-4; CMS Ex . 4 at 5-7, 9-12; CMS Ex. 6 at 6-8, 15-17, 19-20.  All the differing accounts agree that, at a minimum, Resident 1 became combative during care and CNA 1 made contact with Resident 1’s face with her hand.  See, e.g., CMS Ex. 4 at 5-7, 9-12.  Licensed Vocational Nurse (LVN) 1, the charge nurse on duty, was aware that something occurred between CNA 1 and Resident 1, either because CNA 1 reported it to him herself and Resident 1 confirmed it, or because CNA 2 told him that she witnessed CNA 1 slap Resident 1, or both.  See CMS Ex. 4 at 5, 11; see also CMS Ex. 3 at 2.  Whether CNA 1,

Page 7

Resident 1, CNA 2, or all of them reported the incident to LVN 1 is immaterial.  Regardless of how LVN 1 learned of the incident, he acknowledged that he was aware of it, but did not report it to Petitioner’s administrator.  CMS Ex. 3 at 2; CMS Ex. 4 at 5.

I find it more likely than not that the incident occurred on April 4, 2017, because Petitioner’s staff work schedules show that LVN 1, CNA 1 and CNA 2 were all working the same shift and were assigned to the same station on that date.  CMS Ex. 4 at 1-4; see also CMS Ex. 9 at 33 (CNA 1 acknowledged that she cared for Resident 1 on April 4 and 5, 2017, but not on April 10, 2017); CMS Ex. 6 at 15-16.  I find it unlikely the incident occurred on April 10, 2017, because neither LVN 1 nor CNA 1 was working on that date, according to Petitioner’s records.  CMS Ex. 4 at 1-2.  In any event, the exact date on which the incident occurred is not material to any issue I must decide.

Petitioner’s Internal Investigation

On April 20, 2017, CNA 2 reported to Petitioner’s DON that CNA 1 had allegedly hit Resident 1 on April 10, 2017.  See CMS Ex. 3 at 2; see also P. Ex. 2 at ¶ 18.  CNA 2 also alleged that LVN 1 and Petitioner’s Director of Staff Development (DSD 2)4 knew of the incident.  CMS Ex. 3 at 2. These allegations prompted Petitioner’s DON to begin an internal investigation.  See CMS Ex. 2 at ¶ 22.  Neither the DON nor Petitioner’s administrator was aware of the abuse allegation until April 20, 2017.  Id. at ¶¶ 18, 24.  On April 20, 2017, after she learned of the allegation, the DON suspended CNA 1, DSD 2, and LVN 1 pending investigation of the abuse allegation.  Id. at ¶ 23.

As part of Petitioner’s internal investigation, the DON interviewed Resident 1 on April 20, 2017.  CMS Ex. 4 at 6.  At that time, Resident 1 reported that CNA 1 “put her hand on his right cheek,” and he “flinched only for [a] short time.”  Id.  He also indicated that CNA 1 apologized to him.  Id.  Also on April 20, 2017, the DON interviewed LVN 1, who told her that Resident 1 “said that he kick[ed] [CNA 1] and [CNA 1] touch[ed] his right cheek.”  Id. at 5.  According to the DON’s notes, LVN 1 also reported that Resident 1 and CNA 1 had apologized to each other, and had forgiven each other.  Id.  He stated that he did not report the incident to the administrator or other authorities because Resident 1 and CNA 1 were “ok/fine [with] each other.”  Id.

During a meeting of Petitioner’s Interdisciplinary Team (IDT) on April 21, 2017, Resident 1 reported that he had been “hit on the face by the CNA and had forgotten about it.”  CMS Ex. 5 at 54; see also P. Ex. 2 at ¶ 20.  The IDT reported that Resident 1 “denies

Page 8

any feeling of threat or danger to self and others” and that he did not report any “mental or physical anguish” to social services.  CMS Ex. 5 at 55; see also P. Ex. 2 at ¶ 21.

Based on the information gathered from the DON’s investigation, on April 24, 2017, Petitioner self-reported to the state agency an incident of alleged abuse.  CMS Ex. 3 at 4.  Petitioner’s self-report stated that Resident 1 made the allegation that CNA 1 had hit him on the right side of his face “a few weeks ago.”  Id.  Thereafter, Petitioner’s management prepared a final investigation report (Investigation Report) and faxed it to the state agency on April 26, 2017.  Id. at 1-3; P. Ex. 2 at ¶ 34. 

According to the Investigation Report, in an interview conducted by Social Services on April 21, 2017, Resident 1 stated that he kicked CNA 1 and she hit him with an open hand sometime in March.  CMS Ex. 3 at 2.  Resident 1 stated that they apologized to each other, so he never reported the incident to staff.  Id.  However, in a subsequent interview, Resident 1 stated that he did not remember CNA 1 hitting him and did not want to be bothered with more questions.5   Id.  

The Investigation Report explains that LVN 1 acknowledged that Resident 1 told him that CNA 1 touched his face.  Id.  But LVN 1 apparently discounted Resident 1’s version of the incident because he believed the resident made it up as a defense to CNA 1’s claim that Resident 1 had kicked her.  Id.  According to the Investigation Report, LVN 1 understood that he should have reported Resident 1’s allegation to the Administrator.  Id.  LVN 1 gave his immediate resignation by telephone.  Id.

The Investigation Report goes on to recount CNA 2’s allegation that she witnessed CNA 1 slap Resident 1 on the evening of April 10, 2017.  Id.  CNA 2 also claimed that she reported the incident to LVN 1 and to DSD 2.  Id.  According to the report, DSD 2 denied that CNA 2 ever reported an allegation of abuse to her.  Id.  DSD 2 further stated that CNA 2 always complained about CNA 1 and seemed jealous of her achievements.  The DSD also gave an immediate resignation by telephone, stating that she did not want to deal with false accusations.  Id.

Finally, according to the Investigation Report, CNA 1 denied hitting or abusing any resident.  Id. at 3.  CNA 1 stated that she had heard that CNA 2 claimed that CNA 1 slapped Resident 1; however, CNA 1 stated that CNA 2 made up the story to get her in trouble, because CNA 2 was jealous that CNA 1 was recognized as employee of the year.  Id. at 3.

Page 9

The DON summarized the result of Petitioner’s investigation as follows: “The facility can not [sic] confirm or deny the allegation at this time due to conflicting accounts of the incident and not enough evidence.”  CMS Ex. 3 at 3; see also P. Ex. 2 at ¶ 34.

State Agency Complaint Investigation

From May 9, 2017, through May 23, 2017, the state agency investigated the incident that Petitioner had self-reported on April 24, 2017.  CMS Ex. 13 at ¶ 6; see also CMS Ex. 1 at 1; CMS Ex. 6 at 1.  Health Facilities Evaluator Nurse Karen Lee (Surveyor Lee) conducted the investigation.  CMS Ex. 13 at ¶ 5.  During the survey, Surveyor Lee interviewed CNA 1, who allegedly abused Resident 1, and CNA 2, who allegedly witnessed CNA 1 abuse Resident 1.  CMS Ex. 6 at 6-9, 15-17.  Surveyor Lee also interviewed Petitioner’s DON, DSD 1, and LVN 1.  Id. at 8-10, 17-20.

In the course of her investigation, Surveyor Lee recorded notes of her interviews. CMS Ex. 6.  I find it is more likely than not that CMS Ex. 6 accurately records the substance of the interviews Surveyor Lee conducted.

At or about 10:10 a.m. on May 9, 2017, Surveyor Lee interviewed DSD 1.  CMS Ex. 6 at 3.  During the interview, the surveyor and DSD 1 reviewed CNA 1’s employee file.  Id.  Surveyor Lee documented that DSD 1 was unable to locate performance evaluations for CNA 1.  Id. at 4.

At or about 1:45 p.m. on May 9, 2017, Surveyor Lee interviewed CNA 2.  Id. at 6.  CNA 2 provided the following account of the alleged incident.  CNA 2 said the incident occurred about a month before, but she could not determine the date.  Id.  CNA 1 was in Resident 1’s room.  The privacy curtain was open and CNA 2 was standing by the door.  Id.  CNA 2 heard Resident 1 say “get out, get out.”  CNA 1 was trying to change the resident’s diaper.  CNA 2 observed that Resident 1 was mad.  The resident kicked CNA 1 and refused to get his diaper changed.  Id.  CNA 2 observed CNA 1 use her right hand to slap the resident’s left side of his face.  Id.  CNA 1 told CNA 2 that when she started to clean the resident, he got mad.  CNA 1 also said “I’m going to leave [Resident 1] dirty.”  Id.  On the day of the incident, CNA 2 reported the incident to the charge nurse, LVN 1.  Id.  LVN 1 said that he would take care of it.  CNA 2 stated that she was not sure what was done after she reported the incident.  Id.  CNA 2 stated that she notified DSD 2 of the incident the following day.  Id.  CNA 2 stated that Resident 1 did not have the behavior of kicking staff prior to the incident.  Id. at 8.  CNA 2 also reported that CNA 1 continued to care for the resident the day of the incident, and returned to work on the following day.  Id.

At or about 2:30 p.m. on May 9, 2017, Surveyor Lee interviewed Petitioner’s DON.  Id. at 8. The interview notes document that the DON confirmed no performance evaluation for CNA 1 could be found.  Id.; see also id. at 10.  With regard to the abuse allegation,

Page 10

the DON stated Resident 1 told her that CNA 1 touched him on the face, but the DON was unable to determine how the resident was touched or the date the incident occurred.  Id. at 8; see also id. at 10.  After reviewing Resident 1’s medical record, the DON confirmed that there was no documentation that the resident was kicking, hitting, or being sexually inappropriate towards staff before the incident at issue.  Id. at 10.  However, on May 4, 2017, the resident was reported kicking, hitting, and yelling at staff.  Id.

At or about 4:40 p.m. on May 9, 2017, Surveyor Lee interviewed Petitioner’s administrator.6   Id. at 13.  The administrator described Petitioner’s policies for preventing as well as reporting abuse.  Id. at 13-14.  The administrator also described Petitioner’s policy and practice regarding performance evaluations.  Id. at 14.  The surveyor reviewed Petitioner’s performance evaluation form with the administrator.  Id.; see also CMS Ex. 7 at 42.  The administrator explained that the charge nurse rates the performance of CNAs; RNs evaluate LVNs; the DON evaluates RNs.  CMS Ex. 6 at 14.  The administrator in training told the surveyor that the facility had no performance evaluations for LVN 1.  Id.

At or about 12:00 p.m. on May 10, 2017, Surveyor Lee interviewed CNA 1 by telephone.  Id. at 15.  The interview notes document CNA 1’s account of the incident.  On April 4, 2017 at or about 10:30 p.m., CNA 1 responded to Resident 1’s call light.  Resident 1 was masturbating.  Id.  CNA 1 left the room to give him privacy.  After about 10 minutes, Resident 1’s call light was on again and CNA 1 answered it.  Id.  CNA 1 asked the resident if he needed help to change his diaper; he said yes.  CNA 1 began to change Resident 1.  The resident asked CNA 1 to play with his private parts; she told him no.  Id. Resident 1 yelled, “I don’t need you because you don’t help me.”  Id.  Resident 1 tried to hit CNA 1 and she covered the resident with his blanket.  Id.  CNA 1 wanted to change the resident’s diaper because it would be the last chance for her to change it before the end of her shift.  Id.  There were no other witnesses to the incident.  Id.  CNA 1 said she reported the incident to LVN 1, the charge nurse, who then met with Resident 1 and CNA 1 together.  The resident was angry and claimed that CNA 1 hit him.  Id.  Resident 1 told LVN 1 that CNA 1 didn’t help him when he needed it.  The resident and CNA 1 apologized to each other.  Id.  LVN 1 stated that the incident did not need to be reported.  Id. at 15-16. 

Further, CNA 1 reported that she cared for Resident 1 the following day without incident, and again on April 10, 2017.  Id. at 16.  That day, the resident was aggressive and yelling, again upset that no one timely responded to the call light.  Id.  CNA 1 also reported that Resident 1 had the behavior of hitting staff.  Id.  CNA 1 said that the DON called CNA 1 on April 20, 2017, to discuss the allegation of abuse.  Id.  CNA 1 denied the allegation.  Id.  CNA 1 expressed that she has cared for the resident for the past three years, and it was well known that the resident was “always aggressive by trying to hit staff.”  Id.

Page 11

Further, CNA 1 stated that Resident 1 had the behavior of touching himself and had asked staff to help him touch himself.  Id.  CNA 1 stated that she would either leave the resident alone, or talk to the resident to calm him down if he was being aggressive.  Id. at 17.  She also stated that she would ask permission to care for the resident and, if the resident refused, she would not force it.  Id.  CNA 1 said now she knows that she should have another staff member observe and assist her with aggressive residents.  Id.

At or about 2:12 p.m. on May 10, 2017, Surveyor Lee interviewed Petitioner’s DON a second time, by telephone.  Id.  On this occasion, the DON described the facility’s process for investigating and reporting allegations of abuse.  Id.  In addition, she explained that it was the facility’s practice to have the DSD conduct performance evaluations for CNAs, while the DON conducts performance evaluations for RNs and LVNs.  Id. at 18.  The DON stated that the goal of performance evaluations is to ensure staff members are “practicing safely and in compliance with [standards of] nursing practice for resident care.”  Id.

At or about 2:47 p.m. on May 10, 2017, Surveyor Lee interviewed LVN 1 via telephone.  Id. at 19-20.  LVN 1 gave the following account.  LVN 1 was at the nurse’s station and CNA 1 came out of Resident 1’s room and reported that Resident 1 kicked her.  Id. at 19.  LVN 1 talked to Resident 1 and CNA 1.  Id.  Resident 1 stated he kicked CNA 1 because she “was in a rush to do ADLs for him.”  Id.  Resident 1 also told LVN 1 that CNA 1 slapped him in the face, but CNA 1 denied it.  Id.  Resident 1 apologized for kicking CNA 1 and she apologized for rushing the resident with his ADLs.  Id.  According to LVN 1, there were no witnesses to the incident.  Id.  LVN 1 told the surveyor that Resident 1 had been calm prior to the incident.  Id.  However, LVN 1 stated that Resident 1 had the behavior of kicking staff when he didn’t like something.  Id.  The resident had this behavior since LVN 1 starting working at the facility in 2016.  Id.  By contrast, LVN 1 reported that, as far as he was aware, Resident 1 did not have inappropriate sexual behaviors.  Id. at 20.  LVN 1 said that CNA 1 did not report to him that Resident 1 was sexually inappropriate with her.  Id.  During the interview with Surveyor Lee, LVN 1 admitted that he failed to report the incident and stated that he should have reported the incident to facility management and state authorities.  Id. at 19.

For the reasons explained in the following section of this decision, I conclude that the facts I have found above establish that Petitioner did not comply substantially with Medicare participation requirements.

Page 12

2.    Petitioner was not in substantial compliance with Medicare participation requirements.

a.     Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(a) (Tag F223) because it failed to ensure that Resident 1 was free from abuse.

SNF residents have the right to be free from abuse.  42 C.F.R. § 483.12.  A facility must not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion.  42 C.F.R. § 483.12(a)(1).  In pertinent part, the regulations define “abuse” as “the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.”  42 C.F.R. § 483.5.  “Willful . . . means the individual must have acted deliberately, not that the individual must have intended to inflict injury or harm.”  Id.

Petitioner contends that CMS failed to make a prima facie showing of noncompliance with respect to Tag F223.  P. Posthrg. Br. at 7.  Petitioner’s position is that the April 2017 interaction between CNA 1 and Resident 1 did not constitute abuse.  Id.  Petitioner acknowledges that CNA 1 touched Resident 1’s face during a physical struggle, but asserts that not every incident where a “touch” occurs rises to the level of abuse.  Id. at 9.  Petitioner asserts that there are many circumstances where facility staff must be in close proximity to a resident and “touch” a resident in order to provide necessary care and services, even though residents can be “unpredictable” and strike out at a staff member.  Id.  Thus, it appears to be Petitioner’s position that CNA 1 touched Resident 1 either accidentally or in self-defense.  See P. Br. at 10.

Petitioner insists that I should discount CNA 2’s report that she witnessed CNA 1 slap Resident 1 because CNA 2’s accounts are “inconsistent,” “ever changing,” and she had a motive to exaggerate the incident or be vindictive toward CNA 1, because the two did not get along.  Id. at 10, 11.  Implicit in Petitioner’s argument that CMS failed to make a prima facie case because CNA 2’s statements are unreliable is the assumption that CNA 2 was the only person who reported conduct that might represent abuse.  This was not the case.  In addition to CNA 2, Resident 1, LVN 1, and CNA 1 herself, all described events from which one could infer that Resident 1 had been abused.  Therefore, even if CNA 2 did not actually witness CNA 1 slap Resident 1, as she claimed, this does not establish that the incident did not occur.7

Page 13

To the contrary, having considered the evidence described above, I find it more likely than not that, on or about April 4, 2017 (see CMS Ex. 6 at 15), an altercation occurred between Resident 1 and CNA 1 in which Resident 1 became combative with care and CNA 1 slapped or hit his face while attempting to provide care.  In reaching this conclusion, I rely primarily on the statements of Resident 1, as Petitioner documented them during its investigation.  Significantly, Resident 1 told members of Petitioner’s staff on several occasions that a CNA had hit or touched his face, although he was not able to provide the date on which the incident occurred.

On April 20, 2017, Resident 1 told Petitioner’s DON that CNA 1 “put her hand on his right cheek” and “[h]e flinched only for a short time.”  CMS Ex. 4 at 6.  On April 21, 2017, Resident 1 attended an IDT conference concerning the allegation of abuse.  CMS Ex. 5 at 54.  According to the meeting notes, Resident 1 stated “he got hit on the face by the CNA and had forgotten about it.”  Id.; see also id. at 62.  Similarly, Petitioner’s Investigation Report states that, on April 21, 2017, Resident 1 told Petitioner’s Social Services staff that he kicked CNA 1 and she hit him with an open hand sometime in March.  CMS Ex. 3 at 2.

I acknowledge that Resident 1’s written declaration purports to disavow his statement to the IDT conference that a CNA had hit him.  P. Ex. 1 at ¶ 16.  However, it is apparent that Resident 1’s memory of events has deteriorated over time.  This is unsurprising given that Resident 1 has been diagnosed with non-Alzheimer’s dementia and assessed as forgetful.  CMS Ex. 5 at 19, 39.  I note that Resident 1 signed his written direct testimony on December 5, 2017, some eight months after the events in question.  See P. Ex. 1 at 2.  However, as early as April 26, 2017, Resident 1 apparently told Petitioner’s administrator in training that he did not remember CNA 1 ever hitting him.8   CMS Ex. 3 at 2.  Unfortunately, by the time of the hearing, Resident 1 had no memory of the April 2017 incident, or even of preparing his written declaration.  Tr. at 220, 224.  Because Resident 1 could not explain the extent to which he participated in preparing his declaration, I am unable to determine, by a preponderance of the evidence, that the version of events

Page 14

recounted there is reliable.9   Therefore, I do not accord weight to Resident 1’s written declaration.  Instead, I give greater weight to the statements gathered during Petitioner’s internal investigation and to the records Petitioner created and maintained close in time to the events in question.  I have considered the fact Resident 1 had memory problems and that his accounts of the incident changed over time.  However, I find it is more likely than not that Resident 1’s recollection would be clearer closer in time to the events in question and less reliable as time continued to pass.

Moreover, Resident 1’s account is corroborated, in part, by the statements of LVN 1.  When interviewed by the DON on April 20, 2017, LVN 1 confirmed that Resident 1 said that he kicked CNA 1 and she touched his right cheek.  CMS Ex. 4 at 5; see also CMS Ex. 3 at 2.  Similarly, LVN 1 confirmed to Surveyor Lee that Resident 1 claimed CNA 1 had slapped his face.  CMS Ex. 6 at 19.  In addition, Resident 1’s account is consistent in some respects with that of CNA 1.  Although CNA 1 denied hitting Resident 1, she acknowledged that she had a physical altercation with him.  Close in time to the incident, CNA 1 told LVN 1 that Resident 1 was combative during care.  CMS Ex. 4 at 5.  In summary, I accord weight to Resident 1’s statements describing the altercation with CNA 1 because they are consistent with each other and with the statements of others.

By contrast, I do not find the statements of CNA 1 fully credible because her statements are inconsistent with one another and with Resident 1’s medical records.  First, CNA 1 acknowledged to LVN 1 and to Petitioner’s DON that she had an altercation with Resident 1, which, according to her, occurred when the resident displayed inappropriate behavior.  However, CNA 1’s descriptions of Resident 1’s behavior are inconsistent.  CNA 1 told LVN 1 that Resident 1 had kicked her.  CMS Ex. 4 at 5.  However, she told the DON that Resident 1 tried to hit her with his call light and she held his hands to prevent him hitting her.  Id. at 11.  CNA 1 additionally alleged that Resident 1 asked her to engage in sexually inappropriate behavior.  Id.; see also CMS Ex. 6 at 15.  CNA 1 also told the surveyor that, throughout the time CNA 1 worked at the facility, Resident 1 engaged in behaviors of hitting staff and asking staff to touch him inappropriately.  CMS Ex. 6 at 16.

Petitioner’s DON provided written direct testimony that appears consistent with CNA 1’s description of Resident 1’s behaviors.  The DON testified that “Resident 1 experienced frustration and anger due to his impaired mobility.  This frustration and anger had the potential to manifest itself as physical or verbal outbursts.”  P. Ex. 2 at ¶ 14 (internal citations omitted).  Based on these statements, Petitioner asserts that Resident 1 was known to have a history of violent and inappropriate behavior.  See, e.g., P. Posthrg. Br.

Page 15

at 3-4.  However, my review of Resident 1’s medical records does not reveal any documentation that Resident 1 exhibited violent or sexually inappropriate behavior leading up to the altercation on or about April 4, 2017.

In particular, Resident 1’s MDS of February 1, 2017, recorded “0” physical behavioral symptoms directed toward others “e.g., hitting, kicking, pushing, scratching, grabbing” during the look-back period.  CMS Ex. 5 at 10. The MDS similarly recorded “0” verbal behavioral symptoms directed toward others “e.g., threatening others, screaming at others, cursing at others” during the period.  Id.  Moreover, the MDS assessment is consistent with Resident 1’s psychological services progress notes.  The notes, which cover dates from March 21, 2017, through April 25, 2017, do not identify behaviors of verbal or physical aggression as a focus of treatment.  Id. at 32-38.  Further, prior to April 2017, nothing in Resident 1’s care plan describes problems of aggressive or sexually inappropriate behaviors or approaches for dealing with such problems.  Id. at 60, 64.  Following the allegations concerning CNA 1, there are care plan entries dated April 21, 2017, recording that the resident displayed aggressive behavior (kicking staff) and touched himself inappropriately in front of staff.  Id. at 62, 65.  However, the care plan does not include approaches for dealing with these problems.  Id.  Finally, according to the surveyor’s notes, Petitioner’s DON agreed with the surveyor’s observation that Resident 1’s records did not document any incidents of aggressive or sexually inappropriate behavior prior to the April incident.  CMS Ex. 6 at 10.  Nor does the fact that Petitioner later requested that Resident 1 be transferred out for psychological evaluation support a different conclusion.

Petitioner’s records show that, on or about May 4, 2017, Petitioner requested that Resident 1 undergo psychiatric evaluation because of a violent outburst.  CMS Ex. 5 at 27-28.  The evaluating professional noted that Resident 1 displayed “severe agitation” and was “striking out at caregiver.”  Id. at 30.  He further noted that the Resident 1 “has history of violent outbursts. Staff also reports [resident] frequently sexually inappropriate.”  Id. at 31.  However, the latter observation appears to have been based on information from Petitioner’s staff and is inconsistent with paperwork for Resident 1’s transfer.  A form apparently completed by Petitioner’s staff described the resident’s baseline mental status as “oriented x 3” and staff did not check boxes to indicate that the resident was physically or verbally aggressive at baseline.  Id. at 28.

Based on the absence of documentation that Resident 1 routinely displayed aggressive or sexually inappropriate behavior, I do not find the preponderance of the evidence supports that CNA 1 touched Resident 1 inadvertently in an attempt to defend herself from an attack.  I do find it more likely than not that, during the course of an altercation, Resident 1 kicked CNA 1 and CNA 1 slapped Resident 1.  But even if CNA 1 did not strike Resident 1, but only restrained him so that she could change his incontinence brief over his objections, this would be sufficient to support a deficiency finding for failing to prevent abuse.  In Honey Grove Nursing Ctr., the appellate panel held that provision of

Page 16

incontinence care over a resident’s objection could constitute abuse.  DAB No. 2570 at 4‑5 (2014), aff’d, Honey Grove Nursing Ctr. v. Dep’t of Health & Human Servs., 606 F.  App’x 164 (5th Cir. 2015).

In summary, I conclude, based on my de novo review of the record, that Petitioner failed to ensure that Resident 1 was free from abuse as required by 42 C.F.R. § 483.12(a).  CNA 1 engaged in a physical altercation with Resident 1 on or about April 4, 2017, during which she hit or slapped him, causing him to flinch.  I infer from this that Resident 1 experienced pain, even if fleeting.  See Tr. at 186 (Resident 1 told Petitioner’s DON that his cheek hurt a little bit).10   Therefore, Petitioner’s failure to comply with 42 C.F.R. § 483.12(a) caused more than minimal harm to the resident.  For these reasons, Petitioner failed to comply substantially with 42 C.F.R. § 483.12(a) (Tag F223).  However, even if I were to find that CNA 1 did not hit or slap Resident 1, nor forcibly provide incontinence care over his objections, I would nevertheless conclude that Petitioner was out of substantial compliance with Medicare participation requirements because its staff failed to immediately report an allegation or allegations of abuse as required by 42 C.F.R. § 483.12(c).

b.    Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(c) (Tag F225) because it failed to properly report allegations of abuse.

In addition to requiring that residents be free from abuse, the regulations require facilities to:  1) report allegations of abuse within 24 hours to facility administration and to the state agency; 2) document that allegations of abuse are thoroughly investigated; 3) prevent further episodes of abuse while the investigation is in progress; and 4) report the results of its investigation to the state agency within five days of the incident.  42 C.F.R. § 483.12(c).  Unless a facility takes each of these steps in response to an allegation of abuse, it is not in substantial compliance with Tag F225.

As relevant here, Petitioner’s policies included provisions that track the reporting requirements of 42 C.F.R. § 483.12(c).  For example, Petitioner’s own abuse reporting policy required that Petitioner’s staff “report all allegations of abuse as required by law and regulations to the appropriate agencies.”  CMS Ex. 7 at 4.  The policy further provided:  “Allegations of abuse, neglect, mistreatment, or exploitation are to be reported to the Administrator or designated representative immediately.”  Id.  Under the State Operations Manual (SOM), the word “immediately” means “as soon as possible, but

Page 17

ought not exceed 24 hours after discovery of the incident, in the absence of a shorter State time frame requirement.”  CMS Ex. 12 at 9.

Petitioner asserts that it properly and thoroughly investigated the abuse allegation when it was reported on April 20, 2017.  P. Posthrg. Br. at 14.  Petitioner again points out that CMS relies on CNA 2’s “untrustworthy” statements that she informed LVN 1 and DSD 2 of the allegation before April 20.  Id.  According to Petitioner, once CNA 2 reported the allegation of abuse to Petitioner’s DON, the DON immediately reported the allegation to the Administrator and proper authorities, and an investigation followed.  Id. at 16.  In addition, Petitioner points out that CNA 1, LVN 1, and DSD 2 were suspended per the policy.  Id.  While I agree that Petitioner investigated the allegation and reported to the state agency after April 20, 2017, this does not establish that Petitioner was in substantial compliance with the requirement to report and investigate allegations of abuse.

I find that Petitioner’s staff violated both Petitioner’s policies and 42 C.F.R § 483.12(c) by failing to report an allegation of abuse internally.  My conclusion that Petitioner did not comply substantially with 42 C.F.R. § 483.12(c) does not depend on CNA 2’s claim that she reported to LVN 1 and DSD 2 that she had witnessed CNA 1 slap Resident 1.  Even if CNA 2 never reported the alleged incident before she told Petitioner’s DON on April 20, 2017, LVN 1 learned of the incident directly from CNA 1 and Resident 1.  Resident 1 told LVN 1 that CNA 1 slapped him.  See CMS Ex. 3 at 2; CMS Ex. 4 at 5; CMS Ex. 6 at 19.  While CNA 1 denied slapping the resident, she acknowledged that there was a physical altercation.  CMS Ex. 3 at 3; CMS Ex. 4 at 11; CMS Ex. 6 at 15.  As I have found with regard to the incident itself, I conclude it is more likely than not that LVN 1 learned of the allegation on or about April 4, 2017.

Once LVN 1 became aware of the allegation of abuse, it was his duty to report the allegation to Petitioner’s administration immediately (or within 24 hours), as he acknowledged.  CMS Ex. 3 at 2; CMS Ex. 6 at 19.  Nevertheless, LVN 1 failed to report the allegations in accordance with 42 C.F.R. § 483.12(c)(4).  Because of this failure, Petitioner’s DON and administrator did not learn of the incident until April 20, 2017 – roughly two weeks after it occurred.  CMS Ex. 3 at 2; CMS Ex. 6 at 8-9.  The resulting delay in investigating the incident placed Resident 1 at risk for more than minimal harm, because CNA 1 continued to care for Resident 1 (and presumably other residents) after the incident.  See CMS Ex. 6 at 15; see also Rosewood Care Ctr. of Swansea, DAB No. 2721 at 12 (2016), aff’d, Rosewood Care Ctr. of Swansea v. Price, 868 F.3d 605 (7th Cir. 2017) (failure to investigate had “‘the consequence of leaving residents unprotected against additional instances of abuse, an extremely dangerous situation for the frail and vulnerable individuals who resided at Petitioner’s facility.’” (quoting with approval the administrative law judge’s decision)); see also Colonial Hills Nursing Ctr., DAB CR3180 at 37 (2014) (failure to ensure perpetrator of alleged abuse is removed from facility poses risk that resident may suffer serious injury or harm).

Page 18

The record suggests that LVN 1 may have decided it was unnecessary to report Resident 1’s allegation that CNA 1 slapped him because LVN 1 did not believe the allegation.  See CMS Ex. 3 at 2 (LVN 1 thought Resident 1’s allegation “was made up as a defense” to CNA 1’s claim that the resident kicked her).  However, LVN 1’s belief that, because (in his view) there was no abuse, there was no need to report, is contradicted by the regulations and Petitioner’s own policies.  The regulations require immediate reporting so that allegations or suspicions of abuse can be investigated and a determination can be made as to whether any abuse occurred.  The regulations do not countenance a backward-looking approach – using the assertion (or even a finding) that no abuse occurred to justify a decision that no reporting was required.  As an appellate panel of the Departmental Appeals Board (DAB) stated in Cedar View Good Samaritan:

[T]he salient question is not whether any abuse in fact occurred or whether [the facility] had reasonable cause to believe that any abuse occurred, but whether there was an allegation that facility staff had abused a resident . . . .  Since the allegations of abuse themselves gave rise to [the facility’s] duty under section 483.13(c)(2)[11 ] to report the . . . incidents to the State agency, [the facility’s] arguments that it did not have reasonable cause to believe that any abuse occurred have no bearing on the [administrative law judge’s] finding that [the facility] violated this regulation.

DAB No. 1897 at 11-12 (2003) (emphasis in original).

Just as a conclusion that no abuse occurred does not relieve a facility of the duty to report suspicions of abuse, the duty to report is similarly not extinguished by a suspicion that potential witnesses may have fabricated or exaggerated reports of possible abuse.  Even in situations where a facility determines that an employee fabricated an allegation of abuse, “‘it is no defense to assert that the allegations relating to the . . . incident may have been “fabricated” or that they were false.  The regulation requires that all allegations of abuse – true or not – be investigated immediately and reported.’”  Illinois Knights Templar Home, DAB No. 2369 at 12 (2011) (quoting with approval the reasoning of the administrative law judge).  Thus, if CNA 2 did report to LVN 1 or DSD 2 that she witnessed CNA 1 slap Resident 1, LVN 1 and DSD 2 would have a duty to report the

Page 19

allegation, even if they suspected that CNA 2’s accusation was false.  See, e.g., CMS Ex. at 3; CMS Ex. 4 at 10.

In sum, in the face of reported conduct by CNA 1 that, at a minimum, gave rise to a question as to whether abuse had occurred, Petitioner’s staff did not immediately report the incident to its administrator and the state survey agency.  Therefore, with respect to the incident, the individuals who witnessed or suspected possible abuse did not follow Petitioner’s policies, nor did they comply with the regulatory reporting requirements.  Accordingly, Petitioner did not substantially comply with 42 C.F.R. § 483.12(c).

c.    Petitioner was not in substantial compliance with 42 C.F.R. § 483.35(d)(7) (Tag F497) because it failed to complete performance reviews for CNA 1.

d.    I need not decide whether Petitioner’s failure to evaluate LVN 1 represented noncompliance with 42 C.F.R. § 483.35(d)(7) (Tag F497).

The applicable regulatory requirement states, in relevant part, that a “facility must complete a performance review of every nurse aide at least once every 12 months . . . .” 42 C.F.R. § 483.35(d)(7).  “Nurse aide” is defined as

[A]ny individual providing nursing or nursing-related services to residents in a facility. This term may also include an individual who provides these services through an agency or under a contract with the facility, but is not a licensed health professional, a registered dietitian, or someone who volunteers to provide such services without pay. Nurse aides do not include those individuals who furnish services to residents only as paid feeding assistants. . . .

42 C.F.R. § 483.5 (emphasis added).

CMS asserts that Petitioner failed to complete performance evaluations for CNA 1 and LVN 1 at any time during the two or more years that both worked for Petitioner.  CMS Br. at 11-12; see also CMS Posthrg. Br. at 11.  Petitioner asserts that it properly conducted an informal performance review of CNA 1, and there is no requirement to evaluate LVN 1, a licensed vocational nurse.  P. Br. at 17-19.  Petitioner argues that the regulations do not prescribe a specific format for conducting employee performance reviews.  Id. at 18.  Further, Petitioner asserts that, because it was the custom and practice at its facility for the DSD to conduct performance evaluations on an informal basis with employees, such evaluations may not be documented in an employee’s file.  Id.; see also

Page 20

P. Posthrg. Br. at 20-21; P. Ex. 2 at ¶¶ 42-43.  According to Petitioner, these informal evaluations occurred on a routine basis, no less than annually.  P. Br. at 18.

I need not decide whether informal evaluations satisfy the regulatory requirement under 42 C.F.R. § 483.35(d)(7).  This is because the evidence fails to establish that Petitioner conducted any evaluations of CNA 1, whether informal or formal.  Petitioner’s DON testified that she was unable to locate any written records documenting that informal evaluations took place.  Tr. at 189.  Further, the DON could not testify from personal knowledge that Petitioner had conducted informal evaluations of CNA 1 because the DON had only been working at the facility since February 2017.  P. Ex. 2 at ¶¶ 42-43.  Based on the absence of documentation or testimony that someone on Petitioner’s staff actually completed informal evaluations of CNA 1, I find it more likely than not that no such evaluations occurred.

Moreover, I do not find credible Petitioner’s assertion that its practice was to conduct informal, rather than formal, evaluations of its employees.  I make this finding because Petitioner’s Employee Handbook states:  “[f]ormal performance evaluations are normally conducted, according to [an] ongoing twelve (12) month cycle, on a scheduled basis.”  CMS Ex. 7 at 41.  Petitioner’s DON confirmed that the policy described in CMS Ex. 7 is part of Petitioner’s Employee Handbook.  Tr. at 191.  Further, among the records gathered by Surveyor Lee during her survey of Petitioner’s facility is a blank printed form titled “Employee Performance Review.”  CMS Ex. 7 at 42.  According to her notes, Surveyor Lee discussed this form with Petitioner’s administrator during the survey.  CMS Ex. 6 at 14.  I find it highly unlikely that Petitioner would create a printed evaluation form if it did not plan to conduct formal performance evaluations of its employees, as provided in its Employee Handbook.

A facility’s policies may represent standards by which the facility is bound.  See, e.g., Illinois Knights Templar Home, DAB No. 2369 at 9-10 (SNF is bound by definition of abuse found in its policy).  Per Petitioner’s Employee Handbook, it was required to conduct formal evaluations of its employees every 12 months.  CMS Ex. 7 at 41.  Yet, Petitioner admits that it did not conduct formal evaluations of CNA 1.  P. Br. at 18; see also P. Posthrg. Br. at 20.

Petitioner’s DON acknowledged that employee evaluations play a role in ensuring that staff members are practicing safely and in compliance with standards of nursing practice when providing resident care.  CMS Ex. 6 at 18.  Because Petitioner failed to perform either informal or formal evaluations of CNA 1, Petitioner could not verify that she was performing her duties safely and within the standard of care.  This posed a risk of more than minimal harm to Petitioner’s residents.  Accordingly, Petitioner did not substantially comply with 42 C.F.R. § 483.35(d)(7).

Page 21

Petitioner’s failure to evaluate CNA 1 (either formally or informally) is sufficient to establish that it did not comply substantially with 42 C.F.R. § 483.35(d)(7).  I therefore need not determine whether Petitioner’s failure to conduct evaluations for LVN 1 also amounts to noncompliance with 42 C.F.R. § 483.35(d)(7).

As I have found above, Petitioner failed to comply substantially with Medicare participation requirements at 42 C.F.R. §§ 483.12(a) (Tag F223); 483.12(c) (Tag F225); and 483.35(d)(7) (Tag F497).  CMS therefore had a basis to impose a CMP.  I next consider whether the CMP imposed is reasonable.

3.    A CMP of $505 per day for the period May 23, 2017 through June 29, 2017, is reasonable in amount and in duration.

I evaluate whether a CMP is reasonable by applying the factors listed in 42 C.F.R. § 488.438(f):  1) the facility’s history of noncompliance; 2) the facility’s financial condition; 3) the factors specified in 42 C.F.R. § 488.404; and 4) the facility’s degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort, or safety. The absence of culpability is not a mitigating factor.  The factors listed in § 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.  Unless a facility contends that a particular regulatory factor does not support the CMP amount that CMS proposed, the administrative law judge must sustain it.  Coquina Ctr., DAB No. 1860 at 32 (2002).

The regulations specify that a per day CMP will fall into one of two ranges of penalties. 42 C.F.R. §§ 488.408, 488.438.  The upper range of a CMP, $6,394 to $20,965 per day, is reserved for deficiencies that pose immediate jeopardy to a facility’s residents and, in some circumstances, for repeated deficiencies. 42 C.F.R. § 488.438(a)(1)(i), (d)(2).12  The lower range of a CMP, $105 to $6,289 per day, is reserved for deficiencies that do not pose immediate jeopardy, but either cause actual harm to residents, or cause no actual harm but have the potential for causing more than minimal harm.  42 C.F.R. § 488.438(a)(1)(ii).  In assessing the reasonableness of a CMP amount, an administrative law judge considers the per day amount, rather than the total accrued CMP.  See Kenton Healthcare, LLC, DAB No. 2186 at 28 (2008).  The regulations leave the decision regarding the choice of remedy to CMS, and the amount of the remedy to CMS and the administrative law judge, requiring only that the regulatory factors at §§ 488.438(f) and 488.404 be considered when determining the amount of a CMP within a particular range.

Page 22

42 C.F.R. §§ 488.408, 488.408(g)(2); 498.3(d)(11); see also 42 C.F.R. § 488.438(e)(2) and (3); Alexandria Place, DAB No. 2245 at 27 (2009); Kenton Healthcare, LLC, DAB No. 2186 at 28-29.

In this case, CMS imposed a CMP of $505 per day for 38 days of noncompliance (May 23, 2017 through June 29, 2017).  Petitioner’s main argument in opposition to the CMP amount is that Petitioner was in compliance with all regulatory requirements at the time of the survey.  P. Posthrg. Br. at 22.  However, for the reasons explained above, I reject that contention.  With respect to the regulatory factors for determining CMP amounts, Petitioner argues it was not culpable because Resident 1 suffered no intentional harm as a result of the incident.  Id.  Petitioner asserts that the mere “touching” of Resident 1’s face does not in any circumstances rise to any potential for more than minimal harm.  Id.  I disagree with Petitioner’s contention that it was not culpable (in the sense of responsible) for noncompliance that placed Petitioner’s residents at risk for more than minimal harm.

The CMP amount imposed in the present case is less than 10% of the maximum CMP for non-immediate jeopardy level noncompliance.  I have no difficulty in concluding that such a relatively modest CMP is reasonable.  Contrary to Petitioner’s arguments, the noncompliance was serious.  It is likely that CNA 1 slapped Resident 1 during an altercation.  The regulations presume that any incidence of abuse causes physical harm, pain or mental anguish to a resident.  42 C.F.R. § 483.5 (definition of abuse).  In addition, Petitioner’s staff did not immediately report the incident; instead, LVN 1 made the resident and CNA apologize to each other and unilaterally decided that it was unnecessary to report the incident.  Although Petitioner eventually investigated the incident, its administration did not learn of the incident until weeks after it had occurred.  This may have contributed to Petitioner’s inability to determine conclusively whether abuse in fact occurred.  Moreover, the fact that members of Petitioner’s staff ignored the duty to report allegations of abuse placed all residents at risk that allegations of abuse would not be reported and, as a result, not investigated or remedied.  These risks are particularly concerning for SNF residents, who are, by definition, frail and in need of care.  Further, Petitioner’s failure to conduct performance evaluations of CNA 1 placed its residents at risk that she might provide care that was unsafe or otherwise substandard.

With respect to other factors, Petitioner has a prior history of noncompliance.  Petitioner was found out of substantial compliance on each of its previous three recertification surveys, and has had substantiated complaint surveys in October 2016 and February 2017.  CMS Ex. 11.  Petitioner did not submit any information showing that a $505 per day CMP would cause it financial hardship.  Finally, Petitioner has not argued (should I find substantial noncompliance existed) that it returned to substantial compliance earlier than June 29, 2017.  Accordingly, I find that the duration of the CMP, from May 23, 2017 through June 29, 2017, is reasonable.

Page 23

V.  Conclusion

For the foregoing reasons, I conclude that Petitioner was not in substantial compliance with 42 C.F.R. §§ 483.12(a) (Tag F223); 483.12(c) (Tag F225); and 483.35(d)(7) (Tag F497).  I further conclude that the CMP of $505 per day effective May 23, 2017 through June 29, 2017, is reasonable in amount and duration.

• 1. I apply the regulations in effect at the time of the survey.  See Carmel Convalescent Hosp., DAB No. 1584 at 2 n.2 (1996).
• 2. To protect their privacy, I refer to the resident and facility staff by the numerical identifiers assigned during the survey.  See CMS Ex. 2.
• 3. BIMS scores are categorized into 3 levels:  intact/borderline cognition (13‒15), moderate cognitive impairment (8–12), and severe cognitive impairment (0‒7).  See, e.g., Kali S. Thomas et al., The Minimum Data Set 3.0 Cognitive Function Scale, 55 Med. Care e68, e69 (2017) (online article), available at https://insights.ovid.com/crossref?an=00005650-201709000-00011 (last visited February 5, 2021).  Thus, Resident 1’s BIMS score of 13 falls on the borderline between intact and moderately impaired cognition.
• 4. At the time of the survey, a different individual held the position of DSD than the one who held the position in April 2017.  See CMS Ex. 2; see also CMS Ex. 3 at 2 (prior DSD resigned during investigation).
• 5. As I discuss in greater detail below, Resident 1’s memory of the events of April 2017 has continued to deteriorate over time to the point that, at the supplemental hearing on March 20, 2019, Resident 1 was unable to recall any of the events.  Nor was he able to recall having made and signed his declaration in this matter.  Tr. at 220, 224.
• 6. Apparently, an individual identified as an administrator in training (AIT) also participated in this interview.  CMS Ex. 6 at 14.
• 7. For example, even if CNA 2 did not witness the incident, it is plausible that she overheard LVN 1 and CNA 1 discussing what had occurred, since all three of them were working the same shift and station on April 4 and 5, 2017.  See CMS Ex. 4 at 1-4.  I merely point this out as a possibility, because there is insufficient evidence for me to find as fact that this is what occurred.
• 8. Petitioner criticizes the state agency surveyor for failing to interview Resident 1.  P. Br. at 15; see also P. Posthrg. Br. at 17.  Petitioner suggests that Resident 1 would have explained that he kicked CNA 1, she attempted to block his kick, and any touch was inadvertent.  P. Br. at 15.  Given that Resident 1’s memory was already fading by April 26, 2017, Petitioner can do no more than speculate as to what Resident 1 may have told the surveyor had she interviewed him in May 2017.  In any event, any alleged shortcomings in the survey process are not a factor in my decision, as I review the facts de novo.  See Oaks of Mid City Nursing & Rehab. Ctr., DAB No. 2375 at 33 (2011) (“the quality of the surveyors’ information gathering or thought processes is immaterial”).
• 9. For example, I am unable to determine if Resident 1 may have felt pressured to provide an account that was more favorable to the facility because of his desire to remain there and not move to another facility.  See P. Ex. 1 at ¶ 19.
• 10. Significantly, I need not find evidence that a resident experienced pain or mental anguish to sustain a deficiency for abuse.  The regulatory definition of abuse creates a presumption that “[i]nstances of abuse of all residents, irrespective of any mental or physical condition, cause physical harm, pain or mental anguish.”  42 C.F.R. § 483.5 (definition of abuse).
• 11. When the regulations were updated, former 42 C.F.R. § 483.13(c)(2) was redesignated as 42 C.F.R. § 483.12(c)(1), albeit with substantial revisions.  Decisions discussing noncompliance with former 42 C.F.R. § 483.13(c)(2) thus remain instructive in cases involving alleged noncompliance with 42 C.F.R. § 483.12(c)(1) to the extent the redesignation and revision of former 42 C.F.R. § 483.13(c)(2) did not alter the substance of the reporting obligations that provision imposed on SNFs.
• 12. The CMP ranges listed in the regulations are adjusted annually for inflation under 45 C.F.R part 102.  The amounts I cite here were those in effect at the time CMS imposed the remedies at issue in the present case.  See 82 Fed. Reg. 9174, 9182-83 (February 3, 2017).