Lake Worth Nursing Home, DAB CR5054 (2018)

DECISION

I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) to impose civil money penalties of $1375 per day against Petitioner, Lake Worth Nursing Home, for each day of a period that began on February 2, 2017 and that continued through March 21, 2017.

I. Background

The parties waived an in-person hearing.  I am deciding the case based on the parties’ exchanges.  CMS and Petitioner each filed opening and final briefs.  CMS filed 25 exhibits, identified as CMS Ex. 1-CMS Ex. 25.  Petitioner filed one exhibit, identified as P. Ex. 1.  I receive the parties’ exhibits into the record.

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II. Issues, Findings of Fact and Conclusions of Law

A. Issues

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

B. Findings of Fact and Conclusions of Law

CMS alleges that Petitioner, a skilled nursing facility, contravened three Medicare participation requirements.  CMS asserts that Petitioner failed to report several incidents of resident-on-resident abuse to a State agency as is required by 42 C.F.R. § 483.12(a)(3)-(4) and (c)(1)-(4).1  CMS asserts additionally that Petitioner contravened 42 C.F.R. § 483.12(b)(1)-(3) because it failed to protect its residents against abuse.  Finally, CMS argues that Petitioner did not comply with the requirements of 42 C.F.R. § 483.60(i)(2) because it failed to ensure that it served food to its residents under sanitary conditions and failed to maintain its vending machines that contained food items.

The evidence amply supports CMS’s contentions regarding the subsections of the regulations that apply.

CMS’s allegations concerning failure to report incidents of abuse and failure to protect residents against abuse all center around Petitioner’s management of a resident who is identified as Resident 1.  This resident was, during the relevant period of time, a 26‑year‑old male.  Petitioner admitted him to its facility on January 10, 2017.  CMS Ex. 7 at 87.  This resident had a long history of mental illness and had sustained a traumatic brain injury.  Id. at 71.  His history included incidents of impulse control problems and physical violence against other individuals.  Id. at 82. 

Resident 1 began assaulting other residents soon after his admission.  On February 1, 2017, he hit another resident on the back of the head three times.  CMS Ex. 7 at 1.  On the following day he struck another resident on the head.  Id. at 2.  On February 3, 2017, the resident struck another resident on the head.  Id. at 3.  On February 5, he struck yet another resident, also on the head.  Id. at 5.

These episodes – physical assaults by Resident 1 on other residents of Petitioner’s facility – plainly were abuse.  The applicable regulation requires Petitioner’s staff to investigate each incident of apparent abuse and to report that incident to the facility administrator

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and to appropriate State authorities.  42 C.F.R. § 483.12(c)(4).  Petitioner failed to comply with this reporting requirement for the first three episodes of assault.  Its failure not only contravened regulatory requirements but it contravened Petitioner’s own policy for dealing with episodes of abuse.  CMS Ex. 19 at 6.

The abuse reporting requirement is not something that a skilled nursing facility is free to ignore.  There is an obvious reason why incidents of suspected abuse must be reported.  The regulation plainly intends to ensure that skilled nursing facilities do not cover up or fail to address episodes of abuse.  It envisions an independent review of a facility’s policies and the implementation of those policies.  An independent review of possible abuse allows a neutral arbiter to review an episode and to ensure that appropriate measures are implemented by the facility that protect its residents against additional abuse. 

Petitioner’s failure to comply with the regulation meant that the relevant State authorities were not apprised of Resident 1’s assaults for several days.  The failure allowed a potentially dangerous situation to continue, unreported.

Furthermore, Petitioner failed to protect its residents from abuse during the several days that Resident 1 engaged in his assaults on other residents.  This failure violated the requirements of 42 C.F.R. § 483.12(b), which requires a skilled nursing facility to develop and implement written policies and procedures that protect residents against abuse.

Petitioner has an anti-abuse policy that states that every facility resident has a right to be free from abuse and to not be subject to abuse from anyone.  CMS Ex. 19 at 1.  It certainly failed to implement that policy as it applied to the assaults committed by Resident 1 against other residents.  Resident 1 perpetrated his assaults over a period of about five days and during that period Petitioner did nothing to protect its residents from Resident 1. 

Petitioner argues that its staff investigated the episodes of abuse involving Resident 1 but “collectively” decided that these incidents were not reportable.  Petitioner’s pre-hearing brief at 8.  It contends that Resident 1, who lacked impulse control, “was not reliably aware of the ramifications of his actions, and he was not always of sound enough mind to form clear thoughts, and that is a plausible explanation of the decision not to report.”  Id.

I disagree.  Resident 1’s possible state of mind when he assaulted other residents is irrelevant.  The fact is that Petitioner’s staff knew that one of the facility’s residents was serially attacking other residents.  It does not matter whether Resident 1 was of sound mind when he committed his assaults.  It mattered only that he was assaulting other residents and that this behavior endangered those residents.  Petitioner’s staff should have

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been alarmed by the fact that Resident 1 was striking other residents multiple times on multiple occasions, and they should have immediately implemented Petitioner’s anti‑abuse protocol. 

Petitioner also asserts that it was attempting to balance Resident 1’s right not to be sequestered or restrained against other residents’ rights not to be assaulted and that its failure to report Resident 1’s multiple assaults against other residents reflected the balance that the staff struck.  Petitioner’s pre-hearing brief at 8-9. 

I find this argument to be without merit.  First, Petitioner offered no evidence whatsoever to show that its staff deliberated about how to balance Resident 1’s rights against those of other residents.  The record of this case is devoid of such evidence.  Petitioner offered the conclusion of its assistant director of nursing that the staff collectively determined its reaction to the resident’s multiple assaults against other residents.  P. Ex. 1.  But, that statement is a mere conclusion without any supporting evidence.  Petitioner, in fact, offered nothing at all from Resident 1’s treatment record or other facility documents to show that the staff considered how to protect other residents from Resident 1 during the period when he committed his multiple assaults.2  But, even if the staff did conduct such deliberations, that didn’t excuse Petitioner from reporting the episodes of assault to appropriate State authorities.  The regulatory reporting requirement exists independently from the requirement that a facility protect its residents from abusive conduct.

Petitioner also argues that it should not be held strictly liable for the assaultive conduct of Resident 1.  It argues that a rule of reason should apply to decide whether the measures that it took to address the Resident’s conduct and to protect other residents and it asserts that its actions were reasonable when measured in that way.  Petitioner’s pre-hearing brief at 8-12.  It characterizes the assaults committed by Resident 1 as being the unfortunate consequence of the resident circumventing the measures that Petitioner put in place to protect other residents from Resident 1.

But, Petitioner cites to nothing in the record to describe what these allegedly reasonable measures consisted of.  It simply makes the assertion that its staff acted reasonably without describing the allegedly reasonable actions at all.  Furthermore, the regulatory requirement of protection does not suggest a balancing test when it comes to protecting other residents against assault.  The regulation indeed imposes a strict requirement on skilled nursing facilities.  When there is suspected abuse a facility must take all possible measures to protect its residents.  That duty is paramount and its accomplishment is not

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measured by some sliding scale.  Finally, and as I have stated, the duty to protect is separate from the duty to report.  Petitioner failed to report episodes of abuse and it failed to protect its residents.

A skilled nursing facility is required to store, prepare, distribute and serve food in accordance with professional standards for food service safety.  42 C.F.R. § 483.60(i)(2).  CMS argues that Petitioner failed to comply with this requirement in that it:

• Had a vending machine in its resident dining room that contained expired food products.  One of these items – discovered by a State agency surveyor on February 22, 2017, had an August 2016 expiration date.  CMS Ex. 21 at 2;
• Failed to discard expired food, properly seal and store food, and failed to remove dented canned food from its food service.  Id. at 3.

The evidence offered by CMS is more than sufficient to prove that Petitioner did not comply with regulatory requirements governing food storage.  A facility should not offer expired food items to its residents.  Petitioner failed to ensure that the items that it offered were not expired and that created at least a potential for harm.

Petitioner doesn’t deny the facts offered by CMS.  It argues that the scope and severity of CMS’s noncompliance finding is too severe.  However, the food storage noncompliance finding made by CMS was not at the immediate jeopardy level and Petitioner has no right to challenge that scope and severity finding.  42 C.F.R. § 498.3(b)(14).

Petitioner argues, furthermore, that CMS failed to prove that Petitioner’s food storage practices actually harmed any of Petitioner’s residents.  It contends that the number of residents potentially affected by Petitioner’s failure to remove expired items from its vending machine “must be limited to a few residents” because, according to Petitioner, it was likely that only a few residents actually purchased food items from the machine.  Petitioner’s pre-hearing brief at 13.  This argument is speculative, resting on no evidence.  Moreover, even if only a few of Petitioner’s residents patronized the vending machine, those few residents plainly were exposed to possible harm if they purchased and consumed expired food items.  That is more than enough to substantiate CMS’s noncompliance finding.

Petitioner also argues that CMS presented no evidence showing when Petitioner actually served out-of-date food items to resident.  It suggests that the fact that Petitioner may have maintained expired food items in its kitchen is not in and of itself evidence of a significant regulatory violation absent proof that residents actually consumed these items.  Petitioner’s pre-hearing brief at 13.

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I find this argument to be without merit.  The issue here is not whether residents consumed expired food items to their detriment but whether the potential existed that expired food items could be served to residents.  That potential existed given that Petitioner’s kitchen contained expired items that were available for service to residents of the facility. 

I find that the civil money penalties that CMS determined to impose – $1375 per day for a period of 48 days – are reasonable both in amount and duration.  To begin with, the penalty amount is modest considering the severity of Petitioner’s noncompliance.  Petitioner, by failing to protect its residents against assault and by failing to report incidents of assault, put its residents at risk for potentially serious harm.  It was fortuitous that Resident 1 did not seriously injure another resident, but that does not suggest that the resident posed no potential for seriously injuring someone else.  Petitioner’s failure to protect its residents from Resident 1 by itself would justify the penalty amount that CMS imposed.  I note that a daily penalty of $1375 is less than one fourth of the maximum amount that CMS could have imposed in this circumstance.  See 42 C.F.R. § 488.408(d)(1)(iii) and 488.438(a)(1)(ii).

Petitioner argues that the penalty amount serves no remedial purpose because Petitioner “has not yet been put on notice as to what deficiencies it needs to correct.”  Petitioner’s pre-hearing brief at 14.  I find that argument to be inexplicable.  Both the Texas State survey agency and CMS put Petitioner on notice of its deficiencies.

Petitioner has not offered argument to challenge the duration of its noncompliance.  I find CMS’s duration determination to be reasonable because it encompasses CMS’s determination of the date when Petitioner finally achieved compliance with participation requirements.

• 1. CMS alleges that Petitioner failed to comply with 42 C.F.R. § 483.12(a)(3)-(4) and (c)(1)-(4). However, subsections (a)(3) and (4) of this regulation govern abuse by facility employees and CMS has made no fact allegations that relate to these requirements.
• 2. Petitioner did not develop or implement a written plan of care that addressed Resident 1’s behavior until February 6, 2017, after Resident 1 had committed multiple assaults. CMS Ex. 7 at 69.