SUBJECT:

Claudette Box Nursing Facility,

Petitioner,

Centers for Medicare & Medicaid Services.

DECISION

I conclude that there is no basis for the Centers for Medicare & Medicaid Services (CMS) to impose remedies against Petitioner, Claudette Box Nursing Facility.

I. Background

Petitioner is a nursing facility that is located in Mt. Vernon, Alabama. It is located on the grounds of and operated as a part of Searcy Hospital, a mental health facility that is operated by an agency of the State of Alabama. Petitioner has participated in Alabama's Medicaid program as a provider of nursing services. Its participation, and the remedies that CMS determined to impose in this case, are governed by section 1919(h) of the Social Security Act and by regulations at 42 C.F.R. Parts 483 and 488.

In the spring of 2002, the Alabama Department of Public Health surveyed Petitioner for compliance with federal regulations. Surveys were completed on February 27, 2002 (February survey), March 29, 2002 (March survey), April 11, 2002 (April survey), and May 5, 2002 (May survey). The surveyors concluded after each of these surveys that Petitioner was not complying substantially with various regulatory requirements. CMS ultimately concurred with the State surveyors' findings and determined to impose the following remedies against Petitioner:

� Civil money penalties of $3,050 per day for each day of Petitioner's alleged noncompliance with participation requirements during a period that began on March 22, 2002 and which ran through April 11, 2002;

� Civil money penalties of $1,000 per day for each day of Petitioner's alleged noncompliance with participation requirements during a period that began on April 12, 2002 and which ran until May 14, 2002;

� Termination of Petitioner's participation in Alabama's Medicaid program effective May 14, 2002.

Petitioner requested a hearing to challenge CMS's determinations and the case was assigned to me for a hearing and a decision. I held a hearing in Mobile, Alabama, on October 16, 2003. At the hearing, I received into evidence from CMS exhibits that are identified as CMS Exhibit (Ex.) 12 - CMS Ex. 36. Tr. at 12. ⁽¹⁾ I excluded exhibits from CMS that are identified as CMS Ex. 37 - CMS Ex. 40. Tr. at 12 - 17. I received into evidence from Petitioner exhibits that are identified as Petitioner (P.) Ex. 1 - P. Ex. 43. Each party filed a post-hearing brief.

II. Issues, findings of fact and conclusions of law

A. Issues

The parties stipulated that findings made at the February survey are not at issue in this case. Joint Stipulations dated October 8, 2003. Therefore, the issues are whether:

1. Petitioner failed to comply substantially with participation requirements as of the March, April, or May survey; and

2. There is a basis for CMS to impose remedies against Petitioner including: civil money penalties of $3,050 per day for each day of the March 22 through April 11, 2002 period; $1,000 per day for each day of the April 12, 2002 through May 14, 2002 period; and, termination of Petitioner's participation in Alabama's Medicaid program effective May 14, 2002.

B. Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below as a separate heading. I discuss each Finding in detail.

1. The evidence does not support a finding that Petitioner failed to comply substantially with participation requirements.

The surveyors who conducted the March, April, and May surveys concluded that, at each of these surveys, Petitioner failed to comply with distinct participation requirements. The specific allegations of noncompliance vary somewhat from survey to survey, but there is a common theme to the allegations. This is that Petitioner failed adequately to investigate allegations of patient abuse at its facility, to report to the appropriate State authority the results of the investigations that it conducted, and to implement its policies to protect its residents from physical or sexual abuse.

I find that the evidence in this case fails to support these allegations of noncompliance. Below, I discuss the evidence and arguments which relate to each of the specific noncompliance allegations.

a. The evidence does not support a finding that Petitioner failed to comply substantially with the specific cited participation requirements as of the March survey.

i. The evidence does not support a finding that Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.13(c)(3).

At Tag 223 of the report of the March survey, the surveyors found that Petitioner was not complying substantially with the requirements of 42 C.F.R. � 483.13(b). CMS now states that this Tag is a less than precise citation and contends now also that Petitioner was not complying with the requirements of 42 C.F.R. � 483.13(c)(3). This regulation requires a facility to investigate thoroughly an allegation of abuse and to protect its residents from additional episodes of abuse while the investigation is being conducted.

The resident whose care is at the root of CMS's allegations is identified in the report of the March survey as Resident # 1. This resident was transferred from Petitioner's facility to a local hospital on March 22, 2002, suffering from respiratory problems. CMS Ex. 12, at 4. During its initial evaluation of the resident at the hospital, the hospital staff noticed the presence of lacerations in the resident's genital area. Id. The hospital staff suspected that these injuries might be the consequence of sexual abuse of the resident. Id. Petitioner was notified about the hospital staff's suspicion. Petitioner investigated the possibility that the resident had been abused sexually and concluded that the injuries that were sustained by Resident # 1 were as a consequence of its staff's efforts to remove a fecal impaction from the resident. P. Ex. 11.

CMS argues that Petitioner failed to fulfill its obligations under 42 C.F.R. � 483.13(c)(3) once it learned of the hospital staff's suspicions concerning the injuries that were sustained by Resident # 1. To support these contentions, CMS makes the following allegations:

� Petitioner waited until March 29, 2002 before conducting in-service training of its staff regarding abuse. It waited an additional six days after March 29, 2002 before conducting in-service training of its staff concerning the proper way to clear a fecal impaction. CMS's post-hearing brief at 10; CMS Ex. 16; CMS Ex. 17; CMS Ex. 18; and CMS Ex. 34.

� Petitioner's staff did not examine other residents to determine whether any of them had sustained injuries that were similar to those that had been sustained by Resident # 1. CMS's post-hearing brief at 10; see CMS Ex. 18, at 67 - 130.

� Petitioner's alleged assertion that the injuries sustained by Resident # 1 were caused by wiping the resident's genital area with baby wipes "at the very least" violated Petitioner's policy against causing irritation, infection, or discomfort to a resident who is incontinent. CMS's post-hearing brief at 10 - 11; see CMS Ex. 3, at 6.

� It is "particularly disturbing" that no one on Petitioner's staff noticed the injuries to Resident # 1 on the day that the resident was transferred to the hospital inasmuch as the resident was totally dependent on Petitioner's staff for care and the staff provided such care - including taking the resident's temperature rectally - several times on the day of the resident's transfer. CMS's post-hearing brief at 11; see CMS Ex. 16, at 45 - 47, 55; CMS Ex. 17; CMS Ex. 18; and CMS Ex. 34.

� It is equally disturbing that Petitioner's records do not show that the resident's injuries were sustained during removal of a fecal impaction. CMS's post-hearing brief at 11; see CMS Ex. 17, at 80; CMS Ex. 18; and CMS Ex. 34.

� There were several specific actions that Petitioner should have undertaken when it learned of the possibility that Resident # 1 had been abused sexually, but which Petitioner did not undertake. CMS's post-hearing brief at 12 - 14. According to CMS, Petitioner should have: assessed other residents immediately to determine whether they had sustained injuries that were similar to those which were sustained by Resident # 1; conducted face to face interviews with each of its staff members; asked probative, specific, and relevant questions concerning the matter being investigated; investigated alternatives to the explanation that the resident's injuries occurred when the staff removed a fecal impaction; held mandatory staff meetings to educate staff as to how to provide care to incontinent residents; held in-service training on prevention of abuse; conducted in-service training on proper removal of fecal impaction; interviewed non-cognitively impaired residents to determine whether any of them had been abused; and, specifically, questioned the nurse who provided care for Resident # 1 concerning the resident's reaction to the removal of the fecal impaction. Id.

� The interviews that Petitioner conducted of its staff in investigating the possibility that Resident # 1 had been abused sexually allegedly were inadequate. CMS's post-hearing brief at 14 - 16. Specifically, CMS asserts that Petitioner failed to: interview the individual who assisted in preparing the resident for transfer to the hospital; obtain necessary specific information from another member of Petitioner's staff who assisted in providing care to the resident; obtain a written statement from the nurse who removed the resident's fecal impaction; interview a nurse who took rectal temperatures of the resident on the day prior to the resident's transfer to the hospital; and interview the mental health worker who accompanied the resident to the hospital. Id.

Petitioner's responses to these allegations fall into two general categories. First, it contends that many of CMS's allegations are irrelevant because they are either beyond the scope of what CMS originally alleged or because they assume that the regulations impose obligations on Petitioner which, in fact, do not exist. Second, Petitioner asserts that consideration of the record of this case in its entirety shows that Petitioner, in fact, did conduct a thorough abuse investigation and protect its other residents from abuse.

In order to decide whether CMS's allegations are substantiated, it is first necessary to decide exactly what it is alleging. As I discuss above, the report of the March survey alleged that Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.13(b). That section in effect mandates a facility to protect its residents from abuse. At first glance, the survey report could easily be read to say that Petitioner failed to protect Resident # 1 from abuse. But, in both its pre- and post-hearing briefs, CMS makes it clear that it is not alleging that. CMS does not contend that Resident # 1 was abused and that Petitioner failed to satisfy its obligations under 42 C.F.R. � 483.13(b) to protect this resident from abuse. Rather, CMS asserts that Petitioner failed to comply with the requirements of a different section of the regulations, 42 C.F.R. � 483.13(c)(3).

However, CMS is less than precise in describing exactly how Petitioner allegedly failed to comply with the requirements of this regulation. 42 C.F.R. � 483.13(c)(3) imposes two distinct obligations on a facility when it learns of an abuse allegation. First, it must thoroughly investigate the allegation. Second, it must protect its residents against additional abuse while the investigation is conducted. It is not entirely clear whether CMS is alleging that Petitioner: (1) failed to investigate thoroughly the possibility that Resident # 1 was abused; or (2) failed to protect its residents against abuse while it was conducting an investigation into the injuries sustained by Resident # 1; or (3) failed to investigate the abuse issue thoroughly and to protect its residents while it conducted an investigation.

The principal thrust of the survey report and, indeed, of the two briefs that CMS filed in this case is that Petitioner failed to protect its residents from additional abuse while it conducted an investigation into possible abuse of Resident # 1. CMS did not assert explicitly that Petitioner was remiss in discharging its duty to investigate the allegations of abuse. The survey report alleges:

[I]t was determined that the facility failed to ensure a proactive plan was developed and implemented to assure all residents were free from serious threat to their physical and psychological health and safety. The facility failed to develop and employ a plan to prevent the potential for harm to all residents residing at the facility while an investigation was being conducted for injuries alleged to be the result of sexual assault on Resident . . . [# 1].

CMS Ex. 12, at 3. CMS cites to this language in its post-hearing brief as comprising the allegations of Petitioner's noncompliance with 42 C.F.R. � 483.13(c)(3). CMS's post-hearing brief at 9. Additionally, CMS contends:

The facility failed to take proper precautions to protect its residents from the possibility of future harm after being informed of the potential for abuse at its facility.

Id. at 10.

However, there are places in CMS's post-hearing brief in which it seems to be advocating a broader theory of noncompliance. As I read this brief, CMS seems to be saying at times that Petitioner not only failed to protect its residents against additional abuse, but that it failed also to investigate thoroughly the allegations concerning Resident # 1. See CMS's post-hearing brief at 14 - 16.

It would certainly appear that Petitioner reacted to CMS's arguments in this way because Petitioner offered evidence which not only addressed the manner in which it protected its residents, but, also, offered evidence which addressed the way in which it investigated the allegations that were made about Resident # 1. See P. Ex. 11. Therefore, for purposes of this decision, I am assuming that CMS alleged that Petitioner failed to comply with both of its obligations under 42 C.F.R. � 483.13(c)(3) and that Petitioner defended against these allegations.

Petitioner proved by a preponderance of the evidence that it investigated thoroughly the possibility that Resident # 1 had been abused. The evidence shows that: Petitioner interviewed members of its staff who were responsible for providing care to the resident on the day of her hospitalization; accounted for the whereabouts of other residents during that day; and developed a plausible explanation for the resident's injuries which does not constitute abuse and which explains reasonably the injuries that Resident # 1 sustained. P. Ex. 11.

As I discuss above, CMS bases its apparent assertion that Petitioner investigated inadequately the possibility that Resident # 1 had sustained abuse on a recitation of actions which CMS contends that Petitioner should have taken during the course of its abuse investigation, but which Petitioner allegedly did not take. According to CMS, Petitioner should have obtained a written statement from the employee who provided an explanation for the resident's injuries that ruled out abuse as a cause. And, it should have widened the scope of its investigation to include employees other than those whom Petitioner interviewed. CMS contends that Petitioner's alleged failure to take these actions establishes that Petitioner's investigation into abuse was inadequate.

There are problems with this line of reasoning, however. The specific regulatory provision, 42 C.F.R. � 483.13(c)(3), contains no prescription as to the exact steps a facility must take in order to investigate abuse allegations. The regulation gives discretion to the facility as to how to investigate allegations of abuse. An investigation is inadequate only if it is not thorough. Given that, it is not possible to decide that a facility investigated abuse inadequately simply by listing steps that, in the view of CMS, the facility ought to have taken in order to investigate abuse. Rather, the question is: were whatever actions the facility took sufficient to constitute a thorough investigation of the allegations of abuse?

A rule of reason determines what is sufficient to constitute a thorough investigation of abuse inasmuch as the Secretary has not opted to define precisely what constitutes a thorough investigation. An investigation into abuse allegations should attempt to identify the cause of the injury that prompted the allegations of abuse. If that cause reasonably cannot be ascribed to something other than abuse, then the facility must seek to identify the possible perpetrators of the abuse and account for their whereabouts at the time that the abuse occurred. A facility must document its investigation and maintain its records in a way that will enable third parties to review what the facility has done or not done to investigate the alleged abuse.

Contrary to what CMS seems to be arguing, however, there is no requirement in the regulation that specific employees of a facility be interviewed or that a particular interview format be utilized by a facility in investigating an allegation of abuse. There is no requirement that a signed interview statement be obtained from each member of the staff who is interviewed. Indeed, the regulation does not require a facility to obtain written statements from its employees or even to interview them. Nor is there a requirement that the facility pursue and rule out every conceivable explanation for the injuries that are the basis for the abuse allegation.

Evidence offered by Petitioner supports the conclusion that it investigated thoroughly the allegations that Resident # 1 had been abused. P. Ex. 11. ⁽²⁾ The evidence constitutes a well-documented record which proves that Petitioner attempted to determine the cause of Resident # 1's injuries and that ultimately it concluded reasonably that the injuries were caused by an event other than abuse. The evidence also shows that Petitioner looked for possible abuse-related causes of the resident's injuries - for example, an assault by another resident - and ruled out those causes.

Petitioner interviewed four of the employees who were directly responsible for providing care to the resident. P. Ex. 11, at 1 - 2, 18 - 20. It obtained statements from a total nine members of Petitioner's staff. Id. at 8 - 17. None of the individuals whose statements Petitioner obtained witnessed any activity that would lead a reasonable individual to conclude that Resident # 1 had been abused. However, one of them, Diane Carter, RN, who was the nursing supervisor on duty on the day prior to the resident's discharge, provided an explanation for the resident's injuries. Ms. Carter averred that, on March 21, 2002, she manually removed a large fecal impaction from the resident - a difficult procedure - and, in doing so, she inadvertently slipped her gloved finger into the resident's vagina. Id. at 1. Petitioner also interviewed its staff physician, who is a Fellow of the American College of Surgeons. He opined that the fecal removal would likely cause tearing and bruising of the resident's recto-vaginal septum. Id. at 21. ⁽³⁾

Ms. Carter's explanation for Resident # 1's injuries is plausible because it provides a likely explanation for the injuries to the resident that were identified when the resident was first seen in the hospital. It is made credible by the fact that it was not in Ms. Carter's self-interest to admit that she may have injured the resident during the course of providing care to her.

Petitioner would have been justified in ascribing the cause of the resident's injuries to Ms. Carter's attempt to provide care and in ending its investigation with this finding. However, Petitioner did not limit its investigation into obtaining an explanation from Ms. Carter. As I discuss above, Petitioner also obtained statements from other employees who were on duty on the day of or the day before the resident's transfer in order to rule out the possibility that there may have been another cause for the resident's injuries. Petitioner also tracked the whereabouts of all of Petitioner's male residents who were ambulatory on March 21 and March 22, 2002 and thereby minimized the possibility that any of them had assaulted the resident. P. Ex. 11, at 2. In ruling out other possible causes for the resident's injuries, the investigation strengthened Ms. Carter's explanation for those injuries and made the explanation more plausible.

Evidence offered by Petitioner also supports a finding that it adequately protected its other residents while it investigated the allegations that were brought to its attention concerning Resident # 1. The evidence establishes that Petitioner is extremely sensitive to the welfare and safety of its residents and it protects these individuals through the implementation of a host of measures. Measures taken by Petitioner exceed common practices among nursing facilities and minimize the possibility that residents will be abused. P. Ex. 3, at 15. These measures include, among other things:

� Conducting a criminal background check of each prospective employee at local, State, and federal levels. Such checks include fingerprinting of all direct care job candidates and checking all potential employees' arrest records. P. Ex. 3, at 7; P. Ex. 18, at 51 - 53. Additionally, Petitioner forwards prospective employees' fingerprints to the Federal Bureau of Investigation. Id.

� Verifying the professional licenses of all licensed employees biannually and checking the State's nurse aide abuse registry to ensure that persons with a history of abuse are not employed. P. Ex. 3, at 7; P. Ex. 18, at 54, 55.

� Conducting reference checks of prospective employees. P. Ex. 3, at 7.

� Providing conflict resolution and abuse prevention training to all employees. P. Ex. 3, at 9.

� Paying employees at or above prevailing wage levels and providing a much higher than average ratio of employees to residents. P. Ex. 3, at 10 - 11.

� Providing 24-hour police coverage of Petitioner's premises and conducting resident checks at 30-minute intervals. P. Ex. 3, at 12; P. Ex. 18, at 45 - 46.

� Keeping all floors of Petitioner's facility locked on a 24-hour basis. P. Ex. 3, at 12.

� Segregating residents by gender. P. Ex. 3, at 12.

� Strictly limiting the care which male staff members provide to female residents. Male staff members may not enter a unit housing female residents without being accompanied by a female staff member. P. Ex. 3, at 12; P. Ex. 9, at 7. Male staff members may not help female residents with intimate bodily needs. Id.

� Having staff visually assess every resident daily during bathing, dressing, tioleting, and pre-care, for potential injuries P. Ex. 3, at 15.

CMS's allegations that Petitioner failed adequately to protect its residents consist of a list of specific actions that, in CMS's opinion, Petitioner should have done, but failed to do once it became aware of the allegations of possible abuse of Resident # 1. I find that these actions were neither required by the applicable regulation, nor did they even make sense in light of the circumstances of this case.

There is nothing in 42 C.F.R. � 483.13(c)(3) which mandates that a facility take any specific action to protect residents while it investigates allegations of abuse. To be sure, the facility must adequately protect its residents from possible abuse while an investigation into abuse allegations is ongoing. But, as is the case with the conduct of the abuse investigation, discretion is vested in the facility to decide what steps it must take to fulfill its regulatory duties.

Thus, it cannot be said that failure by Petitioner to implement any or all of the actions that CMS has averred that Petitioner should have implemented necessarily means that Petitioner failed to comply with regulatory requirements. Petitioner's compliance depends on the degree to which it provides protection to its residents based on whatever measures it takes to protect them. If, on balance, the protection is adequate, then compliance may not be judged by the specific actions that Petitioner either took or failed to take.

As I discuss above, the actions taken by Petitioner in this case provided more than ample protection to Petitioner's residents. Petitioner operated a safe and secure facility which gave a higher degree of assurance of protection to its residents than do most nursing facilities. P. Ex. 3, at 15.

Furthermore, none of the actions which CMS contends Petitioner should have taken necessarily would have provided more anti-abuse protection to residents than Petitioner provided to them. CMS criticizes Petitioner because it did not provide anti-abuse training to its staff prior to March 29, 2002. But, as I have discussed, anti-abuse training was part of the general conditions of employment at Petitioner's facility and was being furnished on an on-going basis. CMS has made no prima facie showing that there was a need for Petitioner to do more.

Furthermore, by March 29, 2002 Petitioner had already determined that the cause of Resident # 1's injuries was something other than abuse. Given that, there was simply no need to provide additional anti-abuse training to staff. Implicit in CMS's criticism of Petitioner for failing to provide anti-abuse training after Resident # 1 sustained her injuries is the assumption that these injuries were the consequence of abuse. However, Petitioner did not conclude that abuse was the cause of the injuries and CMS no longer contends that abuse caused the injuries. A facility is not required to take corrective action to address abuse where no abuse has occurred. See 42 C.F.R. � 483.13(c)(4).

CMS also criticizes Petitioner for its failure to conduct training of its staff on removal of fecal impactions. Providing such training may have been a reasonable action by Petitioner in light of its own findings concerning how Resident # 1 came to be injured. But, the proper removal of fecal impactions is a quality of care and not an abuse-related issue. While it may have been a good idea for Petitioner to have provided its staff with such training, there was no need for it to do so as a way of protecting residents against abuse.

CMS's criticism of Petitioner's staff for not noticing the injuries sustained by Resident # 1 prior to her transfer is also a quality of care issue. Arguably, the failure by Petitioner's staff to observe these injuries calls into question their training and ability to recognize other injuries, including those which might be caused by abuse. But, I do not find that the failure of Petitioner's staff to discern the injuries to Resident # 1 is convincing prima facie proof that Petitioner's overall system of protection against abuse was a failure. First, there is a possibility that the injuries may actually have occurred while Resident # 1 was being treated at the hospital and no longer under Petitioner's care. The hospital staff first noticed the injuries to the resident after the staff had cleaned the resident's perineal area as preparation for inserting a Foley catheter. P. Ex. 25, at 1 - 2, 4, 5. The care provided to the resident at the hospital may have caused the resident to sustain skin tears. P. Ex. 5, at 10. ⁽⁴⁾

Second, the affirmative steps taken by Petitioner to guard against abuse, which I discuss above, are strong proof that Petitioner had an effective system in place. The fact that staff may have failed to observe a skin tear on one occasion is not sufficient, in my judgment, to establish prima facie that this system was ineffective.

CMS also contends that Petitioner should have assessed all of its residents immediately upon being advised of the potential abuse of Resident # 1 in order to determine whether any of them had sustained injuries that are similar to those which were sustained by Resident # 1. I am not persuaded that Petitioner needed to do this. Petitioner was given a satisfactory explanation by Ms. Carter on March 22, 2002 for the injuries that were sustained by Resident # 1. That explanation ruled out the likelihood of abuse as the cause for Resident # 1's injuries. There was no need for Petitioner to specifically observe and assess other residents in light of that.

ii. The evidence does not support a finding that Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.75.

At Tag 490 of the report of the March survey, the surveyors found that Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.75. This regulation requires a facility to be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well being of each resident. CMS Ex. 12, at 8.

The deficiency allegations that are made at Tag 490 of the March survey report derive entirely from those that are made at Tag 223 in the same report and which I have discussed at subpart a.i. of this Finding. I do not find Petitioner to be noncompliant here inasmuch as I have found Petitioner to be complying substantially with the participation requirement that is the basis for Tag 223 in the March survey report.

b. The evidence does not support a finding that Petitioner failed to comply substantially with participation requirements as of the April survey.

i. The evidence does not support a finding that Petitioner failed to comply substantially with the requirements of 42 C.F.R. �� 483.13(c)(2) and 483.13(c)(4).

At Tag 225 of the report of the April survey it is alleged that Petitioner failed to comply with the requirements of 42 C.F.R. � 483.13(c)(1)(ii). CMS Ex. 19, at 1 - 5. In fact, the allegations at this Tag relate to two other sections of the regulations, 42 C.F.R. � 483.13(c)(2) and 42 C.F.R. � 483.13(c)(4). In relevant part, 42 C.F.R. � 483.13(c)(2) requires that a facility must ensure that all allegations of abuse are reported immediately to the facility's administrator and to other officials in accordance with State law through established procedures. 42 C.F.R. � 483.13(c)(4) requires, among other things, that a facility report the results of an investigation into allegations of abuse to appropriate State officials within five working days of the alleged incident of abuse.

CMS contends that Petitioner failed to comply with the requirements of 42 C.F.R�83.13(c)(2) because it allegedly failed to report allegations of abuse concerning Resident # 1 to appropriate State officials within 24 hours of its being notified of these allegations. CMS contends that Petitioner waited three days before notifying the Alabama Department of Public Health of the allegations. CMS's post-hearing brief at 19 - 20. Additionally, according to CMS, Petitioner failed to comply with the requirements of 42 C.F.R. � 483.13(c)(4) because it allegedly did not report the results of its investigation into the allegations of abuse concerning Resident # 1 within five days of the date of the alleged incident. Id. Finally, CMS contends that the report was inadequate because it did not: contain a conclusion; and because it did not contain reports of interviews with all staff who might have had knowledge of the incident. Id.

Contrary to CMS's assertion, there is no requirement in 42 C.F.R. � 483.13(c)(2) that a facility report to the appropriate State agency an allegation of abuse within 24 hours from the time that the facility first learns of the allegation. The regulation requires that the notification be immediate but it does not establish any precise time frame for that notification. The facts of this case are that Petitioner's staff was informed of the possibility that Resident # 1 had been abused at about 6:38 p.m. on Friday, March 22, 2002, after the close of the work day. P. Ex. 11, at 6 - 7. Petitioner notified the Alabama Department of Public Health of the incident on the next work day, which was Monday, March 25, 2002. The notification was thus made within one work day of the date when Petitioner learned of the allegations of abuse. I find that satisfies the regulation's requirement that notification be immediate.

But, even if the notification was not, technically, immediate, there is no potential for harm in the delay because the delay consisted of non-working days. CMS offered no evidence to prove that the Alabama Department of Public Health would have been prepared to react immediately to the notification had it received it on the weekend of March 23 - 24, 2002. Indeed, the Alabama Department of Public Health did not conduct an abuse investigation survey of Petitioner until March 29, 2002, five days after it received notice of the alleged incident involving Resident # 1. Thus, it cannot be said that the Alabama Department of Health considered time to be of the essence in investigating the incident and Petitioner's response to it. Nor can it be said that any investigation into Petitioner's compliance was delayed by virtue of Petitioner not reporting the allegations of abuse over the weekend of March 23 - 24, 2002.

CMS appears to be basing its allegations that Petitioner failed to complete and file its investigative report in part on the failure of BSI to complete within five working days its investigation into the possibility that Resident # 1 had been abused. CMS Ex. 19, at 4. As I discuss above, at footnote 2, BSI is an Alabama police agency that operates independently from Petitioner. Although BSI investigates abuse allegations it does so under its own authority. ALA. Code � 22-50-21 (2002); P. Ex. 9, at 13; P. Ex 18, at 65 - 70, 72. It does not perform such investigations on behalf of a referring facility. The facility retains an obligation to perform an investigation into allegations of abuse that is separate from any investigative authority or responsibility that is held by BSI.

Thus, the failure by BSI to complete its investigation within five working days is irrelevant. What is relevant is whether Petitioner completed its investigation into the possibility that Resident # 1 may have been abused within five working days of the incident and timely forwarded the results of its investigation to appropriate State officials.

Petitioner proved that it complied with this obligation. Petitioner first was notified on the evening of Friday, March 22, 2002, of the possibility that Resident # 1 had been abused. P. Ex. 11, at 2, 6, and 33. Petitioner had until March 29, 2002 - five working days from the date when Petitioner received notification of the incident - to complete its investigation into that possibility and to forward the results of the investigation to the appropriate State authority. Petitioner complied with its obligation by faxing its investigation report to the Alabama Department of Public Health on Friday, March 29, 2002, at 4:46 p.m. P. Ex. 11, at 3. ⁽⁵⁾

CMS's arguments as to the adequacy of Petitioner's investigative report fail for two reasons. First, there is nothing in 42 C.F.R. �� 483.13(c)(1)(ii), 483.13(c)(2), or 483.13(c)(4), which govern the contents of facility reports of abuse investigations. Thus, CMS's allegations about the sufficiency of the report are irrelevant to Petitioner's compliance with these sections. Second, 42 C.F.R. � 483.13(c)(3) governs indirectly the contents of abuse investigation reports by requiring that a facility produce evidence that it investigated allegations of abuse thoroughly. At Finding 1.a.i. of this decision, I address the investigation that was conducted by Petitioner and I find it to have been thorough. That Finding is supported by the detailed and comprehensive investigation report that was prepared by Petitioner's staff. P. Ex. 11.

ii. The evidence does not support a finding that Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.13(c).

At Tag 226 of the report of the April survey, it is alleged that Petitioner failed to comply with the requirements of 42 C.F.R. � 483.13(c)(1). CMS Ex. 19, at 5. In fact, the allegations of noncompliance at this tag relate to 42 C.F.R. � 483.13(c). This regulation requires a facility to develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents, and misappropriation of resident property.CMS contends that Petitioner failed to comply with the requirements of the regulation because its internal policies and procedures regarding abuse did not state "mandated time frames" for investigating allegations of abuse and reporting them to the appropriate State agency. Id.

I find this allegation to be without merit. There is nothing in the regulation that requires that a facility's written anti-abuse policies state mandated time frames for reporting or investigating abuse allegations. Whatever time frames exist are incorporated into regulations. Petitioner is charged with the responsibility of knowing these regulatory time frames and complying with them. But, it is not required to restate them in writing in its own internal policies.

iii. The evidence does not support a finding that Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.75.

At Tag 490 of the report of the April survey, it is alleged that Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.75. The allegations that are made here are of the same character as those that were made at Tag 490 of the report of the March survey. See Finding 1.a.ii., above. Essentially, CMS is alleging that Petitioner was inadequately administered based on its alleged failure to comply with other regulations governing the reporting and investigation of allegations of abuse.

I find this allegation to be without merit here for the same reason that I found the analogous March survey allegation to be without merit. There is no basis for finding Petitioner to have been administered inadequately inasmuch as the allegations from which this contention derives are not supported by the evidence.

c. The evidence does not support a finding that Petitioner failed to comply substantially with participation requirements as of the May survey.

i. The evidence does not support a finding that Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.13(c)(3).

At Tag 225 of the report of the May survey, it is alleged that Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.13(c)(1)(ii). CMS Ex. 24, at 1 - 11. In fact, the allegations made under this tag actually address Petitioner's compliance with the requirements of 42 C.F.R. � 483.13(c)(3). Petitioner is alleged to have failed to comply in two respects with the requirements of this regulation. First, Petitioner allegedly failed to conduct a thorough investigation into the possibility that a resident who is identified in the survey report as Resident # 8 had been abused. Second, Petitioner allegedly continued to fail to complete an investigation into the allegations of abuse relating to Resident # 1, first cited in the March survey report.

I find to be without merit the allegations that CMS made concerning Petitioner's investigation into the possible abuse of Resident # 8. The preponderance of the evidence is that Petitioner thoroughly investigated the possibility that this resident had been abused. I also find to be without merit CMS's allegations concerning the alleged lack of timeliness of Petitioner's completion of its investigation into the possible abuse of Resident # 1.

The allegations concerning Resident # 8 relate to findings made by Petitioner's staff on the morning of May 5, 2002 that the resident had sustained bruises to the upper and lower part of her right arm. P. Ex. 15, at 2. Resident # 8 was, at the time of the incident, about 80 years old. P. Ex. 2, at 11. Her diagnoses included inoperable lung cancer and dementia, as well as a major depressive disorder with severe psychotic features. Id. at 11, 170. The resident had a history of falls. Tr. at 44. For example, the resident had fallen on October 12, 2001, resulting in a cut above her right eyebrow. P. Ex. 2, at 202. On January 25, 2002, Resident # 8 fell to the floor, landing on her left arm. Id. at 205. The resident was taking medications that increased her risk of falling and of becoming bruised. Id. at 501, 507, 509, 517 - 518; P. Ex. 5, at 22.

Petitioner's staff notified the resident's physician, her family, and the Alabama Department of Public Health that the resident had sustained bruises. It then conducted an investigation into the injuries. P. Ex. 15. The staff completed a body audit diagram which showed the location of the bruises and their relative size. Id. at 14. The bruises were recorded as being large and diffuse, extending over a major portion of the resident's upper right arm and forearm. P. Ex. 5, at 21. The bruises, as initially recorded, were consistent with injuries caused by blunt trauma, such as the impact of a fall. Id. The staff completed an incident report form. P. Ex. 15, at 2 - 3. Petitioner's psychiatrist interviewed the resident on May 6, 2002. Id. at 10 - 11. The resident, who was described by the psychiatrist as being somewhat confused, stated that she didn't know how she became bruised. Id. at 10. Petitioner asked five staff members who were on duty on May 2, 2002 to complete questionnaires about the incident. P. Ex. 15, at 4 - 8. The questionnaires asked each of the staff members to answer the following questions:

� Did you witness the incident?

� Where were you when the incident was noted?

� Did you see anything different or unusual before or at the time of the incident? If so, what?

� Who did you see in the area at the time you became aware of the incident?

� Did you hear anything different or unusual before or at the time of the incident? If so, what?

Additionally, the form provided space on which each staff member might add comments. Id. None of the staff members who completed the questionnaire reported seeing the resident become injured. Nor did any of them recall any different or unusual occurrence on the date that the resident's bruises first were observed. Id.

Petitioner put the information it obtained by virtue of its investigation together as a single document and forwarded it to the Alabama Department of Public Health within five days of the incident. Petitioner concluded that Resident # 8's bruises were of unknown origin and that there was no evidence that the resident had been abused. P. Ex. 15, at 1.

CMS alleges that the investigation conducted by Petitioner was inadequate in the following respects:

� Petitioner only interviewed staff members who were on duty on the day that the bruises to Resident # 8's arm were discovered. Allegedly, Petitioner was remiss in not interviewing staff members who were on duty at previous times.

� Petitioner's use of questionnaires was an inadequate investigative technique. Petitioner should have interviewed the staff members in person and recorded interview reports.

� Petitioner's investigation failed to uncover information that was relevant to the issue of abuse. Several staff members who were interviewed by the surveyor who conducted the May survey opined that the bruises to Resident # 8's arm might have resembled finger marks.

I conclude that the investigation conducted by Petitioner was sufficient to satisfy the requirement under 42 C.F.R. � 483.13(c)(3) that an investigation into abuse be thorough. Petitioner's investigation of the possible cause of bruises on Resident # 8's arm was rational and appropriate.

As I discuss above, at Finding 1.a.i. of this decision, regulations do not define what is meant by a thorough investigation into allegations of abuse. A facility has discretion to decide how to conduct an investigation into possible abuse. What a facility must do in any given case to investigate possible abuse thoroughly depends very much on the circumstances of that case.

Although a facility has a duty to investigate an injury of an unknown source, it is not necessarily required to treat every injury or every possible circumstance of abuse with equal gravity and to expend an equal amount of energy in each case. See 42 C.F.R. �� 483.13(c)(2); 483.13(c)(3). Some resident injuries are far more suggestive of abuse than are others. A facility clearly must ascertain whether abuse is the underlying cause of every resident injury, but that facility would be paralyzed if it were required to perform an intensive abuse investigation into every minor abrasion or injury that is sustained by a resident.

The bruises displayed by Resident # 8 could have been the consequence of one of several possible causes. The resident could have been the victim of an assault or of mistreatment by a member of Petitioner's staff or of an altercation with another resident. Or, the resident could have sustained her bruises from an accidental cause such as a fall. Finally, given the resident's advanced age and state of debilitation, the resident could have been bruised while being given gentle and appropriate care. See P. Ex. 7, at 10. Petitioner's staff could not have known for certain which of these causes was the basis for the resident's bruises without investigating the circumstances. But, the staff had strong reason to believe - even before conducting an investigation - that the bruises were likely accidental or were sustained during the giving of routine care. Id. An intentional assault was an unlikely cause of the resident's bruising given the resident's physical condition, her age, and Petitioner's anti-abuse policies.

The resident's circumstances and history are strong support for the conclusion that any bruises she suffered, whose cause initially was unknown, likely would be the consequence of accidental injury and not abuse. The resident manifested significant risk factors for bruises from accidental causes. She was a demented, 80-year old individual who had a history of falls that caused injuries. P. Ex. 2, at 202, 205; P. Ex. 5, at 21. Resident # 8 was taking medication that increased the risk that she would sustain bruises from a fall. P. Ex. 5, at 22.

Moreover, in Resident # 8's case there were no indicators of abuse present, other than the resident's bruises, that suggested even the possibility of abuse. The resident displayed none of the behaviors that abused residents in a facility often display. The resident was not uncharacteristically fearful. P. Ex. 7, at 11. The resident was a long-term resident of Petitioner's facility and had never been observed to have been handled roughly by any member of Petitioner's staff. Id.

Finally, and as I discuss above, at Finding 1.a.i., Petitioner had safeguards in place that made it unlikely that Resident # 8 would be the victim of abuse. These safeguards included assuring that intimate care be provided to Resident # 8 only by female employees and conducting visual checks of each resident at frequent intervals.

In light of Resident # 8's circumstances and history, Petitioner's duty to investigate thoroughly the cause of the resident's bruising meant that it needed to do enough to assure itself that abuse was not the cause of the resident's injuries. Petitioner did that by obtaining statements from the staff who were involved in providing care to the resident on the day that the bruises were discovered, by having the resident interviewed by qualified medical personnel, and by memorializing a description of the resident's injuries. Doing more would have been an overreaction given the resident's circumstances and history.

It was not necessary that Petitioner interview staff who had treated the resident on May 4, 2002, the day prior to the date when the resident's bruises were discovered. The resident was not observed to be displaying any bruises on that date. Nor was it necessary that Petitioner's staff be interviewed intensively beyond being asked to fill out the questionnaires that Petitioner distributed to them. The questions contained in the questionnaires were designed to obtain information that would assist Petitioner in determining whether Resident # 8 had been abused. There is nothing in the regulations which prohibits Petitioner from using questionnaires to elicit such information. Nor is there anything in the regulations which mandates that a facility must conduct face-to-face interviews of its employees in every abuse investigation. ⁽⁶⁾

I am not persuaded by some of Petitioner's staff's comments to the surveyor, that the bruises on Resident # 8's arm looked like finger marks at some point in time, and that the comment imposed a duty on Petitioner to conduct a more intensive investigation of the cause of the resident's bruises than the one that it conducted. The bruises were described on the day that they were identified in a diagram that was attached to the investigation report. P. Ex. 15, at 14. At that point in time, they did not resemble finger marks, but were depicted as large diffuse bruises covering a substantial portion of the resident's right arm. As time passed, the appearance of the bruises may have changed. However, bruises disappear in an unpredictable and uneven manner. P. Ex. 5, at 20. It becomes increasingly difficult, with the passage of time, to determine what was the original appearance of a bruise. Id. Moreover, it is not clear to me whether the surveyor asked Petitioner's staff to describe to her the appearance of the bruises on the date when they were first observed or their appearance at some other date. Nor is it clear that the surveyor's questions were not leading.

With regard to Resident # 1, at Finding 1.b.i. of this decision, I conclude that Petitioner submitted timely to Alabama State authorities the results of its investigation into the possible abuse of Resident # 1. Nothing that is alleged in the report of the May survey is a basis for me to change that conclusion.

The allegations in the May survey report that Petitioner failed timely to submit its findings in the investigation into the possible abuse of Resident # 1, appear to confuse the investigation that Petitioner conducted - which it submitted within five working days from the date of the incident involving the resident - with the separate investigation that was being conducted by BSI and which was ongoing at the time of the May survey. CMS Ex. 24, at 10 - 11. The report appears to allege that Petitioner failed to comply with the timeliness requirements of 42 C.F.R. � 483.13(c)(4) because BSI did not submit a report of its findings within five working days. However, as Petitioner points out, BSI is a police agency of the State of Alabama which conducts investigations separately and independently from anything that Petitioner does. Petitioner has no control over the operations of BSI and is in no position to direct that agency to submit its investigative reports to anyone, much less can it control the timing of such reports. The record of this case establishes that Petitioner complied with its obligations by completing its own investigation and submitting the results within the five working day time frame allowed by the regulations. What BSI may have or may not have done independently from Petitioner is irrelevant.

ii. The evidence does not support a finding that Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.75.

At Tag 490 of the report of the May survey, it is alleged that Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.75. CMS Ex. 24, at 11. This is the same allegation of ineffective administration that was made in the reports of the March and April surveys. As was the case with the March and April surveys, the allegations derive completely from Petitioner's alleged failure to comply with another participation requirement. I have found these allegations to be without merit, and, therefore, there exists no basis to find that Petitioner was failing to comply with the requirements of 42 C.F.R. � 483.75 as of the date of the May survey.

2. No basis exists for CMS to impose remedies against Petitioner.

There is no basis for CMS to impose against Petitioner any of the remedies that are at issue in this case. That is because the weight of the evidence establishes that Petitioner did not fail to comply with participation requirements as of the March, April, or May surveys.

Steven T. Kessel

Administrative Law Judge

1. By joint stipulation dated October 8, 2003, CMS withdrew CMS Exs. 1 - 11.

2. Additionally, Petitioner referred the allegations of abuse to the Alabama Bureau of Special Investigations (BSI) for an independent investigation into these allegations. Under Alabama law this agency is a police force that is responsible for conducting investigations of allegations of criminal misconduct at State-operated facilities. P. Ex. 9, at 13; and P. Ex. 14.

3. The quality of care that Ms. Carter gave to the resident while performing removal of the resident's fecal impaction is not at issue in this case; neither the State surveyors, nor CMS cited the quality of care given Resident # 1 as deficient in any respect.

4. CMS's assertion that Petitioner provided improper care to Resident # 1 by wiping her genital area with baby wipes is also a quality of care issue and is irrelevant to the issues of whether Petitioner either adequately investigated allegations of abuse to Resident # 1 or provided protection against abuse to other residents. CMS's post-hearing brief at 11. However, the assertion also appears to be based on a misunderstanding of the facts of this case. Petitioner suggests that Resident # 1 may have been injured when hospital staff wiped the resident's genital area with a betadyne solution. Petitioner does not argue that the resident may have been injured when its staff cleaned the resident's genital area.

5. The Alabama Department of Public Health stamped its copy of the investigation report as being "received" on April 1, 2002. CMS Ex. 17, at 82. The discrepancy between the date when the report was faxed and the date that it is stamped as having been received easily can be explained by the fact that the report was faxed late on a Friday afternoon. April 1, 2002 is the next working day after Friday, March 29, 2002. I infer that the fact that the report was not stamped as being received until April 1 simply means that employees of the Alabama Department of Public Health did not get around to logging the report in until the next working day after it was faxed.

6. If Petitioner had any reason to believe that one or more of its staff had abused Resident # 8, then it would have been in a position to conduct a much more intensive interrogation of that staff. But, here, Petitioner had no reason to suspect that any of its staff perpetrated abuse.