SUBJECT:

Life Care Center of East Ridge,

Petitioner,

Centers for Medicare & Medicaid Services.

DECISION

I decide that Petitioner, Life Care Center of East Ridge, complied substantially with Medicare participation requirements. The Centers for Medicare & Medicaid Services (CMS) is not authorized to impose remedies against Petitioner.

I. Background

Petitioner is a skilled nursing facility in Chattanooga, Tennessee. It participates in the Medicare program. Its participation in Medicare is governed by sections 1819 and 1866 of the Social Security Act (Act) and by implementing regulations at 42 C.F.R. Parts 483 and 488.

Petitioner was surveyed for compliance with Medicare requirements in a survey that ended on February 2, 2004 (February survey). The surveyors found that Petitioner was not complying substantially with Medicare participation requirements. CMS concurred with the surveyors' findings and determined to impose remedies against Petitioner, including civil money penalties. Petitioner requested a hearing and the case was assigned to me for a hearing and a decision. I held an in-person hearing at Chattanooga, Tennessee

on November 17, 2005. At the hearing I received into evidence exhibits from the parties consisting of: CMS Exhibits (CMS Exs.) 1-20; and Petitioner Exhibits (P. Exs.) 1-46. Additionally, I heard the cross-examination and redirect testimony of several witnesses (the parties having introduced the written direct testimony of these witnesses as exhibits).

II. Issues, findings of fact and conclusions of law

A. Issues

The report of the February survey alleges that Petitioner failed in four instances to comply with Medicare participation requirements. CMS Ex. 2. Three of these alleged deficiencies were cited at the immediate jeopardy level of noncompliance, meaning that Petitioner's alleged noncompliance either caused or was likely to cause serious injury, harm, or death to one or more of Petitioner's residents. CMS Ex. 2, at 2-8; 42 C.F.R. � 488.301. The fourth deficiency was cited as being substantial, but not at the immediate jeopardy level of noncompliance. CMS Ex. 2, at 1. CMS premised its remedy determinations only on the alleged immediate jeopardy level deficiencies. CMS's post-hearing brief at 7 n.5. Therefore, in this decision I address only whether Petitioner manifested any of the three deficiencies that were alleged in the February survey report to be at the immediate jeopardy level of noncompliance.

The issues that I address specifically in this decision are as follows:

1. Did Petitioner comply substantially with the requirements of 42 C.F.R. � 483.13(c)(1)(i)?

2. Did Petitioner comply substantially with the requirements of 42 C.F.R. � 483.75?

This case raises other potential issues that I find unnecessary to address. I do not address the issue of whether immediate jeopardy - as that term is defined at 42 C.F.R. � 488.301- was present at Petitioner's facility because, as I discuss below, I conclude that Petitioner actually complied substantially with Medicare participation requirements. Nor do I address the issue of the reasonableness of CMS's remedy determination, because my conclusion that Petitioner complied substantially with participation requirements means that CMS is not authorized to impose remedies in this case.

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. Petitioner complied substantially with the requirements of 42 C.F.R. � 483.13(c)(1)(i).

The report of the February survey alleges that Petitioner failed to ensure that one of its residents was protected adequately from another resident who was behaving in a sexually aggressive manner. CMS Ex. 2, at 2-4. Additionally, the report asserts that Petitioner failed to implement its anti-abuse policies after receiving allegations of a sexual encounter between two of its residents. Id. at 5-6. ⁽¹⁾ The regulation which the report cites as legal authority for these allegations is 42 C.F.R. � 483.13(c)(1)(i). This section states generally that a facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents. More specifically, it prohibits a facility from verbally, mentally, sexually, or physically abusing its residents. Other subsections of 42 C.F.R. � 483.13(c) not cited in the survey report, but referred to implicitly by the report's allegations of noncompliance and in CMS's subsequent arguments, require a facility to investigate thoroughly any allegation of abuse and to protect its residents against additional abuse while an investigation into an abuse allegation is pending. 42 C.F.R. � 483.13(c)(2)-(4).

The allegations of noncompliance all relate to an event that allegedly occurred late on the evening of January 2, 2004. On or about 11:00 p.m. that night, Monica Pearson, a certified nursing assistant (CNA) on Petitioner's staff, claimed that she saw a male resident sexually assault another male resident. The alleged perpetrator is identified in the report of the February survey as Resident # 2. His alleged victim is identified as Resident # 1, who was Resident # 2's roommate at the time. CMS asserts that Petitioner failed adequately to protect Resident # 1 from Resident # 2's advances. It argues additionally that Petitioner failed adequately to protect its residents from Resident # 2 after the alleged assault took place and that it failed adequately to investigate the allegations of sexual abuse.

In analyzing the evidence relevant to CMS's allegations and this regulation I address first the question of whether Resident # 2 actually assaulted Resident # 1. Then, I decide whether Petitioner should have known about Resident # 2's alleged proclivities and should have prevented the alleged assault, assuming that an assault actually occurred. Finally, I decide whether, after becoming aware of allegations that Resident # 2 had assaulted Resident # 1, Petitioner failed to protect residents from sexual abuse by failing to implement its anti-abuse policy and failing adequately to investigate the allegations of abuse.

a. The credible evidence does not support a finding that one of Petitioner's residents was sexually assaulted.

Ms. Pearson gave several statements concerning the alleged sexual abuse of Resident # 1 by Resident # 2. She made her first statement on January 2, 2004, the night of the alleged event, and appears to have repeated that statement the following day. On January 5, 2004, she gave a second statement to Petitioner's management which differs in critical respects from the one which she gave on January 2-3, 2004. However, the allegations in the survey report of a sexual assault, on which CMS relies to make its case, are based on a third statement that a surveyor obtained from Ms. Pearson on January 21, 2004, approximately three weeks after the date of the alleged incident. CMS Ex. 2, at 2; CMS Ex. 9, at 8-9. The January 21 statement contains the most lurid allegations made by Ms. Pearson. In that statement Ms. Pearson avers that:

I . . . was making my last round on 1/2/04, when I walked into . . . [the room occupied by Residents #s 1 and 2] and I saw . . . [Resident # 2] had . . . [Resident # 1] bent over the foot of the bed . . . [Resident # 2] had his clothes down and . . . [Resident # 1's adult diaper] was pulled down. I saw . . . [Resident # 2's] penis inside of . . . [Resident # 1's] rectum and . . . [Resident # 2] was moving inside of him. . . . [Resident # 1] was crying and his face was red all over. . . . [Resident # 2] looked up at me and pulled his penis out of . . . [Resident # 1] and he pulled his clothes up and went and got in his bed lik[e] nothing had happen[ed]. By that time other CNA's came in and helped me with . . . [Resident # 1] and we all were crying. . . . [Resident # 1] was crying as we got him cleaned up.

CMS Ex. 9, at 8-9.

Ms. Pearson's January 21, 2004 allegations, if credible, support a finding that Resident # 1 was sexually assaulted by Resident # 2. However, I find the allegations not to be credible. Indeed, it is impossible to decide which - or even whether any - of Ms. Pearson's versions of the alleged events is accurate. All of the statements that Ms. Pearson provided are hearsay. Consequently, it was not possible to test their credibility. ⁽²⁾ Ms. Pearson embellished and significantly changed her account with the passage of time, thus undermining her credibility. Furthermore, and as I discuss in more detail below, there is credible evidence in the record, including clinical evidence describing Resident # 2's medical problems, that supports a conclusion that Ms. Pearson's assertions in her January 2-3 and January 21, 2004 statements could not possibly be true.

Ms. Pearson's various statements contain numerous and highly significant inconsistencies. In her first, January 2 and 3, 2004 version of what allegedly happened, she reported to co-workers that she entered the room shared by Residents #s 1 and 2, and saw Resident # 2 in Resident # 1's bed, lying on top of Resident # 1, and "humping" him. P. Ex. 30, at 1; see CMS Ex. 9, at 2. Ms. Pearson did not contend in this first version of the events that she saw actual penetration of Resident # 1 by Resident # 2. In this version, Resident # 2 allegedly returned to his bed and immediately fell asleep after she caught him lying on top of Resident # 1 and "humping" him.

Ms. Pearson told a very different story when she was interviewed by Petitioner's management on January 5, 2004. In her second account of the events of January 2, she related that on that evening she had heard a noise emanating from the room that was shared by Resident #s 1 and 2. P. Ex. 32, at 1; P. Ex. 33, at 1. She averred that she opened the door and saw Resident # 1 lying in bed on his stomach. In this version, Resident # 2 was standing next to the bed, with his pants down, and with an erection. Ms. Pearson stated that she screamed and Resident # 2 then immediately turned around, walked back to his bed, and fell asleep. In this second version of events Ms. Pearson averred that Resident # 2 might have been sleepwalking. Ids.

The significant differences among the three accounts of events related by Ms. Pearson on January 2-3, January 5, and January 21, 2004, render it impossible to describe with confidence what Ms. Pearson actually saw on the night of January 2. In each version her description of the location of Resident # 2 relative to Resident # 1 varies. So also does her account of what she saw Resident # 2 doing. Thus:

� In her January 2 and 3 versions, she allegedly observed Resident # 2 lying in Resident # 1's bed, on top of Resident # 1, and "humping" him. Ms. Pearson does not allege penetration in this version of events.

� In her January 5 version, she allegedly saw Resident # 2 standing next to Resident # 1's bed, with his pants down and with an erection. In this version, no sexual assault occurred and Resident # 2 may have been sleepwalking.

� In her January 21 version, Ms. Pearson allegedly saw Resident # 2 standing behind the bed sexually assaulting Resident # 1. In this version, Resident # 1 was apparently also at least partially out of bed and was forcibly bent over the foot of the bed by Resident # 2. In this version, unlike the other versions, Ms. Pearson claims that she saw anal penetration of Resident # 1 by Resident # 2.

No witness supports Ms. Pearson's assertion that Resident # 2 sexually assaulted Resident # 1. None of her co-workers witnessed the alleged assault. One of Ms. Pearson's co-workers, Amy Trillet, alleged to have witnessed the aftermath of whatever occurred in the residents' room. In a statement that she made on January 22, 2004, Ms. Trillet averred that on the evening of January 2 she was doing rounds with Ms. Pearson and another CNA. CMS Ex. 9, at 1. She alleged she heard Ms. Pearson yelling and she ran to the room shared by Resident #s 1 and 2. She recited that, when she arrived at the room, she saw Resident # 2 pull up his pants and then, "pull up . . . [Resident #1's] pants." Id. Allegedly, Resident # 2 then "ran out of the room. . . ." Id. Ms. Trillet averred that Resident # 1 was crying, that his bottom was covered with feces, and that his anus was slightly open. Id.

I find this statement - also hearsay - to be unbelievable in several respects. First, Ms. Trillet's assertion that Resident # 2 ran from the room when she arrived is utterly inconsistent not only with Ms. Pearson's statements, but with clinical evidence about Resident # 2's medical condition, which I discuss below. Second, Ms. Trillet's assertion that Resident # 2 pulled up Resident # 1's pants is not only inconsistent with Ms. Pearson's statements, but is inconsistent with her own contention that she observed Resident # 1's bottom to be covered with feces and his anus to be slightly open. ⁽³⁾ In fact, nowhere in the record of this case is there credible evidence to show that Resident # 1 was wearing pants at the time of the alleged sexual assault.

There is no other corroborating evidence of record that would support allegations of a sexual assault by Resident # 2 against Resident # 1. In fact, in important respects the objective clinical evidence supports a conclusion that no sexual assault occurred. First, Resident # 1 showed none of the injuries that one might expect would result from a sexual assault. He was examined on the night of January 2, 2004, and was found to be uninjured and not upset emotionally. P. Ex. 45, at 1. Petitioner's staff examined Resident # 1's anus again on January 3. The staff observed no tearing or bruising and the resident voiced no complaints of discomfort. P. Ex. 24, at 3.

Second, the physical condition of Resident # 2 as of early January 2004 belies assertions that he forcibly sexually assaulted another resident. At the time of the incident, Resident # 2 was 74 years old. P. Ex. 4, at 1. He suffered from Parkinson's disease and dementia. P. Ex. 5, at 2. The resident was very feeble and could barely stand, walk, dress or toilet himself without assistance. P. Ex. 43, at 2; P. Ex. 5, at 2.

CMS argues that, in fact, Resident # 2 actually was relatively robust, noting that during the day on January 2, 2004, the resident had pushed a CNA, causing the patient whom the CNA was assisting at the time to fall to the floor. CMS Ex. 7, at 6. I do not find this episode to contradict my findings about the resident's condition. The clinical evidence about the resident's condition allows for the possibility that he may have been capable of a brief physical effort, including the effort involved in pushing someone. But, the evidence pertaining to the resident's overall physical condition is wholly inconsistent with a finding that the resident was capable of the kind of sustained physical exertion and agility that would be essential to sexually assaulting another, noncompliant, resident. Indeed, the evidence is overwhelming that the resident would have been incapable of that sort of sustained effort.

Third, Resident # 2 had no history of being sexually aggressive towards any other resident. The record of the resident's stay at Petitioner's facility is devoid of any entry prior to January 3, 2004, in which the resident was alleged to have engaged in sexual behavior. ⁽⁴⁾ I am not concluding that a sudden change in a resident's mental state or behavior is out of the question, especially in a resident who, as with Resident # 2, suffers from dementia. But, the absence of a history of sexually aggressive behavior undermines the veracity of Ms. Pearson's contentions in the absence of anything else that would corroborate them.

Fourth, evidence pertaining to the environment in which the alleged assault took place strongly suggests that Ms. Pearson fabricated significant parts of her story. The bed in which Resident # 1 lay was a hospital bed with side rails and a footboard. Transcript (Tr.) at 110-111. The side rails and footboard extended about a foot above the bed's mattress. Id. at 110. The facility's standard practice for Resident # 1 was to have him sleep with the side rails raised for safety reasons. Id. at 111. In order to have assaulted Resident # 1, Resident # 2 would, in all likelihood, have had to either climb over the raised side rails or the footboard of the bed. And, if Resident # 2 assaulted Resident # 1 in the manner described by Ms. Pearson in her January 21, 2004 statement, he would then have had to pull Resident # 1 from the bed and over the side rails or footboard. I find these scenarios (climbing over the side rails or footboard and/or pulling Resident # 1 out of bed over the side rails or footboard) to be implausible given Resident # 2's physical condition. ⁽⁵⁾ Indeed, I would not find Resident # 2 to have had the capacity to forcibly pull Resident # 1 out of bed even had there been no side rails and no footboard.

Petitioner argues additionally that it would have been impossible for Ms. Pearson to see what she described in her statements given both the layout of the residents' room and that she alleged to have observed the assault in the dark. See Tr. at 111-113. I do not find it necessary to decide whether limited visibility made Ms. Pearson's contentions implausible because there are other reasons, which I have discussed, that so undermine the credibility of her allegations as to render them implausible.

b. There is no basis for me to conclude that Petitioner allowed one of its residents to be abused sexually.

The absence of evidence to show that a sexual assault took place in Petitioner's facility is sufficient grounds to conclude that Petitioner did not allow one of its residents to be abused sexually. However, I would not find that Petitioner allowed sexual abuse to occur on the night of January 2, 2004, even if the evidence showed that Resident # 2 actuallyperpetrated a sexual assault against Resident # 1. As I discuss above, Resident # 2 had no history of sexually inappropriate conduct. As a consequence, Petitioner and its staff had no reason to be on notice that the resident might perpetrate a sexual assault.

The term "abuse" is defined in regulations to mean:

the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.

42 C.F.R. � 488.301 (emphasis added).

In applying the regulation, the term "willful" addresses what a facility does to protect its residents against infliction of injury, unreasonable confinement, etc. A resident-on-resident assault may be abuse, even if the resident who perpetrates the assault is incapable of forming the intent to commit assault (as would be the case with a demented resident), if the facility knowingly permits the assault to take place or if the facility, through its negligent disregard of facts known to it, permits the assault to take place. Indifference to residents' safety by a facility thus may be a basis for a finding that the facility allowed abuse to occur.

There is no evidence that Petitioner was indifferent to the possibility that Resident # 2 might sexually assault Resident # 1 prior to the evening of January 2, 2004, and up until the time that Ms. Pearson made her first allegation. That is because there were no facts known to the facility that would have led a reasonable facility to conclude that a sexual assault was possible. Prior to January 2, 2004, Resident # 2's record is devoid of any findings of sexually inappropriate behavior. If Resident # 2 actually committed a sexual assault on January 2, 2004, that event would have come as a surprise which Petitioner would have had no reason to anticipate.

CMS argues that Resident # 2 had been aggressive in other ways prior to the evening of January 2. Earlier that day, the record shows that he had pushed a CNA, causing the resident whom the CNA was assisting to fall. Resident # 2 also had been involved in some minor altercations with his previous roommate.

I do not find that these episodes provide any evidence that would have put Petitioner on notice that Resident # 2 was likely to commit a sexual assault on another resident. The episodes cited by CMS are not sexual in nature and offer no clue that Resident # 2 was potentially capable of sexual assault.

c. The evidence does not support a finding that Petitioner failed to protect its residents against sexual abuse, or failed to investigate allegations of abuse, after becoming aware of allegations that Resident # 2 had sexually assaulted Resident # 1.

Petitioner treated Ms. Pearson's allegations seriously when Ms. Pearson first made them. Petitioner's management and staff initiated a series of actions that were designed to protect its residents against the possibility that Resident # 2 was capable of sexually assaultive behavior. Petitioner's actions were thorough and provided its residents with ample assurance that any sexually assaultive behavior by Resident # 2 would not be repeated. In summary, these actions consisted of the following:

� Physically separating Resident # 1 and 2 and examining Resident # 1 for evidence of a possible sexual assault;

� Monitoring Resident # 2's behavior to guard against possible additional episodes;

� Consulting with the residents' physician, referring Resident # 2 for psychological evaluation, and obtaining treatment recommendations for Resident # 1.

� Consulting with both residents' families;

� Investigating the alleged incident and creating a written record of the statements of possible witnesses; and

� Notifying appropriate State authorities about the alleged incident.

Petitioner reacted immediately to Ms. Pearson's allegations by separating Resident #s 1 and 2, and by examining Resident # 1 to determine whether he had been sexually assaulted. On the night of January 2, 2004, Petitioner's staff took Resident # 1 to Petitioner's day room. P. Ex. 42, at 2. There, he was examined by the charge nurse on Petitioner's evening shift. The examination included a complete body check and a rectal examination. P. Ex. 40, at 2. The charge nurse found the resident to be calm and sleepy. His bed clothes were not askew and he made no complaints of injury or fear. The charge nurse found no evidence of injury or sexual activity. P. Ex. 42, at 2. Petitioner's staff re-examined Resident # 1 on the following day. Again, the staff found no evidence of injury or sexual contact. P. Ex. 24, at 3; P. Ex. 40, at 2.

On January 3, 2004, Petitioner's staff moved Resident # 2 into a private room in Petitioner's facility. P. Ex. 10, at 3. A bed alarm was placed in Resident # 2's bed to alert Petitioner's staff of any attempt by the resident to get out of bed. Id. A stop sign was placed across Resident # 1's doorway to discourage other residents from entering his room. Id.

Petitioner's management directed that additional steps be taken to protect the residents of the facility. Management directed that Resident # 2 be monitored. P. Ex. 38, at 2. Petitioner's administrator spoke with the staff early on the morning of January 3, 2004. The individuals who she spoke to initially included Petitioner's director of nursing and the charge nurse who was on duty at the time of the alleged sexual assault. Id. On January 5, 2004, the administrator directed that an investigation into the alleged assault be completed. She directed Petitioner's director of nursing to interview Ms. Pearson. Id. at 3. Petitioner's director of nursing and assistant director of nursing interviewed Ms. Pearson on that date. P. Ex. 41, at 1.

Petitioner notified the families of Resident #s 1 and 2 about the alleged incident and discussed the matter with them. P. Ex. 40, at 3. On January 3, 2004, Petitioner's staff reported the alleged incident to the residents' attending physician. Tr. at 67. The physician directed that the residents be monitored and that Resident # 2 be transported immediately to an emergency room should he engage in additional aggressive behavior. Id. The physician also ordered that a psychiatric evaluation be made of Resident # 2 as soon as possible. On January 6, 2004, a psychologist evaluated Resident # 2 and recommended a change in the resident's psychotropic medication. P. Ex. 11, at 4. Petitioner maintained a written record of the statements given by its staff members. P. Exs. 30-33. On January 5, 2004, after interviewing Ms. Pearson, Petitioner's management prepared an incident report for the Tennessee Department of Health, Bureau of Health Licensure and regulation, Division of Health Care Facilities (Department of Health). Petitioner's management spoke by telephone with a representative of that agency and, after relating what had transpired, inquired as to whether the incident should be reported formally. P. Ex. 36. On January 6, 2004, Petitioner was telephoned back by the Department of Health and was told that the incident need not be reported formally. Id.

CMS argues that Petitioner's response to Ms. Pearson's allegations was inadequate, both in terms of compliance with regulatory requirements and in terms of compliance with Petitioner's own anti-abuse policy. I do not find CMS's arguments to be persuasive.

The steps that a facility must take to deal with an allegation of abuse are specified at 42 C.F.R. � 483.13(c)(2), (3), and (4). A facility must ensure that all alleged instances of abuse are reported immediately to the facility's administrator and to other officials in accordance with State law. 42 C.F.R. � 483.13(c)(2). It must investigate thoroughly an allegation of abuse and must prevent additional abuse from occurring while it conducts its investigation. 42 C.F.R. � 483.13(c)(3). Finally, it must report its findings to the facility's administrator and to other officials in accordance with State law within five working days of the alleged incident and, if the incident is verified, must take appropriate corrective action. 42 C.F.R. � 483.13(c)(4).

Petitioner's anti-abuse policy tracks the regulatory requirements. P. Ex. 28. It provides that a person who observes an incident of possible abuse will report his or her observations immediately to his or her supervisor. An allegedly abused resident will be assessed immediately and will be provided with medical attention as may be necessary. Findings of any assessment will be documented. The facility's charge nurse is required to complete and sign an incident report. An investigation will be completed within five working days of the reported incident. P. Ex. 28, at 19-20.

I conclude that what Petitioner did in this case complied substantially with both regulatory requirements and with its own anti-abuse policy. The evidence does not show the precise point in time when Ms. Pearson first alleged that she had witnessed an episode of sexual abuse, but, it appears to have been around 11 p.m. on January 2, 2004. The staff notified Petitioner's administrator early on the morning of January 3, while the administrator was still in bed. P. Ex. 38, at 1. The administrator immediately became actively involved in ensuring that Resident # 1 was protected against possible additional abuse and in assuring that the alleged incident was investigated. Id. at 2-6. The investigation that Petitioner conducted was thorough by any standard. It included interviewing personnel who might have knowledge of the alleged incident, contacting and consulting with the residents' families, and consulting with the residents' treating physician. It also included conducting two physical examinations of Resident # 1 for evidence of abuse and having Resident # 2 examined by a psychologist. The examinations of Resident # 1 for possible abuse were documented in the resident's record. Petitioner prepared an incident report of the abuse allegation and notified State authorities.

The record also establishes that Petitioner protected its residents against the possibility of additional sexual abuse while it was investigating the allegations made by Ms. Pearson. It separated Resident # 1 from Resident # 2. Resident # 2 was placed in a private room without a roommate. Petitioner consulted with the residents' treating physician and received instructions to transfer Resident # 2 to an emergency room immediately in the event that he engaged in additional sexually aggressive behavior. Resident # 2 was evaluated psychologically.

CMS asserts that Petitioner was remiss because it did not move Resident # 2 to another room until January 3, the day after the alleged incident. I do not find that decision to have been a violation of either regulatory criteria or Petitioner's anti-abuse policy. The record establishes that the staff separated Resident #s 1 and 2 immediately after Ms. Pearson made her allegations. Resident # 1 was moved to the day room of Petitioner's facility where he was examined and assessed. Petitioner's staff found no evidence that any abuse had occurred when it examined Resident # 1 immediately after becoming aware of the allegations of abuse, and within a short time after the alleged incident. Moreover, Resident # 1 appeared to be calm and sleepy, his bed clothes were not askew, and he made no complaints of injury or fear. P. Ex. 42, at 2. Petitioner's charge nurse concluded that there was no evidence of injury to Resident # 1 or of sexual activity. Id. At the same time, Resident # 2 was observed to be asleep. See P. Ex. 45, at 1. Based on those facts it was determined by Petitioner's staff that it was safe to return Resident # 1 to his bed for the remainder of the night. Nothing was observed the remainder of the night respecting either of the two residents that was out of the ordinary. Id.

The decision to return Resident # 1 to his bed was a judgment call by Petitioner's staff made based on their expertise and on the facts that were known to them on the night of January 2, 2004. I find nothing in the record of this case that would warrant second-guessing that call. Both the regulations governing implementation of anti-abuse policy and Petitioner's own policy give discretion to the facility's staff to use its professional judgment concerning what is best for residents in the aftermath of a reported incident of abuse. There is no rigid requirement in the regulations that, for example, demands immediate separation of residents after an allegation that one has abused the other. What the staff ought to do must be dictated by the unique facts of an event. Here, the staff acted reasonably based on what it had been told and what it observed.

2. Petitioner complied substantially with the requirements of 42 C.F.R. � 483.75.

The regulation at issue requires that a facility 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 of its residents. 42 C.F.R. � 483.75. CMS alleges that Petitioner failed to comply with this requirement because, allegedly, the facility was not administered in a way that protected residents from sexual abuse. More specifically, the report of the February survey alleges that Petitioner's administrator's failure to ensure that facility policy was followed regarding investigation of the incident of alleged abuse and protection of residents placed all of the residents in Petitioner's Alzheimer's unit in jeopardy. CMS Ex. 2, at 7.

I find these allegations to be without merit. They derive entirely from allegations that Petitioner failed to protect its residents from sexual abuse and failed adequately to investigate allegations of sexual abuse which I have discussed in detail at Finding 1. It is unnecessary to reiterate my analysis here except to state again that Petitioner protected its residents against possible abuse even as it investigated thoroughly the allegations that were made by Ms. Pearson.

Steven T. Kessel

Administrative Law Judge

1. These allegations are organized as two distinct deficiency "tags" (Tags 224 and 226) in the report of the February survey. CMS Ex. 2, at 2-4; 5-6. It is efficient to discuss both these tags in one Finding, however, because they each allege noncompliance by Petitioner with the same regulation and because the two tags are based on identical fact allegations.

2. CMS contends that Ms. Pearson's statements would be admissible under the Federal Rules of Evidence as admissions by an employee or agent of Petitioner. I do not need to decide whether her statements constitute admissions. I routinely admit hearsay evidence in cases involving CMS and I admitted Ms. Pearson's statements here. However, the fact that I admit hearsay does not mean that I find it to be credible. Hearsay is inherently not credible, especially where the declarant is not available for cross- examination, as was the case here. Furthermore, the several inconsistencies and outright conflicts in the statements Ms. Pearson provided render her statements not credible.

3. Another inconsistency is that no one, including Ms. Pearson or Ms. Trillet, contends that there was feces on Resident # 2's groin area. Yet, it is hard to imagine that the resident would not have had feces on him if the allegations that were made by Ms. Pearson in either her first or third statements are true, inasmuch as both statements have Resident # 2 in physical contact with Resident # 1.

4. There is a nurse's note dated January 3, 2004 - the day after the alleged sexual assault - which states that Resident # 2 had experienced some recent behavioral changes in which he had become sexually inappropriate towards other residents. P. Ex. 9, at 11. However, the note does not refer to any specific event. I conclude that the note refers solely to Ms. Pearson's allegations of the previous evening, given its proximity in point of time to the alleged sexual assault and given further the absence of any evidence in the resident's record that shows a history, even a recent history, of sexually inappropriate behavior.

5. It cannot be said with absolute certainty that Resident # 1's side rails were raised on the evening of the alleged assault. Tr. at 111. However, I accept the facility's representation that its standard practice for Resident # 1 was to have him sleep with the side rails raised. Given that, it is probable, if not absolutely certain, that the side rails were raised on January 2, 2004.