SUBJECT:

Rolling Hills Rehab Center,

Petitioner,

Centers for Medicare & Medicaid Services.

DECISION

I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) to impose civil money penalties in amounts of $4,150 per day against Petitioner, Rolling Hills Rehab Center, for each day of a period that began on February 25, 2005 and which continued through March 1, 2005. I find no basis to impose civil money penalties against Petitioner for dates after March 1, 2005.

I. Background

Petitioner is a skilled nursing facility located in Sparta, Wisconsin. It participates in the Medicare program. Its participation in Medicare is governed by sections 1866 and 1819 of the Social Security Act and by federal regulations at 42 C.F.R. Parts 483 and 488.

Petitioner was surveyed for compliance with Medicare participation requirements on March 8, 2005 (March survey). The surveyors concluded that Petitioner failed in several respects to comply with participation requirements. They determined that certain deficiencies were so egregious as to constitute immediate jeopardy for residents of Petitioner's facility. Under applicable regulations an "immediate jeopardy" deficiency is one that causes, or is likely to cause, a resident or residents of a facility to experience serious injury, harm, or death. 42 C.F.R. � 488.301. CMS concurred with the surveyors' findings. It determined to impose remedies against Petitioner consisting of civil money penalties of: $4,150 per day for each day of a period that began on February 25 and which ran through March 1, 2005; and $50 per day for each day of a period that began on March 2, 2005 and which ran through April 7, 2005.

Petitioner requested a hearing and the case was assigned to me for a hearing and a decision. The parties made pre-hearing exchanges of briefs and proposed exhibits. Then, the parties agreed that the case should be heard and decided based on their written submissions.

CMS's exchange included exhibits which it designated as CMS Ex. 1 - CMS Ex. 36. Petitioner's exchange included exhibits which it designated as RH Ex. 1 - RH Ex. 5. With its final brief Petitioner submitted additional exhibits consisting of RH Ex. 6 - RH Ex. 9. Petitioner did not object to my receiving into evidence any of CMS's proposed exhibits. Consequently, I receive into evidence CMS Ex. 1 - CMS Ex. 36. CMS objected to my receiving into evidence RH Ex. 7 and RH Ex. 9 on the ground that these exhibits were not timely filed by Petitioner. I sustain CMS's objections to my receiving these two exhibits. They were not filed timely by Petitioner and, Petitioner's arguments notwithstanding, they address issues about which Petitioner had notice. There is no reason why Petitioner could not have filed these two exhibits timely. I receive into evidence RH Ex. 1 - RH Ex. 6, and RH Ex. 8.

II. Issues, findings of fact and conclusions of law

A. Issues and summary of decision

CMS based its determination to impose remedies against Petitioner on four findings of noncompliance made at the March survey, three of which were at the immediate jeopardy level. Allegedly Petitioner manifested immediate jeopardy level noncompliance with the requirements of 42 C.F.R. � 483.13(b) (Tag 223 of the March survey report), 42 C.F.R. � 483.13(c)(1)(ii) (Tag 225 of the March survey report), and 42 C.F.R. � 483.13(c)(1)(i) (Tag 226 of the March survey report). CMS Ex. 1, at 6 - 28. Also, Petitioner allegedly manifested non-immediate jeopardy level compliance with the requirements of 42 C.F.R. � 483.10(b)(11) (Tag 157 of the March survey report). CMS Ex. 1, at 1 - 6.

Petitioner concedes that, on February 25, 2006, it manifested an immediate jeopardy level failure to comply with the requirements of 42 C.F.R. � 483.13(c)(1)(i) (Tag 226). Petitioner's final brief at 2. It also concedes that a civil money penalty of $4,150 is reasonable to remedy Petitioner's noncompliance on that date. Id. It confines its arguments essentially to the issue of the duration of its noncompliance, contending that it was not deficient on any date after February 25. Id. at 1.

I decide below that Petitioner's immediate jeopardy level noncompliance with 42 C.F.R. � 483.13(c)(1)(i) continued through March 1, 2005. I sustain the $4,150 per day civil money penalties that CMS determined to impose for each day of the February 25 - March 1 period because Petitioner conceded that penalties in that amount are reasonable to remedy its immediate jeopardy level noncompliance as of February 25, 2005, and because I find that Petitioner's noncompliance continued at the same level through March 1, 2005.

I do not find it necessary to decide whether Petitioner manifested any immediate jeopardy level deficiency other than its failure to comply with 42 C.F.R. � 483.13(c)(1)(i). That is because Petitioner's noncompliance with this requirement, which endured through March 1, 2005, is sufficient to justify the $4,150 daily civil money penalties that CMS determined to impose for each day from February 25 - March 1, 2005. Finding the presence of other immediate jeopardy level deficiencies during this period would be superfluous and unnecessary to my decision. ⁽¹⁾

Nor do I find it necessary to decide whether Petitioner was deficient in complying with the requirements of 42 C.F.R. � 483.10(b)(11) (Tag 157) at a non-immediate jeopardy level of noncompliance. The penalties that CMS determined to impose during the February 25 - March 1, 2005 period are at the immediate jeopardy level. Finding the presence of an additional, non-immediate jeopardy level deficiency during that period has no impact on CMS's authority to impose the penalties or on penalty amounts.

Finally, I find that there is no basis to impose remedies for dates after March 1, 2005. As I discuss below, the record does not show that any deficiency persisted after March 1, 2005.

Therefore, the issues that I decide in this case are whether:

1. Petitioner manifested an immediate jeopardy level failure to comply with the requirements of 42 C.F.R. � 483.13(c) on dates beginning with February 26, 2005 and running through March 1, 2005, justifying the imposition of civil money penalties of $4,150 for each day of that period; and

2. Any basis exists for me to impose civil money penalties for dates after March 1, 2005.

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 manifested an immediate jeopardy level failure to comply with the requirements of 42 C.F.R. � 483.13(c) on dates beginning with February 26, 2005 and running through March 1, 2005, justifying the imposition of civil money penalties of $4,150 for each day of that period.

I find that CMS's determination that Petitioner's noncompliance at the immediate jeopardy level persisted until March 2, 2005, is reasonable. For that reason I sustain CMS's determination to impose penalties of $4,150 per day against Petitioner for each day of the period that began on February 26, 2005 and which ran through March 1, 2005. ⁽²⁾

The regulation that Petitioner concedes it contravened on February 25, 2005 provides generally that a facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of residents' property. 42 C.F.R. � 483.13(c). More specifically, it states that a facility must not use verbal, mental, sexual or physical abuse, corporal punishment or involuntary seclusion in its care of residents. 42 C.F.R. � 483.13(c)(1)(i).

The report of the March survey alleges that Petitioner failed to comply with the requirements of 42 C.F.R. � 483.13(c)(1)(i). However, it is obvious from the text of the survey report that the allegations of noncompliance relate more to the general provisions of 42 C.F.R. � 483.13(c) than to the narrower provisions of 42 C.F.R. � 483.13(c)(1)(i). CMS Ex. 1, at 21 - 28. Petitioner is charged, essentially, with failing to implement its anti-abuse policy. Id.

The events of February 25, 2005 that are the basis for the allegations of noncompliance are not disputed. Early on that morning, at about 2:00 a.m., a male nursing assistant on Petitioner's staff sexually assaulted an elderly, demented, and defenseless female resident. ⁽³⁾ The assault was witnessed by another female nursing assistant. CMS Ex. 21, at 8; CMS Ex. 23, at 4, 11 - 12; RH Ex. 1, at 3 - 4.

As of that date Petitioner had written anti-abuse policies. These required staff, upon observing abuse, to take immediate action: to stop the abuse from being perpetrated and, to report and investigate any incident. CMS Ex. 17, at 1. Petitioner's anti-abuse policies contained the following relevant language:

2. If the concern or complaint is regarding an issue of caregiver misconduct (abuse, neglect, or misappropriation of property), the staff person is required to take action immediately to protect the resident and/or stop the occurrence.

3. The staff member must then report the incident to either the nurse on duty on the resident's floor or the floor where the incident occurred, which ever is appropriate immediately.

5. The nurse on duty must take action to determine how to protect the resident while the incident is being investigated (i.e., staff person being reassigned, etc.).

6. The nurse must notify the Administrator or Acting Administrator of the alleged incident/complaint immediately after ensuring the safety of the resident.

15. At any point in the initial learning of the incident and/or during investigation (depending upon the incident itself) the incident and the accused staff may be reported to local law enforcement authorities.

Id. (emphasis in original).

Petitioner's staff failed in several respects to comply with these policies. The failures included the following:

� The nursing assistant who witnessed the assault did not take action immediately to protect the resident and/or stop the assault. Id.; see CMS Ex. 17, at 1. She neither intervened to help the resident nor did she cry out for help. Rather, and by her own admission she "panicked", ran to the nearest telephone, called another nursing assistant, and reported what she'd just seen. RH Ex. 1, at 3 - 4, 5.

� The nursing assistant who witnessed the assault did not report what she had seen immediately to the nurse on duty. See CMS Ex. 17, at 1. The nursing assistant who witnessed the assault was unsure whether she should confront the assailant or call the supervising nurse. Id. She called the supervising nurse only after being advised to do so by the other nursing assistant with whom she spoke. Id.

� The supervising nurse did not call Petitioner's administrator immediately to report the assault. See CMS Ex. 17, at 1. The assault occurred at about 2:00 a.m. on February 25, 2005. RH Ex. 1, at 2 - 4. The supervising nurse learned about the assault between 2:15 and 2:30 a.m. CMS Ex. 23, at 12; CMS Ex. 31, at 7. The nurse's first reaction was to assume that the nursing assistant who reported the assault was kidding. CMS Ex. 31, at 7. She decided that the allegations were serious after discussing them with the nursing assistant who witnessed the assault. Id. It was not until about 2:45 a.m., or about 45 minutes after the assault occurred, that the nurse telephoned Petitioner's administrator. CMS Ex. 18, at 27.

� Petitioner's staff failed to take immediate action to protect Petitioner's residents from the assailant. See CMS Ex. 17, at 1. The assailant was placed on administrative leave and told to leave Petitioner's facility at about 3:00 a.m. on February 25, 2005, or about an hour after the assault was witnessed. CMS Ex. 21, at 4. Petitioner's staff undertook no special surveillance or protective actions for the residents of the facility during the period between 2:00 a.m., when the assault occurred, and 3:00 a.m., when the assailant was sent away from Petitioner's facility. During that one-hour period, the assailant was allowed to perform his normal work activities while Petitioner's staff decided what they should do. The staff did not escort the assailant off of Petitioner's premises after he was told to leave. Petitioner's administrator did not report the incident to local law enforcement officials until between 6:00 and 8:00 on the morning of February 25. CMS Ex. 21, at 1; CMS Ex. 23, at 4, 7.

These facts demonstrate a failure by Petitioner to implement effectively its anti-abuse policy in the wake of a sexual assault that had been witnessed by a member of Petitioner's staff. The facts support my conclusion that the policy, while sound in theory, broke down completely in practice. In what was clearly an emergency situation, one which required urgent and immediate action by the staff, the staff panicked and hesitated to act. The consequence was that for a significant period of time early on the morning of February 25, 2005, residents of Petitioner's facility were at the mercy of a sexual predator.

Petitioner does not deny its deficiency, the level of the deficiency (immediate jeopardy) or the reasonableness of the penalty amount ($4,150 per day). But, it argues that the remedy should be limited to a penalty imposed solely for its noncompliance on February 25, 2005. It describes the events of that date as an aberration that was cured with the removal of the assailant from Petitioner's premises and with counseling of the nursing assistant who witnessed the assault. According to Petitioner, these actions eliminated the deficiency and the jeopardy, and made additional remedies unreasonable.

I find Petitioner's characterization of the deficiency to be without merit. Petitioner's failure to implement its anti-abuse policy involved much more than a panicked response by a single staff member to a unique and isolated episode involving another staff member. The evidence establishes convincingly that there was a general breakdown in implementing Petitioner's anti-abuse policy during the early morning hours of February 25, 2005. Petitioner's deficiency lay both in the fact that it allowed an assault to occur on its premises and in its failure to implement its anti-abuse policy when that assault was witnessed.

Petitioner's policy wisely required the staff to take immediate and effective action to protect residents of the facility and to notify and involve its management in making decisions of vital importance. On February 25, 2005 there was a series of failures by Petitioner's staff to apply its anti-abuse policy. The result was that the staff's action on that morning was not immediate nor was it effective. The staff's failures encompassed more than the actions of one nursing assistant. Staff did not intervene to protect the resident who was the victim of the assault. Staff did not follow prescribed notification procedures. There were delays in taking corrective action that jeopardized the safety of Petitioner's residents.

Petitioner's noncompliance was not cured by the removal of the assailant from its premises nor was it cured simply by counseling the nursing assistant who witnessed the assault. The aftermath of the assault on February 25 showed that Petitioner's staff - and not just one employee - was not capable of implementing the anti-abuse policy effectively in a crisis situation. That problem could only be fixed, and was eventually fixed, by retraining Petitioner's staff in the appropriate responses to an episode of abuse. By Petitioner's own admission, that training was not completed until March 2, 2005. Petitioner has not proved that, pending completion of the retraining, its staff would have responded better to a second abuse-related crisis than it did to the first one. ⁽⁴⁾

Petitioner argues that CMS has a burden of proving affirmatively that Petitioner's staff continued to lack the capacity to implement the anti-abuse policy on the days following February 25. It asserts that CMS has some burden to prove affirmatively that Petitioner was noncompliant on each day for which CMS has determined to impose a remedy.

This is an incorrect statement of the parties' burdens of coming forward with evidence and proof. Petitioner's arguments notwithstanding, the burden lies squarely on Petitioner - once noncompliance is established - to prove affirmatively that it regained compliance with participation requirements. CMS is not required to prove a negative proposition that noncompliance continued. The established immediate jeopardy level noncompliance on February 25, 2005 created a presumption that such noncompliance continued at the immediate jeopardy level. It is Petitioner's burden to come forward with sufficient affirmative proof to rebut that presumption. Hermina Traeye Memorial Nursing Home, DAB No. 1810 (2002).

Petitioner did not prove that it eliminated its deficiency immediately after February 25, 2005. Petitioner recognized that it needed to retrain its staff to make certain that the staff understood and was able to implement Petitioner's anti-abuse policy. That took several days to complete. As Petitioner acknowledges, it did not begin providing retraining until February 28, 2005, and it did not complete that retraining until March 2, 2005. RH Ex. 5, at 2. ⁽⁵⁾ In fact, the nursing assistant who witnessed the assault, the nursing assistant whom she called, and the nurse in charge during the early morning of February 25 did not complete their retraining until March 1 and March 2, 2005. CMS Ex. 22, at 4, 6, 7.

As I discuss above, Petitioner does not dispute that a civil money penalty of $4,150 is a reasonable amount to remedy the immediate jeopardy noncompliance that it admitted was present on February 25, 2005. Petitioner has offered no argument to show that the penalty amount should be less than that on subsequent days up through March 1, 2005 assuming that it continued to manifest an immediate jeopardy level deficiency on each of those days. I find it reasonable to sustain the imposition of penalties at the $4,150 per day rate for each of the days beginning on February 26, 2005 and running through March 1, 2005. Petitioner did not prove that immediate jeopardy was abated on any of those days. The potential for disaster resulting from Petitioner's staff's inability to implement the anti-abuse policy remained just as high as it was on February 25 until Petitioner's staff was retrained.

2. No basis exists for me to impose civil money penalties for dates after March 1, 2005.

As I discuss above CMS determined to impose civil money penalties of $50 for each day of the period that began on March 2, 2005 and which ran through April 7, 2005. Neither party devoted more than cursory attention in their briefs to these additional remedies. CMS's only argument about the additional penalties is to state that they are reasonable as a matter of law because $50 per day is the lowest civil money penalty amount permitted by regulation. CMS's final brief at 43; see 42 C.F.R. � 488.438(a)(ii).

That is true, but it does not address the issue of whether Petitioner's noncompliance endured after March 1, 2005. The evidence offered by Petitioner establishes that it addressed the failure of its staff to implement Petitioner's anti-abuse policy by retraining the staff. That retraining was completed on March 2, 2005. R.H. Ex. 5, at 2. CMS has not asserted what more Petitioner needed to accomplish after March 2 in order to attain compliance.

It is true that Petitioner's plan of correction addressing the findings of noncompliance made at the March survey avers that corrective action will be completed by April 8, 2005. E.g., CMS Ex. 1, at 21. It is possible that CMS determined to continue to impose token civil money penalties of $50 per day against Petitioner after March 1, 2005 premised solely on the fact that Petitioner represented that it would not complete its corrective action until April 8. However, analysis of what Petitioner did (retrain its staff in implementation of its anti-abuse policy) by March 2, 2005, in comparison with what Petitioner said it would do (essentially the same thing) with a completion date of April 8, 2005, leads me to conclude that it had accomplished its corrections by March 2. Given that, no basis exists to impose a remedy on March 2 or subsequently.

Steven T. Kessel

Administrative Law Judge

1. By the same token I do not find that there were no other immediate jeopardy level deficiencies. I find only that it is unnecessary that I address the additional deficiencies in order to sustain CMS's determination to impose penalties of $4,150 per day for each day of the February 25 - March 1, 2005 period. I note that the other alleged immediate jeopardy level deficiencies spring from essentially the same facts as are the basis for Petitioner's noncompliance at Tag 226 of the March survey report.

2. I also sustain CMS's determination to impose a $4,150 civil money penalty for February 25, 2005, inasmuch as the remedy determination for that date is not in dispute.

3. The nursing assistant was later convicted of this crime and sentenced to prison.

4. Petitioner also attempts to minimize the seriousness of the noncompliance by arguing that allowing the assailant to remain on Petitioner's premises for an hour after he was witnessed committing a sexual assault could not pose even a potential for additional harm to other residents. Petitioner asserts that, as a matter of biology, it was extremely unlikely that the assailant would perpetrate another sexual assault during this period. It is unnecessary for me to address this issue. My principal concern about Petitioner's staff's inability to implement the anti-abuse policy on February 25, 2005 is what that inability portended for episodes of abuse that might take place at some point in the future. The manifest incompetence in dealing with the assault of February 25 is strong evidence that Petitioner's staff would be incapable - on a broad range of issues including protecting residents - from dealing with future episodes of abuse. That is why I conclude that Petitioner could not have attained compliance with 42 C.F.R. � 483.13(c) until it retrained all of its staff in implementing its anti-abuse policy.

5. I note also that Petitioner did not terminate the assailant's employment prior to March 2, 2005, although the assailant was on administrative leave between February 25 and March 2. Petitioner has not offered evidence showing how it would have prevented the assailant from entering its premises during that period had the assailant decided to do so.