SUBJECT:

Royal Park Care Center,

Petitioner,

Centers for Medicare & Medicaid Services.

DECISION

Royal Park Care Center (Petitioner) filed a timely request for hearing on October 23, 2003 to contest a determination by the Centers for Medicare & Medicaid Services (CMS) that Petitioner had provided substandard quality of care and, therefore, could not be certified to have a Nurse Aide Training and Competency Evaluation Program (NATCEP) for two years as mandated by 42 U.S.C. � 1395i-3(f)(2)(B)(iii)(I)(b). I find that CMS had authority to impose a penalty on Petitioner for failure to substantially comply with Medicare and Medicaid requirements of participation. I also find that CMS's determination that Petitioner's deficiencies presented immediate jeopardy is not clearly erroneous.

I. Procedural History

Surveyors from the Washington State Department of Social and Health Services (State agency) conducted an abbreviated survey of Petitioner from May 22 to May 24 and on May 29, 2003 (May 29 survey). The State agency determined that Petitioner was not in compliance with 42 C.F.R. � 483.13(c)(2) - (4) (Tags F 225 and 226) for allegedly failing to thoroughly investigate and properly report allegations of mistreatment, neglect or abuse and to implement written policies and procedures to prohibit mistreatment, neglect and abuse. Because Petitioner was cited for deficiencies at the immediate jeopardy level, Petitioner's NATCEP was automatically denied for two years. No remedies other than Petitioner's loss of nurse aide training took effect before Petitioner achieved substantial compliance with federal requirements of participation in Medicare and Medicaid. By letter dated September 29, 2003, CMS advised Petitioner it agreed with the State agency that Petitioner had been noncompliant at a level indicating substandard quality of care. On October 23, 2003, Petitioner filed a request for hearing. At the parties' request, the case was stayed until March 1, 2004. CMS filed a motion for summary judgment on April 22, 2004 (CMS Br.). CMS submitted 26 proposed exhibits with its motion (CMS Exs. 1-26). Petitioner filed its response on May 24, 2004 along with 26 proposed exhibits (P. Exs. 1-26). Following a prehearing telephone conference call on July 24, 2006, Petitioner, by letter dated July 25, 2006, submitted a letter waiving an in-person hearing and submitting the case for decision on the record. ⁽¹⁾ Petitioner also stated in the letter that it "concedes that the citations were appropriate but none at the immediate jeopardy level." I admit all proposed exhibits without objection. My decision as explained below is based on my review of the evidence and the arguments of the parties.

II. Applicable law and regulations

Petitioner is considered a long-term care facility under the Social Security Act (Act) and regulations promulgated by the Secretary of Health and Human Services (Secretary). The statutory and regulatory requirements for participation by a long-term care facility are found at sections 1819 and 1919 of the Act and at 42 C.F.R. Part 483.

Sections 1819 and 1919 of the Act invest the Secretary with authority to impose penalties against a long-term care facility for failure to comply substantially with federal participation requirements.

Pursuant to the Act, the Secretary has delegated to CMS and the states the authority to impose remedies against a long-term care facility that is not complying substantially with federal participation requirements. 42 C.F.R. Part 488 provides that facilities participating in Medicare may be surveyed on behalf of CMS by state survey agencies in order to ascertain whether the facilities are complying with federal participation requirements. 42 C.F.R. �� 488.10-488.28. The regulations contain special survey conditions for long-term care facilities. 42 C.F.R. �� 488.300-488.335. The regulations in 42 C.F.R. � 488 give CMS a number of different remedies that can be imposed if the facility is not in substantial compliance with Medicare requirements.

The regulations define the term "substantial compliance" to mean "a level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm." 42 C.F.R. � 488.301.

Substantial non-compliance that is immediate jeopardy is defined as "a situation in which the provider's non-compliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident." 42 C.F.R. � 488.301. In order for an administrative law judge (ALJ) to overturn CMS's finding of immediate jeopardy, the ALJ must find that CMS's determination of immediate jeopardy is clearly erroneous. 42 C.F.R. � 498.60 (c)(2); Ridge Terrace, DAB No. 1834 (2002).

The Act and regulations make a hearing before an ALJ available to a long-term care facility against whom CMS has made an appealable initial determination. Act, section 1128A(c)(2); 42 C.F.R. �� 488.408(g); 498.3(b)(12),(13). The hearing before an ALJ is a de novo proceeding. Anesthesiologists Affiliated, et al, DAB CR65(1990), aff'd, 941 F2d. 678 (8^th Cir. 1991). Pursuant to the regulations at 42 C.F.R. Part 498, an appealable initial determination by CMS is one where a finding of noncompliance resulted in the imposition of a remedy specified in � 488.406 of 42 C.F.R. and the level of noncompliance can be appealed if a successful challenge would affect a finding of substandard quality of care that results in the loss of approval for a nurse aide training program. Moreover, simply a finding of substandard quality of care that leads to the loss by a skilled nursing facility (SNF) or nursing facility (NF) of the approval of its nurse aide training program is an initial decision. 42 C.F.R. � 498.3(b)(13) and (14)(ii) and (16).

Substandard quality of care is defined in the regulations as one or more deficiencies of requirements set forth at �� 483.13, 483.15, or 483.25, and which are either immediate jeopardy to resident health or safety; a pattern of or widespread actual harm that is not immediate jeopardy; or widespread potential for more than minimal harm, but less than immediate jeopardy, with no actual harm. 42 C.F.R. � 488.301.

When a penalty is imposed and appealed, CMS must make a prima facie case that the facility has failed to comply substantially with federal participation requirements. To prevail, a long-term care facility must overcome CMS's showing by a preponderance of the evidence. Hillman Rehabilitation Center, DAB No. 1611 (1997); aff'd, Hillman Rehabilitation Center v. HHS, No. 98-3789 (GEB) (D.N.J. May 13, 1999). Batavia Nursing and Convelescent Inn, DAB No. 1911 (2004). Under Hillman and Batavia, CMS bears the burden of coming forward with evidence sufficient to establish a prima facie case that Petitioner failed to comply with participation requirements. Once CMS has established a prima facie case of noncompliance, Petitioner has the burden of proving, by a preponderance of the evidence, that it complied substantially with participation requirements. Hillman, DAB No. 1611, at 3-8.

III. Issues

In most cases involving appeals of CMS findings regarding noncompliance by nursing facilities, the first issue is whether CMS had a basis to impose a remedy. In this case Petitioner has conceded that deficiencies existed. The issue in this case is whether CMS's decision that Petitioner's deficiencies were immediate jeopardy is clearly erroneous. Upon a finding of immediate jeopardy, the reasonableness of the imposed remedy in this case is no longer an issue because the loss of NATCEP is mandated by statute. 42 U.S.C. 1395i-3(f)(2)(B)(iii). Although Petitioner is not contesting CMS's findings of deficiencies, I explain the deficiencies in detail below to explain my immediate jeopardy finding.

IV. Findings of Fact and Conclusions of Law

I make findings below in separate lettered paragraphs. I explain my finding after each one.

A. Petitioner was not in compliance with the regulatory requirement set forth at 42 C.F.R. � 483.13(c)(2).

The regulations at 42 C.F.R. � 483.13(b) state that a resident has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment and involuntary seclusion. A facility must develop and implement policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property. 42 C.F.R. � 483.13(c). Specifically under 42 C.F.R. � 483.13(c)(2), the facility must ensure that all alleged violations involving mistreatment, neglect, or abuse, including injuries of an unknown source, and misappropriation of resident property are reported immediately to the administrator of the facility and to other officials in accordance with State law through established procedures (including to the State survey and certification agency). Under 42 C.F.R. � 483.13(c)(3), the facility must have evidence that all alleged violations are thoroughly investigated, and must prevent further potential abuse while the investigation is in progress. And under 42 C.F.R. � 483.13(c)(4), the results of all investigations must be reported to the administrator or his designated representative and to other officials in accordance with State law (including to the State survey and certification agency) within five working days of the incident.

1. Petitioner failed to thoroughly investigate and report potential abuse of Resident 26.

Resident 26 had a diagnosis of Alzheimer's Disease. She had short and long-term memory loss and was moderately impaired in her daily decision-making abilities. She required extensive assistance of more than one person for all activities of daily living. CMS Ex. 1, at 3.

On May 4, 2003, a weekend, Petitioner's nurse aide (NA) Hall was preparing Resident 26 for bed and was unassisted by other staff. Resident 26 had soiled her incontinence brief and NA Hall needed to change the brief in order to prepare her for bed. P. Ex. 3, at 367. According to NA Hall, Resident 26 pulled him downward by the front of his shirt while he was caring for Resident 26 and injured his back. Id., at 368; CMS Ex. 12, at 2. Petitioner's NA Oliver entered Resident 26's room to assist with her care. She heard NA Hall cussing. She asked NA Hall what was wrong and NA Hall began punching the bottom of Resident 26's bed. NA Oliver asked NA Hall to calm down. NA Oliver informed Petitioner's charge nurse Mullen. Nurse Mullen told NA Hall to go home and to the doctor for treatment of his back pain. CMS Ex. 7.

On the same day as the incident, NA Oliver completed an Incident Witness Sheet regarding the incident. She included information that she had previously worked with NA Hall and that he had previously shown temper and been rough with the residents. CMS Ex. 7. Another of Petitioner's nurse aides, NA Dunning, who had been standing out in the hall during the incident, also completed an Incident Witness Sheet and said she had previously seen NA Hall react angrily to situations that are painful or frustrating to him and will strike out at the nearest inanimate object or swear profusely. CMS Ex. 8; see also P. Ex. 3, at 189. That same day, Nurse Mullen placed both of the completed Incident Witness Sheets under the door of the facility's Assistant Director of Nursing Services (ADNS), Ms. Donlan, who was not in the facility on the weekend and Nurse Mullen placed her own short note about the incident under ADNS Donlan's door. CMS Ex. 9.

Three days later, on May 7, 2004, ADNS Donlan interviewed NA Oliver about the incident. NA Oliver said NA Hall was not cussing at Resident 26 but was muttering under his breath. ADNS Donlan point blank asked NA Oliver whether NA Oliver thought what NA Hall had done was abuse. NA Oliver said "no." ADNS Donlan then concluded there was no need to call in or report the incident or investigate it as an allegation of abuse. CMS Ex. 5, at 8; CMS Ex. 7.

NA Oliver described the incident to the surveyors as being less benign. She told the surveyors that when she walked into Resident 26's room, NA Hall was having a temper tantrum and was manhandling the resident. She said Resident 26 appeared frightened. NA Oliver said she reported everything to ADNS Donlan including the profanity, NA Hall's hitting the bed, rough handling of the resident and the resident's resulting fear. CMS Ex. 5, at 6-7. On cross-examination during the state hearing, NA Oliver repeated that NA Hall had been using excessive force. P. Ex. 3, at 136-37.

NA Hall returned to work at the Petitioner's facility on May 16, 2003. He agreed to do light duty including cleaning, taking vital signs, and passing out meal trays, snacks and water. He still had interaction with the residents. CMS Ex. 13; P. Ex. 3, at 133. Petitioner fired NA Hall on May 28, 2003 after the surveyors questioned the facility about this incident. Although the facility had investigated the workers' compensation aspect of the incident, it had little record of investigating the incident as potential abuse. CMS Ex. 5, at 2, 8, and 13.

Apparently, Nurse Mullen also told ADNS Donlan that other staff members thought NA Hall had been rough with residents. P. Ex. 3, at 153, 155, 160. When Petitioner did nothing about her statements to the ADNS, Nurse Mullen reported to the State agency. CMS Ex. 6; P. Ex. 3, 156-57.

I point out that I have stated the facts above even though it is not entirely clear what happened on May 4 with Resident 26. I note that the only report that Resident 26 hurt NA Hall's back came from NA Hall. NA Oliver did not see the incident and at one time reported that NA Hall said "another" resident had injured NA Hall's back. CMS Ex. 12, at 2. NA Hall repeated several times in his testimony that Resident 26's brief was very messy. P. Ex. 3, at 367-68. It is possible that he was simply mad at her. These inconsistencies are precisely why a thorough investigation of the incident was necessary. Granted NA Oliver's reports of the incident have not been consistent. But even if one accepts Petitioner's view of the evidence with respect to this incident: i.e., that NA Hall was frustrated with his back injury; he did not cuss at the resident; he did not pound on the resident's bed; he did not "flop her around;" and, that Nurse Mullen did not like NA Hall; a question yet remains why the incident reports given to ADNS Donlan did not engender a more thorough investigation on the part of the Petitioner given the graphic descriptions in the notes. For example, NA Oliver's note states

Walked in to assist [NA Hall] with resident at time he was cussing at resident & he stopped. We began to change resident "flopping her around." I asked him what was wrong & he began punching bottom of the bed. I asked him to leave & I would go find help. He refused so I left to get charge nurse to get him out. I have worked with him before when he has lost his temper & been rough with residents & loses temper. It is not good for him nor resident nor me.

CMS Ex. 7, at 1. NA Dunning's note said

I have seen [NA Hall] react to situations that are painful or frustrating to him with anger that appears to be way out of proportion to the situation. He does not express the anger calmly but will strike out at the nearest inanimate object or swear profusely. It is usually very short term but excessive.

CMS Ex. 8. ⁽²⁾ Moreover, Nurse Mullen had called ADNS Donlan on Monday morning following the incident and was told "we're probably going to move [NA Hall] to another unit, to the Maple unit where we can monitor him." P. Ex. 3, at 154. Several weeks later, after NA Hall returned to the facility, Nurse Mullen, who was concerned about NA Hall working with residents, had done some investigation on the mandated reporting of incidents in the State of Washington and decided to report to the State agency's abuse hot line. Id., at 156-57.

The Departmental Appeals Board (Board) has commented on the meaning of the abuse investigation regulations. In Beverly Health and Rehabilitation Center - Williamsburg, DAB No. 1748 (2000), the Board explained that the regulatory scheme requires that a participating facility develop and implement a policy that prohibits mistreatment, neglect, abuse and misappropriation and that all allegations be investigated. If there is an allegation of abuse, the policy must require that staff report the allegation to the Administrator. The facility must conduct a "preliminary investigation" and if the allegation of maltreatment or abuse "implicates staff," the State survey and certification agency must be notified in accordance with state law and a complete investigation must be done and submitted within five working days of the occurrence of the alleged incident. The Administrator's preliminary inquiry is only to determine whether there is an allegation of maltreatment, neglect, abuse, or misappropriation and whether staff is implicated, and not to determine whether the allegations are founded. If the allegation involves possible maltreatment or abuse and the staff is implicated, reporting is mandatory, whether or not the facility's subsequent full investigation shows that the allegations were not well-founded. What Petitioner did, that is, simply ask NA Oliver whether she thought the incident was abuse, was insufficient to meet the standards required by the regulations. P. Ex. 3, at 35, 60, 208.

Washington State Law, RCW 74.34.0-35 (1) states that when there is reasonable cause to believe that abandonment, abuse, financial exploitation, or neglect of a vulnerable adult has occurred, mandated reporters shall immediately report to the State agency. Mandated reporters include: an employee who observes the incident or hears the victim state it happened; an employee who hears about an incident from a permissive reporter with direct knowledge of the incident; or the employee's supervisor or facility designated person receiving the information from the mandatory reporter. Under these definitions the nurse aides who had witnessed events of rough handling or heard complaints about another nurse aide and the facility employees to whom the reports were made were all mandatory reporters under Washington state law.

2. Petitioner failed to thoroughly investigate and report possible abuse against Residents 25 and 4.

Resident 25 had diagnoses including stroke and seizure disorder. She was moderately impaired in daily decision-making. CMS Ex. 1, at 9. Resident 4 also had diagnoses of Alzheimer's disease and depression. CMS Ex. 1, at 10. On February 9, 2003, a nurse aide reported that Resident 25 had complained about another nurse aide, NA Stinson. Resident 25 had apparently said she did not want NA Stinson in her room anymore because he was too rough. The nurse aide reported Resident 25's complaint to her charge nurse. CMS Ex. 24. On the same day, Petitioner's charge nurse became aware that Resident 4 had also complained about NA Stinson, saying, "What's he doing in here? Get him out of here. I don't want him in here." Id. No one on Petitioner's administrative staff looked at these complaints until three weeks later. ADNS Donlan admitted there was a gap in time between when she heard the complaint from Resident 25 and the time it was investigated and she had no explanation for the gap. P. Ex. 3, at 482-83. At this time, ADNS Donlan interviewed both NA Stinson and Resident 25 because Resident 25 was somewhat interviewable. Resident 25 told ADNS Donlon that NA Stinson was rough but funny looking as well. Resident 25 denied that she was abused or mistreated but she repeated that NA Stinson was rough and funny looking. Id., at 542. NA Stinson expressed that he did not "mean to be rough, but this most likely occurs when he feels rushed." He said he had been doing better since moving to the night shift where he did not feel rushed. He said he would slow down and be more aware of being gentle. Petitioner documented that Resident 4 did not want male caregivers but took no further action. ADNS Donlan told the surveyors she did not further investigate these incidents because she thought the complaints were related to NA Stinson being different, hyper, and quick, but not abusive. CMS Ex. 5, at 13.

Even if neither Resident 25 nor 4 could give an accurate account of why they did not like NA Stinson, a preliminary investigation should have been done prior to the elapse of three weeks and the incident should have been reported to the State agency because staff was implicated. Why Petitioner took three weeks to review these complaints is not explained. Even Petitioner's expert witness, Dr. Jackson, said that the incident with respect to Resident 25 should have been reported to the State agency and was a deficiency under the regulations (but not immediate jeopardy). P. Ex. 3, at 299.

3. Petitioner failed to thoroughly investigate and report complaints of rough treatment for Resident 7.

Resident 7 had diagnoses of diabetes mellitus, depression and a compression fracture of his lower back. He had daily back pain. CMS Ex. 1, at 9-10. He was described as alert and oriented. CMS Ex. 26. On March 4, 2003, three days after NA Stinson said he would slow down and be more gentle, Resident 7 complained about NA Stinson. NA Stinson was moving Resident 7 and exacerbating Resident 7's back pain. Someone reported that Resident 7 told her that NA Stinson was moving him like a sack of wheat and hurting his back. Resident 7 told NA Stinson to stop and NA Stinson got mad and left the room without speaking. CMS Ex. 25. Administrator McKenna received this report about the same day and referred it to ADNS Donlan. P. Ex. 3, at 256. ADNS Donlan interviewed Resident 7 and Resident 7 described NA Stinson as impatient and pushy. Resident 7 stated, "I have a bum back and didn't roll over fast enough for him so he pushed me. I told him don't throw me around like a sack of wheat and after I said that, he just walked out." Resident 7 said he did not want NA Stinson back in his room. CMS Ex. 25; P. Ex. 8, at 2. Administrator McKenna also talked to Resident 7 about the event, although it is unclear when the conversation took place. P. Ex. 3, at 256. On March 6, 2003, two days later, Petitioner's ADNS Donlan documented that she counseled NA Stinson in writing and gave him his last warning. She told him to take extra care with residents, to take time to turn and move them gently. Petitioner's administration, however, did not interview any additional residents, family members or facility employees. CMS Ex. 26. NA Stinson did not return to work after receiving his last warning and was eventually fired on March 24, 2003, for job abandonment. CMS Ex. 27.

Administrator McKenna related her conversation with Resident 7 and reported that Resident 7 denied that NA Stinson had been intentionally mean to him. The Administrator concluded this was not an allegation of abuse. P. Ex. 3, at 256. Once again, whether or not Resident 7 later recanted that NA Stinson had been intentionally mean to him, Petitioner had an obligation to report the incident. An employee had clearly been implicated in an allegation of mistreatment.

4. Petitioner failed to develop and implement policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property. 42 C.F.R. � 483.13(c).

According to Petitioner's policies,

[t]he Administrator and the DNS will be notified immediately of all suspected abuse, neglect and substantial injuries. Forward report to RCM, who directs it to DNS, or designee. The incident report will be reviewed to determine if further investigation of the incident is warranted. Phase II will be completed by the RCM and/or ADNS. Extended investigations will be entered into the reporting log and available within 5 days. Reporting requirements will be followed . . . .

P. Ex. 3, at 37.

Other of Petitioner's policies specific to abuse state that-

[the] DNS, Administrator, or designee will review investigation of the event. (The investigation will be conducted by interviewing staff associated with the event and by documentation of the facts. Initial investigation will commence immediately and the following information may be included in the Investigation Information as appropriate.

P. Ex. 24, at 1.

The policy suggests that the additional investigation should include: interviewing the resident involved; assessing the cognitive status of that resident; interviewing the assigned care giver, care givers in the immediate area, and remote or potential witnesses such as visitors, family and roommates; observing the environment where the incident occurred; doing a physical exam of the resident; diagnostic work, if needed; and a comprehensive record review. This policy goes on to direct employees that as soon as there is "reasonable cause" to suspect abuse/neglect or there is a substantial injury of unknown cause, the abuse hot line should be called. Id.

In the case of Resident 26, the Administrator was not given the incident reports filled out by NA Oliver, Nurse Mullen, or NA Dunning. The Adminstrator's designee, ADNS Donlan failed to document the facts of her interview with staff. Petitioner's staff failed to do any other investigative work such as examining Resident 26 or interviewing other possible witnesses. I find that the incident reports created by NA Oliver and Nurse Mullen created reasonable cause to suspect abuse and the hot line (State agency) was not notified until some time later when Nurse Mullen reported. Similarly, with respect to Residents 25 and 4, their complaints were not looked at until at least 10 days after the complaints, at which time only a superficial review was done. While the Administrator claims to have talked to Resident 7 after his complaint, little in the way of investigation as set out in Petitioner's policies was done or documented. Petitioner failed to do anything to immediately protect the residents by assuring that NA Hall and NA Stinson would not be working with residents until the allegations were thoroughly investigated. I also note that Nurse Mullen was concerned after her reports regarding Resident 26 to ADNS Donlan received little response and researched the reporting required by the State of Washington. She proceeded to report to the State agency and scheduled an in-service for the staff on mandatory reporting. Based on these failures to protect residents from potential future harm and to investigate and report, I can only conclude that Petitioner failed to develop and implement policies to prevent abuse and neglect.

5. Findings with respect to Residents 27 and 28 are unnecessary to resolve the question of immediate jeopardy in this case.

CMS's allegations regarding Residents 27 and 28 relate to Petitioner's failure to investigate thoroughly unexplained bruising incurred by these residents. CMS's claims regarding these alleged deficient practices are less clear than those involving Residents 26, 25, 4, and 7, as discussed above. The regulations do require that a resident's injuries from an unknown source be investigated and reported. 42 C.F.R. �483.13(c). With respect to the bruises of Resident 27 and 28, however, the bruises could be explained as a result of these particular residents' physical conditions and fragile skin. P. Ex. 3, at 166- 69, 277-80, 295-96, and 334. Moreover, Resident 27 was able to be interviewed and would have been able to report abuse had it occurred. Nonetheless, because my findings with respect to Residents 26, 25, 4 and 7 are sufficient to support my finding with respect to the severity of the noncompliance, I make no findings with respect to Residents 27 and 28.

B. Petitioner's deficiencies posed immediate jeopardy to its residents.

In this case, Petitioner is primarily concerned not with the penalty which has already been imposed (loss of NATCEP), but with CMS's assignment of immediate jeopardy. Normally in SNF and NF cases, CMS's assignment of scope and severity is not an initial determination to which appeal rights attach. 42 C.F.R. � 498.3(b)(14). When, however, an immediate jeopardy or other assignment of substandard quality of care leads to the loss of NATCEP, the facility can challenge CMS's determination of the scope and severity of the deficiencies. It is clear that if a civil money penalty (CMP) had been imposed, I could not overturn CMS's determination of immediate jeopardy unless it is clearly erroneous. 42 C.F.R. � 498.60(c)(2). It is not clear, absent a CMP, what standard I must use to evaluate CMS's determination of immediate jeopardy. In order, nonetheless, to find that the loss of NATCEP was incorrect, I would have to conclude that a facility's deficiencies did not constitute a substandard quality of care. 42 C.F.R. � 498.3(b)(16). The lowest level of scope and severity that still constitutes a substandard quality of care is "widespread potential for more than minimal harm with no actual harm." 42 C.F.R. � 488.301. As explained below with respect to my immediate jeopardy finding, Petitioner's unreported allegations involving Residents 26, 25, 4, and 7 and Petitioner's systemic failure to adequately implement its anti-abuse policies presented its residents with widespread potential for more than minimal harm and, by a preponderance of the evidence, immediate jeopardy.

Immediate jeopardy must be viewed within the context of each case. As the Board has previously held, "because the definition of "immediate jeopardy' requires that there be some causal connection between the facility's noncompliance and the existence of serious injury or the threat of injury, the nature and circumstances of a facility's noncompliance are of obvious importance to the evaluation." Spring Meadows Health Care Center, DAB No. 1966 (2005). The question of whether immediate jeopardy should attach to Petitioner's deficiencies is not as clear here as in many other cases. Moreover, I found Petitioner's argument interesting that the surveyors left the facility for a holiday weekend without notifying the facility that an immediate jeopardy deficiency had been discovered. P. Br. at 24. The record, however, does not indicate at what point the surveyors determined immediate jeopardy was present. Other factors, moreover, support CMS's finding of immediate jeopardy. For example, Resident 7 clearly was handled roughly and, had Petitioner investigated more thoroughly, Petitioner may have learned that Residents 25, 26 and 4 were also handled roughly to the point of abuse.

Petitioner's response to the incidents themselves prevent me from concluding that the assignment of immediate jeopardy was erroneous. Employees about whom allegations had been made were not kept from resident care duties while an investigation ensued. NA Hall left the facility for a period of time because he was alleged to have hurt his back. Petitioner, however, was willing to have him return with light duty work but with continued patient interaction. Petitioner's investigation of the occurrence was limited to asking NA Oliver if she thought NA Hall had abused Resident 26. This situation presented the distinct possibility that NA Hall had previously - and could again - maltreat residents. With respect to NA Stinson, Petitioner did not even look into the complaints from Residents 25 and 4 until more than 10 days after the complaints were made. Because it appears that some of Petitioner's nursing employees felt that other nurse aides were rough with residents and Petitioner allowed the rough employees to continue working with residents even after complaints had been made, employees may have viewed Petitioner as not particularly serious about preventing abuse. Such an atmosphere would be much more likely to engender incidents of serious injury, harm, impairment, or death to a resident. Finally, CMS was able to show that Petitioner's handling of the allegations regarding Residents 26, 25, 4, and 7 reflected a fundamental or systemic misunderstanding of its obligations under 42 C.F.R. �483.13(c). The facility employees had shown an inability to comply with reporting and investigation requirements during these several occurrences. All nurse aides had reporting requirements under Washington state law. Yet, no one reported to the State until Nurse Mullen independently studied her reporting requirements. And even when the nurse aides advised Petitioner's ADNS assigned to consider allegations of abuse in the situations of Residents 26, 25, 4, and 7, the system broke down. By failing to report as required, Petitioner almost insured that a thorough investigation was not done. Because an employee was implicated in these situations, the State agency may have chosen to investigate or, at a minimum, wanted an opportunity to review Petitioner's report of its own investigation. Without an adequate investigation, no one will ever really know whether these residents were actually handled roughly to the point of abuse. Therefore, I cannot conclude that CMS's assignment of immediate jeopardy to Petitioner's deficiencies under 42 C.F.R. �483.13(c) is clearly erroneous.

V. Conclusion

CMS had the authority to impose a penalty on Petitioner for its failure to comply substantially with Medicare requirements as found during a survey completed on May 29, 2003. CMS's assignment of immediate jeopardy to Petitioner's noncompliance is not clearly erroneous. Pursuant to Section 1819(f)(2)(B)(iii) of the Act, the loss of Petitioner's NATCEP was statutorily required.

Anne E. Blair

Administrative Law Judge

1. Petitioner submitted a transcript of a hearing before a Washington State Administrative Law Judge (ALJ) on issues very similar to the instant issues and for which it seems all those with knowledge of the case appeared and testified under oath and Petitioner's same counsel as in this case had an opportunity to cross-examine the witnesses. While I do not generally believe that a State agency hearing is a substitute for a de novo hearing at the Civil Remedies Division (CRD), Petitioner's prior hearing was unusual in that the issues closely matched those at issue here. Plus, Petitioner submitted the transcript for my review (P. Ex. 3). I have relied substantially on that transcript for this Decision.

2. Petitioner's Administrator McKenna apparently did not see these reports until after the start of the complaint survey. P. Ex. 3, at 381. The statements had been appended to NA Hall's worker's compensation report. Id.; see also, Id., at 393.