Generations at Peoria, DAB CR5819 (2021)

DECISION

The Centers for Medicare & Medicaid Services (CMS) determined that Generations at Peoria (Petitioner or facility), a skilled nursing facility (SNF) participating in the Medicare program, was in substantial noncompliance with 42 C.F.R. § 483.12(a)(1) and that such noncompliance resulted in immediate jeopardy for its residents.  CMS imposed a per-day civil money penalty (CMP) of $9,092 for one day of immediate jeopardy-level noncompliance on August 24, 2019, and a per-day CMP of $110 for 19 days of noncompliance below the immediately jeopardy-level from August 25, 2019 through September 12, 2019, for a total CMP of $11,182.00.  Petitioner requested a hearing to dispute CMS's determination and the imposition of a CMP.  During this proceeding, CMS also alleged that Petitioner was noncompliant with 42 C.F.R. § 483.25(d)(2).  For the reasons explained below, I conclude that Petitioner was deficient regarding 42 C.F.R. § 483.25(d)(2) at the immediate jeopardy level, but that Petitioner was not deficient regarding 42 C.F.R. § 483.12(a)(1).  I also agree that the CMPs imposed are appropriate under applicable regulations.

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I.  Legal Framework

The Medicare program "provides basic protection against the costs of . . . related post-hospital . . . care" for individuals over the age of 65 who are eligible for Social Security retirement benefits and for individuals under 65 who meet other criteria.  42 U.S.C. § 1395c.  Post-hospital care includes extended care services provided at an SNF.  42 U.S.C. §§ 1395f(a)(2)(B), 1395x(h)-(i).

For Medicare program purposes, an SNF is an institution that is primarily engaged in providing skilled nursing care and/or rehabilitation services for its residents, but is not primarily engaged in the care and treatment of mental diseases.  42 U.S.C. §§ 1395x(j), 1395i-3(a)(1).  Because an SNF is a "provider of services" in the Medicare program, each SNF that participates in the program must file a provider agreement with the Secretary of Health and Human Services (Secretary).  42 U.S.C. §§ 1395cc(a), 1395x(u).  Further, a participating SNF must meet a variety of ongoing requirements related to how it provides services, maintains the rights of its residents, and administers its facility.  42 U.S.C. § 1395i-3(a)(3), (b)-(d); 42 C.F.R. pt. 483, subpt. B.1

When an SNF fails to meet a statutory or regulatory participation requirement, then the SNF has a "deficiency."  42 C.F.R. § 488.301; see 42 U.S.C. § 1395i-3(h)(1).  "Noncompliance" means "any deficiency that causes a facility to not be in substantial compliance."  42 C.F.R. § 488.301; see also 42 U.S.C. § 1395i-3(h)(3).  To maintain "substantial compliance," an SNF's deficiencies may "pose no greater risk to resident health or safety than the potential for causing minimal harm."  42 C.F.R. § 488.301.

Broadly, noncompliance that subjects an SNF to enforcement remedies is divided into two levels.  One level is comprised of deficiencies that immediately jeopardize the health or safety of residents and the other level is composed of deficiencies that do not.  42 U.S.C. § 1395i-3(h)(1).  "Immediate jeopardy" exists when "the provider's noncompliance 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.

The Secretary contracts with state agencies to conduct surveys to determine whether SNFs are in substantial compliance.  42 U.S.C. §§ 1395aa(a), 1395i-3(g); 42 C.F.R. § 488.10.  These surveys can be unannounced surveys that occur at least once every 15 months or can be in response to a complaint.  42 U.S.C. § 1395i-3(g).  When the results of a survey show that an SNF is not in substantial compliance with program participation requirements, the Secretary may impose enforcement remedies on the SNF.  42 U.S.C. § 1395i-3(h)(2); 42 C.F.R. § 488.406.  When CMS selects an enforcement remedy to

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impose on an SNF, it determines the scope (i.e., the number of residents affected or potentially affected) and severity (i.e., the degree of harm or potential harm) for each deficiency.  See 42 C.F.R. § 488.404(a)-(b);2 see also 42 U.S.C. § 1395i-3(h)(2)(B)(ii)(III)(bb).

One such remedy is a CMP.  42 U.S.C. § 1395i-3(h)(2)(B)(ii).  CMS may impose a per‑instance CMP for each instance of an SNF's noncompliance, or a per‑day CMP for the number of days an SNF is not in substantial compliance.  42 U.S.C. § 1395i‑3(h)(2)(A), (h)(2)(B)(ii)(I); 42 C.F.R. § 488.430(a).  For CMPs assessed on or after November 5, 2019, and for deficiencies that occurred after November 2, 2015, the CMP amounts may range as follows:  $2,194 to $21,933 for per-instance CMPs; $110 to $6,579 per day for less serious noncompliance; or $6,690 to $21,933 per day for more serious noncompliance that poses immediate jeopardy to the health and safety of residents.  45 C.F.R. § 102.3 (2020); 84 Fed. Reg. at 59,459, 59,559, (Nov. 5, 2019); see 42 C.F.R. § 488.438(a)(1) (providing original CMP amounts before statutory inflation adjustments).

If CMS imposes a CMP based on a finding of substantial noncompliance, then the SNF may request a hearing before an administrative law judge (ALJ) to challenge CMS's initial determination of noncompliance that led to the imposition of an enforcement remedy and/or the level of noncompliance (if a successful challenge to the level would affect the range of CMP amounts imposed on the SNF).  42 U.S.C. §§ 1320a-7a(c)(2), 1395i‑3(h)(2)(B)(ii); 42 C.F.R. §§ 488.330(e)(3)(ii), 488.408(g)(1), 488.434(a)(2)(viii), 498.3(b)(13)-(14), (d)(10); see also 5 U.S.C. §§ 554, 556.  However, CMS's choice of remedies is not reviewable.  42 C.F.R. §§ 488.438(e)(2), 488.408(g)(2), 498.3(b)(13).

If an SNF challenges the existence of a deficiency, CMS must make a prima facie case that the SNF failed to substantially comply with federal participation requirements and, if this occurs, the SNF must then prove substantial compliance by a preponderance of the evidence.  Hillman Rehab. Ctr., DAB No. 1611 at 8 (1997); see Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004); Batavia Nursing & Convalescent Ctr., DAB

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No. 1904 (2004), aff'd, Batavia Nursing & Convalescent Ctr. v. Thompson, 129 F. App'x 181 (6th Cir. 2005); Emerald Oaks, DAB No. 1800 (2001).  If an SNF challenges CMS's determination as to the level of noncompliance, CMS's determination must be upheld unless it is clearly erroneous.  42 C.F.R. § 498.60(c)(2).

If an ALJ concludes that there was a basis for imposing a CMP on an SNF, then the SNF may dispute the amount of the CMP.  The ALJ's review of the CMP amount is limited to considering the statutory and regulatory factors for setting a CMP amount.  42 C.F.R. § 488.438(e)(3); see 42 U.S.C. §§ 1320a-7a(d), 1395i-3(h)(2)(B)(ii)(I); 42 C.F.R. § 488.438(f).  The ALJ may not reduce a CMP to zero.  42 C.F.R. § 488.438(e)(1).

Either the SNF or CMS may request Departmental Appeals Board (DAB) review of an ALJ's decision.  42 C.F.R. § 498.80.

II.  Background and Procedural History

Petitioner is an SNF participating in the Medicare program.  On August 25, 2019, the facility alerted the Illinois Department of Public Health (IDPH) of an incident involving one of its residents, Resident 1, that potentially involved abuse.  CMS Ex. 10.  An IDPH surveyor entered the facility on August 27, 2019, and began a complaint survey, which was completed on September 13, 2019.  CMS Exs. 1, 17, 22.  Based on the survey, IDPH found that Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(a)(1) (Tag F600), which requires that a facility ensure a resident's right to be free from abuse and that such noncompliance had immediately jeopardized the health and safety of its residents (scope and severity level "J").  CMS Ex. 1.  Further, IDPH found that, although Petitioner abated the immediate jeopardy situation on August 25, 2019, the facility remained out of substantial compliance as it continued to monitor the effectiveness of its efforts to reeducate its staff and implement screening for new residents to assess them for aggressive, harmful, and inappropriate behaviors and to devise care plans accordingly.  CMS Ex. 1 at 2-3.

The IDPH notified Petitioner on September 27, 2019, that it recommended CMS impose various remedies, including a CMP.  See DAB E-File Document #1(b).  IDPH surveyors revisited Petitioner's facility on October 16, 2019, and determined that Petitioner had returned to compliance as of September 13, 2019.  CMS Ex. 4 at 1; CMS Ex. 7 at 2.

Petitioner availed itself of IDPH's Informal Dispute Resolution process to dispute the deficiency under 42 C.F.R. § 483.12(a)(1) during the September 13, 2019 survey, as well as other deficiencies cited during separate Health, Life Safety Code, and Complaint surveys completed August 2 and August 6, 2019.  See CMS Exs. 2, 3, 4, 19.  The Informal Dispute Resolution reviewer recommended upholding the deficiency under 42 C.F.R. § 483.12(a)(1), but deleting the deficiencies cited during the other surveys.  CMS Ex. 19 at 11, 21, 28.

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Based on the September 13, 2019 survey, and consistent with the IPDH Informal Dispute Resolution recommendation, on November 15, 2019, CMS issued an initial determination that Petitioner was not in substantial noncompliance with 42 C.F.R. § 483.12(a)(1).  CMS Ex. 7.  CMS imposed a per-day CMP as follows:  $9,092 for one day of immediate jeopardy-level substantial noncompliance on August 24, 2019; and $110 per day for 19 days of substantial noncompliance below the immediately jeopardy-level from August 25, 2019 through September 12, 2019.  CMS Ex. 7 at 2.  CMS also notified Petitioner that it was prohibited from conducting its own Nurse Aide Training and/or Competency Evaluation Program (NATCEP).  CMS Ex. 7 at 4.  Finally, the initial determination advised Petitioner that it could request Independent Informal Dispute Resolution and/or a hearing before an ALJ.  CMS Ex. 7 at 4-6.

Petitioner requested Independent Informal Dispute Resolution and, on January 16, 2020, Maximus Federal Services, a CMS contractor, concluded that the deficiency cited in CMS's initial determination should remain as originally issued.  CMS Ex. 20.

Petitioner timely requested a hearing to dispute the deficiency found in the initial determination as well as the amount of the CMP.  In the hearing request, Petitioner also requested that CMS refrain from using the disputed deficiency "to calculate the Facility's 5 Star Quality Rating on CMS' Nursing Home Compare website."  Hearing Req. at 1-2.  Petitioner further requested that CMS refrain from posting or remove the posting of its "'consumer alert' or a red hand indicating a finding of Abuse (F600) at the Facility."  Hearing Req. at 1-2.  In addition to making these requests, Petitioner contested the imposition of sanctions, in which it included the impact to Petitioner's 5 Star Quality Rating and the posting of a "consumer alert" warning to CMS's Nursing Home Compare website.  Hearing Req. at 2-3.

On November 27, 2019, the Civil Remedies Division issued my Standing Prehearing Order, which established deadlines and procedures for prehearing submissions.  In response to my Standing Prehearing Order, CMS filed, on February 25, 2020, a prehearing hearing brief (CMS Br.) incorporating motions for summary judgment and for partial dismissal.  CMS moved that I dismiss, under 42 C.F.R. § 498.70(b), Petitioner's hearing request as it pertained to Petitioner's request that CMS refrain from using the disputed deficiency to calculate the Facility's 5 Star Quality Rating on CMS's Nursing Home Compare website.  CMS asserted that Petitioner had no right to appeal the Nursing Home Compare website's Star Rating or any consumer alerts CMS may post.  CMS Br. at 15-16.  CMS further stated that the facts of this case also supported "a deficiency finding under 42 C.F.R. § 483.25(d)(2)" and noted that, in this appeal, it would also rely upon this regulatory deficiency to support the remedies it had imposed.  CMS Br. at 2 n.1.  Along with its brief, CMS filed 28 exhibits, including the written direct testimony of its two proposed witnesses, IPDH surveyor Dawn Plice, R.N., and Christine Vause, R.N., a CMS Supervisory Health Insurance Specialist (CMS Exs. 22 and 24, respectively).

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On or before March 31, 2020, CMS added information concerning its finding of immediate jeopardy level noncompliance related to resident abuse to the webpage it maintains for Petitioner's facility on its Nursing Home Compare website.3   Specifically, CMS added a red circle with a white hand under Petitioner's name.4   P. Ex. 1 at 1.  CMS also provided a link to three survey inspection reports, including the September 13, 2019 survey.  P. Ex. 1 at 2.  Further, CMS provided ratings by awarding between one and five stars for various categories in relation to Petitioner.  Petitioner received an overall rating of two stars, which CMS designates as "Below Average."  P. Ex. 1 at 1.

On March 31, 2020, Petitioner filed a prehearing brief (P. Br.), which included a response to CMS's summary judgment motion, along with five exhibits.  Petitioner did not submit written direct testimony from any witnesses.  Petitioner included objections to CMS Exs. 12 and 18 on hearsay grounds.  In its exhibit and witness list, Petitioner stated that it "reserved the right" to cross-examine any witnesses called by CMS.  CMS filed a reply brief (CMS Reply) and a response to Petitioner's evidentiary objections.  On August 14, 2020, Petitioner requested that I issue an injunction to CMS related to the Nursing Home Compare website.  P. Req. for Injunctive Relief.  CMS filed a response to that motion.

On September 22, 2020, I granted CMS's motion for partial dismissal, explaining that, under 42 U.S.C. § 1395i-3(g)(5), the requirement that CMS provide SNF survey information, including statements of deficiencies, to the public does not include the right to a hearing to contest the publication of that information.  I also denied Petitioner's request for injunctive relief as beyond my authority and overruled Petitioner's objections to CMS Exs. 12 and 18.  Additionally, I observed that CMS provided written direct testimony for two witnesses but Petitioner had only vaguely stated that it "reserved the right" to cross-examine any of CMS's witnesses.  I stated that this was insufficient under my Standing Prehearing Order, which required Petitioner to expressly request to cross-examine CMS's witnesses.  Standing Prehearing Order ¶ 11; Civil Remedies Division Procedures §§ 16(b), 19(b).  I gave Petitioner until October 7, 2020, to request to cross-examine CMS's witnesses.  Petitioner did not file such a request.

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III.  Decision on the Record

As indicated above, I previously overruled Petitioner's objections to CMS's proposed exhibits and CMS did not object to any of Petitioner's exhibits.  Therefore, I admit all of the parties' proposed exhibits into the record.

I required the parties to submit the written direct testimony for the witnesses they wanted to present in this case and informed the parties that I would only hold a hearing if a party requested to cross-examine a witness from whom written direct testimony had been submitted.  Standing Prehearing Order ¶¶ 7(d)(iv), 10-12; Civil Remedies Division Procedures (CRDP) §§ 16(b), 19(b).  Petitioner did not submit written direct testimony for any witnesses and Petitioner did not request to cross-examine either of CMS's witnesses.  Therefore, I issue this decision based on the written record.  Standing Prehearing Order ¶ 13; CRDP § 19(d).

IV.  Issues

1)  Whether Petitioner failed to substantially comply with the requirements of 42 C.F.R. § 483.12(a)(1), relating to a resident's right to be free from abuse;

2) Whether Petitioner failed to substantially comply with the requirements of 42 C.F.R. § 483.25(d)(2), relating to accident prevention and adequate supervision;5

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3)  If Petitioner was not in substantial compliance with program requirements, whether CMS's determination that the noncompliance immediately jeopardized the facility's residents is clearly erroneous; and

4)  If Petitioner was not in substantial compliance, whether the CMP that CMS imposed is appropriate under the factors in 42 C.F.R. § 488.438(f).

V.  Findings of Fact

1. Petitioner is an SNF located in Peoria, Illinois that participates in Medicare.  CMS Ex. 1 at 1; P. Ex. 1 at 1.

Resident 16

2. Resident 1 was originally admitted to the facility on May 18, 2016, discharged for a time to a hospital, and then readmitted to the facility on January 21, 2019.  CMS Ex. 14 at 1.  During the events at issue in this case, Resident 1 was a 73-year old female.  CMS Ex. 14 at 1.  Upon admission and during her stay at the facility, Petitioner had numerous diagnoses, including sequelae of cerebral infarction (damage to brain tissues from oxygen deprivation, such as from a stroke), type II diabetes, catatonic schizophrenia, major depressive disorder, anxiety disorder, panic disorder, adult failure to thrive, unspecified dementia without behavioral disturbance, generalized muscle weakness, and abnormalities of gait and mobility.  CMS Ex. 14 at 2.
3. During her stay at the facility, Petitioner assessed Resident 1 as having an altered neurological status, being at risk for falls due to a prior stroke, being at risk for symptoms of major depressive disorder, having urinary and bowel incontinence due to impaired mobility, having impaired cognitive function, having behavioral issues, aggression, being resistant to care due to her diagnoses of dementia, schizophrenia, and depression, and being dependent on facility staff for meeting her emotional, intellectual, physical, and social needs due to cognitive deficits.  Petitioner instituted a care plan to address those limitations as well as others.  CMS Ex. 14 at 12-36.
4. A July 31, 2019 Minimum Data Set (MDS) indicated that Resident 1 scored a three out of 15 in a Brief Interview for Mental Status (BIMS) and required extensive assistance with bed mobility and transferring between surfaces, and assistance with walking.  CMS Ex. 14 at 42, 50.

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Resident 4

5. Resident 4 was originally admitted to the facility on July 26, 2017, after discharge from a hospital.  CMS Ex. 15 at 1; P. Ex. 2.  Resident 4 was discharged to a hospital for 11 days and readmitted to the facility on April 22, 2018.  CMS Ex. 15 at 1.  During the events at issue in this case, Resident 4 was a 59-year old male.  CMS Ex. 15 at 1.  Upon admission and during his stay, Resident 4 had numerous diagnoses, including unspecified dementia without behavioral disturbance, Parkinson's disease, major depressive disorder, a history of traumatic brain injury, generalized muscle weakness, abnormalities of gait and mobility, and a lack of coordination.  CMS Exs. 15 at 1-2.
6. Before Petitioner admitted Resident 4, Petitioner obtained a criminal background check conducted by the Illinois State Police, Bureau of Identification.  P. Ex. 3 at 1.  The background check showed that Resident 4 had been sentenced to 60 days imprisonment in 1990 based on a conviction for retail theft of property under $150.  P. Ex. 3 at 5.  The background check also revealed that Resident 4 had been arrested in 1992 for resisting a peace officer.  However, the Peoria County State's Attorney's Office declined to proceed on that charge; instead, Resident 4 was found guilty of obstruction of justice and sentenced to 90 hours of public service and 12 months of probation.  P. Ex. 3 at 5.  The background check did not identify any criminal behavior by Resident 4 after 1992.  P. Ex. 3 at 5.
7. Petitioner assessed Resident 4 as being at risk for falls due to his unsteady gait, having difficulty communicating due to a decline in cognitive status as a result of a traumatic brain injury and a cerebrovascular accident, having urinary and bowel incontinence, having neurological deficiencies, and being dependent on facility staff for meeting his emotional, intellectual, physical, and social needs.  CMS Ex. 15 at 7, 10, 14-16, 24.
8. On August 1, 2017, Petitioner assessed Petitioner as at risk for mood changes related to depression and dementia.  CMS Ex. 15 at 8.
9. On September 6, 2018, Petitioner assessed Resident 4 as being at risk of elopement but did not include as an intervention that facility staff should supervise Resident 4 more often.  CMS Ex. 15 at 21.
10. On June 7, 2019, Petitioner documented in Resident 4's care plan that he had "potential to be verbally aggressive (cussing at staff)" and had "Poor impulse control."  CMS Ex. 15 at 25.  Based on this incident, Petitioner's care plan identified, as one of Resident 4's goals, that he would "verbalize understanding of [his] need to control verbally abuse behavior."  CMS Ex. 15 at 25.

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11. Petitioner's care plan for Resident 4 identified interventions, including:  assessing physical or environmental factors that may precipitate a change in his mood, allowing him to vent his feelings or frustrations, redirecting him to appropriate areas, engaging him in tasks to keep him occupied, administering his medications, analyzing "key times, places, circumstances, triggers, and what de-escalates behavior," assessing his coping skills and support system, giving him as many choices as possible about care and activities, providing positive feedback for good behavior, and emphasizing the positive aspects of compliance.  CMS Ex. 15 at 8, 21, 25.

August 24, 2019 Incident

12. In a General Progress Note entry made in Resident 1's records on August 24, 2019, at 9:40 p.m., Licensed Practical Nurse (LPN) V2 stated that "upon entering room, resident[']s bed noted to [be] sideways toward center of the room, the blankets had been moved around, her hair noted to be matted on both sides of her face, petechi to left forehead and cheek, gown was at her waist, the depend was undone on one side and pushed down below the left knee, bruise to inner left thigh, red area and abrasion to right groin area."  CMS Ex. 14 at 6.
13. In another General Progress Note entry made on August 24, 2019, V2 provided a chronology of events following the previous entry:  the facility administrator was notified; at 10:40 p.m. V2 called and received a physician order to send Resident 1 to the Emergency Room; at 10:43 p.m. V2 called the emergency number for Resident 1's state guardian; at 10:50 p.m. V2 notified the police department; at 11:04 p.m. V2 notified "AMT" of the need for transport and at 11:10 p.m. "AMT" arrived to transport Resident 1; at 11:15 p.m. the police arrived; and at 11:25 p.m. "AMT" left with Resident 1.  CMS Ex. 14 at 6.
14. On August 25, 2019, at 12:20 a.m., the facility's administrator sent an "Initial Report to IDPH Regional Office" by email and fax in which she notified IDPH of the following "Occurrence" on August 24, 2019:  "Report made to administrator that [Resident 1] was found with blankets messy, hair wet and matted and gown up and depends down around ankles.  Staff reported per abuse policy and resident was sent to emergency room for evaluation.  Police notified."  CMS Ex. 10.
15. A registered nurse at the Emergency Room documented that Resident 1 stated that "[s]ome guy had sex with me" and that staff from Petitioner's facility said that [b]lack pubic hairs were noted in the bed with [Resident 1].  Semen was noted to her glasses and hair."  CMS Ex. 14 at 88.

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16. Resident 1 described for Emergency Room staff some of the events during the attack:  "He kissed my lip one time while I was trying to push him away"; and  "When I tried to get up, he would push me back down."  CMS Ex. 14 at 89-90.
17. Emergency room staff performed both physical and rape kit examinations, which indicated that Resident 1 did not receive any substantial injuries.  Resident 1 received prophylaxis for gonorrhea, chlamydia, trichomonas, and HIV, as well as a vaccination for Hepatitis B.  Resident 1 was discharged back to Petitioner's facility on August 25, 2019.  CMS Ex. 14 at 88-113.

Petitioner's Investigation and Actions Related to Resident 4

18. Petitioner investigated and issued an undated Final Report to IDPH Regional Office.  The investigation found the following (CMS Ex. 11; see also CMS Ex. 18 at 1):
    1. V3, a CNA normally assigned to Resident 1, assisted Resident 1 into bed by 7:00 p.m. on August 24, 2019, and ensured that Resident 3 was resting comfortably and fully covered;
    2. LPN V2 entered Resident 1's room at 8:00 p.m. to provide medications to Resident 1's roommate and V2 observed Resident 1 as resting comfortably and fully covered;
    3. V3 along with CNA V4 entered Resident 1's room at 9:45 p.m. and observed Resident 1's clothing had been disturbed and her hair was matted to her head;
    4. V4 reported the situation to an unidentified nurse who came to Resident 1's room and decided to notify the facility administrator because Resident 1 "does not have the physical ability to move in this manner in bed";
    5. A "[b]ody assessment of [Resident 1] showed hair on right side matted and appears wet and sticky.  Inner groin on right and left side reddened and vaginal area appears swollen";
    6. Resident was sent to the ER for further evaluation; however, while awaiting transport, facility staff spoke with Resident 1 and Resident 1 denied anything had happened and that she had been sleeping;
    7. ER records indicated that "it was likely that intimate contact occurred";

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8. Resident 1 was discharged from the ER back to the facility because Resident 1 stated that she felt safe there;
9. Upon her return, Resident 1 was interviewed by facility staff and Resident 1 said "that a man she had seen before was on top of her.  She described him as a big African American man.  She didn't know how he entered her room, because she woke up to him on top of her.  She stated that she told him to stop, but that he didn't say anything to her.  She stated that he touched her, putting his private parts inside her private parts.  [Resident 1] said she did not yell because she was afraid that he would hurt her";
10. The investigation narrowed potential suspects of the assault based on the timeframe of staff observation (i.e., between 8:00 p.m. and 9:45 p.m.) and ambulatory males with access to the secured dementia patient hallway where Resident 1's room was located;
11. The investigation revealed that one of the two ambulatory male residents, who was white, had been watching television in a room near the nursing station during the critical timeframe;
12. Resident 4 was not accounted for during the critical timeframe and V3, who had been assigned to Resident 4, could only corroborate that she had seen him before 8:00 p.m. and nothing appeared unusual;
13. The investigation considered and ruled out the two male facility employees who were on duty during the critical time in part because Resident 1's room was on a restricted access floor and electronic records indicated that neither male employee had been on the hall during the critical timeframe;
14. The facility placed Resident 4 on 1:1 monitoring starting at 10:20 p.m. on August 24, 2019;
15. When interviewed, Resident 4 was confused and denied involvement with Resident 1;
16. Resident 4 did not have a roommate;
17. Resident 1's roommate cannot hear and could not be interviewed;
18. The investigation concluded that the "[f]acility has been able to determine that [Resident 1] had engaged in sexual activity, but is unable to determine nature of the activity.  Further, the staff has narrowed the possible males involved and believes that resident [4] was involved."

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19. On August 26, 2019, Resident 4's care plan was updated to reflect that he had the potential to be physically aggressive, related to his dementia, depression, cerebral infarction, and poor impulse control.  CMS Ex. 15 at 26.
20. In an August 26, 2019 progress note, the facility documented that since August 24, 2019 the facility assigned 1:1 supervision and that, at 9:30 p.m. the prior day, Resident 4 "became upset with staff outside his room . . . began using profanity, stated he had been here 11 years and was getting the F out."  He also took all clothes and shoes from his closet, as well as personal items from his drawers, and put them on his bed.  However, staff was able to redirect Resident 4 with TV and pictures that he had drawn.  CMS Ex. 15 at 111.
21. In a progress note made at 3:35 p.m. on August 26, 2019, Resident 4 was "becoming increasingly upset/agitated," and was "[y]elling at staff 'Get [asterisks omitted] away from me.'"  The note describes Resident 4 as "trying to get out of sight of staff walking quickly ducking into bathroom" and "[d]ifficult to re-direct or calm down."  CMS Ex. 15 at 111.
22. At 11:40 a.m. on August 27, 2019, the facility discharged Resident 4 to a local hospital and Petitioner did not readmit him.  CMS Ex. 15 at 110, 112.

VI.  Conclusions of Law and Analysis

1.  Because the record does not show that the facility could foresee that Resident 4 might abuse another resident, Petitioner was in substantial compliance with 42 C.F.R. § 483.12(a)(1).

"[S]killed nursing facility[ies] must protect and promote the rights of each resident, including . . . [t]he right to be free of physical or mental abuse."  42 U.S.C. § 1395i-3(c)(1)(A)(ii).  The Secretary's regulation implementing this requirement states, in pertinent part that "[t]he resident has the right to be free from abuse, neglect, misappropriation of resident property, and exploitation as defined in this subpart."  42 C.F.R. § 483.12.  The regulations define abuse as "the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish" and "includes verbal abuse, sexual abuse, physical abuse, and mental abuse including abuse facilitated or enabled through the use of technology.  Willful, as used in this definition of abuse, means the individual must have acted deliberately, not that the individual must have intended to inflict injury or harm."  42 C.F.R. § 483.5.

As described in greater detail below, these participation requirements were formerly codified at 42 C.F.R. § 483.13(b) and (c).  In reviewing cases involving resident-on-resident abuse, the DAB has described that:

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The regulation at section 483.13(b) flatly states that all residents have a right to be free of physical abuse, so theoretically the analysis of noncompliance under that provision could end with the fact that Resident 2 was physically abused.  The [DAB] has nevertheless recognized "a distinction between 'staff-to-resident' abuse and 'resident-to-resident' interactions for purposes of determining compliance with section 483.13(b)."  The reason is that a facility "may not disavow the wrongdoing of its staff" and therefore any "considerations of foreseeability are inapposite when . . . staff abuse has occurred."  By contrast, while residents may harm each other, the facility's responsibility for protecting them from each other cannot extend to "entirely unforeseeable risks."  Hence, the [DAB] held that "determining whether a facility failed to protect a resident's right to be free from abuse when another resident behaved harmfully depends on whether the facility staff had a basis to be aware that such behavior might occur and yet left the resident vulnerable to it."

The Bridge at Rockwood, DAB No. 2954 at 24 (2019) (internal citations omitted); see also Kindred Transitional Care and Rehab – Greenfield, DAB No. 2792 at 12-15 (2017); Woodstock Care Center, DAB No. 1726 at 25-35 (2000), aff'd, Woodstock Care Ctr. v. Thompson, 363 F.3d 583 (6th Cir. 2003).

CMS determined that Petitioner violated the abuse prevention requirement set forth in 42 C.F.R. § 483.12(a)(1) based on the evidence showing that Resident 4 forcibly engaged in nonconsensual sexual contact, including intercourse, with Resident 1 in her room at the facility.  CMS Ex. 7 at 1-2; CMS Br. at 9-13.  In this case, CMS contends that Petitioner should have foreseen that Resident 4 might abuse another resident but failed to prevent Resident 1 from being abused.

In support of its position, CMS asserts that the standard of care for SNF residents, such as Resident 1, with dementia or incontinence, is for facility staff to conduct rounds every two hours but, on the evening of the attack, Petitioner's staff did not complete rounds on Resident 1 for approximately two hours and 45 minutes to three hours.  CMS acknowledges that the attack occurred within a shorter timeframe, between 8:00 p.m. and 9:30 p.m., but asserts that had staff acted within the standard of care and checked on Resident 1 more frequently, Resident 4 might have been thwarted in his efforts to force himself on Resident 1 sexually.  CMS also asserts that Resident 4, who cannot be accounted for during that period of time, had not been checked on for at least an hour and a half.  CMS further asserts that it would be highly unusual for Resident 4's violent conduct to "come out of nowhere" and that, because he had poor impulse control and a

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history of traumatic brain injury, he was at risk for behaving unpredictably and "should have been checked more frequently for his safety and for that of others."  CMS Br. at 12.

As I explain later in this decision, the factors outlined by CMS, as well as the remainder of the record, strongly support its determination that Petitioner did not adequately supervise Resident 4 and that Petitioner was thus not in substantial compliance with the Medicare participation requirements relating to quality of care and accident prevention.  See 42 C.F.R. § 483.25(d).  However, neither these factors, nor the remainder of the record, indicate that it was sufficiently foreseeable that Resident 4 was predisposed to sexually abuse other residents at the facility.

Prior to Resident 4's admission to the facility, Petitioner obtained a criminal background check, which showed that Petitioner had not been arrested or charged with a crime in more than 25 years.  See P. Ex. 3.  Although Resident 4 was noted to have poor impulse control and the potential to be verbally aggressive with staff as a result of interaction on June 7, 2019, just two months before the incident at issue, that behavior alone falls short of making resident-on-resident sexual abuse sufficiently foreseeable for purposes of § 483.12(a), as I understand the DAB's interpretation of that provision.  CMS does not point to any behaviors by Resident 4 that were directed at another facility resident.  By contrast, in Rockwood, the DAB described the ALJ's findings of indicators that a resident may abuse another resident, noting that the resident at issue had previously gone to a psychiatric hospital from an "assisted living situation 'due to behavior issues and vascular dementia,'" after hitting a nurse there, "was described as paranoid, occasionally combative, and non-cooperative," having "recently become more violent and aggressive," was documented to be "an elopement risk and a fall risk and he could be a risk to other residents who cannot fight," and was "physically and verbally abusive to staff" in the psychiatric hospital.  DAB No. 2954 at 11.

Likely in recognition of the absence of more indicators of potential resident-on-resident abuse, CMS contends, as its primary argument, that the regulation at 42 C.F.R. § 483.12(a) does not include any requirement that abuse by another resident be foreseeable because a resident's right to be free from abuse is absolute.  CMS Br. at 9-12.  CMS contends the fact that Resident 1 was abused in Petitioner's facility is, standing alone, dispositive that Petitioner was not in substantial compliance with the abuse prevention requirements.

In an effort to provide an opportunity for a fresh interpretation of the abuse prevention regulation, CMS states that the DAB has only analyzed the participation requirements regarding a resident's right to be free from abuse under the prior codification of those provisions, under 42 C.F.R. § 483.13, and has yet to consider the revised regulation, 42 C.F.R. § 483.12, in the context of resident-on-resident abuse.  CMS Br. at 10.  CMS contends that, following the recodification, there is no requirement that abuse by a fellow resident have been foreseeable.  In support, CMS notes that in moving the abuse

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prevention provisions from 42 C.F.R. § 483.13 to 42 C.F.R. § 483.12 in 2016, the Secretary commented:

The provisions of § 483.13 are maintained, with revision, in proposed § 483.12, under a new title "Freedom from abuse, neglect and exploitation."  We believed this new title highlights, rather than downplays, the need to ensure that residents of long-term care facilities are free from to [sic] abuse, neglect, or exploitation.

CMS Br. at 9, citing 81 Fed. Reg. at 68688, 68727 (Oct. 4, 2016).

CMS's argument is unavailing.  When the Secretary recodified the abuse prevention requirements from § 483.13 to § 483.12, the Secretary could have added language overruling the DAB's interpretation of the prior regulation.  Instead, there was no substantive change in the regulatory text.  Prior to the recodification, relevant provisions in § 483.13 that were recodified at § 483.12 read, as relevant here:

(b) Abuse.  The resident has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion.

(c)  Staff treatment of residents.  The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property.

(1)  The facility must—

(i)  Not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion.

42 C.F.R. § 483.13(b) and (c) (2016).

The recodified language CMS points to, that "[t]he resident has the right to be free from abuse," is nearly identical to the prior provision that "[t]he resident has the right to be free from verbal, sexual, physical, and mental abuse," compliance with which the DAB has described, in the context of resident on resident abuse, as depending "on whether the facility staff had a basis to be aware that such behavior might occur and yet left the resident vulnerable to it."  Compare 42 C.F.R. § 483.13(b) and (c) (2016) with 42 C.F.R. § 483.12 (2019); Rockwood, DAB No. 2954 at 24.

Further, CMS's quotation from the preamble to the final rule is insufficient to show that the Secretary intended for the new regulation to reject the DAB's approach.  As indicated in the lengthy quote above from Rockwood, the DAB expressly acknowledged that the

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regulation provides residents with an absolute right to be free from abuse but decided to interpret the regulation as having a foreseeability requirement when the abuse was perpetrated by individuals other than facility staff.

Finally, CMS cites the State Operations Manual (SOM), Appendix PP, (Rev. 173, Eff. November 28, 2017), where the agency addressed facilities' arguments that abuse may not be foreseeable as follows:

It has been reported that some facilities have identified that they are in compliance with F600- Free from Abuse and Neglect because they could not foresee that abuse would occur and they have "done everything to prevent abuse," such as conducted screening of potential employees, assessed residents for behavioral symptoms, monitored visitors, provided training on abuse prevention, suspended or terminated employment of the perpetrator, developed and implemented policies and procedures to prohibit abuse, and met reporting requirements.  However, this interpretation would not be consistent with the regulation, which states that "the resident has the right to be free from verbal, sexual, physical, and mental abuse…"

Therefore, if the survey team has investigated and collected evidence that abuse has occurred, it is appropriate for the survey team to cite the current or past noncompliance at F600-Free from Abuse and Neglect.

CMS Br. at 10; CMS Ex. 26 at 13.

However, CMS chose to publish those instructions in the SOM, a document only binding on surveyors, rather than in a CMS Ruling, which is binding on adjudicators as well.  42 C.F.R. § 401.108(c).

Finally, I note that Resident 1's right to be free from abuse was violently violated.  Had the Secretary clearly indicated in the preamble to the recodification that the Secretary intended for SNFs to be responsible for all abuse perpetrated on residents, even if unforeseeable, I would uphold the deficiency in this case.  CMS cited my decision in a hospital abuse case where I discussed that there was clear Secretarial intent for such a reading of the regulation that provides patients with the right to be free from abuse.  That intent was voiced in response to a public comment during the promulgation process.  However, this case does not involve a hospital, and I will follow the DAB's prevailing interpretation of the regulations applicable to SNFs.

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2. Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d)(2) because it failed to ensure adequate supervision of Resident 4 to prevent accidents.

SNFs must "provide services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, in accordance with a written plan of care."  42 U.S.C. § 1395i-3(b)(2).  In furtherance of this mandate, the Secretary promulgated the general quality of care regulation at 42 C.F.R. § 483.25,7 which states that the SNF "must ensure that residents receive treatment and care in accordance with professional standards of practice," based on a comprehensive resident assessment, a comprehensive care plan, and resident choice.  Most importantly, this prefatory language applies to all of the enumerated quality of care provisions in 42 C.F.R. § 483.25, including the deficiency at issue here.  See North Las Vegas Care Center, DAB No. 2946 at 6 (2019).

Paragraph (d) of § 483.25 imposes specific obligations upon a facility related to accident hazards and accidents, as follows:

The facility must ensure that ˗

(1) The resident environment remains as free of accident hazards as is possible; and

(2) Each resident receives adequate supervision and assistance devices to prevent accidents.

Therefore, § 483.25(d)(1) requires that a facility address foreseeable risks of harm from accidents "by identifying and removing hazards, where possible, or, where the hazard is unavoidable because of other resident needs, managing the hazard by reducing the risk of accident to the extent possible."  Maine Veterans' Home - Scarborough, DAB No. 1975 at 10 (2005) (explaining the inherent standard of care in section 483.25(h)(1)).  The provisions of § 483.25(d) "come into play when there are conditions in a facility that pose a known or foreseeable risk of accidental harm."  Meridian Nursing Ctr., DAB No. 2265 at 10 (2009), aff'd sub. nom. Fal‑Meridian, Inc. v. U.S. Dep't of Health & Human Servs., 604 F.3d 445 (7th Cir. 2010).

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Further, § 483.25(d)(2) requires that a facility take "all reasonable steps to ensure that a resident receives supervision and assistance devices that meet his or her assessed needs and mitigate foreseeable risks of harm from accidents."  Briarwood Nursing Ctr., DAB No. 2115 at 11 (2007) (citing Woodstock Care Ctr. v. Thompson, 363 F.3d 583, 590 (facility must take "all reasonable precautions against residents' accidents"), aff'g Woodstock Care Ctr., DAB No. 1726 (2000)).  Facilities are given "the flexibility to choose the methods" they use to provide supervision or assistive devices to prevent accidents, so long as the chosen methods "constitute an 'adequate' level of supervision" for a particular resident's needs.  Windsor Health Care Ctr., DAB No. 1902 at 5 (2003), aff'd sub. nom. Windsor Health Ctr. v. Leavitt, 127 F. App'x 843 (6th Cir. 2005).

Although the language in § 483.25(d) refers to "accidents," the requirement for an SNF to identify and mitigate, to the extent possible, potential hazards to the health and safety of its residents extends to situations of resident on resident violence.  See Rockwood, DAB No. 2954 at 23-24.  Further, there is no requirement that the specific manner in which an accident or incident occurred be foreseeable, or even a requirement that an accident or incident occur at all for a facility to be found to have not been in substantial compliance.  The DAB has explained that:

The occurrence of an incident or accident may expose the failure of a facility to identify a risk and take reasonable steps to eliminate or minimize it, depending on the factual circumstance.  Or such a failure may come to light in a survey despite the residents having fortuitously escaped being subject to an incident.  There is no requirement to prove that a specific act or omission by the facility caused a particular adverse outcome.

Rockwood, DAB No. 2954 at 26.

In this case, CMS contends that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d)(2) because it failed to adequately supervise both Resident 1 and Resident 4.  CMS Br. at 2 n.1.  As indicated above, in its brief, CMS argues that:

[I]t would be highly unusual for an attack like this to come out of nowhere, especially where a resident has lived at a facility for over two years, as had R[esident] 4.  CMS Ex. 24, at 4.  In addition, Generations cannot account for R[esident] 4 during this period, indicating R[esident] 4 had not been checked on for at least an hour and a half.  CMS Ex. 11, at 3. A resident with poor impulse control and a traumatic brain injury, who could behave unpredictably, and who was at risk

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for elopement, should have been checked more frequently for his safety and for that of others.

CMS Br. at 12.  Although this argument was made in relation to the § 483.12(a)(1) deficiency, CMS intended it to apply to the § 483.25(d)(2) deficiency as well.  CMS Br. at 13; CMS Reply at 5-6.

Petitioner contends in response that it did "everything possible to prevent [Resident] 4's actions" and to protect Resident 1.  P. Br. at 17-18.  Petitioner states that it provided care for Resident 4 for more than two years and, during that time:

[T]here have been no incidents with [Resident] 4 that would indicate that he requires additional monitoring or that he might engage in sexual contact with a peer.  There is no documentation to support any kind of conclusion that he was a risk.  Facilities chart by exception, which means that nothing regarding inappropriate or sexual behaviors would have been charted for [Resident] 4 unless or until he engaged in a negative behavior.  During his two years at the Facility, [Resident] 4 interacted with staff, residents, visitors, and other health care providers.  He engaged in Facility activities and maintained friendships with his peers.  And during this time, there was never occasion for the various facility disciplines who would interact with him to document any behavioral concern.  Nor was there any sexual behavior to document.

P. Br. at 7.

Despite Petitioner's protestations, CMS's expert testimony from Christine Vause, RN, provides a basis for rejecting Petitioner's argument.  She testified:

I would further like to emphasize that it would be highly unusual for an attack like the one on R[esident] l to occur with no warning, particularly where a resident has lived at a facility for over two years, such as R[esident] 4.  I note that R[esident] 4's medical records indicate a history of poor impulse control, which is associated with assault. Specifically, R[esident] 4's care plan recorded on June 7, 2019 that R[esident] 4 had poor impulse control in connection with an incident of verbal aggression.  Furthermore, R[esident] 4's care plan recorded on September 6, 2018 that R[esident] 4 was at risk for elopement related to cognitive impairment.  A resident at risk of elopement requires a higher

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level of monitoring as to a resident's location.  Further, R[esident] 4's June 4, 2019 and August 27, 2019 minimum data sets (MDS) reflect that R[esident] 4 could move from his bed and walk without assistance.  As a former nursing home administrator and director of nursing, I would have increased supervision of R[esident] 4 due to his history of poor impulse control and risk for elopement, but no such measures are noted in R[esident] 4's care plan.  Notably, in its final report of investigation, Generations reported that R4 was unaccounted for during the period at issue.  If R[esident] 4 was the perpetrator as the evidence suggests, increased supervision of R[esident] 4 also may have prevented or stopped the sexual assault of R[esident] l.

CMS Ex. 24 ¶ 11 (emphasis added).  I accord Ms. Vause's opinion significant weight because she:  1) has over 30 years of experience in the long term care setting; 2) served as an SNF administrator for ten years and as a director of nursing at an SNF for nearly five years; 3) holds an Associate's Degree in Nursing, a Bachelor's Degree in Health Services Administration (minor in Long Term Care Administration); and a Master's of Arts Degree; and 4) is licensed as a Registered Nurse and was previously licensed as a Nursing Home Administrator.  CMS Ex 24 ¶¶ 1-4; CMS Ex. 25.  Further, Ms. Vause provided her professional opinion after reviewing the medical records for Resident 4 and her opinion is consistent with the exhibits admitted into the record.  CMS Ex 24 ¶ 6.  Finally, Petitioner neither requested to cross-examine Ms. Vause nor submitted evidence or written direct testimony to controvert Ms. Vause's opinion.  See Golden Living Ctr. – Livingston, DAB No. 2314 at 14 (2010) (describing a facility's responsibility to fill an evidentiary vacuum where circumstances otherwise indicate a facility is not in substantial compliance).

As Ms. Vause testified, the record shows that Resident 4 had several documented behaviors and risk factors that required increased monitoring and supervision.  In particular, Petitioner assessed Resident 4 as being at risk for changes in his mood related to his diagnoses of depression and dementia, and as being at risk for elopement from the facility.  CMS Ex. 15 at 8, 21.  Petitioner also documented a June 7, 2019, incident where he "cuss[ed] at [Petitioner's] staff," and updated its assessment to reflect that Resident 4 had poor impulse control and the potential to be verbally aggressive.  CMS Ex. 15 at 25.  Even without any such behaviors being directed at fellow residents, the facility was on notice, and it was foreseeable, that Resident 4 required increased supervision as he had the potential to harm himself or another resident, even if by accident, due to his elevated risk of elopement and poor impulse control.

Petitioner's response to this, however, was minimal.  Petitioner documented all of these matters in Resident 4's care plan, but instituted interventions that only included making

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basic assessments about Resident 4 and redirecting him when problems arose, and the facility did not institute any increased monitoring or supervision of Resident 4.  CMS Ex. 15 at 8, 21, 25.  I agree with Ms. Vause that Petitioner's lack of supervision can be seen by the fact that the facility's final report to the IDPH stated that Resident 4 was "unaccounted for" during the entire timeframe in which the attack took place, from 8:00 to 9:45 p.m.  CMS Ex. 11 at 3.

There is no doubt that CMS established a prima facia case that Petitioner failed to ensure that Resident 4 received adequate supervision  to prevent accidents under § 483.25(d)(2), because, while Petitioner entered Resident 4's problematic issues into his care plan, Petitioner failed to adequately provide for care (e.g., supervision) in accordance with the professional standards of practice under § 483.25.

Petitioner has not met its burden to rebut CMS's case.  Although Petitioner asserts it did everything in its control to prevent Resident 4 from harming another resident, Petitioner did not identify, and the record does not otherwise indicate, any interventions the facility implemented to increase the monitoring or supervision of Resident 4.  See P. Br.; see, e.g., CMS Ex. 15.  Although Petitioner's final investigative report indicates that a number of people who know Resident 4 thought his forcible sexual conduct involving Resident 1 was out of character, Petitioner did not submit written testimony from any of these individuals, including the Medical Director of Petitioner's facility, who allegedly "expressed shock and disbelief."  CMS Ex. 11 at 4.  This is insufficient in the face of the case CMS has presented.

Further, Petitioner does not assert, and the record does not otherwise identify, that any of its staff checked on Resident 1 between 8:00 and approximately 9:30 to 9:45 p.m., when CNAs V3 and V4 discovered that Resident 1 had been physically and sexually attacked.  See P. Br.; CMS Ex. 11; CMS Ex. 12 at 2; CMS Ex. 18 at 3-4.

Therefore, Petitioner has not rebutted CMS's prima facia case that the facility was not in substantial compliance with the accident prevention requirements of 42 C.F.R. § 483.25(d)(2) because it did not adequately supervise Residents 1 and 4.  It was foreseeable that leaving Resident 4 unsupervised for long periods could result in harm to himself or other residents.  Accordingly, I conclude that Petitioner was not in substantial compliance with the accident prevention requirements of 42 C.F.R. § 483.25(d)(2).

3.  CMS's determination that Petitioner's noncompliance posed immediate jeopardy to resident health and safety is not clearly erroneous.

Immediate jeopardy exists if a facility's noncompliance has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.  42 C.F.R. § 488.301.  The regulation does not require that a resident actually be harmed.  Lakeport Skilled Nursing Ctr., DAB No. 2435 at 8 (2012).  I must uphold CMS's determination as to the level of a

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facility's substantial noncompliance (which includes an immediate jeopardy finding) unless it is "clearly erroneous."  42 C.F.R. § 498.60(c).  The "clearly erroneous" standard imposes on facilities a heavy burden to show no immediate jeopardy, and the DAB has sustained determinations of immediate jeopardy where CMS presented evidence "from which '[o]ne could reasonably conclude' that immediate jeopardy exists."  See, e.g., Barbourville Nursing Home, DAB No. 1962 at 11 (2005) (quoting Florence Park Care Ctr., DAB No. 1931 at 27-28 (2004)).

Petitioner objects to the immediate jeopardy determination because the state agency surveyor did not originally believe that Petitioner's deficiency immediately jeopardized the health and safety of its residents.  P. Br. at 18-21.  Further, Petitioner argues that:

[T]here is no alleged act of noncompliance on the part of the Facility that has caused or is likely to cause this or any other harm to Peoria's residents.  The only act that the SOD points out to support that the Facility was not in substantial compliance with the regulations at the s/s "J" level was that abuse allegedly happened.  It is not logical to say that the sexual contact caused or was likely to cause . . . the sexual contact.  The SOD must point to another act or failure to act on the part of the facility that caused or was likely to cause this event.

P. Br. at 20-21 (emphasis omitted).

I must reject Petitioner's argument that CMS's immediate jeopardy determination is clearly erroneous because the state agency surveyor did not originally recommend such a finding to CMS.  See CMS Ex. 22 ¶ 5.  A state agency certifies compliance or noncompliance "subject to the approval of CMS."  42 C.F.R. § 488.330(a)(1)(C).  Further, CMS, and not the state agency, issued the initial determination in this case imposing a CMP for, in part, immediate jeopardy level noncompliance.  CMS Ex. 7.  As indicated above, I am to uphold CMS's determination as to the level of noncompliance if it is not clearly erroneous.  42 C.F.R. § 498.60(c)(2).  Therefore, I owe deference to CMS's determination and not the opinion of the state agency surveyor.

In any event, the surveyor testified in this proceeding that, on reconsidering the issue, she agreed "with CMS's determination that immediate jeopardy existed based on the seriousness of the sexual assault, its impact on R[esident] 1, and because [Petitioner] needed to act immediately to provide care for R[esident] 1 and to ensure sexual abuse would not occur again to R[esident] 1 or any other residents."  CMS Ex. 22 ¶ 5.

While the surveyor did not originally believe that there was immediate jeopardy, the Informal Dispute Resolution reviewer and the Independent Informal Dispute Resolution

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reviewer both recommended upholding the immediate jeopardy finding.  CMS Ex. 19 at 11-15; CMS Ex. 20 at 6.  Therefore, individuals may differ in their conclusions, but CMS's determination will prevail unless Petitioner proves it to be clearly erroneous.

Further, in opposition to Petitioner's argument that the statement of deficiencies fails to provide sufficient information to show immediate jeopardy, CMS may support its immediate jeopardy determination with proof that is not expressly "spelled out in the statement of deficiencies . . ." because the statement of deficiencies "does not rigidly frame" the evidence that may be considered "so long as the facility has notice and an opportunity to respond to any allegation raised."  NHC Healthcare Athens, DAB No. 2258 at 17 (2009).  As detailed above, CMS's evidence shows that Petitioner failed to properly institute and implement proper interventions (such as supervision) for Resident 4's assessed poor impulse control, risk for mood changes as a result of dementia and depression, potential to be verbally aggressive, and elopement risk.

Further, rather than show that Petitioner's failings did not create an immediate jeopardy situation, Petitioner relies on the absence of evidence to prove that there was no immediate jeopardy.  However, based on this record, I cannot conclude that Petitioner's failure to properly implement appropriate interventions, including supervision of Resident 4, was not likely to cause serious injury, harm, impairment, or death to Resident 4 or another facility resident, particularly as that failure continued on an ongoing basis until Resident 4 was placed on one on one monitoring following the attack on Resident 1.  Such supervision may have deterred Resident 4 or may have resulted in stopping Resident 4; therefore, Petitioner's deficient behavior directly relates the significant harm to Resident 1 in this case.  After all, Resident 4 had freedom to walk Petitioner's hall dedicated to residents with dementia and was free to potentially select a victim, like Resident 1, who had neither the mobility to flee nor the strength to fight.

As CMS recognized, Petitioner's swift action to increase supervision of Resident 4 resulted in CMS imposing a penalty for immediate jeopardy for a single day.  CMS Ex. 1 at 7.

Accordingly, I conclude that CMS did not clearly err in determining that Petitioner's noncompliance with 42 C.F.R. § 483.25(d) posed immediate jeopardy to the health and safety of its residents.

4.  The per-day CMPs of $9,092.00 for one day of noncompliance at the immediate jeopardy level on August 24, 2019, and $110.00 per-day for 19 days from August 25, 2019, through September 12, 2019, are appropriate in amount and duration.

CMS imposed on Petitioner a per-day CMP of $9,092.00 for one day, August 24, 2019, and a per-day CMP of $110.00 for 19 days from August 25, 2019, through September 12, 2019, for a total of $11,182.00.

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Petitioner contends that the entire CMP that CMS imposed is unreasonable based on its argument that it was in substantial compliance at all relevant times.  P. Br. at 23-24.  However, I have concluded that Petitioner was not in substantial compliance with the participation requirements at 42 C.F.R. § 483.25(d) and that CMS did not clearly err in determining that Petitioner's noncompliance with that regulation placed its residents in immediate jeopardy.  And, as explained below, I conclude that a per-day CMP of $9,092.00 for that one day, August 24, 2019, and a per-day CMP of $110.00 per day for 19 days from August 25, 2019, through September 12, 2019, is appropriate.

When determining whether a CMP amount is appropriate, I apply the factors listed in 42 C.F.R. § 488.438(f):  1) the facility's history of noncompliance; 2) the facility's financial condition; 3) the factors specified in 42 C.F.R. § 488.404; and 4) the facility's degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort, or safety.  See 42 U.S.C. §§ 1320a-7a(d)(2), 1395i-3(h)(2)(B)(ii)(I).  The absence of culpability is not a mitigating factor.  42 C.F.R. § 488.438(f).  The factors listed in 42 C.F.R. § 488.404 include:  1) the scope and severity of the deficiency; 2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and 3) the facility's prior history of noncompliance in general and specifically with reference to the cited deficiencies.  See 42 U.S.C. §§ 1320a-7a(d)(1), (3), 1395i-3(h)(2)(B)(ii)(I).

The regulations leave the decision regarding the choice of remedy to CMS, and the amount of the remedy to CMS and the ALJ, requiring only that the regulatory factors at §§ 488.438(f) and 488.404 be considered when determining the amount of a CMP within a particular range.  42 C.F.R. §§ 488.408, 488.408(g)(2); 498.3(d)(11); see also 42 C.F.R. § 488.438(e)(2) and (3); Alexandria Place, DAB No. 2245 at 27 (2009); Kenton Healthcare, LLC, DAB No. 2186 at 28-29 (2008).  However, unless a facility contends that a particular regulatory factor does not support the CMP amount, an ALJ must sustain it.  Coquina Ctr., DAB No. 1860 (2002).  Further, CMS does not need to show that an SNF was not in substantial compliance on each day during which a remedy remains in effect; rather, the SNF bears the burden of showing that its noncompliance was of shorter duration than alleged by CMS.  Owensboro Place & Rehab. Ctr., DAB No. 2397 at 12 (2011) (citing Kenton Healthcare, LLC, DAB No. 2186 at 24-25 and Lake Mary Health Care, DAB No. 2081 at 30 (2007)).

As an initial matter, the CMP imposed from August 25, 2019, through September 12, 2019 (a total of $2,090), resulted from CMS's finding that Petitioner did not return to compliance until September 13, 2019, when it finished implementing screening for new residents to assess them for aggressive, inappropriate, and potentially harmful behaviors and took steps to devise appropriate care plans accordingly.  CMS Ex. 1 at 2-3; see CMS Ex. 7 at 2.  I note that, apart from its general contention that it was not out of compliance, Petitioner has not asserted it returned to compliance earlier than September 13, 2019.  See P. Br. at 23-24.  Moreover, the steps Petitioner took to reestablish compliance (screening

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residents for potential hazardous behavior and devising appropriate care plans and interventions) support that the facility remained out of compliance with the accident prevention requirements at 42 C.F.R. § 483.25(d)(2) until the date it completed those steps, September 13, 2019.  See CMS Ex. 1 at 2-3.

Furthermore, the per-day CMP of $110.00 for 19 days from August 25, 2019, through September 12, 2019, is the minimum amount that can be imposed for non-compliance that does not reach immediate jeopardy.  45 C.F.R. § 102.3; 84 Fed. Reg. at 59,559.  Therefore, the amount and duration of the per-day CMP imposed for the facility's noncompliance at the non-immediate jeopardy level, from August 25, 2019, through September 12, 2019, cannot be further reduced.

The same is not true for the CMP amount related to the immediate jeopardy finding.  However, as indicated below, a consideration of the regulatory factors shows that a $9,092.00 per-day CMP for one day, August 24, 2019, is easily justified.

Facility's History of Non-Compliance:  With respect to its prior compliance history, the facility asserts that it does not have an extensive history of noncompliance that would justify the penalty imposed, that the history it does have does not reveal anything relevant to this case, and, in any event, it is unfair to base a CMP on prior history because CMS "routinely denies facilities the right to contest the majority of citations and tags written against them."  P. Br. at 24.

Petitioner's arguments are misleading.  Petitioner has an extensive history of noncompliance, even when considering only the deficiencies that resulted in CMS imposing a CMP.  In such cases, Petitioner would have been offered the opportunity for a hearing to dispute the deficiencies.  CMS provided evidence in the form of its Automated Survey Processing Environment (ASPEN) Enforcement Module (AEM) report as follows:

• G-level deficiency (actual harm) for Tag F-0204 (Orientation for Transfer or Discharge) in 2017 with a $6,500 CMP imposed (CMS Ex. 6 at 3-4);
• two J-level deficiencies (immediate jeopardy), one for Tag F-0328 (Special Needs) and the other for Tag F-0224 (related to abuse) in 2013 with $40,950 CMP imposed (CMS Ex. 6 at 7);
• G-level deficiency (actual harm) for Tag F-0309 (quality of care) in 2010 with $16,965 CMP imposed (CMS Ex. 6 at 10);
• G-level deficiency (actual harm) for Tag F-0323 (accidents) in September 2008 with $9,620 CMP imposed (CMS Ex. 6 at 11-12);

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• G-level deficiency (actual harm) for Tag F-0314 (pressure sores) and a J-level deficiency (immediate jeopardy) for Tag F-0323 (accidents) in April 2008 with $10,000 CMP imposed (CMS Ex. 6 at 12).

This list includes both an immediate jeopardy and a G-level actual harm deficiency related to the deficiency found in this case – accidents.  Further, there is an immediate jeopardy citation related to abuse, which is closely related to the situation in this case.  In addition, there is a G-level actual harm deficiency related to quality of care, which again is closely related to the accident provision.  In total, Petitioner has paid over $80,000 in CMPs since 2008.

Scope and Severity of Deficiencies and Relationship Between Deficiencies:  This case involves a single immediate jeopardy level deficiency.

Culpability:  Petitioner asserts that it was not culpable at all for the harm to Resident 1.  I disagree.  Petitioner was not in substantial compliance with the accident prevention requirements at 42 C.F.R. § 483.25(d)(2) because it failed to sufficiently place interventions for matters documented in the care plan and properly monitor Resident 4, despite clinical indications that he required additional supervision.  This continued failure placed him and other facility residents in immediate jeopardy, which was not abated until August 25, 2019, when the facility placed Resident 4 on one-on-one monitoring prior to discharging him.  Unlike many residents who reside on the halls dedicated to residents with dementia, Resident 4 was relatively young (in his 50s) and ambulatory.  Given his strength and mobility in comparison to residents like Resident 1, along with the matters indicated in the care plan involving impulse control, mood changes, aggressive verbal encounter with staff, and a risk to elope, Resident 4 was an elevated risk to himself and the vulnerable residents around him.  Petitioner bears blame related to the incident with Resident 1 and is culpable.

Financial Condition of the Facility:  Petitioner presents no evidence of its financial condition.  Therefore, this is not a factor requiring further consideration.

CMP Amount:  I note that the CMP amount CMS imposed for this serious noncompliance is very modest.  The $9,092.00 per-day CMP for one day, August 24, 2019, is near the low end of the per-day CMP range for non-compliance at the immediate jeopardy level.  See 45 C.F.R. § 102.3; 84 Fed. Reg. at 59,559.  Accordingly, I find the per day CMP amounts CMS imposed in this case are fully justified, if not low, based on the factors above.

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5.  CMS was required by law to prohibit Petitioner from having a NATCEP for two years.

In its request for hearing, Petitioner disputed CMS's imposition of a prohibition on Petitioner having a NATCEP.  However, CMS appropriately prohibited Petitioner from offering or conducting a NATCEP for two years from September 13, 2019, because CMS imposed a per-day CMP of $11,182 on Petitioner, which is more than the $10,967 amount above which approval must be rescinded, and because Petitioner was found to have provided substandard quality of care that resulted in an extended survey.  CMS Ex. 1 at 1; CMS Ex. 7 at 2, 4; 42 U.S.C. § 1395i-3(f)(2)(B)(iii)(I)(b)-(c), (g)(2)(B)(i); 42 C.F.R. §§ 483.151(b)(2)(iii)(iv), (f)(1), 488.301 (definitions of Extended survey and Substandard quality of care); 45 C.F.R. § 102.3.

VII.  Conclusion

For the reasons set forth above, I conclude that:

1. Petitioner was in substantial compliance with 42 C.F.R. § 483.12(a)(1);
2. Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d)(2);
3. CMS's determination that Petitioner immediately jeopardized the health and safety of its residents was not clearly erroneous;
4. CMS's imposition of CMPs in the amount of $9,092 per-day for one day of immediate jeopardy-level noncompliance on August 24, 2019, and $110 per-day for 19 days, from August 25, 2019, through September 12, 2019, are appropriate under relevant regulatory factors; and
5. CMS's prohibition on Petitioner having a NATCEP for two years commencing September 13, 2019, is required by law.

1. All citations to the Code of Federal Regulations are to the version in effect at the time of the survey unless otherwise indicated.
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2. CMS or the state agency designates the scope and severity level using a letter from A through L based on a scope and severity matrix published in the State Operations Manual, Ch. 7, § 7400.3.1 (Rev. 185, Eff. Nov. 16, 2018).  Levels A, B, or C indicate a deficiency that presents no actual harm but has the potential for minimal harm, which means the facility technically remains in substantial compliance.  42 C.F.R. § 488.301.  Levels D, E, or F indicate a deficiency that presents no actual harm but has the potential for more than minimal harm that does not amount to immediate jeopardy.  Levels G, H, or I indicate a deficiency that involves actual harm that does not amount to immediate jeopardy.  Finally, levels J, K, and L indicate a deficiency that constitutes immediate jeopardy to resident health or safety.
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3. The Nursing Home Compare website allows the public to compare SNFs participating in the Medicare and Medicaid programs and provides information about each SNF's performance on health and fire safety inspections, staffing, level of care, and whether issues have arisen related to abuse prevention.  P. Req. for Injunctive Relief, Ex. 3 at 1.
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4. In October 2019, CMS added the "abuse icon" involving the red circle with a white hand as a new feature to the Nursing Home Compare website "to make it easier for consumers to identify facilities with instances of non-compliance related to abuse."  P. Req. for Injunctive Relief, Ex. 2 at 1.  CMS indicated that it would associate the abuse icon with an SNF that was cited for abuse where residents were found to be harmed on the most recent standard survey or a complaint survey within the last 12 months.  P. Req. for Injunctive Relief, Ex. 2 at 1; see also P. Req. for Injunctive Relief, Ex. 3 at 1-2.
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5. As indicated above, CMS stated in its prehearing brief that the facts in this case also supported "a deficiency finding under 42 C.F.R. § 483.25(d)(2)" and that this deficiency would support the remedies it had imposed.  CMS Br. at 2 n.1.  I treat CMS's statement as a request that I permit a new issue to be adjudicated under 42 C.F.R. § 498.56(a).  The DAB "has consistently held that after an administrative appeal has commenced, a federal agency may assert and rely on new or alternative grounds for the challenged action or determination as long as the non-federal party has notice of and a reasonable opportunity to respond to the asserted new grounds during the administrative proceeding."  Green Hills Enterprises, LLC, DAB No. 2199 at 8 (2008).  CMS gave notice of the additional deficiency before Petitioner submitted its prehearing exchange and argued that the facts relevant to the 42 C.F.R. § 483.12(a)(1) deficiency "also support a deficiency under 42 C.F.R. § 483.25(d)(2)."  CMS Br. at 13.  Petitioner substantively responded to an alleged § 483.25(d)(2) deficiency in its brief and, like CMS, relied heavily on its discussion of the facts involving the deficiency at § 483.12(a)(1) to show compliance with § 483.25(d)(2).  P. Br. at 17-18.  Petitioner neither objected to nor claimed prejudice by CMS's request to add a new issue to this case.  Therefore, I grant CMS's request.
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6. In the interests of privacy, I refer to individuals in this decision by the designations given to them during the IDPH survey.  See CMS Exs. 8-9.
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7. As noted above, CMS revised part 483 regulations concerning SNF conditions of participation in 2016, including the quality of care regulation found at 42 C.F.R. § 483.25.  81 Fed. Reg. 68,688 (Oct. 4, 2016); 82 Fed. Reg. 32,256 (Jul. 13, 2017) (technical corrections).  The accident prevention regulation currently promulgated at 42 C.F.R. § 483.25(d) was formerly found in 42 C.F.R. § 483.25(h).  In assessing compliance under section 483.25(d) in this case, I consider case decisions analyzing the former § 483.25(h).
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