Rego Park Health Care, DAB CR5865 (2021)

DECISION

Petitioner, Rego Park Health Care (Rego Park), is a skilled nursing facility located in Flushing, New York, that participates in the Medicare program.  On September 4, 2019, it was notified by the Centers for Medicare & Medicaid Services (CMS) that it was found out of compliance with participation requirements following a survey completed on August 9, 2019.  CMS Exhibit (Ex.) 32.  The facility was cited at federal tag F600 at a scope and severity level “G,” actual harm, for noncompliance with 42 C.F.R. § 483.12(a)(1) (Free from Abuse and Neglect).  A $10,825.00 per instance penalty was imposed.1   The facility was also prohibited from conducting or offering a nurse aide training and competency evaluation program (NATCEP) for a period of two years.  On September 12, 2019, Petitioner filed a timely request for hearing. 

On September 24, 2019, Judge Carolyn Cozad Hughes issued a Standing Order for Medicare Appeals Filed by Long Term Care Facilities (Order), setting forth pre-hearing

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procedures.2   Included in that Order was the directive to each party to include in its pre-hearing exchange any objection it had to any of the proposed exhibits or witnesses of the opposing party and to affirmatively request cross-examination of any proposed witnesses.  The Order also stated that an in-person hearing would only be necessary if the opposing party requested an opportunity to cross-examine a proposed witness.  Order at 5.  Pursuant to the Order, CMS filed a pre-hearing brief (CMS Pre-Hearing Brief) with an incorporated motion for summary judgment and 38 proposed exhibits (CMS Exs. 1-38).  Petitioner filed a pre-hearing brief (P. Pre-Hearing Brief) and response to CMS’s motion for summary judgment, with two proposed exhibits (P. Exs. A and B).

Although, as discussed below, there are no disputed facts in this case, I do not find it necessary to adjudicate it using the criteria for summary judgment.  Neither party affirmatively requested cross-examination of the opposing party’s proposed witnesses.  As a result, a hearing for the purpose of cross-examination of a witness is unnecessary.  Order at 5.  As an in-person hearing to cross-examine witnesses is not necessary, it is unnecessary to further address CMS’s motion for summary judgment, and I proceed by issuing a decision based on the written record.  

On February 11, 2020, CMS filed an objection to P. Exs. A and B, asserting that, in the witness statements, the witnesses presented legal arguments and conclusions without information to establish their qualifications to do so.  In determining whether to admit proposed exhibits into the record, I am guided by 42 C.F.R. § 498.60(b)(1), which states that I will receive into evidence documents and testimony which are “relevant and material.”  42 C.F.R. § 498.61 provides that evidence may be received at the hearing even though inadmissible under the rules of evidence applicable to court procedure.  I have reviewed P. Exs. A and B and find that they are “relevant and material” to this matter since they do relate to and bear on the issues before me.  However, admission of testimony does not relate to the weight I will give to these pieces of evidence, which is discussed later in this decision.  Moreover, as the parties were notified in the Order, I am not bound by any witness’s legal conclusions.  Order at 6.  Accordingly, CMS’s objection to the admission of P. Exs. A and B is overruled, and I admit into the record CMS Exs. 1-38 and P. Exs. A-B.

Finally, I have considered CMS’s Motion for Leave to File Reply to Petitioner’s Pre-Hearing Brief (Motion), filed on March 16, 2020.  It argues that 42 C.F.R. § 498.17 allows a party to submit a reply only if the party shows good cause and then asserts that good cause exists because a reply is necessary to address arguments that Petitioner raised for the first time in its pre-hearing exchange.  Motion at 1.  I would initially note that CMS incompletely cites the relevant regulation.  42 C.F.R. § 498.17(b)(1) provides that if

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a party files a brief or related document, the other party will have 20 days from the date of mailing to submit a rebuttal statement or additional evidence.  The good cause provision referred to by CMS is contained in 42 C.F.R. § 498.17(b)(2), which indicates that the ALJ will grant an opportunity to reply to the rebuttal statement only if the party shows good cause.   

In considering the Motion from CMS, I note that both parties were notified in the Order issued by Judge Hughes that briefs must contain all arguments that a party intends to make.  Order at 3.  CMS’s Motion is not compliant with this Order.  However, since Petitioner did not object to CMS’s Motion, it is considered unopposed.  In considering whether there is good cause established, I find that the Request for Hearing filed by Petitioner may not have complied with the provisions of 42 C.F.R. § 498.40(b) because it did not identify the specific issues with which it disagreed and did not specify the basis for contending that the findings and conclusions were incorrect.  Because Petitioner’s Pre-Hearing Brief raised new issues and arguments to which CMS did not have an opportunity to respond, I find that good cause is established.  As a result, the Motion is granted. 

For the reasons set forth below, I find that the facility was not in substantial compliance with the regulatory requirements prohibiting the abuse of residents and that the penalty imposed is reasonable. 

Discussion

I.         The evidence establishes that the facility was not in substantial compliance with 42 C.F.R. § 483.12(a)(1) because facility staff failed to meet the regulatory requirements to not use physical abuse.3

To participate in the Medicare program, a nursing facility must maintain substantial compliance with program requirements.  To be in substantial compliance, a facility’s deficiencies may pose no greater risk to resident health and safety than “the potential for causing minimal harm.”  42 C.F.R. § 488.301.  42 C.F.R. § 483.12 provides that the resident has the right to be free from abuse, neglect, misappropriation of resident property, and exploitation.  The facility must not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion, pursuant to the provisions of 42 C.F.R. § 483.12(a)(1).  The Secretary contracts with state survey agencies to survey skilled nursing facilities in order to determine whether they are in substantial compliance with Medicare program requirements.  Social Security Act (Act) § 1864(a); 42 C.F.R. §§ 488.10, 488.20.  Each facility must be surveyed annually, with no more than fifteen months elapsing between surveys, and must be surveyed more often, if necessary, to

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ensure that identified deficiencies are corrected.  Act § 1819(g)(2)(A); 42 C.F.R. §§ 488.20(a), 488.308.  The state agency must also investigate all complaints.  Act § 1819(g)(4).

A standard survey was conducted at Rego Park by the New York State Department of Health, Office of Long Term Care, from July 16, 2019 through August 9, 2019.  CMS Ex. 32.  The survey found that the facility was not in substantial compliance with the participation requirement to keep residents free from abuse.  Petitioner does not dispute the finding that there was physical abuse of a resident by a Rego Park CNA but contends, instead, that it should not be held strictly liable for that abuse.  P. Pre-Hearing Brief at 1-2.

Resident #1, a 98-year-old woman, was initially admitted to the facility in December 2004 with diagnoses including syncope and collapse, generalized muscle weakness, difficulties with walking, unspecified dementia without behavioral disturbance, and peripheral vascular disease.  CMS Exs. 6-7.  The Comprehensive Care Plan dated March 4, 2019 documented the resident had the potential to abuse and to be a victim of abuse, with interventions that included monitor peer intervention, intervene when needed and redirect, monitor behaviors to identify patterns/causes, and check resident for unmet needs.  CMS Ex. 13 at 7. 

There is no dispute that on March 13, 2019, Resident #1 was physically abused by CNA #1, a facility staff member.  On that date, at 5:30 p.m., Resident #1 was observed in the dayroom, bleeding from both lower legs.  CMS Ex. 1 at 1; CMS Ex. 25 at 1.  According to the Accident and Incident Investigation report completed by Andrea Trujillo, RN, the Director of Nursing (DON),

I watched the facility video covering the 6th floor dining room.  In the video I observed [CNA #1] pushing [Resident #1] in the w/c [wheelchair] into the food truck pushing the truck out of the way.  [CNA #1] continued to wheel [Resident #1] roughly to her usual spot.  Resident was upset and then the CNA put her face close to [Resident #1]’s face.  The CNA moved from [Resident #1]’s left to her RT side to lock the W/C in place and [Resident #1] very angry lashed out and hit the CNA in the LT arm.  The CNA then proceeded to dance teasingly in front of [Resident #1].  Then the resident tried to kick the C.N.A. in the rump.  At that point the C.N.A. lashed out with a mule kick.  The C.N.A. did this twice to [Resident #1] to LT and RT shine [sic] causing severe laceration and profuse bleeding.

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CMS Ex. 29.  The DON concluded that the CNA “abused and caused an injury to the resident.”4

Surveyor #1 also reviewed the surveillance camera footage and observed that:

[T]he camera footage, dated 03/13/2019 at 5:21 PM showed CNA #1 wheeling Resident #1 into the dayroom.  CNA #1 used Resident #1’s wheelchair (with resident in it) to push a meal cart that was in the middle of the dayroom out of the pathway.  After CNA #1 positioned Resident #1’s wheelchair next to the dining room entrance, CNA #1 turned her back to Resident #1 and began dancing in front of Resident #1.  CNA #1’s body/buttocks was in proximity with Resident #1’s face.  Resident #1 raised her right leg and extended it to CNA’s buttocks.  CNA #1 looked at Resident #1 and kicked Resident #1 on both legs.  CNA #1 walked to the back of the dayroom and then returned as the nurse was attending to Resident #1’s legs.  The camera footage showed multiple staff in the dayroom.  The resident was observed with profuse bleeding on her left leg. 

CMS Ex. 4 at 4; see also CMS Ex. 34.

Resident #1 was taken to the ER, where she was observed to have bilateral lower extremity lacerations, 3 cm on the right and 4 cm on the left.  CMS Ex. 26 at 4.  The lacerations were sutured, resulting in 11 stitches to the left lower leg and 10 stitches to the right lower leg.  CMS Ex. 21 at 1. 

The DON reported that actions taken under the Corrective Plan were:

• Supervisor notified
• Pressure dressing applied
• MD notified resident was transferred to North Shore Forest Hills Hospital for further evaluation
• The next day the C.N.A. was terminated

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• Staff will be re-in-serviced on abuse prevention
• NYPD informed and C.N.A. was arrested

CMS Ex. 29.

As noted above, Petitioner “does not dispute the finding by CMS that patient abuse was committed at Rego Park by one of its CNAs on or about March 13, 2019” but argues instead that “it should not be held strictly liable for that abuse which was neither authorized by the facility, nor foreseeable.”  P. Pre-Hearing Brief at 1-2.  It asserts that the facility had conducted all appropriate abuse training protocols, had performed a criminal background check on the CNA, and that there was nothing in the previous 4 ½ year history of CNA #1’s employment to indicate she might abuse any resident.  P. Pre-Hearing Brief at 2.  The DON testified to similar screening and training procedures that were conducted by the facility with regard to CNA #1.  P. Ex. A at 3. 

I would agree that this record does not suggest, in any manner, that the facility failed to follow any staff training or hiring investigation protocols or facility policies.  The record documents that CNA #1 did complete abuse and neglect training on January 29, 2019, two months prior to the abuse in this case.  CMS Ex. 18 at 4.  While there are reports of some troubling past behaviors,5 the disciplinary records of CNA #1 do not reveal any evidence of past physical abuse of a resident.  CMS Ex. 17 at 16-18.  I would also agree with Petitioner that the surveyor appeared to have misread a disciplinary report of CNA #1.  As Ms. Trujillo noted in her Declaration, the surveyor indicated CNA #1 had previously shoved other residents out of the room, when she, in fact, had written CNA #1 had moved the other residents.  P. Ex. A at 2-3; CMS Ex. 30 at 4; CMS Ex. 17 at 21.  However, this is not a material error.  CMS did not cite facility knowledge of past physical abuse on the part of CNA #1 as a basis for finding the violation in question.  More significantly, the relevant regulation does not require evidence of negligence or malfeasance on the part of the facility’s management in order to conclude there was abuse.  Rather, 42 C.F.R. § 483.12(a)(1) simply states that the facility must not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion. 

Petitioner’s two witnesses both testified that the actions taken by CMS in this case resulted in the facility being held strictly liable for the actions of its employee.  P. Ex. A at 4; P. Ex. B at 2.  Petitioner argues that it is being held strictly liable for the unauthorized actions of its employee and this was not the intent of Congress when enacting the Nursing Home Reform Act.  P. Pre-Hearing Brief at 1-2.  It cites as authority for this position the 9th Circuit decision in Plott Nursing Home v. Burwell, 779 F.3d 975

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(9th Cir. 2015).  Petitioner argues that the 9th Circuit held that “requiring facilities to prevent urinary tract infections could not be read as imposing strict liability on nursing homes if a resident were to develop a UTI despite the facility’s best efforts, and the same is true here with respect to an incident of staff to resident abuse as Rego Park followed all the requirements and preventive protocols but is nevertheless being held liable under a strict liability theory.”  P. Pre-Hearing Brief at 4.  However, Plott does not support Petitioner’s position on strict liability.

It is initially noted that the 9th Circuit did not use the term “strict liability” in that decision.  Moreover, the issue before the court was whether the finding that the facility was not in substantial compliance with the provisions of 42 C.F.R. § 483.25(d), the regulation in effect at that time, was supported by substantial evidence.  That section of the regulations required the facility to provide “appropriate treatment and services to prevent urinary tract infections and to restore as much normal bladder function as possible.”  (Emphasis added).  The regulation recognized that preventing urinary infections may not be possible in every case with the use of the phrase “as much . . . as possible,” and the 9th Circuit noted this by indicating that the regulation required the facility to provide appropriate treatment and services to prevent urinary tract infections, but did not require it to “guarantee that they will not occur.”  Plott, 779 F.3dat 985. However, the section of the regulations at issue in this case is 42 C.F.R. § 483.12(a)(1).  As noted above, this regulation mandates that “[t]he facility must not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion.”  Unlike 42 C.F.R. § 483.25(d), it does not provide for any latitude or “wiggle room,” i.e., “as little abuse as possible.”  Moreover, 42 C.F.R. § 483.25(d) regulates services provided by the facility to a resident and involves a determination as to whether those services were “appropriate.”  42 C.F.R. § 483.12(a)(1) is a blanket prohibition of abuse.  These two sections of the regulations are not analogous and the 9th Circuit’s interpretation of 42 C.F.R. § 483.25(d) has no bearing on the issues in this case.  As a result, I do not find Plott to be persuasive on the issues before me.   

Petitioner then cites United States v. Southern Maryland Home Health Services, Inc., 95 F. Supp. 2d 465 (D. Md. 2000) for its holding that liability would attach to a corporation for the acts of an employee only if some degree of actual culpability could be ascribed to the employer.  P. Pre-Hearing Brief at 5.  However, that case involved the issue of whether an employer could be held liable under the False Claims Act for punitive damages for the acts of an employee.  Petitioner is essentially arguing that the instant case is analogous to a civil tort proceeding.  However, that is not a correct reading of the governing regulations.  The regulations governing skilled nursing facilities do not incorporate civil tort liability law into their prohibitions against abuse.  The Board has consistently held that the entire concept of strict liability is inapplicable to regulatory enforcement.  In Kindred Transitional Care & Rehab – Greenfield, the Board noted that:

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[It] has routinely rejected attempts to import tort principles into federal administrative proceedings involving long-term care facilities that receive federal funding for participating in Medicare and Medicaid.  See, e.g., Lifehouse of Riverside Healthcare Ctr., DAB No. 2774 at 19 (2017) (rejecting the argument that the facility was being held to a “strict liability” standard for purposes of compliance with the accident prevention provisions of section 483.25(h)) and cases cited therein; Beverly Health Care Lumberton, DAB Ruling 2008-05, Denial of Petition for Reopening of DAB No. 2156 at 6 (May 2, 2008) (rejecting the argument that the Board “imputed liability” on facilities based on the liability of facility employees or agents, in the context of a deficiency based on resident abuse); Briarwood Nursing Ctr., DAB No. 2115 at 11 n.8 (2007) (“strict liability” is a tort concept inapplicable to 42 C.F.R. Part 498 proceedings).

DAB No. 2792 at 12 (2017).

To the contrary, the relevant regulations hold a facility liable for any abuse committed by its employees.  There is nothing in the language of 42 C.F.R. § 483.12(a)(1) to suggest that a facility would only be at fault under that regulation if it had not exercised due diligence in hiring, training, or supervising an employee.  The regulation, instead, simply and clearly states that the facility must not use physical abuse.  That a facility is responsible for any abuse inflicted by its employees is seen in the Board’s holding in Beverly Health Care Lumberton: 

A facility that undertakes to receive federal funds for its services . . . commits to meet the applicable requirements to participate in Medicare and Medicaid.  Such a facility can act only through its agents and employees who make and implement policies, provide care, and perform the various responsibilities called for by federal programs to protect and ensure the welfare of residents.  Therefore, a facility whose administration and staff have been found not to be substantially complying with federal requirements is itself subject to administrative enforcement remedies.  The facility cannot avoid such remedies by attempting to disown the acts and omission of its own staff and administration since the facility elected to rely on them to carry out its commitments. 

Beverly Health Care Lumberton, DAB Ruling 2008-05 at 6-7. 

Petitioner cites the United States Supreme Court decision in Kolstad v. American Dental Association, 527 U.S. 526 (1999), another case involving punitive damages, for the collateral argument that the instant action by CMS is “an effort by an administrative agency to penalize Rego Park for the acts of someone who was not acting in a managerial capacity, but rather for the acts of a lower-level employee whose actions were outside the

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scope of her employment and not condoned by Rego Park.”  P. Pre-Hearing Brief at 6.  Petitioner’s witnesses testified that it is “demoralizing” and not fair “for a facility to be penalized for the acts of its employees” that were “neither authorized, foreseeable or preventable.”  P. Ex. B at 3; P. Ex. A at 4. 

It is necessary to reinforce here that this is not a tort action and the civil money penalty (CMP) imposed here does not constitute “punitive damages.”  Instead, this is a regulatory enforcement action.  The CMP enforcement remedy imposed by CMS is remedial in nature, not punitive.  In addressing this issue, the Board stated that:

[I]n Carrington Place, where CMS imposed a CMP [and a second remedy], “CMS imposed these remedies not to punish [the facility] but to motivate it to correct its deficiencies and maintain substantial compliance with Medicare participation requirements for the benefit and protection of its residents.”  DAB No 2321, at 24, citing 42 C.F.R. § 488.402 (stating that the purpose of the remedies specified in section 488.406 is “to ensure prompt compliance with program requirements”); Embassy Health Care Ctr., DAB No. 2299, at 11 (2010) (“the purpose of nursing home enforcement CMPs is to ensure compliance with program requirements, making them not punitive but remedial in nature”). 

Deltona Health Care, DAB No. 2511 at 5 (2013).

Moreover, Petitioner’s argument that it should not be held responsible for the abuse by an employee who was acting outside the scope of her employment is also without merit.  P. Pre-Hearing Brief at 6.  The (former) CNA was in the facility and had access to Resident #1 only because the facility placed the CNA in the position of providing care to her.  As the Board noted in Kindred, her employment provided her with the means to abuse a resident in the course of providing the care that the facility hired her to provide.  Kindred Transitional Care and Rehab – Greenfield, DAB No. 2792 at 14 (2017). 

Because this is not a tort action and because this does not involve punitive damages, the holdings of the decisions involving those concepts cited by Petitioner are not applicable in this case.6   It is not being held responsible for the wrongful actions of its former employee through a tort action.  Rather, Petitioner is responsible for the physical abuse by the CNA, its former employee, by virtue of the obligations it assumes as a condition

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for receiving federal healthcare funds, as noted above.  Under those circumstances, the act of the employee, even if it is contrary to facility policy, becomes the act of the facility.  Kindred, DAB No. 2792at 14.  To find otherwise would render the anti-abuse regulation meaningless.

In concluding that Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(a)(1), I have considered the testimony of Petitioner’s two witnesses.  P. Exs. A and B.  To the extent that they offered testimony on the concepts of “strict liability,” that testimony is given no weight since there is no indication in their statements as to the basis of their understanding of this legal concept or its applicability (or inapplicability) to the issues before me.  Mikki Singh also testified that she “knew the CNA in question and can state unequivocally that she was not the type of individual from whom one would expect the type of behavior that led to termination.”  P. Ex. B at 2.  One would hope that the facility would not continue to employ a person who was the type one would expect to mule kick a vulnerable resident.  However, considering that testimony as some sort of character witness statement, the fact that the act of abuse was not predictable is not relevant in this proceeding.  It has been longstanding precedent in cases involving resident abuse that “considerations of foreseeability are inapposite when staff abuse has occurred.”  Gateway Nursing Ctr., DAB No. 2283 at 8 (2009).  As a result, that portion of Ms. Singh’s testimony is also given no weight.

I find that Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(a)(1) because Resident #1 was subject to physical abuse by a facility employee, as discussed above. 

II.       The undisputed evidence demonstrates that the penalty imposed is reasonable. 

The next issue for consideration is whether the CMP is reasonable.  To resolve this issue, I have applied the factors specified 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.  The absence of culpability is not a mitigating factor.  The factors 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. 

In reaching a decision on the reasonableness of the CMP, I must make an independent determination about “whether the evidence presented on the record concerning the relevant regulatory factors supports a finding that the amount of the CMP is at a level reasonably related to an effort to produce corrective action by a provider with the kind of deficiencies found and in light of the other factors involved (financial condition, facility

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history, and culpability).”  CarePlex of Silver Spring, DAB No. 1683 at 8 (1999).

In this case, CMS imposed a per instance CMP of $10,825.00, which is in the middle range of per instance penalties ($2,140 to $21,393).  42 C.F.R. §§ 488.408(d)(1)(iv), 488.438(a)(2); 45 C.F.R. § 102.3 (2018); 83 Fed. Reg. 51369, 51380 (Oct. 11, 2018). 

Applying the relevant regulatory factors here, CMS notes Petitioner’s “good prior enforcement history.”  CMS Pre-Hearing Brief at 17.

Petitioner does not claim that its financial condition affects its ability to pay and has not submitted any financial documents indicating such payment would cause the facility a hardship should it be required to pay the CMP.

The seriousness of the noncompliance, which resulted in physical abuse and injuries to a vulnerable resident, justifies the amount of the CMP.  For these reasons, I find that the proposed CMP in the amount of $10,825.00 is reasonable.   

Conclusion

I find that the facility was not in substantial compliance with 42 C.F.R. § 483.12(a)(1).  The per instance penalty imposed of $10,825.00 is reasonable.

1. Although CMS initially imposed additional remedies of Denial of Payment for New Admissions and termination of Provider Agreement, these remedies did not go into effect because the facility achieved substantial compliance before the effective dates of those remedies.  CMS Ex. 38.
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2. The case was originally assigned to Judge Hughes, but was reassigned to me on March 11, 2021.
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3. My findings of fact and conclusions of law are set forth in bold and italic text in the discussion captions of this decision.
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4. In the testimony of Mikki Singh and in its brief, Petitioner likens the mule kicks administered by CNA #1 to an incident in which the Pope reportedly slapped a woman’s hand, characterizing both of these actions as reflexive or instinctive.  P. Ex. B at 2-3; P. Pre-Hearing Brief at 3 n.1.  While the relevance of the Pope’s appearance in this case is not clear to me, I assume that this argument is an attempt to justify the physical abuse by CNA #1 since Ms. Singh goes on to testify that the resident kicked the CNA first.  P. Ex. B at 3.  However, it is not necessary to determine whether there is justification for the CNA’s action (or the Pope’s, for that matter) because Petitioner does concede that there was abuse by the CNA.  Nor would such an inquiry be relevant since the regulation does not permit abuse by facility staff “for cause” or any other justification.
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5. The record reflects disciplinary actions for leaving a restless and agitated resident alone, resulting in a resident fall, leaving residents unattended, resulting in another resident fall, and failure to follow procedures for use of a Hoyer lift.  CMS Ex. 17 at 16-18.
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6. Petitioner cites to Kisor v. Wilkie, 139 S. Ct. 2400 (2019), for the proposition that interpretive rules do not have the force and effect of law, and an interpretive rule “never forms the basis for an enforcement action.”  P. Pre-Hearing Brief at 4.  This argument is apparently based on a statement in the CMS State Operations Manual Appendix PP.  However, the basis of the charges in this case was a violation of the regulation, which is not an interpretive rule.
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