Daisy Holdings, LLC d/b/a Pine Creek Care Center, DAB CR6004 (2021)

DECISION

The Centers for Medicare & Medicaid Services (CMS) determined that Daisy Holdings, LLC d/b/a Pine Creek Care Center (Petitioner or facility), a skilled nursing facility (SNF) participating in the Medicare program, was not in substantial compliance with the Medicare requirement that SNFs ensure that its residents are free from physical or mental abuse.  Petitioner requested a hearing to dispute this deficiency.

As explained below, I conclude that CMS met its burden to show a prima facie case of resident abuse by a Certified Nursing Assistant (CNA) that was employed by Petitioner and that Petitioner failed to prove, by a preponderance of the evidence, that it was in substantial compliance with its obligation to ensure that the resident was not subjected to abuse.  Further, I conclude that CMS’s imposition of a $1,135 per day civil monetary penalty (CMP) from April 17, 2019 through July 8, 2019, for a total CMP of $94,205.00, is appropriate under the relevant statutory and regulatory factors for imposing CMPs.

Page 2

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), (2)(A).  “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 impose on an SNF, it determines the scope (i.e., the number of residents

Page 3

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); 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 the 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 October 11, 2018, and for deficiencies that occurred after November 2, 2015, the CMP amounts may range as follows:  $2,140 to $21,393 for per-instance CMPs; $107 to $6,418 per day for less serious noncompliance; or $6,525 to $21,393 per day for more noncompliance that poses immediate jeopardy to the health and safety of residents.  45 C.F.R. § 102.3 (2019); 83 Fed. Reg. 51,369, 51,380 (Oct. 11, 2018); see 42 C.F.R. § 488.438(a)(1) (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 such a showing is made, the SNF must then prove substantial compliance by a preponderance of the evidence.  Hillman Rehabilitation Ctr., DAB No. 1611 at 8 (1997); see Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004); Batavia Nursing & Convalescent Ctr., DAB 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.

Page 4

II.  Background and Procedural History

Petitioner is an SNF participating in the Medicare program.  On April 17, 2019, Petitioner reported to the California Department of Public Health (state agency) that a resident (Resident 1) had a bruise of unknown origin and that Resident 1 indicated that CNA 1 had squeezed her chin.  CMS Ex. 3 at 1.  State agency surveyors commenced a complaint investigation at Petitioner’s facility on April 18, 2019, and concluded that investigation on June 7, 2019.  CMS Ex. 1; CMS Ex. 3 at 3-4; CMS Ex. 10 at 1. 

As a result of the investigation, the state agency issued a Statement of Deficiencies (SOD) in which it found that Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(a)(1) (Tag F-600 - Freedom From Abuse, Neglect and Exploitation).  CMS Ex. 1.  In the SOD, the state agency concluded that “[t]his failure caused Resident 1 to experience emotional and physical harm.”  CMS Ex. 1 at 2.  The state agency later determined that Petitioner had returned to substantial compliance on July 9, 2019.  CMS Ex. 2 at 2.  Based on the SOD, on August 16, 2019, CMS issued an initial determination imposing a $1,135 per-day CMP on Petitioner for 83 days beginning on April 17, 2019, and ending on July 8, 2019, for a total CMP of $94,205.00.  CMS Ex. 2 at 1-2.

Petitioner timely requested a hearing before an ALJ to dispute the finding of a deficiency.  In response, the DAB’s Civil Remedies Division acknowledged receipt of the hearing request and issued my Standing Prehearing Order, which established deadlines and procedures for prehearing submissions. 

CMS submitted a prehearing exchange that included a prehearing brief and motion for summary judgment as well as 15 proposed exhibits (CMS Exs. 1-15).  CMS offered written direct testimony for one witness, Deborah Clifton, RN.  CMS Ex. 14.  Petitioner filed a prehearing exchange that included a prehearing brief opposing summary judgment as well as four proposed exhibits (P. Exs. A-D).  Petitioner offered written direct testimony for one witness, Todd Pratt, LNHA.  P. Ex. A.  CMS filed a reply brief.  In their filings, each party requested to cross-examine the opposing party’s witness. 

Shortly after receiving the prehearing submissions, Petitioner moved for leave to supplement its prehearing exchange with an additional exhibit (P. Ex. E).  CMS objected.  

In my April 8, 2021 Notice of Hearing, I denied CMS’s summary judgment motion and set a hearing for August 3, 2021.  In that notice, I also admitted all of the proposed exhibits into the record and overruled CMS’s objection to Petitioner Exhibit E. 

On August 3, 2021, I held a video teleconferenced hearing at which each party cross-examined the opposing party’s witness.  On August 20, 2021, I notified the parties that the hearing transcript (Tr.) had been completed and set a post-hearing briefing schedule. 

Page 5

I specified that the parties were to include all arguments they wanted me to address in their post-hearing briefs. 

On September 20, 2021, CMS timely filed its post-hearing brief (CMS Br.).  On October 20, 2021, Petitioner timely filed its post-hearing brief (P. Br.).  On October 29, 2021, CMS filed a Reply Brief (CMS Reply).

III.  Issues

1) Whether Petitioner was in substantial compliance with the Medicare requirements at 42 C.F.R. § 483.12(a)(1).

2) If Petitioner was not in substantial compliance, whether the amount/duration of the CMP imposed on Petitioner is appropriate under the factors in 42 U.S.C. § 1320a-7a(d) and 42 C.F.R. § 488.438(f).

IV.  Findings of Fact, Conclusions of Law, and Analysis

1. On April 17, 2019, while Resident 1 was a resident at Petitioner’s facility, CNA 1 squeezed Resident 1’s face/jaw with sufficient force to cause bruising.

In April 2019, Resident 1 was 69 years old and had been residing in Petitioner’s facility for approximately four years.  CMS Ex. 5 at 1.  Resident 1 was diagnosed with multiple physical and cognitive impairments, including:  hemiplegia and hemiparesis (paralysis on one side of her body) following unspecified cerebrovascular disease; generalized muscle weakness; vascular dementia without behavioral disturbance; anxiety disorder; aphasia following cerebrovascular disease; epilepsy; and muscle spasm.  CMS Ex. 5 at 2.  On February 1, 2019, Resident 1’s Brief Interview for Mental Status (BIMS) score was 4 out of 15 (severe cognitive impairment).  CMS Ex. 5 at 5; CMS Ex. 14 ¶ 9.  However, Petitioner’s staff noted in April 2019 that Resident 1 was “able to express how she feels or concerns if you get her in a quiet environment and allow her plenty of time to think and respond.”  CMS Ex. 5 at 21.

On April 17, 2019, facility staff noted that a bruise developed on Resident 1’s chin.  The primary factual matter disputed by the parties in this case is whether the bruise was caused by CNA 1 squeezing Resident’s 1 chin.  Based on the evidence of the record as a whole, as detailed below, I find that CMS met its burden of showing that prima facie evidence exists to support the finding that CNA 1 inappropriately squeezed Resident 1’s face, and Petitioner did not succeed in proving, by a preponderance of the evidence, that either CNA 1 did not squeeze Resident 1’s chin or that there was another cause for the bruising.  See Hillman, DAB No. 1611.

Page 6

In summary, multiple records show that, on April 17, 2019, there was an incident between Resident 1 and CNA 1 where Resident 1 screamed so loudly that staff ran to her room and observed CNA 1 exiting the room while commenting that Resident 1 scratched him.  A bruise developed on Resident 1’s chin within a couple of hours.  When asked the cause of the bruise, Resident 1 stated multiple times throughout April 17 that CNA 1 squeezed her chin.  She also vocalized fear of CNA 1 and identified him to police investigating the incident when shown pictures of three different individuals.  Petitioner’s internal investigation report concluded by stating that Petitioner had terminated CNA 1 for failing his new employee probation period and was informing the board that oversees CNAs of the April 17 incident.  Finally, in this proceeding, Petitioner admitted that CNA 1, acting as a rogue CNA, engaged in the conduct identified in the SOD and that Petitioner terminated CNA 1, which Petitioner described as a bad actor, for that misconduct.

The facts summarized above are reflected in the exhibits discussed below. 

A nurse recorded, in Resident 1’s Progress Notes, her observations concerning the incident on April 17, 2019.2   The nurse’s note describes the event as “04/17/2019 – Alleged/Suspected Abuse-Victim.”  CMS Ex. 5 at 20.  The portion of the note that reflects the nurse’s observations states as follows: 

At approximately 0300 a loud scream was heard from station 2 where in [charge nurse] went to station one in room 115.  Resident was sitting on toilet.  Pt was upset and stated “I don’t want him[.]”  [Charge nurse] switched resident with alternate CNA for resident care.  Pt was in agreement with change.  Later at approximately 0500 resident [1] was resting in bed and [charge nurse] noted discoloration to [Resident 1’s] right mandible approximately 3cm in diameter and lighter discoloration to her chin approximately 1 cm in diameter.  At approximately 0900 [Resident 1] was interviewed and asked what had happened to her chin and how she had attained the discoloration.  [Resident 1] replied, reaching for her chin area and s[t]ated “he squeezed” and proceeded to demonstrate how she was touched.  [Resident 1] was also asked who had done this act and she had replied “him” and stated she does not[] want said staff to handle her care.  [W]here in [Resident 1] was shown a picture of alleged abuser and had said “yes, that’s him”.  Staff ensured

Page 7

[Resident 1] that said staff member will no longer be helping her in the future. 

CMS Ex. 5 at 20. 

The nurse’s observations above establish that Resident 1 screamed loud enough to be heard at station 2 from her room near station 1 in the facility.  The nurse found Resident 1 on the toilet and upset, and Resident 1 stated that she no longer wanted the CNA who had been assisting her to continue assisting her.  It also establishes that a bruise became visible on Resident 1’s chin about two hours after Resident 1 screamed and that, when asked, Resident 1 identified the CNA who had been helping her as the person who had squeezed her chin and caused the bruise. 

The facility’s investigation report, authored by the facility Administrator, documented that the Administrator, with the charge nurse and Assistant Director of Nursing present, interviewed Resident 1 at 9:00 a.m. on April 17 concerning the bruise on Resident 1’s chin.  The Administrator recorded that Resident 1 said “he had grabbed her chin,” that she “did not want him to take care of her,” and that Resident 1 wanted the facility “to protect her.”  During this interview, Resident 1 identified CNA 1’s picture as the person who grabbed her chin.  CMS Ex. 9 at 7.  This report, therefore, is consistent with the Progress Notes in stating that Resident 1 identified CNA 1 as the individual who squeezed her chin causing the bruise. 

Resident 1 was assessed at approximately 11:40 a.m. on April 17 by a physician.  The physician recorded in Resident 1’s Progress Notes that Resident 1 is “awake alert oriented to self, says ‘he squeezed my chin.’”  CMS Ex. 5 at 26.  The physician also noted that there was bruising and swelling along Resident 1’s jaw that was mildly tender to the touch.  CMS Ex. 5 at 27.  This document shows that Resident 1, later in the morning of April 17, told a physician that her chin had been squeezed. 

Further, a Hospice Progress Note dated April 17, 2019, indicated that Resident 1 reported “pain to jaw” due to someone squeezing her.  The progress note recorded that a small abrasion was observed inside Resident 1’s mouth.  The note also indicated that Resident 1 was “tearful,” but was “able to clearly state what happened.”  Resident 1 expressed fear that CNA 1 would return.  CMS Ex. 5 at 31.  

In addition, on April 17, 2019, at around 2:35 p.m., the Administrator documented in his investigative report that a police officer arrived and interviewed Resident 1 regarding the abuse allegation.  Resident 1 reported that “he had grabbed her chin.”   The police officer showed Resident 1 photographs of three individuals and, from those pictures, Resident 1 identified CNA 1 as the person who grabbed her chin.  CMS Ex. 9 at 8. 

Page 8

As discussed in part above, the Administrator authored a report documenting his investigation into the April 17 incident.  That document was titled “5 DAY FOLLOW-UP,” and faxed to the state agency.  CMS Ex. 9 at 6-8.  The Administrator’s findings were that in the early hours of April 17, 2019, Resident 1 “yelled out.”  The charge nurse and a nursing assistant “ran toward [Resident 1’s] room.”  At the same time, CNA 1 was exiting Resident 1’s room and stated that Resident 1 scratched him.  The charge nurse and the nursing assistant both observed Resident 1 to be crying and saying that she did not want “him to take care of her.”  The report said that it was both the charge nurse and the nursing assistant’s understanding that Resident 1 was referring to CNA 1.  At that time there was no visible injury to Resident 1’s face.  CMS Ex. 9 at 7. 

The Administrator’s investigation further found that around 5:00 a.m. on April 17, a bruise was observed on the right side of Resident 1’s chin.  Significantly, the Administrator specifically noted that “[s]he had not had any recent falls.”  CMS Ex. 9 at 7. 

Following the Administrator’s interview with Resident 1 and Resident 1’s identification of CNA 1 as the individual who squeezed her chin, the report further recorded that, at approximately 9:30 a.m. on April 17, the Administrator suspended CNA 1 pending an investigation into the abuse allegations and directed CNA 1 to come into the facility for an interview.  During the interview later that morning, CNA 1 denied touching Resident 1’s face.  He further reported that Resident 1 was upset with him for “changing her brief when she did not want it done.”  CMS Ex. 9 at 7. 

The Administrator also interviewed the nursing assistant who had responded to Resident 1’s scream.  The nursing assistant confirmed that he heard Resident 1 yell and helped Resident 1 out of the bathroom, get dressed, and get back in bed.  CMS Ex. 9 at 7. 

The investigative report concluded that CNA 1 “is not an appropriate CNA for [Petitioner]” and that CNA 1 failed his 90-day probationary period.  As a result, Petitioner terminated his employment and reported CNA 1 to the “CNA Board.”  CMS Ex. 9 at 8.  There is little doubt that, far from exonerating CNA 1 or casting doubt on Resident 1’s allegations, the report concludes with the strong implication that CNA 1 acted improperly toward Resident 1 and was fired.  However, if the report lacks perfect clarity on this point, in its hearing request, Petitioner removed any doubt that CNA 1 was responsible for squeezing Resident 1’s jaw and that Petitioner terminated him for that misconduct.  As stated in the hearing request: 

Here the subject Deficiency documents unauthorized and inappropriate actions by a rogue CNA.  As soon as these actions were identified there was timely and accurate reporting to CDPH and to the Police.  A thorough and

Page 9

complete investigation was performed, and the bad actor was first suspended, and then terminated.

Hearing Req. at 5 (emphasis added).

Based on the evidence and admissions above, I find that CMS has met its “burden of coming forward with evidence sufficient to establish a prima face case”; therefore, Petitioner must now show, by a preponderance of the evidence, that Petitioner was in substantial compliance with Medicare requirements.  Hillman, DAB No. 1611. 

In its effort to meet its burden, Petitioner argued that there are two potential reasons for Resident 1’s bruise and that CMS improperly accepted the version of events provided by a severely cognitively impaired resident.  P. Br. at 4-5.  Specifically, Petitioner relied on Resident 1’s statements to state agency surveyors that the bruise was caused by a fall. 

The state agency surveyors arrived at Petitioner’s facility on April 18, 2019, and initiated their investigation into the April 17, 2019 incident.  The state agency surveyors interviewed Resident 1, and Resident 1 apparently gave conflicting accounts of her facial bruising.  Resident 1 initially stated that she has difficulty walking at times and fell and hit her jaw.  However, she also reported that she informed staff that CNA 1 grabbed her jaw and that “[h]e’s long gone.”  CMS Ex. 10 at 8-9.

State agency nurse surveyor Deborah Clifton testified in this proceeding regarding this interview with Resident 1.  Ms. Clifton stated that Resident 1 discussed both a fall and her chin being squeezed.  Tr. at 21-22.  Ms. Clifton thought Resident 1’s comments about falling were related to falling when she had a brain hemorrhage in the past and not in relation to the April 17 incident.  Tr. at 22-23.  Ms. Clifton further testified that BIMS scores fluctuate and that Resident 1 might have different scores each time she was assessed.  Tr. at 24-25. 

Ms. Clifton testified that she credited Resident 1’s statement that CNA 1 had squeezed her face, rather than Resident 1’s statement that she fell, because Resident 1 had repeatedly indicated that CNA 1 squeezed her face on April 17.  Tr. 50-51.  Further, Ms. Clifton noted that, had Resident 1 fallen on April 17, she would have expected Petitioner’s interdisciplinary team to determine the cause of the fall and update Resident 1’s care plan; however, Ms. Clifton stated there was no documentation of that.  Tr. at 51-53.  In fact, Ms. Clifton noted that there was no mention of the alleged fall in the care plan.  Tr. at 61; see P. Ex. C at 10-13 (showing edits to fall care plan as late as September 25, 2019, without mention of an April 17, 2019 fall). 

Ms. Clifton also testified that, based on a review of Resident 1’s medical status, she does not believe that Resident 1 would be able to get up from a ground-level fall unassisted.  Tr. at 53-54.  She said that Resident 1 “had a diagnosis of hemiparesis which is paralysis

Page 10

of one side of the body which would involve an upper and lower extremity and it - - associated with a stroke.”  Tr. at 69.

The record supports Ms. Clifton’s assertion that Resident 1 had a diagnosis of hemiplegia and hemiparesis following a cerebrovascular accident.  CMS Ex. 5 at 2, 32.  The record also shows that Resident 1’s BIMS score on February 1, 2019, was 4, which is significant cognitive impairment.  CMS Ex. 5 at 5.

While Petitioner attempts to use Resident 1’s cognitive limitations to its advantage, it appears more likely that they help explain why Resident 1 had difficulty recalling, on April 18, what had happened at 3:00 a.m. on April 17.  A Social Service Progress Note from April 18, 2019, provides what may be another summary of Resident 1’s meeting with the state agency surveyors.  The Social Services Director records that Resident 1 was having difficulty recalling the events of April 17 and why she had a bruise.  When asked by friends who were visiting, Resident 1 changed the subject.  When the state agency surveyors came to Resident 1, Resident 1 said “he is long gone.”  The note recorded that Resident 1 has stress when answering questions concerning the April 17 incident.  The note also indicated that Resident 1 told a psychologist that she could not recall what happened.  CMS Ex. 5 at 19.

It is interesting that the Social Services Director records Resident 1 telling the surveyors that “he is long gone,” just as the surveyor recorded that statement in the survey notes (CMS Ex. 10 at 8-9), but failed to record any statement about a fall.  The Social Services Director may also have interpreted Resident 1’s comments about a fall, like Ms. Clifton did, as in the past and not relevant to the surveyor’s investigation.  Had the Social Services Director thought that Resident 1 had fallen on April 17, she assuredly would have recorded that information in the progress notes so that Petitioner could properly modify Resident 1’s care plan.  

I credit Ms. Clifton’s testimony that Resident 1’s consistent statements on April 17, that CNA 1 squeezed her chin, constitute Resident 1’s real recollection of events.  Ms. Clifton supported her view by pointing out that there is absolutely no documentation that Resident 1 fell on April 17 and that had she fallen, there would be documentation.  This is true in part because Resident 1 would likely not have been able to get up unassisted from a ground-level fall.  Resident 1’s diagnoses support Resident 1’s likely inability to get up from a fall by herself.  Further, the Administrator’s investigative report expressly concluded that there had been no recent falls.  CMS Ex. 9 at 7.  Other than Resident 1’s statement on April 18, there is simply no reason to believe that Resident 1 fell on April 17. 

Finally, there is no doubt that on April 17, 2019, an incident occurred at about 3:00 a.m. and that the charge nurse observed Resident 1 asleep at 5:00 a.m. with a bruise on her chin.  CMS Ex. 5 at 20.  Resident 1’s statement concerning a fall provides no

Page 11

chronological relationship to these events.  To try to fit a fall in shortly before, or in between, these documented events is difficult to reasonably do. 

I particularly credit Ms. Clifton’s testimony related to medical matters and medical documentation because she has been a registered nurse for decades and holds three nursing degrees, including a Master of Science in Nursing.  CMS. Ex 13; CMS Ex. 14 ¶ 2. 

In his testimony, Petitioner’s Administrator, Todd Pratt, makes much of Resident 1’s statement to surveyors that she fell.  P. Ex. A ¶¶ 13 and 14.  However, Mr. Pratt interviewed Resident 1 on the morning of April 17 when Resident 1 identified CNA 1 as the person who squeezed her jaw.  CMS Ex. 9 at 7.  It was also Mr. Pratt’s investigation that ruled out a fall as the reason for Resident 1’s bruise.  CMS Ex. 9 at 7.  Further, in his testimony, Mr. Pratt referenced Resident 1’s care plan as evidence that Resident 1 was at risk for falls.  P. Ex. A ¶ 14.  However, more significant than the notation that Resident 1 had a risk for falls is that the care plan does not have an April 17, 2019 fall recorded nor any interventions related to such a fall.  P. Ex. B at 12; P. Ex. C. 

I do not credit Mr. Pratt’s testimony regarding the possibility that Resident 1’s bruise was caused by a fall.  Unlike Ms. Clifton, Mr. Pratt is not medically trained and licensed.  Further, Mr. Pratt’s testimony contradicts his investigation, which concluded there had been no fall. 

Petitioner also argued that CNA 1 told its Administrator and the state agency surveyors that Resident 1 yelled and scratched CNA 1 on April 17 because she did not want him to change her brief.  P. Br. at 6-7; CMS Ex. 3 at 2; CMS Ex. 9 at 7.  Petitioner asserted that CNA 1’s denial is only controverted by Resident 1.  P. Br. at 7. 

Petitioner supported this argument with Mr. Pratt’s testimony that he did not think abuse occurred.  P. Ex. A ¶ 8.  Mr. Pratt’s testimony also appears to indicate that he is now persuaded by CNA 1’s emphatic statements of innocence.  P. Ex. A ¶¶ 15-16.  Mr. Pratt also testified that his decision to terminate CNA 1 did not mean that Mr. Pratt thought CNA 1 abused Resident 1; rather, Mr. Pratt allegedly did so because CNA 1 “evidenced an attitude that was incongruous with our approach.”  P. Ex. A ¶¶ 9, 11. 

Contrary to his testimony, Mr. Pratt did not say any of these things in his investigation report.  Instead, Mr. Pratt wrote that “[a]t this time, we believe [CNA 1] is not an appropriate CNA for [Petitioner’s facility].  [CNA 1] has failed his 90 Day Probationary Period and will be term[inat]ed.  This incident will also be reported to the CNA Board for them to review.”  CMS Ex. 9 at 8.  This quote is the penultimate paragraph of his report and clearly connects the incident for which Mr. Pratt is referring CNA 1 to the “CNA Board” with the preceding sentences that CNA 1 failed his probation period.  It can be no coincidence that CNA 1 failed his probation period at the exact time he was investigated

Page 12

for the April 17 incident.  Because Mr. Pratt gave no other specific reasons for the termination, I do not find his testimony credible. 

I also do not credit Mr. Pratt’s testimony because Petitioner’s hearing request flatly contradicts it.  Petitioner stated that the acts described in the SOD were carried out by a “rogue CNA” and that, following a thorough investigation, the “bad actor” was terminated.  Hearing Req. at 5.  Mr. Pratt made no effort to explain why his testimony varies so greatly from his investigation report and Petitioner’s hearing request. 

Finally, as mentioned above, Mr. Pratt now testified that CNA 1 should be believed.  However, by the time Mr. Pratt provided his written testimony, CMS had submitted evidence that, in the weeks preceding the April 17, 2019 incident, CNA 1 was the subject of multiple complaints to the state agency involving abuse of SNF residents with dementia at other SNFs.  CMS Ex. 12 at 3, 5, 7; CMS Ex. 14 ¶¶ 7-8.  At the very least, these complaints cast some doubt as to whether one should believe CNA 1’s denials regarding Resident 1. 

Based on all the evidence in the record, I conclude that CMS established a prima facie case that CNA 1 grabbed Resident 1’s jaw causing bruising and swelling as well as emotional harm.  Resident 1’s story was consistent throughout April 17, as documented in the record.  Due to her dementia diagnosis, I consider these statements, made much closer in time to the incident, as Resident 1’s true view as to the cause of her bruise.  Further, the fact that the charge nurse identified bruising on Resident 1’s face two hours after the incident with CNA 1 further supports Resident 1’s version of events.  While CNA 1 never admitted to squeezing Resident 1’s jaw, his story that Resident 1 would scream so loud that a nurse and nurse assistant would run to her room from other parts of the facility simply because he changed her brief is not reasonable.  Resident 1’s scream coupled with her bruise appearing a couple of hours later certainly supports Resident 1’s allegation that CNA 1 physically hurt her face.  CMS could reasonably conclude that this was the most likely scenario based on these facts and circumstances.  For the reasons stated above, I find that Petitioner has not met its burden to prove that another scenario is more likely.3

Page 13

2. Petitioner was not in substantial compliance with 42 C.F.R. §§ 483.12(a)(1) (Freedom from abuse, neglect, and exploitation) because one of Petitioner’s employees abused Resident 1.

“[S]killed nursing facilit[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 generally states:

The resident has the right to be free from abuse, neglect, misappropriation of resident property, and exploitation as defined in this subpart.  This includes but is not limited to freedom from corporal punishment, involuntary seclusion and any physical or chemical restraint not required to treat the resident's medical symptoms.

42 C.F.R. § 483.12.  More specifically, the regulation prohibits a facility from using “verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion.”  42 C.F.R. § 483.12(a)(1).

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.”  42 C.F.R. § 483.5.

As set forth above, I have found that, on April 17, 2019, Petitioner’s employee, CNA 1, grabbed Resident 1 by the jaw causing bruising, swelling, and fear for her safety.4   In fact, CNA 1 grabbed Resident 1’s jaw with sufficient force that Resident 1 screamed and appears to have scratched CNA 1, perhaps in self-defense.  Resident 1’s pain in her jaw was only relieved later in the day when she received pain medication.  CMS Ex. 5 at 25.  The actions by CNA 1 is abuse under the regulations and is exactly the behavior that 42 C.F.R. §§ 483.12(a)(1) forbids.

Page 14

Petitioner argued that it should not be penalized for the “unauthorized and inappropriate actions by a rogue CNA” and that it did all it should have done in response to the allegation of abuse.  Hearing Req. at 5.  However, the fact that Petitioner acted appropriately in response to abuse allegations does not change the fact that Petitioner is responsible for the acts and/or omissions of its employees.  42 U.S.C. § 1320a-7a(l); Kindred Transitional Care and Rehab – Greenfield, DAB No. 2792 at 14 (2017) (holding that the SNF was “properly held responsible for the acts of abuse by the CNA, its (former) employee, by virtue of the obligations it assumes as a condition for receiving federal healthcare program monies.”).  Petitioner was obligated to investigate the allegation of abuse and its failure to do so would have been a violation of 42 C.F.R. § 483.12(c).  Accordingly, CMS did not find Petitioner noncompliant with that requirement.

I conclude that Petitioner was not in substantial compliance with 42 C.F.R. §§ 483.12(a)(1).

3. The $1,135 per-day CMP from April 17, 2019, through July 8, 2019, for the deficiency at 42 C.F.R. §§ 483.12(a)(1) is appropriate under the relevant statutory and regulatory factors for setting the amount of a CMP.

CMS imposed a $1,135 per-day CMP from April 17, 2019 through July 8, 2019, for the deficiency found at 42 C.F.R. §§ 483.12(a)(1) for a total CMP of $94,250.00.  CMS Ex. 2 at 2.  When CMS imposes a per-day CMP, an SNF may challenge the duration and amount of the CMP.

Duration of CMP

Petitioner did not challenge the duration of the CMP.  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)).   Therefore, I accept the duration as found by CMS.

Amount of CMP

When determining whether the amount of a CMP 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); 42 C.F.R. § 488.438(e)(3).  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

Page 15

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 sections 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). 

Below, I discuss the factors relevant to the amount of the CMP. 

Facility’s History of Non-Compliance:  CMS provided evidence (CMS Ex. 15) that Petitioner has a history of noncompliance with Medicare requirements based on surveys completed from 2016 through early 2019.  CMS argued that this history “justifies a higher CMP amount.”  CMS Br. at 22.  Specifically, the record shows 76 instances where Petitioner failed to be in substantial compliance with various Medicare requirements; however, none of the deficiencies involved actual harm to a resident, but there was a potential for more than minimal harm that was not immediate jeopardy.  See 42 C.F.R. § 488.404(b)(1)(ii).  Most of the deficiencies, 56, were “isolated” (i.e., “D” level) and only 2 were widespread (i.e., “F” level).  See 42 C.F.R. § 488.404(b)(1)(ii).  None of these deficiencies involved the abuse of residents.  While the incidents of prior noncompliance did not involve a finding of actual harm to residents, the quantity of deficiencies that had the potential to cause more than minimal harm in the three years before the April 17, 2019 incident support the CMP amount in this case. 

Scope and Severity of Deficiencies and Relationship Between Deficiencies:  The deficiency in this case involves actual harm to a resident by one of Petitioner’s employees.  The employee’s actions caused a bruise on Resident 1’s chin and pain that required medication to mitigate.  It also resulted in Resident 1 fearing for her safety.  Therefore, this factor supports the CMP amount that CMS imposed. 

Culpability:  CMS argued that Petitioner’s culpability in this case supports a CMP amount that is higher than the amount that CMS imposed.  Specifically, CMS pointed out that 42 C.F.R. § 488.438(f)(4) defines culpability to include, but is not limited to, neglect, indifference, or disregard for resident care, comfort, or safety.  CMS argued that Petitioner is liable for CNA 1’s abuse of Resident 1 and that the bruising, swelling, and emotional trauma inflicted on Resident 1 fits within this factor.  CMS Br. at 21.  Petitioner counters that its actions in conducting a comprehensive investigation of the April 17, 2019 incident and self-reporting the incident demonstrate “the exact opposite of

Page 16

indifference or disregard in the actions of [Petitioner.]”  P. Br. at 4.  While Petitioner investigated and reported the incident as required by regulations, I agree with CMS that Petitioner is responsible for the acts of its employee.  This factor supports the CMP amount that CMS imposed on Petitioner. 

Financial Condition of the Facility:  CMS points out that Petitioner did not submit any information showing that the CMP imposed on Petitioner would cause a financial hardship.  CMS Br. at 22.  Petitioner stated in briefing that it “is not going to suggest that it is under-capitalized” and did not argue that the CMP would cause financial hardship.  P. Br. at 3.  Therefore, I conclude that this factor does not support a reduction in the CMP amount imposed by CMS. 

CMP Amount:  CMS argued that a $1,135 per-day CMP is at the lower end of CMP range for a deficiency that did not involve immediate jeopardy.  CMS Br. at 20.  Petitioner asserted that the CMP, in the aggregate (i.e., $94,250), is “an exorbitant amount by any reasonableness standard,” is “extremely harsh and unsupportable,” and is “excessive.”  P. Br. at 2-4.  Petitioner also takes issue with CMS describing the CMP imposed as relatively modest and calls this statement “patently absurd.”  P. Br. at 3.  CMS is correct that the per-day CMP amount imposed is at the lower end of the range applicable to this case.  See 45 C.F.R. § 102.3 (2019); 83 Fed. Reg. at 51,380 (establishing an inflation adjusted CMP range based on the amounts in 42 C.F.R. § 488.438(a)(ii) of $107 to $6,418 per day for deficiencies that do not cause “immediate jeopardy.”).  Petitioner’s real concern is the amount of the CMP based on the duration of its noncompliance.  However, as mentioned above, Petitioner made no argument and supplied no evidence to challenge the duration by showing a return to substantial compliance earlier than July 8, 2019.  Based on the foregoing analysis of the relevant statutory and regulatory factors, I conclude that the $1,135 per-day CMP is fully supported and appropriate. 

V.  Conclusion

I conclude that Petitioner was not in substantial compliance with 42 C.F.R. §§ 483.12(a)(1) and that a $1,135 per-day CMP from April 17, 2019 through July 8, 2019, is appropriate under the applicable statutory and regulatory factors.

1. All citations to the Code of Federal Regulations are to the version in effect at the time of the survey unless otherwise indicated.
• back to note 1
2. Based on the facility investigation report, CMS Ex. 9 at 7, it is evident that the charge nurse on duty during the incident is the person who authored this entry in the Progress Notes.
• back to note 2
3. Petitioner submitted a November 27, 2019 notice from the state agency’s Professional Certification Branch in which it determined that no further investigation or disciplinary action was warranted at that time concerning the April 17 incident.  It also noted that CNA 1 would be notified if the investigation were reopened.  P. Ex. E.  I give little weight to the fact that the Professional Certification Branch declined to pursue disciplinary action against CNA 1.  There is no way to tell if an investigation were undertaken.  The notice does not set forth any findings of fact or rationale for its decision to suspend its investigation.  Further, the letter does not exonerate CNA 1 because it leaves open the possibility that the investigation may be reopened.  As a result, this letter is significantly less substantial than the state agency’s SOD, which included an investigation and the factual basis for its conclusions.
• back to note 3
4. During this proceeding, CMS posited an alternate theory as to why Petitioner was in noncompliance with 42 C.F.R. §§ 483.12(a)(1) (i.e., CNA 1’s nonconsensual removal of Resident 1’s brief on April 17, 2019).  CMS Br. at 14-16.  However, because I conclude that Petitioner was not in substantial compliance with § 483.12(a)(1) based on the factual scenario indicated in the SOD, I need not discuss CMS’s alternate theory.
• back to note 4