Windsor Calallen, DAB CR6100 (2022)

DECISION

Two residents at Windsor Calallen (Petitioner or facility), a skilled nursing facility (SNF), were involved in an altercation on March 15, 2020.  Resident 2, a male, entered the room of Resident 1, a female, and punched Resident 1 numerous times on her right shoulder.  Without thoroughly investigating the altercation, the Administrator and Director of Nursing (DON) determined that the altercation did not involve abuse.  Petitioner did not take sufficient measures to protect Resident 1 from future incidents of abuse or timely report the matter to the Texas Health and Human Services Commission (state agency).  As a result, the two residents engaged in a second altercation on March 27, 2020, in which Resident 2 punched Resident 1 at least twice on the left side of her face.  The Administrator and DON did not timely report the second incident to the state agency.

A state agency investigation, prompted by a complaint, resulted in a finding that Petitioner was not in substantial compliance with several Medicare participation requirements for SNFs and that Petitioner had immediately jeopardized the health and safety of residents.  Based on these findings, CMS imposed a per-day civil money penalty (CMP) on Petitioner.

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Petitioner disputes the state agency's findings and the CMP.  Petitioner does not dispute that the two altercations between Resident 1 and Resident 2 occurred.  Rather, Petitioner argues that the altercations were not foreseeable and involved physical behaviors, not abuse, because Resident 2 lacked the mental state required to abuse another resident.  Petitioner contends that it took numerous measures to address the residents' behaviors and prevent future incidents from occurring.  Petitioner also asserts that, because the altercations did not involve abuse, it was not required to report the incidents to the state agency.

As explained below, I uphold most of the deficiencies alleged against Petitioner and conclude that the CMP amount that CMS imposed was appropriate under relevant statutory and regulatory factors.

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).

In addition to complying with the terms of the provider agreement, a participating SNF must meet a variety of ongoing statutory requirements regarding how it provides services, maintains the rights of its residents, and administers its facility.  42 U.S.C. § 1395i-3(a)(3), (b)-(d).  Further, SNFs must comply with "such other requirements relating to the health, safety, and well-being of residents or relating to the physical facilities thereof as the Secretary may find necessary."1   42 U.S.C. § 1395i-3(d)(4)(B); see 42 U.S.C. § 1395i-

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3(c)(1)(xi), (f).  The Secretary has promulgated regulations to establish those additional requirements.  See 42 C.F.R. pt. 483, subpt. B.2

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 comprises 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 has the duty to enforce the statutory and regulatory participation requirements for SNFs.  42 U.S.C. § 1395i-3(f)(1).  To do so, 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.  Standard surveys are unannounced and occur at least once every 15 months.  42 U.S.C. § 1395i-3(g)(2)(A)(i), (iii)(I).  State agencies also conduct investigations into complaints against SNFs.  42 U.S.C. § 1395i-3(g)(1)(C), (4).  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 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).

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 January 17, 2020, and for deficiencies that occurred after November 2, 2015, the CMP amounts may range as follows:  $2,233 to $22,320 for per-instance CMPs; $112 to $6,659 per day for less serious noncompliance; or $6,808 to $22,320 per day for more serious noncompliance that poses immediate jeopardy to the health and safety of residents.  45 C.F.R. § 102.3 (2020); 85 Fed. Reg. 2869, 2870, 2880 (Jan. 17, 2020); see

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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 such a showing is made, 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 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 that operates in Corpus Christi, Texas.  The state agency conducted a complaint survey of Petitioner's facility from April 3 to April 10, 2020.  CMS Exs. 1, 9.  Based on its survey, the state agency issued a Statement of Deficiencies noting the following deficiencies:

• 42 C.F.R. § 483.12(a)(1) (Tag F600) (Free From Abuse and Neglect) at a scope and severity level of "K";
• 42 C.F.R. § 483.12(b)(1)-(3) (Tag F607) (Develop/Implement Abuse/Neglect Policies) at a scope and severity level of "K";

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• 42 C.F.R. § 483.12(c)(1), (4) (Tag F609) (Reporting of Alleged Violations) at a scope and severity level of "E";
• 42 C.F.R. § 483.12(c)(2)-(4) (Tag F610) (Investigate/Prevent/Correct Alleged Violation) at a scope and severity level of "K";
• 42 C.F.R. § 483.21(b)(2)(i)-(iii) (Tag F657) (Care Plan Timing and Revision) at a scope and severity level of "E";
• 42 C.F.R. § 483.25 (Tag F684) (Quality of Care) at a scope and severity level of "E"; and
• 42 C.F.R. § 483.70 (Tag F835) (Administration) at a scope and severity level of "K". 

CMS Ex. 2.

On September 25, 2020, CMS issued an initial determination adopting the state agency survey findings.  CMS imposed a $12,550 per‑day CMP for 26 days from March 15, 2020, through April 9, 2020, for a total CMP of $326,300.  CMS Ex. 3 at 1.

Petitioner timely requested a hearing before an ALJ to dispute the September 25, 2020 initial determination.  The Civil Remedies Division (CRD) acknowledged receipt of the hearing request and issued my Standing Prehearing Order (SPO).

In compliance with the SPO, CMS submitted a prehearing exchange that included a prehearing brief and motion for summary judgment (CMS Br.) as well as 13 proposed exhibits (CMS Exs. 1-13).  CMS offered written direct testimony for two witnesses, Laura Chapa, R.N. (CMS Ex. 12) and Daniel McElroy, R.N. (CMS Ex. 13).  Petitioner filed a prehearing exchange that included a prehearing brief opposing summary judgment (P. Br.) and offered written direct testimony for one witness, Jesusa K. Oviedo, R.N. (P. Ex. 1).

III.  Admission of Exhibits and Decision on the Written Record

Neither party objected to the opposing party's proposed exhibits.  Absent objections, I admit all of them into the record.  See SPO ¶ 9.

In the SPO, I indicated that the parties must submit written direct testimony for each of the witnesses they wanted to present and that I would only hold a hearing if a party or the parties requested to cross-examine one or more of the witnesses of the opposing party.  SPO ¶¶ 10-13.  As explained below, because the parties did not request to cross-examine any of the witnesses, I decide this case based on the written record.

Petitioner provided written direct testimony for one witness and CMS expressly declined to cross-examine that witness.  CMS provided written direct testimony for two witnesses; however, Petitioner ambiguously stated that "Petitioner may call any or all witnesses

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listed in Respondent's Exhibit and Witness List for direct examination."  Petitioner's Prehearing Exchange Witness and Exhibit List at 2.

If I were to consider this statement as attempting to reserve the right to cross-examine CMS's witnesses, it fails to comply with SPO ¶ 11, which directs the following:

A party has the right to cross-examine any witness for the opposing party.  42 C.F.R. § 498.62.  Absent an explicit request for cross-examination of a particular witness, I will not afford an opportunity for cross-examination.

If Petitioner wants to cross-examine any of CMS's witnesses, Petitioner will file a document naming the witnesses who Petitioner wants to cross-examine.  Petitioner must file this document at the time that Petitioner files the prehearing exchange.

This requirement is consistent with CRD Procedures § 16(b).  In this case, Petitioner only said it may want to call any or all of CMS's witnesses for direct examination.  This is insufficient because it is not an explicit request to cross-examine a particular witness.

Further, to the extent that Petitioner wants to provide direct testimony from witnesses, it only complied with the SPO regarding one witness.  In its Prehearing Exchange Witness and Exhibit List, Petitioner named a second witness but did not submit written direct testimony for that witness.  The SPO states that a party must submit written direct testimony for any witness it wants to present.  SPO ¶ 10; see CRD Procedures § 19(b).  Petitioner failed to provide the written direct testimony for the additional witness named in its witness list and did not express an inability to obtain the testimony or request a subpoena for the witness to compel testimony.  To the extent that Petitioner intended to elicit additional direct testimony from CMS's witnesses, Petitioner failed to state clearly that is what Petitioner wanted to do and failed to request a subpoena to compel those adverse witnesses to appear at the hearing.  See SPO ¶ 8 (providing instructions to request a subpoena for witnesses).  Therefore, I will not hold a hearing to take direct testimony from any of the witnesses Petitioner references.

As a result, I issue this decision based on the written record and deny CMS's summary judgement motion as moot.  SPO ¶¶ 12-13; CRD Procedures §§ 19(b), (d); Vandalia Park, DAB No. 1940 at 28-30 (2004); Pac. Regency Arvin, DAB No. 1823 at 8 (2002).

IV.  Issues

1) Whether Petitioner was in substantial compliance with the Medicare requirements for SNFs at 42 C.F.R. §§ 483.12(a)(1) (Tag F600), 483.12(b)(1)-(3) (Tag F607),

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483.12(c)(1), (4) (Tag F609), 483.12(c)(2)-(4) (Tag F610), and 483.21(b)(2)(i)-(iii) (Tag F657);3  

2) If Petitioner was not in substantial compliance with program requirements, whether CMS's determination that the noncompliance with 42 C.F.R. §§ 483.12(a)(1) (Tag F600), 483.12(b)(1)-(3) (Tag F607), and 483.12(c)(2)-(4) (Tag F610) immediately jeopardized the health and safety of the facility's residents is clearly erroneous; and

3) If Petitioner was not in substantial compliance with Medicare requirements, whether a $12,550 per‑day CMP for 26 days is appropriate under the statutory and regulatory factors for setting a penalty amount.  42 U.S.C. § 1320a-7a(d); 42 C.F.R. § 488.438(f). 

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

1. Resident 1 was a 76-year-old woman with dementia, depression, and anxiety.  She had impaired cognitive functioning and thought processes and was at-risk for increased anger, feeling threatened, inappropriate responses to verbal communication, and violence or aggression towards staff and residents.  Resident 1 was noted to have issues with men due to her past family history.

In March 2020, Resident 1 was 76 years old and had resided at the facility since July 26, 2019.  CMS Ex. 6 at 106.  Resident 1's diagnoses included:  atherosclerotic heart disease; hypertension; type 2 diabetes mellitus without complications; muscle wasting and atrophy; age-related physical debility; unspecified dementia without behavioral disturbance; major depressive disorder, recurrent severe without psychotic features; and generalized anxiety disorder.  CMS Ex. 6 at 107, 127.  Resident 1 had impaired cognitive function and thought processes related to dementia and was dependent on staff for meeting her emotional, intellectual, physical, and social needs.  CMS Ex. 6 at 52, 59-60.

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She also had limited mobility and self-care activities of daily living (ADLs) deficits related to Alzheimer's disease.  CMS Ex. 6 at 50-51, 53, 54.  Resident 1 was at moderate risk for falls due to confusion, incontinence, unawareness of safety needs, and unsteadiness on her feet.  CMS Ex. 6 at 65.  She was an elopement risk/wanderer and had a history of attempting to leave the facility unattended.  CMS Ex. 6 at 55.  Resident 1 resided in the secured dementia unit.  CMS Ex. 6 at 38.

Because of her anxiety disorder, Resident 1 used Ativan, which could result in an increased risk of confusion, amnesia, cognitive impairment, depression, and impaired thinking and judgment.  CMS Ex. 6 at 71.  Her care plan noted that unexpected side effects of anti-anxiety medications included hostility, rage, and aggressive or impulsive behavior.  CMS Ex. 6 at 71.  An intervention to prevent Resident 1 from experiencing adverse reactions to anti-anxiety therapy was to monitor and record behavior symptoms including inappropriate responses to verbal communication and violence or aggression towards others.  CMS Ex. 6 at 71.

To address Resident 1's depression, her care plan prescribed that Petitioner should monitor, document, and report any symptoms indicating a risk for harming others including increased anger, labile mood or agitation, and feeling threatened by others or thoughts of harming someone.  CMS Ex. 6 at 72.

On February 4, 2020, Petitioner updated Resident 1's care plan to reflect that Resident 1 "is/has the potential to be physically aggressive" because of her dementia and depression.  CMS Ex. 6 at 56, 76.  One version of the document also notes that Resident 1 had some issues with men due to her past family history and "could become aggressive with staff and at times other residents," although it is unclear whether these statements were included in the original version of the care plan or added upon revision on April 6, 2020.  CMS Ex. 6 at 56.  Prior to the March 15 and 27 altercations with Resident 2, Resident 1 had been involved in two incidents with two other residents that involved aggressive behavior.  CMS Ex. 6 at 126.

2. Resident 2 was an 82-year-old man with encephalopathy, altered mental status, dementia, and mixed receptive-expressive language disturbance.  He had impaired cognitive function and thought processes.

In March 2020, Resident 2 was 82 years old and had only resided at the facility since February 7, 2020.  CMS Ex. 7 at 63.  Resident 2's diagnoses included:  encephalopathy, a brain disease that alters brain function or structure; altered mental status; unspecified dementia without behavioral disturbance; mixed receptive-expressive language disturbance; muscle wasting and atrophy; and chronic kidney disease.  CMS Ex. 7 at 63-64; CMS Ex. 12 ¶ 11.  Resident 2 had impaired cognitive function and thought processes related to dementia and was dependent on staff for meeting his emotional, intellectual, physical, and social needs.  CMS Ex. 7 at 30.  He had self-care ADL deficits related to

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Alzheimer's disease.  CMS Ex. 7 at 31-33.  Resident 2 was at-risk for elopement and wandering because he was disoriented to place and had impaired safety awareness.  CMS Ex. 7 at 35.  He also significantly intruded on others' privacy and activities.  CMS Ex. 7 at 35.  Resident 2 resided in the secured dementia unit.  CMS Ex. 7 at 28, 79.

3. On March 15, 2020, Residents 1 and 2 were involved in a physical altercation in Resident 1's room.  Petitioner notified the residents' physicians and responsible parties, interviewed staff, completed physical aggression incident reports, and created acute care plans for both residents.  The facility placed the residents on 72‑hour monitoring.  Resident 2's physician also ordered a urinalysis and antibiotics for a potential urinary tract infection (UTI).

Residents 1 and 2 were involved in a physical altercation on the evening of March 15, 2020.  CMS Ex. 6 at 32; CMS Ex. 7 at 12.

Certified nursing assistant (CNA) A witnessed the altercation between the residents and provided a statement to the state surveyor on April 6, 2020 (CMS Ex. 6 at 8), as well as a statement to the facility's DON, assistant DON, and Administrator on April 7, 2020 (CMS Ex. 6 at 109).  CNA A first recounted that another staff member told her that earlier in the day, the staff member heard Resident 2 saying the following about Resident 1:  "Well that son of a bitch needs to Be Hit."  CMS Ex. 6 at 8.  The state agency surveyor corroborated this information in an interview with CNA B, who said that Residents 1 and 2 had been staring at each other throughout the day and that Resident 2 was staring at Resident 1 when he commented that Resident 1 needed to be hit.  CMS Ex. 9 at 3.

According to CNA A's statements, either between 7:00-8:00 p.m. or at about 8:30 p.m., Resident 1 informed CNA A that she was going to her room to get ready for bed.  CMS Ex. 6 at 8, 109.  Shortly after, CNA A heard mumbling and loud thumping noises coming from Resident 1's room.  CMS Ex. 6 at 8, 109.  When CNA A walked into Resident 1's room, she observed Residents 1 and 2 standing next to the bed by the closet.  CMS Ex. 6 at 109.  Resident 2's left arm was over Resident 1's chest and Resident 2 hit Resident 1's left shoulder with his right fist.  CMS Ex. 6 at 8, 109; CMS Ex. 9 at 2.  One of the state agency surveyors testified that CNA A stated to the surveyor that Resident 2 had pinned Resident 1 between the wall and closet and that Resident 1 was trying to block Resident 2's punches. CMS Ex. 9 at 2; CMS Ex. 12 ¶ 13.  Upon seeing this, CNA A intervened and blocked some of the punches.  CMS Ex. 9 at 2.  After CNA A separated the residents, Resident 1 stated that she had bit Resident 2's hand.  CMS Ex. 6 at 109.

Staff assessed the residents, notified the DON and the residents' physicians and responsible parties, completed physical aggression incident forms, and documented the altercation in the residents' nursing notes.  CMS Ex. 6 at 32-35; CMS Ex. 7 at 12, 26-28, 65-67; P. Ex. 1 at1.  On March 15, Resident 1 denied having pain and the skilled nurse

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did not find any redness or discoloration on Resident 1's shoulders.  CMS Ex. 6 at 32, 33; P. Ex. 1 at 1.  By the next day, Resident 1 developed a bruise on her left shoulder.  CMS Ex. 6 at 9, 31; P. Ex. 1 at 1.  Resident 2 had discoloration and bruising on his right hand.  CMS Ex. 7 at 12, 26, 28, 65, 67, 68.

On March 15, two staff members, licensed vocational nurse (LVN) C and CNA B were interviewed.  CMS Ex. 6 at 111-12.  LVN C provided information about Resident 1's account of the altercation and LVN C's assessment of Resident 1, which included no pain or discoloration regarding Resident 1's left shoulder.  CMS Ex. 6 at 111.  CNA B relayed that there had been a physical altercation and that the residents had been separated.   CMS Ex. 6 at 112.  There is no document showing that Petitioner's staff interviewed CNA A about the March 15 altercation until April 7.  CMS Ex. 6 at 109.

On March 15, Petitioner also created Behavior – Acute Care Plans for both residents noting that the residents had displayed physical aggression/combativeness and placed the residents on 72-hour monitoring.  CMS Ex. 6 at 10, 31-33, 35, 116-119; CMS Ex. 7 at 6, 12, 26, 28, 65, 67, 69-72.  Resident 2's physician ordered a urinalysis to check for a UTI and prophylactic antibiotics because Resident 2's aggression was unexpected and UTIs could cause behavior changes in dementia patients.  CMS Ex. 7 at 6, 12, 26, 28, 65, 67; P. Ex. 1 at 1.  The UTI test results are not in the record.

4. Resident 1 sustained two falls on March 20, 2020, which caused a scalp hematoma and bruising on the left side of her face.

On March 20, 2020, Resident 1 fell as she attempted to sit in a chair in the common dining room and hit her right upper brow on the floor.  CMS Ex. 6 at 36, 38.  Nursing staff observed a 3 cm x 3 cm raised area on Resident 1's right brow that eventually healed.  CMS Ex. 6 at 17, 36.  Later that evening, nursing staff found Resident 1 lying on her left side on the floor next to her bed.  CMS Ex. 6 at 18, 39.  Staff observed a 2 cm x 2 cm hematoma on the left side of her left brow.  CMS Ex. 6 at 18, 39, 41.  On March 20, the facility initiated a Post Fall Care Plan and Pain – Acute Care Plan.  CMS Ex. 6 at 14-16.   On March 21, 2022, Resident 1 went to a hospital and tests showed bruising of the scalp; however, there was no evidence of intracranial bleeding.  CMS Ex. 6 at 19-25.  Petitioner's DON stated that the bruising on the left side of Resident 1's face was not present prior to the fall on March 20, 2020.  P. Ex. 1 at 1-2.

5. Resident 2 developed a UTI on or around March 25, 2020.  Interventions included monitoring Resident 2 for symptoms such as altered mental status and behavioral changes.

Nursing notes dated March 25 indicated Resident 2's physician ordered penicillin treatment for seven days.  CMS Ex. 7 at 11.  Resident 2 took the first dose on March 26, 2020.  CMS Ex. 7 at 11.  Interventions included antibiotic and other medication therapy

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and monitoring for UTI symptoms such as altered mental status and behavioral changes.  CMS Ex. 7 at 42.

6. Resident 1 and Resident 2 were involved in a second physical altercation on March 27, 2020, in which Resident 2 punched Resident 1 in the face at least two times.  The facility notified the residents' physicians and responsible parties, interviewed staff, completed physical aggression incident reports, and developed behavioral acute care plans for the residents.  Petitioner placed the residents on 72-hour monitoring.

Residents 1 and 2 were involved in a second altercation in the afternoon on March 27, 2020.  CMS Ex. 6 at 29; CMS Ex. 7 at 11.

Petitioner interviewed CNA B, who witnessed part of the altercation.  The record includes two written witness interview statements (CMS Ex. 6 at 13; CMS Ex. 7 at 9) from CNA B.  CNA B provided additional details on one of her witness interview statements on April 8 (CMS Ex. 6 at 114).

According to her statements, CNA B was in a resident room and ran out into the hallway when she heard Resident 1 yelling.  CNA B observed Resident 2 punch Resident 1 twice, once near her temple and once near her eye.  CNA B stated that she intervened.  Resident 2 grabbed CNA B's hand and Resident 2 only let go when CNA B yelled to him and told him that he was hurting her.  CMS Ex. 6 at 13; CMS Ex. 7 at 9.

In one of her statements, CNA B stated that as she led Resident 2 away from Resident 1, Resident 1 continued "calling [Resident 2] names."  CMS Ex. 7 at 9.

Petitioner also interviewed LVN C.  However, LVN C did not witness the incident and her statement consisted primarily of what CNA B told her and her medical assessment of Resident 1.  CMS Ex. 6 at 113.  According to LVN C's March 27 nursing note for Resident 1, Resident 1 told LVN C that she was hit in the face and had pain.  CMS Ex. 6 at 113.  LVN C administered Tylenol.  CMS Ex. 6 at 113.  Further, LVN C notified the DON and the residents' physicians and responsible parties and completed physical aggression incident forms.  CMS Ex. 6 at 113.  LVN C also documented the altercation in a nursing note in Resident 2's record.  CMS Ex. 6 at 29, 42-47; CMS Ex. 7 at 11, 17-19.

Resident 1 had a hematoma on the top of her left eyebrow, swelling on the left side of her face, and bruising/discoloration from the second March 20 fall.  CMS Ex. 6 at 29, 42, 44, 45, 47.  Resident 1 verbalized pain and took pain medication.  CMS Ex. 6 at 29, 42, 44, 45, 47.  Resident 1 denied being fearful of Resident 2 at that time.  CMS Ex. 6 at 44.  Resident 2 did not display any signs or symptoms of anxiety/distress or pain/discomfort and stated that he was not afraid of Resident 1.  CMS Ex. 7 at 11, 17, 19.

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The facility placed both residents on 72-hour monitoring and created Behavior – Acute Care Plans for both residents.  CMS Ex. 6 at 11, 29, 42, 44, 45, 47, 120-123; CMS Ex. 7 at 8, 11, 17, 19, 73-76.  Resident 1's plan noted that she "received physical aggression."  CMS Ex. 6 at 11.  Resident 2's plan identified that he had displayed physical aggression/combativeness.  CMS Ex. 7 at 8.  Interventions for both residents included notifying the resident's physician and responsible party of any change in behaviors and initiating resident monitoring.  CMS Ex. 6 at 11; CMS Ex. 7 at 8.  The facility also prescribed a new medication and ordered a psychological evaluation for Resident 2.  CMS Ex. 7 at 8, 11.

During the survey, the surveyor observed that Resident 1 had purple discoloration beneath her left eye and on the left side of her face from her temple to her cheek.  CMS Ex. 9 at 1; CMS Ex. 12 ¶ 7a; CMS Ex. 6 at 124.  When asked about the March 27 altercation, CNA B told the state surveyor that Resident 2 frequently believed Resident 1 was a man.  CMS Ex. 9 at 3.  CNA B also explained to the state surveyor that Resident 1 seemed to be angry with Resident 2 because Resident 2 hit her and would often stand in front of Resident 2 or make a comment towards Resident 2.  CMS Ex. 9 at 3.

7. Following the March 27, 2020 altercation, the facility trialed both residents outside of the secured dementia unit.  Petitioner trialed Resident 2 outside the secured unit multiple times but determined Resident 2 required supervision outside the secured unit.  Petitioner later trialed Resident 1 outside the secured unit and placed her on one-to-one monitoring.  Residents 1 and 2 failed their trials and were both returned to the secured unit.  During the survey, the surveyor observed Resident 2 wandering throughout the secured unit and walking past Resident 1's room.

The facility Administrator told the surveyor that the facility "trialed both [residents] out of unit but the trial was not successful, and family were made aware of the situations."  CMS Ex. 9 at 4.  The DON testified that the facility first trialed Resident 2 outside of the secure unit and he did not display any signs of aggression from March 27 to 29, but the facility moved him back to the secured dementia unit because staff observed Resident 2 wandering in the hallway and exhibiting exit seeking behavior.  P. Ex. 1 at 2.  The March 27 incident report noted that "after several hours of being in regular population," Resident 2 was ambulating down the hall and walking into other residents' rooms.  CMS Ex. 7 at 19.

Resident 2 also wandered in the hallways back in the secured unit.  On April 6 and 7, the surveyor observed Resident 2 walking back and forth in the hallway of the secured unit, passing Resident 1's room each time.  CMS Ex. 9 at 1; CMS Ex. 12 ¶ 14a.

Notes from the facility's April 8 investigation indicated the facility trialed Resident 2 outside of the dementia unit multiple times but determined that Resident was "not a

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candidate to be out of Generations unit without supervision."  CMS Ex. 7 at 68.  The facility moved Resident 2 out of the secured unit again on April 8 and placed him on one-on-one supervision.  CMS Ex. 7 at 13-14.  The facility also discussed relocating Resident 2 to another facility with Resident 2's family.  CMS Ex. 7 at 13-14.

The facility also trialed Resident 1 outside the secured unit.  The March 27 incident report indicated that after approximately four hours, Resident 1 began ambulating down the hallway and asking for a way out of the facility, even after staff attempted to redirect her.  CMS Ex. 6 at 44.  The facility moved the resident back to the secured unit for her safety.  CMS Ex. 6 at 44.  On April 7, Petitioner's interdisciplinary team decided to move Resident 1 to a different unit and placed her on one-on-one monitoring.  CMS Ex. 6 at 28.

8. Petitioner did not identify Resident 2's two separate acts of aggression towards Resident 1 as abuse.  As a result, Petitioner did not report the March 15 and 27 altercations to the state agency or other appropriate authorities until the state surveyor recommended the facility report the altercations.  Petitioner also failed to thoroughly investigate the altercations.

According to Petitioner's Abuse Prevention Program, residents have a right to be free from abuse.  CMS Ex. 10 at 3.  The policy states that the facility is "committed to protecting our residents from abuse by anyone including . . . other residents."  CMS Ex. 10 at 3.  The abuse prevention program includes identifying occurrences and patterns of potential abuse; training staff on abuse prevention, identification, and reporting; timely and thorough investigations of all reports and allegations of abuse; protecting residents during abuse investigations; reporting and filing and accurate documents relative to alleged incidents of abuse; and implementing changes to prevent future occurrences of abuse.  CMS Ex. 10 at 3.  Further, during investigations of alleged abuse by another resident, the facility's policy provided that the facility would restrict the accused resident's ability to visit other resident's rooms unattended.  CMS Ex. 10 at 5.

Petitioner's abuse policy further provided that "should an incident or suspected incident of resident abuse, mistreatment, neglect or injury of unknown source be reported, the Administrator, or his/her designee, will appoint a member of management to investigate the alleged incident."  CMS Ex. 10 at 1.  An investigation will include, at a minimum: reviewing the resident's medical record; interviewing the person(s) reporting the incident; interviewing any witnesses to the incident; interviewing the resident, as appropriate; interviewing the resident's attending physician; and interviewing staff members who have had contact with the resident during the period of the alleged incident; interviewing the resident's roommate, family members, and visitors; and review all events leading up to the alleged incident.  CMS Ex. 10 at 1.  The investigator or witnesses will create a written statement and the witness will sign the statement.  CMS Ex. 10 at 2, 8.  Petitioner also had a reporting policy that required the facility to immediately report "all suspected

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violations and all substantiated incidents of abuse . . . to appropriate state agencies and other entities or individuals as may be required by law."  CMS Ex. 10 at 10.

Petitioner identified the two altercations as "physical behaviors between the residents" rather than abuse.  CMS Ex. 9 at 4.  Petitioner's Administrator, who is also the abuse coordinator, determined the "two physical aggressive incidents by Resident # 2 did not meet the reporting criteria because [the residents] both had dementia with no major injury."  CMS Ex. 12 ¶ 16; see also CMS Ex. 9 at 4.  Similarly, the DON told the surveyor that both residents were "confused," and the incidents did not fall under the guidelines to report.  CMS Ex. 12 ¶ 15; see also CMS Ex. 9 at 3-4.  In her written testimony, the DON further explained:

Nothing in Resident # 2's medical history led the nursing staff to believe that the March 15th incident in Resident # 1's room was anything more than an isolated incident arising from Resident # 2's confusion in entering the wrong room.  The Facility staff could not anticipate ongoing animosity between the two residents and there were no adverse events between March 15 and March 27 which would have indicated ongoing issues.

P. Ex. 1 at 3.

Because Petitioner determined the altercations were not abuse, Petitioner did not thoroughly investigate the incidents in accordance with its abuse policy.  The Administrator explained to the surveyor that the facility's investigation of the incidents included daily monitoring of the residents, verbal interviews with staff, and documentation of the incident in nursing notes.  CMS Ex. 9 at 4.  However, the record shows Petitioner's investigation was limited.  The facility only took two witness statements (CMS Ex. 6 at 13, 111-114; CMS Ex. 7 at 9) for each altercation and did not interview CNA A, who witnessed the March 15 altercation.  There is no documentation showing that the facility tried to locate additional witnesses to the March 27 incident even though it took place in a common area.  The Administrator also told the surveyor that the facility did not have any additional statements or documents related to its investigations other than the incident reports and nursing notes.  CMS Ex. 9 at 4.

On April 7, the facility conducted a further investigation of the March 15 altercation and interviewed, for the first time, CNA A.  CMS Ex. 6 at 108, 109; CMS Ex. 7 at 68.  On April 8, the facility conducted a further investigation of the March 27 altercation.  CMS Ex. 6 at 110.  Petitioner then updated the incident reports with additional witness statements.  CMS Ex. 6 at 47, 114; CMS Ex. 7 at 67.  It also appears the facility did not complete an Admission/Readmission Skin Audit until April 7, which noted that Resident

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1 had a raised area and fading discoloration around her left eye and fading discoloration on her left cheek.4

Additionally, Petitioner did not report the altercations or the results of its investigations to the state agency or other appropriate officials.  Upon review and recommendation by the state surveyor, Petitioner reported the altercations to the state agency and local police department on April 7.  CMS Ex. 6 at 110, 125.

9. Petitioner did not timely or thoroughly evaluate the residents after the altercations.  As a result, Petitioner failed to prevent Resident 2 from hitting Resident 1 a second time.  Petitioner also failed to identify and address Resident 1's fear of Resident 2, agitation, and resistance to care, which constituted psychological harm to Resident 1 by the facility.

The facility's physician did not perform a physical and mental assessment of the residents until April 8, 2020.  CMS Ex. 6 at 126-128; CMS Ex. 7 at 79.  Petitioner's social worker did not meet with the residents until after the second incident, did not discuss the specifics of the incident or if they were fearful:  "the conversation did not go very far with either one of them."  CMS Ex. 9 at 3.  It is unclear when after the second incident the social worker met with the residents, but the record only includes social services notes dated April 7 and 8.  CMS Ex. 6 at 28; CMS Ex. 7 at 13, 15.

The social worker told the state surveyor that the interdisciplinary team did not further explore or investigate Resident 1's increased agitation and resistance to care but acknowledged that Resident 1's behaviors could have resulted from Resident 2 being in Resident 1's line of sight or Resident 1 being afraid and angry at Resident 2 for punching her.  CMS Ex. 12 ¶ 9.

After interviewing the social worker, the surveyor accompanied the social worker to interview Resident 1.  Resident 1 recalled the two altercations and expressed that she was angry that Resident 2 hit her in the face (while making her hand into a fist to show how he hit her) because she believed that a man should not hit a woman.  CMS Ex. 12 ¶ 14.  Resident 1 also expressed to the social worker that she was very angry, distrustful, and scared.  CMS Ex. 12 ¶ 14.  Later, the social worker revealed to the surveyor that she "did not know any of that but [] will definitely follow up."  CMS Ex. 9 at 3.  The social worker did not specially ask Resident 1 how she felt about Resident 2.  CMS Ex. 12 ¶ 14.

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The record shows that following the March 15 altercation, Resident 1 was afraid of Resident 2 and did not feel safe when Resident 2 was around.  Resident 2's March 15 incident notes stated that Resident 2 denied being fearful of Resident 1.  CMS Ex. 7 at 28, 67.  However, Resident 1's incident notes do not reflect whether staff asked Resident 1 if she was afraid of Resident 2.  See CMS Ex. 6 at 33-35.  LVN C told the state surveyor that she did not ask Resident 1 about her feelings towards Resident 2 or if Resident 1 feared anyone.  CMS Ex. 9 at 4.

The day after the altercation, Resident 1 informed CNA A that "she was afraid of [Resident 2]" and "[did not] feel safe" when Resident 2 was around.  CMS Ex. 6 at 9.  After the altercation, Resident 1 blocked her door with a chair and her roommate's wheelchair.  CMS Ex. 6 at 9.  Resident 1 also had taken a butter knife because she "need[ed] a weapon to defend herself."  CMS Ex. 6 at 9.  CNA A informed the LVNs that Resident 1 was afraid of Resident 2.  CMS Ex. 6 at 9.

Resident 1 told the surveyor that she "felt drunk from lack of sleep because she did not sleep well at night because she was afraid 'The man' was going to come back and hurt her again" and that she "hated that man for hitting her and was afraid of him."  CMS Ex. 9 at 2; CMS Ex. 12 ¶ 10.  Resident 1 also told the state surveyor that she wanted the curtain pulled all the way around her bed so that Resident 2 could not see her when he was walking back and forth in the hallway.  CMS Ex. 9 at 2; CMS Ex. 12 ¶ 10.  The surveyor observed Resident 1 sitting on the edge of her bed with the privacy curtain pulled around the bed frequently looking around the privacy curtain into the hallway.  CMS Ex. 12 ¶ 7a.  Resident 1 told the surveyor that she was looking for Resident 2.  CMS Ex. 12 ¶ 7a.

CNA A told the surveyor that for a couple of days following the March 15 altercation, Resident 1 stayed in her room behind the privacy curtain, blocked the doorway to her room with her wheelchair to keep Resident 2 from coming in, and did not want to be around Resident 2.  CMS Ex. 9 at 2; CMS Ex. 12 ¶ 8.  However, Resident 1 then began watching Resident 2 and purposely walked in front of Resident 2, staring him down.  CMS Ex. 12 ¶ 8.

In addition to being fearful of Resident 2, Resident 1 displayed agitation and aggression towards staff and Resident 2.  March 20 nursing notes stated that Resident 1 was verbally aggressive towards a male resident in the secured unit.  CMS Ex. 6 at 31.  When asked, Resident 1 stated that she had known the resident for years and did not like him.  CMS Ex. 6 at 31.  Staff notified Resident 1's physician that she was "hyper fixating" on the male resident, modified her medication, notified her responsible party, and indicated that they would continue to monitor the resident.  CMS Ex. 6 at 31.

On March 23, Resident 1 displayed combative behaviors towards staff throughout the day, had a new onset of resisting care, and was not easily redirected.  CMS Ex. 6 at 30.

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The facility notified the resident's physician and modified her medication.  CMS Ex. 6 at 30.  A March 24 nursing note indicated that Resident 1 had "increased episodes of anxiety resulting in behaviors."  CMS Ex. 6 at 30.  Later that day, a social services note stated "Resident with recent changes in behavior including increased agitation."  CMS Ex. 6 at 30.  Resident 1 continued to be agitated and was verbally aggressive towards other residents in the unit.  CMS Ex. 6 at 30.  Resident 1 "believe[d] another male resident [was] after her" and continued to have delusions.  CMS Ex. 6 at 30.  Staff were unable to redirect the resident because of her impaired cognition but notified Resident 1's physician and continued to monitor the resident.  CMS Ex. 6 at 30.

CMS provided testimony from a CMS Registered Nurse (RN), Daniel J. McElroy, who has bachelor degrees in nursing and psychology.  CMS Ex. 13 at 1.  He testified that Resident 1's description of the abuse "indicates she perceived this to be physical and sexual abuse."  CMS Ex. 13 at 3.  Mr. McElroy further explained that Petitioner's failure to treat Resident 2's behavior as abuse constituted "prolonged mental abuse of Resident 1 by the facility [because] the facility permitted Resident # 2 to roam freely and unsupervised on the secured unit" where both residents resided.  CMS Ex. 13 at 3 (emphasis in original).

10. Petitioner did not timely develop and implement effective interventions to address the residents' aggressive behaviors and prevent further incidents of abuse.

The facility did not develop and implement effective interventions to address both residents' aggressive behaviors until more than a week after the second altercation.  On April 6, Petitioner updated Resident 1's care plan with new goals to address her physical aggression.  CMS Ex. 6 at 56.  The new goals were to ensure Resident 1 did not harm herself or others and to have Resident 1 seek out staff or a caregiver whenever she became agitated.  CMS Ex. 6 at 56.  The only previous interventions were initiated in February 2020, nearly a month before the March 15 incident.  CMS Ex. 6 at 56.

On April 7, Petitioner again updated Resident 1's care plan noting that:

[Resident 1] was abuse[d] in her MARRIAGE[.] [S]he has issues with some men, one man that shares the generations unit with her seems to remind her of someone in her past.  [Resident 1] becomes verbally and physically aggressive with this man.

CMS Ex. 6 at 76.  It further stated that on March 15, "[Resident 1] bit [Resident 2] after she became verbally aggressive with him."  CMS Ex. 6 at 76.  Petitioner also developed a plan to address Resident 1's potential to be verbally aggressive, noting that Resident 1 particularly targeted Resident 2.  CMS Ex. 6 at 78.

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Petitioner also updated Resident 2's care plan on April 6 and 7 to specifically address his interactions with Resident 1.  Petitioner added that Resident 2 "has the potential to be physically aggressive when approached in an aggressive manner by one female resident in the Generations unit."  CMS Ex. 7 at 53.  The care plan stated that Resident 2 "can become aggressive with one female resident that he shares the unit with," noted that Resident 1 "has started altercations with [Resident 2] in the past," and specifically referenced the March 15 incident.  CMS Ex. 7 at 46.  Petitioner further noted that Resident 2 has a Brief Interview for Mental Status (BIMS) score of 4 and is able to follow directions, but "will react to situations and will lose control quickly if approached in an aggressive manner by [Resident 1].  He will protect himself."  CMS Ex. 7 at 54.

Interventions to address the residents' aggression included administering medication as ordered; analyzing and documenting times of day, places, circumstances, triggers, and factors that deescalate the residents' behavior; assessing and anticipating the residents' needs; providing physical and verbal cues to alleviate their anxiety; diverting their attention and removing them from aggressive situations; and intervening as necessary to protect the rights and safety of others.  None of the interventions were initiated immediately following either the March 15 or 27 incidents.  CMS Ex. 6 at 56, 76, 78; CMS Ex. 7 at 46, 53-55.

11. Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(a) (Free From Abuse and Neglect) because it failed to take sufficient action after the March 15 altercation to ensure Resident 1's right to be free from physical and mental abuse.

"[S]killed nursing facilit[ies] must protect and promote the rights of each resident, including . . . [t]he right to be free from physical or mental abuse . . ."  42 U.S.C. § 1395i-3(c)(1)(A)(ii).  SNFs must give all residents written notice of their right to file a complaint of abuse with the state agency.  42 U.S.C. § 1395i-3(c)(1)(B).

The Secretary's regulations implementing this requirement generally state:

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).

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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.  "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.

Petitioner does not dispute that Resident 2 punched Resident 1 multiple times on the left shoulder on March 15 and punched Resident 1 multiple times in the face on March 27.

CMS alleges that Petitioner failed to ensure Resident 1 was free from physical and mental abuse because Petitioner treated Resident 2's actions during the March 15 altercation as behaviors rather than abuse.  CMS Br. at 9.  CMS contends that because Petitioner did not treat the incidents as abuse, it did not take measures to address the residents' aggression or prevent future abuse, thereby placing Resident 1 and other residents at risk of injury.  CMS Br. at 9.  CMS also argues that Petitioner failed to address the mental abuse inflicted on Resident 1.  CMS Br. at 8.

Petitioner argues that the altercations did not involve abuse because Resident 2 lacked the mental state required to act deliberately.  P. Br. at 16.  Petitioner asserts that Resident 2 was "clearly confused and in the wrong room and acted from a quasi-primal instinct" when he hit Resident 1.  P. Br. at 16.  The Administrator and DON determined the altercations did not involve abuse because both residents had dementia and were confused.  CMS Ex. 12 ¶¶ 15-16; CMS Ex. 9 at 3-4; P. Ex. 1 at 3.  However, if Resident 2's actions were "deliberate" rather than "accidental" or "inadvertent," they are considered "willful" within the meaning of the regulation.  Maysville Nursing & Rehab., DAB No. 2874 at 11 (2018) (citing Merrimack Cnty. Nursing Home, DAB No. 2424 at 5 (2011)); Britthaven, Inc., DAB No. 2018 at 4 (2006); cf. Singing River Rehab. & Nursing Ctr., DAB No. 2232 at 13 (2009) (suggesting that, so long as a mentally ill resident did not act "by accident," his conduct was abusive).  Even if he had been confused, Resident 2 deliberately hit Resident 1 multiple times on her left shoulder.  CMS Ex. 6 at 8, 109.  Therefore, Resident 2's actions were willful during the March 15 altercation and, therefore, constituted abuse.

Since Petitioner concluded that Resident 2's actions were behaviors rather than abuse, it did not proceed according to its abuse prevention policies and procedures.  Petitioner did not thoroughly investigate the altercation or implement any changes to prevent future occurrences of abuse.  Petitioner argues that it did implement measures to prevent future incidents from occurring and provides a list of specific actions it took to prevent future events from occurring.  P. Br. at 15-16; P. Ex. 1 at 2-3.  However, Petitioner did not timely or thoroughly complete these actions.

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Following the March 15 altercation, staff performed physical assessments of the residents and developed Behavior – Acute Care Plans noting that the residents had displayed physical aggression/combativeness.  CMS Ex. 6 at 10, 32-35; CMS Ex. 7 at 6, 12, 26-28, 65-67.  However, the only interventions to address their physical aggression were to monitor the residents for 72 hours and determine whether Resident 2 had a UTI, which the DON explained could cause behavior changes in dementia patients.  CMS Ex. 7 at 6, 12, 26, 28, 65, 67; P. Ex. 1 at 1.  Petitioner did not take any further measures to ensure that Resident 2 did not abuse Resident 1 again.

Petitioner's DON testified that the facility took numerous actions in response to both incidents; however, based on the evidence in the record, Petitioner did not implement the interventions listed by the DON until April 7, at the earliest.  P. Ex. 1 at 2-3; P. Br. at 15-16.  Petitioner did not update the residents' care plans until April 6 and 7 to note that Residents 1 and 2 had been aggressive towards each other and had been involved in two physical altercations.  See CMS Ex. 6 at 48-103; CMS Ex. 7 at 29-62.

In addition, Petitioner did not thoroughly assess and monitor the residents after the March 15 altercation, which increased the likelihood that another altercation could occur.  Petitioner asserts that the facility consulted with Resident 2's physician on March 15 to discuss Resident 2's aggressive behavior, but the record indicates that the physician did not assess either of the residents until April 8.  CMS Ex. 6 at 126-128; CMS Ex. 7 at 79.  The facility's social worker did not meet with the residents until after the second altercation and did not speak with them about the actual altercations or ask if they were fearful.  CMS Ex. 6 at 28; CMS Ex. 7 at 13, 15; CMS Ex. 9 at 3.  The Administrator and DON did not further investigate the March 15 altercation until April 7, and the March 27 altercation until April 8.  CMS Ex. 6 at 108-110; CMS Ex. 7 at 68.  The facility also did not trial the residents outside of the secured until after the second altercation.  CMS Ex. 6 at 44; CMS Ex. 7 at 19.

Because staff did not thoroughly assess and monitor the residents after the March 15 altercation, staff failed to notice Resident 1's fear of Resident 2, which could be considered further abuse.  The day after the March 15 altercation, Resident 1 informed CNA A that she was afraid of Resident 2 and did not feel safe when Resident 2 was around.  CMS Ex. 6 at 9.  Following the altercation, Resident 1 blocked her door with a chair and wheelchair and even took a butter knife to defend herself.  CMS Ex. 6 at 9.  In the days following the March 15 altercation, Resident 1 continued to display fear of Resident 2.  CNA A observed that Resident 1 stayed behind the privacy curtain in her room and did not want to be around Resident 2.  CMS Ex. 12 ¶ 8.  CNA A informed the facility's LVNs that Resident 1 was afraid of Resident 2, but staff did not follow up with Resident 1.  CMS Ex. 6 at 9.

As explained in testimony by CMS's witness, Mr. McElroy, in addition to failing to ensure that Resident 1 was free from abuse, the facility also abused Resident 1 because it

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failed to treat Resident 2's actions as abuse.  CMS Ex. 13 at 3.  According to Mr. McElroy, the facility allowed Resident 2 to continue to roam freely and unsupervised in the secured unit past Resident 1's room, even after the second altercation, which resulted in prolonged mental abuse of Resident 1 facilitated by the Administrator.  Resident 2 also wandered in the hallways back in the secured unit.  CMS Ex. 9 at 4; CMS Ex. 12 ¶ 14a; CMS Ex. 13 at 3.

Petitioner's social worker also acknowledged that Resident 1's agitation, anxiety, and aggression could have resulted from Resident 1 being able to see Resident 2 or Resident 1 being afraid and angry at Resident 2 for punching her.  CMS Ex. 12 ¶ 9.  Even though the facility failed to identify and evaluate the psychological abuse Resident 1 suffered, a finding of abuse can be upheld even when there is no finding that an abuse victim suffered mental anguish.  Somerset Nursing & Rehab., DAB No. 2353 at 19 (2010).  Here, the record establishes that Resident 1 also suffered psychological abuse following the March 15 altercation.

Petitioner also argues that the altercations were not foreseeable.  P. Br. at 15.  According to the DON, the March 15 altercation was an isolated incident arising from Resident 2's confusion when entering the wrong room.  P. Ex. 1 at 3.  Further, she testified that facility staff could not anticipate ongoing animosity between the two residents because "there were no adverse events between March 15 and March 27 which would have indicated ongoing issues."  P. Ex. 1 at 3.

I disagree that the March 15 incident was not foreseeable.  Prior to the incident, on March 15, CNA B noticed that Residents 1 and 2 had been starring at each other throughout the day and heard Resident 2 say, while staring at Resident 1:  "Well that son of a bitch needs to Be Hit."  CMS Ex. 6 at 8; CMS Ex. 9 at 3.  CNA B told CNA A about the incident.  CMS Ex. 6 at 8.  While it may seem odd that Resident 2 would refer to Resident 1, a woman, as a "son of a bitch," this would not have caused the staff to question that Resident 2 was directing this threat to Resident 1.  After all, CNA B told the state surveyor that Resident 2 frequently believed Resident 1 was a man.  CMS Ex. 9 at 3.  Petitioner may argue that Resident 2 was merely confused and accidently entered Resident 1's room, but it is perhaps more probable, given his verbalized threat to hit Resident 1, that he entered her room specifically to punch her.

Even if it is possible that Petitioner could not have foreseen the March 15 incident, Petitioner could foresee that Resident 1 suffered psychological harm from the facility's failure to take action to ensure she was protected from Resident 1.  After all, Resident 1 was attacked in her room.  CNA A stated that Resident 1 not only expressed fears of Resident 2 but acted to protect herself from Resident 2 by blocking her room door and keeping a knife.

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It is easy to understand why Resident 1 resorted to self-defense measures because the evidence shows that Petitioner failed to protect Resident 1 from a second instance of abuse by Resident 2.  The record shows that the March 27 altercation was clearly foreseeable.  The facility was aware that Resident 1 had the potential to be physically aggressive, angry, and was at risk for harming others.  CMS Ex. 6 at 56, 71, 76.  Resident 1 also had a history of aggressive behaviors with other residents and staff and had issues with men.  CMS Ex. 6 at 56, 126.  Moreover, although staff failed to notice and address Resident 1's fear of Resident 2, staff were aware of Resident 1's increasing agitation, anxiety, resistance to care, and aggression towards staff and residents in the days following the March 15 altercation.  CMS Ex. 6 at 30, 31.  Yet, the facility did not take adequate measures to address Resident 1's agitation, aggression, and resistance to care.  CMS Ex. 6 at 30, 31; CMS Ex. 12 ¶ 9.  The facility continued only to notify Resident 1's physician and monitor the resident.  CMS Ex. 6 at 30, 31.

In addition, contrary to what the DON stated, the record shows numerous adverse events between March 15 and 27 indicating ongoing issues between the residents.  Resident 1 continued to act aggressively toward Resident 2, which could potentially provoke aggression from Resident 2.  CNA A told the surveyor that Resident 1 purposely walked in front of Resident 2, staring him down.  CMS Ex. 12 ¶ 8.  Staff also observed that Resident 1 was verbally aggressive toward Resident 2, believed that Resident 2 was after her, and "hyper fixat[ed]" on Resident 2.  CMS Ex. 30, 31.

There is no doubt that another physical altercation between the residents was quite possible.  The record shows Petitioner "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 Ctr., DAB No. 1726 at 25-35 (2000), aff'd, Woodstock Care Ctr. v. Thompson, 363 F.3d 583 (6th Cir. 2003).  A facility should anticipate that aggression will reoccur if individuals have a history of aggression and violence.  The Bridge at Rockwood, DAB No. 2954 at 11-13.

As discussed above, other than placing the residents on monitoring for 72 hours, Petitioner did not implement any interventions to address the residents' aggression after the March 15 incident and failed to make a sufficient effort to prevent a second incident on March 27.  Further, since Resident 2 had already abused Resident 1 before, the facility should have also anticipated that Resident 2 would abuse Resident 1 again.  Resident 2 wandered and intruded on others' privacy and activities.  CMS Ex. 7 at 35.  The Administrator and DON determined that Resident 2 hit Resident 1 on March 15 because he was confused and in the wrong room, yet staff did not take any steps to adequately supervise Resident 2 so that he did not wander into another residents' room again.  In addition, after the first incident, Resident 2's physician ordered a urinalysis to check for a UTI, which could cause behavioral changes in dementia patients.  CMS Ex. 7 at 6, 12, 26, 28, 65, 67; P. Ex. 1 at 1.  Yet, when Resident 2 developed a UTI on or around March 25,

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Petitioner did not take any affirmative measures to prevent behavioral changes such as aggression.  CMS Ex. 7 at 42, 46.  Two days later, Resident 2 abused Resident 1 again when he punched her twice on the left side of her face.  CMS Ex. 6 at 13; CMS Ex. 7 at 9.

Recognizing that Residents 1 and 2 had a history of aggression and were prone to aggression due to their medical conditions and medications, that Resident 2 had abused Resident 1 once before, and that Resident 1 continued to display aggression and instigating behaviors toward Resident 2 following the March 15 altercation, it was incumbent on Petitioner to develop effective strategies to prevent future incidents of abuse between the two residents.  However, the facility did not identify Resident 2's actions as abuse and did not implement any measures to address the residents' aggression to ensure Resident 1's right to be free from abuse.  As a result, Petitioner failed to prevent a foreseeable second altercation between the residents, and Resident 2 abused Resident 1 again on March 27.  Further, even after the March 27 incident, Petitioner took limited action that was likely to be ineffective (i.e., brief trials for Residents 1 and 2 outside the secure dementia unit); however, it otherwise did not take other actions until after the state agency survey commenced on April 3.  Therefore, I conclude that Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(a).

12. Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(c)(1) because Petitioner failed to timely report allegations of abuse based on the March 15 and 27 altercations to the state agency and other appropriate entities.

In response to allegations of abuse, the facility must:

Ensure that all alleged violations involving abuse, neglect, exploitation or mistreatment . . . are reported immediately, but not later than 2 hours after the allegation is made, if the events that cause the allegation involve abuse . . . or not later than 24 hours if the events that cause the allegation do not involve abuse . . . to the administrator of the facility and to other officials (including to the State Survey Agency and adult protective services where state law provides for jurisdiction in long-term care facilities) in accordance with State law through established procedures.

42 C.F.R. § 483.12(c)(1) (emphasis added).

Consistent with these regulations, Petitioner's abuse reporting policy required immediate reporting of both suspected and substantiated abuse to the state agency and other appropriate authorities.  CMS Ex. 10 at 10.

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Petitioner does not dispute that it did not report the altercations to the state agency and law enforcement until April 7.  Rather, Petitioner asserts that the regulation only requires reporting of events which involve abuse or result in serious bodily injury.  P. Br. at 19.  Petitioner notes that its Administrator and DON determined the incidents did not fall under the guidelines to report because the altercations constituted "physical behaviors between the residents" related to the residents' dementia and the altercations did not result in major injuries.  CMS Ex. 9 at 4; CMS Ex. 12 ¶¶ 15, 16.

Petitioner's assertion is incorrect.  The regulation requires reporting of "all alleged violations involving abuse" to appropriate state agency officials.  42 C.F.R. § 483.12(c)(1) (emphasis added).  The obligation to report does not turn on whether actual abuse occurred.  The reporting requirements are triggered by any allegation of abuse, whether or not it is recognized as such by the facility.  Ill. Knights Templar Home, DAB No. 2369 at 11-12 (2011).

As discussed above, Resident 2 abused Resident 1 on two separate occasions because Resident 2 willfully inflicted injury upon Resident 1 when he deliberately punched and hit her.  The regulations require reporting of allegations of abuse and Petitioner's own policies mandated reporting of suspected abuse.  A final determination as to whether abuse occurred is not required.  The evidence at the time of each altercation supported that there were allegations of abuse and suspected abuse that necessitated reporting of the incidents to the state agency.  Even the bland nursing notes for the residents on March 15 and 27 alone are sufficient to show there was alleged physical abuse.  They discuss "physical aggression" between the residents, with hitting and biting.  CMS Ex. 6 at 29, 32; CMS Ex. 7 at 11, 12.  If, upon investigation, the facility later determined no abuse occurred, the facility was still required to report the incidents to the state agency within two hours of the allegations.  Because Petitioner did not do this, I conclude that Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(c)(1).

13. Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(c)(2) because it did not have evidence that it thoroughly investigated the alleged abuse related to the March 15 and 27 altercations.

The facility must also "have evidence that all alleged violations are thoroughly investigated."  42 C.F.R. § 483.12(c)(2).

Consistent with 42 C.F.R. § 483.12(b)(2), Petitioner's abuse policy required an investigation of an incident or suspected incident of resident abuse.  CMS Ex. 10 at 1.  As discussed above, the policy stated that the investigation must include, at a minimum, reviewing the resident's medical record; interviewing the resident, the resident's roommate and family members, staff, witnesses, and others who had contact with the resident during the period of the alleged incident; and reviewing all events leading up to

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the alleged incident.  CMS Ex. 10 at 1.  Further, witness statements must be signed.  CMS Ex. 10 at 1.

However, in this case, because Petitioner determined the altercations did not constitute abuse, Petitioner did not investigate the incidents in accordance with its abuse policy.   Despite this, Petitioner asserts that it conducted thorough investigations of both incidents and concluded that the incidents did not constitute abuse.  P. Br. at 20; P. Ex. 1 at 2.  Petitioner further asserts that CMS concedes that Petitioner conducted investigations and, just because CMS disagrees with the conclusions of the investigations, does not mean that Petitioner's investigations were deficient.  P. Br. at 19-20.

Petitioner did not follow its own policy for investigating suspected abuse.  The facility's investigation of the incidents included daily monitoring of the residents, verbal interviews with staff, and documentation of the incident in nursing notes.  CMS Ex. 9 at 4.  Yet, Petitioner interviewed only two witnesses for each altercation.  After the March 15 incident, Petitioner interviewed CNA B and LVN C, neither of whom witnessed the incident or interacted with Resident 1 during and around the time of the altercation.  CMS Ex. 6 at 111, 112.  Petitioner did not interview CNA A, who witnessed and intervened in the altercation, until it completed a further investigation into the altercation several weeks later after the survey had commenced.  CMS Ex. 6 at 109.  After the March 27 incident, Petitioner interviewed LVN C, whose statement was limited to another nurse's assessment of Resident 1 and Resident 1's statement that she was hit.  CMS Ex. 6 at 113.  Although Petitioner did interview CNA B, who witnessed part of the altercation, the interview was insufficient because CNA B was interviewed again on April 8 and additional information was obtained.  CMS Ex. 6 at 13, 114; CMS Ex. 7 at 9.

The record also does not indicate that Petitioner reviewed the residents' medical records, interviewed the residents (other than the skilled nurse asking the residents what had happened), examined the events leading up to the altercations, or interviewed other staff or residents who may have witnessed the altercations, particularly the March 27 incident that occurred in the hallway.  In addition, there is no evidence that the facility created reports of its investigations.  The Administrator told the surveyor that the facility did not have any additional statements or documents related to its investigations other than the incident reports and nursing notes, and Petitioner submitted no such documentation with its prehearing exchange.  CMS Ex. 9 at 4.  Petitioner's investigation was inadequate under its own policy, and my review of the record reveals that the documentation of its limited efforts could not be considered "evidence that all alleged violations are thoroughly investigated" as required by 42 C.F.R. § 483.12(c)(2).

While it is true that the facility eventually conducted and documented more detailed investigations of the two altercations, this documentation simply proves that Petitioner's original investigation was woefully inadequate.  The Administrator, DON, and assistant DON interviewed Residents 1 and 2 and more staff, including CNA A, and reinterviewed

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CNA B.  CMS Ex. 6 at 108, 109, 110, 114; CMS Ex. 7 at 68.  However, Petitioner conducted these investigations on April 7 and 8, more than three weeks after the March 15 altercation and almost two weeks after the March 27 altercation, and several days after the state agency survey had already started.  Because Petitioner was obligated to provide a report of the results of the investigations to the state agency within five days of the March 15 and March 27 altercations (42 C.F.R. § 483.12(c)(4)), Petitioner was obligated to complete reasonably thorough investigations within five days of the altercations.  Thus, Petitioner's April 6-7 investigations were untimely, and the documentation from those investigations cannot be used to show that Petitioner properly complied with 42 C.F.R. § 483.12(c)(2).  Therefore, I conclude that Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(c)(2).

14. Petitioner was also not in substantial compliance with 42 C.F.R. § 483.12(c)(4) because it did not report to the state agency the results of its investigations into the March 15 and 27 altercations within five working days of each incident.

The facility must:

Report the results of all investigations to the administrator or his or her designated representative and to other officials in accordance with State law, including to the State Survey Agency, within 5 working days of the incident, and if the alleged violation is verified appropriate corrective action must be taken.

42 C.F.R. § 483.12(c)(4).  Petitioner's policy on reporting abuse to state agencies also requires the Administrator to provide the state agency with a written report of the findings of the investigation within five working days of the occurrence of the incident.  CMS Ex. 10 at 11.

Although the facility conducted a limited investigation into the March 15 and March 27 incidents, Petitioner denies that the altercations involved abuse and needed to be investigated or reported.  As discussed above, both the March 15 and March 27 incidents were abuse under the regulations and Petitioner was obligated to report and investigate those incidents.  Because Petitioner did not report to the state agency within five days the results of the investigation that it conducted into the March 15 and March 27 incidents, I conclude that Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(c).

In addition, the regulation "explicitly requires reporting of the results of all investigations of abuse, not merely those that substantiate abuse."  Singing River Rehab. & Nursing Ctr., DAB No. 2232 at 8 (2009); see 42 C.F.R. § 483.12(c)(4).  Petitioner only conducted a cursory investigation of the two altercations and failed to report the results of those investigations to the state agency within five days of the incidents.  The Administrator

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simply did not comply with the obligations to report and, as a result, Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(c)(4).

15. Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(b)(1)-(2) because Petitioner failed to implement its own policies for protecting residents from abuse and investigating abuse.

Facilities are required to develop and implement written policies and procedures that:

(1) Prohibit and prevent abuse, neglect, and exploitation of residents and misappropriation of resident property,

(2) Establish policies and procedures to investigate any such allegations.

42 C.F.R. § 483.12(b)(1)-(2).  A facility may not be in substantial compliance with § 483.12(b)(1) if it fails to develop adequate policies and procedures to prevent neglect or fails to implement such policies.  Heritage Plaza Nursing Ctr., DAB No. 2829 at 5 (2017), (citing Glenoaks Nursing Ctr., DAB No. 2522 at 14 (2013).

CMS alleges that Petitioner failed to implement written policies and procedures to prevent physical and mental abuse of Resident 1.  CMS Br. at 9-10.  Petitioner asserts that it did have policies and procedures regarding abuse, preventing of abuse, and reporting of abuse.  P. Br. at 18.  Petitioner also argues that it could have only prevented the altercations if it had a policy that prevented any contact between the residents, which is not feasible in a secured unit for residents with dementia.  P. Br. at 18-19.

The regulation requires that facilities both develop and implement abuse prevention policies.  Although Petitioner did have policies and procedures regarding abuse, Petitioner did not implement its abuse prevention policy to protect Resident 1 from abuse by Resident 2.  Petitioner's abuse prevention program requires Petitioner to identify occurrences of potential abuse, conduct timely and thorough investigations of potential abuse, protect residents during abuse investigations, and implement changes to prevent future occurrences of abuse.  CMS Ex. 10 at 1-3.

The factual findings and conclusions of law stated above in this decision show that Petitioner failed to identify occurrences and patterns of potential mistreatment or abuse and to properly investigate those occurrences under the requirements in its own policies.  Therefore, I incorporate those findings and conclusions into this section and conclude that Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(b)(1)-(2).

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16. Petitioner was not in substantial compliance with 42 C.F.R. § 483.21(b)(2)(i)-(iii) because the interdisciplinary team did not revise the residents' care plans after the March 15 altercation.

A facility must develop and implement a comprehensive person-centered care plan for each resident that includes measurable objectives and timeframes to meet a resident's medical, nursing, and mental and psychosocial needs that are identified in the comprehensive assessment.  42 U.S.C. § 1395i-3(b)(2); 42 C.F.R. § 483.21(b)(1).  The comprehensive care plan must be developed within seven days after completion of the comprehensive assessment, prepared by an interdisciplinary team, and be reviewed and revised by the interdisciplinary team after each assessment.  42 U.S.C. § 1395i-3(b)(2)(C); 42 C.F.R. § 483.21(b)(2)(i)-(iii).  SNFs must make assessments of residents "promptly [i.e., within 14 days] after a significant change in the resident's physical or mental condition."  42 U.S.C. § 1395i-3(b)(3)(i)(II); 42 C.F.R. § 483.20(b)(2)(ii).  A "significant change" in a resident's condition is "a major decline or improvement in the resident's status that will not normally resolve itself without further intervention by staff . . .."  42 C.F.R. § 483.20(b)(2)(ii).

CMS alleges that Petitioner's Interdisciplinary Team did not update the residents' care plans after Resident 1 exhibited agitation and instigating behaviors and Resident 2 physically abused Resident 1 twice.  CMS Br. at 14-15.  Petitioner argues that after assessing the altercations, the facility determined that the long-term care plans did not need to be revised.  P. Br. at 20.  Rather, the facility implemented acute care plans that addressed the residents' short-term needs.  P. Br. at 20.

The evidence shows that the behavior acute care plans did not adequately address the residents' needs.  Although previously identified in her care plan, Resident 1 displayed increasing agitation and resistance to care after the March 15 altercation.  While the facility documented these numerous instances in the nursing notes, the interdisciplinary team did not explore or investigate Resident 1's increased agitation and resistance to care.  CMS Ex. 12 ¶ 9.  In addition to the ongoing agitation and resistance to care, Resident 1 continued aggressive and instigating behaviors towards Resident 2.  Although Resident 1's care plan noted that she had the potential to be physically aggressive, the facility did not update her care plan to note the abuse by Resident 2 and that following the March 15 altercation, Resident 1 was hyper fixated on Resident 2.  Further, following the March 15 incident, Petitioner's staff was aware of Resident 1's fear of Resident 2 and efforts to block her room door and be armed with a knife.  Therefore, the facility also failed to update her care plan to meet her mental and psychosocial needs after the altercation.  Petitioner did not update Resident 2's care plan to note that he could become aggressive and had abused another resident.

In addition, the record does not show any assessment by an interdisciplinary team.  Petitioner finally updated the residents' care plans on April 6 and 7 and developed new

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interventions to appropriately address the significant changes in the residents' conditions.  CMS Ex. 6 at 56, 76, 78; CMS Ex. 7 at 46, 53-55.  However, because Petitioner did not timely assess the residents or update the care plans after the first altercation, Petitioner was not able to prevent Resident 2 from abusing Resident 1 a second time.  Therefore, I conclude that Petitioner was not in substantial compliance with 42 C.F.R. § 483.21(b)(2)(i)-(iii).

17. CMS's determination that Petitioner's noncompliance with 42 C.F.R. § 483.12(a)(1), 42 C.F.R. § 483.12(b)(1)-(2), and 42 C.F.R. § 483.12(c)(2), (4) 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 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)).  In reviewing CMS's finding, I "must consider whether the totality of the allegations support the Agency's determination that [the SNF's] noncompliance 'has caused, or [was] likely to cause, serious injury, harm, impairment, or death to a resident.'"  Rosewood Care Ctr., 868 F.3d at 618 (7th Cir. 2017) (emphasis omitted).

CMS contends that its immediate jeopardy finding is appropriate because Petitioner failed to identify the two altercations between Residents 1 and 2 as abuse and did not thoroughly investigate or report the abuse.  CMS Br. at 17.  CMS also argues that Petitioner failed to protect Resident 1 and the other residents in the secured unit from the same risk of abuse.  CMS Br. at 17.  Petitioner argues that Resident 1 did not suffer serious harm.  P. Br. at 22-23.

The evidence in the record shows that Resident 1 suffered serious physical and psychological harm.  Petitioner did not identify the March 15 altercation as abuse.  Therefore, the facility did not take any measures to address both residents' aggression or Resident 1's anxiety, agitation, and fear of Resident 2.  Petitioner did not attempt to distance the residents and allowed Resident 2 to continue to roam freely in the secured unit, even after Resident 2 abused Resident 1 a second time and multiple failed attempts of moving Resident 2 out of the unit.  Petitioner's failure to act was prolonged mental

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abuse of Resident 1 by the facility, which further contributed to her anxiety and agitation after the March 15 altercation.

Petitioner's failure to develop any effective strategies to address the residents' aggression and Resident 1's instigating behaviors led to a second altercation.  Resident 2 caused serious harm to Resident 1 when he punched her on the left temple and the left eye, the same location that Resident 1 had injured during a fall the week before.  To the extent that the harm caused to Resident 1 could be construed as not serious, I alternatively conclude that, in both altercations, there was at least a likelihood of serious injury or harm to Resident 1.  Resident 2, a man, punched Resident 1, a significantly infirmed woman, multiple times.  In both cases, CNAs had to physically intervene to stop Resident 2 and, in the March 27 incident, Resident 2 hurt CNA B's hand during the intervention.  CMS Ex. 6 at 114.  There is no doubt that Resident 2's physical attacks were likely to cause serious injury or harm.  In each altercation, Resident 2 had to be stopped and did not cease punching Resident 1 after one or two hits.

Petitioner did not comply with the regulations and its own abuse policies when it failed to investigate the March 15 altercation and identify Resident 2's actions as abuse.  As a result, the facility failed to protect Resident 1 from a second incident of abuse and caused Resident 1 to suffer psychological abuse from the first altercation.  The facility's failure to address Resident 2's aggression also made the other residents in the secured unit vulnerable to Resident 2's abuse.  There is no doubt that Petitioner placed Resident 1 and other residents in immediate jeopardy.  Accordingly, I conclude that CMS did not clearly err in determining that Petitioner's noncompliance with 42 C.F.R. § 483.12(a)(1), 42 C.F.R. § 483.12(b)(1)-(2), and 42 C.F.R. § 483.12(c)(2), (4) posed immediate jeopardy to the health and safety of its residents.

18. The $12,550 per‑day CMP for 26 days from March 15, 2020, through April 9, 2020, for a total CMP of $326,300 is appropriate under relevant statutory and regulatory factors for determining the amount of CMPs.

CMS imposed a $12,550 per‑day CMP for 26 days from March 15, 2020, through April 9, 2020, for a total CMP of $326,300.  CMS Ex. 3 at 1.  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.

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Amount of CMP

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).

CMS asserts that the CMP is reasonable because a resident suffered multiple instances of abuse from the same resident and the other residents on that unit were at-risk for abuse by the same resident.  CMS Br. at 18.  CMS also provided the written testimony of CMS RN McElroy, who explained the factors he considered to determine the CMP amount.  CMS Ex. 13 at 5-7.  Petitioner does not argue that the CMP is unreasonable based on the regulatory factors.  Coquina Ctr., DAB No. 1860 (2002).  However, for completeness, I briefly discuss the factors below.

Facility's History of Non-Compliance:  CMS does not argue that Petitioner has a history of noncompliance with 42 C.F.R. Part 483.  See CMS Br. at 18.  However, Mr. McElroy noted that Petitioner has not had any deficiencies at scope and severity level of "G" or higher in the three years prior to the April 20, 2020 survey.  CMS Ex. 13 at 6.  Therefore, this is not a factor requiring consideration.

Scope and Severity of Deficiencies and Relationship Between Deficiencies: This case involves three immediate jeopardy level deficiencies related to abuse of a resident by another resident and the facility's failure to thoroughly investigate the abuse in accordance with the facilities' own policies.  Further, there is non-immediate jeopardy level noncompliance involving the facility's failure to report the abuse to the state agency and update the residents' care plans.  The physical and psychological harm that Resident 1 endured based on the March 15 and 27 altercations along with Petitioner's failure to

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take appropriate action to avoid the threat of further harm weighs heavily in favor of a high CMP in this case.

Culpability:  Mr. McElroy stated that as the abuse coordinator, the Administrator's failure to recognize that the situation involved physical and ongoing mental abuse showed a disregard for resident health and safety.  CMS Ex. 13 at 7.  Petitioner is very culpable because, in defiance of Medicare requirements and its own abuse prevention policies, the Administrator and DON did not identify and investigate serious resident-on-resident abuse.  Following the first instance of abuse by Resident 2, Petitioner did not take appropriate steps to address Resident 2's abusive acts or aggression.  The facility also did not identify and address Resident 1's agitation, resistance to care, her fear of Resident 2, and her ongoing instigating and provoking behavior toward Resident 2.  Petitioner's failure to protect Resident 1 from psychological abuse and a second incident of physical abuse by Resident 2 shows neglect and disregard for Resident 1's care and safety.

Further, the Administrator and DON did not report the two altercations to the state agency and other appropriate officials.  A failure to report abuse allegations hampers the ability of a facility to ensure its residents are free from abuse as it hinders the state agency from investigating allegations of abuse.  Petitioner's failure to prevent and report abuse also placed other vulnerable residents at risk for abuse and demonstrates indifference for resident safety.  This factor strongly supports the CMP imposed in this case.

Financial Condition of the Facility:  Mr. McElroy considered a few indications of Petitioner's financial condition to determine the appropriateness of the CMP amount.  CMS Ex. 13 at 6.  However, Petitioner presents no evidence of its financial condition.  Therefore, this is not a factor that impacts the CMP amount in this case.

CMP Amount:  As indicated by the review of factors above, a $12,550 per‑day CMP for 26 days from March 15, 2020, through April 9, 2020, for a total CMP of $326,300 is well-supported.  The $12,550 per-day CMP imposed is in the lower half of the range for immediate jeopardy noncompliance.  Therefore, based on the factors above and in consideration of the amounts imposed, the CMPs imposed are supported by the record and appropriate.

VI.  Conclusion

Petitioner was not in substantial compliance with 42 C.F.R. §§ 483.12(a), 483.12(b)(1)-(2), 483.12(c)(1)-(2), (4), and 483.21(b)(2)(i)-(iii).  Further, Petitioner's noncompliance with 42 C.F.R. §§ 483.12(a), 483.12(b)(1)-(2), and 483.12(c)(2), (4) immediately jeopardized the health and safety of Petitioner's residents.  Finally, the $12,550 per‑day

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CMP for 26 days from March 15, 2020, through April 9, 2020, for a total CMP of $326,300, is an appropriate penalty.

1. "It is the duty and responsibility of the Secretary to assure that requirements which govern the provision of care in skilled nursing facilities . . . are adequate to protect the health, safety, welfare, and rights of residents and to promote the effective and efficient use of public monies."  42 U.S.C. § 1395i-3(f)(1).
• back to note 1
2. 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 2
3. Although the Statement of Deficiencies and CMS's initial determination identify two additional deficiencies, I do not discuss those deficiencies in this case.  Regarding the deficiency at 42 C.F.R. § 483.70 (Tag F835), CMS states that it removed that deficiency following the independent informal dispute resolution process.  CMS Br. at 2 n.1.  Regarding the deficiency at 42 C.F.R. § 483.25 (Tag F657), it is unnecessary that I decide whether Petitioner was in substantial compliance with that requirement because, as explained below, I uphold three other deficiencies that immediately jeopardized the health and safety of residents and two other deficiencies where there was the potential for more than minimum harm to residents.  These deficiencies are more than sufficient to fully support the CMPs that CMS imposed on Petitioner.  See Claiborne-Hughes Health Ctr. v. Sebelius, 609 F.3d 839, 847 (6th Cir. 2010); Carrington Place of Muscatine, DAB No. 2321 at 20-21 (2010).
• back to note 3
4. The record also includes an undated Admission/Readmission Skin Audit noting bruising and swelling around Resident 1's left eye.  CMS Ex. 6 at 12.  It is unclear when Petitioner completed this form, but it appears to reflect the bruising Resident 1 sustained from the March 20 fall.
• back to note 4