SUBJECT:

Westview Manor,

Petitioner,

Centers for Medicare & Medicaid Services.

DECISION

This case revisits the question of what constitutes an adequate nursing facility response to an allegation of abuse.

Petitioner, Westview Manor (Petitioner or facility), is a long term care facility certified to participate in the Medicare and Medicaid programs as a provider of services. Petitioner challenges the Centers for Medicare & Medicaid Services' (CMS's) determination that the facility was not in substantial compliance with program participation requirements, specifically 42 C.F.R. § 483.13(c) (resident behavior/facility practices) and 42 C.F.R. § 483.75 (administration). The parties agree that no material facts are in dispute, and have filed cross motions for summary judgment. For the reasons set forth below, I agree that this case presents no genuine issue of material fact requiring an in-person hearing. I also conclude that Petitioner substantially complied with the cited program participation requirements, and CMS had no basis for imposing remedies against it.

I. Background

Resident #1 (R1) was a 97-year-old facility resident. At 7:05 p.m on January 5, 2002, one of the facility nurses, Patricia Robinson, overheard R1 telephone her daughter to say that she had been raped. P. Ex. 2, at 30; CMS Ex. 22. The facility's administrator, Dean Elliott, timely notified the Texas Department of Human Services (State Agency) of the incident. P. Ex. 3. Thereafter, on January 10, 2002, the State Agency completed an incident investigation and concluded that the facility was not in substantial compliance with federal requirements for nursing homes participating in the Medicare and Medicaid programs.

In a letter dated January 31, 2002, CMS notified the facility that it concurred with the State Agency findings, and that, based on those findings, the facility did not meet federal requirements under 42 C.F.R. §§ 483.13(c), 483.13(c)(1)(ii) and (iii) (resident behavior/facility practices); and 42 C.F.R. § 483.75 (administration). The State Agency and CMS seem to have erred in citing the 42 C.F.R. § 483.13(c) subsections, however. The allegations set forth in a Statement of Deficiencies (CMS Ex. 2) reflect language found at 42 C.F.R. § 483.13(c)(3), rather than § 483.13(c)(ii) and (iii). CMS Ex. 2, at 2, 4 ("Based on interview and record review the facility failed to have evidence of a thorough investigation of an alleged assault and failed to implement measures to prevent and protect residents and staff from further/future recurring abuse while the investigation is ongoing.") ⁽¹⁾ Nevertheless, CMS has provided Petitioner sufficient notice of the allegations, and Petitioner has not challenged the adequacy of that notice. See Cedar View Good Samaritan, DAB No. 1897, at 7-9. CMS also advised the facility of the remedies it was imposing (termination of the provider agreement as of March 10, 2002; a $5,000 per instance civil money penalty (CMP); and denial of payment for new admissions as of February 15, 2002). CMS subsequently rescinded all remedies except the $5,000 per instance CMP.

Petitioner timely appealed, and the case was assigned to me. The parties have submitted cross motions for summary judgment, and have agreed to a series of "undisputed facts," which, for the reasons discussed below, I find dispositive of the issues presented here. See CMS Brief (CMS Br.) at 3-9; Petitioner's Brief (P. Br.) at 6-9. The parties have also submitted proposed exhibits, CMS exhibits (CMS Exs.) 1-22 and Petitioner's exhibits (P. Exs.) 1-16. In the absence of objection, and for the purpose of resolving these motions for summary judgment, I admit into evidence CMS Exs. 1-22 and P. Exs. 1-16.

II. Issues

I consider first whether summary judgment is appropriate.

On the merits, I consider whether the facility was in substantial compliance with program participation requirements, specifically 42 C.F.R. §§ 483.13(c) and 483.75. If the facility were not in substantial compliance, I would consider whether the CMP imposed is reasonable.

Although CMS also concluded that, from January 5 through 10, 2002, the facility's purported deficiencies posed immediate jeopardy to resident health and safety, I have no authority to review the immediate jeopardy finding where the sole remedy imposed is a per instance CMP. 42 C.F.R. §§ 488.438(e)(2); 498.3(b)(13); 498.3(c)(11); 488.408(g)(2) (no authority to review CMS's choice of remedy); 42 C.F.R. § 488.438(a)(2); 42 C.F.R. §§ 498.3(b)(14); 498.3(d)(10) (no authority to review a finding that does not affect the range of CMP amounts). Of course, even if the immediate jeopardy finding were otherwise reviewable here, my finding of no substantial noncompliance would dispose of the issue.

CMS does not allege that any abuse actually occurred. ⁽²⁾

III. Statutory and Regulatory Background

The Social Security Act (Act) sets forth requirements for nursing facility participation in the Medicare and Medicaid programs, and authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations implementing the statutory provisions. Act, sections 1819 and 1919. The Secretary's regulations governing nursing facility participation in the Medicare program are found at 42 C.F.R. Part 483. As a condition for participation in the Medicare and Medicaid programs, skilled nursing facilities (SNFs) (Medicare) and nursing facilities (NFs) (Medicaid) periodically undergo surveys to determine whether they are in substantial compliance with program participation requirements. The Secretary contracts with state survey agencies to conduct those surveys. Act, section 1864(a); 42 C.F.R. § 488.20. The regulations require that each facility be surveyed once every 12 months, and more often, if necessary, to ensure that identified deficiencies are corrected. Act, section 1819(g)(2)(A); 42 C.F.R. §§ 488.20(a), 488.308. A facility must maintain compliance with program requirements and, to be in substantial compliance, a facility's deficiencies may pose no greater risk to resident health and safety than "the potential for causing minimal harm." 42 C.F.R. § 488.301.

Under 42 C.F.R. § 483.13(c) (staff treatment of residents), a facility must develop and implement written policies and procedures that prohibit mistreatment, neglect and abuse of residents and misappropriation of resident property. The facility must have evidence that all alleged violations are thoroughly investigated, and must prevent further potential abuse while the investigation is in progress. 42 C.F.R. § 483.13(c)(3). The regulation governing administration, 42 C.F.R. § 483.75, requires that the facility be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident.

If a facility is not in substantial compliance with program requirements, CMS has the authority to impose one or more of the enforcement remedies listed in 42 C.F.R. § 488.406, which include imposing a CMP. See Act, section 1819(h). CMS may impose a CMP for the number of days that the facility is not in substantial compliance with one or more program requirements or for each instance that a facility is not in substantial compliance. 42 C.F.R. § 488.430(a). When penalties are imposed for an instance of noncompliance, the penalties will be in the range of $1,000 to $10,000 per instance. 42 C.F.R. § 488.438(a)(2).

IV. Discussion

A. Summary disposition is appropriate because, as the parties agree, this case presents no dispute over genuine issues of material fact. ⁽³⁾

An administrative law judge (ALJ) may decide a case on summary judgment, without an evidentiary hearing, if the case presents no genuine issue of material fact. Crestview Parke Care Center v. Thompson, 373 F.3d 743 (6^th Cir. 2004); Livingston Care Center v. United States Dep't of Health and Human Servs., 388 F.3d 168 (6^th Cir. 2004). By interpretive rule, this tribunal has established a summary judgment procedure "akin to the summary judgment standard contained in Federal Rule of Civil Procedure 56." Crestview Parke Care Center, 373 F.3d at 750. Under that rule, the moving party may show the absence of a genuine factual dispute by presenting evidence so one-sided that it must prevail as a matter of law, or by showing that the non-moving party has presented no evidence "sufficient to establish the existence of an element essential to its case, and on which it will bear the burden of proof at trial." Livingston Care Center, 388 F.3d at 172, citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The nonmoving party must then act affirmatively by tendering evidence of specific facts showing that a dispute exists. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 n.11 (1986). See also Vandalia Park, DAB No. 1939 (2004); Lebanon Nursing and Rehabilitation Center, DAB No. 1918 (2004). A mere scintilla of supporting evidence is not sufficient. "[I]f the evidence is merely colorable or is not significantly probative, summary judgment may be granted." Livingston Care Center, 388 F.3d at 173, quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, at 249-50 (1986).

In examining the evidence for purposes of determining the appropriateness of summary judgment, I must draw all reasonable inferences in the light most favorable to the non-moving party. Livingston Care Center, 388 F.3d at 172; Guardian Health Care Center, DAB No. 1943, at 8 (2004). Drawing factual inferences in the light most favorable to the non-moving party does not require that I accept the non-moving party's legal conclusions. Cf. Guardian Health Care Center, DAB No. 1942, at 11. ("A dispute over the conclusion to be drawn from applying relevant legal criteria to undisputed facts does not preclude summary judgment if the record is sufficiently developed and there is only one reasonable conclusion that can be drawn from those facts.")

Here, accepting as true all of the facts asserted by CMS - most of which Petitioner does not dispute - and drawing all factual inferences in CMS's favor, I nevertheless conclude that Petitioner acted promptly and appropriately in its response to R1's allegation of abuse.

B. The facility responded appropriately to an allegation of abuse, and was therefore in compliance with 42 C.F.R. § 483.13(c) (staff treatment of residents).

The gravamen of CMS's case is that the facility failed to investigate properly R1's allegation of abuse, and, during its investigation, failed to protect residents from further abuse. To support its charges, CMS relies primarily on the findings and testimony of the state surveyor, Jennifer Bybee-Gaston. CMS Ex. 22. Petitioner does not challenge most of Surveyor Bybee-Gaston's factual assertions, only her opinions and conclusions. The parties agree that, on January 5, 2002, at 7:05 p.m., Patricia Robinson, a licensed vocational nurse (LVN), overheard a telephone conversation in which R1 told her daughter that a male nurse had raped her on the recliner in her room. CMS Br. at 3; CMS Ex. 22; P. Br. at 7. Within minutes, Nurse Robinson notified the house supervisor, the on-call administrator (Trey Scherwitz), and the on-call physician, Dr. Peoples. CMS Br. at 3; CMS Ex. 15, at 8; P. Br. at 7. She immediately transferred to another section of the facility the only male member of the nursing staff working in R1's hall that shift, a CNA named K.Y. CMS Br. at 3. Shortly thereafter, Mr. Scherwitz suspended K.Y. pending investigation. CMS Ex. 16, at 2; CMS Br. at 3-4; P. Br. at 7. Following Dr. Peoples' instructions, Nurse Robinson called an ambulance and sent R1 to the emergency room. CMS Ex. 15, at 8; CMS Br. at 4; P. Br. at 7. R1 was accompanied there by her daughter, by Mr. Scherwitz, and by one of the facility's registered nurses. CMS Ex. 15.

In the meantime, Mr. Scherwitz called and reported the incident to the facility administrator, Dean Elliott. Administrator Elliott instructed him to call the police, which he did. CMS Ex. 16, at 2; CMS Br. at 4; P. Br. at 7. A police officer arrived at the facility a short time later and began the police investigation. P. Ex. 2, at 23. Administrator Elliott went to the facility, where he questioned Nurse Robinson and CNA Sherri Price, who had been working with K.Y. that evening. CMS Ex. 16, at 2; CMS Br. at 4; P. Br. at 7. He then went to the hospital emergency room, where he met and interviewed R1 and her family. CMS Ex. 16, at 2; CMS Br. at 4. During the course of the evening, the facility obtained written statements from CNA Price (P. Ex. 2, at 22), CNA K.Y. (P. Ex. 2, at 29), Mr. Scherwitz (P. Ex. 2, at 23-28), and Nurse Robinson (P. Ex. 2, at 30-31).

At approximately 10:00 p.m., Administrator Elliott reported the incident to the State Agency. P. Ex. 3.

At 3:00 a.m. the following morning, police informed Mr. Scherwitz that an examination of R1 found fresh abrasions in the vaginal and anal area. CMS Ex. 16, at 2. The parties agree that this finding was not dispositive of abuse - the injuries could have been self-inflicted and R1 had a history of behavior that could account for these injuries (P. Ex. 2, at 42-44; P. Ex. 6, at 5) - but this finding made it necessary to proceed as if a sexual assault had occurred pending the state medical lab confirming or disproving the occurrence of a sexual assault. CMS Ex. 22. Mr. Scherwitz notified Administrator Elliott of the examination findings. Administrator Elliott returned to the facility and notified R1's family. He advised them that the wounds could have been self-inflicted, but assured them that the facility was treating the incident as R1 "had told it," and would cooperate fully with police and state investigators. CMS Ex. 16, at 2; CMS Br. at 4. Administrator Elliott remained at the facility, checking on R1 at 4:30 a.m. and again at 6:00 a.m. CMS Ex. 16, at 2; CMS Br. at 5. At 8:00 a.m., he advised the assistant director of nursing (ADON) of the incident, and then went home. CMS Ex. 16, at 2; CMS Br. at 5. He also called and left a message for Janet Patterson, the director of nursing (DON), who was out of town. P. Br. at 7; CMS Br. at 5; CMS Ex. 18, at 24.

Administrator Elliott returned to the facility at about 9:00 a.m. to meet with Chief Fuller and Officer Frost from the McGregor Police Department. The facility apparently maintained video cameras, and the police officers, Administrator Elliott, Mr. Scherwitz, and RN Melissa Riley viewed the videotape. The tape, however, had not been changed the previous day, and had run out at approximately 5:15 p.m. Chief Fuller took the names of the male staff members, reviewed K.Y.'s employee file, and left interview forms for staff to complete. CMS Ex. 18, at 24. Chief Fuller opined that it was not necessary to suspend all male employees nor to interview all female residents. P. Ex. 13, at 2.

During the course of the day, Administrator Elliott spoke to police, physicians, and R1's family. At 5:00 p.m., he checked with the charge nurses to see if any problems had arisen, and none were reported. He returned to the facility at 9:00 p.m. and, again, no problems were reported. CMS Ex. 18, at 24.

The following day, January 7, 2002, Administrator Elliott contacted R1's attending physician for a copy of the ER examination report. He met with R1's daughter, who expressed her concerns about the examination results, and complained that an outside door near her mother's room was left unlocked. Although Administrator Elliott had earlier instructed staff to "secure" the door, when he inspected it, he found that someone had removed tape that had previously secured the door. He re-taped the door, and put a sign on it stating that it should not be unlocked. CMS Ex. 16, at 3; CMS Br. at 6.

He discussed with DON Patterson presenting in-service training on abuse, and they decided that the facility social worker should present the training when she returned from an illness, because she had recently attended a conference on abuse, and was considered the most qualified person to present the training. CMS Ex. 16, at 3; CMS Br. at 6.

At 8:00 a.m. January 8, 2002, Administrator Elliott and DON Patterson met with Drs. Boles, Reynolds, and Goebel to discuss the incident. CMS Ex. 18, at 25; CMS Br. at 7; P. Br. at 8. The physicians suggested no additional actions. At 9:00 a.m., the State Agency surveyor, Jennifer Bybee-Gaston, arrived. CMS Br. at 7; P. Br. at 8; CMS Ex. 18, at 25. According to Surveyor Bybee-Gaston, Administrator Elliott told her that the matter should be handled with "utmost discretion," and that "he did not feel that 'just everyone' needed to know about the allegation of rape." CMS Ex. 22, at 3. He also told her that he had not interviewed all staff who were in the facility on the night of the alleged assault, but had limited his interviews to those individuals who had been working in R1's unit. CMS Ex. 22, at 4; CMS Br. at 7. Facility staff had not assessed other residents to assure that they had not been abused.

Beginning at approximately 10:00 p.m. January 8, continuing through January 9, 2002, the facility social worker conducted in-service training programs on the signs and symptoms of abuse and reporting abuse. CMS Ex. 18, at 13-14; CMS Ex. 22, at 5; P. Br. at 9. Beginning at 8:00 p.m. January 8, all male staff were assigned to work with female staff, and were not to enter any female resident's room unless accompanied by female staff. CMS Ex. 18, at 18-19; CMS Ex. 22, at 5; P. Br. at 9. On January 9, 2002, the DON and ADONs performed physical assessments on and interviews of female residents, which did not reveal any evidence or complaints of abuse. CMS Ex. 18, at 29-32; CMS Ex. 22, at 5; P. Ex. 11; P. Br. at 9; CMS Br. at 9.

The question before me is whether the facts upon which CMS relies make out a legally sufficient case that the facility was out of substantial compliance. I conclude that they do not. CMS's case is significantly weakened because CMS has not articulated any uniform standard of care for investigating allegations of abuse and for protecting residents while such an investigation is pending. ⁽⁴⁾ I am not aware of any situation in which we have held a facility to the standard that CMS proposes here.

CMS argues that Administrator Elliott "really did nothing other than report the allegation to the [p]olice and [State Agency] for them to investigate." CMS Br. at 12. I am puzzled by what appears to be CMS's dismissive attitude toward this reporting requirement. I consider that reporting the allegation is critical to compliance with section 483.13(c). Nor do I understand CMS's criticism of Administrator Elliott for consulting law enforcement and medical personnel throughout the conduct of his investigation. Such consultation is reasonable, even critical. In investigating potential criminal conduct, the facility must coordinate its investigation with that of law enforcement officials. I recognize that the facility has an independent obligation to investigate allegations of abuse, but I find no error in facility administration consulting professional investigators. Indeed, Administrator Elliott's close working relationship with police and medical personnel during the course of his investigation should be commended, not criticized.

Moreover, as the above discussion shows, Administrator Elliott did significantly more than simply report the allegation. He interviewed relevant witnesses and secured written witness statements from individuals who worked on R1's unit and were in a position to provide relevant information. He obtained from facility staff, and from someone who had cared for R1 in a different facility, written statements that provided a credible non-abuse explanation for R1's injuries. P. Ex. 2, at 42-44. He spoke to several physicians, including R1's treating doctor, about the physical findings, R1's reaction and her "peculiar" demeanor in the face of an alleged rape, as well as the feasibility of the non-abuse explanation for the physical findings. ⁽⁵⁾ P. Br. at 9; P. Ex. 4, at 4.

Within three days of the incident, Administrator Elliott had initiated in-service staff training by the facility social worker, who had herself recently undergone such training. I do not consider this an unreasonable delay in scheduling and conducting in-service training. The administrator prepared and submitted a comprehensive written report to the State Agency. P. Ex. 4. Further, as Petitioner asserts, and CMS does not dispute, prior to the incident, the facility had performed criminal background checks on the male employees working the night of the alleged abuse. P. Ex. 6, at 5.

In CMS's view, facility efforts were insufficient. The facility should have interviewed all staff on duty on January 5, 2002, interviewed all male staff, assessed and/or interviewed all facility residents, kept outside doors locked, immediately initiated staff in-service training, and denied male staff unsupervised access to female residents. CMS Ex. 22 (Bybee-Gaston Declaration); CMS Br. at 13.

The facility has a duty to conduct a timely investigation of all reports of sexual abuse, and to protect its residents during that abuse investigation; however, the facility has discretion to decide what steps it must take to fulfill its regulatory obligations. Claudette Box Nursing Facility, DAB CR1161, at 7; accord, Windsor Health Care Center, DAB No. 1902, at 5 (2003), aff'd, Windsor Health Center v. Leavitt, No. 04-3018 slip op., 2005 WL 858069 (6^th Cir. April 13, 2005 ) ("A facility is permitted the flexibility to choose the methods it uses to prevent accidents, but the chosen methods must constitute an 'adequate' level of supervision under all the circumstances."). Thus, a facility's reasonable response might include immediately notifying all supervisory staff, thus heightening their vigilance, and following up with in-service training for all staff as soon as it can be arranged. A facility might also reasonably limit staff interviews to those individuals expected to have some knowledge of the incident. I find no support for the proposition that the facility is compelled to question and/or examine every female resident in order to comply with the regulations.

I find it unrealistic to expect an institution to perform all of these actions with the immediacy that CMS demands. Situations in which the Departmental Appeals Board (Board) or its ALJs have found substantial noncompliance with 42 C.F.R. § 483.13(c) are in no way comparable to the situation presented here. In Vandalia Park, DAB No. 1940 (2004), for example, the Board agreed that the facility failed to investigate thoroughly multiple allegations of abuse or to protect its residents pending the outcome of the investigation. There, a staff member reported witnessing an instance of abuse, and, in separate incidents, two other residents complained that they had been abused. Although the facility's policy listed "among the required steps" immediate removal from the facility of any person "reported" to be abusing a resident, notification of proper law enforcement, contact with the physician and family, and interviews of all witnesses, the facility had taken none of these actions. The residents were not examined by a physician to determine if any evidence might corroborate their allegations. Nor did the facility document that law enforcement personnel were informed about their complaints. Vandalia Park, DAB No. 1940, at 16. I note that in Vandalia Park, CMS argued that professional standards of practice required the types of actions taken by Petitioner in this case: physical exams, notice to physicians and family, collection of clothing, "and other measures." Id.

In Britthaven, Inc., d/b/a/ Britthaven of Smithfield, DAB CR1259 (2004), the ALJ sustained CMS's findings of substantial noncompliance where the facility failed completely to report or investigate a resident's unexplained injuries. In Spring Meadows Health Care Center, DAB CR1063 (2003), aff'd, DAB No. 1966 (2005), the ALJ sustained CMS's findings under § 483.13(c)(3) where facility staff noted an injury and suspected abuse, but the facility did not timely report the incident, did not speak with any staff member on duty the night of the incident, and did not subsequently remind staff of steps it should take to prevent potential abuse.

CMS has cited no authority for finding substantial noncompliance in situations even remotely similar to the one presented here. Indeed, where facilities have acted as Petitioner acted here, ALJs have consistently found them in substantial compliance. In Life Care Center of Hendersonville, DAB CR542 (1998), the ALJ found that the facility "complied fully with applicable requirements," where it sent the allegedly abused resident to the hospital with a specific request that the resident be evaluated for the possibility of sexual abuse, notified the resident's treating physician, prepared incident reports that were reviewed by the facility administrator and DON, filed a report with the appropriate state agency reciting the nature and extent of the resident's injuries and the facility's investigative steps, instituted hourly checks, and interviewed staff members who cared for the resident. ⁽⁶⁾

Similarly, in Claudette Box Nursing Facility, DAB CR1161, hospital staff treating a facility resident for respiratory problems noticed lacerations in her genital area, and reported the finding to the facility. The facility interviewed staff responsible for providing care to the resident on the day of her hospitalization, accounted for the whereabouts of other residents on that day, and developed a plausible non-abuse explanation for the injuries. CMS faulted the facility because it did not obtain a written statement from the employee whose explanation for a resident's injuries ruled out abuse, ⁽⁷⁾ and argued that it should have widened the scope of its investigation to include additional employees.

Rejecting CMS's position, the ALJ noted that 42 C.F.R. § 483.13(c)(3) contains no prescription as to the exact steps a facility must take, but gives the facility discretion as to how it should investigate abuse allegations.

An investigation is inadequate only if it is not thorough. Given that, it is not possible to decide that a facility investigated abuse inadequately simply by listing steps that, in the view of CMS, the facility ought to have taken in order to investigate abuse. Rather, the question is: were whatever actions the facility took sufficient to constitute a thorough investigation of the allegations of abuse.

Claudette Box Nursing Facility, DAB CR1161, at 7. The ALJ went on to describe what he considered reasonable: the investigation should attempt to identify the cause of the injury that prompted the allegations of abuse. If the cause could not reasonably be ascribed to something other than abuse, the facility should try to identify the possible perpetrators of the abuse and account for their whereabouts at the time the abuse occurred. A facility must document its investigation and maintain its records for third party review. The facility is not required to pursue and rule out every conceivable explanation. The ALJ specifically rejected the suggestion that the facility should have assessed all of its residents immediately upon being advised of the potential abuse of one resident. Id. at 12. See also Franklin Care Center, DAB CR1023, at 14 (2003), aff'd, DAB No. 1900 (2003) (following serious medication errors, facility was not required to conduct a chart review and physical assessment of every resident).

Here, Petitioner's investigation included every step the Board or its ALJs have articulated for compliance with 42 C.F.R. § 483.13(c)(3), and I am unwilling to impose upon it a higher standard, particularly where CMS has presented no evidence supporting such a higher standard of care.

This is not to say that the facility's actions were error-free. It certainly would have been better had the videotape been replaced, so as to record events through the evening of January 5. But, inasmuch as CMS has not suggested any obligation to videotape, I do not find that error a deficiency. I find more problematic the unlocked door near R1's room following Administrator Elliott's direction that the door be kept locked. This oversight was probably a deficiency. However, it was timely remedied and, by itself, does not constitute substantial noncompliance.

C. CMS offers no evidence to support its contention that the facility failed to develop adequate written policies and procedures designed to prohibit abuse of residents.

Although CMS argues that the facility "could not produce a comprehensive written plan on how to conduct an investigation or prevent abuse during an investigation" (CMS Br. at 12), it provides no evidence supporting the charge. Surveyor Bybee-Gaston's declaration makes no reference to the adequacy of the facility's written plans. CMS Ex. 22. The surveyor worksheets do not suggest any problems with the written policies and procedures, but state that the facility "failed to implement policies to adeq[uately] investigate." CMS Ex. 10. The Statement of Deficiencies includes no complaint as to the adequacy of the facility's written policies and procedures. In asserting facility noncompliance under this tag, the state surveyors reiterated the specific allegations discussed above: that the facility failed to investigate adequately and failed to protect residents adequately pending the outcome of the investigation. CMS Ex. 2, at 3-6. In the absence of any evidence, I reject CMS's contention that the facility could not produce adequate written policies and procedures designed to prohibit abuse.

D. Because I find that the facility was in substantial compliance with 42 C.F.R. § 483.13(c) (staff treatment of residents), CMS has not made a legally sufficient case that the facility was not adequately administered. I therefore find that the facility was in substantial compliance with 42 C.F.R. § 483.75 (administration).

A finding of noncompliance with the requirement that a facility be administered in a manner that "enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident" derives from findings of substantial noncompliance in other areas. Asbury Center at Johnson City, DAB No. 1815 (2002). Thus, because I do not sustain CMS's allegation of noncompliance on the underlying deficiency (42 C.F.R. §§ 483.13(c)(3) and 483.13(c)), I cannot sustain a finding of substantial noncompliance with the administration regulation, 42 C.F.R. § 483.75.

V. Conclusion

For the reasons discussed above, I find that Petitioner substantially complied with program participation requirements, and that CMS therefore had no basis for imposing remedies against it.

Carolyn Cozad Hughes

Administrative Law Judge

1. This mis-citing of the § 483.13(c) subsections appears to occur with a frequency sufficient to suggest a systemic problem which the state agencies and CMS should correct. See, e.g., Cedar View Good Samaritan, DAB No. 1897, at 8 (2003); Claudette Box Nursing Facility, DAB CR1161, at 13 (2004); Franklin Care Center, DAB CR1023, at 4-6 (2003); Spring Meadows Health Care Center, DAB CR1063, at 2, 12 (2003); Valley Oaks Camden, DAB CR1257, at 3 n.2, at 8 n.7 (2004).

2. Unfortunately, because of lab delays, state and local law enforcement agencies were not able to reach a definitive conclusion until months after the allegation was made. CMS Ex. 22, at 3. The parties do not dispute their ultimate conclusion that no abuse occurred. CMS Ex. 22, at 3; P. Ex. 14.

3. I make Findings of Fact and Conclusions of Law (Findings) to support my decision in this case. I set forth each Finding, in italics and bold, as a separate heading.

4. Petitioner has submitted a portion of CMS's training manual for detecting and preventing abuse and neglect, which apparently includes a section on conducting timely and effective investigations. P. Ex. 9. Petitioner asserts that "[n]owhere in the manual is there any requirement for the level of intervention called for by the State Surveyors," and, Petitioner asserts further, the manual does not even require the level of intervention provided by the facility here. P. Br. at 13. CMS did not respond to this assertion and points to no policy, manual provision, guideline, or other writing, from government or medical literature, in support of its position. The full CMS manual provisions might have been helpful in determining a standard of care, but neither party provided them.

5. Contrary to CMS's implication, I consider it appropriate that the facility gathered and followed-up on evidence suggesting that no abuse occurred. Such evidence included: credible non-abuse explanations for R1's injuries, R1's daughter's observation that her mother, who was in the early stages of dementia, may have dreamed it after hearing about a similar incident happening in another facility, and R1's own demeanor and remarks, describing her alleged attacker as "good looking." Moreover, the facility should not be faulted because unit staff were unable to figure out how any abuse occurred without their knowledge, which, in retrospect, is understandable.

6. I note that in Life Care Center of Hendersonville, CMS (then called HCFA) faulted the facility for not expanding its investigation to other residents "who were likely targets of abuse." In contrast here, CMS faults the facility for not expanding its investigation to all residents, even absent the suggestion that any had been victims of abuse. In Hendersonville, the ALJ did not address CMS's argument, but rejected it as untimely.

7. I note that here Petitioner obtained such written statements.