San Francisco Health Care, DAB CR6483 (2024)

DECISION

Based on a complaint investigation and survey completed on December 10, 2019, Respondent, the Centers for Medicare & Medicaid Services (CMS), determined San Francisco Health Care (Petitioner) was not in substantial compliance with Medicare participation requirements and imposed a per-day civil money penalty (CMP).

As explained below, I conclude Petitioner did not substantially comply with Medicare participation requirements and sustain the imposition of a $1,040 per-day CMP from November 1, 2019 through February 18, 2020, for a total of $113,360.

I. Background

Petitioner is a skilled nursing facility (SNF) located in San Francisco, California participating in the Medicare and Medicaid programs. The California Department of Public Health (CDPH or state agency) completed a complaint investigation and survey at Petitioner’s facility on December 10, 2019. Relying on that survey, CMS found Petitioner to be noncompliant with Tag F600 (42 C.F.R. § 483.12(a) – freedom from abuse and neglect) at the “G” scope and severity level (indicating isolated actual harm that is not immediate jeopardy) and Tag F609 (42 C.F.R. § 483.12(c)(1), (4) – reporting of alleged violations) at scope and severity level “D” (indicating isolated potential for

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more than minimal harm that is not immediate jeopardy).¹ CMS Ex. 1 at 1, 10; CMS Ex. 10 at 1.

By letter dated February 13, 2020, CMS notified Petitioner that based on the survey findings of noncompliance with Medicare participation requirements, it would impose: a denial of payment for new admissions (DPNA), effective March 10, 2020; a denial of approval of nurse aide training program; and a $1,040 per-day CMP beginning November 1, 2019 and continuing until further notice. CMS Ex. 10 at 2-3. CMS also informed Petitioner of its appeal rights. Id. at 3.

CDPH conducted a revisit survey of the facility and found Petitioner returned to substantial compliance as of February 18, 2020. CMS Ex. 11 at 2. On March 3, 2020, CMS rescinded the DPNA and imposed a per-day CMP of $1,040 from November 1, 2019 through February 18, 2020, for a total CMP of $113,360. Id.

Petitioner timely sought hearing before an administrative law judge (ALJ) in the Civil Remedies Division to challenge CMS’s determination of noncompliance with program requirements and the imposition of a CMP, resulting in my designation to hear and decide this case. I issued an Acknowledgment and Pre-hearing Order (Pre-hearing order) that established a briefing schedule and directed the parties to file pre-hearing submissions that included written direct testimony for all proposed witnesses, proposed exhibits, and pre-hearing briefs.

CMS filed a pre-hearing brief (CMS Br.) and 15 proposed exhibits (CMS Exs. 1-15). Petitioner filed a pre-hearing brief (P. Br.) and eight proposed exhibits (P. Exs. 1-8). CMS identified one witness in its exchange, Ngozi Ezekwo, R.N. Petitioner identified four witnesses in its exchange: Stan Stukov, Almaroof Apatira, Erica Trujillo, and William Blake Falk. Both parties sought the opportunity to cross-examine the opposing party’s witnesses. CMS subsequently withdrew its request to cross-examine all of Petitioner’s witnesses except Almaroof Apatira.

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II. Hearing and Admission of Exhibits

On July 20, 2021, I held a videoconference hearing to allow the parties to cross-examine witnesses. At the outset and without objection from the parties, I entered CMS Exhibits 1 through 15 and Petitioner’s Exhibits 1 through 8 into evidence. Hearing Transcript (Tr.) at 3. During the hearing, Petitioner offered a demonstrative exhibit and offered to submit a video of the October 20, 2019 incident. Tr. at 81, 107. CMS objected to the introduction of the former but not the latter. Id. I overruled CMS’s objection. Tr. at 81. After the hearing, Petitioner filed these exhibits as Petitioner’s Exhibits 9 and 10, respectively. I enter Petitioner’s Exhibits 9 and 10 into evidence. The parties subsequently filed post-hearing briefs (CMS Closing Br. and P. Closing Br.).

III. Issues

A. Whether Petitioner was in substantial compliance with Medicare participation requirements at 42 C.F.R. § 483.12(a)(1) (Tag F600) and 42 C.F.R. § 483.12(c)(1), (4) (Tag F609).

B. If Petitioner was not in substantial compliance, whether the CMP imposed by CMS is reasonable.

IV. Jurisdiction

I have jurisdiction to hear and decide this case. Soc. Sec. Act (Act) §§ 1128A(c)(2), 1819(h)(2)(B)(ii) (codified at 42 U.S.C. §§ 1320a-7a(c)(2), 1395i‑3(h)(2)(B)(ii)); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13).

V. Statutory and Regulatory Authority

The Act sets forth requirements for a SNF’s participation in the Medicare program and authorizes the Secretary of Health and Human Services to promulgate regulations implementing those statutory provisions. 42 U.S.C. § 1395i-3. These implementing regulations are found at 42 C.F.R. Parts 483 and 488. To participate in the Medicare program, a SNF like Petitioner must maintain substantial compliance with program participation requirements. To be in substantial compliance, a 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. A deficiency is a violation of a participation requirement established by 42 U.S.C. § 1395i-3(b)-(d), or the Secretary’s regulations at 42 C.F.R. pt. 483, subpt. B. Id. “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.” Id.

The Secretary contracts with state agencies to conduct periodic surveys to determine whether SNFs are in substantial compliance with the participation requirements.

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42 U.S.C. § 1395aa(a); 42 C.F.R. § 488.10. The Act also authorizes the Secretary to impose enforcement remedies against SNFs that are not in substantial compliance with program participation requirements. 42 U.S.C. § 1395i-3(h)(2). The Secretary’s regulations specify the enforcement remedies that CMS may impose if a facility is not in substantial compliance. 42 C.F.R. § 488.406.

CMS may impose enforcement remedies against a facility that is not in substantial compliance with a participation requirement. 42 U.S.C. § 1395i-3(h)(2); 42 C.F.R. § 488.406. Relevant here, CMS may impose a per-day CMP for the number of days a facility is not in substantial compliance. 42 C.F.R. § 488.430(a). Before adjustments for inflation, CMS can impose a CMP from $50 to $3,000 per day for less serious noncompliance or $3,050 to $10,000 per day for more serious noncompliance that poses immediate jeopardy to the health and safety of residents. 42 C.F.R. § 488.438(a)(1).

If CMS imposes a CMP based on a determination of noncompliance, the facility may request a hearing before an ALJ to determine whether there was a basis for the deficiency findings that led to the imposition of the remedy and whether the CMP imposed was reasonable. 42 U.S.C. §§ 1320a-7a(c)(2), 1395i-3(h)(2)(B)(ii); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13). The facility may not appeal CMS’s choice of remedies. 42 C.F.R. § 488.408(g)(2).

VI. Burdens of proof and persuasion

Neither the Act nor its implementing regulations allocate the burden of proof or the quantum of evidence necessary to meet that burden. In the context of a regulatory enforcement action and absent statutory authority directing otherwise, it would be reasonable to expect the enforcing agency to establish by proof and persuasion that it was justified to impose penalties under the Act and its regulations. Nevertheless, the Departmental Appeals Board has imposed a burden-shifting regime in cases involving the imposition of enforcement penalties against providers whose appeals are adjudicated under 42 C.F.R. Part 498. Hillman Rehab. Ctr., DAB No. 1611 (1997), aff’d, Hillman Rehab. Ctr. v. U.S. Dep’t of Health & Human Srvs., No. Civ. A. 98-3789 (GEB), 1999 WL 34813783 (D.N.J. May 13, 1999); VITAS Healthcare Corp. of Calif., DAB No. 1782 at 4 (2001); Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004), aff’d sub nom., Batavia Nursing & Convalescent Ctr. v. Thompson, 143 F. App’x 664 (6th Cir. 2005).

Under that regime, CMS has the burden to come forward with evidence sufficient to make a prima facie showing² it had a basis for termination. In Hillman, the Board identified the elements it believed necessary for CMS to make such a showing:

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[CMS] must identify the legal criteria to which it seeks to hold a provider. Moreover, to the extent that a provider challenges [CMS’] findings, [CMS] must come forward with evidence of the basis for its determination, including the factual findings on which [CMS] is relying and, if [CMS] has determined that a condition of participation was not met, [CMS’] evaluation that the deficiencies found meet the regulatory standard for a condition-level deficiency.

DAB No. 1611 at 8.

Once CMS makes a prima facie showing of noncompliance, Petitioner bears the burden of persuasion and must prove by a preponderance of the evidence of record that it substantially complied with statutory and regulatory requirements. See Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004), aff’d sub nom., Batavia Nursing & Convalescent Ctr. v. Thompson, 143 F. App’x 664 (6th Cir. 2005).

To date, federal district and circuit courts have declined to disturb this burden-shifting regime on due process or other grounds.³See, e.g., Hillman Rehab. Ctr., DAB No. 1611 (1997), aff’d, Hillman Rehab. Ctr. v. U.S. Dep’t of Health & Human Srvs., No. Civ. A. 98-3789 (GEB), 1999 WL 34813783 (D.N.J. May 13, 1999); Fairfax Nursing Home, Inc., DAB No. 1794 (2001), aff’d, Fairfax Nursing Home v. Dep’t of Health & Human Srvcs., 300 F.3d 835 (7th Cir. 2002), cert. denied, 2003 WL 98478 (Jan. 13, 2003); Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004), aff’d sub nom., Batavia Nursing & Convalescent Ctr. v. Thompson, 143 F. App’x 664 (6th Cir. 2005). Until such judicial scrutiny demands otherwise, and absent modification of the Act or CMS’s implementing regulations, I apply the Board’s burden-shifting regime.

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VII. Discussion

A. Applicable Law

The Secretary’s regulations in effect at the time of the survey define “abuse” in a skilled nursing facility as:

the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish. Abuse also includes the deprivation by an individual, including a caretaker, of goods or services that are necessary to attain or maintain physical, mental, and psychosocial well-being. Instances of abuse of all residents, irrespective of any mental or physical condition, cause physical harm, pain or mental anguish. It includes verbal abuse, sexual abuse, physical abuse, and mental abuse including abuse facilitated or enabled through the use of technology. Willful, as used in this definition of abuse, means the individual must have acted deliberately, not that the individual must have intended to inflict injury or harm.

42 C.F.R. § 483.5.

“Sexual abuse” is defined as “non-consensual sexual contact of any type with a resident.” Id. “Mistreatment” means the “inappropriate treatment or exploitation of a resident.” Id. “Exploitation” is defined as “taking advantage of a resident for personal gain through the use of manipulation, intimidation, threats, or coercion.” Id.

A facility resident “has the right to be free from abuse, neglect, misappropriation of resident property, and exploitation as defined in [42 C.F.R. pt. 483, subpt. B]. 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. The facility must “[n]ot use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion.” 42 C.F.R. § 483.12(a)(1).

42 C.F.R. § 483.12 applies both to staff-to-resident abuse and resident-to-resident abuse. The Bridge at Rockwood, DAB No. 2954 at 24 (2019).⁴ However, the Board has

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recognized a “distinction between ‘staff-to-resident’ abuse and ‘resident-to-resident’ interactions for purposes of determining compliance with section 483.13(b) ... .” Kindred Transitional Care & Rehab – Greenfield, DAB No. 2792 at 10 (2017). Thus, “the Board has held that ‘determining whether a facility failed to protect a resident’s right to be free from abuse when another resident behaved harmfully depends on whether the facility staff had a basis to be aware that such behavior might occur and yet left the resident vulnerable to it.” The Bridge, DAB No. 2954 at 24, quoting Kindred Transitional Care, DAB No. 2792 at 11.

The regulations also require a facility to take the following actions in response to allegations of abuse, neglect, exploitation, or mistreatment:

(1)the facility must ensure that all alleged violations are reported immediately to the facility administrator and appropriate state officials, within 2 hours if the events that cause the allegation involve abuse or result in serious bodily injury;

(2) the facility must have evidence that all alleged violations are thoroughly investigated;

(3) it must prevent further potential abuse, neglect, exploitation, or mistreatment while the investigation is in progress; and

(4) the facility must report the results of all investigations to the administrator or designated representative and to the appropriate state officials within 5 working days of the incident and take appropriate action if the violation is verified.

42 C.F.R. § 483.12(c)(1)-(4).

Facilities must also develop and implement written policies and procedures that: “(1) [p]rohibit and prevent abuse, neglect, and exploitation of residents and misappropriation of resident property, (2) [e]stablish policies and procedures to investigate any such allegations, and (3) [i]nclude training as required at paragraph § 483.95.” 42 C.F.R. § 483.12(b)(1)-(3).

With respect to training, a facility is required to develop, implement, and maintain an effective training program for all staff, including those hired under a contractual arrangement and volunteers. Among the training topics, a facility must include training on abuse, neglect, and exploitation, and educate its staff on what activities constitute

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violations, the procedures for reporting any incidents, dementia management, and resident abuse prevention. 42 C.F.R. § 483.95(c)(1)-(3).

B. San Francisco Health Care’s Abuse and Prevention Policy

Consistent with the regulations, Petitioner’s abuse and prevention policy established its residents have “the right to be free from verbal abuse, sexual abuse, physical abuse, mental abuse, corporal punishment, and involuntary seclusion.” CMS Ex. 8 at 2. This policy specified residents “must not be subjected to abuse by anyone,” including other residents. Id. (emphasis added). Petitioner announced it “does not condone any form of abuse ... ” and that it will “take appropriate steps to prevent the occurrence” of abuse. Id.

Petitioner’s abuse and prevention policy sets forth procedures the facility will follow to prevent, investigate, and protect its residents from abuse, including resident-to-resident abuse. Id. at 1-2, 16-18. The policy requires the Administrator and the Director of Nursing Services to “identify, intervene, and correct all situations in which abuse ... is likely to happen.” Id. at 5. Petitioner’s policy includes a non-exhaustive list of actions that must be implemented to effect this task. Id. at 5-6. In the event of alleged or observed resident-to-resident abuse, Petitioner requires facility staff to implement several actions specified in its policy. Id. at 17.

Beyond requiring the facility to prevent and address any form of abuse, Petitioner’s policy, consistent with the regulations, also requires that “alleged violations of Federal or State laws which involve [abuse] ... be reported immediately to State agencies and other entities ... [,] as may be required by existing State and Federal law.” Id. at 2. Petitioner’s policy defines the word “immediately” to mean “as soon as possible, in the absence of a shorter State time frame requirement, but not later than 2 hours after the allegation is made, if the events that cause the allegation involve abuse ... .” Id. at 2. Petitioner’s policy also requires allegations of abuse be reported to “the State licensing/certification agency responsible for survey/licensing the facility.” Id. at 14.

C. Relevant Facts

The deficiencies alleged by CMS pertain to the conduct of a facility resident, Resident B.⁵ Resident B was a 78-year-old man admitted to Petitioner’s facility on January 12, 2019. CMS Ex. 6 at 1. His diagnoses included influenza with pneumonia, muscle wasting and atrophy, dysphagia, localized edema, and unsteadiness on feet. CMS Ex. 6 at 1; CMS Ex. 1 at 2. Resident B scored 14 out of 15 points on the Brief Interview for

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Mental Status (BIMS)⁶ assessment, indicating he was cognitively intact. CMS Ex. 6 at 3; CMS Ex. 15 at 4.

On May 4, 2019, facility Administrator Almaroof Apatira spoke with Resident B after receiving a report he “touched the knee of [a female] patient.” P. Ex. 5 at 8. Resident B denied the allegation. Id. Facility staff presented and discussed a Behavior Contract with Resident B. Id. at 7-8.The Behavior Contract identified concerning behaviors Resident B displayed, including verbalization of sexual inappropriateness, sexual inappropriateness toward female residents, noncompliance with facility’s rules, and angry outbursts. Id. at 7.

The contract set forth actions Resident B needed to take to address the identified behavioral issues, among them avoiding “congregating with female residents.” Id. The facility also set forth consequences for failing to comply with these obligations, including limiting the areas where Resident B could be present, refusing his readmission, and canceling his out-on-pass privileges. Id. at 7-8. Resident B acknowledged to facility staff that he understood the Behavior Contract’s contents and the possible consequences of failing to comply with it. Id. at 8. He accepted a copy of the Behavior Contract but refused to sign it. Id.

Petitioner placed Resident B “on psychosocial behavior modification,” while his attending physician “gave an order for sexual behavior monitoring every shift” as of May 2019. CMS Ex. 12 at 1; P. Ex. 5 at 1-6. The facility also developed a behavior care plan that purported to document and address Resident B’s identified behaviors, the resident’s goals, any proposed interventions, and notes from his interdisciplinary team (IDT). P. Ex. 5 at 9-10.

Approximately five months later, an incident occurred between Resident B and Resident C. CMS Ex. 7 at 5. Resident C, an 85-year-old woman, was first admitted to Petitioner’s facility on February 22, 2017 and readmitted on January 31, 2019. Id. at 1. Her diagnoses included obsessive-compulsive disorder, vascular dementia, and senile degeneration of the brain. CMS Ex. 7 at 1-2. She scored 6 out of 15 on the BIMS test, indicating severe cognitive impairment. CMS Ex. 7 at 3; CMS Ex. 15 at 3.

On October 20, 2019, at about 8:00 p.m., Resident C entered the hallway in Petitioner’s facility near a door by which Resident B stood. P. Ex. 10. Resident B asked Resident C to come to him by gesturing with his hands. Id. Resident C walked towards Resident B. Id. Once Resident C reached him, Resident B placed his arms around Resident C and

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pulled her closer and proceeded to “rub[] her groin area” without consent. CMS Ex. 6 at 5-6; P. Ex. 10 Pt. 4. Approximately ten seconds later, Care Manager Charlene Dowdy noticed “[Resident C] was uncomfortable with [Resident B’s] actions,” immediately separated the residents, and reported the incident to Administrator Apatira and Nurse Jeanie Gee, who documented the interaction in Resident B’s medical record. CMS Ex. 6 at 4; CMS Ex. 7 at 6; P. Ex. 4 at 2.

Petitioner’s staff immediately assessed Resident C for pain and discomfort, explained to Resident B that his actions were inappropriate, and reported the incident to the appropriate entities.⁷ CMS Ex. 7 at 7; P. Ex. 4 at 2. Petitioner also “separated the location of Resident B[’s] and Resident C’s rooms by moving Resident C to the third floor” and updated Resident B’s care plan to require Petitioner’s staff to “monitor [Resident B’s] whereabouts [every 30 minutes] for 72 hours.” CMS Ex. 6 at 4; CMS Ex. 7 at 4; P. Ex. 4 at 2; Tr. at 37-38.

The next day Care Manager Dowdy reported the incident to the charge nurse, stating “[R]esident C was touched inappropriately on her private parts by [Resident B].” CMS Ex. 7 at 5. Petitioner formed an interdisciplinary team which subsequently found the reported incident to be substantiated. Id.

Although Petitioner placed Resident B under monitoring every 30 minutes for 72 hours, the October 22, 2019 observation log does not document these required checks from 12:00 a.m. to 2:30 p.m. CMS Ex. 14 at 2. The log also revealed facility staff were unaware of Resident B’s location from 3:00 p.m. until 8:45 p.m. that same day. CMS Ex. 6 at 11; CMS Ex. 14 at 2. Petitioner’s staff reminded Resident B he needed “to inform staff if he [was] going out” and sign the out-on-pass book. CMS Ex 6 at 11.

On November 1, 2019, at about 1:25 a.m., Resident B interacted with another resident, Resident A, triggering the facility to report an instance of possible sexual abuse. Petitioner admitted Resident A, a 77-year-old woman, on August 1, 2013, and then again on July 4, 2019. CMS Ex. 5 at 1. Her diagnoses included severe sepsis without septic shock, muscle wasting and atrophy, senile degeneration of the brain, dementia, and schizophrenia. Id. at 1-2. Resident A received a BIMS score of 0 out 15, indicating severe cognitive impairment. CMS Ex. 5 at 3; CMS Ex. 15 at 9 (Ezekwo Decl. ¶19). Facility staff characterized Resident A as “unable to consent for self due to dementia.” CMS Ex. 5 at 11.

The day of the incident, Certified Nurse’s Aide (CNA) Erica Trujillo discovered Resident B in Resident A’s room “at the edge of Resident A’s bed” with his pants down and his buttocks area, the back of his thighs, and his private parts exposed. CMS Ex. 5 at 5, 9,

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11; CMS Ex. 6 at 8 (“he was by the bedside of resident ... with his pants down and exposed his private.”). CNA Trujillo observed Resident A “laying at the edge of the bed with her knees bent and diaper (brief) removed” and that her “genitalia [was] exposed” at the time. CMS Ex. 5 at 5. CNA Trujillo alerted charge nurse Tessie Bawang while Petitioner’s staff “escorted [Resident B] out of the room to his room.” CMS Ex. 5 at 5; CMS Ex. 6 at 9.

When CNA Trujillo asked Resident A what happened, she said, “He tried to fuck me.” CMS Ex. 5 at 9. Nurse Bawang noted Resident A could not relate more due to her confusion. Id. CNA Trujillo and Nurse Bawang stayed with Resident A “until she was stable.” Id. at 4. Petitioner’s staff placed Resident A under close observation every 30 minutes and placed Resident B under close monitoring of his whereabouts every 30 minutes for 72 hours. CMS Ex. 5 at 9; CMS Ex. 6 at 9.

Petitioner’s staff notified law enforcement and Resident A’s physician of the incident. CMS Ex. 5 at 9. Law enforcement arrived at the facility at about 3:15 a.m. to investigate the reported incident but did not interview Resident B because he was asleep. CMS Ex. 6 at 8. Resident A’s physician meanwhile instructed Petitioner’s staff to send her to the hospital “to be examined for sexual abuse/rape.” CMS Ex. 5 at 9.

Petitioner’s staff sent Resident A to the hospital by ambulance at 9:58 a.m. Id. at 9. In the emergency department, Resident A reported vaginal discomfort but “later denied pain anywhere in her body.” Id. at 11. Based on the reports of potential sexual abuse, hospital physicians conducted a forensic exam and issued a document informing Resident A she had been evaluated for abuse. Id. at 11-12.

While Resident A was at the hospital, Cynthia Advincula, the facility’s Director of Social Services (DSS), spoke with Resident B regarding the incident. CMS Ex. 6 at 8. DSS Advincula informed Resident B a police offer had come to speak with him when he was asleep and would return to conduct an investigation. Id. Resident B did not deny he went to Resident A’s room and exposed himself but declined to respond when asked if he touched her inappropriately. Id. DSS Advincula reminded Resident B of his “series of sexual abuse incidents,” prompting Resident B to state he would leave the facility that day. Id. Resident B left the facility against medical advice that same day and did not return. CMS Ex. 5 at 9. Petitioner reported the incident to CDPH at 2:50 p.m., over 13 hours after the incident occurred. CMS Ex. 15 at 14.

On November 2, 2019, Resident A returned to the facility after discharge from the hospital. CMS 5 at 8. Registered Nurse Aleli San Juan noted Resident A reacted combatively when she attempted to check the resident’s blood sugar and cleaned and changed her diaper, angrily yelling “Get off me.” Id. Nurse San Juan observed Resident A “settled and kept quiet” after receiving care but repeatedly bit on her teeth, causing the nurse to recommend staff monitor her behavior. Id.

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On November 4, 2019, the interdisciplinary team convened by Petitioner memorialized the events surrounding this incident and found them to be substantiated. CMS Ex. 6 at 10. On November 6, 2019, CDPH initiated a complaint survey it completed on December 10, 2019, finding Petitioner was not in substantial compliance with Medicare participation requirements. CMS Ex. 1. Petitioner’s plan of correction for each cited deficiency included in-service training for members of staff and quarter-hour monitoring of any resident assessed to be a potential risk for inappropriate sexual activity. CMS Ex. 1 at 2-4, 10-12.

On February 13, 2020, CMS informed Petitioner it would impose certain remedies including a CMP of $1,040 per day, a denial of payment for new admissions, and possible termination of its provider agreement. CMS Ex. 10. CDPH conducted a revisit survey of the facility and found Petitioner returned to substantial compliance with Medicare participation requirements as of February 18, 2020. CMS Ex. 11 at 2. CMS informed Petitioner it would not terminate Petitioner’s Medicare agreement or impose a denial of payment for new admissions but that the previously imposed CMP would remain in effect. Id.

D. Findings of Fact and Conclusions of Law⁸

1. Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(a)(1) (Tag F600).⁹

42 C.F.R. § 483.12(a)(1) provides a resident of a skilled nursing facility “has the right to be free from abuse, neglect, misappropriation of resident property, and exploitation as defined in [42 C.F.R. pt. 483, subpt. B]. “Abuse” includes “non-consensual sexual contact of any type with a resident.” 42 C.F.R. § 483.5. This includes both staff-to-resident abuse and resident-to-resident abuse. The Bridge, DAB No. 2954 at 24. With respect to resident-to-resident abuse, a facility fails to assure a resident’s right to be free from abuse when another resident behaves harmfully and “the facility staff had a basis to be aware that such behavior might occur and yet left the resident vulnerable to it.” Kindred Transitional Care, DAB No. 2792 at 11.

CMS argues Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(a)(1) because Resident B’s sexual abuse of Resident A was foreseeable based on his past conduct, and the facility failed to prevent that abuse by following its policy and implementing adequate measures once it became aware of Resident B’s proclivities. CMS Br. at 12-21; CMS Closing Br. at 3-19. Petitioner meanwhile contends Resident

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B’s conduct towards Resident A did not amount to sexual abuse because he did not actually touch Resident A, that it could have not have foreseen Resident’s B’s conduct based on his prior history at the facility, and that in any event the facility implemented reasonable interventions to prevent abuse. P. Br. at 7-13; P. Closing Br. at 3-11. As explained below, I find the record before me demonstrates by a preponderance of the evidence that Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(a)(1).

a. Resident B sexually abused Resident A

Petitioner asserts it cannot be found to have failed in its duty to keep Resident A free from abuse because Resident B never touched Resident A or inflicted injury upon her, meaning, by definition, no sexual abuse occurred. P. Br. at 11 (citing Cal. Penal Code § 243.4(a) (defining sexual battery as touching another person’s intimate parts without consent)). This argument fails because the federal regulations governing skilled nursing facilities define sexual abuse and cannot be superseded by application of state law. ¹⁰Britthaven, Inc., DAB No. 2018 at 15 (2006) (“[F]ederal reporting requirements take precedence over state law.”).

These regulations do not require physical contact to establish sexual abuse. 42 C.F.R. § 483.5 (defining “Sexual abuse” to mean “non-consensual sexual contact of any type with a resident.”) (emphasis added). The Board has affirmed sexual abuse can occur even where the aggressor does not make physical contact with the victim. See Kindred Transitional Care, DAB No. 2792 at 4 (describing contact triggering a report of abuse allegations to include the aggressor exposing himself to a resident and asking her to touch his penis).

Petitioner’s contention that “sexual contact” requires physical interaction would lead to absurd outcomes; a facility could simply ignore sexual misconduct so long as an aggressor falls short of actually touching a victim. That interpretation is also plainly inconsistent with California’s definition of sexual assault, which Petitioner purportedly wishes me to apply. See Cal. Penal Code § 220. In short, Petitioner’s effort to redefine sexual abuse to require physical contact has no support in the regulations and is without merit.

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The evidence of record establishes Resident B’s conduct towards Resident A on November 1, 2019 constituted sexual abuse within the meaning of 42 C.F.R. § 483.5. CNA Trujillo found Resident B in Resident A’s room “at the edge of [her] bed” with his pants down and his buttocks area, the back of his thighs, and his private parts exposed. CMS Ex. 5 at 5, 9, 11; CMS Ex. 6 at 8. Resident A was “laying at the edge of the bed with her knees bent and diaper (brief) removed.” CMS Ex. 5 at 5; CMS Ex. 6 at 5.¹¹ CNA Trujillo observed Resident A’s “genitalia [was] exposed” at the time. CMS Ex. 5 at 5. Resident B’s exposure of his genitals to Resident A in the close quarters of her room amounts to sexual contact. And there is no doubt she lacked the capacity to consent. Resident A suffered from senile degeneration of the brain, dementia, and schizophrenia, and scored 0 out of 15 on the BIMS assessment, indicating severe cognitive impairment. Id. at 1-3. Even if she could, her behavior following the incident strongly suggests aversion to Resident B’s overtures. CMS Ex. 5 at 4, 8, 9. Resident B’s conduct towards Resident A met the definition of sexual abuse within the meaning of 42 C.F.R. § 483.5.

Petitioner otherwise argues Resident B’s conduct does not amount to abuse because there is no “evidence that Resident A suffered mental anguish after the incident.” P. Br. at 18; 42 C.F.R. § 483.5 (defining “Abuse” as “the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.”). Petitioner’s argument is unsupported by the record. First, the regulations define “Abuse” separately from “Sexual Abuse;” while the former definition explicitly recognizes “sexual abuse” as a form of abuse, the latter term is defined in a different location as “non-consensual sexual contact of any type with a resident.” 42 C.F.R. § 483.5. There is no requirement under this separate definition that “Sexual abuse” result in harm, pain, or anguish.

Second, while I need not find evidence of harm, pain, or anguish, the record amply demonstrates Resident A exhibited signs of such injury following Resident B’s effort to sexually assault her. After interrupting Resident B’s sexual assault, CNA Trujillo asked Resident A what happened, to which she replied, “He tried to fuck me.” CMS Ex. 5 at 9. Both CNA Trujillo and another member of staff felt it necessary to stay with Resident A “until she was stable.” Id. at 4. The next day Resident A continued to demonstrate signs of mental anguish. She reacted combatively when a nurse attempted to clean and change her diaper, angrily yelling “Get off me.” Id. at 8. Resident A repeatedly bit on her teeth, causing the nurse sufficient concern to recommend staff monitor her behavior. Id.

Surveyor Enzekwo opined that “the need for such immediate stabilization efforts is a sign that Resident A suffered from serious emotional distress from the incident.” CMS Ex. 15 at 12 (Enzekwo Decl. ¶27). I find the surveyor’s opinion credible as to this issue and

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consistent with the record.¹² Resident A’s immediate and delayed responses to the incident and the reactions of Petitioner’s trained nursing staff strongly suggest Resident A experienced mental anguish because of Resident B’s conduct towards her.

Citing the testimony of William Blake Falk, N.P., Petitioner contends Resident A’s behavior after Resident B’s attempted sexual assault was in fact unrelated to the incident and does not establish mental anguish, particularly given her severe cognitive limitations. P. Br. at 18. Nurse Practitioner Falk opined Resident A’s behavior may have resulted from a change in medication. See P. Ex. 8 at 2 (Falk Decl. ¶¶3-5). I give little weight to N.P. Falk’s opinion as it is entirely speculative and, even if taken as true, does not exclude the possibility Resident A suffered mental anguish due to Resident B’s attempt to sexually assault her. N.P. Falk’s opinion also ignores the temporal proximity between the incident and Residents A’s increased agitation and distress at being touched, which suggests a correlation between them. The record demonstrates by a preponderance of the evidence that Resident B’s attempt to sexually assault Resident A caused her mental anguish. I conclude Resident B sexually abused Resident A on November 1, 2019.

b. Sexual abuse by Resident B was foreseeable

A facility’s failure to protect a resident from abuse by another resident amounts to regulatory noncompliance where it had reason to know such abuse might occur, i.e., that the abuse was foreseeable. The Bridge, DAB No. 2954 at 24; Somerset Nursing & Rehab. Facility, DAB No. 2353 at 3 (2010); Kindred Transitional Care, DAB No. 2792 at 11 (“determining whether a facility failed to protect a resident’s right to be free from abuse when another resident behaved harmfully depends on whether the facility staff had a basis to be aware that such behavior might occur and yet left the resident vulnerable to it.”).

CMS contends Resident B’s conduct prior to his sexual abuse of Resident A on November 1, 2019 put Petitioner on “ample notice” that it needed to implement measures

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to ensure he did not abuse other residents.¹³ CMS Closing Br. at 4. CMS cites Resident B’s improper contact with Resident C on October 20, 2019. Id. at 5 (citing CMS Ex. 7 at 4-9). CMS also points to evidence proffered by Petitioner that the facility had to counsel Resident B for touching the knee of an unidentified female resident on May 4, 2019, and on June 26, 2019, call the police after Resident B engaged in an altercation with his roommate involving physical aggression. Id. at 4-5 (citing P. Ex. 5 at 8-9).

Petitioner responds it appropriately addressed Resident B’s behavior following the October 20, 2019 incident, evidenced by the fact CDPH subsequently found no basis to impose a deficiency. P. Br. at 7-8; P. Closing Br. at 6; P. Ex. 3. Petitioner therefore claims CMS improperly relied on the October 20, 2019 incident to “presume noncompliance” for the November 1, 2019 incident and is precluded from doing by the doctrine of equitable estoppel. P. Br. at 8. Petitioner’s premise is erroneous; CMS did not rely on the prior incident to presume the facility failed to comply in the latter. CMS instead argues the prior incident should have signaled to Petitioner that Resident B’s behavior posed a risk to its other residents that triggered the facility’s obligation to manage that risk. CMS Closing Br. at 14. Petitioner could not have reasonably believed it had no obligation to implement measures to prevent future abusive conduct by Resident B simply because neither the state agency nor CMS made a finding of noncompliance concerning the October 20, 2019 incident.¹⁴ The doctrine of equitable estoppel has no relevance here.

Petitioner relatedly claims CMS is precluded from finding the facility failed to address a foreseeable risk of harm posed by Resident B because CDPH investigated the November 1, 2019 incident and declined to issue any deficiency findings as a result. P. Br. at 8

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(citing P. Ex. 3); P. Closing Br. at 6 (citing CMS Ex. 1). The premise of Petitioner’s argument is again erroneous. CDPH in fact cited the facility for two deficiencies arising from the November 1, 2019 incident. CMS Ex. 1 at 12. The single page of CMS’s Form 2567 submitted by Petitioner as P. Ex. 3 appears to be a preliminary finding, as it is dated November 1, 2019. The actual Statement of Deficiencies, by contrast, indicates CDPH completed its survey on December 10, 2019. CMS Ex. 1 at 1; see also CMS Ex. 15 at 2-3 (Surveyor Ezekwo declaring she identified two deficiencies as a result of her investigation and that the December 10, 2019 Statement of Deficiencies accurately reflected her survey findings). I again urge Petitioner’s counsel to take better care in accurately representing the law and the evidence of record in pleadings before me.

Even if CDPH had declined to issue a deficiency finding following its investigation of the November 1, 2019 incident, Petitioner’s argument remains specious. As CMS observes, nothing prevents CMS from disagreeing with a state agency and taking action to meet its statutory obligation to protect beneficiaries of the Medicare program. CMS Closing Br. at 14 (citing Big Bend Hosp. Corp., DAB No. 1814 at 6 (2002)).¹⁵ Petitioner’s claim that CDPH’s findings precluded CMS from making its own deficiency determinations is irrelevant here and in any case without merit.

Petitioner otherwise asserts Resident B’s abuse of Resident A on November 1, 2019 was genuinely unforeseeable. P. Closing Br. at 6-7. Petitioner’s own submissions undermine this view. On May 4, 2019, Resident B “touched the knee of [a female] patient.” P. Ex. 5 at 8. He also made “inappropriate sexual comments” to female staff. P. Br. at 4; P. Ex. 5 at 7. Petitioner’s response to these incidents makes clear it recognized his inappropriate sexually oriented conduct triggered its obligation to protect its other residents. Facility staff met with Resident B on May 6, 2019 and presented a “Behavior Contract” to him identifying his inappropriate behavior, including verbalization of sexual inappropriateness, sexual inappropriateness toward female residents, noncompliance with facility’s rules, and angry outbursts. P. Ex. 5 at 7-8. Resident B’s physician ordered “sexual behavior monitoring every shift” going forward. CMS Ex. 13 at 1. Petitioner also implemented changes to Resident B’s care plan to address these identified behaviors. P. Ex. 5 at 9-10.

Despite these interventions, Resident B persisted in sexually abusive conduct. On October 20, 2019, Care Manager Charlene Dowdy observed Resident B touching Resident C “inappropriately on her private parts.” CMS Ex. 7 at 5. Petitioner now contests this characterization of Resident B’s conduct, claiming the hallway video which

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captured the incident only showed the two residents from the back and therefore could not establish Resident B touched Resident C inappropriately. P. Br. at 8; P. Closing Br. at 5 n.4.¹⁶

Because the four frames submitted by CMS of that incident were of poor quality and limited duration, see CMS Ex. 13, I granted Petitioner leave at the hearing to submit a copy of the hallway video. Tr. at 107-08. Review of that video footage contradicts Petitioner’s claim. Approximately two seconds into the fourth part of the video submitted by Petitioner in five parts, Resident B clearly reaches his hand between Resident C’s legs and turns her body away from the camera. P. Ex. 10 Pt. 4. A member of staff (subsequently identified to be Care Manager Dowdy) walks down the hallway towards the two residents, starts to enter a patient room, and at approximately seven seconds into the video, sees Residents B and C and veers sharply towards them. Id. At 11 seconds, she removes Resident B’s arm from around Resident C and helps Resident C, now unrestrained, grab on to her walker and move down the hall away from Resident B. Id.

Even if the footage did not establish improper touching by Resident B, the facility’s contemporaneous documentation of the incident confirms its staff did not believe Resident B merely hugged Resident A, as Petitioner now claims. Care Manager Dowdy immediately reported the incident to Nurse Jeanie Gee, who documented the report in Resident B’s care notes. CMS Ex. 7 at 8.¹⁷ Care Manager Dowdy reported she was answering another resident’s call “when she noticed that [Resident B] was standing behind [Resident C] in the hallway and was rubbing her groin area. [Resident C] stated that she was uncomfortable with the resident’s actions. Care Manager [Dowdy] immediately separated them and notified this writer. She also left a voicemail with [the] Administrator regarding this incident.” Id. Nurse Gee also memorialized Resident C’s response in that resident’s own care notes, observing Resident C “stated she was frightened.” Id. at 7.

The facility’s documented response to the incident equally rebuts Petitioner’s claim that it could only determine Resident B hugged Resident C. It convened an interdisciplinary team to investigate the incident. That team “substantiated” the reported incident, noting “upon [review] of the in-house camera along the hallways, it showed that the reported incident was true.” Id. at 5. In response to Resident B’s conduct, Petitioner moved Resident C to another floor, ordered psychological monitoring for Resident C, and

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notified both the local police and CDPH. Id. It is extremely unlikely Petitioner took these actions because it could only conclude Resident B gave Resident C a hug.

In response to this unyielding evidence of record, Petitioner seeks to escape responsibility by misstating the definition of foreseeability. It first argues “[n]othing in Resident B’s prior history indicated that the incident between Resident B and Resident A could be a reasonable or likely consequence of the Facility’s management of Resident B’s behavior.” P. Closing Br. at 6. But CMS need not establish the abuse suffered by Resident A occurred as a “reasonable or likely consequence” of Petitioner’s management of Resident B; it need only show Petitioner’s staff knew of Resident B’s potential to abuse other residents yet failed to take steps to prevent harm to other residents.¹⁸Kindred Transitional Care, DAB No. 2792 at 11.

Petitioner next contends it cannot be expected to have anticipated the risk of harm from Resident B to cognitively limited female residents because CMS has not established Resident B knew of Resident A’s cognitive limitations. P. Closing Br. at 7. This profoundly misstates CMS’s argument; the issue is whether Petitioner met its obligation to protect its other residents from Resident B. There is no dispute the facility knew Resident A was cognitively limited and would thus require more protection from a potential sexual abuser than an unimpaired resident. Resident B’s knowledge of Resident A’s cognitive status is irrelevant.

Petitioner also claims that because Resident B’s physician ordered only 72 hours of monitoring following the October 20, 2019 incident, it had no obligation to monitor Resident B beyond that timeframe. P. Closing Br. at 7 (“This clinical assessment sets the window of foreseeability .... Beyond this period, and beyond the physician’s recommendations for any additional monitoring, further incidents could not be considered reasonably foreseeable.”). This argument has no merit. Once a resident establishes himself to be a potential abuser, a facility must, under the regulations, take measures necessary to protect its other residents from harm. Kindred Transitional Care, DAB No. 2792 at 11. The possible interventions at its disposal are not limited to those ordered by an abusing resident’s physician, who, unlike the facility, bears no responsibility for the wellbeing of residents not under their care.¹⁹

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Petitioner therefore cannot reasonably rely on a physician’s order for a closed period of monitoring to claim that the danger posed by that potential abuser passed simply because the monitoring period elapsed. In any case, there is no evidence the physician in question intended to create a “window of foreseeability” based on a clinical assessment of Resident B. Even if there was, there is no evidence that physician had any expertise in assessing the behavior of sexual offenders or determining appropriate measures to neutralize the risk they posed within the confines of a skilled nursing facility. Petitioner’s obligations to its residents to keep them safe did not end 72 hours after Resident B sexually assaulted Resident C. It required no medical expertise at all to recognize Resident B still posed a foreseeable risk to the facility’s female residents after the “window of foreseeability” fantasized by Petitioner elapsed.

In sum, Petitioner had every reason to know Resident B posed a risk of sexual abuse to its female residents well before the November 1, 2019 incident. Resident B touched the knee of a female resident and engaged in sexually inappropriate conversation with facility staff in May 2019. Despite various measures taken by the facility to modify his behavior, Resident B’s inclination to engage in improper sexual conduct escalated and in October 2019, he improperly fondled Resident C until interrupted by a member of staff. Petitioner convened an investigative team, substantiated the contemporaneous report of its staff members concerning the nature of Resident B’s misconduct, and notified the victim’s family, doctor, the local police, and CDPH. Recognizing the significance of Resident B’s improper behavior, Petitioner confronted him and set in place various interventions to curb his impulse to mistreat female residents and staff. There is no dispute that Resident B engaged in a pattern of sexually inappropriate behavior towards female residents and staff that the facility recognized required intervention to correct. Yet less than a month after the second incident, Resident B attempted to sexually assault another female resident, Resident A. Resident B’s inclination to engage in improper sexual conduct with female residents was altogether foreseeable before the November 1, 2019 incident.

c. Petitioner failed to implement its abuse policy and other interventions sufficient to contain the risk posed by Resident B.

Because Petitioner should have foreseen Resident B posed a risk of sexual abuse to its residents, I must consider whether the facility took reasonable measures to mitigate that risk. The Bridge, DAB No. 2954 at 24 (2019); Pinehurst Healthcare & Rehab. Ctr., DAB No. 2246 at 6 (2009) (quoting Western Care Mgmt. Corp., DAB No. 1921 at 12 (2004) (“Protecting and promoting a resident’s right to be free from abuse necessarily

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obligates the facility to take reasonable steps to prevent abusive acts, regardless of their source.”) (internal quotation marks omitted).

CMS contends Petitioner failed to assess Resident B, implement adequate interventions to protect its other residents, or adequately supervise Resident B. CMS Br. at 15; CMS Closing Br. at 6-12. Petitioner claims it took all reasonable measures available to mitigate the risk posed by Resident B, citing CDPH’s determination it remained in substantial compliance following the October 20, 2019 incident. P. Closing Br. at 7-8; P. Ex. 3.Petitioner otherwise claims it conducted a detailed assessment of Resident B after the May 2019 incident and fashioned a detailed care plan that incorporated interventions tailored to Resident B’s needs. P. Closing Br. at 10.

Petitioner’s arguments are unpersuasive. First, as I have already explained, CDPH’s determination that Petitioner remained in substantial compliance following the October 20, 2019 incident is altogether irrelevant to whether the facility subsequently took reasonable measures to mitigate the risk posed by Resident B. CDPH believed (incorrectly) that Petitioner had no prior knowledge of Resident B’s potential for sexual abuse until October 20, 2019; it therefore reasonably declined to make a deficiency finding at that time.

Next, Petitioner failed to implement measures required by its own abuse policy. After the May 2019 incident, Petitioner placed Resident B on “psychosocial behavior modification” while his attending physician Dr. Dudler ordered “sexual behavior monitoring every shift” on an ongoing basis. CMS Ex. 12 at 1; P. Ex. 5 at 1-6. Petitioner also identified Resident B’s problematic behaviors to him in a “Behavior Contract” as well as potential consequences for engaging in those behaviors. P. Ex. 5 at 7. After the October 2019 incident, the facility implemented only two additional interventions: monitoring of Resident B’s whereabout every 30 minutes for 72 hours and keeping Resident B away from Resident C. CMS Ex. 6 at 4.

However, Petitioner’s abuse policy provided: “if the alleged abuse involves another resident ... the accused resident shall not be permitted to make visits to other rooms unattended.” CMS Ex. 8 at 13. Even assuming Resident B’s conduct in May 2019 fell short of “abuse” as contemplated by the facility’s policy, his conduct in October 2019 clearly triggered Petitioner’s obligation to ensure Resident B never entered another resident’s room unattended. Id. Yet Petitioner failed to implement this measure, and as a result, only a few weeks later Resident B entered Resident A’s room unnoticed.²⁰ Petitioner’s failure to abide by its own abuse policy is a reasonable basis to conclude that it failed to take adequate measures to protect its other residents from Resident B. Good Shepherd Home for the Aged, Inc., DAB No. 2858 at 12 (2018) (“A resident care policy

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intended to ensure compliance with Medicare participation requirements ‘may reflect [the] facility’s own judgment about how best to achieve compliance [with those requirements] and hence failure to comply with its own policies can support a finding that the facility did not achieve compliance with the regulatory standard.’”).

Petitioner also failed to meet its own abuse policy’s obligation to “[d]ocument in the resident’s clinical record all interventions and their effectiveness.” CMS Ex. 8 at 17. Only two days into the 72-hour monitoring window imposed by Dr. Dudler, Petitioner failed to consistently document Resident B’s whereabouts. CMS Ex. 14 at 2 (observation record dated October 22, 2019 with no documentation of required checks from 12:00 a.m. to 2:30 p.m. and note indicating staff could not find Resident B from 3:00 p.m. to 8:45 p.m.). Even if I found a 72-hour period of monitoring of Resident B following his abuse of Resident C to be adequate, and I do not, Petitioner failed to document implementation of this intervention, as required by its own policy. Good Shepherd Home, DAB No. 2858 at 12.

Petitioner now complains CMS’s accusation it did not seriously consider reasonable interventions is impermissibly vague. P. Closing Br. at 10. I need not address whether Petitioner should have considered the additional interventions identified by CMS and Surveyor Enzekwo because Petitioner failed to even implement measures it identified before the October 2019 incident. Specifically, Petitioner could have implemented any of the consequences it enumerated in the Behavior Contract it provided to Resident B. P. Ex. 5 at 7. That contract made it clear that Petitioner could impose consequences including refusal to readmit him, canceling his privilege to come and go as he pleased, and “limit[ing] the area/location in the facility where [he could] be.” Id. That Petitioner failed to even consider implementing the very reasonable intervention it identified – limiting Resident B from certain areas without supervision – demonstrates Petitioner failed to accurately assess the risk posed by Resident B.

Petitioner claims the other measures it implemented as “appropriate and reasonable” interventions – developing a detailed plan of care with recommendations tailored to Resident B’s needs, identifying situations that caused his behavioral problems, assisting him in resolving those issues, encouraging him to verbalize feelings while offering understanding, and monitoring him for “not easily altered” behavior – appear intended to benefit Resident B, not protect the facility’s female residents. P. Closing Br. at 10-11. It is in any case difficult to comprehend how these measures aided the facility in protecting its female residents. Certainly, Petitioner’s claim that it documented the success of these interventions and that Resident B’s condition improved overall falls flat given Resident B escalated from touching one female resident’s knee in May 2019 to molesting a second female resident in October 2019 to attempting to sexually assault a third female resident only a few weeks later.

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For these reasons, I conclude Petitioner did not consider or implement all reasonable measures necessary to protect its female residents leaving them vulnerable to the risk posed by Resident B. What measures it did effect were both inadequate and inadequately implemented. Petitioner failed to take all reasonable measures to protect its female residents and thereby failed to comply with 42 C.F.R. § 483.12(a)(1).

2. Petitioner did not substantially comply with 42 C.F.R. § 483.12(c)(1) (Tag F609) when it failed to report alleged abuse of Resident A to the state agency within two hours.²¹

42 C.F.R.§ 483.12(c)(1) requires facilities to:

ensure that all alleged violations involving abuse ... are reported immediately, but not later than 2 hours after the allegation is made, if the events that cause the allegation involve abuse or result in serious bodily injury, .

This obligation is mirrored in Petitioner’s own abuse policy. CMS Ex. 8 at 2 (requiring allegations of abuse to be reported “immediately,” meaning “as soon as possible ... but not later than 2 hours after the allegation is made ... .”).

Here, Administrator Apatira reported the incident that occurred the morning of November 1, 2019 to CDPH over 13 hours after it occurred. CMS Ex. 15 at 14; P. Ex. 4 at 4 (Apatira Decl. ¶14). Petitioner concedes it failed to report this incident to CDPH within the designated time frame but argues this failure to report does not amount to substantial noncompliance because it did not create a potential for more than minimal harm to one or more residents. P. Closing Br. at 19; P. Br. at 13-14; 42 C.F.R. § 488.301 (a deficiency must create the potential for more than minimal harm to one or more residents to amount to substantial noncompliance). Petitioner supports this assertion by noting its failure to timely report the incident did not impact the timing of CDPH’s investigation, which only began five days after the incident occurred. P. Closing Br. at 12. Petitioner also claims its belated reporting to CDPH caused no more than minimal harm because it did manage to timely report the incident to local law enforcement and because Resident B left the facility the day of the incident. Id.

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Petitioner’s arguments are without merit. While many of the regulations governing SNFs permit them discretion and flexibility in determining the most effective means to achieve substantial compliance, this one does not. 42 C.F.R.§ 483.12(c)(1) instead baldly obliges facilities to report allegations of abuse to state survey agencies within two hours. The regulation affords facilities no flexibility and does not countenance delays in reporting abuse for any reason. Put another way, the rigid two-hour reporting timeframe reflects the Secretary’s judgment that the potential for more than minimal harm exists whenever a facility fails to immediately report an allegation of abuse to the state agency. Ill. Knights Templar Home, DAB No. 2369 at 12-13 (2011) (“Requiring all allegations of abuse to be reported “assures that a neutral third party (the State) will be apprised of the allegations and will be in a position to take protective action if necessary.””) (citation omitted). I see no legal basis to substitute my own judgment and speculate as to circumstances where a facility’s delay in reporting an abuse allegation might avoid potential harm to its residents. The regulation precludes consideration of Petitioner’s arguments to justify its delay in reporting. I find Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(c)(1).

3. CMS’s determination as to the level of noncompliance is unreviewable

The level of noncompliance found by CMS is an initial determination subject to ALJ review “only if a successful challenge on this issue would affect ... (i) [t]he range of civil money penalty amounts that CMS could collect ...” or “(ii) [a] finding of substandard quality of care results in the loss of approval for SNF ... of its nurse aide training program.” 42 C.F.R. § 498.3(b)(14). Neither of the two conditions that could trigger my review of CMS’s determination as to the level of noncompliance are present in this case. CMS Br. at 10-11; CMS Closing Br. at 15; P. Br. at 23 n.25. CMS’s determination as to the level of noncompliance is unreviewable.

4. An ALJ may not refuse to apply the applicable statutes and regulations on any ground, even a constitutional one.

Arguing its ability to offer a nurse aide training program is a property interest, Petitioner asserts the limitations imposed by 42 C.F.R. § 498.3(b)(14) on its ability to challenge CMS’s determination of the scope and severity of deficiencies amount to a deprivation of property without due process of the law.²² P. Br. at 22. CMS responds the “Board has no authority to declare a duly promulgated regulation unconstitutional or refuse to apply it on that ground.” CMS Closing Br. at 25 (citations omitted).

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CMS is correct. Whatever the merits of Petitioner’s claim, I am “bound by applicable statutes and regulations [and] may not ignore or refuse to apply those laws on any ground, even a constitutional one.” Oaks of Mid City & Rehab. Ctr., DAB No. 2375 at 30 (2011); see also1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009) (“An ALJ is bound by applicable laws and regulations and may not invalidate either a law or regulation on any ground, even a constitutional one.”); Carrington Place at Muscatine, DAB No. 2321 at 24 (2010) (citing Sentinel Med. Laboratories, Inc., DAB No. 1762 at 9 (2001) (“It is ‘well established that administrative forums, such as this Board and the Department’s ALJs, do not have the authority to ignore unambiguous statutes or regulations on the basis that they are unconstitutional.’”). I am bound to apply the regulations. I must therefore decline to consider Petitioner’s constitutional argument.

5. An ALJ is not authorized to broaden the initial determination categories to permit a challenge to the scope and severity of the cited deficiencies.

Petitioner similarly argues for the expansion of initial determinations identified at 42 C.F.R. § 498.3(b)(14) and therefore subject to my jurisdiction, claiming “the inability to challenge scope and severity [of the deficiencies] is unnecessarily restrictive.” P. Br. at 23. CMS briefly addresses this argument by stating that “Petitioner provides no authority that specifically supports such a proposition.” CMS Closing Br. at 25. The Act empowers the Secretary with rule-making authority and the exclusive role of delegating that authority to promulgate regulations. Act § 1871(a) (codified as 42 U.S.C. § 1395hh(a)). That authority has not been delegated to me. Instead, as I have explained, I am bound to apply statutes and regulations. To the extent Petitioner asks that I expand my own jurisdiction beyond that afforded me by the Secretary’s regulations, I am unable to provide such equitable relief. 1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009).

6. The duration of the CMP is reasonable.

Under the regulations, a per-day CMP continues until the identified deficiencies are corrected, as determined by an on-site revisit or “written credible evidence” acceptable to CMS and the state agency. Jennifer Matthew Nursing & Rehab. Ctr., DAB No. 2192 at 42 (2008) (citing 42 C.F.R. §§ 488.440, 488.454). Once CMS demonstrates a facility is out of substantial compliance, the burden shifts to the facility to demonstrate its return to substantial compliance. Premier Living & Rehab. Ctr., DAB No. 2146 at 23 (2008). “Under the regulations, the mere submission of a [plan of removal] d[oes] not establish that any cited deficiencies had been corrected.” Hermina Traeye Mem’l Nursing Home, DAB No. 1810 (2002); Countryside Rehab. & Health Ctr., DAB No. 2853 at 23 (2018). (“The Board ordinarily holds that a SNF cannot be regarded as having returned to substantial compliance, or abated immediate jeopardy, until measures specified in an

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approved plan of correction, or plan to remove immediate jeopardy, have been implemented.”).

Petitioner puts forth two arguments to contest the duration of the CMP. First, Petitioner contends it returned to substantial compliance upon Resident B’s departure from the facility on November 1, 2019 because he could no longer pose a threat to its female residents. P. Closing Br. at 13 (citing Kindred Transitional Care & Rehab-Greenfield, DAB CR4659 (2016)). Petitioner’s reliance on Kindred is inapt. There, the ALJ shortened the period of duration to the date the abuser (an employee, not a resident) left the facility. Kindred, DAB CR4659 at 5. But the ALJ did so after concluding the facility’s compliance did not stem from a failure to implement adequate anti-abuse policies; accordingly, the ALJ found no basis to impose penalties based on abuse once the facility terminated the offending employee. Id.

Here, however, there is ample evidence Petitioner failed to implement its own abuse policy, failed to take all reasonable measures to protect its female residents from abuse, and failed to timely report Resident A’s abuse to the state agency. Petitioner’s claim that it returned to compliance with Resident B’s removal is therefore without merit. To cure these deficiencies required more than removal of the abuser; Petitioner had to submit a plan of correction approved by CDPH to address the issues underlying its administrative failures that resulted in Resident B being given several opportunities to abuse female residents. Among other things, this included retraining the facility’s entire staff.

In short, the corrective measures Petitioner needed to complete to return to substantial compliance went beyond the mere removal of Resident B. Countryside Rehab., DAB No. 2853 at 26 (providing “incidents related to individual residents ... are not themselves the deficiencies that must be corrected; rather, the deficiency is the underlying failure to meet a participation requirement evidenced by the incident”) (internal quotation marks omitted); Cahokia Nursing & Rehab. Ctr., DAB No. 2991 at 8 (2020) (observing the Board has “repeatedly made clear that merely removing the resident(s) or staff involved in an event that triggered an immediate jeopardy determination is not sufficient to abate the immediate jeopardy”). Petitioner’s claim that the duration of its noncompliance should end the day of Resident B’s departure is therefore without merit.

Petitioner also points to CDPH’s delay in conducting the complaint survey, CMS’s delay in imposing remedies, and the state agency’s delay in determining whether Petitioner achieved substantial compliance as bases to reduce the period of noncompliance. P. Br. at 20-21; P. Closing Br. at 20-21 (citing SOM Ch. 7 § 7518 at 122) (providing the effective date for a penalty could be moved to a date later than the start date of noncompliance if there is “undue delay in notifying the facility of the [CMP].”).

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Here, CDPH began its initial complaint investigation on November 6, 2019, five days after the incident, and completed its survey on December 10, 2019. CMS Ex. 1. Petitioner complains of the length of time taken by Surveyor Ezekwo to complete her survey and report, but 34 days is hardly an unreasonable time to conduct an investigation, peruse medical records and other documents, interview individuals, and generate a report, particularly during a holiday season.

Petitioner submitted its plan of correction on February 7, 2020. CDPH conducted a revisit survey on February 13, 2020 and notified Petitioner it returned to substantial compliance on February 18, 2020. CMS Ex. 11 at 2. Petitioner complains the delays between each step were unreasonable. P. Br. at 21. But Petitioner submitted its plan of correction almost two months after CDPH completed its initial survey on December 10, 2019. CMS Ex. 1 at 1. CDPH responded in six days to confirm Petitioner’s return to compliance and found it did so only five days after that. I cannot say taking 11 days to act on Petitioner’s claim it fulfilled its plan of correction is unreasonably slow. And while Petitioner asserted it returned to compliance on January 7, 2020, it did not actually submit that document to CDPH for consideration until February 7, 2020. Id. Petitioner is therefore most to blame for the duration of the penalty it now protests.

Any delays are ultimately irrelevant. By regulation, CMS relied on the findings of CDPH’s revisit survey to find Petitioner returned to substantial compliance on February 18, 2020. 42 C.F.R. § 488.454(a)(1) (providing duration of remedies persists until a facility achieves substantial compliance based on either a state agency revisit survey or other credible written evidence); CMS Ex. 11 at 2. Petitioner has not provided “credible written evidence” I could consider to find an earlier return to substantial compliance than the date established by CDPH.²³Id. Moreover, “CMS’s regulation and policy ‘make clear that whether and when revisit surveys are performed is in the discretion of the State and CMS, not the facility.” Libertyville Manor Rehab. & Healthcare Ctr, DAB No. 2849 at 23 n.9 (2018).

Finally, Petitioner cited the SOM as basis to modify the effective date of the penalty owing to undue delay in notifying a facility of the CMP. P. Br. at 20-21. Putting aside the lack of undue delay evident here, the SOM only observes that “it is possible that the effective date of the penalty could be moved.” SOM Ch. 7 § 7518 at 122 (emphasis added). The language cited by Petitioner makes it clear that if there is an undue delay in the notification process, CMS has discretionary authority to move the effective date of the penalty to a later date. It does not require CMS to do so.

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7. The $1,040 per-day CMP amount imposed by CMS is reasonable.

CMS is authorized to impose enforcement remedies against a facility that is not in substantial compliance with a participation requirement. 42 U.S.C. § 1395i-3(h)(2); 42C.F.R. § 488.406. Among other enforcement remedies, CMS may impose a per-day CMP for the number of days a facility is not in substantial compliance. 42 C.F.R. §488.430(a). At the time CMS imposed the remedies in this case, per-day CMPs ranged from either $112 to $6,695 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. 42 C.F.R. § 488.438(a)(1); 45 C.F.R. § 102.3 (2020).

For per-day CMPs, I assess the reasonableness of the per-day penalty, not the total accrued amount. Copperas Cove LTC Partners, Inc., DAB No. 3049 at 43 (2021) (citing Kenton Healthcare, LLC, DAB No. 2186 at 28 (2006)). To do so, I apply the factors set forth at 42 C.F.R. §§ 488.438(f) and 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)). These factors include the seriousness of the deficiency, the facility’s compliance history, its financial condition, and its degree of culpability. 42 C.F.R. §§ 488.438(f), 488.404 .The Board has held that the CMP amount selected by CMS is presumptively reasonable and that the penalized facility bears the burden “to demonstrate, through argument and the submission of evidence addressing the regulatory factors, that a reduction [in the penalty amount] is necessary to make the CMP amount reasonable.” Crawford Healthcare & Rehab., DAB No. 2738 at 19 (2016). I consider whether “the evidence presented on the record concerning the relevant regulatory factors supports a finding that the amount of the CMP is at a level reasonably related to an effort to produce corrective action by [Petitioner] with the kind of deficiencies found and in light of the” factors mentioned above. Careplex of Silver Spring, DAB No. 1683 (1999).

CMS argues the seriousness of the deficiencies, Petitioner’s history of noncompliance, and the facility’s degree of culpability all warrant the imposition of a $1,040 per-day CMP. CMS Closing Br. at 20-22. Petitioner contends its history of noncompliance is not significant, its resources are limited, its degree of culpability is low, and that it was in fact in substantial compliance. P. Br. at 14-20. I reject Petitioner last argument as I have found that Petitioner was not in substantial compliance with Medicare participation requirements.

Turning to the regulatory factors, I find Petitioner’s noncompliance serious. Despite its awareness of Resident B’s inclinations and prior instances of escalating abusive conduct towards its female residents, Petitioner failed to take necessary measures to protect Resident A from sexual abuse, causing her actual harm. Petitioner failed to follow its abuse policy and otherwise failed to implement adequate measures to protect its residents from the foreseeable threat of Resident B’s abusive conduct. Petitioner deemed it necessary to frequently monitor any resident assessed at risk for inappropriate sexual activity only after being cited by CDPH. CMS Ex. 1 at 3. Petitioner’s lax approach to

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identifying and dealing with the threat of sexual abuse posed by Resident B to its vulnerable female residents is concerning.

I also find Petitioner’s degree of culpability to be high. Petitioner had several opportunities to minimize the risk posed by Resident B and prevent him from abusing Resident A. By choosing to disregard the foreseeable threat posed by Resident B and failing to implement adequate measures to address that threat, Petitioner profoundly disregarded the safety and wellbeing of its female residents.

Finally, I have considered Petitioner’s history of noncompliance and financial condition. With respect to facility history, CMS submitted Petitioner’s Certification and Survey Provider Enhanced Reports (CASPER) report, which included information regarding its last four surveys. CMS Ex. 3. This report shows a significant history of noncompliance prior to the survey at issue. Petitioner had previously been cited for deficiencies at the “D” and “E” scope/severity levels, including a prior deficiency citation under Tag 609 (Reporting of Alleged Violations). CMS Ex. 3 at 2-3.

Petitioner argues that “despite a resident population that is known to complicate the delivery of care, [Petitioner] has not received negative survey results relating to quality of nursing services and has not had a substandard quality of care in the past seven years.” P. Br. at 16. But this does not neutralize the facility’s significant history of noncompliance in other respects.

To assess Petitioner’s financial condition, “the ‘correct inquiry’ is ‘whether the facility has adequate assets to pay the CMP without having to go out of business or compromise resident health and safety.” Van Duyn Home & Hosp., DAB No. 2368 at 18 (2011) (quoting Gilman Care Ctr., DAB No. 2362, at 6 (2010)); Gilman, DAB No 2362 at 7 (quoting 59 Fed. Reg. 56,116, 56,204 (Nov. 10, 1994)) (“It is the responsibility of the facility to furnish the information it believes appropriately represents its financial status.”). Here, Petitioner proffered no evidence related to its financial condition and instead generally asserts the proposed CMP amount would affect its ability to operate. P. Br. at 16. Petitioner has failed to meet its burden to supply evidence I could rely upon to reduce the CMP amount. Finally, even though consideration of the regulatory factors largely weighs against Petitioner, I note the per-day CMP proposed by CMS falls within the lower end of the applicable range. For these reasons, I find the per-day CMP amount imposed by CMS reasonable.

8. CMS’s choice of remedy is unreviewable.

Petitioner argues CMS should have imposed a per-instance CMP instead of a per-day CMP since the November 1, 2019 incident was isolated in nature and did not persist after Resident B left the facility. P. Closing Br. at 13. I cannot entertain Petitioner’s request for relief. A facility has a right to appeal a “certification of noncompliance leading to an

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enforcement remedy.” 42 C.F.R. §§ 488.408(g)(1), 488.330(e), 498.3(b)(13). However, CMS’s choice of remedies is not subject to my review. 42 C.F.R. § 488.408(g)(2).

VIII. Conclusion

I affirm CMS’s determination that Petitioner was not in substantial compliance with Medicare program participation requirements. I conclude the $1,040 per-day CMP from November 1, 2019 through February 18, 2020, for a total CMP of $113,360, is reasonable.

Endnote

¹ Scope and severity levels are designated by letters “A” through “L,” selected from the scope and severity matrix published in the State Operations Manual (SOM) Ch. 7, § 7400.5.1 (Rev. 63, Sep. 10, 2010), available athttps://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/Downloads/R63SOMA.pdf. Facilities with deficiencies cited at levels A, B, or C remain in substantial compliance. Id. (citing 42 C.F.R. § 488.301). Levels D, E, or F indicate a deficiency that presents no actual harm but has the potential for more than minimal harm that does not amount to immediate jeopardy. Id. Levels G, H, or I indicate a deficiency that involves actual harm that does not amount to immediate jeopardy. Id. Scope and severity levels J, K, and L contain deficiencies that constitute immediate jeopardy to resident health or safety. Id. The matrix specifies which remedies are required and optional at each level based upon the pervasiveness of the deficiency (isolated, pattern, or widespread). Id.

² The Board has not specified the quantum of evidence necessary for CMS to show it met its prima facie burden but has observed CMS must produce “evidence related to disputed findings that is sufficient (together with any undisputed findings and relevant legal authority) to establish a prima facie case of noncompliance with a regulatory requirement.” Evergreene Nursing Care Ctr., DAB No. 2069 at 7 (2007); see also Black’s Law Dict. (8th ed. 2004) at 1228 (“Prima facie” means generally that the evidence is ‘[s]ufficient to establish a fact or raise a presumption unless disproved or rebutted’”).

³ The U.S. Supreme Court examined the scope of the Secretary’s rulemaking authority in the context of Medicare reimbursement and held that under section 1871 of the Act, the Secretary must comply with notice-and-comment rulemaking under the Administrative Procedure Act to impose any requirements upon regulated entities which constituted a change in a substantive legal standard. Azar v. Allina Health Srvcs., 587 U.S. 566, 139 S. Ct. 1804 at 1809-14 (2019). It remains to be seen whether federal courts applying the Allina standard in reviewing the Board’s burden-shifting regime will find it constitutes a “change in a substantive legal standard” under the Allina holding.

⁴ Effective November 28, 2016, CMS revised and reorganized many of the participation requirements for skilled nursing facilities. 81 Fed. Reg. 68,688 (Oct. 4, 2016). The abuse and neglect regulations were previously housed at 42 C.F.R. § 483.13(b). Because CMS made no substantive changes to this subsection when it recodified it at 42 C.F.R. § 483.12, I rely on the reasoning of Board decisions pertaining to 42 C.F.R. § 483.13(b).

⁵ CMS identifies the residents involved with anonymous monikers to preserve their anonymity. CMS Ex. 2 at 1. I maintain this practice here using the same identifiers.

⁶The Brief Interview for Mental Status (BIMS) is conducted to evaluate for cognitive impairment; a BIMS score of 13 to 15 out of a maximum score of 15 indicates the individual tested is cognitively intact. See Ctrs. For Medicare & Medicaid Servs., Long-Term Care Facility Resident Assessment Instrument 3.0 User’s Manual, Ver. 1.14, Chapter 3, Section C0500 at Page C-14, available at https://downloads.cms.gov/files/MDS-30-RAI-Manual-V114-October-2016.pdf (last rev. Oct. 2016).

⁷ CDPH eventually declined to issue any deficiency findings related to the October 20, 2019 incident. P. Ex. 3; P. Ex. 4 at 3 (Apatira Decl. ¶7).

⁸ My findings of fact and conclusions of law appear as numbered headings in bold italic type.

⁹ Although the Statement of Deficiencies (SOD) states that both the October incident and the November incident served as bases for the violation of 42 C.F.R. § 483.12(a)(1), CMS did not cite the October incident as a basis for a finding of noncompliance. CMS Br. at 12-21; CMS Closing Br. at 12-13.

¹⁰ Even if state law were applicable here, Petitioner’s characterization of it is erroneous and borders on disingenuous. Petitioner asserts California law equates sexual assault with sexual battery, which requires touching. P. Br. at 11. Chapter 9 of California’s penal code is entitled “Assault and Battery [240-248]. Cal. Penal Code Ch. 9, available at https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCod…. Sections 240 through 241.8 address types of assault and their respective penalties. Id. Battery is separately defined at section 242 while 243.4, the section cited by Petitioner, exclusively addresses sexual battery, not sexual assault. Id. California’s penal code houses assault with the intent to commit crimes of a sexual nature in an entirely different chapter. Cal. Penal Code Ch. 6, § 220. That provision does not require physical contact. Id. Petitioner’s counsel should accurately cite the law to avoid the appearance of frivolous or bad-faith arguments.

¹¹ Though I need not find Resident B made physical contact with Resident A to determine he sexually assaulted her, it is more likely than not that Resident B touched Resident A to remove her undergarments and reposition her to facilitate his assault.

¹² Petitioner expends considerable effort attacking Surveyor Enzekwo’s survey report and opinions, claiming she was professionally unqualified, made inaccurate statements, failed to collect relevant evidence from Petitioner, and applied erroneous legal standards. P. Closing Br. 8-10; P. Br. at 10. Petitioner’s claims are baseless and irrelevant. I disregard legal conclusions offered by any witness and unless I have specified otherwise, rely on the evidence of record, not opinion testimony. Petitioner’s attacks on the survey process do not affect the outcome here. 42 C.F.R. § 488.318(b) (“Inadequate survey performance does not ... [r]elieve a SNF ... of its obligation to meet all requirements for program participation or ... [i]nvalidate adequately documented deficiencies.”). Petitioner was free to rebut evidence offered by the surveyor and submit additional evidence where it believed she neglected to do so. The ultimate issue is whether there is sufficient evidence to establish a factual basis for the deficiencies cited and the remedies imposed. Lifehouse of Riverside Healthcare Ctr., DAB No. 2774 at 13 (2017) (“the ultimate question is not whether the survey was performed correctly but whether the evidence collected at the survey, along with all other evidence presented on appeal, establish noncompliance.”).

¹³ In this section of its post-hearing brief alone, CMS cites three ALJ decisions for legal propositions it attributes to the Board. CMS Closing Br. at 3-4. In the third instance, CMS quotes at length from what it cites as a Board decision but is in fact an ALJ decision. CMS Closing Br. at 4 (quoting “Somerset Nursing and Rehabilitation Center, DAB No. 2166, at 3 (2010)” (actually Somerset Nursing & Rehab. Facility, DAB CR2166 at 3 (2010)). These misattributions occur throughout CMS’s brief. Id. at 3 (citing Talmadge Park, Inc., DAB CR4603 (2016)); 3, 10, 15 (citing Mountain View Manor, DAB CR1076 (2003)); 18 (citing Alden Park Strathmoor, DAB CR1116 (2003)); 19 (citing Colonial Hills Nursing Ctr., DAB CR3180 (2014) and Somerset Place, DAB CR2164 at 3 (2010)). Board decisions are precedential. ALJ decisions are not. Accordingly, identifying the latter as the former as the source for a legal proposition is a potentially material misrepresentation. CMS counsel should take better care to accurately cite what they claim to be precedential authorities.

¹⁴ No facility can reasonably be subject to a deficiency finding for conduct by an abusive resident the first time it occurs because that conduct would be unforeseeable. Kindred Transitional Care, DAB No. 2792 at 11. But the first instance of abusive conduct triggers a facility’s obligation to implement measures to prevent the abusive resident from harming other residents again; future instances of abuse perpetrated by the same resident become foreseeable and thus can subsequently form the basis of a deficiency finding. Moreover, the October 20, 2019 incident was not the first time Petitioner became aware of inappropriate behavior by Resident B towards a female resident. P. Ex. 5 at 5-10. Petitioner should perhaps consider its good fortune the state agency was not aware of this prior incident when it declined to make deficiency findings related to the October 20, 2019 incident.

¹⁵ My review of such a deficiency finding is unconstrained by determinations made by a state agency or CMS. Avalon Place Trinity, DAB No. 2819 at 12 n.8 (2017) (“While state agency surveys and their results are the foundation for any subsequent CMS enforcement action, once CMS does proceed with enforcement action, on appeal, the ALJ does not review CMS’s conclusions or determinations about earlier state agency-level review ... but rather reviews the record de novo and determines whether the facility was in substantial compliance with applicable requirements.”) (citation omitted).

¹⁶ Petitioner does concede Resident B’s physical contact with Resident C was non-consensual. P. Closing Br. at 5 n.5.

¹⁷ Care Manager Dowdy memorialized her recollection of the incident in her own signed and dated statement, writing she “found [Resident B] inappropriately touching [Resident C]” and then separated the residents and reported the incident to Nurse Gee and Administrator Apatira. CMS Ex. 7 at 9.

¹⁸ The fact that Resident B engaged in the same misconduct mere weeks after sexually abusing Resident C makes it difficult for Petitioner to argue it took adequate measures to protect its residents. Petitioner appears to envision a hypothetical circumstance where it could not have foreseen the risk Resident B posed because it had already done everything it could have reasonably done to prevent Resident B from harming others. As I explain infra at 21, that is not the case.

¹⁹ To the extent Petitioner relies on Dr. Dudler’s unsworn statement submitted to CDPH after the November 1, 2019 incident, I do not find it credible and give it no weight. CMS Ex. 12. Dr. Dudler’s opinion that the 72-hour monitoring imposed after the October 20, 2019 incident “was effective in preventing [Resident B] from exhibiting this behavior to another resident” is plainly inconsistent with the fact that Resident B sexually assaulted Resident A only 12 days later. His opinion that Resident B was not “an imminent threat to others” because he was not observed sexually touching other residents or “attempting to become sexually inappropriate” has no probative value – Resident B sexually abused Resident A and Resident C when no other individuals were present. Like any sexual abuser, he recognized the need to isolate his victims and act without being witnessed. Dr. Dudler’s conclusion that Resident B posed no risk because he did not sexually assault others while being observed is naïve at best.

²⁰ To the extent Petitioner contends its imposition of a 72-hour window of monitoring is consistent with this policy, I note the abuse policy does not contemplate a time-based limitation on the obligation to prevent an abusive resident from entering other residents’ rooms. CMS Ex. 8 at 13.

²¹ While the Statement of Deficiencies cites both subsections 483.12(c)(1) and (c)(4), CMS Ex. 1 at 10, CMS makes no mention of the latter provision. CMS Br. at 22; CMS Closing Br. at 19. I therefore have not considered it as a basis for the imposition of remedies.

²² A state agency cannot approve a nurse aide training program if CMS imposes a penalty of $11,160 or more. Act § 1819(f)(2)(B); 42 C.F.R. § 483.151(b)(2)(iv). This means a challenge to the scope-and-severity determination would have no effect on whether the facility loses its approval to conduct the nurse aide training program.

²³ Petitioner’s reported return to compliance on January 7, 2020 is too self-serving and unverifiable to constitute “credible written evidence.”