Timbercreek Rehabilitation & Health Care Center, DAB CR6511 (2024)

DECISION

The Centers for Medicare & Medicaid Services (CMS) determined that Timbercreek Rehabilitation & Health Care Center (Petitioner or facility), a skilled nursing facility (SNF) that participates in the Medicare program, failed to substantially comply with two Medicare requirements.  CMS also concluded that Petitioner immediately jeopardized the health and safety of residents.  As a result, CMS imposed a civil money penalty (CMP) on Petitioner.  Petitioner requested a hearing to dispute CMS’s determination and the imposition of an enforcement remedy.

As explained below, I conclude that Petitioner was not in substantial compliance with the two cited Medicare requirements and that CMS’s determination that Petitioner immediately jeopardized the health and safety of residents was not clearly erroneous.  Finally, I uphold the amount and duration of the CMP as reasonable and appropriate.

I. Legal Framework

The Medicare program “provides basic protection against the costs of . . . related post-hospital . . . care” for individuals over the age of 65 who are eligible for Social Security

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retirement benefits and for individuals under 65 who meet other criteria.  42 U.S.C. § 1395c.  Post-hospital care includes extended care services provided at an SNF.  42 U.S.C. §§ 1395f(a)(2)(B), 1395x(h)-(i).

For Medicare program purposes, an SNF is an institution that is primarily engaged in providing skilled nursing care and/or rehabilitation services for its residents but is not primarily engaged in the care and treatment of mental diseases.  42 U.S.C. §§ 1395x(j), 1395i-3(a)(1).  Because an SNF is a “provider of services” in the Medicare program, each SNF that participates in the program must file a provider agreement with the Secretary of Health and Human Services (Secretary).  42 U.S.C. §§ 1395cc(a), 1395x(u).

In addition to complying with the terms of the Medicare provider agreement, a participating SNF must meet a variety of ongoing statutory requirements regarding how it provides services, maintains the rights of its residents, and administers its facility.  42 U.S.C. § 1395i-3(a)(3), (b)-(d).  SNFs also must comply with “such other requirements relating to the health, safety, and well-being of residents or relating to the physical facilities thereof as the Secretary may find necessary.”¹  42 U.S.C. § 1395i-3(d)(4)(B); see 42 U.S.C. § 1395i-3(c)(1)(xi), (f).  The Secretary promulgated regulations to establish those additional requirements.²  See 42 C.F.R. pt. 483, subpt. B.

When an SNF fails to meet a statutory or regulatory participation requirement, then the SNF has a “deficiency.”  42 C.F.R. § 488.301; see 42 U.S.C. § 1395i-3(h)(1).  “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.”  42 C.F.R. § 488.301.  To maintain “substantial compliance,” an SNF’s deficiencies may “pose no greater risk to resident health or safety than the potential for causing minimal harm.”  42 C.F.R. § 488.301.

Broadly, noncompliance that subjects an SNF to enforcement remedies is divided into two levels.  One level comprises deficiencies that immediately jeopardize the health or safety of residents and the other level is composed of deficiencies that do not.  42 U.S.C. § 1395i-3(h)(1).  “Immediate jeopardy” exists when “the provider’s noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.”  42 C.F.R. § 488.301.

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The Secretary has the duty to enforce the statutory and regulatory participation requirements for SNFs.  42 U.S.C. § 1395i-3(f)(1).  To do so, the Secretary contracts with state agencies to conduct surveys to determine whether SNFs are in substantial compliance.  42 U.S.C. §§ 1395aa(a), 1395i-3(g); 42 C.F.R. § 488.10.  Standard surveys are unannounced and occur at least once every 15 months.  42 U.S.C. § 1395i-3(g)(2)(A)(i), (iii)(I).  State agencies also conduct investigations into complaints against SNFs.  42 U.S.C. § 1395i-3(g)(1)(C), (4).  When the results of a survey show that an SNF is not in substantial compliance with Medicare participation requirements, the Secretary may impose enforcement remedies on the SNF.  42 U.S.C. § 1395i-3(h)(2); 42 C.F.R. § 488.406.  When CMS selects an enforcement remedy to impose on an SNF, it determines the scope (i.e., the number of residents affected or potentially affected) and severity (i.e., the degree of harm or potential harm) for each deficiency.³  See 42 C.F.R. § 488.404(a)-(b).

One such remedy is a CMP.  42 U.S.C. § 1395i-3(h)(2)(B)(ii).  CMS may impose a per‑instance CMP for each instance of the SNF’s noncompliance or a per‑day CMP for the number of days an SNF is not in substantial compliance.  42 U.S.C. § 1395i‑3(h)(2)(A), (h)(2)(B)(ii)(I); 42 C.F.R. § 488.430(a).  For CMPs assessed on or after January 17, 2020, and for deficiencies that occurred after November 2, 2015, the CMP amounts may range as follows:  $2,233 to $22,320 for per-instance CMPs; $112 to $6,695 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.  45 C.F.R. § 102.3 (2020); 85 Fed. Reg. 2869, 2870, 2880 (Jan. 17, 2020); see also 42 C.F.R. § 488.438(a)(1) (providing original CMP amounts before statutory inflation adjustments).

If CMS imposes a CMP based on a finding of substantial noncompliance, then the SNF may request a hearing before an administrative law judge (ALJ) to challenge CMS’s initial determination of noncompliance that led to the imposition of an enforcement remedy and/or the level of noncompliance (if a successful challenge to the level would affect the range of CMP amounts imposed on the SNF).  42 U.S.C. §§ 1320a-7a(c)(2), 1395i‑3(h)(2)(B)(ii); 42 C.F.R. §§ 488.330(e)(3)(ii), 488.408(g)(1), 488.434(a)(2)(viii),

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498.3(b)(13)-(14), (d)(10); see also 5 U.S.C. §§ 554, 556.  However, CMS’s choice of remedies is not reviewable.  42 C.F.R. §§ 488.438(e)(2), 488.408(g)(2), 498.3(b)(13).

If an SNF challenges the existence of a deficiency, CMS must make a prima facie case that the SNF failed to substantially comply with federal participation requirements and, if CMS makes such a showing, the SNF must then prove substantial compliance by a preponderance of the evidence.  Hillman Rehab. Ctr., DAB No. 1611 at 8 (1997); see Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004); Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004), aff’d, Batavia Nursing & Convalescent Ctr. v. Thompson,129 F. App’x 181 (6th Cir. 2005); Emerald Oaks, DAB No. 1800 (2001).  If an SNF challenges CMS’s determination as to the level of noncompliance, CMS’s determination must be upheld unless it is clearly erroneous.  42 C.F.R. § 498.60(c)(2).

If an ALJ concludes that there was a basis for imposing a CMP on an SNF, then the SNF may dispute the amount of the CMP.  The ALJ’s review of the CMP amount is limited to considering the statutory and regulatory factors for setting a CMP amount.  42 C.F.R. § 488.438(e)(3), (f); see 42 U.S.C. §§ 1320a-7a(d), 1395i-3(h)(2)(B)(ii)(I).  The ALJ may not reduce a CMP to zero.  42 C.F.R. § 488.438(e)(1).

Either the SNF or CMS may seek administrative review of an ALJ’s decision with the Departmental Appeals Board (DAB).  42 C.F.R. § 498.80.

II. Background and Procedural History

Petitioner is a Medicare-participating SNF located in Pekin, Illinois.  On December 30, 2020, the Illinois Department of Public Health (state agency) completed a complaint investigation and a COVID-19 focused infection control survey at Petitioner’s facility to determine if Petitioner was in substantial compliance with Medicare program requirements.  CMS Ex. 4 at 1; CMS Ex. 10 ¶¶ 1, 3.  The state agency documented the following deficiency in a Statement of Deficiencies (SOD):

• 42 C.F.R. § 483.10(i)(1)-(7) (F-Tag 584) (S/S = D) (Safe/Clean/Comfortable/Homelike Environment)

CMS Ex. 4.

On January 14, 2021, the state agency completed a partial extended survey due to a December 27, 2020 incident that Petitioner reported to the state agency.  CMS Ex. 13 at 1.  The state agency documented the following deficiency in a SOD:

• 42 C.F.R. § 483.12(a)(1) (F-Tag 600) (S/S = K) (Free from Abuse and Neglect)

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CMS Ex. 13.  The SOD stated that the 42 C.F.R. § 483.12(a)(1) deficiency immediately jeopardized the health and safety of residents but that the immediate jeopardy situation was removed by January 13, 2021.⁴  CMS Ex. 13 at 2.

Petitioner returned to substantial compliance with 42 C.F.R. § 483.12(a)(1) on January 14, 2021.  CMS Ex. 26 at 3.  Despite this, Petitioner remained noncompliant with 42 C.F.R. § 483.10(i)(1)-(7).  CMS Ex. 26 at 4.

In a January 28, 2021 notice of initial determination, the state agency notified Petitioner that it was imposing on Petitioner a denial of payment for new admissions (DPNA) effective February 12, 2021.  CMS Ex. 1 at 7-8.

The state agency conducted a revisit survey on February 17, 2021, and determined Petitioner returned to substantial compliance with 42 C.F.R. § 483.10(i)(1)-(7) on February 1, 2021.  CMS Ex. 1 at 11; CMS Ex. 26 at 4.  The state agency informed Petitioner that the DPNA would not go into effect; however, it also indicated that CMS may impose other enforcement remedies in a separate notice.  CMS Ex. 1 at 11.

In a June 11, 2021 notice of initial determination, CMS imposed the following remedies on Petitioner:

• $13,380 per-day CMP for eight days, from January 5, 2021 through January 12, 2021;⁵
• $330 per-day CMP for 19 days, from January 13, 2021 through January 31, 2021.

CMS Ex. 2 at 2.

On August 9, 2021, Petitioner requested a hearing before an ALJ to dispute the deficiencies and CMPs.  On August 11, 2021, the Civil Remedies Division acknowledged receipt of the hearing request and issued my Standing Prehearing Order, which established a prehearing submission schedule.

On November 9, 2021, CMS filed a prehearing brief/motion for summary judgment and 25 proposed exhibits.  Two of the proposed exhibits were written direct testimony from witnesses, i.e., Stacy Jacobs, R.N. (CMS Ex. 10) and Anita Morgan, R.D. (CMS Ex. 22).

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On December 14, 2021, Petitioner submitted a prehearing brief/opposition to summary judgment and five proposed exhibits.  Two of the proposed exhibits were written direct testimony from witnesses (P. Exs. 2, 5).  Petitioner also requested to cross-examine CMS’s witnesses.  On December 22, 2021, CMS filed a reply brief.  CMS did not request to cross-examine Petitioner’s witnesses.

On October 25, 2022, I issued a Notice of Hearing in which I informed the parties I would hold a hearing on January 9, 2023, to allow Petitioner to cross-examine CMS’s witnesses.  In the Notice of Hearing, I also denied CMS’s motion for summary judgment and admitted all of the parties’ proposed exhibits into the record, although I only provisionally admitted the written direct testimony from CMS’s witnesses (CMS Exhibits 10 and 22) pending Petitioner’s cross-examination of those witnesses.

On January 9, 2023, I conducted a video teleconference hearing at which Petitioner cross-examined Surveyors Jacobs and Morgan.  At the time, CMS Exhibits 10 and 22 were fully admitted into the record.  Hearing Transcript (Tr.) 9, 59.  At the end of the hearing, I set a post-hearing briefing schedule and directed the parties to provide all arguments that they wanted me to address in the post-hearing brief.  Tr. 57; see also Notice of Receipt of Transcript and Order Setting Post-Hearing Briefing Schedule at 1.

On May 3, 2023, CMS filed a post-hearing brief (CMS Br.).  On June 2, 2023, Petitioner filed its post-hearing brief (P. Br.).  CMS filed a Reply Brief (CMS Reply) on June 15, 2023.

On May 2, 2024, I directed CMS to file the CMS Form 2567 referenced in the state agency’s March 8, 2021 notice, which documented the results of the February 17, 2021 revisit survey and the dates on which Petitioner returned to substantial compliance for each deficiency.  See 42 C.F.R. § 498.60(b)(2).  CMS filed the requested document, marked as CMS Exhibit 26.  Petitioner did not object to the inclusion of this document in the record.  Therefore, I admit CMS Exhibit 26 into the record.

III. Issues

1) Whether Petitioner was in substantial compliance with the Medicare program requirements for SNFs at 42 C.F.R. §§ 483.10(i)(1)-(7) and 483.12(a)(1).

2) If Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(a)(1), whether CMS’s determination that this deficiency immediately jeopardized the health and safety of Petitioner’s residents is clearly erroneous.

3) If Petitioner was not in substantial compliance with Medicare program requirements, whether a $13,380 per-day CMP for eight days and a $330 per-day

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CMP for 19 days is reasonable and appropriate under the statutory and regulatory factors for setting a penalty amount.

IV. Findings of Fact, Conclusions of Law, and Analysis⁶

My findings of fact and conclusions of law (FFCL) appear in bold and italics below.

Deficiency Concerning a Resident’s Right to Be Free from Abuse

1. Resident 1b, at the time of admission, was a 69-year-old woman with Alzheimer’s disease, dementia, history of falling, dysphagia, unsteadiness, and cognitive communication deficit.  Physician assessments indicated that her Alzheimer’s dementia was fairly severe.  She was dependent on staff for all activities of daily living.  Resident 1b’s care plan listed various problems suffered by the resident:  altered thought process and problem with a potential inability to communicate; severely impaired cognitive abilities and in constant state of confusion; lacking the cognitive ability for self-safety awareness; and displaying verbal behaviors that others may find disruptive and socially inappropriate, which could lead others to seek verbal or physical reprisal against the resident.  Her care plan indicated various interventions to address the problems identified in her medical records.

In January 2019, at the time of her admission to the facility, Resident 1b was 69 years old.  CMS Ex. 16 at 1.  Resident 1b’s diagnoses included Alzheimer’s disease; history of falling; dysphagia; unsteadiness on feet; and cognitive communication deficit.  CMS Ex. 16 at 2.  Resident 1b was dependent on staff for all activities of daily living.  CMS Ex. 16 at 26-27, 29.  Further, Resident 1b’s mobility was extremely limited because it was necessary for staff to push Resident 1b in a high-backed wheelchair.  CMS Ex. 16 at 26-27, 29.

Resident 1b had risk factors for altered thought process related to dementia, delirium, Alzheimer’s disease, and ineffective communication abilities.  CMS Ex. 16 at 9.  She also had severely impaired cognitive abilities; was in constant state of confusion; did not have the cognitive ability for self-safety awareness; she was at risk for falls and often leaned forward in her wheelchair putting her at risk for falls from her chair; had verbal behaviors that others may find disruptive and socially inappropriate, which could lead others to seek verbal or physical reprisal against her; and was unable to convey feelings of pain due to

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her dementia.  CMS Ex. 16 at 10, 12, 16, 22.  Physician assessments in July and October 2020 indicated that her Alzheimer’s dementia was “fairly severe” and that she attended each examination in her wheelchair.  CMS Ex. 16 at 6-7.

Resident 1b’s care plan contained interventions for the previously identified problems and were commenced on June 14, 2019.  CMS Ex. 16 at 9, 10, 12, 16, 22.  Because of her mobility issues and complete dependency on staff for mobility, the care plan directed that Resident 1b “will be kept at the nurses[’] station when she is up to prevent possible attempts of self[-]transfers and possible falls from her chair.” CMS Ex. 16 at 16.

To address Resident 1b’s cognitive impairment and potential inability to communicate, Resident 1b’s care plan instructed staff to anticipate Resident 1b’s needs based on the time of the day and the limited words she was able to communicate.  CMS Ex. 16 at 9.

2. Resident 2, at the time of admission, was a 67-year-old man with impaired cognition due to a mental handicap from birth, dementia, and psychotic disorder.  He had a Brief Interview for Mental Status (BIMS) score of 2, which indicated severely impaired cognition.  Resident 2 was independent with ambulation and transfers.

On November 8, 2018, the date of his admission to the facility, Resident 2 was 67 years old.  CMS Ex. 17 at 33.  Resident 2 had impaired cognition because of his mental handicap from birth.  CMS Ex. 17 at 30.

An October 11, 2020 Minimum Data Set (MDS) assessment indicated that Resident 2 had a BIMS score of 2, which indicated severely impaired cognition.  CMS Ex. 17 at 1.  The MDS assessment also indicated that Resident 2 was diagnosed with, among other things, non-Alzheimer’s dementia and psychotic disorder.  CMS Ex. 17 at 17-18.  Resident 2 was also assessed as only needing “supervision” concerning his ability to walk in his room or in the corridor.  CMS Ex. 17 at 7.  Resident 2 was stable when moving from a seated to a standing position and when walking.  CMS Ex. 17 at 8.  Resident 2 used a walker to assist with his mobility.  CMS Ex. 17 at 8.

Two December 2020 Nurse’s Notes indicated that Resident 2 was independent with ambulation and transfers.  CMS Ex. 17 at 54, 56.

3. Resident 3 was diagnosed with, among other things, a cerebrovascular accident (CVA) and non-Alzheimer’s dementia.  Resident 3 also showed moderate impairment for decision-making and memory problems, required “supervision” for walking in his room and the corridor, and did not use mobility devices.  Resident 3 was prone to wandering, disrobing, and attempting to get into other residents’ beds.  Resident 3’s care plan indicated that Resident 3 required one-on-one supervisory care.

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An October 11, 2020 MDS assessment provided no BIMS assessment, but included an assessment that R3 was moderately impaired for decision-making and memory problems, only required “supervision” for walking in his room and the corridor, and did not use mobility devices.  CMS Ex. 18 at 5, 10, 11.  Resident 3 was diagnosed with a CVA and non-Alzheimer’s dementia.  CMS Ex. 18 at 20.

Resident 3’s care plan indicated that impaired cognition related to the CVA was a problem.  CMS Ex. 18 at 27.  Further, his care plan stated that Resident 3 had been known to wander.  CMS Ex. 18 at 32, 34, 36.

A September 10, 2020 entry in Resident 3’s care plan indicated that the resident was known to wander, to disrobe when incontinent or at night, and to “attempt to get into [other residents’] beds.”  CMS Ex. 18 at 36.  That same entry stated that Resident 3 required one-on-one supervisory care.  CMS Ex. 18 at 36.  On October 2, 2020, Resident 3’s medical records shows that Resident 3 had been taking his clothes off and urinating on the floor.  CMS Ex. 18 at 37.

4. On August 9, 2019, Resident 2 touched Resident 1b’s breasts while both residents were in the dining area.  Petitioner sent Resident 2 to the emergency room for assessment due to his inappropriate behavior.  Petitioner notified the residents’ physicians and responsible parties, completed an incident report that indicated alleged sexual abuse on Resident 1b, and developed interventions to address Resident 2’s behavior and protect Resident 1b.  The facility placed Resident 2 in one-on-one supervision while his medication review was being completed.  Resident 2’s physician was to complete a medication review related to his inappropriate behavior.  Resident 1b was placed under supervision at all times when in common areas.

On August 9, 2019, after the completion of afternoon activity, the facility activity assistant pushed Resident 1b in her wheelchair up to a table in the dining area.  See CMS Ex. 15 at 1, 3; see also CMS Ex. 16 at 26-27, 29 (noting Resident 1b’s mobility was limited to being pushed by staff).  Resident 2 came into the dining area and sat next to Resident 1b.  CMS Ex. 15 at 1, 3.  After Resident 2 sat next to Resident 1b, Petitioner’s activity assistant observed Resident 2 “touching the breast of” Resident 1b.  CMS Ex. 15 at 1, 3.  Upon observing the incident, the activity assistant had another staff member take Resident 1b to a nurse for an assessment.  CMS Ex. 15 at 3.  The nurse did not observe any physical or mental injury to Resident 1b.  CMS Ex. 15 at 3.

Petitioner’s staff also sent Resident 2 to a hospital emergency room for evaluation due to his inappropriate behavior.  CMS Ex. 15 at 1.  Petitioner’s staff informed the residents’ physicians and responsible parties that an incident involving the residents had occurred.  CMS Ex. 15 at 1.  Petitioner’s staff also notified the local police department.  CMS Ex. 15 at 1, 3.  The facility placed Resident 2 on one-on-one supervision.  CMS Ex. 15 at 3.

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Resident 2’s physician was to complete a medication review related to his inappropriate behavior, and Petitioner placed Resident 2 on 15-minute checks and on one-on-one supervision while in common areas until the medication review was completed.  CMS Ex. 15 at 3.  Resident 1b was to be “visualized by staff when in common areas” and would be monitored for seven days for signs and symptoms of injury.  CMS Ex. 15 at 3.  Petitioner included in Resident 1b’s care plan a handwritten intervention dated August 9, 2019, that reads “Res[ident] to be under staff supervision [at] all times when in common areas.”⁷  P. Ex. 3 at 15.

After Petitioner initiated and concluded the investigation that established some of the above facts, Petitioner prepared an undated incident report and submitted the report to the state agency.  CMS Ex. 15 at 1-2; P. Br. at 4.  The report indicated alleged sexual abuse on Resident 1b by Resident 2.  CMS Ex. 15 at 1-2.

5. On October 6, 2020, a certified nursing assistant (CNA) observed that Resident 3 was lying next to Resident 1b on Resident 1b’s bed.  The CNA observed both residents asleep, with Resident 1b under the covers fully dressed and Resident 3 only wearing a depends brief on top of the covers with a blanket covering him.  In response to the incident, Petitioner’s staff had the residents assessed.  The assessments found no signs or symptoms of inappropriate activities.  Petitioner implemented the following interventions to address the incident:  monitoring of Resident 3; moving Resident 1b to another hall/room; and to notifying the necessary parties of the incident.  Petitioner’s staff drafted a report of the incident indicating alleged sexual abuse of Resident 1b by Resident 3.  After the incident, Resident 3 continued to display similar problematic behavior.

On October 6, 2020, a CNA entered Resident 1b’s room and noticed that Resident 3 was lying next to Resident 1b on Resident 1b’s bed.  CMS Ex. 15 at 5, 7.  The CNA overserved both residents asleep, with Resident 1b under the covers fully dressed and Resident 3 only wearing a depends brief on top of the covers with a blanket covering him.  CMS Ex. 15 at 7; CMS Ex. 16 at 33.  Resident 3 was a 69-year-old man.  CMS Ex. 15 at 5.  Staff woke the residents up, took Resident 3 to his room, and a nurse assessed both residents and found “no signs or symptoms of foul or inappropriate activities.”  CMS Ex. 15 at 9; see also CMS Ex. 16 at 33-34.

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Based on this incident, Petitioner developed several interventions:  Petitioner decided to monitor Resident 3; to move Resident 1b to another hall/room because Resident 3’s room was “right across the hallway” from Resident 1b; and to notify the residents’ responsible parties, the residents’ physicians, and the DON of the incident.  CMS Ex. 15 at 9; CMS Ex. 16 at 34.

An undated A.I.M. for Wellness assessment indicated that the behavior exhibited by Resident 3 had not happened before, noted that dementia was relevant information concerning this incident, and noted that “[o]ther behavioral changes” included wandering and climbing into the bed of another resident.  CMS Ex. 18 at 52.  The A.I.M. assessment also did not find any signs or symptoms of foul or inappropriate activity because Resident 1b was under the covers in bed and Resident 3 was on top of them while both slept.  CMS Ex. 18 at 40.

After Petitioner initiated an investigation that established what occurred on that day, Petitioner prepared an undated incident report and submitted the report to the state agency.  CMS Ex. 15 at 5, 7.  The report indicated alleged sexual abuse on Resident 1b by Resident 3.  CMS Ex. 15 at 5, 7.

Following the October 6, 2020 incident, Resident 3 was found to wander, walk naked in the facility, and wander into other resident rooms and stare at them while they slept.  CMS Ex. 18 at 43-52.

6. A behavioral tracking record for November 2020 indicates that Resident 2 engaged in the behavior of inappropriately touching other residents.  Staff needed to intervene.

A Behavioral Tracking Record for November 2020 shows that Resident 2 engaged in “[i]nappropriate touching of other residents.”⁸  CMS Ex. 17 at 51.  The record also indicates that staff intervened to “Reduce stimuli,” which resulted in the outcome of “Behavior Stopped.”

7. On December 27, 2020, Resident 2 again inappropriately touched Resident 1b while in a common area in the facility.  Resident 2 touched Resident 1b between her legs.  After the incident, Petitioner:  assessed the residents; developed interventions and updated their care plans; prepared an incident report, which indicated alleged sexual abuse; and indicated in the residents’ medical records

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that Resident 1b was vulnerable to sexual abuse and that Resident 2 had a known history of engaging in inappropriate behavior.

On December 27, 2020, Resident 1b was in her wheelchair in the common area close to the nurses’ station of the facility’s C wing.  CMS Ex. 15 at 11.  She was fully dressed.  CMS Ex. 15 at 11.  Despite her proximity to the nurses’ station, the nurse in the station was unable to see Resident 1b because the holiday decorations obstructed the nurse’s line of sight.  Tr. 39; CMS Ex. 13 at 5.  Resident 2 was also in the same common area playing with blocks.  CMS Ex. 15 at 11-12.

A staff member, who was passing by the nurses’ station, noted that Resident 2 was “touching [Resident 1b] between her legs[.]”  CMS Ex. 15 at 11-12, 14.  The staff member called Resident 2 by his name, and he immediately moved his hand away from between Resident 1b’s legs.  CMS Ex. 15 at 14.  In response to the incident, the staff member removed Resident 1b from the common area.  CMS Ex. 15 at 11-12, 14.

After the incident, Petitioner’s staff assessed Resident 1b.  An undated A.I.M. assessment for Resident 1b indicated that:  on December 27, 2020, Resident 1b was “inappropriately touched between legs by another male resident”; this had happened before and that the “treatment” for the previous incident was “moved rooms/halls”; no symptoms of injury or emotion distress, or medical changes or pain were observed in Resident 1b; and the physician recommendation and/or nursing intervention was that staff “will place [Resident 1b] behind [the] nurses[’] station from now on when out of [her] room.”  CMS Ex. 16 at 35-36.

A December 27, 2020 handwritten entry to Resident 1b’s care plan stated:  “When [Resident 1b] is out of room (and not eating in cafeteria) she is to be at nurse’s station to be supervised.”  CMS Ex. 16 at 24.  A January 12, 2021 entry in Resident 1b’s medical record stated that Resident 1b was “at heightened risk to exposure to physical or sexual abuse” related to poor cognition, poor communication, and because she was dependent on others for mobility and activities of daily living.  CMS Ex. 16 at 25.

After the incident, Petitioner’s staff assessed Resident 2.  An undated A.I.M. assessment for Resident 2 indicated that the evaluation was for “touching a female resident inappropriately over clothing” and that Resident 2’s behavior “ha[d] occurred before.    CMS Ex. 17 at 58.

A January 12, 2021 entry in Resident 2’s care plan stated that the “[r]esident is known/has a history of displaying inappropriate behavior.  Specific behavior exhibited of inappropriate sexual contact.”  CMS Ex. 17 at 41.  Among the risk factors identified by Petitioner was that Resident 2 was ambulatory.  CMS Ex. 17 at 41.  Interventions commenced on January 12, 2021 included implementing a behavior monitoring program,

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escorting of Resident 2 to dining and activities; encouraging psychotherapy; and supervising Resident 2 at all times.  CMS Ex. 17 at 41.

8. Petitioner’s abuse prevention program (abuse policy) affirmed the right of its residents to be free from abuse, including abuse by another resident.  The abuse policy listed the actions Petitioner would take to accomplish its duty to protect its residents from abuse.  Among the actions listed in the abuse policy, Petitioner’s staff would identify residents with increased vulnerability to abuse or who have needs and behaviors that might lead to conflict.  Petitioner did not identify Resident 1b as being vulnerable to sexual abuse and Resident 2 as having behaviors that might lead to conflict until January 12, 2021.

Petitioner’s abuse policy affirms its residents’ right to be free from abuse.  CMS Ex. 20 at 1.  Petitioner incorporated the federal regulatory definition of abuse and sexual abuse into its policy.  CMS Ex. 20 at 1-2; see 42 C.F.R. § 483.5.  The abuse policy states that its purpose is to “assure that the facility is doing all that is within its control to prevent occurrences of mistreatment, exploitation, neglect or abuse of [its] residents.”  CMS Ex. 20 at 1.  To accomplish this goal, Petitioner, in its policy, listed several actions it would take.  CMS Ex. 20 at 1.  Among those actions Petitioner listed, Petitioner was to establish an environment that promotes resident security and prevention of abuse and was to identify occurrences and patterns of potential abuse of residents.  CMS Ex. 20 at 1.  The latter required Petitioner’s staff to “identify residents with increased vulnerability for abuse or who have needs and behaviors that might lead to conflict.”  CMS Ex. 20 at 4.  The method for making such an identification and the approaches to address the identified vulnerability or problematic behavior would be through the care planning process.  CMS Ex. 20 at 4.  The policy required Petitioner’s staff to “continue to monitor the goals and approaches on a regular basis.”  CMS Ex. 20 at 4.

The record in this case shows that Petitioner did not perform the required determination of Resident 1b’s increased vulnerability to abuse or of Resident 2’s display of inappropriate sexual contact until January 12, 2021.  CMS Ex. 16 at 25; CMS Ex. 17 at 41.  It was not until January 12, 2021, that Petitioner’s staff specifically identified Resident 1b to be at increased vulnerability to abuse, nor did staff identify Resident 2 as displaying a behavior that could cause conflict, i.e., inappropriate sexual contact.  See P. Ex. 3; CMS Ex. 16; CMS Ex. 17.

The record shows that, prior to January 12, 2021, Resident 1b was at increased vulnerability to abuse and Resident 2 continued to display the sexually inappropriate behavior of inappropriate contact.  Resident 1b’s conditions made her highly dependent on staff for care, and the August 9, 2019, and October 6, 2020 incidents, established that Resident 1b was vulnerable to abuse by other residents.  Another incident was not necessary to conclude that Resident 1b was vulnerable to sexual abuse.  Petitioner failed

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to comply with its abuse policy because it did not make such a determination and add interventions in Resident 1b’s care plan before January 12, 2021.

Further, Petitioner was aware of Resident 2’s inappropriate behavior since August 2019.  CMS Ex. 15 at 1.  This behavior was recurrent as evidenced by an incident that Petitioner’s staff documented in November 2020.  CMS Ex. 17 at 51; P. Br. at 9.  The behavior of inappropriately touching other residents did not cease after the August 9, 2019 incident, and thus, Petitioner should have identified Resident 2 as “displaying inappropriate behavior,” specifically inappropriate sexual contact, prior to January 12, 2021.  CMS Ex. 17 at 41.  Instead, Petitioner waited until another incident occurred, where Resident 2 again displayed the known behavior, to identify him as having a behavior that might lead to conflict.  CMS Ex. 17 at 41.

9. Petitioner failed to implement the existing intervention to address Resident 1b’s vulnerability to sexual abuse and did not timely develop and implement effective interventions to address Resident 2’s sexually inappropriate behavior and prevent further incidents of abuse.

The facility did not implement the August 9, 2019 intervention in place for Resident 1b.  Further, the facility did not develop and implement effective interventions to address Resident 2’s sexually inappropriate behavior and prevent further incidents of abuse.

After the August 9, 2019 incident, Petitioner developed an intervention for Resident 1b’s care plan to prevent further abuse of Resident 1b.  P. Ex. 3 at 15.  The care plan “Problem/Need” was to keep Resident 1b safe from other residents seeking reprisal against Resident 1b based on Resident 1b’s behaviors, which may be considered disruptive or socially inappropriate.  P. Ex. 3 at 15.  The handwritten intervention, dated August 9, 2019, in this care plan entry instructed Petitioner’s staff that Resident 1b must be “under staff supervision [at] all times when in common areas.”  P. Ex. 3 at 15.

However, on December 27, 2020, Petitioner failed to implement the intervention by placing Resident 1b in a common area close to the nurses’ station without supervision.  The nurses at the nurses’ station were unable to supervise Resident 1b while in the common area because the holiday decorations obstructed the nurses’ view of Resident 1b.  CMS Ex. 13 at 5; Tr. at 39.  Only placing Resident 1b close to the nurses’ station does not constitute supervision because the nurses’ view of Resident 1b was obstructed by an object, which did not permit the nurses to see and thus supervise Resident 1b.  CMS Ex. 13 at 5.  If it were not for a staff member who walked past the nurses’ station and saw Resident 2 touching Resident 1b between her legs, the abuse would not have been noticed by those charged with supervising Resident 1b.

I credit the statements from two facility employees, as recorded in the SOD, that the nurses at the nurses’ station could not see Resident 1b due to Christmas decorations.  This

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is because Petitioner did not provide written testimony from those employees refuting their statements.  See Beatrice State Developmental Ctr., DAB No. 2311 at 17, 18 (2010) (pointing out that the facility could have but did not present employee testimony that refuted the statements the surveyors claimed they made); Omni Manor Nursing Home, DAB No. 1920 at 11 (2004) (statements of facility employees to the surveyors may be admitted in an administrative proceeding and may constitute substantial evidence).

Not only did Petitioner fail to implement the August 9, 2019 intervention, but it also failed to develop and implement effective interventions to address Resident 2’s sexually inappropriate behavior and prevent further incidents of abuse.  The record shows that Petitioner took only modest action concerning Resident 2’s behavior based on the August 9, 2019 incident.  CMS Ex. 15 at 3.  The primary intervention was of limited duration involving 15-minute checks and one-on-one supervision while in common areas “until med review complete.”  CMS Ex. 15 at 3.  Resident 2’s care plan shows that the one-on-one supervision was to elapse after the medication review was completed.  See CMS Ex. 15 at 3; CMS Ex. 17.  Furthermore, after the November 2020 incident where Resident 2 inappropriately touched other residents, CMS Ex. 17 at 51, Petitioner failed to implement interventions to address this.  See CMS Ex. 17.  It was not until after the December 27, 2020 incident that Petitioner developed and implemented interventions.  CMS Ex. 15 at 12; CMS Ex. 17 at 41.  There does not appear to be any reason why Petitioner could not have implemented these interventions either in August 2019 or November 2020.

10. Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(a) (Free from Abuse and Neglect) because it failed to take sufficient action after the August 9, 2019 incident and/or the November 2020 incident to ensure Resident 1b’s right to be free from sexual abuse.

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

The Secretary’s regulations implementing this requirement generally state:

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

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

The regulations define “abuse” as “the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish” and “includes verbal abuse, sexual abuse, physical abuse, and mental abuse including abuse facilitated or enabled through the use of technology.”  42 C.F.R. § 483.5.  “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.

The DAB has interpreted the abuse provisions to require that abuse caused by a person who is not an employee of the facility must have been foreseeable and left the resident(s) vulnerable to it.  As quoted below, in a case decided when the text of section 483.12(a) was located in 42 C.F.R. § 483.13(b) and (c), the DAB explained how to apply the standard for resident-on-resident abuse:

The regulation at section 483.13(b) flatly states that all residents have a right to be free of physical abuse, so theoretically the analysis of noncompliance under that provision could end with the fact that Resident 2 was physically abused.  The [DAB] has nevertheless recognized “a distinction between ‘staff-to-resident’ abuse and ‘resident-to-resident’ interactions for purposes of determining compliance with section 483.13(b).”  The reason is that a facility “may not disavow the wrongdoing of its staff” and therefore any “considerations of foreseeability are inapposite when . . . staff abuse has occurred.”  By contrast, while residents may harm each other, the facility’s responsibility for protecting them from each other cannot extend to “entirely unforeseeable risks.”  Hence, the [DAB] 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 at Rockwood, DAB No. 2954 at 24 (2019) (internal citations omitted); see also Kindred Transitional Care and Rehab – Greenfield, DAB No. 2792 at 12-15 (2017); Woodstock Care Ctr., DAB No. 1726 at 25-35 (2000), aff’d, Woodstock Care Ctr. v. Thompson, 363 F.3d 583 (6th Cir. 2003).

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Petitioner does not dispute that Resident 2 touched Resident 1b’s breasts and also touched Resident 1b between her legs.  Also, it does not dispute that the October 6, 2020 incident between Resident 3 and Resident 1b occurred.

CMS alleges that Petitioner failed to ensure Resident 1b was free from sexual abuse because Petitioner “allowed Resident 1b to be sexually abused three times and failed to protect residents from abusive behavior by [Resident 2] and [Resident 3].”  CMS Br. at 12.  CMS contends that Petitioner failed to protect Resident 1b from foreseeable sexual abuse by failing to implement the existing interventions and failed to develop interventions that would have prevented abuse after each incident of abuse.  CMS Br. at 8, 15.  CMS alleges that the interventions Petitioner developed and implemented after the December 27, 2020 incident were too late to prevent abuse that was foreseeable, leaving residents vulnerable to it.  CMS Br. 16.  CMS also alleges that Petitioner failed to follow its abuse policy.  CMS Br. at 15.

Petitioner argues that the August 9, 2019, October 6, 2020, and the December 27, 2020 incidents were unforeseeable, isolated incidents and that it developed and implemented appropriate interventions after each incident to protect residents from abuse.  P. Br. at 7, 8-9.  Although Petitioner concedes that the October 6, 2020 incident occurred, Petitioner asserts that the incident was not an instance of sexual abuse, contrary to what CMS alleges.  P. Br. at 7.

I conclude that Petitioner failed to protect Resident 1b’s right to be free from foreseeable sexual abuse on December 27, 2020.  Petitioner also failed to comply with its abuse policy.  Resident 2 sexually abused Resident 1b on December 27, 2020.  Resident 2’s actions constituted sexual abuse, as defined by the regulations, because Resident 2’s actions were willful and the contact initiated by Resident 2, i.e., touching Resident 1b between her legs, was sexual in nature and non-consensual.  42 C.F.R. § 483.5.  If Resident 2’s actions were “deliberate” rather than “accidental” or “inadvertent,” they are considered “willful” within the meaning of the regulation.  Maysville Nursing & Rehab., DAB No. 2874 at 11 (2018) (citing Merrimack Cnty. Nursing Home, DAB No. 2424 at 5 (2011)); Britthaven, Inc., DAB No. 2018 at 4 (2006).  Here, even though Resident 2 had impaired cognition, Resident 2 deliberately, and not by accident, touched Resident 1b between her legs.  CMS Ex. 15 at 10-12, 14.  Therefore, Resident 2’s actions were willful during the December 27, 2020 incident.

In addition, the willful actions of Resident 2 were sexual in nature and non-consensual.  Resident 2 touched Resident 1b between her legs.  CMS Ex. 15 at 10-12, 14.  This was sexual contact because the contact occurred around and in her private area and was identified as sexual contact by Petitioner’s staff in its incident report to the state agency.  CMS Ex. 15 at 10-12, 14.  Further, given the significant cognitive impairments that Resident 1b had, CMS Ex. 16 at 9, consent to sexual touching cannot be presumed and could only be shown if the matter is sufficiently investigated by the facility to show

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consent.  See Neighbors Rehab. Ctr., LLC, v. Dep’t of Health & Human Services, 910 F.3d 925-26 (7th Cir. 2018).  Petitioner did not establish the sexual contact was consensual, and there is nothing in the record to support that it was.

Given that Resident 2’s actions on December 27, 2020, constituted sexual abuse, I must now determine whether Petitioner’s staff had a basis to be aware that Resident 2’s behavior might occur, i.e., whether it was foreseeable, and whether Petitioner left Resident 1b and its residents vulnerable to that foreseeable behavior.  Rockwood, DAB No. 2954 at 24.  A basic definition of “foreseeability” is “[t]he quality of being reasonably anticipated.” Black’s Law Dictionary (11th ed. 2019)

I conclude that Resident 2’s behavior, in relation to the December 27, 2020 incident, was foreseeable, and Petitioner left Resident 1b, and its other residents, vulnerable to that foreseeable behavior by failing to implement certain existing interventions and to develop appropriate interventions to address Resident 2’s behavior.

The December 27, 2020 incident was foreseeable based on the August 9, 2019 incident and the behavior tracking records provided to the surveyor during the survey.  CMS Ex. 15 at 1-3; CMS Ex. 17 at 50-51.  The August 9, 2019 incident constituted sexual abuse by Resident 2 on Resident 1b.  During the incident, Resident 2 touched Resident 1b’s breast.  Further, behavior tracking records show that Resident 2 engaged in “[i]nappropriate touching of other residents” in November 2020.  CMS Ex. at 17 at 51.  Given the August 2019 incident and another occurrence of inappropriate touching in November 2020, another incident, such as the December 27, 2020 incident, could have been reasonably anticipated and should have been foreseen by Petitioner’s staff.

Moreover, it was also foreseeable that Resident 1b was highly vulnerable to potential sexual abuse by R2.  The August 9, 2019 and the October 6, 2020 incidents were indicators that Resident 1b was highly vulnerable to potential sexual abuse and subjected to inappropriate behavior.  Besides the August 9, 2019 incident, which constituted sexual abuse, the October 6, 2020 incident, while potentially not involving touching, is evidence that Resident 1b was vulnerable to potential sexual abuse because Resident 3, only wearing a disposable brief, went onto Resident 1b’s bed while she was sleeping and lay next to her.  CMS Ex. 15 at 4-5.  Resident 1b’s cognitive and physical condition showed her vulnerability without protection and supervision.  CMS Ex. 16 at 2, 9, 10, 12, 16, 22.

Considering that Resident 2’s behavior, the December 27, 2020 incident, and Resident 1b’s vulnerability to potential sexual abuse were foreseeable, Petitioner should have ensured that its residents, specifically Resident 1b, was not left vulnerable to such behavior.

Petitioner argues that it developed and implemented measures to prevent future incidents from occurring and provides a list of specific actions it took to prevent future events from

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occurring.  P. Br. at 7-9.  However, as explained in detail in FFCL 9, Petitioner failed to implement the existing interventions and failed to develop interventions that would have prevented abuse after each incident.  The interventions it finally developed and implemented after the December 27, 2020 incident could have been developed and implemented before the December 27, 2020 incident to protect Petitioner’s residents, specifically Resident 1b, from abuse.

At the hearing, Surveyor Morgan testified that Petitioner should have put better interventions into place to protect Resident 1b, especially after the August 2019 incident and because Resident 1b is a very vulnerable resident due to cognitive and physical impairments.  CMS Ex. 22 ¶ 9; see also Tr. at 53.  Although Surveyor Morgan did not list the interventions that should have been in place because she expressed that it is not her “part to advise what [SNFs] should or shouldn't do,” Tr. at 38, Surveyor Morgan testified that the developed interventions were insufficient to protected Resident 1b from further abuse and that Petitioner could have implemented reasonable intervention without encroaching on Resident 2’s independence.  Tr. at 49; CMS Ex. 22 ¶ 9.

The record shows that Petitioner developed interventions to address Resident 2’s behavior that caused the August 9, 2019 incident.  CMS Ex. 15 at 3.  However, the interventions that were developed and implemented were limited to placing Petitioner on 15-minute checks and on one-on-one supervision while in common areas until his physician completed a medication review.  CMS Ex. 15 at 3.  Resident 2’s care plan shows that the one-on-one supervision was to elapse after the medication review was completed, and the care plan does not show that such supervision continued through December 27, 2020.  See CMS Ex. 15 at 3; CMS Ex. 17.  Furthermore, after the November 2020 incident where Resident 2 again displayed his behavior of inappropriately touching other residents, CMS Ex. 17 at 50-51, Petitioner failed to implement interventions to address this concerning behavior.  See CMS Ex. 17.  It was not until after the December 27, 2020 incident (more than two weeks after) that Petitioner developed the following interventions:  initiate behavior monitoring; maintain supervision to avoid Resident 2 being unattended; monitor when in common areas; and redirect away from female residents.  CMS Ex. 15 at 12; CMS Ex. 17 at 41.  Petitioner also, after the December 27, 2020 incident, decided to “place [Resident 1b] behind [the] nurses[’] station from now on when out of the room.”  CMS Ex. 16 at 36.

Petitioner could have developed and implemented all those interventions either after the August 9, 2019 incident or when Resident 2 again displayed inappropriate behavior in November 2020.  Those interventions could have been implemented without infringing upon Resident 2’s independence in order to protect Resident 1b and other residents who were vulnerable.  However, because Petitioner did not, the mandated supervision of Resident 1b was the only intervention in place to prevent Resident 2 from again sexually abusing Resident 1b.  And, as discussed in FFCL 9, the staff’s inability to see Resident 1b from the nurses’ station rendered that single method of protection useless.

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It is important to note that, as explained in FFCL 8, Petitioner’s failure to implement interventions for Resident 1b and continue to implement interventions for Resident 2 violated Petitioner’s abuse prevention policy, which provides further support that Petitioner was noncompliant with 42 C.F.R. § 483.12(a).  See Bivins Memorial Nursing Home, DAB No. 2771 at 9 (2017) (“[A] facility’s policy for implementing a regulatory requirement may reflect that facility’s own judgment about how best to achieve compliance and hence failure to comply with its own policies can support a finding that the facility did not achieve compliance with the regulatory standard.”).

Therefore, for the foregoing reasons, I conclude that Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(a).

11. CMS’s determination that Petitioner’s noncompliance with 42 C.F.R. § 483.12(a)(1) posed immediate jeopardy to resident health and safety is not clearly erroneous.

Immediate jeopardy exists if a facility’s noncompliance has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.  42 C.F.R. § 488.301.  The regulation does not require that a resident actually be harmed.  Lakeport Skilled Nursing Ctr., DAB No. 2435 at 8 (2012).

I must uphold CMS’s determination as to the level of a facility’s substantial noncompliance (which includes an immediate jeopardy finding) unless it is “clearly erroneous.”  42 C.F.R. § 498.60(c).  The “clearly erroneous” standard imposes on facilities a heavy burden to show no immediate jeopardy, and the DAB has sustained determinations of immediate jeopardy where CMS presented evidence “from which ‘[o]ne could reasonably conclude’ that immediate jeopardy exists.”  See, e.g., Barbourville Nursing Home, DAB No. 1962 at 11 (2005) (quoting Florence Park Care Ctr., DAB No. 1931 at 27-28 (2004)).  In reviewing CMS’s finding, I “must consider whether the totality of the allegations support the Agency's determination that [the SNF’s] noncompliance ‘has caused, or [was] likely to cause, serious injury, harm, impairment, or death to a resident.’”  Rosewood Care Ctr., 868 F.3d at 618 (7th Cir. 2017) (emphasis omitted).

Here, only the deficiency at 42 C.F.R. § 483.12(a) involving Resident 1b was the basis for the immediate jeopardy determination.  CMS contends that Petitioner is unable to show that CMS’s immediate jeopardy determination was clearly erroneous because Petitioner’s failure to develop and implement the necessary interventions to address Resident 2’s inappropriate sexual behavior towards other residents and to protect its residents from sexual abuse “placed [Resident 1b] and others at [an] increased risk of sexual abuse.”  See CMS Br. at 17.  This was likely to cause serious harm to other residents because sexual abuse “causes psychiatric trauma and emotional pain.”  CMS Br.

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at 17.  Petitioner did not argue that CMS’s immediate jeopardy determination involving the abuse deficiency was clearly erroneous.  See P. Br.

I agree with CMS that CMS’s immediate jeopardy determination is not clearly erroneous.  Petitioner did not attempt to carry the heavy burden to show that CMS clearly erred in determining that Petitioner's noncompliance with 42 C.F.R. § 483.12(a)(1) posed immediate jeopardy to resident health and safety.

Deficiency Concerning Safe and Comfortable Environment

12. Resident 1a, at the time of admission, was a 60-year-old man with elbow and hip fractures, diabetes, obesity, poor safety awareness, and poor mobility.  He required assistance from staff for bed mobility, bathing, grooming, toileting, dressing, and for transfers.  He had a peripherally inserted central catheter (PICC) line.

Resident 1a was admitted to the facility on December 9, 2020.  CMS Ex. 7 at 1.  At the time of admission, Resident 1, a male resident, was 60 years old.  CMS Ex. 7 at 1.  Resident 1a had elbow and hip fractures, diabetes, obesity, poor safety awareness, and poor mobility.  CMS Ex. 7 at 4, 10-11.  He also had a PICC line.  CMS Ex. 7 at 6.  Resident 1a required assistance from Petitioner’s staff for bed mobility, bathing, grooming, toileting, dressing, and for transfers.  CMS Ex. 7 at 10.  Resident 1a was “able to make [his] needs known . . . .”  CMS Ex. 7 at 5.

13. On December 23, 2020, at about 1:00 a.m., a CNA, responded to Resident 1a’s call light.  Resident 1a informed the CNA that he was hot and asked her to open the window in his room.  The CNA opened the window about an inch and took his temperature, which was normal.  At about 3:30 a.m., the CNA went to Resident 1a’s room to observe whether he was comfortable with the temperature in his room.  Resident 1a informed the CNA that he was fine.  At about 6:20 a.m., another CNA went to Resident 1a’s room to provide care.  Resident 1a told that CNA that he was not feeling well and that he was cold.  That CNA gave him a blanket and closed the window.  About one hour later, he developed symptoms that warranted him being transported to the Unity Point Health Pekin Hospital.

On December 23, 2020, between 1:00 a.m. and 2:00 a.m., Resident 1a activated his call light.  CNA Nancy Applen arrived and Resident 1a told her that he was hot.  Resident 1a asked the CNA to open the window in his room, which the CNA did to a height of about an inch.  CNA Applen determined that Resident 1a had a normal temperature.  CNA Applen told Resident 1 to use his call light if he became cold and needed the window closed.  CME Ex. 7 at 9; P. Ex. 5 ¶¶ 2-3.

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At about 3:30 a.m., CNA Applen went to Resident 1a’s room to observe whether Resident 1a was comfortable with the temperature in his room.  CMS Ex. 7 at 9; P. Ex. 5 ¶ 2.  The CNA “asked [Resident 1a] if he was fine” to which Resident 1a replied that “he was good.”  CMS Ex. 7 at 9.  CNA Applen “emptied his [catheter]” and left the room.  CMS Ex. 7 at 9.

At about 6:20 a.m., another CNA went to Resident 1a’s room.  CMS Ex. 4 at 4.  Resident 1a told the CNA that he “did not feel right and was cold.”  CMS Ex. 4 at 4.  Reacting to Resident 1a’s communication of discomfort, the CNA gave Resident 1a a blanket and closed the window.  CMS Ex. 4 at 4.

A licensed practical nurse (LPN) noted in a December 23, 2020 nurse’s note that at 7:45 a.m., she observed Resident 1a had increased confusion and was “clammy [and] cool to the touch.”  CMS Ex. 7 at 6.  The LPN also noted that his blood sugar was at 50 mg/dl.  See CMS Ex. 7 at 6.  Resident 1a was “given apple juice, orange juice[,] and . . . ½ [of a] biscuit and gravy.”  CMS Ex. 7 at 6.  The LPN again checked Resident 1a’s blood sugar at 8:15 a.m. and at 8:45 a.m., which showed an increase in his blood sugar.  CMS Ex. 7 at 6.  The same nurse’s note stated that Resident 1a was feeling unwell and was “trembling uncontrollably[.]”  CMS Ex. 7 at 6.  Petitioner decided to send Resident 1a to the emergency room for evaluation.  CMS Ex. 7 at 6.  Resident 1a was transported to the Unity Point Health Pekin Hospital at 9:50 a.m.  CMS Ex. 6 at 1; CMS Ex. 7 at 6.

14. While at the hospital, hospital staff determined that Resident 1a’s rectal temperature was 95.2 degrees(°) Fahrenheit (F).  He was admitted to the hospital for chills and sepsis unrelated to the significantly low temperature.  A nurse at the hospital treated Resident 1a’s significantly low body temperature.  Resident 1a told the same nurse that Petitioner’s staff opened the window of his room and, as a result, his was very cold.  The nurse reported the incident to the state agency and filed a complaint with the Long-Term Care Ombudsman (LTCO).  The LTCO, as part of his investigation, interviewed Resident 1a, who communicated to him that he activated his call light because he was getting very cold.  The resident told the LTCO that he estimated that it took several hours for Petitioner’s staff to respond to the call light.  In response to the complaint, the state agency conducted a survey.  During the survey, Surveyor Jacobs interviewed Petitioner’s Director of Nursing (DON), who told the surveyor that Petitioner’s staff were prohibited from opening the windows in the facility, and reviewed the nurses’ notes, finding that Resident 1a had previously complained about the temperature at the facility.

The hospital staff determined that Resident 1a had a rectal temperature of 95.2°F; “was shaking, had heart rhythm issues, and had gallbladder issues due to the hyperthermia[;]” and was “in critical condition.”  CMS Ex. 6 at 1, 3.  Resident 1a was admitted to the hospital for “[c]hills and [s]epsis, non-related to hypothermia.”  CMS Ex. 6 at 3.  A nurse

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from the hospital treated Resident 1a’s significantly low temperature by placing warming blankets over Resident 1a.  CMS Ex. 6 at 3.  After about three or four hours, the hospital’s staff managed to raise Resident 1a’s temperature up to normal levels.  CMS Ex. 6 at 3.  While Resident 1a was being treated at the hospital, Resident 1a told the nurse who helped treat his significantly low temperature that “[t]hey came in [his room] in the middle of the night and opened the window and [Resident 1a] was freezing.”  CMS Ex. 6 at 3.  Based on what Resident 1a told the nurse, the nurse reported the incident to the state agency and filed a complaint with the LTCO.  CMS Ex. 6 at 1, 3.

The LTCO contacted Resident 1a, and as part of their conversation, Resident 1a “confirmed the narrative from” the nurse and consented to having the complaint investigated.  CMS Ex. 6 at 1.  Resident 1a told the LTCO that on the morning of the incident, “he had pressed the call light because it was getting very cold . . . [and stated] that [Petitioner’s staff] never answer call lights at night.”  CMS Ex. 6 at 1.  Resident 1a “estimate[d] that it took between 4 and 5 hours for someone to answer the call light to check on him.”  CMS Ex. 6 at 1.

According to a nurse’s note dated December 24, 2020, Petitioner’s staff contacted the hospital to receive an update on Resident 1a’s condition.  The hospital informed Petitioner’s staff that Resident 1a was “being [treated for] sepsis and [had] labs pending.”  CMS Ex. 7 at 8.

In response to the complaint filed with the state agency, Surveyor Jacobs, on behalf of the state agency, conducted a survey in the facility, which was completed on December 30, 2020.  CMS Ex. 4.  During the survey, Surveyor Jacobs interviewed the DON, who told Surveyor Jacobs that “staff is not allowed to have windows open in the facility.”  Tr. 17; CMS Ex. 8 at 2.  Furthermore, Surveyor Jacobs also observed that in Resident 1a’s records, a nurse’s note stated that Resident 1a had previously complained that it was always cold in the facility and complained about not receiving help.  CMS Ex. 4 at 3; CMS Ex. 7 at 5.

15. The outside temperature, during the early morning hours of December 23, 2020, when Resident 1a’s window remained open, was no warmer than 46°F and may have been colder.

The parties disagree as to whether the outside temperature in the early morning of December 23, 2020, was in the 20° F range or the 40° F range.  CMS Br. at 10-11; P. Prehearing Br. at 6.  Other than testimony from a surveyor, neither party submitted evidence of the temperature, relying on citation to internet websites.  CMS Ex. 10 ¶ 7; Tr. 14; CMS Br. at 10-11; P. Prehearing Br. at 6 n.4.

Therefore, I find that there is insufficient evidence in the record to conclusively determine what the outside temperature was in the early morning hours of December 23,

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2020, was near the facility.  However, I accept that it was no higher than 46° F, as posited by Petitioner, and may have been colder than that.

16. Petitioner was not in substantial compliance with 42 C.F.R. § 483.10(i)(6) (Tag F584) (Safe/Clean/Comfortable/Homelike Environment) because Petitioner failed to maintain comfortable and safe temperature levels in Resident 1a’s room.⁹

“A skilled nursing facility must care for its residents in such a manner and in such an environment as will promote maintenance or enhancement of the quality of life of each resident.”  42 U.S.C. § 1395i-3(b)(1)(A).  The Secretary’s regulations implementing part of this statutory requirement state, in relevant part, that:

The resident has a right to a safe, clean, comfortable and homelike environment, including but not limited to receiving treatment and supports for daily living safely.  The facility must provide—

* * * *

(6) [c]comfortable and safe temperature levels.  Facilities initially certified after October 1, 1990 must maintain a temperature range of 71 to 81 °F[.]

42 C.F.R. § 483.10(i)(6).  The resident ‘environment’ is intended to be construed broadly and would, therefore, clearly include a resident’s room.  See Liberty Nursing & Rehab. Ctr. – Mecklenberg Cty., DAB No. 2095, at 8 (2007).

Although the record does not indicate whether Petitioner was initially certified to participate in Medicare after October 1, 1990, Petitioner concedes that it was subject to maintaining the temperature in Resident 1a’s room between 71°F and 81°F.  P. Prehearing Br. at 5; 42 C.F.R. §483.10(i)(6) (“Facilities initially certified after October 1, 1990 must maintain a temperature range of 71 to 81°F”).  The Secretary determined that temperature range based on recommended standards issued by the American Society of Heating, Refrigeration, and Air-Conditioning Engineers, with a few degree variation in consideration of the lower metabolism rate in the elderly.  See 56 Fed. Reg. 48,826, 48,846 (Sept. 26, 1991).

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CMS alleges that Petitioner failed to maintain comfortable and safe temperatures for Resident 1a in his room because Petitioner’s “staff left the window in [Resident] 1a’s room open for several hours in the middle of winter when the outside temperature reached lows of 23 degrees Fahrenheit, below freezing.” CMS Br. at 10.  CMS contends that the “‘ambient temperature should be in a relatively narrow range that minimizes residents’ susceptibility to loss of body heat and risk of hypothermia.’”  CMS Ex. 10 (quoting CMS Ex. 25 at 2).  Instead of opening Resident 1a’s window, CMS argues that Petitioner should have offered safer alternatives.  CMS Reply at 2.

Petitioner argues that it was in substantial compliance with 42 C.F.R. § 483.10(i).  P. Br. at 5.  Petitioner contends that there is no indication that the temperature in Resident 1a’s room fell below the applicable temperature range:  “no one took a temperature reading of [Resident] 1a’s room on December 23, 2020 after his window was closed[;]” Resident 1a did not complain of being cold or uncomfortable after the window was opened; there is no documentary evidence or “witness statement that the room felt cold or was colder than the rest of the facility[;]” and Resident 1a’s change in condition “could have been attributed to something other than the window in his room being opened.”  P. Br. at 5-6.  Petitioner further contends that Resident 1a’s ability to make his needs known and the absence of his communicating that he was cold during the period in which the window was opened supports a finding that the temperature in the room did not drop below the regulatory range.  P. Br. at 5-6.  Petitioner further argues that no other alternatives for lowering the temperature in the room were adequate for cooling Resident 1a.  P. Br. at 6.  Lastly, Petitioner argues that, although the DON told Surveyor Jacobs that staff were not supposed to open the windows in the facility, there is no “policy or procedure that prevents staff from opening a window if a resident requests it and no other staff members supported this statement.”  P. Br. at 6.

I disagree with Petitioner.  CMS established that the temperature in Resident 1a’s room fell below the regulatory range, i.e., made a prima facie showing of noncompliance.  As discussed below, I infer from the record that the temperature in Resident 1a’s room fell below the regulatory temperature range established by the 42 C.F.R. § 483.10(i)(6).  It is true that temperature readings of Resident 1a’s room—before the window was opened, while it remained opened, and after it was closed—are not in the record.  However, Petitioner must show compliance with the regulations and failed to provide such evidence.  Below, I discuss each factor from the record that supports the conclusion that Resident 1a’s room temperature went below 71° F.

The first factor is that the window in Resident 1a’s room remained opened for about six hours while the outside temperature was no more than 46°F.  CMS Ex. 4 at 4; CMS Ex. 7 at 9.  It is obvious that a prolonged open window in winter will result in heat loss in a room.

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The second factor is that Resident 1a was cold before the window was closed, attempted to complain about being cold, and complained about being cold when a CNA eventually closed the window in his room.  Petitioner contends that Resident 1a did not complain about being cold or uncomfortable after the window was opened.  P. Br. at 6.  Petitioner also argues that Resident 1a’s ability to make his needs known and the absence of his communicating that he was cold during the period in which the window was opened supports a finding that the temperature in the room did not drop below the regulatory range.  P. Br. at 5-6.  However, the record does not support Petitioner’s arguments.  The record shows that, at about 6:20 a.m., Resident 1a informed Petitioner’s CNA that he was cold.  CMS Ex. 4 at 4.  Moreover, Resident 1a communicated to a hospital nurse and the LTCO that, at the time of the incident, his room was very cold.  CMS Ex. 6 at 1, 3.  A hospital nurse reported that Resident 1a “was freezing” when he was in his room on the day of the incident.  CMS Ex. 6 at 3.  The record also shows that Resident 1a was able to communicate his needs but was unable to close the window on his own because he required assistance for transfers.  CMS Ex. 7 at 10.  Since he was fully dependent for mobility purposes on Petitioner’s staff, somewhere between 3:30 a.m. and 6:20 a.m., Resident 1a attempted to call Petitioner’s staff for help with closing the window but did not receive help for several hours.  CMS Ex. 6 at 1 (Resident 1a “pressed his call light because he was getting very cold . . . [and] he estimates that it took [several] hours for someone to answer the call light to check on him.”).

In addition, even if Resident 1a complained about the temperature in his room, Petitioner contends that there is no documentary evidence or “witness statement that the room felt cold or was colder than the rest of the facility.”  P. Br. at 6.  As support, CNA Applen testified that Resident 1a’s room was not cold when, at about 3:30 a.m., she went to observe whether Resident 1a was comfortable with the temperature in his room and Resident 1a did not complain about the temperature of the room.  P. Ex. 5 ¶ 4.  The absence of evidence that the room felt cold and the CNA’s testimony stating that the room did not feel cold, are not dispositive.  Petitioner did not offer testimony regarding how the room felt at 6:20 a.m., the time Resident 1a conveyed to another Petitioner’s staff that he was cold.  CMS Ex. 4 at 4.  The other factors support the inference that the temperature in Resident 1a’s room dropped below the established range.  Petitioner’s argument does not preclude such an inference.

The third factor is Resident 1a’s rectal temperature of 95.2 °F, which is a significantly low temperature not related to the sepsis and chills he exhibited.  Petitioner argues that “R[esident] 1a’s change in condition could have been attributed to something other than the window in his room being opened.”  P. Br. 6.  In other words, Petitioner argues that the temperature in his room did not cause the change in Resident 1a’s condition.  However, the record shows that the cause for the drop in Resident 1a’s body temperature is attributed to the drop in the room’s temperature, not to Resident 1a’s sepsis or chills.  A hospital nurse informed the state agency that Resident 1a was admitted to the hospital for chills and sepsis, which were unrelated to hypothermia/significantly low body

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temperature.  CMS Ex. 6 at 3.  This is supported by the nurse’s statement that treatment for hypothermia (i.e., three to four hours of applying warm blankets) was administered and that is what brought Resident 1a’s temperature to normal again.  CMS Ex. 6 at 3.  The need to treat hypothermia shows Resident 1a was subject to cold environmental conditions.  The facts show the reason for this.  Resident 1a’s window was open during the winter for hours, Resident 1a stated to staff he was cold, and Resident 1a started to exhibit symptoms of confusion, clamminess, cool to the touch, and trembling uncontrollably.  CMS Ex. 7 at 6.  Petitioner fails to address the temporal proximity between opening the window in Resident 1a’s room and the symptoms displayed, and it also fails to rebut the hospital nurse’s statement that the chills and the sepsis were unrelated to Resident 1a’s significantly low core body temperature.  This factor shows that the temperature in Resident 1a’s room was cold enough that Resident 1a’s body temperature could drop to 95.2 °F.

Given that I have found that Resident 1a had a rectal temperature that was significantly lower than normal body temperature and that this was caused by facility staff leaving Resident 1a’s window open, I conclude that Petitioner’s noncompliance placed Resident 1a at risk for more than minimal harm.  Resident 1a was sent to the hospital and treatment for hypothermia was provided.

Therefore, for the foregoing reasons, I conclude that Petitioner was not in substantial compliance with 42 C.F.R. § 483.10(i).

Civil Money Penalties

17. The $13,380 per‑day CMP for eight days from January 5, 2021, through January 12, 2021, and $330 per-day CMP for 19 days from January 13, 2021 through January 31, 2021, for a total CMP of $113,310, are reasonable under relevant statutory and regulatory factors for determining the amount of CMPs.

CMS imposed a $13,380 per‑day CMP for eight days from January 5, 2021, through January 12, 2021, and a $330 per-day CMP for 19 days from January 13, 2021, through January 31, 2021, for a total CMP of $113,310.  CMS Ex. 2 at 2.  When CMS imposes a per-day CMP, an SNF may challenge the duration and amount of the CMP.

Duration of CMP

CMS determined that Petitioner returned to substantial compliance with 42 C.F.R. § 483.12(a)(1) on January 14, 2021, and returned to substantial compliance with 42 C.F.R. § 483.10(i)(6) on February 1, 2021.  CMS Ex. 26; see CMS Ex. 2 at 2.  The SNF bears the burden of showing that its noncompliance was of shorter duration than alleged by CMS.  Owensboro Place & Rehab. Ctr., DAB No. 2397 at 12 (2011) (citing Kenton Healthcare, LLC, DAB No. 2186 at 24-25 and Lake Mary Health Care, DAB No.

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2081 at 30 (2007)).  Petitioner did not challenge the duration of the CMP.  Therefore, I accept the duration as found by CMS.  The abuse deficiency supports the duration of the higher CMP (immediate jeopardy period), and the temperature deficiency supports the duration of the lower CMP (non-immediate jeopardy period).  See CMS Ex. 26.

Amount of CMP

When determining whether a CMP amount is appropriate, I apply the factors listed in 42 C.F.R. § 488.438(f):  1) the facility’s history of noncompliance; 2) the facility’s financial condition; 3) the factors specified in 42 C.F.R. § 488.404; and 4) the facility’s degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort, or safety.  See 42 U.S.C. §§ 1320a-7a(d)(2), 1395i-3(h)(2)(B)(ii)(I).  The absence of culpability is not a mitigating factor.  42 C.F.R. § 488.438(f).  The factors listed in 42 C.F.R. § 488.404 include:  1) the scope and severity of the deficiency; 2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and 3) the facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies.  See 42 U.S.C. §§ 1320a-7a(d)(1), (3), 1395i-3(h)(2)(B)(ii)(I).

The regulations leave the decision regarding the choice of remedy to CMS, and the amount of the remedy to CMS and the ALJ, requiring only that the regulatory factors at §§ 488.438(f) and 488.404 be considered when determining the amount of a CMP within a particular range.  42 C.F.R. §§ 488.408, 488.408(g)(2), 498.3(d)(11); see also 42 C.F.R. § 488.438(e)(2), (3); Alexandria Place, DAB No. 2245 at 27 (2009); Kenton Healthcare, LLC, DAB No. 2186 at 28-29 (2008).  However, unless a facility contends that a particular regulatory factor does not support the CMP amount, an ALJ must sustain it.  Coquina Ctr., DAB No. 1860 (2002).  I assess the reasonableness of the per-day amounts, 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)).

CMS argues that several of the factors support the penalty amount imposed.  It asserts that the CMP is reasonable because of the seriousness of the deficiencies, Petitioner’s culpability, and Petitioner’s compliance history.  CMS Br. at 18.  Petitioner argues that the CMP is unreasonable because it “does not have a history of noncompliance in regards to tag F0600 and F584” and its culpability was limited regarding noncompliance with 42 C.F.R. § 483.12(a)(1).  P. Prehearing Br. at 12; P. Br. at 10.

In addition to challenging the culpability and history-of-noncompliance factors, Petitioner argues that the total CMP amount is not reasonable.  P. Br. at 9.  In challenging the total amount, Petitioner argues that “[i]n two other DAB cases[, Maysville Nursing & Rehab., DAB CR4859 (2017) and Rockcastle Health & Rehab. Ctr., DAB CR4926 (2017),] where the scope and severity as well as the nature of the incidents were similar, the CMPs imposed were significantly lower for the same F tags.”  P. Br. at 9.  Petitioner makes a factual comparison with two other cases to show that the present one is different

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than those other cases.  P. Br. at 9-12.  However, I am not authorized to consider case comparisons or the total CMP as factors to determine whether the per-day CMP amounts are reasonable.  See 42 C.F.R. § 488.438(e)(3), (f).  Therefore, I reject Petitioner’s argument and proceed to discuss the regulatory factors below.

Scope and Severity of Deficiencies and Relationship Between Deficiencies:  CMS argues that it considered the seriousness of the deficiencies cited and concluded that both deficiencies were serious.  CMS Br. at 18.  The deficiency related to abuse was at the immediate jeopardy level, and the deficiency related to the failure to maintain a safe and comfortable temperature was at the scope and severity level D.  Petitioner did not dispute this factor.  An immediate jeopardy level deficiency supports a substantial CMP.

Culpability:  Petitioner argues its culpability was limited because Petitioner put interventions into place to protect Resident 1b from abuse each time Resident 1b was subjected to it.  P. Br. at 10.  Petitioner did not argue a reduced culpability concerning substantial noncompliance with 42 C.F.R. § 483.10(i)(6).  See P. Br.  CMS argues that Petitioner is very culpable.  Regarding the substantial noncompliance with 42 C.F.R. § 483.10(i)(6), CMS asserts that Petitioner was responsible for opening the window in Resident 1a’s room, which Resident 1a was unable to close causing Resident 1a’s body temperature to drop significantly, failed to offer safer alternatives to lower the room temperature, and failed to monitor Resident 1a while the window was open for an extended period of time.  CMS Reply at 3; CMS Br. at 18-19.  Regarding the substantial noncompliance with 42 C.F.R. § 483.12(a)(1), CMS asserts that Petitioner knew of Resident 1b’s vulnerability to abuse and knew of Resident 2’s inappropriate behavior, yet it failed to implement a basic intervention, i.e., watching Resident 1b while Resident 1b was in the common area, which could have prevented the abuse.  CMS Reply at 3.

CMS is correct.  Petitioner’s culpability with respect to the two deficiencies also supports the amounts of the CMPs imposed.  Regarding Petitioner’s substantial noncompliance with 42 C.F.R. § 483.10(i)(6), the record supports that the facility neglected to consider the consequences of leaving the window in Resident 1a’s room open for several hours while the outside temperature was no more than 46°F.  Moreover, Petitioner was aware that if the temperature in the room fell below the safe and comfortable regulatory temperature range, Resident 1a would have been unable to close the window due to his condition.  Therefore, Petitioner needed to better ensure the room temperature stayed at the required level.  CMS Ex. 4 at 4.

Regarding Petitioner’s noncompliance with 42 C.F.R. § 483.12(a)(1), Petitioner is very culpable because Petitioner’s staff failed to implement a simple intervention—watching Resident 1b while Resident 1b was in the common area—to protect Resident 1b from abuse by Resident 2.  Moreover, following the first instance of abuse by Resident 2, Petitioner did not take appropriate steps to address Resident 2’s concerning behavior, i.e., inappropriately touching other residents.  Lastly, in contravention of its own abuse

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prevention policy, Petitioner failed to identify/designate Resident 1b as being vulnerable to sexual abuse and Resident 2 as having behaviors that might lead to conflict until January 12, 2021, even though Petitioner knew before this date that the residents fit in those categories.  As a consequence of the failure to designate the residents based on the criteria provided by it abuse policy, Petitioner failed to develop and implement interventions prior to January 12, 2021, that could have prevented the abuse.  CMS Ex. 16 at 25; CMS Ex. 17 at 41.  Petitioner’s failure to protect Resident 1b from abuse by Resident 2 shows a disregard for Resident 1b’s care and safety.  This factor strongly supports the CMP imposed in this case.

Facility’s History of Non-Compliance:  CMS argues that Petitioner has a history of numerous D-level deficiencies or higher as found in 2018, 2019, and 2020 surveys.  CMS Br. at 19 (citing CMS Ex. 3).  Petitioner argues that it does not have a history of noncompliance with 42 C.F.R. § 483.12(a)(1) and 42 C.F.R. § 483.10(i)(6).  Petitioner’s argument suggests that in order for the compliance history to be a factor weighing against Petitioner, the history must contain instances of noncompliance with the deficiencies cited by CMS in this case.  This is incorrect.  The regulations at 42 C.F.R. § 488.438(f)(1) require that I consider as a factor “[t]he facility’s history of noncompliance, including repeated deficiencies.”  This language does not restrict my evaluation of the factor to only the “repeated deficiencies.”

CMS Exhibit 3 documents surveys conducted from 2018 through 2020, prior to the surveys at issue in this case.  CMS Ex. 3.  The 2018 surveys found two G-level deficiencies (i.e., actual harm to a resident related to dignity and respect of individuality), four F-level deficiencies (i.e., no actual harm but widespread potential for more than minimal harm to residents), and 12 deficiencies at scope and severity levels “D” and “E” (i.e., no actual harm but isolate/pattern of deficiencies with the potential for more than minimal harm to residents).  CMS Ex. 3 at 3-4.  The 2019 surveys found two G-level deficiencies, four F-level deficiencies, and 12 deficiencies at scope and severity levels “D” and “E.” CMS Ex. 3 at 2-3.  The 2020 surveys, prior to the surveys at issue in this case, found one F-level deficiency and 15 D- and E-level deficiencies.  CMS Ex. 3 at 1.

Although none of the deficiencies in the current case involve the same F-Tag as previous deficiencies, CMS has proven that Petitioner regularly engages in deficient behavior that poses a potential of more than minimal harm to residents.  The existence of actual harm deficiencies as well as deficiencies that posed widespread potential for more than minimal harm (i.e., the F-level deficiencies) in almost three years before the surveys at issue in this case provides strong support for a significant CMP amount to serve the remedial purpose of attempting to ensure that Petitioner will conform with Medicare requirements for SNFs.

Moreover, Petitioner has been subject to enforcement remedies based on a number of the previously mentioned deficiencies:

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1) DPNA from November 6, 2018, through November 12, 2018 (CMS Ex. 3 at 3);
2) $10,520.33 per-instance CMP imposed on April 11, 2019 (CMS Ex. 3 at 2-3);
3) $4,979 per-instance CMP imposed on May 30, 2019 (CMS Ex. 3 at 2);
4) $8,294 per-instance CMP imposed on May 16, 2019 (CMS Ex. 3 at 2).

Petitioner argues that it did not have any immediate jeopardy deficiencies since 2017, presumably showing that Petitioner has done well since 2017.  P. Br. at 11.  However, as stated above, Petitioner had four G-level deficiencies, which involve actual harm to residents, and had other deficiencies serious enough to have a DPNA and three CMPs imposed on Petitioner since 2018.  Petitioner’s history weighs in favor of a significant CMP amount.

Financial Condition of the Facility:  Neither CMS nor Petitioner argue that financial condition is a factor affecting the penalty amount.  “In weighing evidence on financial condition, the Board has consistently held that 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)).  “It is the responsibility of the facility to furnish the information it believes appropriately represents its financial status.”  Gilman, DAB No 2362 at 7 (citing 59 Fed. Reg. 56,116, 56,204 (Nov. 10, 1994)).  Petitioner presents no evidence of its financial condition.  Therefore, this is not a factor that impacts the CMP amount in this case.

CMP Amount:  As indicated by the review of the factors above, a $13,380 per‑day CMP for eight days from January 5, 2021, through January 12, 2021, and a $330 per-day CMP for 19 days from January 13, 2021, through January 31, 2021, for a total CMP of $113,310, are well-supported.  The $13,380 per-day CMP imposed is in the lower half of the range for immediate jeopardy noncompliance.¹⁰  Also, the $330 per-day CMP is near the bottom of the range for non-immediate jeopardy noncompliance.¹¹  Therefore, based on the factors above and in consideration of the amounts imposed, the CMPs imposed are supported by the record and are reasonable and appropriate.

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V. Conclusion

Petitioner was not in substantial compliance with 42 C.F.R. §§ 483.12(a)(1) and 483.10(i)(1)-(7).  Further, Petitioner’s noncompliance with 42 C.F.R. § 483.12(a)(1) immediately jeopardized the health and safety of Petitioner’s residents.  Finally, the $13,380 per‑day CMP for eight days from January 5, 2021, through January 12, 2021, and the $330 per-day CMP for 19 days from January 14, 2021, through January 31, 2021, are reasonable.  Petitioner is liable for a total $113,310.

Endnotes

¹ “It is the duty and responsibility of the Secretary to assure that requirements which govern the provision of care in skilled nursing facilities . . . are adequate to protect the health, safety, welfare, and rights of residents and to promote the effective and efficient use of public moneys.”  42 U.S.C. § 1395i-3(f)(1).

² All citations to the Code of Federal Regulations are to the version in effect at the time of the survey unless otherwise indicated.

³ State agencies designate the scope and severity level using a matrix published in the State Operations Manual, ch. 7, § 7400.3.1 (Rev. 185, eff. Nov. 16, 2018), available at https://www.cms.gov/regulations-and-guidance/guidance/manuals/downloads/som107c07pdf.pdf.  Scope and severity levels of A, B, or C are deficiencies for which CMS cannot impose enforcement remedies.  Scope and severity levels of D, E, or F are deficiencies that present no actual harm, but have the potential for more than minimal harm that do not amount to immediate jeopardy.  Scope and severity levels of G, H, or I are deficiencies that involve actual harm that do not amount to immediate jeopardy.  Scope and severity levels of J, K, and L are deficiencies that constitute immediate jeopardy to resident health or safety.

⁴ The SOD stated that the immediate jeopardy situation was removed on “1/13/20.”  CMS Ex. 13 at 2.  However, the year should have read 2021.  See CMS Ex. 2 at 1.

⁵ The June 11, 2021 notice incorrectly tallied the total CMP imposed from January 5, 2021, through January 12, 2021, as “$82,360.”  CMS Ex. 2 at 2.  The total is $107,040 because $13,380 x 8 days = $107,040.

⁶ The state agency issued two SODs in this case documenting deficiencies involving different residents.  Unfortunately, the state agency identified both residents as Resident 1.  In this proceeding, I adopted CMS’s method for distinguishing the residents as Resident 1a for the survey that ended on December 30, 2020 (CMS Ex. 4), and Resident 1b for the partially extended survey that ended on January 14, 2021 (CMS Ex. 13).  Tr. 4.

⁷ CMS submitted CMS Exhibit 16 as Resident 1b’s care plan.  However, Petitioner submitted Petitioner Exhibit 3 as Resident 1b’s care plan.  In relevant part, these exhibits differ in that only Petitioner Exhibit 3 contains a handwritten intervention dated August 9, 2019.  Compare P. Ex. 3 at 15, with CMS Ex. 16 at 12-13.  Since CMS did not dispute the authenticity of handwritten intervention dated August 9, 2019, I will consider it a valid entry.  CMS Reply at 2.

⁸ The state surveyor testified that the facility only provided tracking records for two months, i.e., October and November 2020.  Tr. at 48; CMS Ex. 17 at 50-51.  There is no evidence that facility personnel completed these forms or tracked Resident 2 for inappropriately touching other residents during other periods of time.

⁹ The SOD cites 42 C.F.R. § 483.10(i)(1)-(7) as the basis for the substantial noncompliance.  CMS Ex. 4.  However, CMS only focuses on subsection (i)(6) as the basis for the deficiency.  CMS Br. at 10.

¹⁰ The applicable CMP range for immediate jeopardy noncompliance is $6,808 to $22,320.  45 C.F.R. § 102.3 (2020); 85 Fed. Reg. 2869, 2886 (Jan. 17, 2020).

¹¹ The applicable CMP range for nonimmediate jeopardy noncompliance is $112 to $6,695.  45 C.F.R. § 102.3 (2020); 85 Fed. Reg. 2869, 2886 (Jan. 17, 2020).