Golden Creek Healthcare and Rehabilitation Center, DAB CR6525 (2024)

DECISION

The issue before me involves a long-term care facility’s responsibility to ensure its residents remain free from abuse and neglect in accordance with the federal regulations and its own nursing home policies.

Golden Creek Healthcare and Rehabilitation Center (Petitioner or facility) is a skilled nursing facility (SNF) located in Navasota, Texas that participates in the Medicare program.  On May 29, 2021, Health Management Solutions, LLC (contractor or survey agency), on behalf of the Centers for Medicare & Medicaid Services (CMS), concluded an on-site survey inspection at the facility and determined that the facility was not in substantial compliance with Medicare participation requirements.¹  CMS only imposed a remedy for the deficiency identified at 42 C.F.R. § 483.12(a)(1).  In a Joint Stipulation of Undisputed Facts and Joint Statement of Issues Presented for Hearing (Joint Stipulation), the parties narrowed the issues to only whether the facility was in noncompliance with 42

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C.F.R. § 483.12(a)(1) (Tag F600), which dealt with a resident’s right to be free from abuse and neglect, and whether the $10,650 per-instance Civil Money Penalty (CMP) imposed by CMS is reasonable regarding the period of alleged substantial noncompliance.  

For the reasons set forth below, I find that the facility was not in substantial compliance with the Medicare participation requirement governing a resident’s right to be free from abuse, neglect, and exploitation.  42 C.F.R. § 483.12(a)(1).  I also find that the penalty imposed ($10,650) is reasonable. 

Background

The Social Security Act (Act) sets forth requirements for skilled nursing facilities (SNFs) or long-term care (LTC) facilities to participate in the Medicare program and authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations implementing these statutory provisions.  Act § 1819.  The Secretary’s regulations are found at 42 C.F.R. Part 483.  To participate in Medicare, a LTC facility must be in “substantial compliance” with the participation requirements in 42 C.F.R. Part 483, subpart B.  42 C.F.R. §§ 483.1, 488.400.  A “deficiency” is a “failure to meet a participation requirement.”  42 C.F.R. § 488.301.  A LTC facility is not in “substantial compliance” when it has one or more deficiencies that have the potential for causing more than minimal harm to residents.  Id. 

The Secretary contracts with state survey agencies to survey LTC facilities to determine whether they are in substantial compliance with program requirements.  Act § 1864(a); 42 C.F.R. § 488.20.  CMS may impose enforcement remedies based on the survey results, including a per-day or per-instance CMP, on a LTC facility that is not in substantial compliance.  42 C.F.R. §§ 488.430(a), 488.400, 488.402(b), (c), 488.406.  CMS determines the amount of a CMP based on multiple factors, which include the “seriousness” of the noncompliance.  42 C.F.R. §§ 488.404(b), 488.438(f)(3).  “Seriousness” is a function of the noncompliance’s scope (whether it is “isolated,” constitutes a “pattern,” or is “widespread”) and severity (whether it has created a “potential for harm,” resulted in “actual harm,” or placed residents in “immediate jeopardy”).  42 C.F.R. § 488.404(b). 

In this case, the survey agency concluded an on-site survey inspection at the facility on May 29, 2021 and determined that the facility was not in substantial compliance with the program requirement aimed at preventing abuse:  42 C.F.R. § 483.12(a)(1) (Tag F600)

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(freedom from abuse, neglect, and exploitation), citing the deficiency at scope and severity level “G.”²  CMS Ex. 1 at 2; CMS Ex. 3.  

Petitioner filed a timely request for hearing.  

The parties filed pre-hearing briefs (CMS Br.; P. Br.) and proposed exhibits (Exs.) (CMS Exs. 1-12; P. Exs. 1-5).³  CMS later withdrew CMS Ex. 10.  On March 20, 2024, I held a video-teleconference hearing to allow the parties to cross-examine witnesses.⁴  Petitioner cross-examined CMS’s witness, Surveyor Charles Walters.  CMS cross-examined Petitioner’s witness, Cametrica Flowers, who is Petitioner’s Executive Director/Administrator.  At the hearing, I admitted CMS Exs. 1-9 and 11-12, and P. Exs. 1-4.  Tr. at 10-12, 45, 66.  Following the hearing, a transcript was made available to the parties.  Both parties submitted post-hearing briefs (CMS Post-Hearing Br. and P. Post-Hearing Br.).  

In conjunction with its pre-hearing brief, CMS moved for summary judgment, asserting that there were no material facts in issue.  CMS Br. at 3.  Petitioner opposed summary judgment and asserted that there are genuine issues of material fact as to whether the facility was in substantial compliance with 42 C.F.R. § 483.12(a)(1) (Tag F600).  P. Br. at 3.  In an Order dated October 23, 2023, I informed the parties that, having viewed the evidence before me in a light most favorable to Petitioner and drawing all inferences in Petitioner’s favor, I concluded that there are genuine disputes of material fact pertaining to the issue of whether Petitioner was in substantial compliance with Medicare regulations, and I denied CMS’s motion for summary judgment.  

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I. Issues

The issues before me are: 

1. Whether the facility was in substantial compliance with 42 C.F.R. § 483.12(a)(1).  
2. If Petitioner was not in substantial compliance, whether the $10,650 per-instance CMP imposed by CMS is reasonable.   

II. Findings of Fact, Conclusions of Law, and Analysis ⁵

1. A. Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(a)(1).  As discussed below, Petitioner violated section 483.12(a)(1) when its staff failed to protect Resident # 4 from abuse by Resident # 9, who had a documented history of aggressive behavior.  Further, Resident # 10 was subjected to a demeaning verbal response from a CNA, which constituted verbal abuse prohibited under section 483.12(a)(1).  
   1. 1. Governing Guidelines and Authority

The Act requires that facility residents be free from “physical or mental abuse [and] corporal punishment.”  Act § 1819 (c)(1)(A)(ii).  Consistent with that provision, the regulation governing abuse requires that each resident has the right to be free from abuse.  42 C.F.R. § 483.12.  Abuse is defined as “the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish.”  It includes verbal, sexual, physical, and mental abuse.  42 C.F.R. § 488.301.  “Willful” means that the individual acted deliberately, not that the individual must have intended to inflict injury or harm.  Id.  This regulation applies both to staff-to-resident abuse and to resident-to-resident abuse.  The Bridge at Rockwood, DAB No. 2954 at 24 (2019).   “[T]he 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.’”  Id. (quoting Kindred Transitional Care & Rehab – Greenfield, DAB No. 2792 at 11 (2017)). 

2.  
   2. 2. The Facility’s Abuse Prohibition Policy

At the time of the survey, the facility’s abuse prohibition policy provided, “[e]ach resident has the right to be free from abuse, mistreatment, neglect, corporal punishment, involuntary seclusion and financial abuse.”  CMS Ex. 4 at 1; Joint Stipulation at 1.  The policy defines abuse as “the willful infliction of injury, withholding or misappropriating 

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property or money, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish.”  CMS Ex. 4 at 1.  

The policy further provides that facility staff will monitor the behavior of staff members and residents to identify the potential for abuse and will thoroughly investigate all alleged violations and take appropriate action.  CMS Ex. 4 at 4-5.  Residents demonstrating abusive behaviors are to be reviewed and have their treatment plans modified as appropriate.  Id. at 4.  

3.  
   3. 3. Factual Background and Analysis of CMS’s Deficiency Findings

CMS alleges two instances when facility residents were not free of abuse as mandated by Medicare participation requirements. 

The incident involving Resident # 4 (R4) and Resident # 9 (R9)

At the time of the survey, R4 was an 85-year-old male.  CMS Ex. 5 at 1.  According to R4’s Minimum Data Set dated March 14, 2020, R4 had a Brief Interview for Mental Status (BIMS) score of three, indicating that he had severe cognitive impairment.  CMS Ex. 5 at 19; CMS Ex. 8 at 3.  R4 was assessed to be independent with all activities of daily living (ADLs), to have no balance concerns during walking, and did not require mobility devices.  CMS Ex. 3 at 5; CMS Ex. 5 at 22.  Although R4 was assessed to exhibit wandering behaviors, he was not assessed to exhibit any behaviors toward others.  CMS Ex. 3 at 5; CMS Ex. 5 at 21.

R9 was a 68-year-old male with a personal history of traumatic brain injury.  CMS Ex. 6 at 1-2.  On March 26, 2020, the facility assessed R9 to have a BIMS score of six out of 15, which indicated that R9 was severely cognitively impaired.  CMS Ex. 3 at 4; CMS Ex. 8 at 3. 

On May 4, 2020, the facility’s Administrator, Ms. Flowers, filed a Provider Investigation Report with Texas Health and Human Services, reporting R4’s allegation of abuse.  P. Ex. 1.  Specifically, on April 27, 2020, R4 reported to facility staff that, two days before, R9 hit him several times and that he lost his balance and fell.  R4’s resulting injury was reported as a “[s]mall quarter size blueish discoloration to left posterior flank and mildly displaced acute fracture involving the left lateral ninth rib.”  P. Ex. 1 at 3.  Following the injury, R4 complained of 8/10 pain before receiving pain medication.  CMS Ex. 5 at 9.  The facility’s report further confirmed that R9 was placed on 1:1 supervision and then ultimately discharged home with family at their request.  P. Ex. 1 at 4-5. 

Petitioner’s report stemmed from R4’s April 27, 2020, complaint of pain to his left side.  A bruise was seen on his left side, and he stated that he thought that he had a broken rib.  R4 described a resident wearing plaid, who was identified as R9, as the resident who had 

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punched him “a couple [of] times.”  P. Ex. 1 at 16.  R4 reported that on the day of the incident, R9 approached him as he was sitting at a table in the dining room.  R9 began talking with R4 and then began hitting him in the chest.  When R4 got up and hit back at him, R9 continued to hit him until R4 fell.  R4 recalled that his head hit the table when he fell and R9 continued to hit him in the head.  R4 recalled sitting on the floor for a while because he was hurting.  P. Ex. 1 at 17. 

When interviewed by the facility staff, R9 admitted to hitting R4 “2 or 3” times in his shoulder and chest.  Based on the interviewer’s notes, R9 added that he “may have broken a rib.”  P. Ex. 1 at 18-19.  R9 also confirmed that there were no staff present during the incident.  Id. at 18.  

Discussion related to the incident between R4 and R9

Petitioner asserts that to demonstrate that the facility violated 42 C.F.R. § 483.12(a), CMS must show that “(1) there was a reasonably foreseeable risk of abuse and that (2) Petitioner failed to take reasonable steps to prevent abuse from occurring.”  P. Post- Hearing Br. at 5.  

Petitioner argues that not only was the incident involving these residents not reasonably foreseeable, but that the facility took reasonable measures designed to prevent altercations or abusive behavior between its residents, including R4 and R9.  P. Post-Hearing Br. at 3-5.  Petitioner maintains that there is no record that R9 and R4 had any altercations or disagreements prior to the incident in issue.  P. Br. at 3; P. Post-Hearing Br. at 4.  Thus, Petitioner contends that the incident between R4 and R9 was not a reasonably foreseeable event and that the facility had no reason to suspect that R9 would hit or injure R4.  P. Br. at 5; P. Post-Hearing Br. at 5. 

Petitioner acknowledges that while R9’s care plan indicated that he had “some challenges with staff and accepting his care needs regiment [sic],” Petitioner contends that R9 did not have a history of abusive or potentially abusive behavior toward any other residents, including R4.  P. Br. at 4; see P. Post-Hearing Br. at 3. 

Contrary to Petitioner’s argument, however, R9’s nursing progress notes and medical records demonstrate that he had a history of aggressive behavior.  Specifically, an excerpt from R9’s care plan created October 4, 2019, documents that he was noted to have a behavior problem and was combative toward staff.  CMS Ex. 6 at 111.  On November 13, 2019, R9 was aggressive toward staff when they redirected him into the facility after he had followed someone into the parking lot.  Id. at 67-68.  On March 13, 2020, R9 refused breakfast and his medications and swung his arms at staff, shouting at them to leave him alone.  CMS Ex. 6 at 10.  On March 15, 2020, R9 screamed at his roommate and screamed at a nurse when she entered his room to give him medications.  Id.  The nursing note states that R9 seemed to get very upset with staff when they showed any attention to 

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his roommate.  The plan was to suggest a room change to decrease the risk of increased aggression.  Id.  A nursing note dated March 30, 2020, stated R9 exhibited “aggressive behaviors” and drew back his fist, threatening to hit Certified Nursing Assistants (CNAs) and calling them derogatory names.  Id. at 4-5.  Petitioner argues in its post-hearing brief that when R9’s treating physician evaluated him on April 9, 2020, he did not order any changes to R9’s care plan or regimen and directed the facility to continue with R9’s current plan of care.  P. Post-Hearing Br. at 4.  While the physician may not have ordered any changes to the care plan, I also note that he  documented that staff reported that R9 had “increased behaviors, combativeness, and elopement attempts.”  CMS Ex. 6 at 117.  The physician also assessed R9’s psychological functioning as “Abnormal Agitation, Combativeness, Mood Changes, Anxiety.”  Id. at 117.  

In contrast to Petitioner’s arguments, the overall record indicates that R9’s actions were in fact foreseeable.  While it may not have been predicted that R4 would have been the target of R9’s aggressive and combative behavior, R9’s previous behavior toward staff and other residents reflects a potential for aggression and combativeness.  R9’s behavior on April 25, 2020, was consistent with previous disruptive and inappropriate behavior.  Section 488.301 defines “abuse” as an “infliction of injury, unreasonable confinement, intimidation, or punishment” that is “willful.”  Petitioner submits that based on its application of its Abuse Prohibition Policy and internal investigation, and given R9’s cognitive impairments, it reasonably concluded that R9 did not willfully inflict any injury on R4.  P. Br. at 4; P. Post-Hearing Br. at 5; P. Ex. 1 at 2-5.  Petitioner takes the position that because of R9’s cognitive impairment, the facility could reasonably assume that his actions toward R4 were not willful.  

This argument is unpersuasive.  Because of R9’s mental status, he may not have fully understood the implications of his actions.  But so long as his actions were “deliberate,” rather than accidental or inadvertent, they are considered “willful” within the meaning of the regulation. Merrimack Cty. Nursing Home, DAB No. 2424 at 5 (2011); Britthaven, Inc., DAB No. 2018 at 4 (2006); cf. Singing River Rehab. & Nursing Ctr., DAB No. 2232 at 13 (2009) (suggesting that so long as a mentally ill resident did not act “by accident,” his conduct was abusive).  There is no dispute that R9 hit R4 repeatedly.  Petitioner does not assert and there is no evidence that R9 inadvertently or accidentally hit R4. 

Petitioner asserts that the facility always maintained one to three nursing staff employees in the dining room area to monitor its residents during mealtimes and while interacting in the dining room area.  P. Ex. 1 at 24, 28, 33; P. Ex. 4 at 2; P. Br. at 4; P. Post-Hearing Br. at 5.  Despite this assertion, however, Petitioner presented no witnesses to demonstrate that staff were present to observe the incident or that staff took action to intercede or stop the altercation.  Petitioner’s Administrator Cametrica Flowers also testified that both R9 and R4 told her that they did not see any staff in the dining room at the time of the incident.  Tr. at 60; P. Ex. 1 at 3.  R4’s undisputed account that R9 struck him repeatedly and even after R4 had fallen to the floor is unrebutted by facility staff.  Further, R4 

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recalled that because he was hurt, he had to sit on the floor for a while after being hit.  P. Ex. 1 at 17.  Had staff closely monitored the dining room as Petitioner maintains, a staff member would surely have been aware of this altercation. 

Petitioner maintains that in accordance with its Abuse Prohibition Policy, the facility took prompt remedial action after R4 reported the incident to a nurse on April 27, 2020.  P. Post-Hearing Br. at 7; P. Ex. 1 at 3, 5.  R9 was immediately placed on 1:1 supervision and was discharged from the facility on April 27, 2020, with family.  P. Ex. 1 at 3, 5.  The overall evidence supports Petitioner’s assertion of prompt remedial action once the facility became aware of the incident.  However, R9’s previous aggressive behavior was known to the facility and R9’s aggression toward R4 occurred without intervention by the staff.  In determining whether a facility failed to protect a resident’s right to be free from abuse when another resident behaved harmfully, the Board has looked to 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).  Thus, the facility did not follow its abuse prevention policy and it was not in substantial compliance with 42 C.F.R. § 483.12(a)(1). 

The incident involving Resident # 10 (R10)

At the time of the incident in issue, Resident # 10 (R10) was an 80-year-old female who required extensive assistance with toileting.  CMS Ex. 7 at 1, 8; Joint Stipulation at 2.  R10 had a BIMS score of 15, indicating that she did not have cognitive impairment.  CMS Ex. 7 at 3; Joint Stipulation at 2.  On November 15, 2020, CNA # 16 (CNA 16) was assigned to R10’s room.  Several times over the course of that day, CNA 16 answered R10’s call light because R10 experienced diarrhea.  R10 reported to the Director of Nursing (DON) on Monday, November 16, 2020, that when CNA 16 answered R10’s call light on November 15, 2020, she stated, “I guess you need your butt wiped again.”  P. Ex. 2 at 5.  In an interview with Surveyor Walters, R10 told him that she had more bowel movements after the CNA’s comment; however, after the incident, she waited as long as she could before again pushing the call light for assistance, which she estimated as approximately 10 minutes.  CMS Ex. 9 at 6.  She stated that she was afraid that the CNA would return.  When another CNA answered the call light, R10 requested to see a nurse.  When a nurse manager responded, R10 reported the incident, and the nurse manager told R10 that she would not have to deal with it.  Id.  

R10 reported that she felt humiliated and shameful as though she had done something wrong.  She also stated that after reporting the incident, she was “petrified” that the CNA was going to come back and hurt her.  CMS Ex. 9 at 6. 

In a sworn declaration dated December 25, 2021, Petitioner’s Administrator, Ms. Flowers, testified that when she interviewed the CNA, the CNA acknowledged that while she had used the word “again” when she responded to R10’s call light, she had done so 

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“purely in a joking manner.”  P. Ex. 4 at 2.  The Administrator also testified that she interviewed other staff members, and no one reported having heard CNA 16 being verbally rude, disrespectful, or abusive toward R10 or any other facility residents.  Id. at 3.  Petitioner argues:  “Given the context of the dialogue between CNA # 16 and R # 10, it is reasonably clear the CNA’s comments were light-hearted in nature, not verbally or mentally abusive and did not cause any harm to R # 10.”  P. Post-Hearing Br. at 10. 

I note, however, that in her declaration, which was given after the survey and after Petitioner filed its request for a hearing, Administrator Flowers does not identify the date on which she interviewed CNA 16 or when she spoke with other staff members about the incident.  P. Ex. 4.  I find there is ambiguity in her statements and questionable timing as to when exactly she conducted her investigation.  When Administrator Flowers submitted a Provider Investigation Report concerning the November 15, 2020 incident to the Texas Department of Aging and Disability Services, she included an undated statement concerning her interview with R10.  While the statement purports to include R10’s description of the incident, it does not identify the date when R10 was interviewed or indicate that R10’s described report was given directly to Administrator Flowers.  P. Ex. 2 at 21.  However, the investigative report contains a statement by the facility’s Director of Social Services confirming that he interviewed R10 on November 16, 2020, and reported R10’s statement to the Administrator.  Id. at 22. 

Discussion related to the incident involving R10

Petitioner’s arguments are unpersuasive.  While Petitioner depicts the CNA’s comment as lighthearted and non-abusive, I also note that a Disciplinary Action Record dated November 16, 2020, indicates Petitioner acted against the CNA.  The document includes a statement that “resident stated several occurrences of rude disrespectful verbal interactions” with the CNA “resulting in anxiety/reluctance to ask for necessary care, violation of infection control policy, delayed/incomplete responses” from the CNA “regarding care/tasks.”  The CNA was suspended pending the outcome of the investigation.  P. Ex. 2 at 20. 

Another Disciplinary Action Record dated November 19, 2020, reflects that the CNA received a verbal warning.  The document states that the “resident verbalized feelings of anxiety regarding [the CNA] providing care for her and perception that [the CNA] was brusque and rude verbally.”  P. Ex. 2 at 19.⁶ 

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In its Pre-Hearing and Post Hearing Briefs, Petitioner argues that when the Administrator, Ms. Flowers, interviewed R10, R10 stated that she did not feel abused and that the CNA “could have been a little nicer.”  P. Br. at 6; P. Post-Hearing Br. at 9; P. Ex. 2 at 21.  It is significant that the only documentation offered by Petitioner to show Ms. Flowers’ interview with R10 relates to an interview during or after the survey.  In the Administrator’s undated statement that was offered as documentation for the interview, R10 is described as saying that the surveyor kept asking the same question in different ways and that R10 had told him that she was not abused.  R10 had also allegedly stated that she asked the Administrator if she had to speak with the surveyor again because he had upset her so much.  P. Ex. 2 at 21. 

I am not persuaded by the facility’s attempts to diminish its noncompliance by relying on its Administrator’s interview with R10, which took place during the survey.  In fact, while Petitioner asserts that it was responsive to R10’s concerns, there is no evidence that Administrator Flowers spoke with R10 about the incident until the time of the survey.  It is not surprising that when R10 was interviewed by the Administrator of the facility, a facility upon which R10 depends for her daily care and well-being, she may have described the incident in a light more favorable to the facility.  There is no dispute that R10 has no cognitive deficits.  Aligning herself with the facility where she continued to need care, rather than with the surveyor, would have been reasonable and self-protective.  Nevertheless, there is no dispute that the CNA acknowledges that she made the comment “again,” and the facility’s initial documentation of the incident documents that the incident resulted in R10’s anxiety and reluctance to ask for necessary care. 

Petitioner asserts that based on the content of the conversation as relayed by CNA 16, the incident does not rise to the level of “abuse” as defined under 42 C.F.R. § 488.301.  Further, Petitioner contends that R10 was not subjected to any actual or threatened harm by the CNA.  P. Post-Hearing Br. at 11.  While it is apparent that the CNA’s response to R10 constituted verbal abuse, I also note that the Board has held that “‘CMS is not required to establish, and the ALJ is not required to find, that actual abuse occurred.’”  Golden Living Ctr. – Trussville, DAB No. 2937 at 13 (2019) (quoting Holy Cross Vill. at Notre Dame, Inc., DAB No. 2291 at 7 (2009)).  Proof that a deficiency created a “potential” to cause more than minimal harm is enough to find a facility out of substantial compliance.  Lakeport Skilled Nursing Ctr., DAB No. 2435 at 5 (2012).  The facility’s records demonstrate the potential to cause more than minimal harm.  The facility’s Disciplinary Action Record documenting the CNA’s suspension pending the outcome of the investigation noted that the incident resulted in the resident’s anxiety and the reluctance to ask for necessary care.  P. Ex. 2 at 20.  Clearly, such documentation reflects a potential to cause abuse as well as actual mental abuse.  Furthermore, a CNA’s verbal response that is “demeaning” to a resident’s call for help for toileting constitutes verbal abuse and is prohibited by 42 C.F.R. § 483.12.  Lifehouse of Riverside Healthcare Ctr., 

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DAB No. 2774 at 12 (2017).⁷  In this instance R10 voiced not only fearfulness, but also a feeling of humiliation and shame.  

The Administrator testified that when she interviewed CNA 16, the CNA described R10 as angry and frustrated.  P. Ex. 4 at 2.  Petitioner maintains that based on the CNA’s account of the incident, the source of R10’s anger, shame, or humiliation was “directly and solely” due to R10’s experiencing several bowel movements with diarrhea.  P. Post-Hearing Br. at 10.  Petitioner further asserts there is “no reasonable causal link” between any of the CNA’s communications with R10 and any anger, shame or humiliation experienced or relayed by R10.⁸ Id.  While it is understandable that the frequent bowel movements and diarrhea caused distress for this resident, R10 clearly attributed the shame and humiliation to her interaction with the CNA.  CMS Ex. 8 at 5.  Contrary to Petitioner’s argument, it is apparent that the CNA’s undenied comment was a contributing factor to this resident’s emotional state. 

Thus, the CNA’s statement to R10 was verbal abuse, which constituted substantial noncompliance with 42 C.F.R. § 483.12(a)(1). 

1. B. There is a basis for the imposition of a CMP and the amount of the CMP imposed by CMS is reasonable.

In this case, CMS imposed a per-instance CMP of $10,650 for Petitioner’s failure to substantially comply with 42 C.F.R. § 483.12(a)(1).  As CMS may impose a per-instance CMP in the range of $2,233-$22,320, CMS seeks an amount that is in the mid-range for a per-instance CMP.  45 C.F.R. § 102.3; 85 Fed. Reg. 2869, 2880 (Jan. 17, 2020).  Petitioner maintains that the imposed CMP is unreasonable and excessive.  P. Post-Hearing Br. at 12.  Furthermore, Petitioner asserts that it substantially complied with 42 C.F.R.  § 483.12, and thus no civil penalties should be assessed against the facility.  P. Br. at 8; P. Post-Hearing Br. at 12.  

In assessing the amount of the CMP, I must examine whether a CMP is reasonable by applying the factors listed in 42 C.F.R. § 488.438(f):  1) the facility’s history of

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 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.  The absence of culpability is not a mitigating factor.  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.  

Overall, I must consider whether the evidence supports a finding that the amount of the CMP is at a level reasonably related to an effort to produce corrective action by a provider with the kind of deficiencies found and considering the above factors.  I am neither bound to defer to CMS’s factual assertions, nor free to make a wholly independent choice of remedies without regard to CMS’s discretion.  See, e.g., Barn Hill Care Ctr., DAB No. 1848 at 21 (2002); Cmty. Nursing Home, DAB No. 1807 at 22 (2002); Emerald Oaks, DAB No. 1800 at 9 (2001); CarePlex of Silver Spring, DAB No. 1683 at 14-16 (1999).  

CMS asserts that the facility has a history of noncompliance, including recent noncompliance cycles and previous deficiencies related to 42 C.F.R. 483.12(a), within the last five years from the survey.  CMS Post-Hearing Br. at 17; CMS Ex. 11.  Petitioner, however, argues that it does not have any relevant history of noncompliance with respect to F600 and 42 C.F.R. § 483.12(a).  Petitioner submits the CMS’s Health Inspection Summary Report that is published through the Medicare.gov website to show that the facility has not been cited with any survey deficiencies under 42 C.F.R. § 483.12, other than at the survey at issue, over the past five years.  P. Br. at 10; P. Post-Hearing Br. at 13; P. Ex. 3.  I note that the Health Inspection Summary Report does not appear to cover the past five years from the date of the May 2021 survey, as it doesn’t reference any surveys from 2016.  Furthermore, Petitioner is incorrect in stating that it has not been cited under 42 C.F.R. § 483.12 over the past five years since the survey.  Petitioner was cited under Tag F223 (the older version of Tag F600) in June 2017.⁹  CMS Ex. 11 at 5. 

I find that the overall evidence supports a finding that the amount of the CMP is reasonable.  Petitioner maintains that the evidence in this case does not reasonably demonstrate that the facility has a significant degree of culpability with respect to the alleged violations.  Specifically, Petitioner contends that the cited deficiency in this case involves alleged abuse involving two residents and it is isolated in nature and does not involve any allegations of a pattern of or widespread deficient practices.  P. Br. at 10-11; P. Post-Hearing Br. at 14.  Thus, Petitioner argues that the facility’s level of culpability is minimal and essentially involves the unforeseeable actions of one resident and a CNA’s 

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utterance of the word “again,” a word that Petitioner argues is neutral and unoffensive.  P. Br. at 11; P. Post-Hearing Br. at 14.  

I find Petitioner’s argument without merit.  As discussed above, there is no dispute that R9 attacked and injured R4 with no apparent intervention from facility staff who were supposed to be present and monitoring the dining room.  While Petitioner contends that the incident was unforeseen, Petitioner’s records indicate otherwise.  Petitioner’s records reflect R9’s history of aggression that was documented.  With respect to the incident involving R10, the CNA does not deny that she made the offending statement to R10.  Although the CNA represented the statement as only a joke, Petitioner’s records document R10’s description of the interaction as rude and disrespectful and resulting in R10’s anxiety and reluctance to ask for necessary care.  P. Ex. 2 at 20. 

I also note that Petitioner has not raised its financial condition as a factor in analyzing the reasonableness of the CMP.  

Taking all relevant factors into consideration, I find that the CMP is reasonable.  

III. Conclusion

For the reasons set forth above, I affirm CMS’s decision and find that the evidence supports a finding that the facility was not in substantial compliance with 42 C.F.R. § 483.12(a)(1) and that the $10,650 per-instance CMP is reasonable.  

Endnotes

¹  The contractor/survey agency cited the facility with noncompliance with 42 C.F.R. §§ 483.12(a)(1) (Tag F600); 483.12 (Tag F602); 483.12(b)(1)-(3) (Tag F607); 483.12(c)(2)-(4) (Tag F610); 483.21(b)(2)(i)-(iii) (Tag F657); 483.70 (Tag F835); and 483.75(a)(2)(h)(i) (Tag F865).  

²  The scope and severity levels are designated by letters A through L.  A scope and severity level of “G” indicates a deficiency for an isolated incident that causes actual harm but not immediate jeopardy. 

³  While CMS initially objected to Petitioner’s Exs. 1, 2, and 4, the objections were later withdrawn prior to the hearing. 

⁴  The day before the hearing, Petitioner’s counsel advised my office that one of its witnesses, Amanda Lankford, had passed away, and therefore it would only be presenting one witness, Ms. Flowers.  At the hearing, CMS objected to the admission of P. Ex. 5, Ms. Lankford’s declaration, and Petitioner took issue with the objection.  Given that CMS would not have the opportunity to cross-examine Ms. Lankford, I sustained CMS’s objection and rejected P. Ex. 5.  Transcript (Tr.) at 10-11. 

⁵  My findings of fact and conclusions of law appear as headings in bold italic type.  

⁶  Administrator Flowers also confirmed to the surveyor that CNA 16 was allowed to return to work because R10’s allegations were unfounded.  This statement and the facility’s action further demonstrate that R10’s report of abuse was not fully considered.  CMS Ex. 3 at 14.  

⁷  The Board’s analysis in Lifehouse examined the abuse prohibition provisions of 42 C.F.R. § 483.13.  In 2016, CMS issued a final rule that redesignated and revised the provisions of 42 C.F.R. Part 483.  See Final Rule, Medicare and Medicaid Programs; Reform of Requirements for Long-Term Care Facilities, 81 Fed. Reg. 68,688 (Oct. 4, 2016).  Following that revision, 42 C.F.R. § 483.13 was redesignated as 42 C.F.R. § 483.12.  I find the Board’s reasoning in Lifehouse remains applicable to my analysis of Petitioner’s noncompliance under the current, redesignated 42 C.F.R. § 483.12. 

⁸  Petitioner references R16 rather than R10 on pages 10 and 11 of its post-hearing brief.  I have interpreted this as a typographical error and that Petitioner intends to refer to R10.  

⁹  Subsequent to CMS’s revision of the Part 483 regulations, CMS revised and reorganized the associated F-Tag descriptors in Appendix PP to the State Operations Manual (CMS Pub. 100-07), effective November 28, 2017.