New Grove Manor, DAB CR6596 (2025)

DECISION

New Grove Manor (hereinafter referred to as “New Grove,” “Petitioner,” or “the facility”) challenges the determination by the Centers for Medicare & Medicaid Services (CMS) that it was not in substantial compliance with Medicare participation requirements.  Petitioner also challenges the scope and severity of the alleged noncompliance as well as the imposition of a $22,320 Per-Instance Civil Monetary Penalty (PICMP).

As explained below, the record supports CMS’s finding of noncompliance and the  immediate jeopardy determination is not reviewable.  Based on the evidence presented, I find that there is a basis for the imposition of enforcement remedies and the PICMP amount is reasonable.

I.  Background and Procedural History

Petitioner is a skilled nursing facility (SNF) located in East Orange, New Jersey that participates in the Medicare and Medicaid programs.  CMS Exhibit (Ex.) 1 at 1.  On December 15 and 18, 2020, a complaint survey was conducted at Petitioner’s facility by

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the New Jersey State Department of Health (state agency) in response to a facility-reported incident of potential resident-to-resident sexual abuse.  Id.  As a result of the survey, the state agency surveyors found, and CMS later agreed, that the facility was not in substantial compliance with 42 C.F.R. § 483.12(a)(1) (Tag F600) – Free from Abuse and Neglect, scope and severity (s/s) level J (an isolated instance of noncompliance that constituted immediate jeopardy to resident health or safety).  CMS Exs. 1, 3.

By letter dated July 7, 2021, CMS notified Petitioner of the noncompliance determination and resulting remedies.  CMS Ex. 3 at 1-2.  CMS explained that the facility had returned to substantial compliance as of January 15, 2021, and that a $22,320 PICMP was imposed for the immediate jeopardy noncompliance that occurred on December 15, 2020.  Id.

Petitioner requested a hearing before an administrative law judge (ALJ) on August 27, 2021.  The case was assigned to me for hearing and decision under Docket No. C‑21‑1045.

On December 6, 2021, CMS timely filed a prehearing exchange that included a prehearing brief (CMS Pre-hrg. Br.), Motion for Summary Judgment and supporting brief, and 16 proposed exhibits (CMS Exs. 1-16).  CMS identified one witness that Petitioner later requested to cross-examine.  Petitioner filed a prehearing exchange that included a combined prehearing brief and opposition to CMS’s motion for summary judgment (P. Pre-hrg. Br.), as well as 19 proposed exhibits (P. Exs. 1-19).  Petitioner identified three witnesses.  However, CMS did not request to cross-examine Petitioner’s witnesses.

On June 15, 2023, I issued a ruling denying CMS’s Motion for Summary Judgment and scheduled a prehearing conference.  The prehearing conference was held on August 1, 2023, and the parties agreed to a hearing date.

The hearing was held on November 14, 2023, for the sole purpose of allowing Petitioner to cross-examine CMS’s sole witness, Carolyn Myslinski, RN.  On January 5, 2024, a Notice of Receipt of Transcript and Post-Hearing Briefing Schedule was issued.  Thereafter, each party timely filed post-hearing briefs (CMS Br.; P. Br.).

II.   Admission of Exhibits and Decision

In the absence of objections, CMS Exhibits 1-16 and Petitioner Exhibits 1-19 were admitted into evidence.  Transcript (Tr.) at 4; Ruling Denying Motion For Summary Judgment and Order Scheduling Pre-hearing Conference, dated June 15, 2023.

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The record is closed, and this decision will be issued based on the parties’ briefs, exhibits, and the transcript of the hearing testimony.  Standing Prehearing Order ¶ 11; Civil Remedies Division Procedures § 22(a).

III.   Issues

The issues are as follows: 

1. Whether New Grove was in substantial compliance with 42 C.F.R. § 483.12(a)(1) (Tag F600); and
2. If New Grove was not in substantial compliance, whether a $22,320 PICMP is reasonable.

IV.   Jurisdiction

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

V.    Legal Authorities

The Act sets requirements for SNFs to participate in the Medicare program and authorizes the Secretary of the U.S. Department of Health & Human Services to promulgate regulations implementing those statutory provisions.  Act § 1819 (42 U.S.C. § 1395i-3).  Those regulations are found at 42 C.F.R. parts 483 and 488.

To participate in the Medicare program, a SNF must maintain substantial compliance with program requirements.  42 U.S.C. § 1395i-3(a)(3), (b)-(d); 42 C.F.R. pt. 483, subpt. B.  When a SNF fails to meet a statutory or regulatory participation requirement, then the SNF has a “deficiency.”  42 C.F.R. § 488.301; see 42 U.S.C. § 1395i-3(h)(1).  “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.”  42 C.F.R. § 488.301; see also 42 U.S.C. § 1395i-3(h)(3).  To maintain “substantial compliance,” a SNF’s deficiency may “pose no greater risk to resident health or safety than the potential for causing minimal harm.”  42 C.F.R. § 488.301.

When CMS selects an enforcement remedy to impose on a SNF, it determines the scope (i.e., the number of residents affected or potentially affected) and severity (i.e., the degree of harm or potential harm) for each deficiency.  See 42 C.F.R. § 488.404(a)-(b); see also 42 U.S.C. § 1395i-3(h)(2)(B)(ii)(III)(bb).

The regulations specify the enforcement remedies that CMS may impose if a facility is not in substantial compliance with Medicare requirements.  42 C.F.R. § 488.406.  Among

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other remedies, CMS is authorized to impose a per-day CMP for the number of days a facility is not in substantial compliance or a PICMP for each instance of the facility’s noncompliance.  42 C.F.R. § 488.430(a).  The regulations specify that a CMP that is imposed against a facility on a per-instance basis will fall into a single range of penalties.  42 C.F.R. §§ 488.408; 488.438.  The range is from $1,000 per instance to $10,000 per instance, adjusted for inflation under 45 C.F.R. Part 102.  42 C.F.R. § 488.438(a)(2).  The adjusted amounts applicable in this case are $2,233 per instance to $22,320 per instance.  45 C.F.R. §§ 102.2, 102.3.

If CMS imposes a remedy based on a noncompliance determination, then the facility may request a hearing before an ALJ to determine whether there was a basis for the deficiency findings that led to the imposition of the remedy and whether the CMP imposed was reasonable.  Act §§ 1128A(c)(2) (42 C.F.R. § 1320a-7a(c)(2)), 1819(h)(2)(B)(ii) (42 U.S.C. § 1395i-3(h)(2)(B)(ii)); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13).  However, the facility may not appeal CMS’s choice of remedies.  42 C.F.R. § 488.408(g)(2).

CMS must make a prima facie showing that the facility failed to substantially comply with federal participation requirements.  If this occurs, the facility must prove substantial compliance by a preponderance of the evidence in order to rebut CMS’s showing and to prevail.  Hillman Rehab. Ctr., DAB No. 1611 at 8 (1997), aff’d sub nom. Hillman Rehab. Ctr. v. U.S. Dep’t of Health & Human Servs., No. Civ. A 98-3789 (GEB), 1999 WL 34813783 (D.N.J. May 13, 1999); Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004), aff’d sub nom. Batavia Nursing & Convalescent Ctr. v. Thompson, 129 F. App’x 181 (6th Cir. 2005); Emerald Oaks, DAB No. 1800 (2001); Cross Creek Health Care Ctr., DAB No. 1665 (1998).

VI.   Findings of Fact

1. Petitioner is a dually participating skilled nursing facility.  CMS Ex. 1.
2. At the time of the survey at issue, Petitioner had a policy titled “Abuse Prevention Program” (abuse policy), which stated in pertinent part that the facility will “[d]evelop and implement policies and procedures to aid our facility in preventing abuse, neglect, or mistreatment of our residents.”  CMS Ex. 12 at 1.  The facility also had a policy titled “Safety and Supervision of Residents” (safety policy), which states in pertinent part that “[m]onitoring the effectiveness of interventions shall include . . . [e]nsuring that interventions are implemented correctly and consistently.”  Id. at 4.
3. Resident # 1 is a 55-year-old male who was admitted to New Grove on April 11, 2019, with several diagnoses, including, but not limited to:  altered mental status, hyperlipidemia, vascular dementia without behavioral disturbance, aphasia, and

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type 2 diabetes.  CMS Ex. 8 at 1.  Resident # 1 uses a wheelchair for mobility.  P. Ex. 1.

4. On December 7, 2020, Resident # 1 was found having sexual intercourse with Resident # 2, an 86-year-old cognitively impaired female resident.  Both Resident # 1 and Resident # 2 independently stated that the encounter was consensual.  As a result of the sexual encounter, both residents were placed on 30-minute documented checks for one week beginning December 8 and ending December 14.  CMS Ex. 4 at 13.  In addition, Resident # 1 was relocated to a different floor, and his psychotropic medications were adjusted.  Petitioner self-reported the incident to the state agency.  CMS Ex. 4 at 5-9; CMS Ex. 15 at 2-4.  Prior to this incident, Resident # 1 did not have a history of exhibiting sexual behavior in the facility.
5. On December 15, 2020 at approximately 8:40 a.m., a housekeeper found Resident # 1 in the room of Resident # 3, a 66-year-old, severely cognitively impaired, non-verbal female resident, lifting her bedcovers and nightgown.  The housekeeper immediately alerted the Unit Manager.  CMS Ex. 5 at 2-12; P. Ex. 10 at 1-2; P. Ex. 11 at 1-2; P. Br. at 16.
6. In response to the second incident, on December 15, 2020, Petitioner immediately placed Resident # 1 on 1:1 monitoring with CNA 1.  CMS Ex. 5 at 11; P. Ex. 10 at 2; P. Ex. 11 at 2.  Resident # 1’s care plan was updated to reflect the 1:1 monitoring.  Michael Schlegel, 4^th Floor Unit Manager, advised CNA 1 to remain with Resident # 1 at all times.  P. Ex. 18.  In addition, CNA 1 was provided an in-service on 1:1 monitoring for Resident # 1, at which she was advised:

that she must have eyes on [Resident 1] at all times.  She cannot allow [Resident 1] to leave her line of sight; [Resident 1] must be visible to her at all times.  If she is to take a break or step away to use the restroom, she must find someone who can provide the 1:1 supervision in her absence.

P. Ex. 19; see also P. Ex. 10 at 3-4.

7. Around 10:00 a.m., approximately 90 minutes after the 1:1 monitoring was initiated, CNA 1 took a 15-minute break to eat breakfast in the dayroom.  CNA 1 did not request coverage for the break, so Resident # 1 was left unattended.
8. At approximately 10:15 a.m., the state surveyor and a unit manager observed Resident # 1 alone in his room with no visible staff in the vicinity.  CNA 1 emerged from the dining room as the surveyor and unit manager left Resident # 1’s room.  Video surveillance shows that Resident # 1 was unattended

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for seven minutes, during which time he did not leave his room.  CMS Ex. 1 at 1; Tr. at 15‑16; P. Ex. 10 at 2-3; P. Ex. 11 at 3.

9. CNA 1 maintains that while in the dining room, she “frequently” checked to ensure that Resident # 1 was still in his room.  When questioned about her absence, CNA 1 reported, “I went to take my 15-minute break.  My breakfast came.  I was hungry.  It was 5 minutes that I was gone from him, 5 minutes.  I was told to be there but not on top of him.”  CNA 1 acknowledged that she did not attempt to have another staff member cover for her during the break.  CMS Ex. 1 at 9-10.  CNA 1 claimed to be able to see the hallway and Resident # 1’s door from where she was sitting in the break room.  P. Ex. 18.
10. After the incident, Michael Schlegel, 4th Floor Unit Manager, counseled CNA 1 on the proper protocol for requesting coverage during a break.  P. Ex. 18.
11. On December 15 and 18, 2020, surveyors from the state agency conducted a complaint survey at Petitioner’s facility.  CMS Exs. 1, 3.  The state agency found Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(a)(1) (Tag F600) at the immediate jeopardy level, describing the immediate jeopardy as past noncompliance for failing to provide 1:1 monitoring of Resident 1 on December 15, 2020.  CMS Exs. 1, 3.
12. Resident # 1 was transferred to an all-male facility on December 18, 2020.  CMS Ex. 1 at 12-13.
13. By letter dated July 7, 2021, CMS notified Petitioner that the facility was not in  substantial compliance with 42 C.F.R. § 483.12(a)(1) at the immediate jeopardy level.  CMS informed Petitioner that the immediate jeopardy was removed on December 18, 2020, and the facility returned to substantial compliance on January 15, 2021.  As a result of the noncompliance, CMS imposed a PICMP of $22,320 for the incident concerning 1:1 monitoring of Resident # 1.  CMS Ex. 3.
14. As part of the corrective action taken by Petitioner, CNA 1 was educated about the responsibilities of 1:1 supervision and in-serviced about the requirement to ensure that the resident would not be left unattended for any period of time.  CMS Ex. 2 at 3.

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VII.  Analysis and Conclusions of Law1

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

Under the Act and the regulations, residents have the right to be free from abuse, neglect, misappropriation of resident property, and exploitation.  42 C.F.R. § 483.12.  Abuse, as defined by 42 C.F.R. §§ 483.5 and 488.301, is the “willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish,” including the deliberate deprivation by an individual, including a caretaker, of goods or services necessary to attain or maintain a resident’s physical, mental, and psychosocial well-being, which results in physical harm, pain or mental anguish.  “Abuse” includes resident-to-resident abuse.  State Operations Manual (“SOM”), CMS Pub. 100-07, Appendix PP – Guidance to Surveyors for Long Term Care Facilities at 70-72 (Rev. 173, eff. Nov. 22, 2017).  (The latest revision of Appendix PP, issued on Aug 8, 2024, is available at https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/GuidanceforLawsAndRegulations/Downloads/Appendix-PP-State-Operations-Manual.pdf.).  Neglect, as defined by 42 C.F.R. §§ 483.5 and 488.301, is the “failure of the facility, its employees or service providers to provide goods and services to a resident that are necessary to avoid physical harm, pain, mental anguish, or emotional distress.” 

Here, CMS argues that New Grove failed to ensure that Resident # 1, “who had a recent sexual encounter with a cognitively impaired resident (Resident # 2) . . . , was consistently monitored to protect, and prevent against further abuse of other cognitively impaired residents.”  CMS Br. at 2.  It is undisputed that after Resident # 1’s sexual contact with the first resident, Petitioner took immediate steps to address Resident # 1’s behavior by changing his medication, moving him to a different floor and placing him on 30-minute checks.  CMS Ex. 4 at 13.  Despite the measures that were implemented, a few days later, on December 15, 2020, Resident # 1 was able to wheel himself into the room of Resident # 3, a severely cognitively impaired, non-verbal resident, and lift her covers and nightgown.  Again, it is undisputed that Petitioner took immediate action by placing Resident # 1 on 1:1 monitoring right after the second incident occurred.  The CNA that was assigned to Resident # 1 was briefed on what was required of 1:1 monitoring and was told to “have eyes on [Resident 1] at all times.”  P. Ex. 19.  Though Resident #1 did not have a history of sexual behavior in the facility, he had two concerning sexual-based incidents within eight days.  The 1:1 monitoring was in place to ensure that other residents were not at risk of being harmed due to Resident # 1’s escalating sexual misconduct.  Due to Resident # 1’s behavior, the 1:1 monitoring was critical for the safety and protection of other residents.  Despite being trained on 1:1 monitoring, and approximately 90 minutes after the 1:1 monitoring was implemented, CNA 1 failed to

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follow the proper protocols by leaving Resident # 1 unattended while she took a break.  P. Pre-hrg Br. at 17.

Petitioner argues that, while in the dining room CNA 1 was able to observe the hallway, which would have allowed her to see if Resident 1 left his room, and that is what was required of 1:1 monitoring.  P. Br. at 17-18.  However, this contradicts the evidence in the record.  Two of Petitioner’s employees signed a document on December 15, 2020, stating that CNA 1 was advised to have “eyes on the resident at all times” and that if “she took a break or stepped away to find coverage, then she must find someone who can provide the 1:1 supervision in her absence.”  CMS Ex. 19.  Additionally, in an “Unusual Occurrence Statement,” CNA 1 wrote:  “I went into the dayroom to eat even though I was in the dayroom I was frequently checking to see if he [Resident 1] was in his room.”  CMS Ex. 17.  Additionally, CNA 1 stated, “when I was sitting down eating, I was still able to see if [Resident 1] left his room.”  CMS Ex. 17.  This indicates that CNA 1 was watching the door to see if Resident 1 left the room, not that she had eyes on him at all times as expected.  Petitioner also argues that Resident 1 was dependent on his wheelchair, had hemiparesis, and could not ambulate.  P. Br. at 19.  Petitioner’s expert witness, registered nurse and advance nurse practitioner, Gail Rader, correctly notes that Petitioner took the right steps to immediately investigate and report the incidents between Residents # 1 and # 2.  P. Ex. 9 at 21.  However, Nurse Rader also states that although CNA 1 should have remained with [Resident 1], the incident was not indicative of immediate jeopardy.  Pr. Ex. 9 at 21.  Though I find Nurse Rader to be credible, I disagree with her statement regarding the presence of immediate jeopardy.  Despite his diagnoses and use of a wheelchair, Resident # 1 was able to wheel himself into the room of a non-verbal resident and lift her blanket and gown.  Therefore, 1:1 monitoring was necessary and critical after this incident.  Though Petitioner took immediate action after the incidents involving Residents # 2 and # 3, the failure of CNA 1 to provide close monitoring of Resident # 1, only hours after the second incident occurred, is quite alarming.

Petitioner argues that the surveyor’s testimony is not credible because she testified that she was unaware of whether staff members were permitted to eat in residents’ rooms.  P. Br. at 18.  However, that issue is not central to the issue at hand, nor does it call into question the surveyor’s credibility.  I find Surveyor Myslinski’s testimony to be credible and note that most of her observations are supported by the evidence in the record.  The facility’s policy on whether staff members are permitted to eat in residents’ rooms is irrelevant, particularly since CNA 1 was instructed to secure coverage for Resident # 1’s 1:1 monitoring prior to taking a break.  Petitioner also argues that CNA 1 never told the surveyor that she was “seated” in the breakroom.  P. Br. at 19.  Although the CNA may not have directly told the surveyor that she was “seated,” she admitted to being seated in the Unusual Occurrence Statement.  P. Ex. 17.

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Petitioner makes several arguments regarding consent and the sexual conduct that occurred between Residents # 1 and # 2.  Despite Petitioner’s arguments, I need not determine whether that incident was consensual.  The facility recognized that the incident was unusual and deemed it appropriate to monitor both residents involved and to adjust Resident # 1’s medications.  Soon after that monitoring ended, Resident # 1 had yet another encounter that was undoubtedly nonconsensual.  This is why the facility found it necessary to implement 1:1 monitoring of Resident # 1.  Due to the actions of the CNA, 1:1 monitoring was not properly implemented.

Because the facility is required to develop and implement policies and procedures that prohibit and prevent abuse, it is axiomatic that failure to follow said policies and procedures are grounds for a finding of noncompliance.  42 C.F.R. § 483.12(b).  CNA 1 did not follow the facility’s 1:1 monitoring protocol that was put in place to protect other residents from abuse.  Therefore, the evidence shows that CMS correctly determined that Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(a)(1) (Tag F600) based on CNA 1’s failure to properly carry out 1:1 monitoring of Resident # 1 on December 15, 2020.

2. CMS’s finding of immediate jeopardy for Petitioner’s substantial noncompliance with 42 C.F.R. § 483.12 is not reviewable.  

A facility may only challenge CMS’s determination as to the scope and severity of noncompliance (which includes a finding of immediate jeopardy) if a successful challenge would affect:  (1) the range of the CMP that may be imposed; or (2) a finding of substandard quality of care that results in the loss of approval of a facility’s nurse aide training program.  42 C.F.R. § 498.3(b)(14), (d)(10)(i)-(ii).  In the present case, the remedy selected is a PICMP.  As there is only a single range for PICMPs, regardless of scope and severity, the immediate jeopardy finding by CMS is not reviewable.

3. The $22,320 PICMP amount imposed is reasonable.

In determining whether the CMP amount is reasonable, I must apply the following factors which are listed in 42 C.F.R. § 488.438(f):  1) the facility’s history of noncompliance, including repeated deficiencies; 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)(4).  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).

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The regulations leave the choice of remedy to CMS, and the amount of the remedy to CMS and the ALJ, requiring only that the regulatory factors at 42 C.F.R. §§ 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).  The Board has explained that “there is a presumption that CMS has considered the regulatory factors in setting the amount of the CMP and that those factors support the CMP amount imposed by CMS.  Unless a facility contends that a particular regulatory factor does not support that CMP amount, the ALJ must sustain it.”  Coquina Ctr., DAB No. 1860 at 32 (2002) (emphasis added).

Here, CMS imposed a PICMP of $22,320 for the noncompliance that occurred on December 15, 2020, which is the maximum PICMP amount for the relevant time.  CMS Ex. 3 at 2; 45 C.F.R. §§ 102.2, 102.3.  In arguing that the PICMP was reasonable, CMS points solely to the facility’s culpability and the immediate jeopardy finding that resulted from the noncompliance.  CMS Pre-hrg. Br. at 15; CMS Br. at 9-10.

In response, Petitioner did not mention the regulatory factors.  Instead, it merely argues that “the CMP was not reasonable when considering the evidence presented and there was no potential harm to any other residents at the facility.”  P. Br. at 24.  Petitioner further argues that there was no noncompliance and therefore there should be no CMP.  Id.  Accordingly, it appears Petitioner is solely arguing a lack of culpability.  However, as set forth above, lack of culpability is not a mitigating factor.  42 C.F.R. § 488.438(f)(4).  Because Petitioner does not contend that a particular regulatory factor does not support the PICMP amount, I must sustain it.  Coquina Ctr., DAB No. 1860 at 32.  The evidence shows that Petitioner failed to properly implement 1:1 supervision to ensure that the facility’s most vulnerable residents were protected.

VIII.  Conclusion

New Grove was not in substantial compliance with the participation requirement at 42 C.F.R. § 483.12(a)(1) (Tag F600).  There is a basis for the imposed remedy and the $22,320 PICMP amount is reasonable.