Terrace Acquisition II, LLC, d/b/a Fordham Nursing and Rehabilitation Center, DAB CR6602 (2025)

DECISION

This case stems from a disturbing incident that occurred at Petitioner’s facility on the morning of June 13, 2022.  The parties largely agree about the facts on the date at issue.  However, the parties disagree about, and this case generally turns on, what took place during a nine-second period between 8:07:14 a.m. and 8:07:23 a.m.  My weighing of the facts and evidence will determine whether the events established substantial noncompliance with the abuse prevention requirement.

The Centers for Medicare & Medicaid Services (CMS) determined that Terrace Acquisition II, LLC, d/b/a Fordham Nursing and Rehabilitation Center (Petitioner or facility), a skilled nursing facility (SNF) participating in the Medicare program, was not in substantial compliance with the Medicare requirement that SNFs ensure that its residents are free from physical or mental abuse.  Petitioner has requested a hearing to dispute this deficiency.

As explained below, I conclude that CMS met its burden to show a prima facie case of resident abuse by a Certified Nursing Assistant (CNA) that was employed by Petitioner and that Petitioner failed to prove, by a preponderance of the evidence, that it was in

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substantial compliance with its obligation to ensure that the resident was not subjected to abuse.  Further, I conclude that CMS’s imposition of a $16,180.00 per-instance civil monetary penalty (CMP) is appropriate under the relevant statutory and regulatory factors for imposing CMPs.

I.      Background and Procedural History

In response to a report of resident abuse, surveyors from the New York Department of Health (state agency) completed a complaint investigation survey of the facility on August 31, 2022.  CMS Ex. 1.  Based on their findings, CMS determined that Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(a)(1) (Tag F600 - Freedom from Abuse and Neglect) cited at scope and severity level G (isolated instance of substantial noncompliance that causes actual harm but does not pose immediate jeopardy to resident health and safety).  CMS Exs. 1, 2.  CMS issued an initial determination imposing on Petitioner a $16,180 per-instance CMP, a two-year ban on the provision of a Nurse Aide Training and Competency Evaluation Program (NATCEP) effective August 31, 2022, through August 30, 2024,1 as well as a mandatory three-month denial of payment for new admissions (DPNA) effective December 1, 2022.2 CMS Ex. 2.

Petitioner timely requested a hearing before an administrative law judge (ALJ) to dispute CMS’s finding of a substantial noncompliance.  In response, the Departmental Appeals Board’s (DAB’s) Civil Remedies Division acknowledged receipt of the hearing request and issued ALJ Bill Thomas’ Standing Prehearing Order, which established deadlines and procedures for prehearing submissions.3

CMS submitted a prehearing exchange that included a prehearing brief as well as 13 proposed exhibits (CMS Exs. 1-13).  CMS offered written direct testimony for one witness, Janice Robinson, RN.  CMS Ex. 11.  Petitioner filed a prehearing exchange that included a prehearing brief as well as 14 proposed exhibits (P. Exs. 1-14).  Petitioner

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offered written direct testimony for Brenda Slater, RN; Boris Lipin, LNHA; and Grahme Fischer, P.E.  P. Exs. 10-12.

Petitioner initially requested to cross-examine Janice Robinson.  See DAB Electronic Filing System (E-File) Doc. No. 25.  Petitioner also sought a subpoena to compel the testimony of Lynn Polasky, a New York State Department of Health surveyor.  See id.  ALJ Thomas denied the request for a subpoena, and Petitioner subsequently withdrew its request to cross-examine Janice Robinson.  See DAB E-File Doc. Nos. 27, 30.

Thus, because the witnesses’ direct testimonies are already in the record, and no witnesses will be cross-examined, an in-person hearing would serve no purpose.  Standing Prehearing Order at ¶¶ 10, 16.  This matter will therefore be decided based on the written record.  HeartFlow, Inc., DAB No. 2781 at 16-17 (2017) (citing Vandalia Park, DAB No. 1940 at 28-29 (2004), aff’d, Vandalia Park v. Leavitt, 157 F. App’x 858 (6th Cir. 2005)).4

II.      Pending Motions and Admission of Exhibits

Petitioner objected to CMS’s Exhibits 1, 2, 4, 6, 7, 9, 10, 11, 12 and 13.
DAB E-File Doc. No. 26 at 1-3.  As explained below, I overrule all objections and admit all the proposed exhibits into the record.

CMS Exhibits 1, 2, 9, 11, 12, and 13 – Objections Overruled

These documents consist of:  CMS Ex. 1, the Statement of Deficiencies (SOD) by the state agency dated August 31, 2022; CMS Ex. 2, a letter to Liana Rutenberg-Diaz, Administrator, Fordham, from Ronell D. Copeland, LTC Branch Manager, Northeast Division of Survey & Certification, CMS, imposing remedies including a CMP dated October 7, 2022; CMS Ex. 9, Surveyor notes of Janice Robinson; CMS. Ex. 11, the Declaration of Janice Robinson; CMS Ex.12, the resume of Janice Robinson; and CMS Ex. 13, hospital records of Resident 2.

Petitioner objected to these documents, in whole or in part, on the basis that they contain hearsay, and to the extent offered for the truth of the matter asserted, should be excluded.  DAB E-File Doc. No. 26 at 1-3.  Petitioner’s claims regarding hearsay evidence, however, are misplaced.  I am permitted to admit and consider hearsay statements in

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these administrative proceedings even if they would be inadmissible under the rules of evidence applicable to court proceedings.  See 42 C.F.R. § 498.61; Florence Park Care Ctr., DAB No. 1931 (2004).  The Board has recognized that hearsay statements “may be accorded appropriate weight, if supported by adequate indicia of reliability . . . .”  Omni Manor Nursing Home, DAB No. 1920 at 16 (2004).  The weight an ALJ accords hearsay is “determined by the degree of reliability, based on relevant indicia of reliability and whether the hearsay is corroborated by other evidence in the record as a whole.”  Id. at 17.  Moreover, I note that Petitioner was provided with the opportunity to cross-examine Janice Robinson but withdrew that request.  See DAB E-File Doc. No. at 30.

Petitioner also objects to Exhibits 1, 9, and 11 on the basis that they contain statements from another individual who began the investigation, Lynn Polasky.  See DAB E-File Doc. No. 26 at 1-2, 4-5.  As I previously noted, hearsay statements are not inadmissible in these proceedings.  Moreover, Petitioner was provided with and sought an opportunity to subpoena Lynn Polasky.  See DAB E-File Doc. No. 25.  However, as noted in ALJ Thomas’ Order, that request was denied, in part, as Petitioner failed to “articulate ‘pertinent facts’ it expects to establish through Ms. Polasky’s testimony and which it could not otherwise establish without a subpoena.”  DAB E-File Doc. No. 25 (citing 42 C.F.R. § 498.58(c)).

Thus, I overrule these objections and admit the documents into the record.

CMS Exhibits 4, 6, 7, and 10 – Objections Overruled

These documents consist of:  CMS Ex. 4, Petitioner’s Accident Report and Investigation Summary for Resident 1 and Resident 2, dated June 13, 2022; CMS Ex. 6, Petitioner’s At Risk for Abuse Care Plan, dated July 8, 2019; CMS Ex. 7, Petitioner’s situation background appearance and request (“SBAR”) Nursing Progress Note, by the Director of Nursing (“DON”), dated June 13, 2022 at 10:00 a.m.; and CMS Ex. 10, Petitioner’s surveillance video recording of the incident.

Petitioner objects to Exhibits 4 and 7 on the basis that they are incomplete.  Petitioner also submits the complete version of each document.  DAB E-File Doc. No. 26 at 2-3; P. Ex. 4; P. Ex. 2 at 15-17.  Petitioner further objects to Exhibit 4 because “it is an unsigned, undated draft, which is not self-authenticating . . . and . . . lacks relevance to any issue properly in this case.”  DAB E-File Doc. No. 26 at 2.  Petitioner objects to Exhibit 6 on relevancy grounds.  Id.  Petitioner objects to Exhibit 10 under Fed R. Evid. 901 on the grounds “that CMS, as the proponent, cannot demonstrate that the recording fairly, accurately and completely represents the scene depicted . . . .”  DAB E-File Doc. No. 26 at 3-4.

In these proceedings, I am to receive into evidence any testimony and documents that are relevant and material.  42 C.F.R. § 498.60(b)(1); see 5 U.S.C. § 556(d).  Further, I may

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receive evidence even though inadmissible under the rules of evidence applicable to court procedure.  42 C.F.R. § 498.61.  I am required to “inquire[] fully into all of the matters at issue” and to admit any documents that are relevant and material.  42 C.F.R. § 498.60(b).  I will fully evaluate the evidence of record in this case when rendering a decision.  Further, I note that Petitioner does not dispute that all of these documents were obtained at its own facility and Petitioner really appears to be objecting to CMS’s interpretation of those documents and not their authenticity.

Thus, I overrule these objections as they go to the weight of the evidence, not their admissibility.

III.      Issues

1) Whether Petitioner was in substantial compliance with the Medicare participation requirements at 42 C.F.R. § 483.12(a)(1).

2) If Petitioner was not in substantial compliance, whether the amount of the CMP imposed on Petitioner is appropriate under the factors in 42 U.S.C. § 1320a-7a(d) and 42 C.F.R. § 488.438(f).

IV.      Jurisdiction

I have jurisdiction to hear and decide this case.  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.      Discussion

1. Applicable Legal Authority

The Social Security Act (Act) sets forth requirements for participation by a SNF in the Medicare program and authorizes the Secretary of Health and Human Services (the Secretary) to promulgate regulations implementing those statutory provisions.  42 U.S.C. § 1395i-3.  The Secretary’s 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 participation requirements.  To be in substantial compliance, a SNF’s deficiencies may “pose no greater risk to resident health or safety than the potential for causing minimal harm.”  42 C.F.R. § 488.301.  A deficiency means a SNF’s “failure to meet a participation requirement specified in the Act or in” the Secretary’s regulations at 42 C.F.R. Part 483, subpart B.  Id.  “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.”  Id.

The Secretary contracts with state agencies to conduct periodic surveys to determine whether SNFs are in substantial compliance.  42 U.S.C. § 1395aa(a); 42 C.F.R. § 488.10.

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Each facility must be surveyed annually, with no more than 15 months elapsing between surveys, and must be surveyed more often, if necessary, to ensure that identified deficiencies are corrected.  Act § 1819(g)(2)(A); 42 C.F.R. §§ 488.20(a), 488.308.  The state agency must also investigate all complaints.  Act § 1819(g)(4).  The Act also authorizes the Secretary to impose enforcement remedies against SNFs that are not in substantial compliance with the program participation requirements.  42 U.S.C. § 1395i‑3(h)(2).

The Secretary has delegated to CMS and the states the authority to impose remedies against a SNF that is not in substantial compliance with federal participation requirements.  42 C.F.R. §§ 488.400, 488.402(b).  The regulations specify the enforcement remedies that CMS may impose, including CMPs.  42 C.F.R. § 488.406(a)(3).  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 March 17, 2022, and for deficiencies that occurred after November 2, 2015, the CMP amounts may range as follows:  $2,400 to $23,989 for per-instance CMPs; $120 to $7,195 per day for less serious noncompliance; or $7,317 to $23,989 per day for more serious noncompliance that poses immediate jeopardy to the health and safety of residents.  45 C.F.R. § 102.3 (2022); 87 Fed. Reg. 15,100, 15,111-15,112 (Mar. 17, 2022); see 42 C.F.R. § 488.438(a) (providing original CMP amounts before statutory inflation adjustments).

If CMS imposes a CMP based on a noncompliance determination, then the facility may request a hearing before an ALJ to challenge the noncompliance finding that leads to the imposition of an enforcement remedy.  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).  However, the facility may not appeal CMS’s choice of remedies.  42 C.F.R. § 488.408(g)(2).

CMS has the burden to produce evidence sufficient to make a prima facie case that Petitioner is out of substantial compliance with participation requirements to establish a basis to impose an enforcement remedy.  See, e.g., Evergreene Nursing Care Ctr., DAB No. 2069 at 7 (2007).  If CMS makes this prima facie showing, then Petitioner bears the ultimate burden of persuasion as to whether it substantially complied.  In other words, Petitioner must show, by a preponderance of the evidence on the record as a whole, that it was in substantial compliance with participation requirements.  Id.  A preponderance of evidence is “superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”  Preponderance of the Evidence, Black’s Law Dictionary (7th ed. 1999) (cited by the Departmental Appeals Board in Beechwood Sanitarium, DAB No. 1906 at 38 (2004)).  Petitioner has both the burden of coming forward and the burden of persuasion as to any affirmative defense.  Evergreene, DAB

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No. 2069 at 7; Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004), aff’d, Batavia Nursing & Convalescent Ctr. v. Thompson, 129 F. App’x 181 (6th Cir. 2005).

With respect to the deficiency at issue here, the regulation at 42 C.F.R. § 483.12(a) states:

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.

(a) The facility must—
(1) Not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion

The regulation at 42 C.F.R. § 483.5 defines “abuse” as”

The willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish. . . .  Instances of abuse of all residents, irrespective of any mental or physical condition, cause physical harm, pain or mental anguish.  It includes verbal abuse, sexual abuse, physical abuse, and mental abuse including abuse facilitated or enabled through the use of technology.  Willful, as used in this definition of abuse, means the individual must have acted deliberately, not that the individual must have intended to inflict injury or harm.

2. Findings of Fact and Analysis5

CMS’s finding that Petitioner was not in substantial compliance with the abuse prevention requirement of 42 C.F.R. § 483.12(a)(1) (Tag F600) arose from an incident involving Resident 2 on June 13, 2022.

Resident 2, 79 years of age at the time of the incident, was initially admitted to Petitioner’s facility on July 15, 2019.  CMS Ex. 1.  Resident 2 had a medical history including multiple physical and cognitive impairments, including atherosclerotic heart disease; peripheral vascular disease; dementia with behavioral disturbance; depression;

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hypothyroidism; insomnia; and psychotic disorder.  CMS Ex. 7 at 1; CMS Ex 5 at 3-4.  Resident 2 also required the use of a walker.  CMS Ex. 5 at 2.

The record also reflects that Resident 2’s Brief Interview for Mental Status (BIMS) score was a 15 out of 15 (intact cognition) as of April 6, 2022.  P. Ex. 5 at 25.  However, Petitioner’s staff noted in a July 8, 2019 At Risk for Abuse Care Plan that Resident 2 was “at risk to be a victim of abuse, neglect, and/or mistreatment” and established interventions to ensure Resident 2’s safety.  CMS Ex. 6 at 1.

CMS contends that, on June 13, 2022, Petitioner’s employee, CNA #1, physically abused Resident 2 by roughly slapping her hand, while she attempted to hand an item to Resident 1 through a door well, and then pushing Resident 2 causing Resident 2 to fall.  CMS Prehrg. Br. at 1-2.  As a result of the fall, Resident 2 suffered a left femoral neck fracture of the hip, which required a percutaneous pinning.  Id.  In support of its position, CMS argues that the facility’s own surveillance footage supports its allegation of abuse and is clear evidence of CNA #1’s conduct supporting a finding of noncompliance.  CMS Prehrg. Br. at 1-2; see CMS Ex. 10.

CMS therefore alleges that Petitioner violated the requirements set forth at 42 C.F.R. § 483.12(a)(1), which describe nursing facility residents’ right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion, and that a facility must not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion.  CMS Prehrg. Br. at 5-12.

Petitioner contends it was in substantial compliance with 42 C.F.R. § 483.12(a)(1) and denies that CNA #1 abused Resident 2.  See P. Prehrg. Br.  In support of its argument, Petitioner submits testimony, including expert witness testimony, and its internal investigation which challenge the factual assertions supporting CMS’s claims.  See P. Exs. 4, 10-12.  Contrary to CMS’s position, Petitioner avers that the evidence supports a finding that CNA #1 did not push, but rather that Resident 2 “fell when she lost her balance.”  P. Prehrg. Br. at 1-2.  Moreover, Petitioner states that CNA #1 attempted to “prevent the fall but wound up holding the green blanket the resident had wrapped around her shoulders.”  Id. at 2.

As explained below, I find the record before me demonstrates by a preponderance of the evidence that Petitioner’s staff abused Resident 2.

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1. Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(a)(1)6 because CNA #1 abused Resident 2 on June 13, 2022.

Petitioner disputes CMS’s contention that surveillance video footage of the contact between CNA #1 and Resident 2 on June 13, 2022, supports the conclusion that CNA #1 abused Resident 2.  Here, the record contains the facility’s surveillance video footage of the events at issue but does not include audio.7  CMS Ex. 10; P. Exs. 7, 14.  Moreover, while the video allows the viewer to ascertain the individuals involved in the incident, some of the events are obscured due to camera angles, the door frame, or body positions.

Petitioner asserts that based on a frame-by-frame analysis of the video footage, CNA #1 did not push or cause Resident 2 to fall.  P. Prehrg. Br. at 1-2.  Petitioner explains that “[i]nstead the evidence reflects that what occurred was an unavoidable accident:  Resident [] 2 lost her balance and CNA #1 attempted to prevent her from falling but grabbed the blanket she had draped around her instead.”  Id. at 12.  Petitioner contends “it is apparent CNA #1 had no intent to harm Resident [] 2, but instead was trying to protect her.”  Id.

Contrary to Petitioner’s assertion, and for the reasons discussed below, I find that the evidence, including the video surveillance footage of the June 13, 2022 incident, more likely than not demonstrates abuse by CNA #1 towards Resident 2.

The events at issue primarily involve three individuals, Resident 1, Resident 2, and CNA #1.  Resident 1 was 66 years old at the time of the incident and had lived at Petitioner’s facility for approximately nine years.  P. Ex. 10 ¶ 3.  Resident 1 had a medical history including bilateral, above-the-knee amputation and a psychiatric history of schizoaffective disorder, schizophrenia, and bipolar disorder.  P. Ex. 10 ¶ 3; see P. Ex. 1.  Resident 2, 79 years of age at the time of the incident, had been at Petitioner’s facility for approximately three years, and as detailed above, had a medical history significant for multiple physical and cognitive impairments.  CMS Ex. 7 at 1; CMS Ex 5 at 3-4.  CNA #1, 72 years of age at the time of the incident, had been employed by Petitioner as of May 11, 2009.  P. Ex. 10 ¶ 20.  Petitioner concedes that CNA #1 had received 19 disciplinary

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actions while employed at its facility, but none related to abuse.  P. Ex. 4 at 25; P. Ex. 10 ¶ 21.

The following facts are not in dispute.  On the morning of June 13, 2022, Resident 1 was removed from the facility’s dining area.  CMS Ex. 4 at 15.  Resident 1 was removed by CNA #1 who pushed his wheelchair into the hallway.  Id. at 29.

The surveillance video thereafter begins at 8:06:38 a.m. and shows Resident 2 in the facility’s dining room sitting at a table by herself.  CMS Ex. 10.  At 8:06:48 a.m., Resident 2 looks over her left shoulder at a door.  Id.  Resident 2 subsequently stands up and with the assistance of a walker ambulates to another table and picks up an item.  Id.  Resident 2 raises the item and shows it to Resident 1, who is in his wheelchair and on the other side of the door in a hallway.  Id.  Resident 2 then moves toward the direction of the door.  Id.  At 8:07:04 a.m., as Resident 2 is moving toward the door, CNA #1 enters the dining room from another door.  Id.  CNA #1 walks straight to a table where she picks up a soda can.  Id.  At 8:07:10 a.m., Resident 2 begins to open the door separating her and Resident 1, which causes CNA #1 to turn toward them.  Id.  CNA #1 then walks in the direction of the slightly ajar door, and, at the same time, Resident 2 begins to pass the item to Resident 1 through the open door.  Id.  CNA #1 disposes of the soda can in the garbage and then at 8:07:14 a.m., lifts her right arm in the direction of Residents 1 and 2. Id.

The parties dispute what took place next, between 8:07:14 a.m. and the conclusion of the video at 8:07:23 a.m.  Id.  Although the surveillance footage clearly shows CNA #1’s right hand being raised at 8:07:14 a.m. and Resident 2 falling to the ground at 8:07:15-16 a.m., neither the video nor the corresponding still frames conclusively determine the nature of CNA #1’s contact with Resident 2.  Id.

According to Surveyor Robinson, the video footage clearly shows that the “Certified Nursing Assistant (CNA) #1 roughly slapped Resident [] 2’s hand, grabbed and pushed Resident [] 2 causing Resident [] 2 to fall to the floor on their left side.  Resident [] 2’s body struck the wall in the dining room.”  CMS Ex. 4 at 1.  Resident 2 corroborated the surveyor’s description of the incident.  In a written statement signed on the date of the incident, Resident 2 stated that as she was going to give money to Resident 1, CNA #1 “knocked me over and I fell on my leg.”  CMS Ex. 4 at 9.

Moreover, Resident 1 immediately called 911 following the incident.  Id. at 25.  According to the facility’s own investigation summary, Resident 1 reported to the emergency responders at the time that both Resident 1 and Resident 2 were physically abused by CNA #1 and that CNA #1 “pushed [Resident 2] down to the floor.”  Id.

In a subsequent interview with the state surveyor on July 25, 2022, Resident 2 again stated that CNA #1 “threw me to the floor.”  CMS Ex. 9 at 3; CMS Ex. 11 ¶ 6.

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Additionally, in an August 23, 2022 interview, Resident 2 confirmed that “CNA #1 pushed her to the floor in the dining room when she attempted to give Resident [] 1 his money.” CMS Ex. 5 ¶ 15; CMS Ex. 9 at 3.

Following the fall, emergency personnel arrived at the scene.  CMS Ex. 4 at 25; CMS Ex. 13.  Additionally, CNA #1 was removed from the unit until the police arrived.  CMS Ex. 1 at 5; CMS Ex. 4 at 26.  Upon arrival, the police viewed the video and CNA #1 was brought into police custody and charged.8  CMS Ex. 1 at 5; CMS Ex. 4 at 29.  Moreover, after an evaluation at the facility, Resident 2 was transported to the emergency room.  CMS Ex. 4 at 26; CMS Ex. 13.  Resident 2 was admitted to the hospital and imaging revealed a femoral neck fracture which required a percutaneous pinning of the left hip.  CMS Ex. 13.  Following the incident, Resident 2 informed the surveyor that she has been feeling depressed since breaking her hip, cannot walk, and requires the use of a wheelchair.  See CMS Ex. 9 at 3.

Petitioner asserts that the video footage does not reflect the version of events as described by the state surveyor and fails to establish a prima facie case of noncompliance.  P. Prehrg. Br. at 12-13.  Petitioner’s argument is that the surveyor’s findings are “premised on inferences and assumptions” based on the surveyor’s own interpretation of the video. Id.  Moreover, Petitioner states that the surveyor “fill[ed] in the gaps between the recorded images with speculation.”  Id. at 12.  Petitioner asks me to believe that the events were accidental and do not constitute abuse.  Id. at 1-2.  Petitioner also claims that CMS’s findings rely on speculation and the evidence is equivocal.  Id. at 17-20.

At the outset, to the extent there is uncertainty as to the exact nature of CNA’s contact with Resident 2, Petitioner cannot prevail by claiming absolute certainty is required.  Golden Living Ctr.–Riverchase, DAB No. 2314 at 14 (2010); Jennifer Matthew Nursing & Rehab. Ctr., DAB No. 2192 at 19-20 (2008) (under the preponderance of the evidence standard, “the fact that an ALJ cannot ‘know’ with absolute certainty whether the disputed facts were one way or another does not mean that the evidence is in equipoise”).  Here, CMS has established its prima facie case, based on video footage and documentary evidence, that CNA #1’s actions toward Resident 2, which resulted in a fall and injury, constituted abuse under 42 C.F.R. § 483.12(a)(1).  CMS Ex. 4; CMS Ex. 9; CMS Ex. 10; CMS Ex. 11.

The evidence put forth by CMS reveals that rather than trying to prevent Resident 2 from falling, CNA #1 engaged in abusive conduct by deliberately and forcefully lowering her right arm into the doorframe while Resident 2 was passing an item to Resident 1, and further causing Resident 2 to fall hardly to the ground and fracture her femur.  CMS

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Ex. 10.  Therefore, CMS has made its prima facie case of noncompliance, meaning Petitioner must either rebut CMS’s evidence or affirmatively demonstrate substantial compliance.  Evergreene, DAB No. 2069 at 7.

Petitioner alternatively claims that the preponderance of the evidence establishes its substantial compliance.  P. Prehrg. Br. at 13-20.  Petitioner submits its own internal investigation, declarations, and the expert testimony of Grahme Fischer, a forensic engineer with experience in investigating accidents and analyzing surveillance videotapes.  P. Prehrg. Br. at 13; P. Ex. 4; P. Ex. 10; P. Ex. 11; P. Ex. 12 ¶¶ 1-5; P. Ex. 13.

In support of this position, Petitioner submits its internal investigation conducted immediately following the incident.  P. Ex. 4.  Petitioner’s initial findings dated June 14, 2022, were that CNA #1’s “actions resulted in [Resident 2] becoming off balance and falling.”  P. Ex. 4 at 26.  However, on June 15, 2022, Petitioner reached a different conclusion in an updated report after interviewing CNA #1.  Id. at 29-30.  During the interview, CNA #1 stated “[a]s God is my witness, I did not knock down” Resident 2 “and she fell when [Resident 1] pushed the door while trying to regain entry into the dining room.”  Id.  Thus, the internal investigation reached the following conclusion:

[Resident 2] lost her balance and fell and was not pushed as initially thought.  [CNA #1] tried to prevent her from falling and reached out to her but grabbed the clothing she had draped around her instead.  It appears [Resident 1] may have pushed the door from the other side causing her to become off balance.

Id. at 30.  As a result, Petitioner’s internal investigation concluded that the fall “was an accident.”  Id.

Further, Petitioner asserts that in order “[t]o see what really happened, it is necessary to study individual frames, to relate them to what occurred in prior frames and to supplement them, if available, with images from another view.”  P. Prehrg. Br. at 13.  This is because “[w]hen multiple images appear in fast enough succession, the human brain blends them into a single, persistent moving image and tricks the human perceptual system into believing we are seeing everything.”  P. Prehrg. Br. at 13 (citing P. Ex. 12 at Table 1, p. 2).  In support of this position, Petitioner submits Mr. Fischer’s testimony and claims that “a frame-by-frame” analysis of the surveillance footage corroborates its internal investigation and shows that “CNA #1’s left and right hand actions are consistent with an attempt, albeit an unsuccessful one, to keep Resident [] 2 upright and safe.”  P. Prehrg. Br. at 13-14 (citing P. Ex. 12 ¶ 33.).

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As part of this testimony, Mr. Fischer reviewed surveillance footage from Camera 2B (CMS Ex. 10), installed in the second-floor dining room at Petitioner’s facility, and Camera 2A (P. Ex. 7), installed in the second-floor hallway at Petitioner’s facility.  See P. Ex. 12.  Mr. Fischer also created a synchronized video showing a combined side-by-side video of both Cameras 2A and 2B and broke the footage into individual frames.  P. Ex. 14.

Mr. Fischer’s testimony is as follows.  At Frame 0 at 8:07:13 a.m., in which CNA #1 is standing at the garbage bin and releases the soda can, the door separating Resident 1 and Resident 2 begins to move inward, which pushes Resident 2’s walker slightly backward and occurs prior to CNA #1’s right arm entering the open door.  P. Ex. 12 ¶ 15.  Moreover, at 8:07:14 a.m., the back right leg of Resident 2’s walker lifts along with her right foot, and, at the time, CNA #1 places her left hand on the Resident 2’s green blanket.  Id. ¶ 16.  According to Mr. Fischer, it “appears that” at this time CNA #1 “senses a problem” and grabs the blanket “as a means to prevent a fall.”  Id. ¶¶ 16-17.  Mr. Fischer contends that CNA #1 “clearly pulls the blanket toward herself, as opposed to pushing Resident [] 2 with [her] left hand on [Resident 2’s] back” and that the “frames provide unambiguous support for the conclusion that CNA #1 is trying to pull Resident [] 2 toward her with her left hand, rather than push her away.”  Id. ¶ 18.

Further supporting his position, Mr. Fischer notes that as Resident 2 is falling, “CNA #1’s right hand appears to be in a grasping position, suggesting her right arm is trying to grab Resident [] 2, not push her.”  Id. ¶¶ 20-22; Attach. A at Frames 41-43.  However, Mr. Fischer adds that “this is not definitive from these frames, [but] it is the only reasonable interpretation of those images in light of the following frames, as described . . . .”  P. Ex. 12 ¶ 19.  Therefore, Mr. Fischer concluded that the video evidence “does not support any intent to deliberately destabilize Resident [] 2,” but rather prevent Resident 2 from falling.  P. Prehrg. Br. at 13 (citing P. Ex. 12 ¶ 33).

I do not find that the evidence submitted by Petitioner, including the internal investigation and testimony, rebuts CMS’s evidence of noncompliance.  While Petitioner tries to use Mr. Fischer’s testimony as definitive support that Resident 2’s fall was an accident and not caused by CNA #1, Mr. Fischer’s statement is less definitive and contains opinion testimony which I do not credit.  Specifically, with respect to Frames 23 to 25, Mr. Fischer’s states that “CNA #1’s left hand moved to the blanket and all of her fingers were visible.  CNA #1 went through a process of deciding to grasp the green ‘sweater’ (as CNA #1 perceived the green blanket).”  P. Ex. 12 ¶ 17 (emphasis added).  However, Mr. Fischer is unable to opine on what state of mind CNA #1 had based on the video alone.

In addition, while Mr. Fischer states that the “door opened and pushed into Resident 2’s walker before CNA released the can from her hand,” this does not establish that the door opening caused Resident 2 to fall.  P. Ex. 12 ¶ 15.  It is equally plausible that the walker

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did move as a result of being contacted by the door but that Resident 2’s fall was subsequently caused by CNA #1’s deliberate conduct.

Moreover, in paragraph 19 of his testimony, Mr. Fischer suggests that CNA #1 attempted to prevent Resident 2 from falling based on the positioning of her right hand, but his testimony is more qualified.  Herein, Mr. Fischer states: “CNA #1’s right hand seems to have been grasping at Resident [] 2.  Although this is not definitive from these frames, it is the only reasonable interpretation of those images in light of the following frames.”  P. Ex. 12 ¶ 19 (emphasis added).

In paragraph 21 of his testimony, Mr. Fischer similarly qualifies his own statements stating:  “CNA #1’s right hand appears to be in a grasping position (Frames 41 and 42), suggesting that her right arm was trying to grab Resident [] 2, not push her.”  P. Ex. 12  ¶ 21 (emphasis added).  Similar qualifying language is used throughout his testimony, such as in conclusion paragraph 30:

With respect to CNA #1’s downward motion of her right hand while within the gap, which, on first impression seemed to be a slapping motion, I now believe it could have been a rapid attempt at grasping something. This is because: 

• Resident [] 2 appeared to approach the closed door (from approximately 15 to 20 feet away) with a “light blue” object in her right hand or on her wrist;
• the fingers of CNA #1’s right hand seemed to curl downward toward a grasping motion (Frames 8-11, not an open handed slap);
• CNA #1 seemed to be reaching for something as she extended her right arm into the gap while leaning forward and raising her left foot off the floor (Frames 14-17);
• CNA #1’s right hand seems to be conveying the light blue object as her right elbow moved to the right in proximity to a wall (a “notch”) within the dining room (Frames 23-24).

P. Ex. 12 ¶ 30 (emphasis added).  I note that in Mr. Fischer’s testimony there is also no analysis of CNA #1’s right-arm position during the period from Frame 18 (approximately 8:07:13 a.m.) until Frame #35 (approximately 8:07:15 a.m.) due to it being obscured.  P. Ex. 12 ¶¶ 16-19.  As such, because he cannot know what CNA #1’s right-arm was doing during these essential two seconds, I agree with Mr. Fischer that his conclusions are “not definitive.”  P. Ex. 12 ¶ 19.  Further, rather than Mr. Fischer’s testimony being “the only

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reasonable interpretation,” an alternative and reasonable interpretation based on the record is that CNA #1 pushed Resident 2 to the ground using her right hand while that hand was obscured from the surveillance video.

To the extent that Mr. Fischer later opines that the hand position reflects an attempt to grasp Resident 2 in an attempt to prevent her from falling, I give this testimony little weight.  P. Ex. 12 ¶¶ 20-23.  Again, Mr. Fischer’s video analysis is unable to provide any conclusive analysis of the right hand of CNA #1 during a significant period.  This point is further conceded by Petitioner’s own witness, Boris Lipin, LNHA, who conducted an investigation.  See P. Ex. 11.  Mr. Lipin specifically notes that:

I realized, in slowing down the motion, that it is not possible to tell from the video what CNA #1 did with her right hand as she reached through the opening toward Resident [] 1 in the hallway.  This is because, I realized through this analysis, CNA #1’s body and the partially closed door block a clear view from the video camera, which is located high on a wall on the opposite side of the dining room.

Id. ¶ 15.  Further, while CNA #1 did grab hold of Resident 2’s sweater/blanket with her left hand and possibly attempted to grasp her with the right hand, this attempt only occurs after CNA #1’s own actions cause Resident 2 to fall.  As Mr. Fischer admits “on first impression [CNA #1’s right hand] seemed to be a slapping motion.”  P. Ex. 12 ¶ 30.  And I do not find credible that the video analysis shows a “rapid attempt at grasping something.”  Id.  In fact, Mr. Fischer is not certain either, as he qualifies his conclusion by stating rather than a slapping motion “I now believe it could have been a rapid attempt at grasping something.”  Id.  (emphasis added).

In support of its claim, Petitioner also points out that CNA #1’s own statements during its internal investigation confirm that she had tried to prevent Resident 2 from falling but failed to get a good grip.  P. Prehrg. Br. at 15; P. Ex. 5.  However, as previously stated, the video evidence fails to support that version of events.  In addition, I note that immediately before the incident, CNA #1 had pushed Resident 1 out of the dining room and into a wall.  P. Ex. 4 at 14.  Moreover, this claim was not denied by CNA #1, on the day following the incident, when she told Brenda Slater, RN, the DON at Petitioner’s facility, that:

she asked Resident []1 to leave the calendar board alone and to leave the dining room.  Resident []1 ignored her, and CNA #1 wheeled him out of the dining room.  CNA #1 said he was holding on to the spokes of the wheelchair to prevent her from moving it, and when he suddenly let go, the chair moved further than she wanted it to go.

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P. Ex. 10 ¶ 31.  I further observe that state authorities did not consider CNA #1’s actions toward Resident 2 to be non-abusive, as they charged CNA #1 with a felony for endangering the welfare of an incompetent person.  P. Ex 4 at 29; P. Ex. 10 ¶ 29.  While I note that the criminal charges were subsequently dismissed, the basis of the dismissal was only due to the lack of an uncooperative witness.  P. Ex. 9.  However, the lack of a cooperative witness does not prove that the abusive conduct did not occur.  As Petitioner notes in its own internal investigation, “[t]he Director of Social Work attempted to interview the residents who were in the dining room when the occurrence took place, but they were cognitively impaired and did not have any recollection of what had occurred.”  P. Ex. 10 at ¶ 23; see, e.g., Ill. Knights Templar Home, DAB No. 2369 at 8 (2011) (finding unpersuasive a facility’s “speculative” argument that a resident was not frightened by another resident’s behavior because “she did not make any contemporaneous complaint about [the other resident] or even remember the incident” when interviewed by surveyors).  Petitioner further noted that aside from CNA #1, none of Petitioner’s other employees were witnesses to the incident.  P. Ex. 10 ¶ 24.  Nevertheless, the fact that state criminal authorities viewed the same videographic evidence before me and believed criminal charges to be warranted confirms there is little merit that this was non-abusive conduct.  In addition, the CNA #1 was terminated after the incident and there is no evidence that Petitioner re-hired her following its own internal investigation.  Further relevant here, the imposition of administrative penalties is based on different legal elements and a different burden of proof than criminal proceedings.

I also find no merit in Petitioner’s argument that the actions of CNA #1 were not “willful” or “deliberate.”  P. Prehrg Br. at 15.  The regulation defining “abuse” only requires the conduct at issue to be “willful.”  42 C.F.R. § 488.301.  “Willful” means “that the actor must have acted deliberately, not that the actor must have intended to inflict injury or harm (or one of the other specified types of prohibited conduct).”  Merrimack Cty. Nursing Home, DAB No. 2424 at 4-5 (2011).  CNA #1’s conduct here was clearly deliberate, i.e., not accidental or inadvertent and her intent to harm is thus irrelevant in determining whether Petitioner was in substantial compliance with 42 C.F.R. § 483.12(a)(1).

Petitioner also tries to claim that Resident 2’s own statements are internally inconsistent and do not support a finding of abusive conduct.  P. Prehrg Br. at 15-16.  I disagree. Immediately following the incident, Resident 2 provided a written statement stating that CNA #1 “knocked me over and I fell on my leg.”  CMS Ex. 4 at 9.  While the record also shows that Resident 2 told the DON and others that “he/she fell on the floor,” these statements are not internally inconsistent, nor do they prove Resident 2 was not pushed to the floor.  CMS Ex. 4 at 9; see CMS Ex. 1 at 8-9; CMS Ex. 9 at 5; CMS Ex. 11 ¶ 19.  Moreover, based on the DON’s assessment and conversation with Resident 2 immediately following the incident, the DON had CNA #1 “removed off the unit and

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wait[] in a private room in the lobby for law enforcement.”  Id.  Moreover, as the Board has held, the person who reports a situation need not characterize it as abuse in order for the report to constitute an allegation of abuse.  See, e.g., Grace Healthcare of Benton, DAB No. 2189, at 6 (2008), rev’d on other grounds, Grace Healthcare of Benton v. U.S. Dep’t of Health & Human Servs., 589 F.3d 926 (8th Cir. 2009), modified on reh’g, 603 F.3d 412 (8th Cir. 2010) (the “broad language” of section 483.13(c) “encompasses not only a direct allegation that the resident has been abused, but also an allegation of facts from which one could reasonably conclude that the resident has been abused.”).

Ultimately, as set forth above, I find the preponderance of the evidence of record before me shows CNA #1 abused Resident 2 on June 13, 2022, and that Petitioner was therefore not in substantial compliance with 42 C.F.R. § 483.12(a)(1).

3. The $16,180 per-instance CMP is a reasonable enforcement remedy for Petitioner’s noncompliance with 42 C.F.R. § 483.12(a)(1).

When determining whether the amount of a CMP 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); 42 C.F.R. § 488.438(e)(3).  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 sections 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 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).

There is also a presumption that “CMS considered the regulatory factors in choosing a CMP amount and that those factors support the penalty imposed.”  Crawford Healthcare & Rehab., DAB No. 2738 at 19 (2016) (citing decisions).  “Accordingly, the burden is not on CMS to present evidence bearing on each regulatory factor, but on the SNF to demonstrate, through argument and the submission of evidence addressing the regulatory factors, that a reduction is necessary to make the CMP amount reasonable.”  Id. (citing Oaks of Mid-City Nursing & Rehab. Ctr., DAB No. 2375, at 26-27 (2011) (internal quotation marks omitted)); see Brian Ctr. Health & Rehab. - Goldsboro, DAB

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No. 2336, at 12 (2010).  “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).

Here, CMS imposed a $16,180 per-instance CMP.  CMS states that the CMP is reasonable and that it is “below the maximum that could have been imposed” of $23,989 under the regulations for per-instance CMPs.  See CMS Prehrg. Br. at 14-15; 45 C.F.R. § 102.3 (2022); 87 Fed. Reg. 15,100.  CMS also argues that the CMP imposed is reasonable because of the severity of Petitioner’s noncompliance, which caused harm to Resident 2.  CMS Prehrg. Br. at 14-15.  Petitioner argues that no remedy is warranted since it was in substantial compliance, and, alternatively, that the CMP is unreasonable due to a lack of culpability and compliance history.  See P. Prehrg. Br. at 20-21.

For the reasons explained in the earlier sections of this decision, I have rejected Petitioner’s contention that it complied substantially with 42 C.F.R. § 483.12(a)(1).  I reject Petitioner’s contention that the CMP is unreasonable for similar reasons.  First, I conclude that Petitioner’s noncompliance was serious and caused harm to a resident.  Resident 2 fractured her femur, which required an inpatient hospitalization and surgery.  Further, Petitioner was culpable for the noncompliance.  “Culpability” is defined as including, but not limited to, “neglect, indifference, or disregard for resident care, comfort, or safety.”  42 C.F.R. § 488.438(f)(4).  Herein, the facility disregarded Resident 2’s safety by causing her to suffer serious injury.  Lastly, to the extent Petitioner also argues that its compliance history supports a reduction of the penalty, it has not presented any evidence to support its claim.9

Based on the regulatory factors, including the seriousness of Petitioner’s noncompliance and Petitioner’s culpability, I conclude that the $16,180 CMP is reasonable.

Conclusion

I conclude that Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(a)(1) and that a $16,180 per-instance CMP is appropriate under the applicable statutory and regulatory factors.