A.G. Rhodes Home, Inc. – Cobb, DAB CR6672 (2025)

DECISION

A.G. Rhodes Home, Inc. – Cobb (Petitioner or “the facility”) challenges the $10,325 per-day civil monetary penalty (CMP) imposed by the Centers for Medicare & Medicaid Services (CMS) for immediate jeopardy noncompliance from May 11 through 27, 2022, and the per-day CMP of $585 for non-immediate jeopardy noncompliance from May 28 through June 13, 2022.  For the following reasons, I uphold the imposition of the aforementioned CMPs based on Petitioner’s noncompliance with Medicare participation requirements.

I. Background

The Social Security Act (Act) establishes requirements for skilled nursing facility (SNF) participation in the Medicare program and authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations implementing those statutory provisions.  See 42 U.S.C. § 1395i-3; 42 C.F.R. pts. 483 and 488.  To participate in the Medicare program, SNFs must maintain substantial compliance with program participation requirements.  In order to be in substantial compliance, any deficiencies may “pose no greater risk to resident health or safety than the potential for causing minimal harm.”  42 C.F.R. § 488.301.  “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.”  Id.

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The Secretary contracts with state agencies to conduct periodic surveys to determine whether SNFs are in substantial compliance with participation requirements.  42 U.S.C. § 1395aa(a); 42 C.F.R. §§ 488.10, 488.20.  The Act and its implementing regulations require that facilities be surveyed on average every 12 months, and more often if necessary, to ensure that identified deficiencies are corrected.  42 U.S.C. § 1395i‑3(g)(2)(A); 42 C.F.R. §§ 488.20(a), 488.308.

CMS may impose a per-day CMP for the number of days a facility is not in substantial compliance or a per-instance CMP for each instance of the SNF’s noncompliance.  42 U.S.C. § 1395i-3(h)(2)(B)(ii); 42 C.F.R. § 488.430(a).1  If CMS imposes a remedy based on a noncompliance determination, the facility may request a hearing before an administrative law judge (ALJ) to challenge the noncompliance finding and 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).

The Georgia Department of Community Health (state agency), through its contractor, conducted a standard survey of the facility on May 25, 2022, and cited both immediate jeopardy and non-immediate jeopardy noncompliance2 with Medicare program participation requirements.  The state agency cited the following deficiencies:  42 C.F.R. § 483.12(a)(1) (freedom from abuse) (cited as Tag F600 at the “G” level of scope and severity); 42 C.F.R. § 483.20(g) (accuracy of assessment) (cited as Tag F641 at the “D” level of scope and severity); 42 C.F.R. § 483.25 (quality of care) (cited as Tag F684 at the “D” level of scope and severity); 42 C.F.R. § 483.25(d)(1)-(2) (free from accident hazards) (cited as Tag F689 at the “D” level of scope and severity); 42 C.F.R. § 483.80(a)(1), (a)(2), (a)(4), (e), (f) (infection prevention and control) (cited as Tag F880 at the “J” level of scope and severity); 42 C.F.R. § 483.80(g)(3)(i)-(iii) (COVID-19 reporting) (cited as Tag F885 at the “J” level of scope and severity); and 42 C.F.R. § 483.80(h)(1)-(6) (COVID-19 testing) (cited as Tag F886 at the “J” level of scope and severity).3  CMS Ex. 1.

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A June 8, 2022 revisit survey determined that Petitioner abated immediate jeopardy on May 28, 2022.  CMS Exs. 2, 6.  At that time, surveyors cited additional noncompliance with 42 C.F.R. § 483.12(c)(1), (4) (reporting of allegations of abuse) (cited as Tag F609 at the “G” level scope and severity).  CMS Ex. 2 at 13.  In a notice dated August 9, 2022, the state agency informed Petitioner that based on a second revisit survey, it had returned to substantial compliance with the Medicare participation requirements effective June 14, 2022.  CMS Ex. 8.

In a letter dated July 13, 2022, CMS informed Petitioner that it had imposed a per-day CMP of  $10,325 for immediate jeopardy noncompliance from May 11 through 27, 2022, and a per-day CMP of $585 thereafter for non-immediate jeopardy compliance.4  CMS Ex. 7 at 3; see CMS Ex. 9 (September 9, 2022 notice that Petitioner had returned to compliance effective June 14, 2022); CMS Ex. 11 (October 31, 2022 notice of CMP payment instructions).

Petitioner timely requested a hearing on September 9, 2022.  CMS filed a pre-hearing brief (CMS Pre-Hrg. Br.), along with 73 proposed exhibits (CMS Exs. 1-73).  Petitioner filed a pre-hearing brief (P. Pre-Hrg. Br.) and six proposed exhibits (P. Exs. 1‑6).  At the March 5, 2024 pre-hearing conference, I admitted all of the proposed exhibits, with the exception of CMS Ex. 52a-c.5  In admitting the aforementioned exhibits, I provisionally admitted CMS Exs. 72 and 73 and P. Exs. 5 and 6 pending the appearance of the witnesses for cross-examination.  See March 7, 2024 Order Summarizing Pre-Hearing Conference.

CMS submitted the written direct testimony of two surveyors (CMS Exs. 72 (Ms. Stanbro) and 73 (Ms. Gonzales)), and Petitioner submitted the testimony of Ms. Svensson, a nurse practitioner (P. Ex. 4), Ms. Haders (the facility’s administrator) (P. Ex. 5), and Ms. Summerlin (a registered nurse and its director of clinical services) (P. Ex. 6).  The parties initially requested cross-examination of all of the witnesses who

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submitted written direct testimony, with the exception of Ms. Svensson.  Thereafter, CMS withdrew its request to cross-examine Ms. Haders, and Petitioner withdrew the testimony of Ms. Summerlin.  DAB E-File Docket Entry No. 41.  Therefore, I do not admit P. Ex. 6 into the evidentiary record.

Petitioner cross-examined CMS’s witnesses at the March 28, 2024 videoteleconference hearing.  After a transcript (Tr.) was made available to the parties, the parties filed post-hearing briefs (CMS Post-Hrg. Br. and P. Post-Hrg. Br.) and reply briefs (CMS Post-Hrg. Reply Br. and P. Post-Hrg. Reply Br.).  The record is closed and the case is ready for a decision.

II. Issues

At the March 5, 2024 pre-hearing conference, the parties agreed that the following issues are presented for review:

Whether Petitioner was in substantial compliance with 42 C.F.R. §§ 483.80(a)(1), (2), (4), (e), (f); 483.80(g)(3)(i)-(iii); and 483.80(h)(1)-(6) (cited as Tags F880, F885, and F886);

If not, whether any of those deficiencies posed immediate jeopardy to resident health and safety;

Whether Petitioner was in substantial compliance with 42 C.F.R. §§ 483.12(a)(1) and 483.12(c)(1), (4) (cited as Tags F600 and F609);

Whether a per-day civil monetary penalty of $10,325 for immediate jeopardy noncompliance from May 11 through May 27, 2022, is reasonable;

Whether Petitioner remained out of substantial compliance with Medicare participation requirements through and inclusive of June 13, 2022;

If so, whether a per-day civil monetary penalty of $585 from May 28 through June 13, 2022, is reasonable.

See March 7, 2024 Order Summarizing Pre-Hearing Conference; Tr. at 12.

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III. Discussion6

1. CMS guidance, dated April 2, 2020, required that nursing homes comply with CMS and Centers for Disease Control and Prevention (CDC) guidance regarding infection control.
2. CDC guidance, updated January 21, 2022, stated that health care personnel with a confirmed COVID-19 diagnosis and mild to moderate illness should not return to work for at least seven days if a negative COVID-19 test is obtained within 48 hours prior to returning to work (or 10 days if testing is not performed or a positive test at day 5-7) have passed since symptoms first appeared.
3. A licensed practical nurse (LPN) staff member first exhibited symptoms of cough and congestion on May 14, 2022, and tested positive for COVID-19 that day.
4. The LPN returned to work on both May 16 and 20, 2022.
5. CDC guidance, effective February 2, 2022, required a facility to initiate an outbreak response with a single new case of nursing home-onset COVID-19.  As part of this outbreak response, CDC guidance stated that unvaccinated residents should not participate in group activities if a facility was taking a broad-based approach.
6. After Resident # 83 tested positive for COVID-19 on May 11, 2022, presumably from exposure to a non-resident spouse on May 9, 2022, other residents and staff members were diagnosed with COVID-19 between May 13 and May 18, 2022.
7. Based on nursing home-onset COVID-19 cases, Petitioner had a COVID-19 outbreak that began on May 11, 2022.
8. On May 18, 2022, during the outbreak at the facility, Petitioner allowed 17 residents and five staff members to participate in music therapy (i.e., singing), with the participants 6-12 inches apart, including two unvaccinated residents, Resident # 1 and Resident # 106.

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9. CDC guidance, updated February 2, 2022, states that during an outbreak response, outdoor visitation can be allowed if residents wear a well-fitting mask and maintain physical distancing.
10. On May 18, 2022, two residents met with visitors outdoors without physical distancing and with their noses uncovered by masks.
11. A facility is required to establish and maintain an infection control program designed to provide a safe, sanitary, and comfortable environment and to help prevent the development and transmission of communicable diseases and infections.
12. Based on the aforementioned incidents, which are not refuted by Petitioner, the facility failed to maintain an infection control program as required by 42 C.F.R. § 483.80.
13. Pursuant to 42 C.F.R. § 483.80(g)(3), Petitioner was required to notify residents, representatives, and families, no later than 5:00 pm “the next calendar day following . . . a single confirmed” COVID-19 infection.
14. Petitioner did not send the required notification until May 13, 2022, and it did not send additional notifications after other residents and staff were diagnosed with COVID-19 on May 14 and 18, 2022.
15. Because Petitioner did not provide the required notifications, it did not comply with 42 C.F.R. § 483.80(g)(3).

A skilled nursing facility is required to establish and maintain an infection prevention and control program.

Pursuant to section 1819(d)(3) of the Act, Sanitary and Infection Control and Physical Environment, 42 U.S.C. § 1395i-3(d)(3), a skilled nursing facility must establish and maintain an infection prevention and control program to provide “a safe, sanitary, and comfortable environment in which residents reside and to help prevent the development and transmission of disease and infection.”  In furtherance of this statutory requirement, 42 C.F.R. § 483.80(a)(1), (2), (4); (e), (f) (Tag F880) requires skilled nursing facilities to establish and maintain an infection prevention and control program that is designed to provide a safe, sanitary, and comfortable environment that helps to prevent the development and transmission of communicable diseases and infections.

As relevant for purposes of this decision, a facility’s infection prevention and control program must include “[a] system for preventing, identifying, reporting, investigating,

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and controlling infections and communicable diseases for all residents, staff, volunteers, visitors, and other individuals providing services . . . based upon the facility assessment . . . and . . . national standards.”  42 C.F.R. § 483.80(a)(1).  Additionally, a facility must have written standards, policies, and procedures for its infection prevention and control program that include “[s]tandard and transmission-based precautions to be followed to prevent spread of infections.”  42 C.F.R. § 483.80(a)(2)(iii).  The Departmental Appeals Board (DAB) has explained that the regulation, as currently stated in 42 C.F.R. § 483.80(a)(2),7 “can only reasonably be interpreted as requiring not just that an infection control policy exist, but also that the policy be followed.”  Heritage House of Marshall Health & Rehab. Ctr., DAB No. 2566 at 12 (2014).  In guidance issued on April 2, 2020, CMS stated that “Nursing Homes should immediately ensure that they are complying with all CMS and CDC guidance related to infection control.”  CMS Ex. 64 at 1.

The CDC issued “Interim Guidance for Managing Healthcare Personnel with SARS-CoV-2 Infection or Exposure to SARS-CoV-2” that was updated on January 21, 2022, to “enhance protection for healthcare personnel (HCP), patients, and visitors, and to address concerns about potential impacts on the healthcare system . . . .”  CMS Ex. 44.  The guidance included the following “criteria to determine when HCP with SARS-CoV-2 infection could return to work”:

HCP with mild to moderate illness who are not moderately to severely immunocompromised:

• At least 7 days if a negative [COVID-19 test] is obtained within 48 hours prior to returning to work (or 10 days if testing is not performed or if a positive test at day 5-7) have passed since symptoms first appeared, and
• At least 24 hours have passed since last fever without the use of fever-reducing medications, and
• Symptoms (e.g., cough, shortness of breath) have improved.

CMS Ex. 44 at 2-3 (emphasis omitted).

The CDC also issued “Interim Infection Prevention and Control Recommendations to Prevent SARS-CoV-2 Spread in Nursing Homes,” updated on February 2, 2022.  CMS Ex. 45.  That guidance stated that nursing homes, even in counties with low community transmission, should “be prepared to initiate outbreak response immediately if a nursing home-onset infection is identified among residents or HCP.”  CMS Ex. 45 at 4-5.  The guidance explains the following with respect to a newly identified infected staff member or resident:

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• Because of the risk of unrecognized infection among residents, a single new case of SARS-CoV-2 infection in any HCP or a nursing home-onset SARS-CoV-2 infection in a resident should be evaluated as a potential outbreak.

  - The approach to an outbreak investigation should take into consideration whether the facility has the experience and resources to perform individual contact tracing, the vaccination acceptance rates of staff and residents, whether the index case is a healthcare worker or resident, whether there are other individuals with suspected or confirmed SARS-CoV-2 infection identified at the same time as the index resident, and the extent of potential exposures identified during the evaluation of the index resident.

  * * *

  - Alternative, broad-based approach

• If a facility does not have the expertise, resources, or ability to identify all close contacts, they should instead investigate the outbreak at a facility-level or group-level (e.g., unit, floor, or other specific area(s) of the facility).

CMS Ex. 45 at 8 (emphasis omitted).  For the broad-based approach, residents who are not up to date with all recommended COVID-19 vaccine doses “should generally be restricted to their rooms, even if testing is negative, and cared for by HCP using an N95 or higher-level respirator, eye protection . . . , gloves, and gown” and “should not participate in group activities.”  CMS Ex. 45 at 8.  The CDC stated that, during an outbreak response, “[o]utdoor visitation could be allowed, but residents should wear well-fitting source control (if tolerated), maintain physical distancing from others, and not linger in common spaces when moving from their rooms to the outdoors.”  CMS Ex. 45 at 9.

A facility is required to notify residents, their representatives, and families of new COVID-19 infections.

Pursuant to 42 C.F.R. § 483.80(g)(3), a facility must comply with the following reporting requirements:  “Inform residents, their representatives, and families of those residing in facilities by 5 p.m. the next calendar day following the occurrence of either a single

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confirmed infection of COVID-19, or three or more residents or staff with new-onset of respiratory symptoms occurring within 72 hours of each other.”

CMS has met its prima facie burden with respect to Petitioner’s noncompliance regarding infection prevention and control cited as 42 C.F.R. § 483.80(a)(1), (2), (4); (e), (f), and Petitioner has not shown that it was in substantial compliance with this participation requirement.

Pursuant to 42 C.F.R. § 483.80, Petitioner was required to “establish and maintain an infection prevention and control program designed to provide a safe, sanitary, and comfortable environment and to help prevent the development and transmission of communicable diseases and infections.”  “Before the ALJ, CMS must bear its initial burden of going forward with evidence related to disputed findings that is sufficient (together with any undisputed findings and relevant legal authority) to establish a prima facie case of noncompliance.”  Mercy Home Care, Sioux City, DAB No. 3044 at 16 (2021) (citing Evergreene Nursing Care Ctr., DAB No. 2069 at 7 (2007)).  “‘If CMS makes this prima facie showing,’ the facility ‘must carry its ultimate burden of persuasion by showing, by a preponderance of the evidence, on the record as a whole, that it was in substantial compliance during the relevant period.’”  Id. at 16-17 (quoting Evergreene, DAB No. 2069 at 7).

A staff member returned to work two days after testing positive for COVID‑19.

In its brief, CMS highlighted a staff member’s return to work shortly after her COVID-19 diagnosis.  CMS Pre-Hrg. Br. at 8-9; CMS Post-Hrg. Br. at 5.  On May 14, 2022, J.G., an LPN, had an onset of symptoms of cough and congestion and tested positive for COVID‑19.  CMS Ex. 34 at 1; see CMS Exs. 15 at 5 (staff roster); 25 at 33 (progress note identifying J.G. as an LPN).  J.G. returned to work on both May 16 and 20, 2022 (CMS Ex. 38 at 1, 9), even though the CDC guidance at that time stated that a staff member should not return to work until at least seven days if a negative test “is obtained within 48 hours prior to returning to work (or 10 days if testing is not performed or if a positive test at day 5-7) have passed since symptoms first appeared.”  CMS Ex. 44 at 3.

Petitioner does not dispute that J.G. returned to work two days after first being symptomatic and testing positive for COVID-19.  Rather, Petitioner argues that “[b]ecause no other employee of Petitioner was observed or alleged to have violated CDC’s return to work policy, it can be said that Petitioner’s alleged return-to-work

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deficiency ‘posed no greater risk to resident health or safety than the potential for causing minimal harm.’”8  P. Post-Hrg. Reply Br. at 3.

Because Petitioner allowed an infected staff member to return to work only two days after her symptomatic COVID-19 diagnosis, it did not establish and maintain an infection control program that prevented the development and transmission of infectious disease.9

Petitioner allowed 17 residents and five staff members to sing in close proximity to one another on May 18, 2022, during a facility outbreak; that group activity included unvaccinated residents.

Resident # 83 was diagnosed with COVID-19 on May 11, 2022, after presumably being exposed to COVID-19 by his wife.  CMS Ex. 34 at 2, 4.  Thereafter, on May 13, 2022, two more residents, Resident # 29 and Resident # 63, tested positive for COVID-19.  CMS Ex. 34 at 4.  The next day, Resident # 109 tested positive for COVID-19.  CMS Ex. 34 at 4.  In addition to J.G.’s diagnosis on May 14, 2022, two other facility employees tested positive on May 13 and 14, 2022.10  CMS Ex. 34 at 1.  Petitioner was unquestionably experiencing a COVID-19 outbreak on May 18, 2022.  See CMS Ex. 45.

As previously discussed, the CDC guidance in effect in May 2022 stated that nursing homes should be “prepared to initiate outbreak response immediately if a nursing home-onset infection is identified among residents or HCP,” and that unvaccinated residents “should not participate in group activities” during a facility outbreak.  CMS Ex. 45 at 5, 8.  Despite this guidance, the survey team observed 17 residents and five staff members gathered in a library for music therapy “while sitting 6-12 inches apart and within arm’s reach.”  CMS Ex. 1 at 36; see CMS Ex. 72 at 6; 73 at 2-3.  The surveyors

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testified that two of the residents, Resident # 1 and Resident # 106, were unvaccinated.11  CMS Exs. 72 at 6; 73 at 2-3; Tr. at 26; see CMS Ex. 39 at 18, 24.

Petitioner argues that “[c]ommunity activities are a staple of [its] facility” and that “CMS identified only three unvaccinated residents who, on the same day, attended two group music-therapy sessions.”  P. Post-Hrg. Reply Br. at 3-4.  Petitioner argues that the unvaccinated residents were not symptomatic, did not test positive for COVID-19, and there is no evidence they spread COVID-19.  P. Post-Hrg. Reply Br. at 3-4.  Petitioner’s arguments lack merit in light of the CDC guidance, and Petitioner does not dispute that it failed to adhere to the CDC’s guidance instructing that unvaccinated residents should not participate in group activities during an outbreak.  CMS Ex. 45 at 8.

By allowing numerous residents and staff members, to include unvaccinated residents, to participate in a group activity where they sang in close proximity to each other during an outbreak, Petitioner did not maintain an infection and prevention control program designed to provide a safe, sanitary, and comfortable environment and to help prevent the development and transmission of communicable diseases and infections.

Petitioner allowed outdoor visitation during the May 2022 outbreak, with residents not physically distanced from the visitors or wearing a mask over their noses.

Based on the aforementioned CDC guidance that was in effect at the time of the survey during an outbreak response, “[o]utdoor visitation could be allowed, but residents should wear well-fitting source control (if tolerated), maintain physical distancing from others, and not linger in common spaces when moving from their rooms to the outdoors.”  CMS Ex. 45 at 9.  A surveyor observed “two sets of visitations taking lace out in the gazebo table area on May 18, 2022, where the residents and the visitors were sitting close to each other without social distancing” and “wearing their masks improperly and did not cover their nose.”  CMS Ex. 73 at 4.

Petitioner does not dispute the surveyor’s observations and argues that it had no such policy for masking while outdoors.  P. Post-Hrg. Reply Br. at 4.  However, the issue is that Petitioner failed to adhere to CDC guidance regarding visitations.  CMS Ex. 45 at 9; see CMS Ex. 64 at 1 (directing nursing homes to “immediately ensure that they are complying with all CMS and CDC guidance related to infection control).  Inasmuch as Petitioner failed to comply with CDC guidance, it failed to establish and maintain an infection prevention and control program that provided a safe, sanitary, and comfortable environment to help prevent the development and transmission of communicable diseases and infection.

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Petitioner failed to comply with the requirement that it notify residents, representatives, and families of COVID-19 infections.

The survey team observed that Petitioner did not notify, inter alia, residents’ representatives and family members of confirmed COVID-19 infections in the facility.  Petitioner CMS Ex. 1 at 41-48.  As required by 42 C.F.R. § 483.80(g)(3), a facility must inform families of residents “by 5 p.m. the next calendar day following the occurrence of . . . confirmed infection of COVID-19.”  The reporting requirement also requests facilities to inform families of “mitigating actions implemented to prevent or reduce the risk of transmission . . . .”  Id.  As explained during the rulemaking process, “These reporting requirements, along with public reporting of the data, support [CMS’s] responsibility to protect and ensure the health and safety of residents by enforcing the standards required to help each resident attain or maintain their highest level of well-being.”  86 Fed. Reg. 62,240, 62,394 (Nov. 9, 2021).

CMS alleges that Petitioner did not provide timely notification of eight confirmed COVID-19 cases.  CMS Pre-Hrg. Br. at 14-15; CMS Post-Hrg. Br. at 8-9.  Petitioner claims that it “believed at the time of these events that it had complied with the requirements set forth in 42 C.F.R. § 483.80(g)(3),” and that “a then-unknown software glitch” prevented it from complying with this requirement.  P. Pre-Hrg. Br. at 18 (citing P. Ex. 5 (testimony of administrator)).  The administrator testified that a May 11, 2022 message was not “sent by email and/or phone to the emergency contacts of all residents” due to a “software glitch.”  P. Ex. 5 at 3-4.  However, Petitioner did not explain why messages did not get sent to representatives and family members on the various dates new COVID-19 cases had been diagnosed.  See CMS Ex. 34 (listing new infections on March 11, 13, 14, and 18, 2022).  Further, Petitioner has not offered any evidence of a “software glitch,” such as confirmation from the vendor that the notification system was “down” during the entire period of the facility’s COVID-19 outbreak, or evidence that it had, in fact, transmitted notifications.
 
While Petitioner may have provided some messages within the facility, it has not submitted evidence that it notified representatives and family members who were not present at the facility during the timeframe of the outbreak, and therefore, Petitioner did not comply with the notification requirement set forth in 42 C.F.R. § 483.80(g)(3).

16. Petitioner’s noncompliance amounted to immediate jeopardy to resident health and safety.

Immediate jeopardy exists if a facility’s noncompliance “has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.”  42 C.F.R. § 488.301.  I must uphold CMS’s determination as to the level of a facility’s substantial noncompliance (which includes an immediate jeopardy finding) unless it is “clearly erroneous.”

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42 C.F.R. § 498.60(c).  The DAB directs that the “clearly erroneous” standard imposes on a facility a heavy burden to show no immediate jeopardy and has sustained determinations of immediate jeopardy where CMS presented evidence “from which ‘[o]ne could reasonably conclude’ that immediate jeopardy exists.”  See, e.g., Barbourville Nursing Home, DAB No. 1962 at 11 (2005) (citing Florence Park Care Ctr., DAB No. 1931 at 27-28 (2004)).

Petitioner was noncompliant with infection prevention and control requirements during the outbreak, to include allowing COVID-positive staff to return to work; allowing numerous residents and staff to engage in a group activity during an outbreak, with unvaccinated residents participating in a non-physically distanced and unmasked activity; and allowing residents to meet with visitors without physical distancing and without wearing a mask over their noses.  Petitioner also failed to notify families and representatives of the outbreak, depriving these individuals of the opportunity to remove a resident from the nursing home environment during the outbreak.

Petitioner claims that the scope of the outbreak is not consistent with immediate jeopardy.  P. Pre-Hrg. Br. at 23.  Petitioner also argues there is “no evidence that any of the alleged non-compliance posed any potential for harm to [its] residents.”  P. Post-Hrg. Reply Br. at 7; P. Post-Hrg. Br. at 6-9.

Petitioner disregarded CDC guidance that was promulgated to mitigate the spread of COVID-19.  By allowing infected staff to return to work, allowing numerous residents and staff, to include unvaccinated residents, to participate in risky group activities, and allowing residents to meet with visitors without physical distancing or full masking, Petitioner created a likelihood of serious harm (i.e., the spread of COVID-19 throughout the facility).  Further, to the extent Petitioner failed to notify residents’ families and representatives of the growing outbreak, it prevented these individuals from being fully informed about the extent of the outbreak and denied them the opportunity to consider whether the resident should remain in the facility during an active outbreak.  Petitioner has the burden of proving that an immediate jeopardy determination is clearly erroneous and, in this case, has failed to make that showing.  See Liberty Commons Nursing & Rehab Ctr. – Johnson, DAB No. 2031 at 18 (2006).

17. Petitioner failed to protect and promote residents’ right to be free from abuse, as required by 42 C.F.R. § 483.12(a)(1), and it failed to timely report and investigate allegations of abuse, as required by 42 C.F.R. § 483.13(c)(1).

Congress has mandated that SNFs “protect and promote the rights of each resident,” to include the “right to be free from physical or mental abuse.”  42 U.S.C. § 1395i-3(c)(1)(A)(ii).  Implementing regulations likewise mandate that each resident has a right to be free from abuse, and that a facility must not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion.  42 C.F.R. §§ 483.12, 483.12(a)(1).

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“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,” and includes sexual abuse.  A facility must “[e]nsure that all alleged violations involving abuse . . . are reported [to the facility administrator and state survey agency] . . . not later than 2 hours after the allegation is made, if the events that cause the allegation involve abuse.”  42 C.F.R. § 483.12(c)(1).  Allegations must be thoroughly investigated and reported to the appropriate officials, and further abuse must be prevented during the investigation.  42 C.F.R. § 483.12(c).  A facility must also develop and implement written policies and procedures that prohibit and prevent abuse and establish policies and procedures to investigate allegations of abuse.  42 C.F.R. § 483.12(b)-(c).

The DAB has explained that “a finding of noncompliance with [section 483.12] on its face implies a failure (deliberate or negligent) by a facility to protect a resident from abuse, i.e., from a willfully inflicted injury resulting in harm (physical or mental).”12  Beverly Health & Rehab. Ctr. – Williamsburg, DAB No. 1748 (2000).  Addressing the requirement to report allegations of abuse, the DAB has explained that “a facility’s reporting and investigation obligations are not dependent on whether or not the facility later determines there was abuse.”  Rockcastle Health & Rehab. Ctr., DAB No. 2891 at 12 (2018) (citing Singing River Rehab. & Nursing Ctr., DAB No. 2232 at 8 (2009)).  The DAB has also addressed that an allegation of abuse must be fully investigated, regardless of whether it is substantiated.  See Ill. Knights Templar Home, DAB No. 2369 at 12 (2011).  The DAB has examined the requirement to “implement written policies and procedures that prohibit mistreatment, neglect, and abuse” and held that a facility will not be found to be in substantial compliance with participation requirements if it has “successfully implement[ed] only some of its policies concerning abuse of residents.”  Maysville Nursing & Rehab., DAB No. 2874 at 15 (2018).

Petitioner’s abuse policy

Section 14 of Petitioner’s abuse policy states the following:

Sexual Abuse.  Sexual abuse is non-consensual sexual contact of any type with an elder as defined in 42 [C.F.R. §] 483.5.  Generally, sexual contact is nonconsensual if the elder either appears to want the contact to occur, but lacks the cognitive ability to consent; or, does not want the contact to occur.  Sexual abuse includes, but is not limited to:

1. Unwanted intimate touching of any kind especially of breasts or perineal area;

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2. All types of sexual assault or battery, such as rape, sodomy, and coerced nudity;
3. Forced observation of masturbation and/or pornography.

CMS Ex. 53 at 4.

Petitioner does not dispute that Resident # 270 sexually abused other residents.

Nearly 12 minutes of video surveillance footage reveals that on January 1, 2022, Resident # 270 repeatedly rubbed his genital area in front of Resident # 23 and also held Resident # 23’s hand over his genital area.  CMS Ex. 52d at 1.  Further, Resident # 270 repeatedly rubbed Resident # 23’s breast area, and he pulled down his pants and exposed his genitals to Resident # 23 for a period of more than 90 seconds.  CMS Ex. 52d at 1-2.  Resident # 23’s diagnoses included Alzheimer’s disease, and in November 2021 she had a Brief Interview for Mental Status Score (BIMS)13 of “3.”  CMS Ex. 18 at 24, 41; see CMS Ex. 1 at 8.

The following day, on January 2, 2022, a certified nursing assistant (CNA) witnessed Resident # 270 at the bedside of Resident # 58, a woman with dementia who lacked the cognitive ability to complete a BIMS assessment interview.  CMS Exs. 1 at 10-11; 57 at 32; see CMS Ex. 20 at 1, 12.  Resident # 270 had his pants down and had exposed his genitals.  CMS Exs. 1 at 10-11; 57 at 32.  Petitioner did not adequately investigate or report this incident.  For example, progress notes do not reflect that Petitioner evaluated Resident # 58 for potential physical or psychiatric injury.  See CMS Ex. 20 at 324-26 (January 2022 progress notes).  Nor is there evidence that Petitioner interviewed potential witnesses, such as Resident # 58’s roommate.

On January 6, 2022, a third resident, Resident # 265, a cognitively intact woman who was Resident # 58’s roommate (CMS Ex. 1 at 11), informed an occupational therapist that “she woke up [and] thought that someone was rubbing her buttocks and it felt wet.”  CMS Ex. 55 at 1; see CMS Ex. 30 at 9, 10, 13; see also CMS Ex. 54 at 4 (reporting that Resident # 265 stated that “on 1/3 or 1/4, the alleged rubbed his genitals across her buttocks”).  Video surveillance revealed that Resident # 270 entered Resident # 265’s room on January 2, 2022, with a CNA entering the room approximately three minutes later.  CMS Ex. 55 at 2.

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Petitioner argues, “[a]t the time of its occurrence, the incident involving the resident identified as [Resident # 270] was reviewed and investigated by members of Petitioner’s staff.”  P. Pre-Hrg. Br. at 22.  Petitioner added that “[c]onsiderations were made, regarding the factual circumstances of the incident, and with the benefit of that investigation[,] a determination was made that the incident did not rise to the level of abuse.”  P. Pre-Hrg. Br. at 22.  Petitioner acknowledged “no reporting was made of the incident,” and that it reported a potential finding of abuse only after it became aware of “a pattern of repeated conduct by the perpetrator . . . .”  P. Pre-Hrg. Br. at 22.

Resident # 270 preyed on at least two female residents with severe cognitive impairment who could not have consented to sexual activity.  With respect to Resident # 23, the touching of her breasts and placement of her hand on Resident # 270’s genitals was undoubtedly sexual abuse.  See P. Ex. 53 at 4 (defining sexual abuse as “non-consensual sexual contact of any type with an elder”); 42 C.F.R. § 83.12 (stating a resident has a right to be free from abuse).  And even though a CNA witnessed Resident # 270 with his pants down and genitals exposed to Resident # 58 at her bedside, Petitioner did not investigate whether Resident # 58 had been abused.  See C.F.R. § 483.12(c)(1), (4) (requiring facility reporting and investigations of alleged abuse).

To the extent Petitioner claims no residents were harmed by Resident # 270, it is mistaken.  The sexual abuse of a resident who cannot consent amounts to actual harm.  And the failure to investigate an incident in which a cognitively impaired resident was  found with a male resident’s genitals exposed to her at her bedside is actual harm.14

18. Although Petitioner broadly disputes the determinations that it was out of compliance with Medicare participation requirements, it does not dispute the duration of the cited immediate jeopardy from May 11 through May 27, 2022, and non-immediate jeopardy noncompliance from May 28 through June 13, 2022.

Once a facility is found to be out of substantial compliance, it remains so until it affirmatively demonstrates that it has achieved substantial compliance again.  Premier Living & Rehab Ctr., DAB No. 2146 at 23 (2008); Lake City Extended Care Ctr., DAB No. 1658 at 12-15 (1998).  The burden is on the facility to prove that it is compliant with program requirements and not on CMS to prove that deficiencies continued to exist after they were discovered.  Asbury Ctr. at Johnson City, DAB No. 1815 at 19-20 (2002); see also Grace Living Ctr. – Nw. OKC, DAB No. 2633 at 3 (2015) (citing Owensboro Place & Rehab. Ctr., DAB No. 2397 at 12 (2011)).  Noncompliance found during a survey is “presumed to continue until the facility demonstrates that it has achieved substantial

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compliance.”  Taos Living Ctr., DAB No. 2293 at 20 (2009).  Absent any claim by Petitioner that it returned to substantial compliance sooner, I uphold the determination that immediate jeopardy began on May 11, 2022 and was abated on May 28, 2022, and that non-immediate jeopardy noncompliance continued through June 13, 2022.  See CMS Exs. 1, 2, 3, 4, 5, 6, 7, 8, 9, 11.

19. A per-day CMP of $10,325 is a reasonable enforcement remedy for the immediate jeopardy noncompliance, and a per-day CMP of $585 is a reasonable enforcement remedy for the non-immediate jeopardy noncompliance.

If a facility is not in substantial compliance with program requirements, CMS has the authority to impose one or more of the enforcement remedies listed in 42 C.F.R. § 488.406, to include a CMP.  In determining whether the CMP imposed against Petitioner is reasonable, 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.  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.  Unless a facility contends that a particular regulatory factor does not support the CMP amount that CMS proposed, an ALJ must sustain the CMP.  Coquina Ctr., DAB No. 1860 at 32 (2002).

I am neither bound to defer to CMS’s factual assertions, nor free to make a wholly independent choice of remedies without regard for CMS’s discretion.  See, e.g., Barn Hill Care Ctr., DAB No. 1848 at 21 (2002).  The DAB has explained that “[t]he determination of whether a CMP amount is reasonable is a conclusion of law, not a finding of fact.”  Cedar Lake Nursing Home,DAB No. 2344 at 12 (2010).  The DAB has explained that “it is settled law that ALJ review of the reasonableness of CMP amounts imposed by CMS is de novo.”  Fireside Lodge Ret. Ctr., Inc., DAB No. 2794 at 19 (2017).  I 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 in light of the above factors.

The regulations specify that a CMP that is imposed against a facility on a per-day basis will fall into one of two ranges.  42 C.F.R. §§ 488.408, 488.438.  The upper range of a CMP, $3,050 per day to $10,000 per day, as adjusted annually under 45 C.F.R. pt. 102, is reserved for deficiencies that pose immediate jeopardy to a facility’s residents and, in some circumstances, for repeated deficiencies.  42 C.F.R. § 488.438(a)(1)(i), (d)(2).  The lower range of CMP, $50 to $3,000 per day, as adjusted annually under 45 C.F.R. pt. 102,

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is reserved for deficiencies that do not pose immediate jeopardy, but either cause actual harm to residents, or cause no actual harm but have the potential for causing more than minimal harm.  42 C.F.R. § 488.438(a)(1)(ii).  The inflation-adjusted per-day CMP ranges applicable to this case are $7,317 to $23,989 for the immediate jeopardy noncompliance, and $120 to $7,195 for non-immediate jeopardy noncompliance.  45 C.F.R. § 102.3 (2022).  In assessing the reasonableness of a CMP amount, an ALJ looks at the per-day amount, rather than the total accrued CMP.  See Kenton Healthcare, LLC,DAB No. 2186 at 28 (2008); Crawford Healthcare & Rehab., DAB No. 2738 at 20 (2016).  Pursuant to 42 C.F.R. § 488.408(g)(2), a facility cannot appeal CMS’s choice of a remedy, and an appeal of a CMP is limited to review based on the regulatory factors set forth at 42 C.F.R. §§ 488.438(f) and 488.404(a)-(c).  See, e.g., Senior Rehab. & Skilled Nursing Ctr.,DAB No. 2300 at 19-20 (2010).  In this case, CMS imposed a per-day CMP of $10,325 for immediate jeopardy noncompliance.

Considering the egregiousness of the multiple bases for immediate jeopardy discussed herein, a $10,325 CMP, which is approximately 43 percent of the allowable penalty for immediate jeopardy noncompliance, is a reasonable, if not unreasonably low, enforcement remedy.  Petitioner failed to adhere to CDC guidance and exposed its residents to a likelihood of serious harm (i.e., exposure to COVID-19), and a CMP on the low end of the mid-range of the CMP for immediate jeopardy is unquestionably reasonable.15

Petitioner has not offered any basis to dispute the very low per-day CMP of $585 for the non-immediate jeopardy noncompliance, which is less than nine percent of the allowable CMP amount.  Even without consideration of the sexual abuse deficiencies, a very low CMP is entirely justifiable based on three unappealed “D” level deficiencies involving the accuracy of assessment, quality of care, and being free of accident hazards/adequate supervision.  See CMS Ex. 1.  And further considering that Petitioner failed to adequately investigate an incident in which a staff member discovered a resident with his genitals exposed at the bedside of a severely cognitively impaired resident, with video evidence of the same perpetrator sexually assaulting at least one other female resident, the $585 CMP for non-immediate jeopardy noncompliance is absurdly low.  See 42 C.F.R. § 488.438(f).

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IV. Conclusion

For the reasons discussed above, a per-day CMP of $10,325 for immediate jeopardy noncompliance from May 11 through May 27, 2022, and a per-day CMP of $585 for non-immediate jeopardy noncompliance from May 28 through June 13, 2022, is a reasonable enforcement remedy.