Runnells Center for Rehabilitation & Healthcare, DAB CR6793 (2025)

DECISION

Petitioner, Runnells Center for Rehabilitation & Healthcare, is a long-term care facility, located in Berkeley Heights, New Jersey, that participates in the Medicare program.

In separate incidents, two of the facility’s residents, who suffered from serious mental illnesses, assaulted other residents, leaving them seriously injured.  Following a complaint investigation, the Centers for Medicare & Medicaid Services (CMS) determined that the facility was not in substantial compliance with 42 C.F.R. § 483.12.  Section 483.12 requires that each resident be free from abuse, neglect, and exploitation.

Based on the deficiency cited, CMS imposed a civil money penalty (CMP) of $1,415 per-day for four days of substantial noncompliance (July 4 through 7, 2023).

Petitioner appealed.

The parties have filed cross-motions for summary judgment.  However, I find that this matter may be resolved on the written record, without considering whether the standards for summary judgment are met (discussion below).

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For the reasons discussed below, I find that, from July 4 through 7, 2023, the facility was not in substantial compliance with section 483.12.  Petitioner has not challenged the amount of the penalty.

BACKGROUND

The Social Security Act (Act) sets forth requirements for nursing facilities to participate in the Medicare program and authorizes the Secretary of Health and Human Services to promulgate regulations implementing those statutory provisions.  Act § 1819.  The Secretary’s regulations are found at 42 C.F.R. Part 483.  To participate in the Medicare program, a nursing facility must maintain substantial compliance with program requirements.  To be in substantial compliance, a facility’s deficiencies may pose no greater risk to resident health and safety than “the potential for causing minimal harm.”  42 C.F.R. § 488.301.

The Secretary contracts with state survey agencies to conduct periodic surveys to determine whether skilled nursing facilities are in substantial compliance.  Act § 1864(a); 42 C.F.R. § 488.20.  Each facility must be surveyed annually, with no more than fifteen months elapsing between surveys.  Facilities 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).

Here, responding to a complaint, surveyors from the New Jersey Department of Health (state agency) conducted a complaint investigation survey, which they completed on July 7, 2023.  CMS Exs. 1, 3.  Based on the survey findings, CMS determined that the facility was not in substantial compliance with 42 C.F.R. § 483.12(a) (Tag F600 – freedom from abuse, neglect, and exploitation), 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, 3.

Thereafter, CMS determined that the facility returned to substantial compliance on July 8, 2023.  CMS has imposed against the facility a CMP of $1,415 per day for four days of substantial noncompliance (July 4-7, 2023), for a total penalty of $5,660.  ($1,415 x 4 = $5,660).  CMS Ex. 5 at 21; see CMS Ex. 4.

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Petitioner timely requested a hearing, and the parties have filed cross-motions for summary judgment.

Decision on the written record.  My standing order directs the parties to exchange, as a proposed exhibit and in the form of an affidavit or written declaration, the written direct testimony of any proposed witness.  Standing Order at 3 (¶ 4(c)(4)) (October 16, 2023).  The order also directs each party to indicate whether it wants to cross-examine the opposing party’s witnesses.  Order at 5 (¶ 9).  The order points out that a hearing is necessary only if a party files admissible, written direct testimony, and, in compliance with the order, the opposing party asks to cross-examine.  Order at 5 (¶ 10).

CMS lists no witnesses.  Petitioner lists five witnesses and provides their written declarations.  P. Exs. 14, 16-19.  However, CMS has not asked to cross-examine any of Petitioner’s witnesses.  Because the direct testimony is already in the record, and there are no witnesses to be cross-examined, an in-person hearing would serve no purpose.  I may therefore decide this case based on the written record without considering whether the standards for summary judgment are met.  Emery County Care and Rehab. Ctr., DAB No. 3006 at 5-8 (2020); James Brian Joyner, M.D., DAB No. 2902 at 12 (2018); see CRD Procedures ¶ 19(d).2 

Exhibits.  With its motion and brief (CMS Br.), CMS submits 14 exhibits (CMS Exs. 1-14).  With its motion and brief (P. Br.), Petitioner submits 21 exhibits (P. Exs. 1-21).  In the absence of any objections, I admit into evidence CMS Exs. 1-14 and P. Exs. 1-21. 

ISSUE

The sole issue before me is whether, from July 4 through 7, 2023, the facility was in substantial compliance with 42 C.F.R. § 483.12(a).

Except to argue that the facility was in substantial compliance, so no penalty should be imposed, Petitioner has not challenged the relatively modest CMP – $1,415 per-day. 

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DISCUSSION

1. Although the facility knew, or should have known, that residents had histories of aggressive and combative behaviors or had threatened to attack others, it did not have in place interventions that addressed their aggressive behaviors, which put the facility out of substantial compliance with section 483.12.3

Program requirement:  42 C.F.R. § 483.12 (Tag F600).  The Act requires that facility residents be free from “physical or mental abuse, corporal punishment, [and] involuntary seclusion.”  Act § 1819(c)(1)(A)(ii).  Consistent with that provision, the regulation governing abuse and neglect provides that a facility resident has the right to be free from abuse, neglect, and exploitation.  42 C.F.R. § 483.12.

“Abuse” is defined as “the willful infliction of injury, unreasonable confinement, intimidation, or punishment, with resulting physical harm, pain, or mental anguish.”  It includes verbal, sexual, physical, and mental abuse.  “Willful” means that the individual acted deliberately, not that the individual must have intended to inflict injury or harm.  42 C.F.R. §§ 483.5, 488.301.

To keep residents free from abuse, the facility must develop and implement written policies and procedures that prohibit and prevent abuse, neglect, and exploitation of residents.  It must establish policies and procedures to investigate any such allegations; and it must train staff on activities that constitute abuse and neglect, procedures for reporting incidents of abuse and neglect, dementia management, and resident abuse prevention.  42 C.F.R. § 483.12(b)(1)-(3); see 42 C.F.R. § 483.95(c).  A facility does not comply with section 483.12 if it fails to develop policies and procedures that are adequate to prevent abuse and neglect.  Heritage Plaza Nursing Ctr., DAB No. 2829 at 5 (2017).

The facility must have evidence that all alleged violations are thoroughly investigated.  42 C.F.R. § 483.12(c)(2).  As the Departmental Appeals Board has explained, failing to investigate an allegation of abuse has broader implications, putting other facility residents at risk.  Beverly Health Care Lumberton, DAB No. 2156 at 15 (2008).  In affirming the Board’s decision in Beverly, the Court of Appeals for the Fourth Circuit agreed that the facility’s failure to implement its policies for reporting and investigating abuse “indicated a wider systemic problem in the facility” that left its residents “at real risk for serious harm.”  Beverly Health Care Lumberton v. Leavitt, 338 Fed. Appx. 307 at 314 (4th Cir. 2009); Century Care of Crystal Coast, DAB No. 2076 at 25 (2007) (concluding that, where an incident went unreported and uninvestigated, the facility could not even identify, much less correct, the flaws in its system).

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To keep its residents free from abuse, the facility must “take reasonable steps to prevent abusive acts, regardless of their source.”  Pinehurst Healthcare & Rehab. Ctr., DAB No. 2246 at 6 (2009).  A facility must protect its residents from the harmful behaviors of other residents.  Where facility staff know or should know that a resident harms other residents, the facility must not leave its residents vulnerable to that behavior.  Kindred Transitional Care and Rehab – Greenfield, DAB No. 2792 at 11 (2017).

Facility policy:  Prohibition of Resident Abuse and Neglect.  As the Board has repeatedly explained, a facility’s policy for implementing a regulatory requirement reflects the facility’s own judgment about how best to achieve substantial compliance.  Failing to comply with its own policies “can support a finding that the facility did not achieve compliance with the regulatory standard.”  Bivins Memorial Nursing Home, DAB No. 2771 at 9 (2017); see Spring Meadows Health Care Ctr., DAB No. 1966 at 18 (2005) (ruling that, absent contrary evidence, it is reasonable to presume that the facility’s policies reflect professional standards); Green Valley Healthcare and Rehab. Ctr., DAB No. 2947 at 6 (2019) (citing The Laurels at Forest Glenn, DAB No. 2182 at 18 (2008)); North Las Vegas Care Ctr., DAB No. 2946 at 6 (2019); Hanover Hill Health Care Ctr., DAB No. 2507 at 6 (2013) (observing that “the Board has long held that a facility’s own policy may be sufficient evidence . . . of what the facility has determined is needed to meet the quality-of-care requirements in section 483.25.”); Life Care Ctr. at Bardstown, DAB No. 2333 at 21-22 (2009) (finding that a facility’s failing to comply with its own policies can constitute a deficiency).

This principle applies specifically to policies addressing abuse prevention.  “It is well-established that a facility is not in substantial compliance with section 483.12(b) . . . when it fails to follow or carry out its own anti-abuse policies.”  Lake Worth Nursing Home, DAB No. 3194 at 14 (2025); Avalon Place Kirbyville, DAB No. 2569 at 9 (2014) (holding that a facility’s failure to follow its anti-abuse policy can put it out of substantial compliance with section 483.12, as can its failure to follow its other policies and procedures, where those policies define what a facility deems “the goods and services necessary to avoid physical harm.”).

Here, the facility’s anti-abuse policy dictates that each resident be free from abuse, neglect, corporal punishment, misappropriation of resident property, and exploitation.  It emphasizes that the facility practices ZERO tolerance of resident abuse by anyone, including other residents.  CMS Ex. 10 at 2.  The policy defines physical abuse as “[a]ny inappropriate physical contact with a resident[,] which includes[,] but is not limited to:  hitting, slapping, pinching, and kicking.”  CMS Ex. 10 at 2.

The policy requires resident screening prior to admission:

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1. To determine whether placement in the facility is appropriate, the Admission Director, Director of Nursing (DON), and physician, as appropriate, evaluate prospective residents for indications of the potential/history of abusing other residents.
2. The Social Worker assesses residents for a personal or family history of abuse, neglect, and/or exploitation, as appropriate.
3. The Interdisciplinary Care Team implements interventions on the resident’s care plan, as appropriate.

CMS Ex. 10 at 3.

Among training requirements, the policy requires that, at the time they are hired and annually, staff be educated to monitor residents and identify potential signs and symptoms of abuse.  CMS Ex. 10 at 4.

The policy lists reporting requirements: 

1. Any witnessed, alleged, or suspected violations involving mistreatment, neglect or abuse, including injuries of unknown source, must be reported immediately to the employee’s supervisor.
2. The supervisor must immediately notify the Administrator and/or DON.
3. In compliance with regulatory requirements, the Administrator and/or DON will immediately report abuse allegations (including injuries of unknown source) to the appropriate authorities, including local law enforcement, the state agency, and the New Jersey Ombudsman.
4. Reports, including incident reports, employee statements, grievances, and other documents must be submitted in writing.
5. All residents, visitors, and others are educated and asked to report incidents of abuse or suspected incidents of abuse.  Reports may be submitted orally to staff, and staff must immediately report to a supervisor.
6. The person observing or suspecting abuse must immediately report to the Nursing Supervisor, the following information:
   1. Name of resident involved;
   2. Date and time of the incident;
   3. Where the incident occurred;

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4. The name of the person “committing the incident,” if any;
5. Names of any witnesses;
6. Type of abuse;
7. History of what occurred prior to the event; and
8. Other requested information.
   7. Upon receiving reports of abuse, the Charge Nurse and/or Nursing Supervisor immediately examines and interviews the resident.
   8. Staff record, in the resident’s medical record, the information and examination results.
   9. If sexual abuse is alleged, staff may not bathe the resident or discard clothing.
   10. Staff complete an incident report.
   11. A physician examines the resident, as indicated.
   12. Staff must notify the Abuse Coordinator.
   13. Staff conducts an immediate investigation.
   14. Upon receiving information concerning the abuse report, the Abuse Coordinator or designee requests that a representative of the Social Work Department monitor the resident concerning the incident and the resident’s reaction.
   15. The Social Worker documents the assessment and interventions in the progress notes.
   16. All phases of the reporting process are confidential.
   17. The attending physician is notified prior to the end of the shift.  With the resident’s approval, the sponsor/resident representative is notified of the report.
   18. Appropriate agencies, including, but not limited to the state agency and the Office of the Ombudsman, are immediately contacted by telephone to report instances of abuse.
   19. A written report follows, as required by the reporting agency.
   20. Notify the Ombudsman if the resident is 60 or older and in long term care.
   21. Failing to report the abuse of an elder or dependent adult is punishable by law.

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22. Any caretaker, social worker, physician, registered or licensed practical nurse, or other professional who, because of information obtained during their employment, has “reasonable cause” to suspect or believe that an institutionalized elderly person has been abused, must report that information immediately to the person designated to receive the report.
23. Any person who reports suspected abuse pursuant to law will not incur civil or criminal liability unless that person acted in bad faith.
24. Reports are confidential and may be disclosed only to the agencies specified.

CMS Ex. 10 at 5-6.

The policy also requires a thorough investigation of any allegation.  When an incident of abuse is reported, the Nursing Supervisor or designee appoints a representative to investigate the incident.  The Nursing Supervisor contacts the Abuse Coordinator and provides any supporting documents.  The investigation consists of:  a comprehensive review of the incident; an interview with the person reporting the incident; interviews with any witnesses; an interview with the resident (if possible); review of the resident’s medical record; interviews with staff (on all shifts, as appropriate) who had contact with the resident during the time of the incident; interviews with the resident’s roommate, family members, and visitors, if applicable; and review of “all circumstances” surrounding the incident.  CMS Ex. 10 at 6-7.

Preadmission Screening and Resident Review (PASRR).  PASRR is a tool used to identify persons with serious mental illness or intellectual disability.  Act § 1919(e)(7); 42 C.F.R. §§ 483.100 – 483.138.

States must have in effect a preadmission screening program for mentally ill and mentally retarded individuals admitted to nursing facilities.  Act § 1919(e)(7)(A).; 42 C.F.R. § 483.106(a).  For each resident who is mentally ill, the state mental health authority must determine 1) whether the resident’s physical and mental condition requires the level of services provided by a nursing facility or requires the level of services of an inpatient psychiatric hospital for individuals under age 21 or an institution for mental diseases providing medical assistance to individuals 65-years of age or older; and 2) whether the resident requires specialized services for mental illness.  Act § 1919(e)(7)(B); 42 C.F.R. § 483.112.

Level I PASRR identifies individuals suspected of having mental illness.  If the state determines that the individual has mental illness, he is referred to the mental health authority for Level II screening.  Level II “is the function of evaluating and determining”

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whether the resident needs nursing facility and specialized services.  42 C.F.R. § 483.128(a).

The first incident of abuse:  R23 and R7.

Resident 23 (R23).  Resident 23 (R23) was a 62-year-old man, admitted to the facility on October 6, 2022, diagnosed with schizoaffective disorder and anxiety disorder.  CMS Ex. 11 at 1.4

He had a history of psychiatric hospitalizations for schizophrenia and, more recently, cognitive decline.  He was admitted to the facility from a psychiatric hospital, where he had been involuntarily admitted on June 23, 2022.  CMS Ex. 11 at 14, 16.  At the psychiatric hospital, he underwent a neuropsychological assessment to determine his neurocognitive deficits.  He had deficits with memory, conceptual abilities, attention, concentration, visuospatial abilities, processing speed, language, and executive function.  CMS Ex. 11 at 21-23.  In an unsolicited comment, he told the examiner, “I hear voices from the devil right now – tells me to hit somebody right now.”  CMS Ex. 11 at 22 (emphasis added).  He also said that the voices told him to hurt himself, and “You know I can fight.”  CMS Ex. 11 at 34.

An August 10, 2022 psychiatric evaluation noted that R23 had been asking “if he could fight people while off his meds.”  CMS Ex. 11 at 16 (emphasis added).  He had also exhibited “mild inappropriate sexual behaviors.”  CMS Ex. 11. at 17.  A psychiatric progress note, dated September 16, 2022, indicated that he was educated about no violence because he touched a peer’s buttocks.  CMS Ex. 11 at 39.

R23’s PASRR screening, dated August 10, 2022, listed his diagnosis as schizophrenia and noted his significant impairment in functioning, including “serious difficulty interacting appropriately” with others.  The screening indicated that R23 had serious difficulty adapting to changes, and it listed his potential reactions, which included:  exhibiting agitation, self-injurious behavior, self-mutilation, suicidal ideation, physical violence or threats, appetite disturbance, delusions, hallucinations, or requiring mental health (or judicial system) intervention.  CMS Ex. 11 at 8, 15.

At the time of his admission, R23’s care plan noted that he had a “Level II PASRR” determination and required treatment related to his mental illness.  Nevertheless, until October 10, 2022 – the day after he brutally assaulted another resident – his care plan offered no guidance on how to protect him and others from behaviors stemming from his

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mental illness.  After he had assaulted and seriously injured another resident, the DON conceded that R23’s care plan did not include interventions addressing his aggressive behaviors.  CMS Ex. 12 at 8.

Later, recognizing that his behavioral issues could require a significant response, the facility amended R23’s care plan, directing staff to develop a “Crisis Intervention/Safety Plan” and to formulate and implement a behavior modification plan to address behavioral disturbances.  The care plan also proffered potential responses to the resident’s “behavioral disturbances”:  call mobile crisis, as necessary; send him to the emergency room for evaluation, as necessary; and provide the resident a quiet area in which to “de-escalate.”  CMS Ex. 11 at 2.  Nevertheless, the facility had no interventions in place, aimed at keeping residents safe until it developed the crisis intervention/safety and behavior modification plans called for in the resident’s care plan.

Resident 7 (R7).  R7 was a 60-year-old man, admitted to the facility on September 12, 2022, with a supracondylar fracture (break in the humerus bone, above the elbow).  He also suffered from seizures, schizophrenia, bipolar disorder, and anxiety.  He had psychiatric problems, with verbal outbursts.  He was weak, unsteady on his feet, and had difficulty walking.  His left arm was in a sling.  CMS Ex. 12 at 1, 5; CMS Ex. 12 at 14.  He was blind in his right eye.  CMS Ex. 12 at 17.  Prior to his hospitalization, he resided in a group home and planned to return to it when released.  CMS Ex. 12 at 2.  Notwithstanding his verbal outbursts, R7’s care plan did not identify or address behavioral issues.  CMS Ex. 12 at 2-5.

The October 9, 2022 attack.  At 4:30 p.m. on October 9, 2022, R7 was in bed in his room; R23 was walking in the hallway.  CMS Ex. 12 at 12.  At about 4:45 p.m., a nurse aide observed R23 leaving R7’s room.  His hands were bloodied, and he had blood stains on his cheeks.  He had a cut on the back of his ring finger.  When asked what happened, R23 said, “I punched [R7] in the face.”  Staff took R23 to another room.  The nurse aide found R7 in his room, sitting on the couch, with lacerations to his face, an injured eye, and a bloody nose.  CMS Ex. 11 at 54; CMS Ex. 12 at 8, 14 (describing injuries “on the right side of his face[:]  cheek, nose, and right eye area”).  When asked what happened, R7 replied, “He hit me!”  CMS Ex. 12 at 10.

A physician ordered soft restraints for R23.  Staff called 911, and police arrived.  R7 was sent to the emergency room, via ambulance, for evaluation of his injuries, and R23 was sent to a different hospital, via ambulance, for crisis evaluation.  CMS Ex. 11 at 54-55; CMS Ex. 12 at 8.

In a remarkably obtuse – and not credible – report to the state agency, the facility’s DON claims that the “facility is unable to substantiate abuse as there is no evidence as to what may have caused the altercation or which resident was responsible for initiating the altercation; it is unclear if the resident (presumably R23) acted willfully or in self-

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defense.”  CMS Ex. 12 at 11.  Even if I accepted the DON’s underlying premise that abuse does not occur unless one party is at fault (which I do not), all of the evidence – including the residents’ own statements and the facility’s response to the incident (obtaining the physician order for R23’s restraints) point to R23’s having entered R7’s room (while R7 was in bed) and deliberately hit him – hard enough or repeatedly enough to injure him badly.  For his part, R23 suffered a minor cut to his ring finger, consistent with an injury incurred by hitting something or someone with one’s fist while wearing a ring.  The notion that R23 was defending himself has no support.  R7 was weak and unsteady on his feet; he was blind in one eye; his arm was in a sling; he was in his own room.  Had R23 felt threatened, he could simply have left the room (where he should not have been in the first place).

While it is possible that R7, given to verbal outbursts and other problematic behaviors, may have said something or acted in such a way as to trigger a violent response from R23, we have no evidence of that.  And, knowing that he had verbal outbursts and other problematic behaviors, the facility should have – but did not – develop care-plan interventions to address those behaviors.

In any event, even assuming that a verbal outburst or some other provocative behavior occurred, the assault was no less abusive.  Abuse occurs whenever a resident “willfully” inflicts injury, resulting in physical harm.  The facility’s policy – which the DON seems to have disregarded – defines abuse as “[a]ny inappropriate physical contact with a resident.”  CMS Ex. 10 at 2 (emphasis added).  The facility is not free to dismiss this incident – concluding that abuse had not been established – based on the wholly unsupported and implausible notion that R23 was defending himself.

The second incident of abuse:  R24 and R11. 

Resident 24 (R24).  R24 was an 84-year-old man, admitted to the facility on March 6, 2023, from an acute care hospital.  He had a history of a stroke and was diagnosed with heart failure, metabolic encephalopathy,5 and altered mental status.  CMS Ex. 13 at 1, 3, 5, 94.

R24 had been living independently until about mid-February 2023, when he went through a significant cognitive decline.  On March 2, 2023, he was found at a gas station 40 minutes from his home; he did not know how he got there.  He fell and was taken to the emergency room.  CMS Ex. 13 at 9, 18; P. Ex. 1 at 1.  He was admitted to the hospital for management of possible dementia.  CMS Ex. 13 at 16.

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A March 7, 2023 psychiatric evaluation describes R24 as anxious and suffering from delusions.  P. Ex. 1 at 2.  The examiner directed staff to monitor his mood and behavior.  P. Ex. 1 at 2.  On March 7, the day after his admission to the facility, progress notes describe R24 as “agitated, confused, very aggressive and combative toward staff.”  CMS Ex. 13 at 94 (emphasis added).  On March 10, 2023, he is described as “going to other resident home” (I presume this means “room” or “rooms”) and attempting to pull the fire alarm.  He is “very difficult to redirect.”  CMS Ex. 13 at 89.  Although his care plan identified his metabolic encephalopathy and cognitive deficits, it did not mention his aggressive or combative behaviors.  CMS Ex. 13 at 2-4.  Following his brutal attack on his roommate, the DON conceded that his care plan did not include interventions addressing his aggressive behaviors.  CMS Ex. 14 at 15.

Resident 11 (R11).  R11 was an 83-year-old man, admitted to the facility on February 23, 2023, suffering from Alzheimer’s disease, dementia, atherosclerotic heart disease, and gastroesophageal reflux disease.  He had muscle weakness, was unsteady on his feet, and had difficulty walking.  CMS Ex. 14 at 1.  According to his care plan, initiated on February 24, 2023, he was physically aggressive to staff, but his aggression could be de-escalated by redirecting him.  CMS Ex. 14 at 6.  His progress notes indicate otherwise.  They repeatedly describe his combative behaviors and attempts to hit staff, when they attempted to redirect him: 

• February 23, 2023 – “becomes combative with staff”; “very combative and aggressive.”  CMS Ex. 14 at 45.
• March 20, 2023 – “aggressive with staff, attempting to hit staff.”  CMS Ex. 14 at 52.
• March 22, 2023 – “very aggressive.”  CMS Ex. 14 at 51.
• March 27, 2023 – “very combative.”  CMS Ex. 14 at 49.

R11’s care plan does not address these behaviors.

The March 18, 2023 attack.  R24 and R11 were roommates.  At about 9:30 p.m. on March 18, 2023, they were sitting in the dayroom, talking to each other.  Although some nurse aides were in the room, they were attending to other residents.  R24 picked up his chair and hit R11 with it.  He punched R11 in the face two or three times with his closed fist, injuring R11’s face in three areas and giving him a bloody nose.  When staff intervened, he threw chairs at them.  CMS Ex. 14 at 15; P. Ex. 18 at 1 (Bruno Decl. ¶ 4); P. Ex. 21.

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Staff called 911.  Police arrived with paramedics.  The residents were sent to separate hospitals.  CMS Ex. 14 at 15.  R11 was sent to the emergency room to be evaluated for his injuries, and he subsequently returned to the facility.  R24 was sent for a psychiatric evaluation and was pending an involuntary commitment to a psychiatric hospital.  CMS Ex. 14 at 17-18.

The facility’s investigator expressed bafflement at R24’s behavior, noting, inaccurately, that his hospital history and physical records did not discuss any aggression.  CMS Ex. 14 at 18.  The investigator seemed unaware of R24’s “very aggressive and combative” behavior, described in the March 7, 2023 progress note, shortly before the assault.  CMS Ex. 13 at 94.

The standard for assessing substantial noncompliance with section 483.12.  The statute and regulation “flatly [state] that all residents have a right to be free of physical abuse.”  The Bridge at Rockwood, DAB No. 2954 at 24 (2019); Act § 1919(c)(1)(A)(ii), 42 C.F.R. § 483.12.  They contain no qualifying language.  In contrast, the accident-prevention regulation is not so inflexible; it requires the facility to ensure that the resident environment “remains as free of accident hazards as is possible.”  42 C.F.R. § 483.25(d) (Emphasis added).

Before October 2016, the anti-abuse provision was not a separate regulation.  It was, instead, a subsection of a more general regulation, 42 C.F.R. § 483.13, which was titled “Resident behavior and facility practices.”  42 C.F.R. § 483.13(b).  In making the provision its own separate regulation, the Secretary explained: 

The provisions of § 483.13 are maintained, with revision, in proposed § 483.12, under a new title[,] “Freedom from abuse, neglect and exploitation.”  We believed this new title highlights, rather than downplays, the need to ensure that residents of long-term facilities are free from abuse, neglect, [and] exploitation.

81 Fed. Reg. 68,688 at 68,727 (Oct. 4, 2016) (Emphasis added).  Consistent with this view, CMS has instructed surveyors as follows: 

[S]ome facilities have identified that they are in compliance with [section 483.12] because they could not foresee that abuse would occur[,] and they have “done everything to prevent abuse” . . . .  However, this interpretation would not be consistent with the regulation, which states that “the resident has the right to be free from verbal, sexual, physical, and mental abuse . . . .”  Therefore, if the survey team has investigated and collected evidence that abuse has occurred, it

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is appropriate for the survey team to cite the . . . noncompliance at section [483.12] – Free from Abuse and Neglect.

CMS Ex. 8 at 12 (State Operations Manual § F600).

Further support for this reading of the anti-abuse regulation can be found in the regulations governing a hospital’s participation in the Medicare program.  There, the anti-abuse regulation contains the same unqualified prohibition:  “The patient has the right to be free from all forms of abuse or harassment.”  42 C.F.R. § 482.13(c)(3).  In adopting the absolute language of the regulation, the Secretary explicitly rejected suggestions that the language be qualified.

• Some commenters suggested that the language, “free from abuse,” be changed to “protected from abuse.”  The Secretary rejected the suggestion, responding:  “While the patient is under the hospital’s care and on its property, the hospital is responsible for ensuring the patient’s health and safety and his or her physical, emotional, and psychological well-being.”  64 Fed. Reg. 36,070, 36,076 (July 2, 1999) (Emphasis added).
• One commenter complained that “hospital personnel will not always be able to anticipate the potential for harassment and harm inflicted by another patient.”  The Secretary responded that “any sort of abuse, including verbal, physical, psychological, sexual, and emotional, is unacceptable.”  Id.

See Aurora Chicago Lakeshore Hospital, DAB CR5480 at 34-35 (2019) (viewing the Secretary’s responses as establishing that hospitals “have little leeway” when failing to ensure that patients are free from all forms of abuse).

Notwithstanding the plain language of the statute and regulation governing abuse in long-term-care facilities, the Board has insinuated into the regulation a qualifier.  While acknowledging that (at least “theoretically”) the plain language of section 483.12 means that the facility is not in substantial compliance based solely on the finding that a resident has been abused, the Board created a qualifier, distinguishing resident-on-resident abuse from staff abuse of residents.  The Bridge at Rockwood, DAB No. 2954 at 24.

[W]hile residents may harm each other, the facility’s responsibility for protecting them from each other cannot extend to “entirely unforeseeable risks.”  [Kindred Transitional Care and Rehab. – Greenfield, DAB No. 2792] at 9-10 [2017] (citing Woodstock Care Ctr., DAB No. 1726 at 25-35 (2000), aff’d, Woodstock Care Ctr. v. Thompson, 363 F.3d 583 (6th Cir. 2003)).  Hence, the Board has held that

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“determining whether a facility failed to protect a resident’s right to be free from abuse when another resident behaved harmfully depends on whether the facility staff had a basis to be aware that such behavior might occur and yet left the resident vulnerable to it.”  Id. at 11.6

Bridge at Rockwood, DAB No. 2954 at 24.

The assaults were not “entirely unforeseeable.”  Ultimately, in this case, I need not disturb the Board’s determination to deviate from the plain language of the statute and regulation.  The exception that the Board has carved out is extremely narrow – as it should be:  when evaluating resident-on-resident abuse, the question is whether the risk of abuse was entirely unforeseeable.  Bridge at Rockwood, DAB No. 2954 at 24.  “Entirely unforeseeable” does not mean that the resident must already have assaulted another resident.  The Board’s deviation from the plain language of the regulation does not entitle a facility to one free resident-on-resident assault before it is held accountable.

Indeed, noncompliance with section 483.12 can be found even if no actual abuse of a resident has occurred.  The goal of the regulation is to keep residents free from abuse.  That goal cannot be achieved if “a facility could be found in compliance even though it failed to take reasonable steps to protect residents from potentially injurious acts [that] it knew or should have known might occur.”  Honey Grove Nursing Ctr., DAB No. 2570 at 3-4 (2014), quoting Western Care Management Corp., d/b/a Rehab. Specialties Inn, DAB No. 1921 (2004); see Woodstock, DAB No. 1726 at 27 (rejecting the suggestion that the facility must have advance warning of each adverse event in order to be responsible for taking reasonable measures to prevent injurious occurrences).

R23’s assault on R7.  Petitioner maintains that “there was no possible way staff could have predicted” R23’s assault on R7.  P. Br. at 17.  In fact, the facility should have known that R23 might hit someone because he warned assessors that he would do so.  When a delusional schizophrenic announces that his voices are telling him to hit someone, his threat should be taken seriously.  But here, facility staff either did not review the assessment reports or they disregarded them.

• During a June 24, 2022 assessment, R23 told the examiner that voices told him to hurt himself, and “you know I can fight.”  CMS Ex. 11 at 34.

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• In August 2022, he told the examining psychologist that the devil was telling him to hit someone.  CMS Ex. 11 at 22.
• His August 10, 2022 PASRR screening listed, among his potential reactions to changes, self-injurious behavior, and physical violence or threats.  CMS Ex. 11 at 8, 15.  His impulse control was impaired.  CMS Ex. 11 at 46; P. Ex. 14 at 12 (Radar Decl. ¶ 34).  The evaluation team recommended “formulation of a behavior modification plan to address any behavioral disturbances.”  CMS Ex. 11 at 7; P. Ex. 14 at 12 (Radar Decl. ¶ 35).  Yet, two months later, the facility had not formulated a behavior modification plan.
• On September 16, 2022, R23 was “educated” about no violence because he had inappropriately touched another resident.  CMS Ex. 11 at 39.

Petitioner also maintains that, at the time of the assault, staff “constantly had visual observation of R23.”  P. Br. at 18.  This is obviously not the case since staff did not observe him entering R7’s room and, until he emerged from the room with blood on his hands and face, did not know that he had assaulted R7.

R24’s assault on R11.  Petitioner points to R24’s initial evaluation, performed on March 6, 2023, and concludes that “no indications” suggested that he presented a danger to himself or others.  P. Br. at 3-4, citing P. Ex. 1.  That may have been true on March 6, but the following day, staff reported that he was agitated, very aggressive and combative toward staff.  CMS Ex. 13 at 94.  Shortly thereafter, following a 30-minute mental status exam, conducted on March 9, 2023, a psychologist answered “no” to the question:  is the patient at risk for aggressive behavior?  P. Ex. 2 at 2.  She did not explain, and perhaps was not even aware of, his recent aggression toward staff.  In any event, she also diagnosed ICD-10:  F43.25 “adjustment disorder with mixed disturbance of emotions and conduct.”  P. Ex. 2 at 4.

Thus, the facility’s own documentation establishes that neither instance of a resident abusing another resident was entirely unforeseeable.  R23’s aggression was foreseeable because the resident himself told his evaluators that he would hit someone.  R24’s aggression was foreseeable because he had already been aggressive and combative toward staff.  Facility staff simply disregarded or were unaware of these warning signs. Either instance, by itself, would put the facility out of substantial compliance with section 483.12.

Moreover, even if the abuse had not occurred, the facility’s failure to develop adequate care plans to address the aggressive and combative behaviors of R23 and R24 put the facility out of substantial compliance with section 483.12.  And R23 and R24 were not the only potentially threatening residents for whom the facility did not take reasonable

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steps to prevent injurious acts.  Both R7 and R11, the victims of abuse in these instances, also had well-documented behavioral issues.  Yet, the facility did not develop adequate care plans to address them.  Failing to take such reasonable steps also put the facility out of substantial compliance with section 483.12.

CONCLUSION

Because it did not take reasonable steps to protect its residents from the abusive behaviors of others, the facility was not in substantial compliance with 42 C.F.R. § 483.12.

I affirm, as reasonable, the penalty imposed – $1,415 per day, which Petitioner has not contested.