Terrace Acquisition II, LLC d/b/a Fordham Nursing and Rehabilitation Center, DAB CR6914 (2026)

DECISION

Resident 1 (R1), an elderly woman with severe cognitive impairments and physical disabilities, was assessed by Terrace Acquisition II, LLC d/b/a Fordham Nursing and Rehabilitation Center (Petitioner), a skilled nursing facility participating in the Medicare program, to be at risk for abuse while residing at Petitioner’s facility.  Late one night, a certified nursing assistant (CNA1) entered R1’s room and saw a licensed practical nurse (LPN1) and R1 both unclothed below the waist engaged in what CNA1 characterized as a sexual act.  LPN1 saw CNA1 and asked CNA1 not to report the incident, even offering CNA1 money to keep his secret.  CNA1 reported the incident to a supervisory register nurse (RN).  The supervisory RN called the police, and the police took LPN1 into custody.  Petitioner also informed the New York State Department of Health (state agency) and provided additional abuse training to staff.

The state agency investigated the incident and concluded that Petitioner did not substantially comply with the Medicare program participation requirement to protect a resident’s right to be free from abuse.  The state agency also concluded that Petitioner’s noncompliance immediately jeopardized the health and safety of residents.  Based on the

Page 2

results of the investigation, the Centers for Medicare & Medicaid Services (CMS) imposed remedial civil money penalties (CMP) on Petitioner for 3 days of immediate jeopardy-level noncompliance and 26 days of noncompliance that did not immediately jeopardize residents.  Petitioner requested a hearing to dispute the state agency’s findings of noncompliance and CMS’s imposition of CMPs.

For the reasons explained below, I conclude that:  Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(a)(1); CMS’s determination that Petitioner immediately jeopardized the health and safety of residents is not clearly erroneous; and the amount of the remedial per-day CMPs is reasonable.

I.  Legal Framework

The Medicare program “provides basic protection against the costs of . . . related post-hospital . . . care” for individuals over the age of 65 who are eligible for Social Security retirement benefits and for individuals under the age of 65 who meet other criteria.  42 U.S.C. § 1395c.  Post-hospital care includes extended care services provided at a skilled nursing facility (facility).  42 U.S.C. §§ 1395f(a)(2)(B), 1395x(h)-(i).

For Medicare program purposes, a facility is an institution that is primarily engaged in providing skilled nursing care and/or rehabilitation services for its residents but is not primarily engaged in the care and treatment of mental diseases.  42 U.S.C. §§ 1395x(j), 1395i-3(a)(1).  If a facility wants to participate in the Medicare program, it must enroll in that program.  42 U.S.C. § 1395cc(j).  Because a facility is a “provider of services” for Medicare program purposes, each facility participating in the program must file a provider agreement with the Secretary of Health and Human Services (Secretary).  42 U.S.C. §§ 1395cc(a), 1395x(u).

A Medicare participating facility must meet a variety of ongoing statutory requirements as to how it provides services, maintains the rights of its residents, and administers its

 facility.1  42 U.S.C. § 1395i-3(a)(3), (b)-(d).  Further, each facility must comply with “such other requirements relating to the health, safety, and well-being of residents or

Page 3

relating to the physical facilities thereof as the Secretary may find necessary.”  42 U.S.C. § 1395i-3(d)(4)(B); see 42 U.S.C. § 1395i-3(c)(1)(xi), (f).  The Secretary promulgated regulations to implement the statutory requirements and to establish those “other requirements relating to health, safety, and well-being of residents.”  See 42 C.F.R. pt. 483, subpt. B.2 

When a facility fails to meet a statutory or regulatory participation requirement, then the facility has a “deficiency.”  42 C.F.R. § 488.301; see also 42 U.S.C. § 1395i-3(h)(1).  “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.”  42 C.F.R. § 488.301; see also 42 U.S.C. § 1395i-3(h)(3).  To maintain “substantial compliance,” a facility’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.

“It is the duty and responsibility of the Secretary to assure that requirements which govern the provision of care in skilled nursing facilities . . . are adequate to protect the health, safety, welfare, and rights of residents and to promote the effective and efficient use of public moneys.”  42 U.S.C. § 1395i-3(f)(1).  To do so, the Secretary contracts with state agencies to survey participating facilities.  42 U.S.C. §§ 1395aa(a), 1395i-3(g); 42 C.F.R. § 488.10.  Standard surveys are unannounced and occur at least once every 15 months.  42 U.S.C. § 1395i-3(g)(2)(A)(i), (iii)(I).  State agencies also investigate complaints made against facilities.  42 U.S.C. § 1395i-3(g)(1)(C), (4).

When the results of a survey or investigation show that a facility is not in substantial compliance with Medicare program participation requirements, the Secretary may impose remedies on the facility, which include the following:  denial of payment for Medicare beneficiaries admitted to the facility; denial of payment for new admissions to the facility; and termination of the facility’s Medicare provider agreement.  42 U.S.C. §§ 1395i-3(h), 1395cc(b); 42 C.F.R. § 488.406.

Page 4

Another enforcement remedy is a CMP.  42 U.S.C. § 1395i-3(h)(2)(B)(ii).  CMS may impose a per-instance CMP for each instance of the facility’s noncompliance or a per-day CMP for the number of days a facility 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 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 noncompliance that poses immediate jeopardy to the health and safety of residents.  45 C.F.R. § 102.3 (2020); 87 Fed. Reg. 15100, 15111-12, 15119-20 (Mar. 17, 2022); see also 42 C.F.R. § 488.438(a) (CMP ranges before statutory adjustments).

All remedies imposed on facilities are remedial in nature because they “ensure prompt compliance with [Medicare] program requirements” and “are applied on the basis of noncompliance found during surveys conducted by CMS or by the survey agency.”3  42 C.F.R. § 488.402(a)-(b); NMS Healthcare of Hagerstown, DAB No. 2603 at 8 n.6 (2014) (holding that, although the regulations use the term “civil money penalty,” the regulations also “make it clear that a CMP is not a punitive mechanism.”).  To assist a facility in returning to substantial compliance quickly, facilities must file a plan of correction with the state agency/CMS.  42 C.F.R. § 488.402(d).

When CMS selects a remedy to impose on a facility, it determines the scope (i.e., the number of residents affected or potentially affected) and severity (i.e., the degree of harm or potential harm) for each deficiency.  See 42 C.F.R. § 488.404(a)-(b).  The highest level of severity occurs when the noncompliance immediately jeopardizes the health or safety of facility residents.  See 42 U.S.C. § 1395i-3(h)(1)(A).  “Immediate jeopardy” exists when “the provider’s noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.”  42 C.F.R. § 488.301.

A facility may request a hearing before an administrative law judge to dispute the finding of noncompliance leading to the imposition of an enforcement remedy.  42 U.S.C. §§ 405(b), 1320a-7a(c)(2), 1395i-3(h)(2)(B)(ii), 1395cc(h)(1); 42 C.F.R. §§ 488.330(e)(3)(ii), 488.402(f)(1)(iv), 488.408(g)(1), 488.434(a)(2)(viii), 498.3(b)(8), (13), 498.40; see Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 21 (2000) (holding that facilities are entitled to review of any determination of substantial

Page 5

noncompliance with Medicare participation requirements whether termination or “some other remedy is imposed.”); see also 5 U.S.C. §§ 554, 556.  However, CMS’s choice of remedies is not reviewable.  42 C.F.R. §§ 488.438(e)(2), 488.408(g)(2), 498.3(b)(13).

When challenging the imposition of a CMP, a facility may also challenge the level of noncompliance if:  1) a successful challenge would affect the range of CMP amounts imposed on the facility; or 2) a finding of substandard quality of care results in the loss of approval of a nurse aide training program.  42 C.F.R. § 498.3(b)(14), (d)(10).  If a facility challenges CMS’s determination as to the level of noncompliance, then the facility must show that CMS’s determination was clearly erroneous.  42 C.F.R. § 498.60(c)(2).

A facility may also dispute the amount of the CMP.  The review of the CMP amount is limited to considering the statutory and regulatory factors for setting the CMP amount.  42 C.F.R. § 488.438(e)(3); see 42 U.S.C. §§ 1320a-7a(d), 1395i(h)(2)(B)(ii)(I); 42 C.F.R. § 488.438(f).  A CMP may not be reduced to zero.  42 C.F.R. § 488.438(e)(1).

When a facility challenges CMS’s determination that there was a deficiency, CMS must make a prima facie case that the facility failed to substantially comply with Medicare participation requirements and, if such a showing is made, the facility must then prove substantial compliance by a preponderance of the evidence.  Hillman Rehab. Ctr., DAB No. 1611 at 8 (1997), aff’d, Hillman Rehab. Ctr. v. U.S. Dep’t of Health & Hum. Servs., No. Civ.A. 98-3789 (GEB), 1999 WL 34813783 (D.N.J. May 13, 1999); see Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004); Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004), aff’d, Batavia Nursing & Convalescent Ctr. v. Thompson, 129 F. App’x 181 (6th Cir. 2005); Emerald Oaks, DAB No. 1800 (2001).

Either party may request Departmental Appeals Board (DAB) review of an administrative law judge’s decision.  42 C.F.R. § 498.80; see also 5 U.S.C. § 557.

II.  Background

Petitioner is a facility located in Bronx, New York.  From April 19 through 22, 2022, state agency surveyors conducted a complaint investigation/abbreviated survey and a partially extended survey at Petitioner’s facility.  CMS Ex. 1 at 1; CMS Ex. 2 at 1; P. Ex. 16 at 1.  The state agency found that Petitioner did not substantially comply with 42 C.F.R. § 483.12(a)(1) and that the noncompliance immediately jeopardized the health and safety of residents.  CMS Ex. 1 at 1-2.  The state agency also concluded that Petitioner took corrective action to resolve the immediate jeopardy situation during the survey.  CMS Ex. 1 at 1, 3, 7; see P. Exs. 14-16.

In a May 3, 2022 letter, the state agency notified Petitioner that:  Petitioner had to submit a plan of correction by May 13, 2022; the state agency was imposing a Directed Plan of Correction and Directed Inservice Training for Petitioner’s staff; and the state agency

Page 6

recommended that CMS impose a CMP on Petitioner.  P. Ex. 16 at 1, 3-4.  On May 12, 2022, Petitioner submitted a plan of correction.  P. Ex. 1.

On May 16, 2022, CMS issued a notice to Petitioner that CMS was imposing a $10,200 per-day CMP on Petitioner for three days (from April 18 through April 20, 2022), and a $245 per-day CMP commencing April 21, 2022, and ending when Petitioner returned to substantial compliance with Medicare program participation requirements.  CMS Ex. 2 at 1-2.  CMS also prohibited Petitioner from operating a Nurse Aide Training and Competency Evaluation Program (NATCEP).  CMS Ex. 2 at 1, 4.

In a July 31, 2022 notice, CMS informed Petitioner that a state agency revisit to the facility concluded that Petitioner returned to substantial compliance on June 13, 2022.  Electronic Filing System (E-File) Doc. No. 39 at 1; see also P. Ex. 17.  CMS also stated that it was imposing the following CMPs:  $10,200 per day from April 18-20, 2022, for a total of $30,600; and $245 per day from April 21, 2022, through June 12, 2022, for a total of $12,985.4  E-File Doc. No. 39 at 1.

On July 14, 2022, Petitioner requested a hearing to dispute the findings of noncompliance as well as the duration and amounts of the CMPs.  On July 15, 2022, the Civil Remedies Division acknowledged the hearing request and issued my Standing Prehearing Order.  On December 14, 2022, CMS filed a prehearing brief and 11 proposed exhibits.  One of the proposed exhibits (CMS Exs. 9) was the written direct testimony of a state agency surveyor.  On February 23, 2023, Petitioner submitted a prehearing brief and 21 proposed exhibits.  Three of the proposed exhibits (P. Exs. 19-21) were written direct testimony from Petitioner’s Administrator, Petitioner’s Director of Nursing (DON), and CNA1.  Petitioner also requested to cross-examine the state agency surveyor and objected to some of CMS’s proposed exhibits.

On February 24, 2023, I notified the parties I would hold a hearing on April 19, 2023, to allow Petitioner to cross-examine the state agency surveyor.  In the hearing notice, I overruled Petitioner’s objections and admitted all proposed exhibits into the record.5

Page 7

On April 19, 2023, I held a hearing at which Petitioner cross-examined the state agency surveyor.  At the end of the hearing, I discussed the schedule for post-hearing briefing and the requirement that the parties present all issues and arguments in their post-hearing briefs without cross-referencing earlier briefs.  Tr. 62-63; see June 2, 2023 Notice of Receipt of Transcript and Post-Hearing Briefing Schedule at 2.  CMS filed a post-hearing brief (CMS Br.) in August 2023, Petitioner filed a post-hearing brief (P. Br.) in October 2023, and CMS filed a reply brief and a corrected reply brief (CMS Reply) in November 2023.

III.  Issues

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

2) If Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(a)(1), whether CMS’s determination that Petitioner immediately jeopardized the health and safety of its residents is clearly erroneous.

3) If Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(a)(1), whether the amount and duration of the CMPs imposed is reasonable.

IV.  Findings of Fact

1) During the relevant events in this case, R1 was an 84-year-old woman.  See P. Ex. 11 at 1; CMS Ex. 7 at 2-3.

2) Petitioner admitted R1 to its facility on May 26, 2021.  P. Ex. 11 at 1; CMS Ex. 6 at 2; CMS Ex. 7 at 3.

3) R1’s medical diagnoses included:  unspecified dementia; peripheral vascular disease; hypertension; severe protein-calorie malnutrition; age-related osteoporosis without current pathological fracture; severe protein-calorie malnutrition; muscle weakness; need for assistance with personal care; and difficulty walking.  P. Ex. 11 at 1; CMS Ex. 7 at 10-11.

4) On May 26, 2021, Petitioner established a care plan for R1.  CMS Ex. 5.

a. The care plan identified R1 as having impaired cognitive function and deficits in self-care/activities of daily living (ADL) due to dementia.  CMS Ex. 5 at 2-3.

Page 8

b. The care plan also identified that R1 “is at risk to be a victim of abuse, neglect and/or mistreatment . . . due to cognitive deficits . . . [and] physical disabilities.”  CMS Ex. 5 at 1.

c. The care plan stated the following goal:  “Resident will not be abused or victimized by others during the review period.”  CMS Ex. 5 at 1.

5) On February 8, 2022, facility staff conducted a quarterly Minimum Data Set (MDS) assessment for R1.  CMS Ex. 7.

a. R1’s Brief Interview for Mental Status (BIMS) yielded a score of 5.  CMS Ex. 7 at 5.

b. A BIMS score of 5 is severe cognitive impairment.  CMS Ex. 6 at 6; CMS Ex. 9 ¶ 6.

c. R1 required a one-person physical assist to walk or transfer between surfaces. CMS Ex. 7 at 7.

d. When standing from a seated position, walking, or transferring between surfaces, R1 was “[n]ot steady, only able to stabilize with staff assistance.”  CMS Ex. 7 at 8.

e. R1 used a walker.  CMS Ex. 7 at 8.

6) On April 19, 2022, CNA1, an employee of the facility, drafted and signed a statement that he “witnessed [LPN1] having sex with [R1] in bed 205(A).”  CMS Ex. 4 at 4.

a. CNA1 stated that, on April 18, 2022, sometime shortly after arriving at work between 11:20 p.m. and 11:30 p.m., CNA1 went to R1’s room and saw the following:  “The nurse was facing the door with his pants down [and] the Resident was on her back across the bed with her pants off and legs in the air.”  CMS Ex. 4 at 4; see also CMS Ex. 4 at 6; P. Ex. 21 ¶¶ 3-4.

b. CNA1 further stated:  “The nurse seen me as I opened the door he pulled up his pants and came in the hallway.  He asked me not to say anything[.]  [H]e said he made a mistake and had a weak moment[.]  [H]e also kept saying he was sorry.”  CMS Ex. 4 at 5; see also P. Ex. 21 ¶ 5.

c. CNA1 also stated that LPN1 followed him around for 30 minutes, asking CNA1 not to tell anyone of the incident, promising not to do it again, and

Page 9

offering CNA1 money “to keep quiet.”  CMS Ex. 4 at 5; see also P. Ex. 21 ¶ 6.

7) In an April 19, 2022 statement, a facility supervisory RN stated the CNA1 informed the supervisory RN of the incident between the LPN1 and R1.  CMS Ex. 4 at 7.

a. The supervisory RN attempted to assess R1 for injury, but R1 refused the assessment.  CMS Ex. 4 at 7; see also P. Ex. 20 ¶ 5.

b. The supervisory RN informed the facility DON of the incident involving LPN1 and R1, and the DON instructed the supervisory RN to call the police and transfer R1 to a hospital.  CMS Ex. 4 at 7; P. Ex. 20 ¶¶ 3, 5.

c. The supervisory RN called 911, which resulted in the police investigating the incident and the emergency medical service (EMS) transporting R1 to a hospital.  CMS Ex. 4 at 7; see also CMS Ex. 6 at 1.

8) A facility Progress Note, entered at 12:42 a.m. on April 19, 2022, in R1’s records, indicated that staff conducted a “[p]hysical exam [of R1] to [rule out] or confirm allegations of abuse.”  P. Ex. 11 at 1.

a. The “Summary of observations” section stated:  “Allegations were made rendering the necessity for follow up evaluation and care.”  P. Ex. 11 at 2.

b. The section titled “Request of MD Recommendation” stated that the facility notified R1’s physician of the allegations of sexual abuse, and the physician directed Petitioner’s staff to transfer R1 to a hospital emergency room.  P. Ex. 11 at 2.

9) The facility DON signed an “Accident Report” for an “occurrence” on April 18, 2022, at 11:30 p.m.  CMS Ex. 4 at 1.

a. The report described the occurrence as follows:  “During unit rounds of CNA, he observed the male unit nurse standing in front of resident with his pants down.  Resident’s legs were up in the air with her pants down.”  CMS Ex. 4 at 1.

b. The report also stated that:  R1’s physician ordered R1 transferred to the hospital; facility staff called 911; R1 was transferred to a hospital, and the police took LPN1 into custody.  CMS Ex. 4 at 1.

Page 10

10)The facility reported the incident to the state agency on April 19, 2022, at 1:31 a.m.  CMS Ex. 4 at 8-11.

11)The facility terminated LPN1’s employment.  P. Ex. 19 ¶ 30; Tr. 36.

V.  Conclusions of Law and Analysis

1. Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(a)(1) because Petitioner failed to protect a resident’s right to be free from abuse when one of Petitioner’s nurses sexually abused the resident.  A nurse employed by Petitioner, LPN1, engaged in a sexual act with R1.  At the time, LPN1 was the nurse assigned to R1’s floor at Petitioner’s facility.  Petitioner’s care plan for R1 identified R1 as vulnerable to abuse due to R1’s severe cognitive impairments and significant physical mobility limitations.  The care plan’s goal was that R1 was to be free from abuse; however, the care plan provided limited interventions to achieve that goal, and that goal was not achieved.

“[S]killed nursing facilit[ies] must protect and promote the rights of each resident, including . . . [t]he right to be free from physical or mental abuse . . . .”  42 U.S.C. § 1395i-3(c)(1)(A)(ii).  The Secretary’s regulations implementing this requirement state unequivocably that each “resident has the right to be free from abuse, neglect, misappropriation of resident property, and exploitation as defined in this subpart.”  42 C.F.R. § 483.12.6  Further, the regulations prohibit a facility from using “verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion.”  42 C.F.R. § 483.12(a)(1).

The regulations define “abuse” as “the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish” and “includes . . . sexual abuse.”  42 C.F.R. § 483.5.  The word “willful,” as used in the definition of “abuse,” means that “the individual must have acted deliberately, not that the individual must have intended to inflict injury or harm.”  42 C.F.R. § 483.5.  The term “sexual abuse” means “nonconsensual sexual contact of any type with a resident.”  42 C.F.R. § 483.5.

In the present case, CNA1 witnessed what he concluded was LPN1 having sex with R1.  CNA1 described the scene as LPN1 and R1 being naked from the waist down with R1

Page 11

laying across her bed with her legs in the air.  CNA1 also described how LPN1 followed CNA1 out of R1’s room and asked CNA1 not to report the incident, even offering money to CNA1 to remain quiet.  CMS Ex. 4 at 4-6.  Although CNA1 did not specifically define what he meant by “having sex,” I take it to mean, in its most generic sense, that LPN1 was in physical contact with R1 in a sexual manner.

I give weight to CNA1’s written statement as to this incident because:  CNA1 wrote this statement nearly contemporaneously with the incident; CNA1’s written direct testimony, made under penalty of perjury, confirms the details in the written statement; the state agency surveyor’s testimony about her interview with CNA1 is consistent with CNA1’s written statement; Petitioner’s investigation confirmed through video footage that LPN1 entered R1’s room four minutes before CNA1 opened the door to the room; and Petitioner’s investigation conclude that CNA1 “caught” LPN1 “so quickly” after LPN1 entered R1’s room.  P. Ex. 19 ¶¶ 26-27; P. Ex. 21 ¶¶ 3-6; CMS Ex. 9 ¶ 9.

Based on this evidence from the record, I conclude that LPN1’s actions constituted “sexual abuse” because LPN1 made sexual contact with a resident and there is no evidence that it was, or could have been, consensual.  R1 had severe cognitive impairments and, under Petitioner’s abuse policy, R1 would have needed to have the capacity to consent before she could engage in a sexual relationship.  CMS Ex. 3 at 5.  There is no evidence in the record that R1 had such capacity.  Indeed, Petitioner had previously added to R1’s care plan that she was at risk for abuse based on her cognitive deficits and physical disabilities.  CMS Ex. 5 at 1.  R1’s lack of cognitive capability was demonstrated when questioned shortly after the incident with LPN1:  “[R1] became very nervous and started shaking and crying saying no I didn’t do anything, there was no one here.”  CMS Ex. 4 at 2.  In addition, I conclude that LPN1 acted willfully because, according to CNA1, LPN1 stated that “he made a mistake and had a weak moment.”  CMS Ex. 4 at 5.

Therefore, I conclude that Petitioner was not in substantial compliance with section 483.12(a)(1).  I do so because the statute and regulations provide residents with the right to be free from abuse and place the duty to protect that right on facilities.  42 U.S.C. § 1395i-3(c)(1)(A)(ii); 42 C.F.R. § 483.12(a)(1).

Petitioner does not agree that R1 had an absolute right to be free from abuse while residing in Petitioner’s facility.  Petitioner made several arguments as to why it was in substantial compliance with the regulations.  As explained below, I reject these arguments.

Petitioner asserts in briefing that “there is no evidence in the record establishing sexual assault, and therefore, no proof of a violation of the abuse regulations in the manner CMS alleges existed.”  P. Br. 24.  However, CNA1’s written testimony, which Petitioner submitted as one of its exhibits, describes the incident as LPN1 “with his pants down”

Page 12

and R1 “lying on the bed with her pants off and legs in the air.”  P. 21 ¶ 4.  Even if CNA1 could somehow have misunderstood what was happening, LPN1 made it clear to CNA1 that “[LPN1] had made a mistake, that he was sorry and had had a weak moment.  He tried to convince me not to say anything about what I had seen.”  P. 21 ¶ 5.  Given the context of those comments, CNA1 did not misunderstand what had been transpiring.  Therefore, I reject Petitioner’s assertion that no sexual abuse took place because Petitioner’s own witness credibly testified to the sexual abuse.

Petitioner also argues that it was in substantial compliance with 42 C.F.R. § 483.12, because Petitioner was in full compliance with that regulation before and after LPN1’s misconduct.  P. Br. at 5.  Petitioner asserts:

[L]ong before the events involving [the floor nurse], [Petitioner] had implemented comprehensive systems to protect each resident’s right to be free from abuse.  These include policies and procedures to guide informed hiring decisions, to prevent resident abuse, to train staff, to report allegations, to investigate allegations, and to keep residents safe.  CMS’s witness, the surveyor, testified she reviewed [Petitioner’s] policies and procedures to prohibit abuse and confirmed they met the regulatory requirements (Tr. at 47), and [Petitioner] followed them in the case of [the floor nurse] (Tr. at 15-18, 47-49).

P. Br. at 5.  Petitioner lays out its compliance as follows:  Petitioner checked LPN1’s nursing license and credentials (P. Br. at 6; P. Ex. 3), Petitioner performed a background check of LPN1 (P. Br. at 6; P. Ex. 4); Petitioner had a policy to prevent abuse (P. Br. at 7; CMS Ex. 3); Petitioner had a policy on conducting resident room checks (P. Br. at 7; P. Ex. 5); Petitioner trained staff on abuse prevention (P. Br. at 7-8; P. Ex. 6); Petitioner promptly reported the April 18, 2022 incident to law enforcement and the state agency (P. Br. at 8; CMS Ex. 4 at 7-11); Petitioner promptly transferred R1 to a hospital (P. Br. at 9; P. Ex. 11 at 2-3); Petitioner promptly initiated an investigation (P. Br. at 9; CMS Ex. 4); Petitioner’s staff promptly informed the facility Administrator of the incident (P. Br.at 9; P. Ex. 19 ¶ 21); Petitioner’s investigation confirmed, through hallway video evidence, that LPN1 was in R1’s room for only four minutes before CNA1 opened R1’s door (P. Br. at 9; P. Ex. 19 ¶ 6); and Petitioner’s staff, i.e., CNA1 and the supervisory RN, took immediate action to ensure that LPN1 was not left alone in the facility and was removed from the facility (P. Br. at 10; P. Ex. 21 ¶ 4; P. Ex. 21 ¶¶ 7-8).

Page 13

While there is no dispute that Petitioner complied with section 483.12(a)(3), (b) and (c), this does not mean that Petitioner was in substantial compliance with all requirements in section 483.12.  As I concluded above, Petitioner was not in substantial compliance with section 483.12 because it failed to protect R1’s right to be free from abuse.

Next, Petitioner argues that it did all that could have been done to protect R1.  P. Br. at 14.  Petitioner’s counsel elicited testimony from the state agency surveyor that there is nothing else Petitioner could have done to predict LPN1’s actions or to prevent them.  Tr. 15-21, 24, 46-49.  Petitioner asserts that a facility cannot be found noncompliant unless it was aware that there might be abusive behavior directed at residents and the facility left residents vulnerable to that potential abusive behavior.  P. Br. at 14.  In essence, this is an argument that LPN1’s misconduct must have been foreseeable for Petitioner to be noncompliant.  Petitioner acknowledges that CMS guidance documents (i.e., the State Operations Manual) indicate that facility staff abuse of residents does not have to be foreseeable for the facility to be noncompliant with 42 C.F.R. § 483.12.  P. Br. at 11.  However, Petitioner argues that the CMS guidance document improperly establishes substantive rules in violation of 42 U.S.C. § 1395hh(a)(1) and Azar v. Allina Health Srvs, 139 S.Ct. 1804 (2019) because it was not promulgated through the notice and comment process.  P. Br. at 11-14.  Further, Petitioner lays out its interpretation of section 483.12 and concludes that, if CMS wants to hold facilities responsible for the acts of staff abuse, CMS must modify the regulations through notice and comment.  P. Br. at 18-21.

The DAB has long affirmed that facilities are responsible for any staff misconduct that violates Medicare participation requirements, even matters for which “facility owners or management may not be aware.”  Kindred Transitional Care & Rehab - Greenfield, DAB No. 2792 at 10, 12 (2017) (holding that a facility may not disavow the wrongdoing of its staff and may properly be held responsible for its staff’s actions); Madison Cnty. Nursing Home, DAB No. 2895 at 8-9 (2018); Springhill Senior Residence, DAB No. 2513 at 15 (2013); Gateway Nursing Ctr., DAB No. 2283 at 8 (2009).  The DAB explained its reasoning as follows:

The [DAB] has repeatedly held that a [skilled nursing facility] acts through its staff and administrators, who as agents of their employers “make and implement policies, provide care, and perform the various responsibilities called for” by federal programs.  Beverly Health Care Lumberton, DAB Ruling No. 2008-05, Denial of Petition for Reopening of DAB No. 2156, at 6 (2008); Springhill Senior Residence, DAB No. 2513, at 14 (2013) (for the purpose of evaluating facility compliance with Medicare participation requirements, a facility acts through staff and cannot dissociate itself from the consequences of its employees’ actions); Kindred Transitional Care & Rehab. – Greenfield, DAB No. 2792, at 14 (2017) (a facility “is properly held responsible” for employee misfeasance “by virtue of the obligations it assumes as a condition for receiving federal healthcare program monies”).  Therefore, a [skilled nursing facility]

Page 14

“whose administration and staff have been found not to be substantially complying with federal requirements is itself subject to administrative enforcement remedies” and “cannot avoid such remedies merely by attempting to disown the acts and omissions of its own staff and administration since the facility elected to rely on them to carry out its commitments.”  Beverly, DAB Ruling No. 2008-05, at 6.

Furthermore, the [DAB] previously has determined that a facility’s responsibility for employee misconduct is not limited to circumstances where employees improperly or poorly executed assigned duties.  Rather, the [DAB] has made clear, an employee’s deliberate wrongdoing – and even criminal misconduct – may properly be imputed to the facility where the employee had “the means and opportunity” to commit the misfeasance, by virtue of his or her assigned duties and facility access.  Kindred at 14 (holding facility responsible for nursing assistant’s sexual abuse and attempted sexual abuse of residents where employee “was in the facility and had access to the residents because the facility placed . . . him in the position to provide personal care to the residents, in the course of which he committed these acts”); Springhill at 14 (holding facility responsible for illicit images and videos of residents taken by nursing assistants while on duty and assigned to assist residents with activities of daily living).

Madison Cnty., DAB No. 2895 at 8-9 (citing Kindred, DAB No. 2792 at 14); see also North Carolina State Veterans Nursing Home, Salisbury, DAB No. 2256 (2009); Beverly Health Care Lumberton, DAB Ruling No. 2008-5 (Denial of Petition for Reopening Decision No. 2156) at 6-7 (2008); Emerald Oaks, DAB No. 1800 at 7 n.3 (2001) (noting that the facility “cannot disown the consequences of the inadequacy of the care provided by the simple expedient of pointing the finger at [the employee’s] fault, since she was the agent of her employer, empowered to make and carry out daily care decisions.”).

Although it is true that the DAB established a foreseeability requirement when abuse is committed by someone who is not a facility employee, the DAB did not believe extending this requirement to abuse by facility employees comported with the regulations.

The regulation at section 483.13(b) flatly states that all residents have a right to be free of physical abuse, so theoretically the analysis of noncompliance under that provision could end with the fact that Resident 2 was

Page 15

physically abused.  The [DAB] has nevertheless recognized “a distinction between ‘staff-to-resident’ abuse and ‘resident-to-resident’ interactions for purposes of determining compliance with section 483.13(b).”  The reason is that a facility “may not disavow the wrongdoing of its staff” and therefore any “considerations of foreseeability are inapposite when . . . staff abuse has occurred.”  By contrast, while residents may harm each other, the facility’s responsibility for protecting them from each other cannot extend to “entirely unforeseeable risks.”  Hence, the [DAB] held that “determining whether a facility failed to protect a resident’s right to be free from abuse when another resident behaved harmfully depends on whether the facility staff had a basis to be aware that such behavior might occur and yet left the resident vulnerable to it.

The Bridge at Rockwood, DAB No. 2954 at 24 (2019) (internal citations omitted); see also Kindred, DAB No. 2792 at 12-15 (2017); Woodstock Care Ctr., DAB No. 1726 at 25-35 (2000), aff’d, Woodstock Care Ctr. v. Thompson, 363 F.3d 583 (6th Cir. 2003).

I reject Petitioner’s argument that LPN1’s abuse must have been foreseeable for Petitioner to be noncompliant with section 483.12.  The DAB applied the plain text of the statute and regulations to conclude that facilities must protect each resident’s right to be free from abuse by facility staff, regardless of the foreseeability of the abuse.  This comports with section 483.12(a)(1), which explicitly prohibits a facility from using abuse.  Given the DAB’s view that, for purposes of section 483.12, facility staff are agents of the facility, the regulations plainly prohibit any abuse by staff against residents.  Because the DAB interpreted the plain language of the statute and regulations to reach this conclusion, without directly applying CMS guidance as mandatory authority, there is no violation of 42 U.S.C. § 1395hh(a)(1) and Azar v. Allina Health Srvs, 139 S.Ct. 1804 (2019).

Even if foreseeability of the abuse were a requirement for noncompliance in this case, I would conclude that Petitioner was noncompliant with section 483.12.  Nearly a year before LPN1 abused R1, Petitioner foresaw that R1 was at risk for abuse.  Petitioner identified this risk in R1’s care plan when it specified that R1 “is at risk to be a victim of abuse . . . due to cognitive deficits . . . [and] physical disabilities.”  CMS Ex. 5 at 1.  Petitioner’s goal was that R1 “will not be abused or victimized by others.”  CMS Ex. 5 at 1.  However, despite the facility seeing “others” as a potential threat, there were no interventions entered to avoid staff abuse.  Indeed, the interventions provided in the care plan were meager, such as advising the severely cognitively impaired R1 “to seek out staff for assistance if having difficulty with other,” that staff will “[i]ntervene as necessary to ensure safety of Resident,” and staff will “[p]rovide emotional support as

Page 16

needed.”  CMS Ex. 5 at 1.  Therefore, while Petitioner identified a very real threat of abuse by “others,” Petitioner failed to provide specific interventions, tailored to R1’s circumstances, to ensure staff abuse would not occur.

Petitioner’s failure to properly create interventions against staff abuse is highlighted by the requirements in Petitioner’s abuse policy.  The policy states:  “The facility shall not use or permit . . . sexual . . . abuse. . . . This prohibition extends to abuse by anyone, including but not limited to . . . staff . . . .”  CMS Ex. 3 at 2.  The policy lays out a number of ways the facility can prevent abuse, one which is “[o]ngoing oversight and supervision of staff in order to assure that facility’s policies are implemented as written.”  CMS Ex. 3 at 4.  Despite this clear policy that staff oversight should be used to protect residents against abuse, R1’s care plan did not include any restrictions on staff access to R1 or any protocols to ensure greater oversight of staff.

Petitioner also argues that the deficiency in this case is “vicarious facility liability” because LPN1 was “on a frolic and detour of his own” when he abused R1.  P. Br. at 15.  Petitioner states that “[t]here is no basis to infer LPN #1 was delivering care to Resident #1 at 11:22 pm or had any care-related reason to be in her room in the middle of the night.”  P. Br. at 15.  From this lack of evidence, Petitioner then boldly asserts that “LPN #1 was not carrying out a care-related duty when he went into Resident #1’s room.  Instead, he acted from his own motivation and not to serve any purpose of the facility.”  P. Br. at 16.  Further, Petitioner argues that the statute governing the CMP in this case states that “[a] principal is liable for penalties, assessments, and an exclusion under this section for the actions of the principal’s agent acting within the scope of agency.”  42 U.S.C. § 1320a-7a(l) (made applicable to facility CMPs by 42 U.S.C. § 1395i-3(h)(2)(B)(ii)(I)).  P. Br. at 15.  Petitioner asserts that section 1320a-7a(l) must be interpreted under common law doctrines.  P. Br. at 15 n.3.

The DAB has rejected the argument that section 1320a-7a(l) incorporates common law principles into the Medicare regulatory scheme and that facilities cannot be held liable for resident abuse by facility staff.  Kindred, DAB No. 2792 at 11-14.  In Kindred, the DAB concluded that a facility was noncompliant with section 483.12 based on the acts of a CNA employed by the facility.  Rather than applying common law principles, the DAB applied the regulations because compliance with those regulations is a requirement for participating in the Medicare program:

Accordingly, consistent with applicable precedent, facilities shoulder the burden to comply with the applicable participation requirements.  Kindred is properly held responsible for the acts of abuse by the CNA, its (former) employee, by virtue of the obligations it assumes as a condition for receiving federal healthcare program monies.  It is not being illegally cited for the wrongful actions of its

Page 17

former employee through the application of respondeat superior or another tort liability concept.

Kindred, DAB No. 2792 at 14. 

Although the record has limited information concerning LPN1, there is sufficient evidence to conclude that LPN1 was acting within the scope of his agency.  Petitioner’s Administrator testified that LPN1 was an employee of the facility and was licensed as a nurse.  P. Ex. 19 ¶¶ 9-11; see also P. Ex. 3-4.  Petitioner’s official “Accident Report” describes LPN1 as the “unit nurse.”  CMS Ex. 4 at 1.  Further, Petitioner’s witness, CNA1, testified that R1 was in room 205 (i.e., a room on the second floor of the facility) and LPN1 was “the nurse who was assigned to the second floor.”  P. Ex. 21 ¶ 4; see also Tr. 20.  Because LPN1 was the nurse assigned to R1’s floor, i.e., the unit nurse, it is more likely than not that LPN1 entered R1’s room in the performance of his duties.

Petitioner questions why LPN1 would be in R1’s room at 11:00 p.m.  However, R1 had many ailments and a care plan that included concerns related to severe cognitive impairment and the need to assist with ADLs due to physical impairments.  CMS Exs. 5, 7.  Indeed, R1’s care plan recognized that R1 had mobility limitations and, should R1 need to use the toilette, staff was to supervise her while she leaves the bed and must assist with “set-up help.”  CMS Ex. 5 at 3.  Because R1 was severely cognitively impaired, staff would need to check on her because she may attempt to use the toilette without the assistance required to do it safely.  Petitioner provided no evidence to support its view that LPN1 was on a frolic and detour.  Rather, it was within the scope of LPN1’s duties to enter and check on the condition of residents under his care.  And, even if LPN1 went to R1’s room with the intent to engage in sexual contact, LPN1 only had access to R1’s room based on his employment with Petitioner.

Although Petitioner has made every argument to avoid responsibility for the conduct of its employee, Petitioner previously understood its obligations under the statute and regulations.  As stated in the “Purpose” section of Petitioner’s abuse policy, the policy is “[t]o ensure that every resident has the right to be free from abuse” and “[t]o provide a safe environment and protect residents from abuse.”  CMS Ex. 3 at 1.  Petitioner’s agent, LPN1, violated this policy and abused R1.  Therefore, I conclude that Petitioner was noncompliant with 42 C.F.R. § 483.12.

2. CMS’s determination that Petitioner’s noncompliance posed immediate jeopardy to resident health and safety is not clearly erroneous.

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.  The regulation does not require that a resident actually be harmed.  Lakeport Skilled Nursing Ctr., DAB No. 2435 at 8 (2012).

Page 18

I must uphold CMS’s determination as to the level of a facility’s noncompliance (which includes an immediate jeopardy finding) unless it is “clearly erroneous.”  42 C.F.R. § 498.60(c).  The “clearly erroneous” standard imposes on facilities a heavy burden to show no immediate jeopardy, and DAB cases have 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) (quoting Florence Park Care Ctr., DAB No. 1931 at 27-28 (2004)).  In reviewing CMS’s finding, I “must consider whether the totality of the allegations support the Agency’s determination that [the facility’s] noncompliance ‘has caused, or [was] likely to cause, serious injury, harm, impairment, or death to a resident.’”  Rosewood Care Ctr. of Swansea v. Price, 868 F.3d 605, 618 (7th Cir. 2017) (emphasis omitted).

Petitioner argues that there was no immediate jeopardy in this case under the factors for immediate jeopardy in CMS’s State Operations Manual.  Petitioner asserts that it was in substantial compliance and CMS has only proven staff noncompliance.  P. Br. at 26.  Petitioner argues that LPN1’s misconduct was without warning and unpredictable, and Petitioner acted quickly to protect residents by removing LPN1 from the facility, calling the police, and reporting the incident to the state agency.  P. Br. at 26.  Petitioner also argues that CMS failed to meet its burden to show what standard Petitioner should have met to avoid noncompliance.  P. Br. at 26-27.  Further, Petitioner argues that there was no serious outcome to the abuse incident because LPN1 was only in R1’s room for four minutes.  P. Br. at 27.  Finally, Petitioner asserts that it took significant immediate action, including an investigation, training, review of all resident care plans with plans to prevent abuse, review of facility staff licensing, and an ad hoc meeting of the facility Quality Assurance Committee.  P. Br. 27-28.  Petitioner states these actions occurred before the state surveyor arrived at Petitioner’s facility and, therefore, there was no immediate jeopardy situation at the time of the survey.  P. Br. 28.

I conclude that Petitioner failed to meet the “heavy burden” of showing by clear and convincing evidence that there was no immediate jeopardy in this case.  The DAB has rejected Petitioner’s argument that there can be no immediate jeopardy because Petitioner’s employee, and not Petitioner, committed the abuse.  Kindred, DAB No. 2792 at 24.  Further, CMS does not have the burden to show how Petitioner could have avoided noncompliance in this case.  Copperas Cove Ltc Partners, Inc., DAB No. 3049 at 41 (2021) (“In arguing that CMS failed to prove the elements of immediate jeopardy specified in [the State Operations Manual], Petitioner disregards its burden under the clearly erroneous standard.”).

As discussed above, Petitioner was noncompliant with section 483.12(a)(1).  It is Petitioner’s burden to show that its noncompliance did not immediately jeopardize

Page 19

residents.  In this case, Petitioner cannot show this.  LPN1 was caught having sex with R1, a cognitively impaired and physically disabled resident.  LPN1 removed R1’s clothing below the waist and placed R1 across her bed.  LPN1 also removed his clothing below the waist.  CNA1 stated that R1’s legs were up in the air and CNA1 described the incident as LPN1 having sex with R1.  All of these actions easily constitute immediate jeopardy.  LPN1 disrobed R1 below the waist.  Such an action is degrading and can cause psychological harm.  Further, LPN1 removed his clothes below the waist, exposing himself to R1.  Finally, according to CNA1, LPN1 engaged in sex with R1.  CMS Ex. 4 at 4.  I note that CNA1’s statement includes the following sentence after he described the scene where LPN1 was having sex with R1:  “In shock I back away from the door.”  CMS Ex. 4 at 4.  This description of his mental and physical reaction to what he saw makes it clear that CNA1 witnessed a terrible situation, where R1 was subject to serious injury and harm.  Finally, R1’s physician and Petitioner’s DON likely believed there was serious injury or harm because they both directed R1 to be transferred to a hospital for evaluation.  CMS Ex. 4 at 1; P. Ex. 20 ¶ 5.  Therefore, CMS’s determination of immediate jeopardy was not clearly erroneous.

3. Petitioner did not expressly dispute any of the regulatory factors used to determine the amount of the CMPs in this case.  Therefore, I affirm the reasonableness of the $10,200 per-day CMP for each day of immediate jeopardy noncompliance and the $245 per-day CMP for each day of noncompliance that did not involve immediate jeopardy.

Petitioner objects to the amount of the CMPs imposed in this case.  However, I affirm the reasonableness of the amounts of the CMPs (i.e., $10,200 per day for each day of immediate jeopardy-level noncompliance and $245 per day for each day of noncompliance that was not at the immediate jeopardy level) because Petitioner did not challenge any specific regulatory factors used to determine the amount of CMPs.

When determining whether a CMP amount is reasonable and appropriate, the following factors listed in 42 C.F.R. § 488.438(f) apply:  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).  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

Page 20

§§ 488.438(f) and 488.404 be considered when determining the amount of a CMP within a particular range.  42 C.F.R. §§ 488.408, 488.408(g)(2); 498.3(d)(11); see also 42 C.F.R. § 488.438(e)(2) and (3); Alexandria Place, DAB No. 2245 at 27 (2009); Kenton Healthcare, LLC, DAB No. 2186 at 28-29 (2008).  However, unless a facility contends that a particular regulatory factor does not support the CMP amount, an ALJ must sustain it.  Coquina Ctr., DAB No. 1860 (2002).

Petitioner contends that, in its prehearing brief and hearing request, it “came forward . . . with specific arguments and evidence demonstrating that a reduction in the CMP is necessary to make the amount and duration reasonable.”  P. Br. at 33 n.9.  However, Petitioner’s pre-hearing brief does not specifically contest any of the regulatory factors concerning the reasonableness of the amount of the CMPs.  See P. Prehearing Br. at 23-25.  Further, by cross-referencing the prehearing brief, Petitioner violated my order not to cross-reference earlier filings and to include in the post-hearing brief all of the issues and arguments that the parties want me to consider.  Tr. 62-63; see June 2, 2023 Notice of Receipt of Transcript and Post-Hearing Briefing Schedule at 2.  Therefore, I conclude that I must sustain the CMP amounts imposed by CMS because Petitioner failed to expressly challenge any of the relevant regulatory factors.

4. Petitioner did not show that CMS’s determination that immediate jeopardy-level noncompliance lasted three days is clearly erroneous.

Petitioner objects to CMS’s determination that immediate jeopardy-level noncompliance lasted three days.  As explained below, Petitioner did not show that CMS’s determination was clearly erroneous.

The incident concerning R1 occurred late on April 18, 2022.  CMS Ex. 1 at 3; CMS Ex. 4 at 1; P. Ex. 21 ¶¶ 3-5.  Therefore, starting on April 18, 2022, CMS imposed a CMP of $10,200 per day for each day of immediate jeopardy-level noncompliance.  CMS Ex. 2 at 1.  CMS maintained that CMP through April 20, 2022, because CMS concluded that Petitioner abated the immediate jeopardy situation on April 21, 2022.  CMS Ex. 2 at 1.

Petitioner argues that “[a]t most, this was three hours, not three days, of alleged immediate jeopardy.”  P. Br. at 33.  Petitioner does so because Petitioner believes that it took all necessary action to abate the immediate jeopardy within hours of the incident involving R1 and that the state agency surveyors took too long to complete the survey and inform Petitioner that there was immediate jeopardy-level noncompliance.  P. Br. at 33-34.

The determination that a facility’s noncompliance continued at the immediate jeopardy level is a determination related to the level of noncompliance; therefore, I review CMS’s determination under the clearly erroneous standard.  Vibra Hosp. of Charleston – TCU, DAB No. 3094 at 24 (2023).

Page 21

The complaint investigation/survey took place between April 19, 2022 and April 22, 2022.  CMS Ex. 1 at 1; CMS Ex. 9 ¶ 2; P. Ex. 19 ¶ 41.  On April 21, 2022, the state agency surveyor informed Petitioner’s Administrator that there was an immediate jeopardy deficiency and provided information about that finding in writing.  CMS Ex. 1 at 1; CMS Ex. 9 ¶ 12; P. Ex. 13; P. Ex. 19 ¶ 48.  Also on April 21, 2022, Petitioner submitted a plan to remove the immediate jeopardy.  CMS Ex. 1 at 1; P. Ex. 14; P. Ex. 19 ¶ 49.  The state agency accepted the plan.  CMS Ex. 1 at 1; P. Ex. 19 ¶ 49.

On April 22, 2022, the state agency determined that immediate jeopardy was removed based on the following corrective action that Petitioner had taken:

911 was called on 04/19/2022 at 12:42 AM to report the incident from 04/18/2022 and Police Officers arrived at about 12:56 AM.  The staff was interviewed.  The resident was cognitively impaired and was not able to provide pertinent information. LPN #1 was arrested by the Police Officers on 04/19/2022.  The facility terminated the LPN from his/her employment on 04/19/2022.  The Facility reported the LPN to the Office of the Professions on 04/20/2022.  The Social Services staff interviewed 39 out of 40 residents on Unit 2.  There were no findings that would indicate that there are any other residents who had similar concerns or issues.  All employee files were reviewed for appropriate background checks, license verifications and other regulatory requirements for employment.  The comprehensive care plans of all residents were checked to ensure there is a plan in place to prevent abuse.  Nightly audits on the Dementia Unit will be conducted by the RN Supervisor for proper resident monitoring.

CMS Ex. 1 at 1-2 (emphasis added); CMS Ex. 9 ¶ 13.

Petitioner asserts that it immediately corrected the immediate jeopardy; therefore, the three-day duration of the CMP at the immediate jeopardy-level is unfounded.  P. Br. at 33-34.  However, the surveyor testified that, while Petitioner took significant action to abate the immediate jeopardy before the survey started (Tr. 35-37), Petitioner needed to increase monitoring of residents through nightly audits by a supervisory RN.  Tr. 40.  The Petitioner’s Administrator conceded that the state agency required the nightly audits in addition to the other actions Petitioner had taken.  P. Ex. 19 ¶ 52.  While Petitioner’s Administrator denies that this additional corrective action was useful or necessary (P. Ex. 19 ¶¶ 52-53), I disagree and conclude that, despite Petitioner’s swift response to the

Page 22

incident involving R1, the state agency correctly identified a need for additional monitoring before the immediately jeopardy situation could be considered abated.

When informing Petitioner’s Administrator that there was immediate jeopardy-level noncompliance, the state agency surveyors identified the following as action that needed to be taken immediately:  “Frequent monitoring on the Unit to ensure that Residents are free from sexual abuse, especially residents that are housed on the locked unit with diagnosis of dementia.”  P. Ex. 13 at 7.  The state agency surveyor testified that Petitioner agreed to hourly monitoring as part of the plan to remove immediate jeopardy.  Tr. 55.  As highlighted in the quote from the Statement of Deficiencies above, this meant nightly audits to monitor residents.  CMS Ex. 1 at 2.

Although Petitioner’s Administrator does not believe that this requirement is relevant to the immediate jeopardy finding in this case, the requirement to increase monitoring of residents is directly related to Petitioner’s noncompliance.  As mentioned earlier, Petitioner’s care plan for R1 identified R1 as being at risk for abuse due to her cognitive and physical disabilities; however, the care plan included extremely limited interventions to achieve the goal that R1 would not be abused.  CMS Ex. 5 at 1.  Further, Petitioner’s abuse policy identified the possibility of staff abuse of residents and indicated that “[o]ngoing oversight and supervision of staff” was a way to ensure the abuse policy was followed.  CMS Ex. 3 at 2, 4.  Therefore, the state survey agency’s requirement that Petitioner implement a new nightly audit by the supervisory RN to ensure residents were monitored for their safety was meant to reduce the chances of another incident like the one that befell R1.

Petitioner protests that the state agency surveyors took too much time to tell Petitioner that there was an immediate jeopardy situation.  P. Br. at 32-33.  However, even according to Petitioner’s Administrator, the surveyors were actively investigating the abuse complaint involving R1 from April 19, 2022 to April 21, 2022.  P. Ex. 19 ¶¶ 42-48.   The surveyor also testified to the tasks she performed during the investigation.  Tr. 14-28.  In addition, the surveyor notes document this.  CMS Ex. 8.

The surveyor also testified that the decision as to whether there was noncompliance and immediate jeopardy was made in conjunction with the other surveyors and personnel in Albany (presumably staff at the state agency’s headquarters), and Petitioner could not be informed that there was noncompliance or immediate jeopardy until that process was completed.  Tr. 26-27 (“I could not have informed [Petitioner] that they are in immediate jeopardy [on April 19, 2022.]  As I stated, it is a three-day investigation.  I would not tell them on the first day, and I would not tell them on the second day.  I have to do a thorough investigation and then with the team we discuss and then we tell them.”).

I accept the surveyor’s testimony.  The situation involving the sexual abuse of a resident required a complete and thoughtful inquiry.

Page 23

The DAB has long concluded that “immediate jeopardy is abated ‘only when the facility has implemented necessary corrective measures so that there is no longer any likelihood of serious harm.’”  Glenoaks Nursing Ctr., DAB No. 2522 at 19 (2013) (quoting Life Care Ctr. of Bardstown, DAB No. 2479 at 35); see also Countryside Rehab. & Health Ctr. at 25; Covington Manor Nursing Home, DAB No. 2789 at 7 (2017); Florence Park Care Ctr., DAB No. 1931 at 30 (2004).  “The facility must allege and prove that it has abated the conditions that created the immediate jeopardy and act to prevent their recurrence.”  The Bridge at Rockwood at 29 (citing Life Care Ctr. of Elizabethton, DAB No. 2367\ at 16 (2011)).  As explained in Glenoaks:

Findings about incidents related to individual residents are not themselves the deficiencies that must be corrected – the deficiency is the underlying failure to meet a participation requirement evidenced by the incident. . . .  In other words, it is not sufficient for a facility to abate immediate jeopardy by addressing the deficiency with respect to the condition of one resident.  Instead, the facility needs to address and correct the conditions underlying the noncompliance that created the immediate jeopardy.

DAB No. 2522 at 19-20 (citations and internal quotation marks omitted).  I conclude that it was not clearly erroneous for CMS to require Petitioner to increase monitoring of residents to remove the immediate jeopardy situation at Petitioner’s facility.7

5. Petitioner did not meet its burden under 42 C.F.R. § 488.454(e) to provide acceptable documentation to show that it was able to maintain substantial compliance with Medicare requirements earlier than the state agency’s revisit survey.  Therefore, I uphold the duration of noncompliance found by the state agency based on a revisit survey at Petitioner’s facility.

Although Petitioner abated the immediate jeopardy situation by April 21, 2022, the state agency concluded that Petitioner was still noncompliant with Medicare program requirements.  CMS Ex. 1 at 2.  The state agency conducted a revisit survey on June 14, 2022, and determined that Petitioner was in substantial compliance with all Medicare requirements on June 13, 2022.  E-File Doc. No. 39 at 1.

Page 24

Petitioner argues that it returned to substantial compliance based on the action it took when it abated the immediate jeopardy.  P. Br. at 34.

Once a state agency finds a facility to be noncompliant with Medicare requirements, the facility remains so until it affirmatively demonstrates that it has achieved substantial compliance once again.  Ridgecrest Healthcare Ctr., DAB No. 2493 at 2-3 (2013); Taos Living Ctr., DAB No. 2293 at 20 (2009); Premier Living & Rehab. Ctr., DAB No. 2146 at 3 (2008); Lake City Extended Care, DAB No. 1658 at 12-15 (1998).  Enforcement remedies continue until the state agency determines that the SNF has returned to substantial compliance during a revisit survey or by “credible written evidence that [CMS or the state agency] can verify without an on-site visit.”  42 C.F.R. § 488.454(a)(1).  During a “revisit survey,” state surveyors must “evaluate the extent to which previously-cited deficiencies have been corrected and the provider or supplier is in substantial compliance with applicable conditions of participation, requirements, or conditions for coverage.”  42 C.F.R. § 488.30(a) (emphasis added).

The facility bears the burden of showing that its noncompliance was of a shorter duration than found by CMS.  Owensboro Place & Rehab. Ctr., DAB No. 2397 at 12 (2011) (citing Kenton Healthcare, LLC, DAB No. 2186 at 24-25 and Lake Mary Health Care, DAB No. 2081 at 30 (2007)).  Therefore, the burden is on the facility to prove that it returned to substantial compliance and CMS does not need to prove that deficiencies continued to exist.  Asbury Care Ctr. at Johnson City, DAB No. 1815 at 19-20 (2002).

If a facility believes that enforcement remedies should end on a date earlier than the revisit survey, then Petitioner must meet the following regulatory requirement:

If the facility can supply documentation acceptable to CMS or the State survey agency that it was in substantial compliance and was capable of remaining in substantial compliance, if necessary, on a date preceding that of the revisit, the remedies terminate on the date that CMS or the State can verify as the date that substantial compliance was achieved and the facility demonstrated that it could maintain substantial compliance, if necessary.

42 C.F.R. § 488.454(e) (emphasis added); see also Ridgecrest Healthcare Ctr., DAB No. 2493 at 15 (2013) (“As the [DAB] has recognized, a [plan of correction] indicating a specific date of implementation is not sufficient evidence by itself to establish that the measures in the [plan of correction] had been satisfactorily implemented.”); Oceanside Nursing & Rehab. Ctr., DAB No. 2382 at 20 (2011) (“Even if a [plan of correction] is accepted, the facility is not regarded as in substantial compliance until CMS determines, ‘usually through a revisit survey,’ that the deficiency no longer exists.”).

Page 25

Therefore, for me to reduce the duration of the period of noncompliance, Petitioner needed to provide proof that it was able to maintain substantial compliance with Medicare program requirements.  However, Petitioner provided no evidence of its continued compliance.  Therefore, I have no basis to conclude that Petitioner returned to substantial compliance earlier than CMS found.

The state agency conducted a revisit survey in less than two months from when it concluded the complaint investigation/survey.  It was reasonable for the state agency to return when it did to allow sufficient time to make certain Petitioner was able to show it was able to maintain compliance.

VI.  Conclusion

1. CMS’s determination that Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(a)(1) is sustained.
2. CMS did not clearly err when it determined that Petitioner’s noncompliance with 42 C.F.R. § 483.12(a)(1) posed immediate jeopardy to resident health and safety.
3. CMS did not clearly err when it determined that Petitioner’s immediate jeopardy noncompliance lasted three days.
4. Petitioner did not establish that, prior to June 13, 2022, it returned to substantial compliance with Medicare requirements and was able to demonstrate that it could maintain such compliance.
5. The CMPs imposed were reasonable.