Lakeland Health Care Center, DAB, CR6918 (2026)

DECISION

Petitioner, Lakeland Health Care Center, is a skilled nursing facility located in Elkhorn, Wisconsin, that participates in the Medicare program.  Following a complaint and partial extended survey conducted by the Wisconsin Department of Health Services, the Centers for Medicare & Medicaid Services (CMS) determined that the facility was not in substantial compliance with two Medicare program requirements and that its deficiencies posed immediate jeopardy to resident health and safety.  CMS imposed civil money penalties (CMPs) of $9,675 per day for the period of November 2, 2023, through November 13, 2023 of immediate jeopardy and $360 per day for the period of November 14, 2023, through December 14, 2023 of substantial noncompliance that did not pose immediate jeopardy.  As explained below, I find that Petitioner was not in substantial compliance with Medicare program requirements and that the amount of the CMP 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

Page 2

retirement benefits and for individuals under 65 who meet other criteria.  42 U.S.C. § 1395c.  Post-hospital care includes extended care services provided at a SNF.  42 U.S.C. §§ 1395f(a)(2)(B), 1395x(h)-(i). 

For Medicare program purposes, a SNF 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).  Because a SNF is a “provider of services” in the Medicare program, each SNF that participates 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). 

In addition to complying with the terms of the provider agreement, a participating SNF must meet a variety of ongoing statutory requirements related to how it provides services, maintains the rights of its residents, and administers its facility.  42 U.S.C. § 1395i-3(a)(3), (b)-(d).  Further, SNFs must comply with “such other requirements relating to the health, safety, and well-being of residents or relating to the physical facilities thereof as the Secretary may find necessary.”1  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 establish those additional requirements.  See 42 C.F.R. pt. 483, subpt. B.2 

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

Broadly, noncompliance that subjects a SNF to enforcement remedies is divided into two levels.  One level is composed of deficiencies that immediately jeopardize the health or safety of residents and the other level is composed of deficiencies that do not.  42 U.S.C. § 1395i-3(h)(1).  “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. 

Page 3

The Secretary has the duty to enforce the statutory and regulatory participation requirements for SNFs.  42 U.S.C. § 1395i-3(f)(1).  To do so, the Secretary contracts with state agencies to conduct surveys to determine whether SNFs are in substantial compliance.  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 conduct investigations into complaints against SNFs.  42 U.S.C. § 1395i-3(g)(1)(C), (4).  When the results of a survey show that a SNF is not in substantial compliance with program participation requirements, the Secretary may impose enforcement remedies on the SNF.  42 U.S.C. § 1395i-3(h)(2); 42 C.F.R. § 488.406.  When CMS selects an enforcement remedy to impose on a SNF, it determines the scope (i.e., the number of residents affected or potentially affected) and severity (i.e., the degree of harm or potential harm) for each deficiency.3  See 42 C.F.R. § 488.404(a)-(b). 

One such 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 SNF’s noncompliance or a per-day CMP for the number of days a SNF is not in substantial compliance.  42 U.S.C. § 1395i-3(h)(2)(A), (h)(2)(B)(ii)(I); 42 C.F.R. § 488.430(a).  For CMPs assessed on or after March 17, 2022, and for deficiencies that occurred after November 2, 2015, the CMP amounts may range as follows: $2,400 to $23,989 for per-instance CMPs; $120 to $7,195 per day for less serious noncompliance; or $7,317 to $23,989 per day for more serious noncompliance that poses immediate jeopardy to the health and safety of residents.  45 C.F.R. § 102.3 (2022); 87 Fed. Reg. 15,100, 15,111 (Mar. 17, 2022); see 42 C.F.R. § 488.438(a)(1) (providing original CMP amounts before statutory inflation adjustments). 

If CMS imposes a CMP based on a finding of substantial noncompliance, then the SNF may request a hearing before an administrative law judge (ALJ) to challenge CMS’s initial determination of noncompliance that led to the imposition of an enforcement remedy and/or the level of noncompliance (if a successful challenge to the level would

Page 4

affect the range of CMP amounts imposed on the SNF).  42 U.S.C. §§ 1320a-7a(c)(2), 1395i-3(h)(2)(B)(ii); 42 C.F.R. §§ 488.330(e)(3)(ii), 488.408(g)(1), 488.434(a)(2)(viii), 498.3(b)(13)-(14), (d)(10); 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). If a SNF challenges the existence of a deficiency, CMS must make a prima facie case that the SNF failed to substantially comply with federal participation requirements and, if such a showing is made, the SNF must then prove substantial compliance by a preponderance of the evidence.  Hillman Rehab. Ctr., DAB No. 1611 at 8 (1997); 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).  If a SNF challenges CMS’s determination as to the level of noncompliance, CMS’s determination must be upheld unless it is clearly erroneous.  42 C.F.R. § 498.60(c)(2). 

If an ALJ concludes that there was a basis for imposing a CMP on a SNF, then the SNF may dispute the amount of the CMP.  The ALJ’s review of the CMP amount is limited to considering the statutory and regulatory factors for setting a CMP amount.  42 C.F.R. § 488.438(e)(3); see 42 U.S.C. §§ 1320a-7a(d), 1395i-3(h)(2)(B)(ii)(I); 42 C.F.R. § 488.438(f).  The ALJ may not reduce a CMP to zero.  42 C.F.R. § 488.438(e)(1). 

Either the SNF or CMS may request Departmental Appeals Board (DAB) review of an ALJ’s decision.  42 C.F.R. § 498.80. 

II.    Background and Procedural History

From November 2, 2023, through November 21, 2023, state agency surveyors completed a complaint and partial extended survey.  CMS Ex. 4 at 1.  The surveyors found the facility was not in substantial compliance with the following program requirements: 

• 42 C.F.R. § 483.12(a)(1) (Tag F600 – free from abuse and neglect) cited at scope and severity (s/s) level K
• 42 C.F.R. § 483.40(b)(3) (Tag F744 – treatment/service for dementia) cited at a s/s level J
• 42 C.F.R.§ 483.12(c)(1), (4) (Tag F609 - failure to report the abuse) cited at s/s level E
• 42 C.F.R.§ 483.12(c)(2)-(4) (Tag F610 - failure to thoroughly investigate allegations of abuse) cited at s/s level E

CMS Ex. 4 (Statement of Deficiencies).  On March 14, 2024, CMS advised Petitioner that it was imposing a CMP of $9,675 per day for the period of November 2, 2023, through November 13, 2023, and $360 per day for the period of November 14, 2023, through December 14, 2023.  CMS Ex. 2. 

Page 5

Petitioner initially requested a hearing before an administrative law judge on February 2, 2024, challenging the imposition of an enforcement remedy (Discretionary Denial of Payment for New Admissions) by the state agency following the November 2023 survey.  The case was docketed as C-24-228 and assigned to Administrative Law Judge (ALJ) Leslie Rogall.4  Subsequently, Petitioner filed a new and separate request for hearing on May 10, 2024, to challenge the enforcement remedies imposed by CMS on March 14, 2024, based on the same survey cycle.  The second request for hearing was docketed as C-24-438 and also assigned to ALJ Rogall.  On May 16, 2024, the cases were consolidated under Docket No. C-24-438.  See Departmental Appeals Board (DAB) Electronic Filing System (E-File) Doc. No. 2 

On August 14, 2024, CMS filed its pre-hearing exchange, including a combined motion for summary judgment and prehearing brief (CMS Br.) along with 23 proposed exhibits and the written direct testimony of two witnesses.  On September 18, 2024, Petitioner filed its reply to CMS’s motion and prehearing brief (P. Br.)  Petitioner did not submit any exhibits but reserved the right to use the proposed exhibits submitted by CMS.  See CRD Dkt. C-24-438 No. 8a.  Petitioner also reserved the right to call 9 witnesses it listed on its proposed exhibit list.  See id.  CMS objected to Petitioner’s witnesses because Petitioner did not submit written direct testimony for the witnesses in accordance with the ALJ Rogall’s Standing Pre-Hearing Order.  See CRD Dkt. C-24-438 Entry Nos. 2, 9; CRD Dkt. C-24-228 Entry Nos. 2a, 2b.  CMS also filed a reply brief (CMS R. Br.). 

III.  Admission of Exhibits into the Record

Petitioner has not objected to CMS’s proposed exhibits; therefore, I admit CMS’s Exs. 1-23 into the record.  Petitioner did not offer any exhibits. 

Since Petitioner did not request to cross-examine the witnesses for whom CMS filed written direct testimony and did not file written direct testimony for the witnesses it identified, the case may be decided based on the written record.5  Civ. Remedies Div. P. § 19(d). 

I deny CMS’s motion for summary judgment as moot. 

Page 6

IV.    Jurisdiction

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

V.     Issues

The following issues will be addressed in this decision: 

Whether Petitioner failed to be in substantial compliance with the Medicare program participation requirements at 42 C.F.R. § 483.12(a)(1) and 42 C.F.R. § 483.40(b)(3);

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

VI.    Discussion

1. The facility was not in substantial compliance with 42 C.F.R. § 483.12(a)(1)

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 mandates that each resident has the right to be free from abuse, neglect, misappropriation of resident property, 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.”  Instances of abuse, “irrespective of any mental or physical condition,” cause harm, pain, or mental anguish. Abuse 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. § 488.301. 

In order to keep residents free from abuse, facilities must develop and implement written policies and procedures that prohibit and prevent abuse, neglect, and exploitation of residents.  42 C.F.R. § 483.12(b)(1).  It must establish policies and procedures to investigate allegations of abuse.  42 C.F.R. § 483.12(b)(2).  The facility must ensure that all alleged violations involving abuse are reported immediately, but not later than two hours after the allegation is made, to the facility administrator and appropriate state officials.  42 C.F.R. § 483.12(c)(1). 

The facility must have evidence that all alleged violations are thoroughly investigated, and it must prevent further potential abuse while the investigation is in progress.  The

Page 7

results of all investigations must be reported to the administrator (or designated representative) and to the appropriate state officials within five working days of the incident.  If the violation is verified, the facility must take appropriate action.  42 C.F.R. § 483.12(c)(2), (3), and (4). 

Relevant Facts related to R2:  R2 was admitted to Petitioner’s facility on April 19, 2022.  CMS Ex. 7 at 58.  R2’s diagnoses included: dementia with psychotic disturbances, bladder cancer, Alzheimer’s disease, and anxiety and depression.  Id. at 106.  On July 20, 2022, R2’s treating physician ordered that R2 be monitored every shift.  Id. at 124.  Specifically, the order stated: “Monitor Behaviors: Paranoid statements, Mood, dreams, sexually inappropriate behaviors etc.  Document in progress note.  Every shift.”  Id. Moreover, R2’s care plan detailed some of the sexually inappropriate behaviors and associated interventions.  Id. at 1-28.  Beginning December 30, 2022, R2’s care plan revealed that R2 had a “history and potential of asking staff, peer, and others to engage in physical contact with him.”  Id. at 1.  R2 would also ask staff or peers to “lie down in bed with him clothed or unclothed.”  Id. at 2.  The associated interventions included assisting R2 to develop methods to cope with his needs and his interactions and allow for privacy in his room.  Id. at 1-2.  The facility further tried to prescribe Paxil to R2, but he was noncompliant.  Id. at 4. 

The facility also completed a Sexual Contact Consent Assessment for R2 on January 27, 2023.  Id. at 129-130.  In the facility’s assessment for sexual consent, it observed that R2 “can make his needs known and makes daily choices.  He is able to form friendships with her [sic] peers.  [R2] is able to consent at this time.”  Id. at 130. 

Notwithstanding these interventions, the facility documented numerous incidents, between June and October 2023, of R2 making inappropriate sexual contact or statements to residents and staff.  Id. at 75, 78, 82, 85, 88, 92-93, 96, 98-99.  Of note, on October 17, 2023, a social worker noted that R2 was “making sexually inappropriate comments to others.” Id. at 75.  A separate note that same day revealed that R2 “approached a central supply clerk with sexually inappropriate requests.”  Id.  R2 then made “sexually inappropriate comments to [another Resident and her husband, who was visiting] and was fondling himself in front of them.”  Id.  Later in that day, a CNA reported to be unable to bathe R2 due to R2 being “sexually inappropriate.”  Id. at 74.  That evening, R2 was found unclothed and in bed with another resident.  Id.  Petitioner reported this incident to the state agency.  CMS Ex. 15.  The verification of investigation noted that neither R2 nor R1 were able to consent to sexual activity.  Id. at 13-14. 

On October 18, 2023, the facility updated R2’s Care Plan to reflect that it should divert R2’s behavior, and remove, reorient, and supervise, as needed.  CMS Ex. 7 at 1.  He was also prescribed an Exelon patch for dementia beginning October 19, 2023.  Id. at 1, 124. However, R2’s inappropriate comments and behaviors continued.  Specifically, he attempted to enter R1’s room on a number of occasions, was frequently naked in the

Page 8

common areas, and put other residents in distress after making sexual advances or contact.  See e.g. id. at 62-66, 69-70. 

Relevant Facts related to R7:  R7 was admitted to Petitioner’s facility on September 8, 2022.  CMS Ex. 12 at 40.  R7’s diagnoses included Alzheimer’s disease, dementia with agitation, depression, and anxiety.  Id.  R7’s treating physician’s orders included that R7 was to be monitored on every shift for his behavior including angry outbursts, irritability and frustration.  Id. at 42.  On December 12, 2022, the facility completed a Sexual Contact Consent Assessment for R7, and determined he was “able to consent for sexual contact.”  Id. at 14.  In a subsequent entry dated November 7, 2022, the R7’s Care Plan noted that he “has potential to be physically aggressive….[and] may hit or strike out at staff or peers especially when being redirected.”  Id. at 22.  As a result the facility required interventions including to “[a]nalyze times of day, places, circumstances, triggers, and what de-escalates behavior and document.”  Id.  In addition, the facility was to offer a busy box or oriented tasks when R7 became agitated or during down time.  Id. 

On June 16, 2023, R7, after being found in another resident’s room, became physically aggressive with a staff member and then “attempted to strike care staff.”  Id. at 104.  On July 1, 2023, R7 threatened a CNA as she was pushing a Hoyer lift.  Id. at 100.  R7 told the CNA that “I am going to kill you” before he grabbed her hand and bent her fingers back.  Id. 

Following this incident, the facility’s interdisciplinary team noted that R7 “was doing well.  He has some difficulty with staff that are requesting things of him, [but] most likely an approach issue.”  Id. at 92. 

On July 11, 2023, the facility noted that R7 became aggressive with the facility’s staff.  Id. at 88.  R7 “started shaking his fist at [a staff member].”  Id.  When a CNA came over to assist, R7 “lunged at [the] CNA with fist in the air swearing at staff and then proceeded to follow the staff.”  Id.  R7 then “shoved [a staff member] into the wall.”  Id. 

R7 also became aggressive with the facility’s residents, including on July 28, 2023, where he began pushing another resident (R4) in her wheelchair.  Id. at 86.  The record noted that the other resident’s feet were not off the ground and she “was yelling in pain.”  Id. 

In a psychiatric evaluation dated August 2, 2023, R7 was observed to have had “several episodes of aggression.”  Id. at 53.  The NP and MD however did not make any changes to R7’s treatment plan and noted that R7 “responds best with calm, slow approach.”  Id. at 53-54. 

On August 17, 2023, the facility updated R7’s Care Plan to ensure that he is monitored when pushing other residents in their wheelchairs.  Id. at 18.  On August 21, 2023, R7

Page 9

was observed to slap a cup of water out of another resident’s hand.  Id. at 84.  The incident was noted to have occurred without R7 being “provoked in any way.”  Id.  R7 had another psychiatric evaluation conducted on August 24, 2023 based on this incident.  Id. at 55-56.  However, no additional changes to R7’s orders were made and it was noted that there were “interventions in place.”  Id. at 55. 

R7 continued to display acts of physical aggression toward staff and other residents.  On September 10, 2023, R7 squeezed R4’s shoulders and she began shouting that “you are hurting me.”  Id. at 81.  On September 14, 2023, R7 grabbed a staff member by her wrist while he was pushing a female resident in a wheelchair.  Id. at 79.  On September 19, 2023, R7 tried to hit a CNA after assistance with toileting.  Id. at 78.  On September 21, 2023, R7 was noted to have “[i]increased aggression with staff” and ripped his shirt “off in pieces.”  Id. at 78.  That same day, a CNA observed R7 “kicking another resident.”  Id. at 77.  Based on these acts of aggression, R7 was again referred for a psychological evaluation and his medication for anxiety was increased.  Id. at 57-58. 

On September 23, 2023, R7 “shook [a] CNA and grabbed [a nurse] and was attempting to push the [nurse].”  Id. at 74.  That same day, staff also noted that R7 was demonstrating a new behavior of “[i]nappropriate sexual behavior” which included exposing himself to staff and in the hallway.  Id. at 74.  In addition, R7 was found to have brought R4 to his room and was found naked from the waist down by staff.  Id. at 73. 

On September 30, 2023, R7 “growled with teeth clenched close to the side of another peers [sic] face.”  Id. at 70. 

Petitioner’s Noncompliance: 

Analogizing a facility’s responsibility to that of a school, the Board has written: 

No school and long-term-care facility is able to or expected to guarantee that no untoward events will ever occur on their premises.  Both are expected to take all reasonable measures to make the environment safe for those in their charge, with the appropriate level of supervision depending on the capacity and needs of the charges.  It may not be reasonable to expect a school to foresee every playground quarrel, but it is reasonable to expect it to watch children closely and intervene effectively when vulnerable children are repeatedly subject to harmful behavior, without shifting the blame to its vulnerable or incompetent charges.  Similarly [the facility], having undertaken the care of vulnerable and dependent elderly residents, is responsible to provide care to protect them from

Page 10

harmful events that they are not themselves capable of avoiding. 

Woodstock Care Ctr., DAB No. 1726 at 30 (2000) (emphasis added). 

As the lengthy discussion above reflects, the undisputed evidence establishes that resident-on-resident abuse at the facility was ongoing, and that the facility did not “provide care to protect [its vulnerable residents] from harmful events that they [were] not themselves capable of avoiding.”  Virtually any one of the cited incidents, by itself, would support a finding of substantial noncompliance. 

Petitioner, nevertheless, defends its actions (or inaction) by arguing:  1) that many of the instances cited do not constitute sexual or physical abuse; 2) the care plans were properly followed; and 3) that only two incidents constituted abuse and those incidents were properly handled. 

All of these arguments fail. 

Nothing in this record supports Petitioner’s suggestion that the facility could not have anticipated its residents’ behaviors.  Where, as here, individuals have histories of behaviors that pose a risk of abuse, the facility should anticipate that the behaviors will reoccur and should take appropriate action to protect other residents.  The Bridge at Rockwood, DAB No. 2954 at 11-13 (2019) (holding that, where a resident had a history of violence and aggression, the facility knew or should have known the significant risk he posed to the facility’s vulnerable residents); see Woodstock Care Ctr., DAB No. 1726 at 27 (rejecting the facility’s contention that a resident’s history of assaults did not provide it notice sufficient to trigger a “higher duty of reasonable care”). 

And, as set forth above, this record includes overwhelming evidence of the residents’ aggression and the facility’s specific awareness of it, including: 

• R2’s care plans and progress notes consistently describe sexually inappropriate behaviors.
• R2’s care plan called for staff intervention to protect the rights and safety of others.
• R2 frequently wandered into other residents’ rooms while they were undressing or using the bathroom.
• Staff noted and reported that R2 was aggressive with staff.
• At the time he was admitted to the facility, it was noted to be a necessity to monitor him for angry outbursts, irritability, or frustration at every shift. 

Page 11

• R7’s care plan noted that he could be physically aggressive and that he may hit or strike staff or peers.  The care plan called for staff to note the time and day of the behavior, any triggers, and what worked for deescalation.
• Later on, R7’s care plan noted that redirection only furthered R7’s aggressive behavior, but the record shows the facility continued to use it as an intervention.
• R7 frequently interfered with staff pushing residents in wheelchairs but the facility did not prevent him from doing so even though it led to another resident being injured. 

Although staff might not always have been able to anticipate exactly when an aggressive resident would attack another, they knew the incidents were likely and had a duty to provide appropriate care to prevent the foreseeable results.  See Woodstock Care Ctr., DAB No. 1726 at 27 (rejecting the notion that the facility must be “provided advance warning for each adverse event in order to be responsible for taking reasonable measures to prevent injurious occurrences [that] it knows to be likely to take place at some point, if not at a particular time or place.”). 

Moreover, as noted above, there were identifiable incidents of risk of abuse behaviors that the facility was aware of and did not react to appropriately.  The facility was aware of the sexual comments and increasingly aggressive behaviors exhibited by R2 and R7 and they did not take action to protect the other residents. 

By themselves, the circumstances surrounding R2’s abuse of R1 when they were found naked in bed together, for example, are sufficient to put the facility out of substantial compliance.  Earlier that day, staff recorded numerous inappropriate behaviors by R2 but he was allowed to continue wandering alone around the facility.  That same day, R2 made sexually inappropriate remarks to staff, made sexually inappropriate remarks to R6 and her spouse while fondling himself, and staff was unable to give him a bath because of sexually inappropriate behaviors.  Had the facility intervened effectively, they could have anticipated the potential problems and prevented the abuse of R1 from occurring. 

The same is true for when R7 squeezed R4’s shoulders so hard she yelled out in pain.  Or when R7 repeatedly kicked R1 in the shins.  The facility was aware that R7 exhibited aggressive behaviors and had abused residents before, but they did not intervene effectively and instead continued to offer interventions like redirection that had proven not to work. 

It wasn’t until the surveyors identified the immediate jeopardy deficiencies that the facility implemented 15-minute checks for both R2 and R7 with instructions to monitor both residents to decide if the checks could be increased or decreased.  The facility also implemented a plan to reassess interventions if they did not work and determine whether there was a possible root cause of the behaviors. 

Page 12

Petitioner argues that there were only two incidents of abuse that occurred.  P. Br. at 13.  The incident of physical abuse of R1 by R7 on September 21, 2023 and the incident of sexual abuse of R1 by R2 on October 17, 2023.  Id.  Petitioner argues that the majority of the additional behaviors and incidents cited by CMS and the surveyors did not constitute abuse and that the interventions utilized were appropriate.  Id. at 14.  Additionally, Petitioner argues that the two incidents identified as abuse were handled properly. 

However, the undisputed evidence, including Petitioner’s own admissions, establishes that the facility did not keep its residents free from physical and sexual abuse.  Failing to protect them put the facility out of substantial compliance with 42 C.F.R. § 483.12. 

By itself, the abuse deficiency is sufficient to sustain the penalty imposed.  An ALJ need not consider all of the deficiencies cited, so long as the deficiencies she affirms support the sanctions imposed.  See Perry Cty. Nursing Ctr. v. U.S. Dep’t of Health & Human Servs., 603 F. App’x 265, 271 (5^th Cir. 2015) (agreeing that the regulations require ALJs to review only those findings that are material to the outcome of a case); Claiborne-Hughes Health Ctr. v. Sebelius, 609 F.3d 839, 847 (6^th Cir. 2010); Rockcastle Health & Rehab. Ctr., DAB No. 2891 at 23-24 (2018); Carrington Place of Muscatine, DAB No. 2321 at 20-21 (2010); Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 6 n.5 (2010), aff’d, Senior Rehab. & Skilled Nursing Ctr. v. Health & Human Servs., 405 F. App’x 820 (5^th Cir. 2010).  In an abundance of caution, I also consider the facility’s substantial noncompliance with section 483.40(b)(3). 

2. The facility was not in substantial compliance with 42 C.F.R. § 483.40(b)(3) (F744) because Petitioner failed to provide appropriate treatment and services for R2 and R7’s dementia. 

Relevant Facts:  Both R2 and R7 were noted to have dementia at the time they were admitted to the facility. 

Petitioner’s Noncompliance:  42 C.F.R. § 483.40(b)(3) mandates that any resident of a skilled nursing facility who displays signs of dementia or who is diagnosed with that condition receives appropriate treatment and services designed to maintain that resident's highest practicable physical, mental, and psychosocial well-being.  See Windsor Health Care Ctr., DAB No. 1902 (2003).  CMS argues that Petitioner did not implement new interventions when behaviors continued and maintained the use of other interventions, like redirection, despite noting that it increased R7’s behaviors.  And that this failure shows that the facility did not provide R2 and R7 with appropriate treatment for their dementia related behaviors.  Additionally, the evidence does not show that R2 or R7’s care plans were updated to implement new interventions. 

Petitioner makes little to no arguments in its brief to dispute that the facility failed to comply with 42 C.F.R. § 483.40(b)(3).  In its request for hearing, Petitioner asserts that it

Page 13

provided training to staff on abuse and dementia care.  Petitioner also argues in its hearing request that the care plans were updated to address the aggressive and sexual behaviors.  However, Petitioner also admits that it could have formalized an increased monitoring plan for R2 and R7 so that “the interventions were more effective and could have prevented the incidents on September 21, 2023 and October 17, 2023.  P. Hrg. Req. at 15. 

It is clear that the facility failed to provide proper treatment to R2 and R7 for their dementia related behaviors. 

3. The facility was not in substantial compliance with 42 C.F.R. § 483.12(c). 

The surveyors found that the facility failed to report and investigate the abuse by R2 and R7.  CMS argues that the facility failed to report five allegations of abuse to the state agency within 24 hours and that it did not thoroughly investigate at least three of the allegations of abuse involving R2 and R7.  The facility admits that it did not timely report the September 21, 2023 incident.  P. Hrg. Req. at 8.  Additionally, the Petitioner does not raise any arguments to dispute these findings and does not dispute the reasonableness of the associated civil money penalty.  See P. Br. at 2.  As a result, I sustain these deficiencies. 

4. CMS’s immediate jeopardy determination is not clearly erroneous. 

CMS asserts that Petitioner’s violation of the requirements at 42 C.F.R. § 483.12(a)(1) (S/S K) and 42 C.F.R. § 483.40(b)(3) (S/S J) posed immediate jeopardy to resident health and safety from November 2, 2023 through November 13, 2023.  Petitioner argues that even if I were to find noncompliance, there is insufficient justification for a finding of immediate jeopardy. 

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).  I must uphold CMS’s determination as to the level of a facility’s substantial noncompliance (which includes an immediate jeopardy finding) unless it is “clearly erroneous.”  42 C.F.R. § 498.60(c).  The “clearly erroneous” standard imposes on facilities a heavy burden to overcome a finding of immediate jeopardy.  Appellate panels of the DAB 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) (citing Florence Park Care Ctr., DAB No. 1931 at 27-28 (2004)), aff’d, Barbourville Nursing Home v. U.S. Dep’t of Health & Human Servs., 174 F. App’x 932 (6th Cir. 2006). 

Page 14

In this case, CMS’s finding of immediate jeopardy is not clearly erroneous.  Petitioner’s failure to substantially comply with 42 C.F.R § 483.12(a)(1) and 42 C.F.R. § 483.40(b)(3) was likely to cause serious injury or harm to its residents.  The evidence shows, and Petitioner admits, that at least two incidents of physical and sexual abuse occurred at the facility.  Those incidents alone are sufficient to uphold the immediate jeopardy determination.  There were also additional incidents of behavior that the facility failed to timely react to and, as a result, failed to protect the residents from abuse and the risk of abuse.  Consequently, I conclude that CMS did not clearly err in citing immediate jeopardy. 

5. The remedy imposed is reasonable. 

Determining whether the remedy is reasonable.  To determine whether a civil money penalty is reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f): (1) the facility’s history of noncompliance; (2) the facility’s financial condition; (3) factors specified in 42 C.F.R. § 488.404; and (4) the facility’s degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort or safety.  The absence of culpability is not a mitigating factor.  The factors 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. 

I consider whether the evidence supports a finding that the amount of the CMP is at a level reasonably related to an effort to produce corrective action by a provider with the kind of deficiencies found and in light of the section 488.438(f) factors.  I am neither bound to defer to CMS’s factual assertions nor free to make a wholly independent choice of remedies without regard for CMS’s discretion.  Barn Hill Care Ctr., DAB No. 1848 at 21 (2002); Cmty. Nursing Home, DAB No. 1807 at 22 et seq. (2002); Emerald Oaks, DAB No. 1800 at 9 (2001); CarePlex of Silver Spring, DAB No. 1683 at 8 (1999). 

I determine whether a penalty is reasonable, based on the per-day penalty, not the total accrued penalty.  Copperas Cove LTC Partners, Inc., DAB No. 3049 at 43 (2021); Crawford Healthcare & Rehab., DAB No. 2738 at 20 (2016). 

The burden is on the facility “to demonstrate, through argument and submission of evidence addressing the regulatory factors, that a reduction is necessary to make the CMP amount reasonable.”  Heritage Plaza Nursing Ctr., DAB No. 2829 at 22 (2017) (quoting Oaks of Mid City Nursing & Rehab. Ctr., DAB No. 2375 at 26-27 (2011)).  Penalties are inflation-adjusted and change annually.  The amount is determined as of the date the penalty is assessed, in this case, March 14, 2024.  CMS Ex. 2.  The regulations specify that a per-day CMP will fall into one of two ranges of penalties.  42 C.F.R. §§ 488.408, 488.438.  The upper range of a CMP is reserved for deficiencies that pose immediate jeopardy to a facility’s residents and, in some circumstances, for repeated

Page 15

deficiencies.  42 C.F.R. § 488.438(a)(1)(i), (d)(2).  The lower range of a CMP is reserved for deficiencies that do not pose immediate jeopardy, but either cause actual harm to residents, or cause no actual harm but have the potential for causing more than minimal harm.  42 C.F.R. § 488.438(a)(1)(ii). 

CMS imposed two per-day CMPs in this case, and I have found that the citation of immediate jeopardy was not clearly erroneous.  For the period of Petitioner’s immediate jeopardy level noncompliance, CMS proposed a CMP of $9,675 per day, which is near the bottom of the range for immediate jeopardy level noncompliance.  For the period of Petitioner’s below immediate jeopardy level noncompliance, CMS proposed a CMP of $360 per day, which also is near the minimum for below immediate jeopardy level noncompliance. 

Applying the regulatory criteria to this case.  Considering the relevant factors, CMS has established that the relatively low CMP is reasonable. 

History.  The facility has a compliance history that includes cited deficiencies.  A survey in 2023 found deficiencies at the scope and severity of F, E, and D.  A survey in 2022 found deficiencies at the scope and severity of F and G.  CMS Ex. 3.  Petitioner does not dispute these previous findings of non-compliance. 

Petitioner has not shown, nor even alleged, that the payment of the CMP would affect its ability to stay in business, and the evidence does not otherwise warrant reduction of the CMP based on Petitioner’s financial condition. 

With respect to the remaining factors, this case involved multiple allegations of abuse.  I have discussed in significant detail the allegations above.  The facility is culpable for the abuses effectuated by R2 and R7.  It failed to take appropriate action to protect other residents and failed to provide R2 and R7 with appropriate services. 

Thus, considering the section 488.438(f) factors, a substantial penalty is justified.  I therefore conclude that the low-end penalty imposed here is reasonable. 

II. Conclusion

The facility was not in substantial compliance with Medicare program requirements.  The penalty imposed is reasonable.