Pinnacle Rehabilitation and Health Care Center, DAB CR6960 (2026)

DECISION

Petitioner, Pinnacle Rehabilitation and Health Care Center (Pinnacle), challenges the determination by Respondent, the Centers for Medicare & Medicaid Services (CMS), that it was not in substantial compliance with program participation requirements.  Pinnacle also challenges CMS’s imposition of a $8,489 per-day civil money penalty (CMP).  As explained herein, I affirm CMS’s determination and find the CMP reasonable.

I.  Background

Pinnacle is a skilled nursing facility in Smyrna, Delaware participating in the Medicare program.  See P. Br. at 5; CMS Br. at 1.  Delaware’s Division of Health Care Quality (“DHCQ” or state agency) completed a survey of Petitioner’s facility in November 2020 and cited it for deficiencies including a violation of 42 C.F.R. § 483.12(a) (Physical Abuse, Tag F600) at the “K” scope and severity level (indicating a pattern of noncompliance that posed an immediate jeopardy to resident health or safety).1  CMS Ex. 1 at 6-21.

Page 2

On January 15, 2021, DHCQ conducted a revisit survey and found Petitioner had returned to substantial compliance as of December 31, 2020.  CMS Ex. 1 at 6; CMS Ex. 14 at 2.  On March 12, 2021, CMS imposed a CMP of $8,489 per day for 41 days of immediate jeopardy-level noncompliance from September 5, 2020 through October 15, 2020 for a total of $348,049.  CMS Ex. 14 at 2.  It also imposed a CMP of $330 per day for 75 days2 of noncompliance that did not rise to the level of immediate jeopardy from October 17, 2020 through December 30, 2020.  Id.

Pinnacle timely requested a hearing before an administrative law judge in the Civil Remedies Division to challenge CMS’s imposition of penalties.  In its hearing request, Petitioner challenged only the immediate jeopardy-level citation arising under 42 C.F.R. § 483.12 (Tag F600).  It therefore waived its right to contest the remaining citations or the penalty imposed for them.

Upon my designation to hear and decide this case, I issued a Standing Order that established a briefing schedule and directed the parties to file pre-hearing submissions that included written direct testimony for proposed witnesses, proposed exhibits, and pre-hearing briefs.  Standing Order at 4.  CMS filed a pre-hearing brief (CMS Br.) with 17 proposed exhibits (CMS Exs. 1-17).  Petitioner filed a pre-hearing brief (P. Br.) and 16 proposed exhibits (P. Exs. 1-16).  CMS identified and provided declarations for two witnesses in its exchange, state agency surveyor Takae U. Mason and Beryl Goldman, R.N., Ph.D.  Petitioner identified and provided declarations for six witnesses:  Juliet Fountain, Bill Moyer, Cody Krogh, Cecelia Price, Karl Whitlock, and Amy Tomko.  Petitioner requested cross-examination of CMS’s witnesses but objected to the admission of Dr. Goldman’s testimony, citing the foundation and relevance of her testimony as bases for exclusion.  I overruled Petitioner’s objection in the Notice of Hearing for the reasons stated therein.

Page 3

II.  Hearing and Admission of Exhibits

On August 17, 2022, I held a hearing by videoconference to allow Petitioner the opportunity to cross-examine CMS’s witnesses.  At the outset and without further objection from the parties, I entered CMS Exhibits 1 through 17 and Petitioner’s Exhibits 1 through 16 into evidence.  Hearing Transcript (Tr.) at 6.  The parties subsequently filed post-hearing briefs (CMS Closing Br.; P. Closing Br.).

On July 5, 2024, Petitioner filed a “Motion for Remand, and for Refund of Civil Money Penalty” arguing the U.S. Supreme Court’s decision in Sec. & Exch. Comm’n v. Jarkesey, 603 U.S. 109 (2024), necessitated remand and return of the CMP amount Petitioner escrowed while its appeal pended before me.  CMS opposed Petitioner’s motion.  On July 29, 2024, I denied Petitioner’s motion for the reasons stated therein.

III.  Statement of Issues

1. Whether Pinnacle was in substantial compliance with 42 C.F.R. §§ 483.12(a) (Tag F600);
2. If Pinnacle was not in substantial compliance, whether CMS’s immediate jeopardy determination was clearly erroneous; and
3. If Pinnacle was not in substantial compliance, whether the CMP imposed by CMS is reasonable.

IV.  Jurisdiction

I have jurisdiction to hear and decide this case.  42 U.S.C. § 1395i-3(h)(2)(B)(ii), incorporating by reference 42 U.S.C. § 1320a-7a(c)(2); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13).

V.  Legal Authority for the Imposition of Penalties

The Social Security Act (Act) sets forth requirements for skilled nursing facilities to participate in the Medicare program.  It authorizes the Secretary of Health and Human Services to promulgate regulations implementing those statutory provisions.  42 U.S.C. § 1395i-3.  These regulations are found at 42 C.F.R. parts 483 and 488.

To participate in the Medicare program, skilled nursing facilities must maintain substantial compliance with program participation requirements.  To be in 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.  A deficiency is a violation of a participation requirement established by 42 U.S.C. § 1395i-3(b)-(d), or the

Page 4

Secretary’s regulations at 42 C.F.R. pt. 483, subpt. B.  Id.  “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.”  Id. 

The Secretary contracts with state agencies to conduct periodic surveys to determine whether skilled nursing facilities are in substantial compliance with the participation requirements.  42 U.S.C. § 1395aa(a); 42 U.S.C. § 1395i-3(g); 42 C.F.R. §§ 488.10(a), 488.308.  The Act authorizes state agencies to impose or recommend to the Secretary enforcement remedies to be imposed against skilled nursing facilities not in substantial compliance with program participation requirements.  42 U.S.C. §§ 1395i-3(h)(1), 1396r(h).

The Secretary can impose enforcement remedies with or without a state agency’s recommendation.  42 U.S.C. § 1395i-3(h)(2).  The Secretary’s regulations specify the enforcement remedies that CMS or a state agency may impose if a facility is not in substantial compliance.  See 42 C.F.R. § 488.406.  Among them, CMS may impose a per-day CMP for the number of days a facility is not in substantial compliance.  42 C.F.R. § 488.430(a).  At the time CMS imposed the penalties at issue here, a per-day CMP could range from $112 to $6,695 for less serious noncompliance and $6,808 to $22,320 for noncompliance that poses an immediate jeopardy3 to the health and safety of residents.  42 C.F.R. § 488.438(a)(1); 45 C.F.R. § 102.3; 85 Fed. Reg. 2869, 2880 (Jan. 17, 2020).

A skilled nursing facility subject to a remedy based on a determination of noncompliance may request a hearing before an ALJ to determine whether a basis existed for the deficiency findings that led to the imposition of the remedy.  42 U.S.C. § 1395i-3(h)(2)(B)(ii), incorporating by reference 42 U.S.C. § 1320a-7a(c)(2); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13).  However, neither CMS’s choice of remedies nor the process by which it selects remedies are subject to review.  42 C.F.R. § 488.408(g)(2).

VI.  Burdens of proof and persuasion

Congress established that unless otherwise provided by statute, “the proponent of a rule or order has the burden of proof” in adjudications under the Administrative Procedures Act (APA).  5 U.S.C. § 556(d).  The Social Security Act, which authorizes this proceeding, does not “otherwise provide” the burden of proof.  It would therefore be reasonable to conclude that CMS, the party seeking to impose penalties authorized by the Act, bears the burdens of proof and persuasion to justify doing so.

Page 5

Nevertheless, the Departmental Appeals Board has imposed a burden-shifting regime in cases involving the imposition of enforcement penalties against providers whose appeals are adjudicated under 42 C.F.R. Part 498.  Hillman Rehab. Ctr., DAB No. 1611 (1997), aff’d, Hillman Rehab. Ctr. v. U.S. Dep’t of Health & Human Servs., No. Civ. A. 98-3789 (GEB), 1999 WL 34813783 (D.N.J. May 13, 1999); VITAS Healthcare Corp. of Calif., DAB No. 1782 at 4 (2001); Cross Creek Health Care Ctr., DAB No. 1665 (1998) (applying the burden-shifting regime to cases involving skilled nursing facilities); Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004), aff’d sub nom., Batavia Nursing & Convalescent Ctr. v. Thompson, 143 F. App’x 664 (6th Cir. 2005).

Under this regime, CMS has the burden to come forward with evidence sufficient to make a prima facie showing4 it had a basis to impose a penalty.  In Hillman, the Board identified the elements it believed necessary for CMS to make such a showing:

[CMS] must identify the legal criteria to which it seeks to hold a provider.  Moreover, to the extent that a provider challenges [CMS’s] findings, [CMS] must come forward with evidence of the basis for its determination, including the factual findings on which [CMS] is relying and, if [CMS] has determined that a condition of participation was not met, [CMS’s] evaluation that the deficiencies found meet the regulatory standard for a condition-level deficiency.

DAB No. 1611 at 8.

Once CMS makes a prima facie showing of noncompliance, the Board held the facility bears “the ultimate burden of persuasion” and can only prevail if it proves, by a preponderance of the evidence of record, that it substantially complied with statutory and regulatory requirements.  Id. at 7.

A skilled nursing facility subsequently appealed CMS’s imposition of a CMP, arguing the Board’s burden-shifting regime was improper in hearings proceeding under the APA.  Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004), aff’d sub nom., Batavia Nursing & Convalescent Ctr. v. Thompson, 143 F. App’x 664 (6th Cir. 2005).  The Board rejected this claim, asserting the Supreme Court had, in other contexts, approved placing the burden of proof “on the claimant for governmental benefits when evidence is evenly

Page 6

balanced” because the party seeking the benefit, including a “non-monetary benefit or privilege,” would be “the proponent of the rule or order.”  Id. at 10 (citing Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 276 (1994); U.S. Steel Corp. v. Train, 556 F.2d 822, 834 (7th Cir. 1977) (the applicant for a permit to discharge pollutants is a “proponent”); Day v. NTSB, 414 F.2d 950, 952 (5th Cir. 1969) (placing the burden of proof on a pilot seeking the government’s certification of fitness to fly).

The Board reasoned that by appealing the penalties imposed by CMS, Batavia Nursing in essence sought “from the government an order certifying that it is in substantial compliance with [skilled nursing facility] requirements, so that it may continue to participate in the Medicare program with no restrictions on payment.”  Id.  The Board therefore found it reasonable to place the burden of proof on Batavia to show its return to substantial compliance.  Id. 

The Board’s characterization of the nature of the remedy sought in these proceedings would apply more squarely to a provider challenging its termination from the Medicare program.  In that case, the appealing facility would seek a rule or order overturning CMS’s termination action and thus allow its continued participation as a provider.5  But for facilities like Batavia appealing the imposition of lesser penalties like CMPs, the rationale is less persuasive.  Batavia was not barred from participating in the Medicare program as a provider during the pendency of its appeal.  It instead sought a ruling that CMS did not have a basis to impose penalties under the Act.

The characterization of penalized facilities as proponents of a rule or order is also incongruous to the limitation of ALJ and Board jurisdiction to only challenges where CMS opts to impose a penalty.  42 C.F.R. § 488.408(g)(1) (“A facility may appeal a certification of noncompliance leading to an enforcement remedy.”); 42 C.F.R. § 498.3(b)(13); Columbus Park Nursing & Rehab. Ctr., DAB No. 2316 at 7 (2010) (a facility cannot contest survey deficiency findings unless CMS has imposed a remedy).

If facilities penalized for noncompliance with Medicare program participation rules are properly seen as proponents of a rule or order certifying their substantial compliance, it is unclear why Congress would not afford appeal rights under the Act to unpenalized facilities which have been found noncompliant and seek the same certification.  But if CMS is the proponent of a rule or order affirming its choice to impose penalties, the rationale to exclude unpenalized facilities from challenging deficiency findings under the Act becomes appreciable; in that circumstance, there would be no action for which CMS could seek a rule or order from an ALJ or the Board.

Page 7

The legitimacy of the burden-shifting regime thus rests largely on the notion that facilities who appeal the imposition of a penalty under the Act are in fact proponents of a rule or order certifying their substantial compliance with Medicare program participation rules.  To date, federal district and circuit courts have declined to reach the propriety of the Board’s burden-shifting regime on due process or other grounds.  See, e.g., Hillman Rehab. Ctr., DAB No. 1611 (1997), aff’d, Hillman Rehab. Ctr. v. U.S. Dep’t of Health & Human Servs., No. Civ. A. 98-3789 (GEB), 1999 WL 34813783 (D.N.J. May 13, 1999); Fairfax Nursing Home, Inc., DAB No. 1794 (2001), aff’d, Fairfax Nursing Home v. Dep’t of Health & Human Servs., 300 F.3d 835 (7th Cir. 2002), cert. denied, 2003 WL 98478 (Jan. 13, 2003); Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004), aff’d sub nom., Batavia Nursing & Convalescent Ctr. v. Thompson, 143 F. App’x 664 (6th Cir. 2005).

The Supreme Court has since examined the scope of the Secretary’s rulemaking authority in the context of Medicare reimbursement and held that under section 1871 of the Act, the Secretary must comply with notice-and-comment rulemaking to impose any requirements upon regulated entities constituting a change in a substantive legal standard pertaining to the payment for services by the Medicare program or eligibility to furnish or receive services or benefits to that program.  Azar v. Allina Health Servs., 587 U.S. 566, 139 S. Ct. 1804 at 1809-14 (2019); 42 U.S.C. § 1395hh(a)(2).  It is unclear whether the Board’s imposition of burden-shifting in the adjudication of enforcement penalties and enrollment-related actions against regulated entities, absent statutory or regulatory authority to do so, constituted a change in a substantive legal standard affecting eligibility to furnish services or receive payments from the Medicare program within the meaning of the Allina decision.

The Court has also formally repudiated its longstanding interpretive rule, known as Chevron deference, which required courts reviewing an agency action to defer to agency interpretation of ambiguity in a statute authorizing or directing that action.  See Loper Bright Enters. v. Raimondo, 603 U.S. 369, 144 S. Ct. 2244 (2024); see also Hillman Rehab. Ctr., DAB No. 1611 at 17-20 (relying in part on the Board’s predecessor body’s “long-standing interpretation” of the Act to justify burden shifting).

It remains to be seen whether federal courts will consider the Board’s burden-shifting regime a “change in a substantive legal standard” under Allina or, in the absence of Chevron deference, more broadly reject the Board’s view that section 7 of the APA permits identifying entities challenging enforcement actions taken by the government as proponents of an order or rule.  Until such judicial scrutiny demands otherwise, and absent modification of the Act or CMS’s implementing regulations, I apply the Board’s burden-shifting regime.

Page 8

VII.  Discussion

1. Regulatory framework for deficiencies related to abuse

42 C.F.R. § 483.12 provides that residents of skilled nursing facilities have “the right to be free from abuse, neglect, misappropriation of resident property, and exploitation as defined in [42 C.F.R. pt. 483, subpt. B].”  “Abuse” is defined as:

the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.  Abuse also includes the deprivation by an individual, including a caretaker, of goods or services that are necessary to attain or maintain physical, mental, and psychosocial well-being.  Instances of abuse of all residents, irrespective of any mental or physical condition, cause physical harm, pain or mental anguish.  It includes verbal abuse, sexual abuse, physical abuse, and mental abuse including abuse facilitated or enabled through the use of technology.  Willful, as used in this definition of abuse, means the individual must have acted deliberately, not that the individual must have intended to inflict injury or harm.

42 C.F.R. § 483.5, Abuse.

Facilities must develop and implement written policies and procedures that:  “(1) [p]rohibit and prevent abuse, neglect, and exploitation of residents and misappropriation of resident property, (2) [e]stablish policies and procedures to investigate any such allegations, and (3) [i]nclude training as required at paragraph § 483.95.”  42 C.F.R. § 483.12(b)(1)-(3).

They must take the following actions in response to allegations of abuse, neglect, exploitation, or mistreatment:

(1) ensure all alleged violations are reported immediately to the facility administrator and appropriate state officials within 2 hours if the events that cause the allegation involve abuse or result in serious bodily injury;

(2) document the thorough investigation of all alleged violations;

(3) prevent further potential abuse, neglect, exploitation, or mistreatment while the investigation is in progress; and

Page 9

(4) report the results of all investigations to the administrator or designated representative and to the appropriate state officials within 5 working days of the incident and take appropriate action if the violation is verified.

42 C.F.R. § 483.12(c)(1)-(4).

Skilled nursing facilities must develop, implement, and maintain an effective training program for all staff, including those hired under a contractual arrangement and volunteers.  Among the training topics, a facility must include training on abuse, neglect, and exploitation, and educate its staff on what activities constitute violations, the procedures for reporting any incidents, dementia management, and resident abuse prevention.  42 C.F.R. § 483.95(c)(1)-(3).

42 C.F.R. § 483.12 applies both to staff-to-resident abuse and resident-to-resident abuse.  The Bridge at Rockwood, DAB No. 2954 at 24 (2019).6  The Board recognized a “distinction between ‘staff-to-resident’ abuse and ‘resident-to-resident’ interactions for purposes of determining compliance with section 483.13(b) . . . .”  Kindred Transitional Care & Rehab – Greenfield, DAB No. 2792 at 10 (2017).  It reasoned that facilities are “directly responsible” for the actions of their staff, but that members of staff could not “be expected to take protective actions against entirely unforeseeable risks.”  Id. at 11, citing Woodstock Care Ctr., DAB No. 1726, at 25-35 (2000).  The Board therefore observed 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, DAB No. 2954 at 24, quoting Kindred Transitional Care, DAB No. 2792 at 11.

2. Facility Abuse Policy

Consistent with the regulations, Petitioner’s abuse and prevention policy established its residents have “the right to be free from verbal abuse, sexual abuse, physical and mental abuse, corporal punishment, involuntary seclusion, mistreatment, neglect, exploitation, misappropriation of property and any physical or chemical restraint not required to treat the resident’s medical symptoms.”  CMS Ex. 3 at 1.  Petitioner’s policy incorporates verbatim the regulatory definition of “Abuse.”  Compare CMS Ex. 3 at 1-2, with 42

Page 10

C.F.R. § 483.5, Abuse.  It further specified “Physical Abuse” included “hitting, slapping, pinching, kicking, etc.”  CMS Ex. 3 at 2.

3. Relevant Facts

At the time of the survey, Resident 2 was a 67-year-old woman, initially admitted to Petitioner’s facility in August 2019.  CMS Ex. 6 at 2; P. Ex. 1.  Her diagnoses included alcohol-induced dementia, major depression, general anxiety, and a history of stroke.  Id.  On May 8, 2020, Petitioner’s staff conducted a quarterly Minimum Data Set (MDS) evaluation 7 and assigned Resident 2 a Brief Interview for Mental Status (BIMS) 8 score of 4, indicating severe level of cognitive impairment.  CMS Ex. 1 at 8. 9  

On August 17, 2020, Licensed Practical Nurse Cecilia Price noted Resident 2 struck Resident 7, an 87-year-old man with dementia who was susceptible to falls, on his right arm; no injuries occurred.  CMS Ex. 7 at 56; P. Ex. 4 at 45; P. Ex. 9 at 12.  Facility staff initiated 15-minute checks on Resident 2 and referred her for psychiatric evaluation.  P. Ex. 4 at 45.

On August 18, 2020, Resident 2 shoved Resident 9, a 90-year-old suffering from Alzheimer’s disease, osteoarthritis, and muscle weakness to the floor, causing a skin tear on his right arm to reopen.  CMS Ex. 8 at 2-4; P. Ex. 4 at 44.  Petitioner’s staff indicated it would implement 1:1 supervision of Resident 2 and referred her for psychiatric evaluation.  CMS Ex. 8 at 1.  Later that evening, LPN Christopher Higgins noted staff were checking Resident 2 every 15 minutes.  P. Ex. 4 at 44.  The next day, Karl Whitlock, Psy.D., evaluated Resident 2, who had no recollection of the incident.  P. Ex. 6 at 1.  Dr. Whitlock noted facility staff were providing 1:1 supervision.  Id. 

Page 11

On August 24, 2020, Petitioner’s interdisciplinary care planning team (IDT)10 conducted Resident 2’s annual care plan meeting with Resident 2’s sister present.  P. Ex. 4 at 41.  Social Worker Rahsaan Matthews noted Resident 2 had been placed on “1:1 staff monitoring” because of her physical aggression towards peers.  Id. 

On September 4, 2020, Nurse Practitioner Amy Tomko evaluated Resident 2 at Petitioner’s request to determine whether the resident still required 1:1 supervision since she had no physical or verbal altercations with staff or other residents after August 18, 2020.  P. Ex. 6 at 2.  NP Tomko recommended facility staff discontinue 1:1 supervision but advised them to continue monitoring Resident 2 for any change in condition or escalation in behavior.  Id. at 3.

On September 5, 2020, CNA Ciara Griffen heard Resident 7 yelling “stop leave me the hell alone.”  CMS Ex. 7 at 9, 11-14.  She observed Resident 2 standing next to Resident 7, who stated Resident 2 had hit him in the chest and back.  Id.  Petitioner’s IDT conducted a review and returned Resident 2 to 15-minute checks.  Id. at 12.  On September 9, 2020, Dr. Whitlock evaluated Resident 2, who reported difficulty tolerating interaction.  P. Ex. 6 at 4.  Dr. Whitlock recommended review of Resident 2’s psychotropic medications.  Id. 

On September 10, 2020, CNA Briaja Clark witnessed Resident 2 standing over Resident 7, who was on the floor, with her hand raised as if she had just struck him or intended to do so.  P. Ex. 9 at 21, 24.  Resident 7 asked “What was that for?”  Id. at 21.  Petitioner’s staff separated the residents and placed Resident 2 on 1:1 monitoring.  Id. 

On September 15, 2020, Resident 2 struck the outstretched arms of Resident 10, a 69-year-old woman with bipolar disorder and heart failure, while trying to take an envelope from her.  CMS Ex. 9 at 1-5; P. Ex. 9 at 25.  In the incident report to the state agency, DON Maichle indicated Petitioner’s staff placed Resident 2 on 1:1 supervision and referred her for psychiatric evaluation.  CMS Ex. 9 at 2.  However, she also indicated Resident 2’s care plan had been updated to include “close supervision.”  Id. 

On an unspecified date, NP Tomko evaluated Resident 2 at the request of facility staff, noting the incidents of aggression that took place September 5, 10, and 15, 2020.  P. Ex. 7 at 1.  NP Tomko noted Resident 2 reported “other people bother me” and exhibited a flat affect.  Id.  The nurse practitioner advised Petitioner’s staff to continue monitoring Resident 2 and to notify her of any change in her condition or behavior.  Id. at 2.  NP Tomko also suggested Resident 2 might require inpatient evaluation.  Id. 

Page 12

On September 19, 2020, CNA Yvonne Fountain reported that at approximately 2:00 p.m., she heard Resident 1, a 73-year-old woman whose diagnoses included catatonic disorder, dementia, and dysphagia, calling for help.  CMS Ex. 12 at 2, 17, 32.  CNA Fountain discovered Resident 1 on the floor between two beds and Resident 2 standing in the room.  Id. at 32.  Resident 1 told CNA Fountain three times that Resident 2 had pulled her to the floor, causing the nurse to call for help.  Id.  Unit Manager Sylvia Christmas, RN, confirmed she was called into the unit to assess Resident 1 and was told Resident 2 had pulled the resident out of bed.  Id. at 16.  Resident 1 reported hitting her head but Nurse Christmas assessed the resident and found no visible injuries or swelling.  Id. at 17.

At approximately 2:43 p.m., LPN Billie Jo Varnau texted Director of Nursing (DON) Linda Maichle, RN, and advised her of the incident.  Id. at 21.11  DON Maichle stated she did not believe the incident to be a reportable event because no injury took place and confirmed she directed facility staff to not create an incident report on that basis.  Id. 

At some point thereafter, Administrator Juliet Fountain obtained statements from facility staff.  Id. at 20.  Although she noted CNA Fountain responded to Resident 1’s cries for help, she omitted the CNA’s recollection that Resident 1 accused Resident 2 of hitting her three times.  Id.  Administrator Fountain reasoned it unlikely Resident 2 had the strength to pull Resident 1 out of her bed without injuries to both and therefore concluded it was more likely Resident 1 had simply rolled out of bed and in her “demented state” assumed Resident 2 had been responsible based on her presence.  Id. 

On September 25, 2020, Petitioner transferred Resident 2 to Roxborough Memorial Hospital for evaluation and treatment by its psychiatric unit.  P. Ex. 4 at 23-24; P. Ex. 8 at 1.  On admission, psychiatrist Cyllene Briones, MD, diagnosed Resident 2 with dementia with behavioral disturbance, made modifications to her psychotropic medications, and ordered Resident 2 be kept under close watch.  P. Ex. 8 at 6-7.  Roxborough discharged Resident 2 on October 15, 2020, 21 days later.  Id. at 34-37.  Nurse Practitioner Marguerita Torres noted Resident 2 responded well to the changes in medication and exhibited stabilized mood and improved sleep and appetite.  Id.  Petitioner received Resident 2 at approximately 6:15 p.m.  P. Ex. 4 at 20.  According to LPN Princess Cargeor, Resident 2 was “oriented to staffs, call bell use and surroundings with one staff supervision.”  Id. 

Less than an hour later, at approximately 7:00 p.m., LPN Cargeor observed Resident 2 wandering in the hallway to other rooms and redirected the resident to her own room.  Id.

Page 13

at 21.12  While LPN Cargeor put a wander guard on Resident 2’s ankle, Resident 11, her roommate, yelled out, “She slap[ped] me in my face.”  Id.  Facility staff transferred Resident 2 to a private room, initiated one-to-one supervision, and notified Resident 2’s physician and sister.  P. Ex. 4 at 21; P. Ex. 9 at 29.

4. Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(a)(1) (Tag F600).

42 C.F.R.§ 483.12(a) places an affirmative duty on facilities to supervise residents to prevent them from harming themselves or others.  Western Care Mgmt. Corp., DAB No. 1921 at 12 (2004).  Where a facility identifies a hazard, in this case a resident with a propensity to attack other residents, and implements a plan to minimize that harm, its failure to comply with its own plan can demonstrate noncompliance.  White Sulfur Springs, DAB No. 2520 at 6-7 (2013); Alden Town Manor Rehab., DAB No. 2054 at 7 (2006).

Here, CMS argues Petitioner consistently failed to implement the one intervention it repeatedly employed to prevent Resident 2 from striking her fellow residents:  one-on-one supervision.  The agency points out that for a 40-day period from August 17, 2020 to September 25, 2020, Petitioner’s staff documented that level of supervision of Resident 2 for only 7 days, or at a rate of 17.5%.  CMS Post-hearing Br. at 5-6.  CMS contends the record otherwise confirms Petitioner failed to adequately supervise Resident 2.  Id. at 6-9.

Petitioner responds that CMS improperly imposed strict liability in this case for resident-on-resident abuse.  P. Br. at 15-17.  This claim is unfounded.  As I explain herein, the record supports the conclusion that CMS based its penalty imposition on Petitioner’s failure to adequately supervise Resident 2, which Petitioner concedes is a valid basis upon which to find liability under the regulations.  Id. at 17.

Petitioner next asserts CMS has not met its prima facie burden to establish Resident 2’s conduct amounted to abuse within the meaning of the regulation, i.e. conduct that resulted in “physical harm, pain, or mental anguish.”  Id. at 17-18, citing 42 C.F.R. § 483.5, Abuse.  This claim is without merit.  The regulation does define abuse to include willful infliction of injuries that result in physical harm, pain, or mental anguish.  42 C.F.R. § 483.5, Abuse.  But it goes on to specify that “physical abuse” of a resident, whatever their mental or physical condition, would by definition cause physical harm, pain, or mental anguish.  Id.  Petitioner’s own abuse policy defines “physical abuse” to

Page 14

include “hitting, slapping, pinching, kicking, etc.”  CMS Ex. 3 at 2.13  Neither the regulatory definition of abuse nor the facility’s own definition require an attendant showing of harm, pain, or mental anguish where physical abuse has occurred.  Id. 

Even if they did, there is sufficient evidence for me to find Resident 2’s assaults caused mental anguish to three residents and actual physical harm to one.  See CMS Ex. 7 at 9, 11-14 (Resident 7 yelled “stop leave me the hell alone” in response to Resident 2 striking him in the chest and back); CMS Ex. 12 at 2, 17, 32 (Resident 1 called out for help and repeated three times that Resident 2 had pulled her from her bed to the floor); P. Ex. 4 at 21 (Resident 11 yelled out “[Resident 2] slap[ped] me in my face.”); CMS. Ex. 8 at 2-4; P. Ex. 4 at 44 (a skin tear on Resident 9’s right arm reopened after Resident 2 shoved him).  Petitioner’s callous argument that it is not susceptible to liability for physical violence against its residents absent a showing of injury is inconsistent with the Act, the implementing regulations, and the facility’s own abuse policy.

Finally, Petitioner contends the record establishes it provided adequate supervision to Resident 2.  P. Post-hearing Br. at 13, 17, 24-27, 31.  The record does not corroborate Petitioner’s claim.  First, Petitioner’s staff did not share a clear understanding of the terms “one-to-one” or “close” supervision or monitoring, or how this differed from wellbeing checks at specific time intervals.  Dr. Whitlock, the psychologist contracted to provide mental health services to Petitioner’s residents, explained that checking a resident’s wellbeing at specified time intervals amounted to a “less restrictive” intervention than “one-to-one monitoring, which involves keeping the resident within line of sight.”  P. Ex. 15 at 2 (emphasis added).  He distinguished these interventions from “close monitoring,” which he did not define but described as an intervention he generally discouraged because it could increase agitation in an already agitated resident.  Id.  Facility administrator Juliet Fountain described “one-to-one monitoring” to mean “a staff person must at least know where a resident is located at all times, usually within line of sight unless, for example, a resident is alone in a bathroom or safely in her room.”  P. Ex. 11 at 5 (emphasis added).14  DON Maichle meanwhile understood one-to-one supervision to mean “being continuously watched.”  CMS Ex. 12 at 21.

But Petitioner’s staff appeared to use these terms interchangeably to document the level of supervision provided to Resident 2.  On August 17, 2020, after Resident 2 struck Resident 7, LPN Price noted staff initiated “15-minute checks.”  P. Ex. 4 at 45.  The next

Page 15

day, after Resident 2 struck Resident 9, DON Maichle indicated in the abuse incident report that the facility would initiate “1:1” with Resident 2.  CMS Ex. 8 at 1.  But later that evening, LPN Higgins noted staff were checking Resident 2 every 15 minutes, and the next day noted “One on one monitoring of [Resident 2] maintained.”  P. Ex. 4 at 43-44.

Between August 18, 2020 and August 25, 2020, facility staff noted Resident 2 received one-on-one monitoring.  Id. at 40-43.  But on August 26, 2020, LPN Samuels noted Resident 2 received 30-minute checks while LPN Price indicated she received one-on-one monitoring.  Id. at 39.  On August 29, 2020, Nurse Supervisor Nyamaah noted Resident 2 received “close supervision.”  Id. at 37.  But on September 1 and 3, 2020, two members of staff respectively noted Resident 2 received “close observation” and “close observations.”  Id. at 36.  P. Ex. 6 at 2.  After Resident 2 struck Resident 7 on September 5, 2020, Petitioner placed her under 15-minute checks, even though she had been under one-on-one supervision until September 4, 2020.  CMS Ex. 7 at 9, 11-14; P. Ex. 6 at 2-3.  And in the incident report for Resident 2’s assault of Resident 10 on September 15, 2020, DON Maichle indicated that Resident 2 had been placed under “1:1 supervision” and “close supervision,” suggesting she believed the terms to be equivalent.  CMS Ex. 9 at 2.

In short, the facility’s administrator, nursing director, and primary psychologist all agreed one-on-one supervision generally included keeping a resident in line of sight.  See CMS Ex. 12 at 21; P. Ex. 11 at 5; P. Ex. 15 at 2.  But members of Petitioner’s staff appeared to have understood one-on-one supervision to sometimes mean wellness checks every 15 or 30 minutes and sometimes “close supervision” or “close observation,” the precise meanings of which are impossible to ascertain.  See P. Ex. 4 at 35-37.

Given the lack of common understanding as to the meaning of these terms, it is perhaps unsurprising the record reflects the supervision Resident 2 received rarely included “line-of-sight” monitoring.  For example, Petitioner placed Resident 2 under one-to-one supervision or close supervision after she struck Resident 7 on September 10, 2020.  CMS Ex. 9 at 2; P. Ex. 9 at 21.  Yet five days later, on September 15, 2020, Resident 2 struck another resident.  CMS Ex. 9 at 1-2, 5; P. Ex. 9 at 25-28.  She presumably could not have done so if under “close” supervision by a member of staff.15  Four days after that, on September 19, 2020, Resident 2, ostensibly still under “one-to-one supervision,”

Page 16

pulled her sleeping roommate from her bed to the floor, causing her to hit her head.16  CMS Ex. 9 at 2; CMS Ex. 12 at 2, 17, 32.

Petitioner dismissed this incident as an unrelated fall, but as DON Maichle acknowledged, if staff had been providing one-on-one supervision to Resident 2 as she understood the term, the facility would not have been in the position of trying to determine what had happened to Resident 1 in the first place.  See CMS Ex. 12 at 21 (“[Resident 2] is on one on one [supervision] and I was concerned and confused as to how [Resident 2] could have helped [Resident 1] out of her bed if she was being continuously watched.”).  See Lake Park Nursing and Rehab. Ctr., DAB No. 2035 at 9 (2006) (a facility’s inability to explain how a resident sustained injuries supports a finding of inadequate supervision).

The lack of clarity as to the level of supervision Resident 2 required continued on her return to Petitioner’s facility after an inpatient stay to address her aggressive behavior.  When readmitted on October 15, 2020, it is not clear what level of supervision, if any, facility staff placed Resident 2 under; LPN Cargeor noted Resident 2 was “oriented to staffs, call bell use and surroundings with one staff supervision,” which suggests Resident 2 had been placed under one-on-one supervision.  P. Ex. 4 at 20.  But less than an hour later, LPN Cargeor observed Resident 2 wandering in the hallway to other rooms and redirected her to her own room, where her roommate accused her of slapping her in the face.  Id. at 21.  If Resident 2 had been under line-of-sight monitoring, she would not have been able to both attack her roommate and freely wander the halls in the short period of time she had been in the facility.

Petitioner relies on the testimony of Dr. Whitlock and NP Tomko to establish it provided adequate supervision.  P. Closing Br. at 31, citing P. Ex. 15 at 3-4; P. Ex. 16 at 3-4.  But the lack of consistent supervision and documentation I have outlined serve to undermine their opinions.  Neither practitioner appears to have recognized the degree to which the record fails to corroborate the level of supervision Resident 2 received or the frequency she received it.

Page 17

Moreover, both practitioners have a compelling interest in refusing to acknowledge the level of supervision they recommended at certain instances was inadequate and led, at least in part, to Resident 2’s subsequent assaults.  For example, NP Tomko evaluated Petitioner at the facility’s request on September 4, 2020 and agreed discontinuation of one-on-one supervision would be appropriate.  P. Ex. 6 at 2.  The next day, Resident 2 assaulted Resident 7.  CMS Ex. 7 at 9, 11-14.  Two days later, Dr. Whitlock evaluated Resident 2 and did nothing more than recommend NP Tomko review her medications.  P. Ex. 6 at 4; P. Ex. 15 at 3.  The next day, Resident 2 again assaulted Resident 7.  P. Ex. 9 at 21, 24.  The primary obligation to protect the facility’s residents belonged to Petitioner, but neither practitioner appears to have recognized the threat Resident 2 posed to her fellow residents.

Finally, both Dr. Whitlock and NP Tomko describe themselves as independent contractors for Vista Medical Services, a provider of mental health care services to six nursing facilities in Delaware.  P. Ex. 15 at 1; P. Ex. 16 at 1.  Their ability to opine freely may be hindered by their ongoing employment by one of Petitioner’s vendors, which provides services throughout Delaware.  Whether to protect their own professional decision-making or to protect their ability to continue providing services to at least six nursing facilities, neither Dr. Whitlock nor NP Tomko can be described as disinterested parties.  For these reasons, I do not find their shared opinion that Petitioner provided adequate supervision to Resident 2 to be credible.

In sum, there is no dispute Petitioner did not adequately supervise Resident 2.  The frequency of her unpredictable assaults of her fellow residents put Petitioner on clear notice it needed to better supervise her to minimize that behavior.  But Petitioner did not implement a consistent plan to ensure Resident 2’s safety or those of her fellow residents.  Sometimes members of staff checked on her every 15 or 30 minutes, even if one-on-one supervision had been ordered.  Sometimes they provided “close” supervision, though it is unclear what that entailed.  And even though Resident 2 had attacked a roommate in September 2020, which led in part to her inpatient psychiatric stay, upon her return Petitioner’s staff immediately placed her without supervision with another resident, who she slapped in the face in a matter of minutes.17 

Petitioner failed to consistently implement a level of supervision sufficient to prevent Resident 2 from assaulting other residents, either in her room or wherever she found them when wandering.  As a result, Resident 2 assaulted five residents seven times in a three-month period.  Petitioner failed to meet its obligation under 42 C.F.R.§ 483.12(a) to adequately supervise Resident 2.  Libertywood Nursing Ctr., DAB No. 2433 at 13 (2011)

Page 18

(a facility that does not devise or follow a “coherent plan of supervision,” keep accurate records, or adhere to incident reporting and evaluation protocols cannot make decisions concerning the appropriate level of supervision “based on informed professional judgment, which is precisely what section [483.12(a)] requires. . . .”) (citation omitted).

5. CMS’s immediate jeopardy determination 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 actual harm to a resident to establish immediate jeopardy.  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).  This standard places a “heavy burden” on facilities to show no one “could reasonably conclude that immediate jeopardy exists.”  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. United States Dep’t of Health & Human Servs., 174 F. App’x 932 (6th Cir. 2006); see also, e.g., Easley v. Cromartie, 532 U.S. 234, 242 (2001) (“In applying [the clearly erroneous] standard, . . . a reviewing court must ask whether, ‘on the entire evidence,’ it is ‘left with the definite and firm conviction that a mistake has been committed.’”).

As I have discussed, despite her pronounced history of wandering and aggressive physical conduct towards fellow residents, Petitioner’s staff did not provide Resident 2 supervision adequate to keep herself and her fellow residents free from harm.  Petitioner insists on describing Resident 2 as a “tiny frail woman,” P. Br. at 2, a “100-pound wheelchair-bound” resident who could not plausibly harm others with her “hits or slaps.”  P. Closing Br. at 33.  Petitioner’s argument is without merit.  Whatever Resident 2’s weight, her assaults still carried the likelihood of serious harm to other residents of equal or greater frailty.  Resident 9, who Resident 2 shoved to the floor in August 2020, was a 90-year-old suffering from Alzheimer’s disease and arthritis; her assault caused a skin tear on his right arm to reopen.  CMS Ex. 8 at 2-4, P. Ex. 4 at 44.  Resident 2 assaulted Resident 7, an 87-year-old with dementia, three times, the third time causing him to fall.  CMS Ex. 7 at 9, 11-14, 56; P. Ex. 4 at 45; P. Ex. 9 at 12, 21, 24.  Resident 1 was a 73-year-old with dementia who Resident 2 pulled from her bed to the floor while asleep.  CMS Ex. 12 at 2, 17, and 32.  The likelihood that serious harm to each of these residents could result from Resident 2’s “hits or slaps” is readily apparent.  CMS’s imposition of immediate jeopardy for this deficiency was not clearly erroneous.

Page 19

6. CMS’s determination of the duration of immediate jeopardy was not clearly erroneous.

The clear error standard applied to CMS’s determination of immediate jeopardy-level noncompliance extends to its determination of the duration of this period as well.  Vibra Hosp. of Charleston – TCU, DAB No. 3094 at 23 (2023).  To demonstrate CMS committed clear error in determining when immediate jeopardy abated, a facility bears the burden of showing it implemented corrective measures such that the conditions under which immediate jeopardy arose no longer pose a likely risk of serious harm to its residents.  Countryside Rehab. & Health Ctr., DAB No. 2853 at 25 (2018), quoting Glenoaks Nursing Ctr., DAB No. 2522 at 19 (2013) (“[I]immediate jeopardy is abated only when the facility has implemented necessary corrective measures so that there is no longer any likelihood of serious harm.”).

Here, CMS imposed an $8,489 per-day penalty for 41 days running from September 5, 2020 to October 15, 2020.  CMS Ex. 14 at 2.  Petitioner contends this duration is unreasonable.  First, Petitioner observes there is no apparent reason CMS began the period of immediate jeopardy on September 5, 2020.  P. Br. at 18-19; P. Closing Br. at 34.  That date coincides with Resident 2’s third assault on another resident.  CMS Ex. 7 at 9, 11-14.  CMS does not explain the reasoning which led it to select this date, but this vagueness inures to Petitioner’s benefit.  CMS apparently did not consider Resident 2’s first two assaults in August 2020 to signal the onset of the facility’s failure to supervise her, likely because she did not assault another resident from August 18, 2020 to September 4, 2020.  CMS Ex. 7 at 9, 11-14; CMS Ex. 8 at 1; P. Ex. 4 at 41; P. Ex. 6 at 3.  CMS’s selection of September 5, 2020 as the onset date for the period of immediate jeopardy is not clearly erroneous.

Petitioner also claims imposition of a CMP based on immediate jeopardy is clearly erroneous from September 25 to October 15, 2020, the dates Resident 2 received inpatient psychiatric care and was not present in the facility.  P. Br. at 21-22; P. Closing Br. at 34-35.  CMS responds that Resident 2’s departure to another facility was not sufficient to abate immediate jeopardy.  CMS Closing Br. at 12-13.  CMS points out that by its own admission, Petitioner did not complete its plan of correction until October 16, 2020.  Id. at 13, citing CMS Ex. 1 at 6-9.

CMS is correct.  Immediate jeopardy did not arise in this case solely from Resident 2’s presence in the facility.  It arose from Petitioner’s failure to consistently document the level of supervision it provided her, the lack of widespread understanding of what each level of supervision entailed among its staff, and its failure to implement different or additional measures after Resident 2 still struck other residents.  See Glenoaks, DAB No. 2522 at 20 (“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

Page 20

address and correct the conditions underlying the noncompliance that created the immediate jeopardy.”).

That the abatement of immediate jeopardy required more than simply removing Resident 2 from the facility is confirmed by Petitioner’s own plan of correction, which set forth a more systemic set of remedies to cure the widespread deficiencies that resulted in the immediate jeopardy citation.  On October 16, 2020, Petitioner initiated the following measures:

• supervisory oversight of staff compliance with one-on-one monitoring with 30-minute checks;
• full review of all residents known to behave aggressively with daily audits for four weeks to ensure proper monitoring and documentation;
• a “root cause” analysis of Resident 2’s aggressive behavior as a reflection of her cognitive decline in the previous six months;
• better delineation of one-on-one monitoring assignments in daily staffing schedules;
• supervisory oversight of all one-on-one monitoring;
• re-education of all staff in identifying aggressive residents, documenting such behavior, notifying clinical leadership, and how to provide appropriate one-on-one monitoring; better law enforcement notification;
• crisis prevention training.

CMS Ex. 1 at 6-9.

By Petitioner’s own reckoning, these measures all needed to be implemented to address the serious risk of harm that resulted from its widespread failure to adequately monitor, assess, implement, or document the level of supervision it provided to its residents.  And by Petitioner’s own reckoning, the facility did not complete the measures identified in its plan of correction until October 16, 2020.  Id. at 8.  On these facts, Petitioner cannot establish CMS committed clear error in determining immediate jeopardy abated on October 16, 2020.  See Vibra Hosp. at 26 (“[A]s a general rule, a facility will not be considered to have successfully abated immediate jeopardy until it has at least completed the steps it determined were necessary to accomplish that goal.”); Countryside at 27 n.12 (observing that a skilled nursing facility ordinarily “cannot be regarded as having returned to substantial compliance, or abated immediate jeopardy, until measures specified in an approved plan of correction, or plan to remove immediate jeopardy, have been implemented.”).

Page 21

7. The CMP imposed by CMS is reasonable.

In determining the reasonableness of the penalty amount imposed by CMS, I review the record de novo and look to the factors set forth at 42 C.F.R. §§ 488.438(f) and 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)).  Heritage Plaza Nursing Ctr., DAB No. 2829 at 21 (2017).  These factors include the seriousness of the deficiency and the facility’s compliance history, financial condition, and degree of culpability.  42 C.F.R. §§ 488.404, 488.438(f)(3).

The Board presumes CMS has considered the regulatory factors and that the amount it selects is reasonable.18  Elgin Nursing & Rehab. Ctr., DAB No. 2425 at 12 (2011).  As such, CMS is not required to proffer evidence or argument as to how it arrived at the CMP amount.  Instead, it is Petitioner’s burden to submit evidence and argument addressing the regulatory factors to demonstrate the amount of the CMP selected by CMS is unreasonable and should be reduced.  Pinecrest Nursing & Rehab. Ctr., DAB No. 2446 at 23 (2012).  Unless a facility contends that a particular regulatory factor does not support the CMP amount, I must sustain it.  Coquina Ctr., DAB No. 1860 at 32 (2002).

Here, Petitioner did not challenge the reasonableness of the $8,489 per-day CMP imposed by CMS for the immediate jeopardy citation arising under Tag F600.  P. Br.; P. Closing Br.; CMS Ex. 14 at 2.  I have nevertheless considered the regulatory factors for which the record provides an evidentiary basis19 and find the per-day amount selected by CMS appropriately reflects the serious nature of Petitioner’s failure to adequately supervise Resident 2 as well the high degree of culpability reflected in Petitioner’s delay addressing that failure until several of its residents had been subject to physical attack by Resident 2.

I also note the per-day CMP selected by CMS is near the bottom of the range for immediate jeopardy-level CMPs in 2020, which was $6,808 to $22,320.  45 C.F.R. § 102.3; 85 Fed. Reg. 2,869, 2,880 (Jan. 17, 2020).   For these reasons, I find CMS’s imposition of a $8,489 per-day CMP for Petitioner’s immediate jeopardy noncompliance reasonable.

VIII.  Conclusion

I affirm CMS’s determination that Petitioner was not in substantial compliance with Medicare program participation requirements and that the facility’s noncompliance posed

Page 22

immediate jeopardy to its residents.  The $8,489 per-day CMP imposed by CMS from September 5 through October 15, 2020 is reasonable.