Lake Worth Nursing Home, DAB No. 3194 (2025)

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Lake Worth Nursing Home (Lake Worth), a skilled nursing facility, appealed the decision of an administrative law judge (ALJ) upholding a civil money penalty (penalty) imposed by the Centers for Medicare & Medicaid Services (CMS) against Lake Worth for noncompliance with multiple Medicare participation requirements.  Lake Worth Nursing Home, DAB CR5054 (2018) (ALJ Decision).  The ALJ found that from February 2, 2017, through March 21, 2017, Lake Worth was not in substantial compliance with Medicare participation requirements in connection with episodes of resident-on-resident abuse and violations of food safety requirements.  The ALJ further found that the penalty imposed against Lake Worth in the amount of $1,375 per day for the duration of its noncompliance was reasonable.  We affirm the ALJ Decision because it is supported by substantial evidence and free of legal error.

Legal Background

To participate in the Medicare program, a skilled nursing facility must be in “substantial compliance” with the requirements in 42 C.F.R. Part 483, Subpart B (§§ 483.1 - 483.95).  42 C.F.R. §§ 483.1(b), 488.400.¹  A skilled nursing facility is not in “substantial compliance” when it has a “deficiency” – that is, a failure to meet a participation requirement – that creates the potential for more than minimal harm to one or more residents.  42 C.F.R. § 488.301 (defining “substantial compliance” and “deficiency”).  The term “noncompliance,” as used in the applicable regulations, is synonymous with lack of substantial compliance.  Id. (defining “noncompliance”).  The participation requirements at issue in this appeal require that skilled nursing facilities: 

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• Immediately report all alleged violations involving abuse, neglect, or mistreatment of residents to the appropriate state agency; thoroughly investigate such violations; prevent further potential abuse, neglect, or mistreatment while investigating such allegations; and report the results of the investigation to the state agency (42 C.F.R. § 483.12(c)(1)-(4));
• Develop and implement written policies and procedures that prevent abuse and neglect of residents (42 C.F.R. § 483.12(b)(1)-(3)); and
• Store, prepare, distribute, and serve food in accordance with professional standards for food service safety (42 C.F.R. § 483.60(i)(2)).

Compliance with Medicare participation requirements is verified through onsite surveys performed by state health agencies. Id. §§ 488.10, 488.11(a).  A state agency reports any “deficiency” it finds in a statement of deficiencies.  Id. § 488.325(f)(1).²  A statement of deficiencies also indicates the survey agency’s assessment of the “seriousness” of any cited deficiency.  Id.§ 488.404(a).  Seriousness is a function of the scope of noncompliance (whether a deficiency is “isolated,” constitutes a “pattern,” or is “widespread”) and severity (whether a deficiency has created a “potential for” only “minimal harm” or a potential for “more than minimal harm,” resulted in “[a]ctual harm,” or placed residents in “immediate jeopardy”). Id.§ 488.404(b). 

CMS may impose one or more remedies against a skilled nursing facility that is out of substantial compliance.  Id. §§ 488.400, 488.402(b)-(c), 488.406.  The remedies that CMS may impose for noncompliance include civil money penalties.  Id. §§ 488.406, 488.430.  A per-day penalty may be imposed for “the number of days a facility is not in substantial compliance with one or more participation requirements.”  Id. § 488.430(a).  When CMS assessed the penalty here, it had authority to impose a penalty (adjusted for inflation) in the range of $105 to $6,289 per day for deficiencies that either caused actual harm or have the potential for more than minimal harm (but do not constitute immediate jeopardy).  Id. § 488.438(a)(1)(ii); 45 C.F.R. § 102.3 (penalty adjustment table) (Feb. 3, 2017).³  In selecting a penalty amount, CMS considers the facility’s history of noncompliance, financial condition, degree of culpability, and the factors specified in section 488.404 (mainly, the seriousness of the noncompliance).  42 C.F.R. § 488.438(f).

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A skilled nursing facility may challenge a determination of noncompliance that led to the imposition of a remedy by requesting an ALJ hearing and appealing any unfavorable ALJ decision to the Board.  42 C.F.R. §§ 488.408(g)(1), 498.3(b)(13), 498.5(b)-(c).  In cases where a skilled nursing facility appeals a CMS determination that led to a penalty, the scope of review is limited to considering whether a basis for imposing the penalty exists and whether the amount of the penalty is reasonable.  See id. § 488.438(e), (f). 

Case Background 

On February 27, 2017, the Texas Department of Aging and Disability Services (state agency or DADS) completed an investigation of Lake Worth and found it was not in substantial compliance with Medicare participation requirements regarding the facility’s duty to report abuse, implement anti-abuse policies for the protection of residents, and store food products in accordance with professional standards.  CMS Ex. 1, at 1-16 (describing deficiencies under “tags” F225, F226, and F371).  The state agency found the underlying deficiencies were at the “F” level of seriousness.  Id. at 1, 7, 12.  

The state agency reported that Lake Worth was not in substantial compliance with 42 C.F.R. § 483.12(c)(1)-(4) (Tag F225) by failing to report violations involving abuse and neglect of residents to the state agency.  CMS Ex. 1, at 2-3.   Specifically, the surveyors found that Resident 1 (R1), a 26-year-old male with a known history of abusing others, physically assaulted four residents over five days.  Id. at 3-5 (describing repeated instances of R1 striking other residents).  The surveyors found that Lake Worth did not report the first three incidents to the state agency and failed to take appropriate steps to prevent further abuse.  Id. at 3-8.  The state agency also found that Lake Worth was not in substantial compliance with 42 C.F.R. § 483.12(b)(1)-(3) (Tag F226) by failing to implement policies and procedures that prohibit and prevent abuse.  Id. at 7-8.  Finally, the state agency found that Lake Worth was not in substantial compliance with 42 C.F.R. § 483.60(i)(2) (Tag F371) as evidenced by its failure to discard expired food and properly store food to prevent exposure to air and pests.  Id. at 12-13.

CMS concurred with the state agency’s noncompliance findings, and on March 16, 2017, imposed various enforcement remedies against Lake Worth, including a civil money penalty pending further review.  CMS Ex. 4, at 1-3 (“[T]his civil money

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penalty may change after a pending administrative review….”).⁶  CMS subsequently determined that Lake Worth achieved substantial compliance on March 22, 2017, and by letter dated May 15, 2017, imposed a revised penalty against Lake Worth in the amount of $1,375 per day for the duration of the noncompliance (February 2 – March 21, 2017).  CMS Ex. 3, at 1.  The letter also notified Lake Worth of its appeal rights.  Id. at 2-3.    

ALJ Proceedings and Decision

Lake Worth filed a request for hearing, challenging the noncompliance findings and the amount of the penalty.  The parties submitted pre-hearing briefs and, after waiving an in-person hearing, submitted closing briefs.  ALJ Decision at 1.  CMS submitted 25 exhibits (CMS Exs. 1-25), which included the signed declarations of two state surveyors and a nurse consultant.  Lake Worth submitted one exhibit (P. Ex. 1), a signed declaration from its Assistant Director of Nurses (ADON).  Neither party requested cross-examination of witnesses.  The ALJ admitted the parties’ respective exhibits, without objection, and issued a decision based on the written record.  ALJ Decision at 1.

The ALJ found the record evidence “amply supports” CMS’s determination that Lake Worth was not in substantial compliance with Medicare participation requirements.  ALJ Decision at 2.  The ALJ found that over the course of five days, R1 physically assaulted four residents by striking them on the head, and that these episodes “plainly were abuse.”  Id.  The ALJ found that Lake Worth violated section 483.12(c) by failing to report the abuse to the appropriate state authorities.  Id. at 2-3 (noting that Lake Worth failed to report “the first three episodes of assault” and “contravened [its] own policy for dealing with episodes of abuse”).  The ALJ found that by failing to comply with the regulation over the course of several days, and not apprising state authorities of the assaults, Lake Worth “allowed a potentially dangerous situation to continue, unreported.”  Id. 

The ALJ further found that Lake Worth contravened section 483.12(b) because it failed to implement its abuse policy to protect residents.  Id. at 3.  The ALJ noted that while Lake Worth “has an anti-abuse policy that states that every facility resident has a right to be free from abuse,” Lake Worth “failed to implement that policy” when it failed to take appropriate steps to protect residents from R1.  Id. 

Before the ALJ, Lake Worth argued that the episodes of abuse were not reportable because R1 “was not reliably aware of the ramifications of his actions” and “was not always of sound enough mind to form clear thoughts.”  Id. at 3 (citing P. Pre-Hearing Br. at 8).  Rejecting that argument, the ALJ explained that R1’s “possible state of mind when he assaulted other residents is irrelevant”; “[i]t mattered only that he was assaulting other

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residents and that his behavior endangered those residents.”  Id.  The ALJ also rejected Lake Worth’s claim that it reasonably attempted to balance R1’s right to be free from restraints against other residents’ rights not to be abused.  ALJ Decision at 4 (citing P. Pre-Hearing Br. at 8-12).  The ALJ found no evidence that Lake Worth took any reasonable steps to protect residents from R1, and no evidence that Lake Worth engaged in any deliberative process before deciding not to report the abuse.  Id.  The ALJ added that the requirements under section 483.12 are not subject to a balancing test, explaining that the regulation “imposes a strict requirement on skilled nursing facilities.”  Id. (“When there is suspected abuse a facility must take all possible measures to protect its residents.”).  In short, the ALJ found that Lake Worth “failed to report episodes of abuse and it failed to protect its residents.”  Id. at 5.   

The ALJ further found that Lake Worth failed to comply with the requirements of section 483.60(i)(2) because it had expired food in its kitchen and vending machine.  Id. at 5-6 (“The evidence offered by CMS is more than sufficient to prove that [Lake Worth] did not comply with regulatory requirements governing food storage.”).  The ALJ pointed out that Lake Worth did not “deny the facts offered by CMS,” and further explained that this noncompliance finding (at Level “F”) did not require proof of actual harm.  Id.  The ALJ found that the deficiency exposed residents to the potential for more than minimal harm because the kitchen and vending machine contained expired food items that could be served to or consumed by residents.  See id.  

The ALJ further found that the penalty amount of $1,375 per day for the duration of Lake Worth’s noncompliance (February 2 – March 21, 2017) was reasonable.  Id. at 6 (describing the penalty as “modest considering the severity of [Lake Worth’s] noncompliance”).  The ALJ noted that the per-day penalty amount was “less than one fourth of the maximum amount” that CMS could have imposed under the circumstances and emphasized that Lake Worth’s “failure to protect its residents from [R1] by itself would justify the penalty amount that CMS imposed.”  Id. (emphasis added).  The ALJ further noted that Lake Worth did not offer any argument challenging the duration of its noncompliance as determined by CMS.  Id. 

Standard of Review

The Board’s standard of review on a disputed factual issue is whether substantial evidence in the record as a whole supports the ALJ’s decision, and our standard of review on a disputed legal issue is whether the ALJ’s decision is erroneous.  See Guidelines – Appellate Review of Decisions of Administrative Law Judges Affecting a Provider’s Participation in the Medicare and Medicaid Programs (“Board Guidelines”), “Completion of the Review Process,” ¶ (c), https://www.hhs.gov/about/agencies/dab/
different-appeals-at-dab/appeals-to-board/guidelines/participation/index.html.

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“Substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”  Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).  “The ‘substantial evidence’ standard is deferential.”  Glenoaks Nursing Ctr., DAB No. 2522, at 6 (2013).  “Under the substantial evidence standard, the Board does not re-weigh the evidence or overturn an ALJ’s choice between two fairly conflicting views of the evidence; instead, the Board determines whether the contested finding could have been made by a reasonable fact-finder taking into account whatever in the record fairly detracts from the weight of the evidence that the ALJ relied upon.”  Douglas Bradley, M.D., DAB No. 2663, at 5 (2015) (cleaned up); see also Golden Living Ctr. - Frankfort, DAB No. 2296, at 9-10 (2009), aff’d, 656 F.3d 421 (6th Cir. 2011).

Analysis

Lake Worth asserts that the ALJ “failed to apply the appropriate standards to the evidence and correctly interpret the law” and “sustained a punitive and unreasonable [penalty] without adequate findings.” Request for Review (RR) at 4. Lake Worth disputes the ALJ’s findings concerning abuse under section 483.12(c) (Tag F225) and section 483.12(b) (Tag F226) for two reasons: First, Lake Worth argues that there were no reportable or preventable incidents of “abuse” because, as the surveyors found, the residents assaulted by R1 “sustained no known physical harm or mental anguish.” Id. at 5, 8 (quoting CMS Ex. 1, at 3). Second, Lake Worth argues that there were no incidents of “abuse” because R1 could not form the intent to willfully harm other residents. Id. at 5-7, 8. Lake Worth also challenges the ALJ’s findings concerning food safety requirements, arguing that CMS failed to establish noncompliance under section 483.60(i)(2) (Tag F371). Id. at 8-11. Lastly, Lake Worth challenges the penalty amount, arguing that the ALJ failed to make necessary findings concerning the relevant regulatory factors and that the penalty does not serve a “remedial purpose.” Id. at 11-13.

For the reasons explained below, we reject each of Lake Worth’s contentions and find that the ALJ Decision is supported by substantial evidence and not legally erroneous.

I. The ALJ’s conclusion that Lake Worth was noncompliant with participation requirements under 42 C.F.R. §483.12(c) (F225) because it failed to report multiple episodes of abuse and prevent further potential abuse is supported by substantial evidence and not legally erroneous.

Residents of skilled nursing facilities have “the right to be free from abuse, neglect, misappropriation of resident property, and exploitation . . . .”  42 C.F.R. § 483.12.  Section 483.12(c) requires that, “[i]n response to allegations of abuse, neglect, exploitation, or mistreatment,” skilled nursing facilities must “[e]nsure that all alleged violations involving abuse, neglect, exploitation or mistreatment . . . are reported immediately . . . .”  Id. § 483.12(c)(1).  The report must be made “to the administrator of

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the facility and to other officials (including to the State Survey Agency and adult protective services where state law provides for jurisdiction in long-term care facilities) in accordance with State law through established procedures.”  Id. ⁷The facility must also thoroughly investigate alleged violations and “[p]revent further potential abuse, neglect, exploitation, or mistreatment while the investigation is in progress.”  Id. § 483.12(c)(2), (3).  Additionally, the results of the investigation must be reported to the appropriate state agency within five working days of the incident.  Id. § 483.12(c)(4).

The record reflects that R1 was admitted to Lake Worth from a county jail on January 10, 2017.  CMS Ex. 7, at 76, 85.  R1 had been arrested for a non-violent criminal infraction but was released after a psychologist determined he was not competent to stand trial.  Id. at 79-83 (concluding that R1 had a major neurocognitive disorder “that renders him incapable of demonstrating any trial capacity adequately”).⁸  R1 suffered from a traumatic brain injury and had a long history of mental illness.  Id. at 71, 76, 85-87.  An assessment of R1 completed at Lake Worth on January 27, 2017, stated that “[r]eports suggest severe periods of impulse control problems that include physical violence against residents and staff, sexual behavior, and verbalizations and emotions.”  Id. at 85. 

On February 1, 2017, R1 struck a resident three times in the back of the head.  CMS Ex. 7, at 1; CMS Ex. 8.  The incident occurred in the hallway and was observed by staff.  CMS Ex. 8, at 1-2.  The residents were separated, and staff conducted an unspecified “medication evaluation” of R1.  Id. at 2.  Lake Worth did not report this incident to the state agency.

On February 2, 2017, R1 kicked another resident’s wheelchair and then “punched” the resident in the head.  CMS Ex. 7, at 2; CMS Ex. 9.  The victim, who was 72 years old, was assaulted while sitting in the smoke room.  CMS Ex. 9, at 1.  Lake Worth did not report this incident to the state agency.  R1 was given a dose of unspecified medication for agitation, a physician was notified, and a nurse was assigned to check on R1 every 15 minutes.  Id. at 2.  The record does not reflect whether staff performed the 15-minute checks but, even if they had, the attacks by R1 against other residents continued. 

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On February 3, 2017, R1 struck yet another resident three times in the side of the head “with his fist.”  CMS Ex. 7, at 3; CMS Ex. 10.  The victim, who was 72 years old, was assaulted while seated in a wheelchair in the dining room.  CMS Ex. 10, at 1-2.  Lake Worth did not report this incident to the state agency.  Lake Worth reportedly reevaluated R1’s medication, though it is unclear precisely how, and sent him to the hospital for evaluation of “psychiatric issues.”  CMS Ex. 10, at 2; see also CMS Ex. 7, at 3, 72.  The results of the hospital evaluation are not in the record, nor is there any record of the circumstances regarding R1’s return to Lake Worth. 

On February 5, 2017, R1 struck yet another resident, who was seated in a wheelchair, in the back of the head because the resident would not give him a cigarette.  CMS Ex. 7, at 4-6, 9-14.  The incident occurred in the hallway and was witnessed, in part, by another resident.  Id. at 8-11.  R1 admitted to hitting the other resident first.  Id. at 9.  The victim fought back and struck R1, causing a small laceration above R1’s left eye.  Id. at 4, 6, 9.  Staff moved R1’s room to the “opposite side of [the] nurse’s station” so that R1 and the other resident “could be monitored more closely.”  Id. at 5.  R1 was again sent to the same hospital for evaluation and treatment.  Id. at 5, 9-10, 15.  The following day, R1 returned to Lake Worth and was permitted to discharge himself against medical advice.  Id. at 10, 84.

Lake Worth reported the fourth incident to the state agency soon after it occurred, investigated the incident, and prepared written reports.  CMS Ex. 7, at 6-8. An internal report made in connection with a quality assurance meeting described the fourth incident as physical abuse.  Id. at 6.  A “Provider Investigation Report,” which Lake Worth submitted to the state agency, specified that the incident fell within the category of “Abuse,” identified R1 as the alleged “perpetrator,” and noted that R1 required “[n]o special supervision,” had the “[c]apacity to make informed decisions,” and had a history of “[p]hysical aggression.”  Id. at 8-9. 

As part of the state agency’s investigation of the abuse incidents, the survey team interviewed Lake Worth’s staff, including the Director of Nursing (DON) and the Administrator.  CMS Ex. 1, at 5-6.  The DON confirmed that R1 “did pose a threat to the safety of other residents” and acknowledged that Lake Worth should have reported the first three incidents of abuse to the state agency.  CMS Ex. 25 (Surveyor Decl.), at 3.  The DON further stated that she was unsure “why they reported the fourth incident and not the previous three” and “did not know why they deemed the first three incidents unreportable.”  Id.; see also CMS Ex. 1, at 6; CMS Ex. 16 (Surveyor Notes), at 7.  The DON noted that although the first three incidents were not reported to the state agency, the facility investigated each of the incidents.  CMS Ex. 25, at 3.

Similarly, at the time of the complaint investigation, Lake Worth’s Administrator told the surveyors that it was facility policy to “go over the incident reports with staff to determine if [the incidents] are reportable,” but he “could not recall why the first three

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incidents involving [R1] were not reportable.”  CMS Ex. 25, at 3-4.  The Administrator stated that he “did not understand why the facility did not report the first three incidents.”  Id. at 4; see also CMS Ex. 1, at 5-6; CMS Ex. 12 (Survey Worksheet), at 8. 

A. Hitting and punching nursing home residents is physical abuse, which must be immediately reported to the state agency.

Before the Board, Lake Worth argues that the first three assaults perpetrated by R1 against facility residents did not constitute “abuse” and were not reportable because the victims “sustained no known physical harm or mental anguish.”  RR at 5, 8 (citing CMS Ex. 1, at 3).  As an initial matter, the duty to report, investigate, and prevent further potential abuse is not limited to confirmed incidents of actual “abuse.”  See Somerset Nursing & Rehab. Facility, DAB No. 2353, at 9 (2010) (rejecting argument that the facility’s obligation to investigate and report is only “triggered” when the victim “showed signs of harm or intimidation”), aff’d in part and rev’d in part, 502 F. App’x 513 (6th Cir. 2012).⁹  The regulations expressly require that “all alleged violations involving abuse, neglect, exploitation or mistreatment” are “reported immediately” to state officials and “thoroughly investigated,” and the facility must “[p]revent further potential abuse” during the investigation.  42 C.F.R. § 483.12(c)(1)-(3).  Although determining whether an assault on a resident caused physical harm, pain, or mental anguish is certainly part of an investigation, it is not a prerequisite to reporting such an assault and initiating an investigation.  See Somerset at 9; see also Rockcastle Health & Rehab. Ctr., DAB No. 2891, at 11 (2018) (explaining that facilities must report allegations of abuse to state authorities immediately, “before conducting its own investigation or forming its own opinion as to whether abuse might have occurred”); Illinois Knights Templar Home, DAB No. 2369, at 11 (2011) (“[T]he reporting requirements are triggered by an allegation of abuse whether or not it is recognized as such by the facility.”); Columbus Nursing & Rehab. Ctr., DAB No. 2247, at 20-21 (2009) (holding that facilities must report all alleged violations regardless of whether abuse is substantiated); Beverly Health Care Lumberton, DAB No. 2156, at 13 (2008) (“[E]ven an allegation of abuse that turns out to be unsubstantiated (or in a ‘gray area’) must be reported and investigated.”), aff’d,338 F. App’x 307(4th Cir. 2009).    

Lake Worth’s own policy documentation provides that “some incidents must be reported, regardless of whether they constitute abuse or neglect,” including incidents that result in “a threat to health or safety.”  CMS Ex. 19, at 12.  The policy documentation makes clear:  “When either a reportable incident or actual abuse occurs, the facility must:  report the incident or abuse . . . and implement a plan of action designed to prevent recurrence.”  Id.  Consistent with that policy, Lake Worth’s DON conceded that R1 posed a threat to the safety of other residents, acknowledged that each of the assaults committed by R1

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should have been reported to the state agency, and could not explain why the fourth incident was reported while the others were not.  CMS Ex. 25, at 3. 

Here, the incident reports created by Lake Worth’s staff describe R1 repeatedly hitting and punching multiple residents in the head and, in one case, kicking their wheelchair.  CMS Ex. 7, at 1-5.  We find the incident reports contain, at the very least, allegations of abuse or mistreatment that Lake Worth was required to immediately report to the state agency, regardless of whether each victim exhibited signs of harm or intimidation.  See Somerset at 9; see also Consulate Healthcare of Jacksonville, DAB No. 3119, at 15-16 (2023) (rejecting the notion that the facility’s director of nursing was authorized to pre-determine whether there was actual abuse before reporting abuse allegations to the administrator or state agency and before taking action to protect residents).        

Moreover, we reject Lake Worth’s assertion, raised for the first time before the Board, that hitting and punching nursing home residents in the head is not “abuse” under the applicable regulatory definition.  RR at 5.  Lake Worth did not raise this issue before the ALJ and cannot do so for the first time here.  See Board Guidelines, “Completion of the Review Process,” ¶ (a); Meadowmere Emergency Physicians, PLLC, DAB No. 2881, at 15 (2018) (“A party appearing before the Board is not permitted to raise on appeal issues that could have been raised before the ALJ but were not.”).  Thus, we reject Lake Worth’s argument for that reason alone. 

Even if the argument were properly before the Board, it has no merit.  The contention that “abuse” includes only incidents resulting in “known” physical harm or mental anguish is unsupported by the plain language of the regulatory definition.  “Abuse” is “the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.”  42 C.F.R. § 483.5 (definitions for Subpart B).  “Abuse” includes both verbal and mental abuse.  Id.  Thus, the effects of abuse may not always be seen or known by observers or exhibited by outward signs or symptoms.  While the surveyors noted (based on Lake Worth’s records) that the residents assaulted by R1 “sustained no known physical harm or mental anguish,” the surveyors nevertheless characterized the assaults perpetrated by R1 as physical abuse.  See CMS Ex. 1, at 3; CMS Ex. 25, at 2 (surveyor testimony that the facility failed to report incidents of R1 “physically abusing” other facility residents to the state agency).  Lake Worth’s own investigation of the fourth assault by R1 described the incident as “physical” abuse (CMS Ex. 7, at 6) and, in a report to the state agency, specified that the incident fell within the category of “Abuse” and identified R1 as the alleged “perpetrator” (CMS Ex. 7, at 8-9). 

We further note that to accept Lake Worth’s argument that hitting and punching vulnerable residents is not abuse or reportable unless it results in a “known” harm, would open the door to allowing such assaults against residents by members of the facility’s own staff.  It makes no difference that the perpetrator of the abuse in this case was another resident.  The responsibility of facilities extends beyond merely “refraining from

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committing abuse to protecting residents from abuse from whatever source, whether privately hired caregivers, family members, visitors or other residents.” Singing River, DAB No. 2232, at 7 (emphasis added).

We find no error in the ALJ’s conclusion that “[t]hese episodes – physical assaults by [R1] on other residents of [the] facility – plainly were abuse.”  ALJ Decision at 2.  Indeed, the Board has long recognized that “[h]itting, kicking, or pushing down another person is conduct that would ordinarily be considered abuse because it involves the direct infliction of force, is likely to cause physical harm, pain, or mental anguish, and ordinarily involves a perpetrator who intends to injure the victim.”  Western Care Mgmt. Corp., DAB No. 1921, at 12-13 (2004) (affirming noncompliance findings where facility failed to ensure that its residents were free from abuse by a cognitively impaired resident who, on multiple occasions, struck or attempted to strike other residents); see also Yakima Valley Sch., DAB No. 2422, at 3-4, 10-12 (2011) (affirming noncompliance findings and immediate jeopardy determination where facility failed to prevent abuse by cognitively impaired resident who hit, kicked, and slapped other residents with no identified injuries).  It was not unreasonable for the ALJ to infer that the assaults by R1 against residents – who were kicked at, punched, and repeatedly struck in the head – resulted in some level of physical harm, pain, or mental anguish.  There is certainly no evidence or testimony that the assaults by R1 did not, at the very least, cause pain.  Moreover, Lake Worth itself characterized R1’s fourth assault on a resident (which was nearly identical to the first three) as physical abuse.  CMS Ex. 7, at 6-10.  We find the ALJ’s conclusion that these episodes “plainly were abuse” is supported by substantial evidence and not legally erroneous. 

The record further establishes that Lake Worth was out of substantial compliance with section 483.12(c)(3) by failing to prevent further potential abuse while it purportedly investigated the first three incidents.  Lake Worth’s repeated failures to prevent further abuse of its residents after each incident further establishes its noncompliance.  See Yakima Valley at 12-13 (noting that three incidents of abuse in four days pending an investigation was “particularly egregious”).  Indeed, Lake Worth presented no evidence that any of the interventions it initiated, such as the 15-minute checks of R1, were effective in preventing further incidents of abuse.  See Somerset at 21-22 (affirming that “15-minute location checks” by facility were ineffective to protect female residents from abusive behavior by another resident as evidenced by continuing incidents).

Additionally, while Lake Worth’s DON contends that Lake Worth investigated all four incidents, even if that were true, there is no dispute that it failed to report the results of its investigation of the first three incidents to the state agency as required by 42 C.F.R. § 483.12(c)(4).  Facilities are required to report the results of allinvestigations of abuse, “not merely those that substantiate abuse,” and “facilities are not free to view their internal investigations as an opportunity to ‘pre-screen’ whether an alleged or suspected instance of abuse is substantiated . . . .”  See Singing River at 8 (analyzing same

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regulatory requirements formerly found at 42 C.F.R. § 483.13(c)(4)).  Thus, even if Lake Worth had concluded that the first three incidents did not constitute actual abuse, it was out of substantial compliance with section 483.12(c)(4) by not reporting the results of the first three investigations to the state agency. 

B. Intent to inflict injury or harm is not a required element of “abuse” under the regulations.

Lake Worth further argues that there were no reportable incidents of “abuse” because R1 could not form the intent to willfully harm other residents.  See RR at 5-7, 8; see also P. Ex. 1, at ¶ 8 (written testimony by the ADON that “the caregiver team collectively decided that the incidents were not reportable due to [R1’s] incompetency and lack of ability to form the intent to abuse another resident”).  The ALJ considered and rejected this argument, explaining that the only relevant consideration was that Lake Worth’s staff knew R1 “was assaulting other residents and that this behavior endangered those residents.”  ALJ Decision at 3 (concluding that R1’s “possible state of mind” during the assaults is irrelevant).  We agree.  The Board has long held that “intent” to inflict injury or harm is not a required element of “abuse” under the regulations.  See Merrimack Cnty. Nursing Home, DAB No. 2424, at 4-5 (2011) (rejecting ALJ’s conclusion that there must be an intent to inflict injury or harm to find “abuse”); see also Somerset at 18-19 (rejecting facility’s argument that abuse by a resident with dementia was not established because the resident could not form the intent to injure or intimidate his victims).  

“Abuse,” as defined in the regulations, requires the “willful” infliction of injury, unreasonable confinement, intimidation, or punishment.  42 C.F.R. § 483.5.  The regulations explain, however, that “[w]illful, 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.”  Id. (emphasis added).  “Abuse,” in this context, “does not require that the purpose of the actor be to inflict harm, but rather requires that the action have been undertaken deliberately.”  Consulate at 14 (rejecting facility’s contention that allegation of resident-on-resident abuse between cognitively impaired residents could not be established absent evidence that the alleged perpetrator intended to inflict harm) (quoting Britthaven, Inc., DAB No. 2018, at 4 (2006)); see also Maysville Nursing & Rehab., DAB No. 2874, at 11 (2018) (noting that the word “willful,” in the definition of abuse, means only that abuser’s actions were deliberate rather than accidental or inadvertent).  Accordingly, “the Board has recognized the nonaccidental actions of a compromised resident as potentially abusive to other residents and sufficient to impose a duty of protection, investigation and reporting on the facility.”  Somerset at 19.

Here, there is no dispute that R1 deliberately and repeatedly struck four other residents over the course of five days.  There is no allegation or evidence that the hitting and punching of the other residents by R1 was accidental or inadvertent.  As with its reporting requirement, Lake Worth was required to take steps to protect its residents from such

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abusive behavior regardless of R1’s intent.  See Somerset at 18-19; see also Countryside Rehab. & Health Ctr., DAB No. 2853, at 20 (2018); Yakima Valley at 15 (“The likelihood of serious injury stems from the aggressor’s actions, not his intent.”).

Lake Worth argues that because a psychologist opined that R1 was not competent to stand trial, Lake Worth correctly concluded that R1 could not form the requisite intent to abuse anyone.  RR at 7.  Whether R1 could be held criminally responsible for his conduct is not relevant in determining what responsibilities Lake Worth had to address R1’s behavior.  While R1’s mental status and mental capabilities should have been considered by Lake Worth in determining appropriate interventions, they do not excuse the need to protect other residents from potential abuse.  Given R1’s limitations and propensity for physical violence (CMS Ex. 7, at 85), and having accepted him into its facility, Lake Worth was required to “both care plan to meet his needs and act to protect the other residents for which it was responsible.”  Somerset at 7 (affirming ALJ’s conclusion that facility failed to adequately plan for or manage resident’s behavioral problems or institute effective interventions to protect other residents from the risk of abuse).

The other residents of Lake Worth were entitled to be free from abuse, regardless of whether the perpetrator intended to injure them.  As the Board previously explained:  “[I]t does not follow that a facility has no duty . . . to act to prevent harm to other residents from a resident with a known propensity to engage in potentially injurious behaviors such as hitting or kicking others, merely because the resident has cognitive deficits.  The goal . . . is to keep residents free from abuse.”  Western Care at 14. 

For all these reasons, we affirm the ALJ’s conclusion that Lake Worth was noncompliant with section 483.12(c) because it both failed to report abuse allegations and failed to protect its residents from further potential abuse.

II. The ALJ’s conclusion that Lake Worth was noncompliant with participation requirements under 42 C.F.R. §483.12(b) (F226) because it failed to implement policies that prohibit and prevent abuse is supported by substantial evidence and not legally erroneous.

Section 483.12(b) mandates, among other things, that skilled nursing facilities “develop and implement written policies and procedures” that “[p]rohibit and prevent abuse, neglect, and exploitation of residents . . . .”  42 C.F.R. § 483.12(b)(1) (emphasis added).  The ALJ found that Lake Worth failed to implement its anti-abuse policy and violated section 483.12(b) when it “failed to protect its residents from abuse during the several days that [R1] engaged in his assaults on other residents.”  ALJ Decision at 3.  For largely the same reasons that Lake Worth was out of substantial compliance with section 483.12(c), we affirm the ALJ’s conclusion that Lake Worth was out of substantial compliance with section 483.12(b).

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At the time of the abuse incidents here, Lake Worth’s written abuse policy plainly stated:  “It is the policy of Lake Worth Nursing Home to prevent abuse . . . .”  CMS Ex. 19, at 6 (revised policy dated Nov. 16, 2016).  In this regard, the abuse policy included the following provisions:
 

• “If an allegation of abuse should arise, the Abuse Coordinator will immediately report the allegation to DADS [the state agency], convey the allegation to the Abuse Committee and conduct an extensive investigation of the incident.” 
• “The Administrator (or designee) will report investigative results to [DADS] in a timely fashion.”
• “The Administrator (or designee) must ensure policies set forth are followed and that the management staff is monitoring the procedures on an on going [sic] basis to prevent incidents.”

CMS Ex. 19, at 6.  The “decision-making rubric” that Lake Worth contends it used also required the facility to report, assess, care plan, and intervene regarding any inappropriate or unwanted resident-to-resident behavior where the perpetrator had the capacity to act willfully or recklessly.  CMS Ex. 20, at 13; P. Ex. 1, at ¶ 7.  As detailed above, the record evidence establishes that R1 acted willfully, deliberately, and recklessly and that Lake Worth failed to prevent, report, and appropriately respond to the abuse committed by R1 against other residents.  See supra pp. 6-13.  

It is well-established that a facility is not in substantial compliance with section 483.12(b) (or its predecessor)¹⁰ when it fails to follow or carry out its own anti-abuse policies.  See, e.g., 38-40 Freneau Ave. Operating Co. LLC, DAB No. 3008, at 2, 8 (2020) (collecting cases); Beverly Health Care at 13 (upholding finding that a facility was not in substantial compliance with its obligation to implement abuse policy where employees who witnessed alleged abuse failed to comply with the policy’s reporting directive).  Even after it became clear that R1 had a propensity for physically assaulting other residents, Lake Worth did not take appropriate steps to prevent further assaults.  With respect to the first three incidents, Lake Worth failed to report the abuse allegations or the results of any investigation thus precluding an earlier investigation or intervention by the state agency.  Moreover, after each of the first three incidents, Lake Worth failed to take necessary steps to prevent further abuse of its residents.  

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We affirm the ALJ’s conclusion that Lake Worth was noncompliant with section 483.12(b) because it both failed to report allegations of abuse and failed to prevent further abuse as required by its anti-abuse policy.

III. The ALJ’s conclusion that Lake Worth was noncompliant with food safety requirements under 42 C.F.R. § 483.60(i)(2) (F371) is supported by substantial evidence and not legally erroneous.

Section 483.60(i), entitled “food safety requirements,” requires, among other things, that skilled nursing facilities must “[s]tore, prepare, distribute, and serve food in accordance with professional standards for food service safety.”  42 C.F.R. § 483.60(i)(2).  The ALJ found the evidence “more than sufficient to prove that [Lake Worth] did not comply with regulatory requirements governing food storage,” noting that Lake Worth did not deny the facts offered by CMS.  ALJ Decision at 5. 

CMS presented evidence that Lake Worth maintained a vending machine containing expired food and, in the kitchen, Lake Worth failed to discard expired food.  CMS Ex. 24 (Surveyor Decl.), at 2-3.  On February 22, 2017, the surveyor observed that a vending machine located in Lake Worth’s resident dining room contained:  (1) a protein bar with an expiration date of 2016, (2) a candy bar with a best-by date of December 2016, and (3) another food item with an expiration date of August 2016.  Id. at 2.¹¹  On the same day, during an inspection of Lake Worth’s kitchen, the surveyor observed:  (1) two crates, each with approximately 35-50 individual servings of raisin bran, with expiration dates of July 10, 2016; (2) three packages of dried fruit and chocolate with an expiration date of September 9, 2016; (3) a single portion of cereal with an expiration date of November 25, 2016; (4) potato chips with an expiration date of September 1, 2016; (5) sunflower seeds with expiration dates of December 16, 2016 and November 20, 2016; and (6) snack mix with an expiration date of December 30, 2016.  Id. at 3.  

During the kitchen inspection, the surveyor also observed that Lake Worth failed to properly seal and store food, evidenced by an opened bag of BBQ fries closed only by twisting the top.  Id.  The surveyor noted that Lake Worth failed to store this item “in a sealed container to prevent exposure to air and pests.”  CMS Ex. 1, at 13-14.  The U.S. Food & Drug Administration (FDA) Model Food Code explains that “[p]athogens can contaminate and/or grow in food that is not stored properly” and “[o]nce the original seal is broken, the food is vulnerable to contamination.”  CMS Ex. 18, at 3.  Lake Worth concedes that twisting the bag of fries closed at the top was “not ideal storage,” and that it was discarded soon after it was discovered by the surveyor.  RR at 9.

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Lake Worth points out that manufacturer “best by” or “use by” dates are merely recommendations and largely voluntary, but that is not always the case.  Id. at 9-10; CMS Ex. 18, at 9 (“Most, but not all, sell-by or use-by dates are voluntarily placed on food packages.”).  The FDA Model Food Code explains that “[m]anufacturers assign a date to products for various reasons, and spoilage may or may not occur before pathogen growth renders the product unsafe.”  CMS Ex. 18, at 9.  Thus, a manufacturer’s expiration date “could be based on food safety reasons,” and “[i]f the product becomes inferior quality-wise due to time in storage, it is possible that safety concerns are not far behind.”  Id. 

Lake Worth’s own policies state that expired food items (i.e., past the manufacturer’s expiration date) should be discarded by facility staff.  CMS Ex. 19, at 3.  Additionally, in survey interviews, the Administrator conceded that any outdated food at the facility should be thrown away.  CMS Ex. 24, at 3.  The Dietary Manager stated that food was delivered to the facility once a week and “if food was expired it went in the trash.”  Id.  The DON stated that she had no knowledge about food items stored in the kitchen because she was not allowed in there, and said she was unaware that food items in the vending machine were expired.  Id. 

While Lake Worth is correct that no resident appears to have been harmed by expired or improperly stored food, Lake Worth was not cited for causing actual harm.  See CMS Ex. 1, at 12-16 (reporting Level “F” noncompliance).  Lake Worth was found to be out of substantial compliance with section 483.60(i)(2) due to the deficiency having the widespread potential for more than minimal harm.  See supra p. 3 and note 4.  Proof of actual harm to a resident is not a prerequisite for finding a facility noncompliant with a participation requirement.  See Perry Cnty. Nursing Ctr., DAB No. 2555, at 15 (2014), aff’d, 603 F. App’x 265 (5th Cir. 2015); see also Virginia Highlands Health Rehab. Ctr.,DAB No. 2339, at 11 (2010) (“The absence of actual harm is not a basis for reversing a finding that a facility failed to substantially comply with a participation requirement.”).  “Under the nursing home enforcement regulations (in 42 C.F.R. Part 488, subpart F), a [facility] may be found out of substantial compliance (and thus subject to CMPs and other remedies) if the deficiency has the ‘potential’ to cause more than minimal harm to resident health or safety.”  North Las Vegas Care Ctr., DAB No. 2946, at 9 (2019).  The fact that no actual harm resulted from a violation is fortuitous but does not mean that the violation did not create a risk of more than minimal harm.  See Buena Vista Care Ctr., DAB No. 2498, at 9 (2013).

Here, the deficiency was not the specific expired food items in the kitchen and vending machine but the facility’s underlying failure to meet the participation requirement – to store food in accordance with professional standards for food service safety – as evidenced by the expired food items in the facility and the conditions that allowed for expired and improperly stored food to potentially be consumed by residents.  The number of expired food items in the facility, without the knowledge of facility staff, show that Lake Worth was not in the practice of discarding expired food in accordance with

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professional standards for food service safety and its own policy.  The record evidence amply supports the ALJ’s conclusion that Lake Worth’s residents were at risk of more than minimal harm that may result from consuming spoiled or contaminated food.  Again, it is fortuitous that no resident was harmed but that does not excuse the noncompliance.  See Emerald Oaks, DAB No. 1800, at 43-44 (2001) (affirming noncompliance finding where nurse failed to change artificial nutrition bag for more than 24 hours in violation of professional standards and facility’s own policy because the feeding bag sat long enough to present more than a minimal risk of food-borne illness despite no actual harm to resident).

We affirm the ALJ’s conclusion upholding the noncompliance finding under section 483.60(i)(2) because it is supported by substantial evidence and not legally erroneous.

IV. Lake Worth raised no issue concerning the duration of its noncompliance.

CMS found that Lake Worth was noncompliant with Medicare participation requirements from February 2, 2017, through March 21, 2017.  See CMS Ex. 3, at 1.  The ALJ upheld that finding, noting that Lake Worth “has not offered argument to challenge the duration of its noncompliance.”  ALJ Decision at 6; see also Owensboro Place & Rehab. Ctr., DAB No. 2397, at 12 (2011) (“[T]he facility bears the burden of showing that it returned to substantial compliance on a date earlier than that determined by CMS . . . .”).  Apart from its contention that it was never out of substantial compliance—a contention we reject for the reasons stated above—Lake Worth did not argue or show that it returned to substantial compliance before March 22, 2017.  Because Lake Worth raises no issue concerning the duration of its noncompliance, we summarily affirm the ALJ’s finding that Lake Worth remained noncompliant for 48 days—from February 2, 2017, through March 21, 2017.

V. Lake Worth identifies no basis to overturn the ALJ’s finding that the per-day penalty amount imposed by CMS is reasonable.

An ALJ (or the Board) determines de novo whether a civil money penalty is reasonable based on the facts and evidence in the record concerning the factors specified under section  488.438.  See 42 C.F.R. § 488.438(e), (f); Green Oaks Health & Rehab. Ctr., DAB No. 2567, at 16 (2014) (collecting cases).  Those factors are:  (i) the facility’s history of noncompliance; (ii) the facility’s financial condition; (iii) the factors specified in 42 C.F.R. § 488.404; and (iv) the facility’s degree of culpability, including but not limited to, neglect, indifference, or disregard for resident care, comfort or safety.  42 C.F.R. § 488.438(f).  The Board has long held “that the [penalty] amount selected by CMS is presumptively reasonable based on those factors, and that the burden is on the [facility] to demonstrate, through argument and the submission of evidence addressing the regulatory factors, that a reduction . . . is necessary to make the [penalty] amount reasonable.” Good Shepherd Home for the Aged, Inc., DAB No. 2858, at 23 (2018)

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(internal quotation marks omitted) (quoting Crawford Healthcare & Rehab., DAB No. 2738, at 19 (2016)).  “Accordingly, the burden is not on CMS to present evidence bearing on each regulatory factor, but on the [facility] to demonstrate, through argument and the submission of evidence addressing the regulatory factors, that a reduction is necessary to make the [penalty] amount reasonable.”  Crawford at 19 (quoting Oaks of Mid City Nursing & Rehab. Ctr., DAB No. 2375, at 26-27 (2011)).

Here, CMS imposed a $1,375 per day penalty for 48 days of noncompliance below the immediate-jeopardy level.  CMS Ex. 3, at 1.¹²  The ALJ found the per day amount to be “modest” considering the severity of Lake Worth’s noncompliance.  ALJ Decision at 6 (explaining that “by failing to protect its residents against assault and by failing to report incidents of assault,” Lake Worth “put its residents at risk for potentially serious harm”).  The ALJ noted that it was “fortuitous” that R1 did not cause serious injury, but that does not mean that R1 “posed no potential for seriously injuring someone else.”  Id.  The ALJ found that Lake Worth’s failure to take steps to protect its residents from R1, “by itself would justify the penalty amount that CMS imposed.”  Id.¹³  Moreover, as the ALJ found, the per day penalty amount is less than one-fourth of the maximum amount that CMS could have imposed for deficiencies having the potential for more than minimal harm.  Id.; see also 42 C.F.R. § 488.438(a)(1)(ii); 45 C.F.R. § 102.3 (Feb. 3, 2017) (authorizing penalty up to $6,289 per day for deficiencies having the potential for more than minimal harm).  Thus, the ALJ concluded that the penalty was reasonable.  ALJ Decision at 6. 

Lake Worth argues that the ALJ erred by failing “to make findings as to the factors that needed to be considered as to determining an appropriate civil money penalty.”  RR at 11.  But ALJs do not have that burden when the facility fails to demonstrate a contested issue with respect to the regulatory factors.  See Crawford at 19 (“[W]e presume that CMS considered the regulatory factors in choosing a CMP amount and that those factors support the penalty imposed.”).  The ALJ’s proper role is not to decide how CMS exercised its discretion in setting the amount of a penalty, but rather “to take evidence on any contested issue relating to the factors supporting the reasonableness of the amount of any CMP imposed.”  Cal Turner Extended Care Pavilion, DAB No. 2030, at 8 (2006) (citing Emerald Oaks at 11).  Again, the burden was on Lake Worth to demonstrate, through argument and the submission of evidence addressing the regulatory factors, that a reduction is necessary to make the penalty amount reasonable.  See Good

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Shepherd Home at 23.  While Lake Worth asserts that such a presumption violates due process (RR at 11), we find no such violation.  Lake Worth had the opportunity to show, through the submission of evidence and argument, that the regulatory factors do not support the penalty imposed.  It simply failed to do so. 

Regarding the regulatory factors, CMS presented uncontroverted evidence that Lake Worth had a history of noncompliance beginning in 2013, including, among many other deficiencies, a previous failure to thoroughly investigate an allegation of verbal abuse.  See CMS Ex. 23, at 4; CMS Ex. 17 (provider history).  Lake Worth made no effort to address its history of noncompliance.  The record is also replete with evidence demonstrating a high degree of culpability in terms of Lake Worth’s failure to take appropriate steps to protect residents from R1’s abusive behavior.  Lake Worth did not timely complete or adjust R1’s care plan in light of the January 27, 2017 assessment finding R1 had a history of “impulse control problems that include physical violence 
. . . .”  CMS Ex. 23, at 3-5; CMS Ex. 7, at 85.  And, while Lake Worth purported to implement 15-minute checks of R1 after the first incident of abuse, that measure was plainly insufficient as the abuse continued unabated for several more days with no adjustment to R1’s care plan or any reasonable intervention.  CMS Ex. 23, at 4-5; see supra pp. 7-9, 11.  In terms of its financial condition, Lake Worth had the burden “to present evidence that the [penalty] would render it insolvent or adversely affect its ability to provide its residents with quality care.”  Western Care at 91.  Lake Worth presented no evidence of any financial hardship.  In short, Lake Worth failed to argue or present evidence to demonstrate that the penalty is unreasonable based on its history of noncompliance, its degree of culpability, or its financial condition. 

Lake Worth alludes to only one regulatory factor – the seriousness of the noncompliance – and argues that its deficiencies did not cause actual harm or create a risk of more than minimal harm.  RR at 7 (abuse allegations), 10 (food safety).  The ALJ rejected the premise of this contention, concluding that while Lake Worth was fortunate that its noncompliance did not result in serious injury, “by failing to protect its residents against assault and by failing to report incidents of assault, [Lake Worth] put its residents at risk for potentially serious harm.”  ALJ Decision at 6.  For all the reasons previously discussed, we find no error in the ALJ’s conclusion that Lake Worth’s failure to appropriately address R1’s abusive behavior created a serious risk of harm to its residents. 

We also find no merit to Lake Worth’s contention that the penalty somehow does not serve a remedial purpose.  RR at 11-13.  Lake Worth made no showing that the penalty is punitive or excessive.  As the ALJ pointed out, it is less than one-fourth of the amount that CMS was authorized to impose under the regulations.  Nor is there a sufficient evidentiary basis for Lake Worth’s assertion that “CMS practices are opening the door” to the consideration of purportedly “improper factors.”  RR at 12-13.  We find no evidence that CMS considered any improper factors in assessing the penalty amount here. 

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In any event, an ALJ’s de novo review of the reasonableness of a penalty amount is not a review of CMS’s internal decision-making process in setting the amount.  See Cal Turner at 7.  As explained above, we find that Lake Worth has not shown, through evidence or argument, that any of the regulatory factors justify a reduction in the per-day penalty amount. 

For all these reasons, we find the ALJ’s conclusion regarding the reasonableness of the penalty is supported by substantial evidence and not legally erroneous.  Accordingly, we sustain the ALJ’s finding that the $1,375 per-day penalty imposed for the duration of the noncompliance (February 2, 2017, through March 21, 2017) is reasonable.  We further affirm the ALJ’s conclusion that Lake Worth’s failure to take appropriate steps to protect its residents from R1 (Tags F225 and F226) would, by itself, justify the penalty amount. 

Conclusion

For the reasons stated above, we affirm the ALJ Decision and sustain the penalty imposed against Lake Worth.    

Endnotes

¹  We rely on the regulations in effect in February 2017 when the state survey agency conducted the investigation and survey in this case.  See Carmel Convalescent Hosp., DAB No. 1584, at 2 n.2 (1996) (applying regulations in effect on the date of the survey and resurvey); see also Final Rule, Medicare and Medicaid Programs; Reform of Requirements for Long-Term Care Facilities, 81 Fed. Reg. 68,688 (Oct. 4, 2016); 82 Fed Reg. 32,256 (July 13, 2017) (technical corrections).

²  The statement of deficiencies (CMS Form 2567) identifies deficiency citations using “F-tags” that correspond to the relevant regulatory requirements and CMS’s guidance regarding the requirements.  See generally State Operations Manual (SOM), CMS Pub. 100-07, Chapter 7, Survey and Enforcement Process for Skilled Nursing Facilities and Nursing Facilities.  The Manual and Appendices to the Manual are available at https://www.cms.gov/
Regulations-and-Guidance/Guidance/Manuals/Internet-Only-Manuals-IOMs-Items/CMS1201984.

³  “The adjusted civil penalty amounts apply to civil penalties assessed on or after February 3, 2017, when the violation occurred after November 2, 2015.”  82 Fed. Reg. 9174, 9174-75 (Feb. 3, 2017).  The penalty here was assessed on May 15, 2017, for violations that occurred after November 2, 2015.  CMS Ex. 3. 

⁴  Surveyors grade a deficiency’s “seriousness” using alphabetical designations:  “A”-level deficiencies are the least serious; “L”-level deficiencies are the most serious.  See SOM, CMS Pub. 100-07, Ch. 7 “Survey & Enforcement Process for Skilled Nursing Facilities & Nursing Facilities,” § 7400.5.1 (Rev. 161, effective Sept. 23, 2016) (matrix of scope and severity levels) (available at https://www.cms.gov/Regulations-and-Guidance/Guidance/
Transmittals/Downloads/R161SOMA.pdf).  Deficiencies rated at level “F” do not involve immediate jeopardy or actual harm but have widespread potential for more than minimal harm.  Id.

⁵  The description of Tag F225 also referenced 42 C.F.R. § 483.12(a)(3)-(4), which prohibit the employment of persons adjudicated or otherwise found to have abused, neglected, or mistreated residents.  CMS did not establish noncompliance with those requirements, and they are not at issue here.  See ALJ Decision at 2 n.1.

⁶  The notice letter set forth additional enforcement remedies, including the denial of payment for new admissions and termination of Lake Worth’s provider agreement.  CMS Ex. 4, at 1-3.  These remedies were rescinded by CMS because Lake Worth achieved substantial compliance before their effective date.  CMS Ex. 3.

⁷  Under Texas law, “[a] person, including an owner or employee of a facility, who has cause to believe that the physical or mental health or welfare of a resident has been or may be adversely affected by abuse, neglect, or exploitation caused by another person shall report the abuse, neglect, or exploitation” to DADS.  See Tex. Health & Safety Code Ann. § 260A.002(a), (c) (West 2015); see also 40 Tex. Admin. Code §§ 19.601(c)(2) (2006), 19.602 (2013).  The phrase “in accordance with State law” in the federal regulation does not adopt state law definitions of abuse or more limited state reporting requirements.  See Singing River Rehab. & Nursing Ctr., DAB No. 2232, at 8‑10 (2009) (“State law is only relevant to identifying appropriate state officials besides the state survey and certification agency and to determining the procedures to be followed in reporting.”).

⁸  Lake Worth provides care “for a segment of the population [that] is often restricted from other nursing facilities,” including residents who “come directly from a prison setting.”  P. Ex. 1 (ADON Decl.) at ¶ 4.

⁹  The partial reversal by the Sixth Circuit in Somerset pertained only to the duration of immediate jeopardy, which is not an issue here.  See 502 F. App’x at 521. 

¹⁰  Prior to November 28, 2016, the language in section 483.12(b) requiring a skilled nursing facility to “develop and implement written policies and procedures” to “prohibit and prevent abuse, neglect, and exploitation of residents” appeared, in substantially similar form, in section 483.13(c).  See 81 Fed. Reg. at 68,726, 68,827.

¹¹  Lake Worth’s facility policy indicates that vending machines are available for residents, that the “machines are stocked and maintained by the facility owner and or their designee,” and that any issue should be brought to the attention of the Administrator or facility owner.  CMS Ex. 19, at 4.

¹²  As noted, Lake Worth does not challenge the duration of its noncompliance.  Thus, the issue here is the reasonableness of the per-day CMP amount, not the total accrued penalty of $66,000 (which is a function of the duration of noncompliance).  See Kenton Healthcare, LLC, DAB No. 2186, at 28 (2008).  “Stating that the total CMP amount is not reasonable does not raise a clear dispute about the reasonableness of the per-day CMP amounts.”  Crawford at 20 (internal quotation marks and citations omitted).  Accordingly, in reviewing the reasonableness of a CMP, “we look at the per day amount, not at the total amount of the CMP.”  Id. (quoting Century Care of Crystal Coast, DAB No. 2076, at 26 (2007), aff’d, 281 F. App’x 180 (4th Cir. 2008)).

¹³  The ALJ found that the penalty amount is reasonable based on the seriousness of Lake Worth’s violations under Tags F225 and F226, apart from the food safety violations.