Benbrook Nursing and Rehabilitation Center, DAB No. 3228 (2026)

FINAL DECISION ON REVIEW OF
ADMINISTRATIVE LAW JUDGE DECISION

Petitioner Benbrook Nursing and Rehabilitation Center, a Texas skilled nursing facility (SNF) that participates in the Medicare program, appeals the decision of the Administrative Law Judge (ALJ) in Benbrook Nursing & Rehabilitation Center, DAB CR5351 (2019) (ALJ Decision).  The ALJ upheld a determination by the Centers for Medicare & Medicaid Services (CMS) to impose on Petitioner a per-instance civil money penalty (CMP) of $20,000 for failure to comply substantially with 42 C.F.R. § 483.12 by failing to protect a resident’s right to be free from abuse.   

We conclude that the ALJ’s determination that Petitioner was not in substantial compliance is supported by substantial evidence and is free of legal error, and we affirm that determination.  We also conclude that a per-instance CMP of $10,000 is reasonable to reflect CMS’s reduction of the severity level of the noncompliance.  We thus modify the ALJ Decision to reduce the CMP.

Legal Background

Section 1819 of the Social Security Act (Act) (42 U.S.C. § 1395i–3) and the regulations in 42 C.F.R. Part 483 govern SNF participation in Medicare.  To participate, a SNF must be in “substantial compliance” with the requirements in 42 C.F.R. Part 483, subpart B.  See 42 C.F.R. §§ 488.330(b), (f); 488.400; 483.1(b) (stating, in part, that “[t]he provisions of [Part 483] contain the requirements that an institution must meet in order to qualify to participate as a [SNF] in the Medicare program”).1  A SNF is not in “substantial compliance” when it has a “deficiency” – that is, a failure to meet a participation requirement – that creates at least the potential for more than minimal harm to one or more residents.  Id. § 488.301 (defining “Substantial compliance” as “a level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal

Page 2

harm”).  The term “noncompliance,” as used in the applicable regulations, is synonymous with a lack of substantial compliance.  Id. (defining “Noncompliance”). 

Under agreements with the Secretary of Health and Human Services (through CMS), state survey agencies conduct periodic onsite surveys of SNFs to verify compliance with the participation requirements.  See 42 C.F.R. §§ 488.10(a); 488.11; 488.308; see also Act §§ 1819(g)(1)(A), 1864(a).  In addition to periodic surveys, state survey agencies conduct surveys to investigate complaints that SNFs are not complying with one or more of the participation requirements.  42 C.F.R. § 488.308(f). 

The state survey agency reports to CMS any deficiencies it finds in a document called the “Statement of Deficiencies.”  Id. §§ 488.18; 488.325(f)(1).  The Statement of Deficiencies (Form CMS-2567) identifies deficiency citations using alpha-numeric “Tags” that correspond to the regulatory requirements and CMS’s guidance on the requirements.  See generally State Operations Manual (SOM), CMS Pub. 100-07, Ch. 7, Survey and Enforcement Process for Skilled Nursing Facilities and Nursing Facilities (including Appendices).2  A Statement of Deficiencies also indicates the state survey agency’s assessment of the “seriousness” of a cited deficiency.  42 C.F.R. § 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 of noncompliance (whether a deficiency has created a “potential for” only “minimal harm” or for “more than minimal harm,” or resulted in “[a]ctual harm,” or placed residents’ health and safety in “immediate jeopardy”).  Id. § 488.404(b).  Scope and severity levels are identified by one of 12 letters (A–L) and are used to select remedies.  See SOM, Ch. 7, § 7400.3.1 (“Matrix for Scope & Severity”); see also 42 C.F.R. § 488.408.   

As relevant here, the regulations in 42 C.F.R. § 483.12 (captioned “Freedom from abuse, neglect, and exploitation”) state in part:

The resident has the right to be free from abuse, neglect, misappropriation of resident property, and exploitation as defined in this subpart.  This includes but is not limited to freedom from corporal punishment, involuntary seclusion and any physical or chemical restraint not required to treat the resident’s medical symptoms.

(a)   The facility must—
(1)   Not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion[.]

Page 3

42 C.F.R. § 483.12(a)(1).3  “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. § 488.301; see also id. § 483.5 (setting out the same definition of “Abuse”).  “Sexual abuse is non-consensual sexual contact of any type with a resident.”  Id. § 483.5. 

CMS may impose enforcement “remedies” on a SNF that is not in substantial compliance with one or more participation requirements.  See Act § 1819(h); 42 C.F.R. §§ 488.400; 488.402(b), (c); 488.406.  Remedies may include a CMP for each “instance of noncompliance.”  42 C.F.R. §§ 488.408(d)(1)(iv), (e)(1)(iv); 488.430(a).  When CMS imposed the per-instance CMP here, the authorized range was $2,097 to $20,965.  See id. § 488.438(a)(2); 45 C.F.R. § 102.3 (as amended effective Feb. 3, 2017); 82 Fed. Reg. 9,174, 9,182-83 (Feb. 3, 2017).  In selecting the penalty amount, CMS considers the factors specified in section 488.438(f):  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).  ALJs and the Board in reviewing CMPs may consider only the specified factors.  Id. § 488.438(e)(3).

Page 4

A SNF may challenge a determination of noncompliance that has resulted in the imposition of a remedy by requesting an ALJ hearing and appealing any unfavorable ALJ decision to the Board.  See 42 C.F.R. §§ 488.408(g)(1), 498.3(b)(13), 498.5(b)-(c).  The scope of review may include whether the amount of the CMP is reasonable.  See id. § 488.438(e)(3), (f); Capitol Hill Cmty. Rehab. & Specialty Care Ctr., DAB No. 1629, at 2-3 (1997).  However, a SNF may not contest CMS’s finding about the “level of noncompliance” (e.g., a finding of immediate jeopardy) except in limited circumstances, such as when a successful challenge would affect the range of CMP amounts that CMS may impose.  42 C.F.R. § 498.3(b)(14).

Case Background4

•     Residents 1 and 2

This case arises from an incident on February 4, 2018, when Resident 2 inappropriately touched Resident 1 without consent.

On February 1, 2018, Petitioner admitted Resident 2, who was in his late 80s, into its facility.  CMS Ex. 10, at 1, 49.  Resident 2’s admission diagnoses included dementia with behavioral disturbance.  CMS Ex. 5, at 6; CMS Ex. 10, at 1, 49.  Admission notes describe Resident 2 as alert, oriented to person, place, and location; however, short-term memory impairment was noted.  CMS Ex. 10, at 49.  Petitioner’s staff assessed Resident 2’s cognition to be severely impaired; however, staff noted that Resident 2 had clear speech and was able to understand others.  CMS Ex. 5, at 6; CMS Ex. 10, at 49, 56.  On February 8, 2018, Resident 2 was discharged from Petitioner’s facility.  P. Ex. 2, at 1.   

Resident 1, 70 years old on the date of the incident, was initially admitted into Petitioner’s facility in 2005, with diagnoses that included unspecified intellectual disabilities, unspecified psychosis, major depressive disorder, and anxiety disorder.  CMS Ex. 5, at 3; CMS Ex. 9, at 1-2, 5.  Resident 1 was blind in both eyes, had impaired speech, and exhibited severely impaired cognition.  CMS Ex. 5, at 3; CMS Ex. 9, at 1-2, 5, 38, 55.  Resident 1 had impairments to one side of the upper half of her body and to both sides of the lower half of her body.  CMS Ex. 5, at 4; CMS Ex. 9, at 63.  Resident 1 was totally dependent on staff for her activities of daily living (including dressing, toilet use, personal hygiene).  CMS Ex. 5, at 3-4; CMS Ex. 9, at 62-63.  Resident 1 was unable to move independently, depended on staff to move her from one location to another, and used a wheelchair.  CMS Ex. 5, at 4; CMS Ex. 9, at 1, 63.  Facility staff reported that Resident 1 did not have the capacity to consent to being touched sexually.  CMS Ex. 11, at 22-24, 27; CMS Ex. 19, ¶ 26.

Page 5

•     Events of February 4, 2018

On February 4, 2018, a certified nursing assistant (CNA) observed Residents 1 and 2 seated next to each other in the television viewing area across from the nursing station.  CMS Ex. 5, at 4-5; CMS Ex. 11, at 23; CMS Ex. 12, at 1.  The CNA observed Resident 1 attempting to push Resident 2’s hand away from her.  CMS Ex. 11, at 23; CMS Ex. 5, at 4-5.  On closer observation, the CNA realized that Resident 2 had placed his hand down Resident 1’s pants.  CMS Ex. 5, at 4-5; CMS Ex. 11, at 23; CMS Ex. 12, at 1.  Another staff member heard the CNA yell, “Hey what are you doing?”  CMS Ex. 12, at 1.  When the CNA asked Resident 2 what he was doing, he quickly pulled his hand away and reportedly replied, “Nothing.”  CMS Ex. 5, at 5; CMS Ex. 11, at 23; CMS Ex. 12, at 1.  A “Health Status Note” with a “Created Date” of “2/4/18 12:26:42” states:

Resident [2] sitting in wheelchair in common area when a CNA sees resident with hands down a female resident’s pant.  The residents were separated.  ADON [Assistant Director of Nursing] was notified of resident’s behavior.  Will continue to monitor resident throughout the shift.

CMS Ex. 10, at 100.  Notably, the nurse to whom the CNA reported the incident remarked that Resident 2 had a history of sexually inappropriate behavior, which the CNA was not told about.  CMS Ex. 5, at 5; CMS Ex. 11, at 23; CMS Ex. 12, at 1.

A “Health Status Note” concerning Resident 1, dated February 4, 2018 (time 13:03, or 1:03 PM), indicates that “[n]o injuries” were “noted” based on “[h]ead to toe assessment performed after incident with another resident.”  P. Ex. 1, at 2.  Resident 1 was “sitting quietly in wheelchair” and “[n]o adverse effects [were] observed.”  Id.

•     March 2018 Survey Findings and CMS’s Imposition of Remedies

Following a complaint by Resident 1’s case manager, the Texas Department of Aging and Disability Services (state agency) inspected Petitioner’s facility from March 6, 2018 to March 9, 2018.  CMS Ex. 1, at 1; CMS Ex. 5 (Statement of Deficiencies), at 1; CMS Ex. 6, at 1; CMS Ex. 11, at 21.  By letter dated April 23, 2018, CMS notified Petitioner that it identified five deficiencies for noncompliance under 42 C.F.R. § 483.12 (“Freedom from abuse, neglect, and exploitation”) along with other deficiencies under 42 C.F.R. §§ 483.21 and 483.70.  CMS Ex. 1, at 1.  CMS imposed the $20,000 per-instance CMP at issue here for one deficiency, noncompliance with section 483.12(a)(1), designated as Tag F600, which CMS cited at scope and severity level “L,” widespread noncompliance posing immediate jeopardy to resident health or safety.  Id. at 1-2; see SOM, Ch. 7, § 7400.3.1 (scope/severity matrix).  CMS stated it would terminate Petitioner’s Medicare provider agreement unless it returned to substantial compliance before September 9, 2018.  CMS Ex. 1, at 1 (citing Act § 1866(b)(2); 42 C.F.R. § 488.412(d)).  CMS also notified Petitioner that payment for all new admissions would be denied beginning

Page 6

April 7, 2018, to continue until Petitioner returned to substantial compliance or its provider agreement terminated.  Id. at 3.   

By letter dated May 3, 2018, CMS notified Petitioner that it had returned to substantial compliance with Medicare participation requirements on March 10, 2018.  CMS Ex. 2, at 1.  CMS therefore “revised” its imposition of remedies to rescind the termination of Petitioner’s provider agreement and the denial of payment for new admissions.  Id.  With respect to the $20,000 CMP for the section 483.12(a)(1) deficiency (Tag F600), CMS notified Petitioner that the CMP was “already imposed.”  Id. (CMS’s emphasis omitted).   

Petitioner participated in the state agency’s independent informal dispute resolution (IIDR) process, which, as applicable here, recommended reducing the scope and severity of the Tag F600 deficiency from widespread noncompliance posing immediate jeopardy (level L) to isolated noncompliance causing no actual harm with the potential for more than minimal harm that is not immediate jeopardy (level D).  P. Ex. 25, at 7, 14-17; see CMS Ex. 1, at 2-3; 42 C.F.R. §§ 488.331 (informal dispute resolution), 488.431 (IIDR).  The IIDR did not recommend or address the CMPs that CMS could impose for any deficiencies.  P. Ex. 25.  Following the IIDR, CMS reduced the scope-and-severity level of the Tag F600 deficiency from “L” to “D,” as recommended.  CMS Ex. 4, at 1 (concurring with IDR results); SOM, Ch. 7, § 7400.3.1.  CMS, however, made no change to the $20,000 per-instance CMP previously imposed.  CMS Ex. 4, at 1. 

•     ALJ Proceedings and Decision

1.      ALJ Proceedings

Petitioner asked the ALJ to review and overturn CMS’s determination that Petitioner did not comply substantially with 42 C.F.R. § 483.12(a)(1) (Tag F600) and the corresponding per-instance CMP of $20,000.  P. Pre-Hearing Br. at 2.5  CMS asserted that Petitioner did

Page 7

not comply substantially with 42 C.F.R. § 483.12(a)(1) and that the $20,000 per-instance CMP imposed for that noncompliance is “reasonable.”  CMS Pre-Hearing Br. at 7, 10.

The parties submitted exhibits with their pre-hearing briefs.  CMS submitted exhibits 1-20, all of which the ALJ admitted into the record.  ALJ Decision at 1; Hearing Transcript (Tr.) at 8.6  The ALJ admitted all exhibits Petitioner offered, including exhibits 1-3, 5-13, 15, 16, 18-25, and written direct testimony in the form of affidavits of four witnesses (P. Exs. 19-22).  ALJ Decision at 1-2; Tr. at 8, 9.

Following a pre-hearing conference on November 26, 2018, the ALJ scheduled a hearing for February 12, 2019, to permit Petitioner to cross-examine CMS’s witnesses – B.R., a surveyor with the Texas Health and Human Services Commission (of which the state agency is a part) who participated in the March 2018 survey of Petitioner, and D.M., a registered nurse with CMS – whose written direct testimony CMS submitted with its pre-hearing brief.  See CMS’s Exhibit List and Witness List at 2-3; CMS Ex. 19 (B.R. Decl.); CMS Ex. 20 (D.M. Decl.); ALJ’s Nov. 26, 2018 Order Summarizing Pre-Hearing Conference at 1; ALJ’s Nov. 28, 2018 Order Scheduling Hearing.  The ALJ noted that CMS “waived its right to cross-examine” Petitioner’s witnesses for failure to “timely request cross-examination” of those witnesses.  ALJ’s Nov. 26, 2018 Order Summarizing Pre-Hearing Conference at 1; see also ALJ’s June 27, 2018 Acknowledgment and Pre-Hearing Order ¶ 8 (stating that the ALJ will assume that CMS does not intend to cross-examine any of Petitioner’s proposed witnesses if CMS does not indicate affirmatively its intention to do so within 15 days of receipt of Petitioner’s pre-hearing exchange); Petitioner’s Pre-Hearing Exchange at 2-4 (identifying written direct testimony submitted as exhibits; listing “potential witnesses” who may testify at hearing).

In December 2018, CMS moved for summary judgment, asserting that “the undisputed facts establish that [Petitioner] was not in substantial compliance with . . . [section] 483.12(a)(1) (tag F-600) when Resident #2 was found with his hands down the pants of Resident #1” and that Petitioner did not show that the $20,000 CMP is unreasonable.  CMS Motion for Summary Judgment (MSJ) at 8.  Petitioner in opposition asserted, among other things, that disputes of material fact concerning whether Petitioner complied substantially with section 483.12(a)(1) and whether the CMP is reasonable preclude summary judgment.  P. Resp. to CMS MSJ at 1, 3, 5, 9-10.  On January 23, 2019, the ALJ denied CMS’s motion, “find[ing] that there are disputed issues of material facts” (ALJ’s Ruling Denying CMS MSJ), and the case proceeded to hearing.

Page 8

Following the hearing on February 12, 2019, during which Petitioner cross-examined B.R., a surveyor who participated in the March 2018 survey of Petitioner’s facility (see CMS Ex. 19.; Tr. at 3, 4), the parties submitted post-hearing briefs.7  ALJ Decision at 1.  CMS with its post-hearing brief submitted two additional exhibits – CMS Exhibit 21 (supplemental declaration of D.M., RN, a Nurse Consultant with CMS, reporting Petitioner’s five-year history of noncompliance with Medicare participation requirements (with remedies) from March 2013 to March 2018) and CMS Exhibit 22 (“AEM Nursing Home Enforcement History” concerning Petitioner for the period from March 9, 2013 through March 9, 2018).  ALJ Decision at 1.  Petitioner objected to CMS Exhibits 21 and 22 primarily because, Petitioner said, CMS offered those exhibits late.  P. Obj. to CMS Supp. Exs. at 1; ALJ Decision at 1.  Along with its objections to the two CMS exhibits, Petitioner submitted two supplemental affidavits of C.C., together, as its Exhibit A.  Petitioner stated that it submitted C.C.’s affidavits in the event the ALJ admitted CMS Exhibits 21 and 22, as evidence relevant to Petitioner’s “compliance history” and its management’s “efforts to make favorable changes in [its] facility.”  P. Obj. to CMS Supp. Exs. at 2-3; CMS Ex. 8, at 1 (“Staff Identifier Key,” identifying C.C. as Petitioner’s Director of Operations). 

The ALJ admitted CMS Exhibits 21 and 22 “solely to identify publicly available facts,” stating that they “identify facts that are publicly available and not in dispute.”  ALJ Decision at 1-2.  The ALJ also admitted into evidence P. Ex. A.  Id. at 2.8   

2.      ALJ Decision

We summarize the ALJ’s key findings and conclusions here.  We will discuss the ALJ’s findings, conclusions, and rationale in more detail in the analysis section below. 

The ALJ determined that Petitioner violated 42 C.F.R. § 483.12 because it “failed . . . to take actions that might have prevented . . . Resident #2[] from sexually abusing” Resident 1, “[m]ost notably,” by not acting on information it had before it admitted Resident 2 “suggesting that the resident [Resident 2] engaged in inappropriate behavior of a sexual nature including exposing himself in public.”  ALJ Decision at 3 (citing CMS Ex. 10, at 34); id. at 4 (finding that this information served as a pre-admission “warn[ing]” as to Resident 2’s “proclivity for inappropriate sexual conduct”).  The “information” the ALJ referred to is the report of Resident 2’s office visit for an annual “wellness exam” with a

Page 9

nurse practitioner on January 26, 2018, less than a week before Resident 2 was admitted into Petitioner’s facility.  In that report, the nurse practitioner wrote:

[Resident 2] presents today accompanied by his daughter-in-law and granddaughter for his [M]edicare wellness examination with fasting labs.  [Resident 2’s] daughter-in-law raised concern about [Resident 2’s] ability to live on his own due to some inappropriate behavior and his dementia.  His daughter-in-law says that the police have been called out to his home because he exposes himself in public and to people who come to his home I.e. Cable lady.  She says that the family thinks that it would be best for [Resident 2] to be referred to a nursing home so that he can’t [sic] get the proper care.  [Resident 2] is unable to do basic life skills such as preparing meals, grooming, getting dressed, or taking medication on his own.  His family says that they are afraid that he may fall and hurt himself and no one would know because he lives alone.  The family is requesting to have [Resident 2] registered into a nursing facility.

CMS Ex. 10, at 34; ALJ Decision at 4 (quoting second sentence). 

The ALJ also stated, “At the least,” receipt of such information about Resident 2 “imposed a duty on Petitioner to assess Resident #2 carefully to determine what risk he posed to other residents of Petitioner’s facility.”  ALJ Decision at 4.  The ALJ found, however, that Petitioner did not make any such assessment or determination, contrary to “Petitioner’s policy against abuse, which states in relevant part that its staff will:  ‘identify residents with needs and behaviors which might lead to conflict or neglect.’”  Id. at 3 (quoting CMS Ex. 15, at 1).

The ALJ determined that Petitioner “failed to react . . . in any meaningful way” to protect Resident 1, and “effectively allowed Resident #2 free reign to perpetrate sexual abuse.”  Id. at 4.  The ALJ noted the following as indicative of Petitioner’s “fail[ure] to react . . . meaningful[ly]” in response to a known risk of harm posed by Resident 2:

• The absence in Resident 2’s treatment record of assessment of his “sexual behavior and proclivities,” such as an “interim care plan . . . that mentioned the possibility of inappropriate sexual behavior as an issue requiring . . . staff’s attention” or a warning to the resident’s caregivers that Resident 2 “might engage in inappropriate behavior.”  Id.
• No evidence that staff took actions before February 4, 2018 “to protect its residents from the possibility that Resident #2 might engage in sexually abusive conduct,” such as by instructing staff to watch Resident 2 or restricting or monitoring his movements, thereby leaving him “free to interact with other

Page 10

residents including those who were helpless and incapacitated, such as Resident #1.”  Id. at 5.

• Failure to protect other residents from Resident 2 “even in the immediate aftermath of sexual abuse of” Resident 1, as “staff did not commence one-to-one monitoring of Resident #2 for at least an hour after the nursing assistant saw and reported the abuse.”  Id.; see also id. at 8 (noting that staff began supervising Resident 1 one-on-one an hour after the incident with Resident 1, not because Resident 2 had abused another resident but because Resident 2 had attempted to elope from Petitioner’s facility).

The ALJ also considered, but rejected, various arguments raised by Petitioner, including allegations of inadequacy of the survey, that Petitioner appropriately investigated the information in the nurse practitioner’s report before admitting Resident 2, and that Petitioner adequately supervised Resident 2.  ALJ Decision at 5-8.

The ALJ also upheld the $20,000 per-instance CMP as reasonable.  ALJ Decision at 8-9.  In so doing, the ALJ stated that he found the CMP reasonable based on the seriousness of Petitioner’s noncompliance and not on Petitioner’s compliance history as past noncompliance findings either “occurred in the fairly remote past when Petitioner was under different management” or were “presently under appeal and [were] not administratively final.”9  Id. at 9.

Standard of Review

In general, Board review of an ALJ’s decision is limited to determining whether (1) factual findings in the decision are supported by “substantial evidence” in the record as a whole; (2) the decision’s necessary legal conclusions are correct (that is, are consistent with applicable statutes and regulations); and (3) a “prejudicial error of procedure . . . was committed.”  See Guidelines – Appellate Review of Decisions of Administrative Law Judges Affecting a Provider’s Participation in the Medicare and Medicaid Programs (Guidelines), “Completion of the Review Process,” ¶ (c).10 

“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). 

Page 11

“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 tak[ing] 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) (citations and internal quotation marks omitted), appeal dismissed per stipulation, No. 2:15-cv-08835 (D.N.J. June 2, 2017); see also Golden Living Ctr. – Frankfort, DAB No. 2296, at 9-10 (2009), aff’d, 656 F.3d 421 (6th Cir. 2011). 

Analysis

Before the Board, Petitioner asserts that the ALJ Decision is “not supported by substantial evidence and constitutes an abuse of discretion.”  P. Request for Review of ALJ Decision (RR) at 1.11  Petitioner urges the Board to “reverse” the ALJ Decision on the ground that the section 483.12(a)(1) (Tag F600) deficiency “is without regulatory basis,” thus eliminating any basis for the imposition of the $20,000 per-instance CMP.  Id. at 12; see P. Reply at 1 (also asserting “there is no facility culpability”), 10-14.  Alternatively, Petitioner urges the Board to conclude that the ALJ erred or abused discretion in upholding the CMP, which, Petitioner says, is not commensurate to the scope and severity level of the deficiency, as reduced from L to D following IIDR.  Id.  According to Petitioner, a $20,000 CMP is not reasonable for an “isolated” “Level D citation” “which admittedly [did] not cause any resident harm” and which “[did] not even result in the potential for significant harm.”  Id. at 1, 10.  Petitioner states that “a Level D deficiency is not, by definition, nearly as severe as one cited at Level L.”  Id. at 12.   

CMS asks the Board to affirm the ALJ Decision.  CMS asserts that the ALJ’s determination that Petitioner did not comply substantially with section 483.12 (Tag F600) is legally sound and supported by substantial evidence in the record.  CMS Resp. at 2, 10-14, 18.  CMS also asserts that the $20,000 CMP is reasonable considering the seriousness of the noncompliance and Petitioner’s culpability.  Id. at 2, 14-17.

In section I below, we address Petitioner’s arguments in more detail and explain why we reject them and concur with the ALJ that Petitioner did not comply substantially with

Page 12

section 483.12 (Tag F600) by failing to protect the right of its residents to be free from abuse, including sexual abuse.  In Section II, we conclude that the ALJ’s determination that the CMP remained reasonable after CMS reduced the seriousness of the noncompliance was legal error. 

I.     The ALJ’s determination that Petitioner did not comply substantially with 42 C.F.R. § 483.12 is supported by substantial evidence and free of legal error.

1.      The ALJ did not misapply 42 C.F.R. § 483.12.

Petitioner asserts that the ALJ erred or abused discretion in upholding CMS’s noncompliance finding and “should have declared the F600 citation invalid.”  RR at 3.  Petitioner relies on the surveyor’s reference “only” to “neglect,” as opposed to “abuse.”  Id.  According to Petitioner, finding a violation of section 483.12(a)(1) under these circumstances is “an incorrect application of the regulations, and an absolutely incorrect way of citing F600” because the surveyor did not make any “findings whatsoever concerning abuse, corporal punishment, or involuntary seclusion.”  Id.; see id. at 8 (“[T]he specific allegations by the surveyor in the statement of deficiencies . . . pertain solely to neglect, yet the actual regulation cited is for ‘abuse.’”).  Petitioner states that CMS’s own “expert” witness, D.M., “agree[d] that the surveyor mis-applied the F600 regulation and section 483.12(a)(1).”  Id. at 3 (citing CMS Ex. 20, at 2-3).  Petitioner claims that in failing to invalidate the deficiency under these circumstances, “the ALJ caused an abject denial of Petitioner’s right to due process.”  Id. 

Essentially, Petitioner asserts that the facts and circumstances of this case do not establish grounds for a violation of section 483.12(a)(1) as “abuse” as CMS alleged, and that the ALJ committed legal error in misapplying this regulation to uphold the deficiency.  Petitioner raised a similar argument below, and the ALJ stated:

Petitioner asserts that CMS incorrectly labels its alleged noncompliance as violating 42 C.F.R. § 483.12(a)(1), noting that this subsection applies to abuse committed by a facility.  This case involves resident-on-resident abuse and I agree that citing this subsection is inapt.  However, the broader language of the preamble of 42 C.F.R. § 483.12 subsumes the abuse that is at issue here.  Therefore, any mislabeling of the regulatory basis for noncompliance is harmless and does not prejudice Petitioner.

However, Petitioner goes farther by arguing that in reality, CMS is not alleging abuse, but that Petitioner “neglected” the needs of one of its residents.  That mischaracterizes CMS’s allegations.  This is not a case about resident neglect; it is about whether Petitioner failed to protect its residents from sexual abuse.

Page 13

ALJ Decision at 2.  The ALJ thus determined that despite CMS’s “inapt” citation of the deficiency under subsection 483.12(a)(1), which expressly prohibits “[t]he facility” from “us[ing]” abuse, section 482.12 more broadly addresses abuse of facility residents and this case arises from abuse, rather than neglect, of a resident.

Like the ALJ, we reject Petitioner’s re-framing of the deficiency as one of “neglect” and its argument that CMS’s citation of a section 483.12 deficiency is invalid.  The ALJ did not err in upholding the deficiency finding as one of “abuse.” 

As an initial matter, section 483.12, by its plain terms, contemplates resident abuse.  Section 483.12 is captioned “Freedom from abuse, neglect, and exploitation” and its prefatory language provides that a “resident has the right to be free from abuse [and] neglect.”  Thus, as the ALJ correctly stated, “the broader language of the preamble of 42 C.F.R. § 483.12 subsumes . . . abuse.”  ALJ Decision at 2.  Accordingly, putting aside for the moment Petitioner’s assertion that the surveyor specifically noted “neglect,” regardless of whether the underlying facts here may be best characterized as arising from “neglect” as opposed to “abuse” of a resident, at bottom, a SNF may be cited, as Petitioner here was cited, for a “neglect” and/or “abuse” deficiency for failure to comply substantially with section 483.12.

Further, although we acknowledge that the Statement of Deficiencies uses the word “neglect” a few times, we disagree with Petitioner’s assertion that the surveyor identified only neglect in relation to the section 483.12(a)(1) deficiency (Tag F600).  See CMS Ex. 5 (Statement of Deficiencies), at 2 (stating that Petitioner “failed to ensure the residents had the right to be free from neglect for one (Resident #1) of 15 residents reviewed for neglect” and failed to ensure that “Resident #1 was free from neglect when Resident #2, who had a history of sexually inappropriate behaviors, put his hand down her pants”); RR at 3.  In zeroing in on “neglect” (CMS Ex. 5, at 2), Petitioner disregards that the Statement of Deficiencies’ discussion of Tag F600 describes in some detail an incident that is appropriately characterized as a resident-on-resident “abuse” of a sexual nature subject to a finding of noncompliance with 42 C.F.R. § 483.12.  See, e.g., CMS Ex. 5, at 2, 4-5 (in describing the incident, noting a nursing assistant’s statement that Resident 1 did not like being touched), 7 (referring to Resident 2’s history of “inappropriate behavior”), 9 (stating that “a male resident fondled Resident #1 and Resident #1 was unable to consent to sexual activity”).  Petitioner also disregards that the Statement of Deficiencies cites section 483.12 (and section 483.12(a)(1)), referred to the caption to section 483.12 (“Freedom from Abuse, Neglect, and Exploitation” (emphasis added)), and states that a “resident has the right to be free from abuse.”  Id. at 2 (quoting the opening paragraph in section 483.12); see also CMS Ex. 1 (April 23, 2018 notice of deficiency and imposition of CMP), at 1 (describing Tag F600 as “Free From Abuse and Neglect”).   

Page 14

In addition, in upholding the deficiency, the ALJ found, and we agree, that the nature of the incident in question is one of abuse prohibited by section 483.12 and of a sexual nature.  See ALJ Decision at 4.  The regulations define sexual abuse as “non-consensual sexual contact of any type with a resident.”  42 C.F.R. § 483.5.  The Board has determined that inappropriate, unwanted touching of a sexual nature (or attempt to do so) of one resident by another is resident-on-resident “abuse” actionable against the SNF.  See, e.g., Countryside Rehab. & Health Ctr., DAB No. 2853, at 3, 11-20 (2018) (affirming ALJ’s conclusion that the SNF violated the abuse regulation by failing to take all reasonable steps to protect a resident from unwanted touching of the resident’s inner thigh and genitalia by another resident who wore an electronic tracking device on his ankle as a condition of his probation for sexual battery of a minor, a crime for which he served prison time); Pinehurst Healthcare & Rehab. Ctr., DAB No. 2246, at 6-13 (2009) (affirming ALJ’s conclusion that the SNF violated the abuse regulation by failing to take reasonable steps to effectively address one resident’s sexualized behavior following an incident in which that resident attempted to have sexual contact with another resident without her consent).  We note, moreover, regardless of the sexual nature of Resident 2’s putting his hand down Resident 1’s pants, there is no question that Resident 2’s action was resident-on-resident “physical” abuse that is prohibited by the regulation.  See Pinehurst at 10 (stating that SNFs must “protect residents from all types of abuse – physical, mental, and sexual”).12   

In any case, CMS cited this deficiency as an “abuse” deficiency, which, as the ALJ found and we agree, comports with the requirements in section 483.12.   

Petitioner’s reliance on the testimony of CMS’s witness D.M. to bolster its “neglect” theory is to no avail.  According to Petitioner, D.M. “agree[d] that the surveyor mis-applied the F600 regulation and section 483.12(a)(1).”  RR at 3 (citing CMS Ex. 20, at 2-3).  The implication of this statement is that despite CMS’s own witness’s agreement that Petitioner should not have been cited with a deficiency identified as Tag F600, CMS nevertheless improperly did so.  We reject the implication because it is unsupported by the record.  D.M. stated, “I believe it is important to state both § 483.12 and § 483.5 in my declaration because the [state agency] incorrectly applied § 483.12, citing the findings as neglect rather than abuse.”  CMS Ex. 20, at 3.  D.M. then went on to quote section 483.12’s lead-in language (which, as noted earlier, expressly states that “[t]he resident has the right to be free from abuse”) and the definition of “abuse” in section 483.5.  Id. at 3-4.  D.M. did not state, as Petitioner appears to assert, that the state agency or CMS wrongly cited section 483.12(a)(1) as the regulation Petitioner supposedly violated and for which CMS imposed a CMP.  On the contrary, D.M. conveyed his view that the incident in question should have been specifically characterized and cited in the Statement of Deficiencies? as one of abuse under section 483.12.  See CMS Ex. 1, at 1. 

Page 15

We note that D.M.’s statements are consistent with the position CMS took during the ALJ proceedings, which is that Petitioner did not comply substantially with a regulation prohibiting resident abuse.  See CMS MSJ at 4-7; CMS’s Post-Hearing Br. at 1, 8-10.

Furthermore, to the extent Petitioner also implies that the ALJ erred in upholding CMS’s citation of a resident-on-resident abuse violation under section 483.12 because the regulation at subsection (a)(1) states in part that “[t]he facility must . . . [n]ot use verbal, mental, sexual or physical abuse, corporal punishment” (emphasis added), we reject that implication.  In stating that “the broader language of the preamble of 42 C.F.R. § 483.12 subsumes the abuse that is at issue here” (ALJ Decision at 2), the ALJ accurately conveyed that section 483.12 obligates the SNF to protect its residents from abuse, whether the abuse is perpetrated by the SNF (through its staff) or by another resident.  To be clear, “[p]rotecting and promoting a resident’s right to be free from abuse necessarily obligates the facility to take reasonable steps to prevent abusive acts, regardless of their source.”  Western Care Mgmt. Corp., DAB No. 1921, at 12 (2004) (emphasis added); see also Golden Living Ctr. – Morgantown, DAB No. 3192, at 14-15 (2025) (holding that a resident’s assaultive actions toward other residents was abuse under the regulation formerly at section 483.13).  Accordingly, the facility’s obligation to protect a resident from abuse extends to situations where the perpetrator of abuse is another resident (see supra, discussing Countryside and Pinehurst); it is not limited to situations where the facility itself could be found to have abused a resident through the actions of its staff. 

As to Petitioner’s reliance on the surveyor’s references to “neglect,” we disagree that the ALJ’s alleged failure to invalidate the section 483.12 deficiency “caused an abject denial of Petitioner’s right to due process.”  RR at 2.  Importantly, regardless of the surveyor’s use of the word “neglect” in the Statement of Deficiencies, it is CMS which later cited Petitioner for a violation of a regulation that prohibits resident abuse.  CMS Ex. 1, at 1-2.  During the ALJ proceedings, CMS clearly asserted in its briefs that, with respect to Tag F600, Petitioner failed to protect a resident from abuse by another resident, thus giving Petitioner notice of CMS’s position that the February 4, 2018 incident on which Tag F600 was based was an “abuse” incident, and giving Petitioner specific notice of the basis for its deficiency citation.  See CMS’s MSJ at 4-7; CMS’s Post-Hearing Br. at 1, 8-10.  Petitioner (represented by an attorney before the ALJ) exercised its right to defend itself against CMS’s abuse allegations before the ALJ.  We therefore find no foundation for the claim that the ALJ denied Petitioner due process.   

Moreover, Petitioner through counsel exercised its right to Board review of the ALJ Decision, and we have addressed its argument in detail here.  In short, Petitioner has been given, and availed itself of, its right to two levels of administrative review of CMS’s deficiency finding in accordance with 42 C.F.R. Part 498.  In this regard, the Board has held that “[a] statement of deficiencies is ‘a notice document’ not meant to be exhaustively detailed,” and ruled, for example, “that CMS may raise new allegations at the pre-hearing exchange stage and by summary judgment motion, based on the same

Page 16

facts that supported a previously cited violation, as that timing gives the non-federal party sufficient notice to prepare a responsive defense.”  Rehab at River’s Edge, DAB No. 3163, at 13 (2024) (citing Pac. Regency Arvin, DAB No. 1823, at 9-10 (2002) and Livingston Care Ctr., DAB No. 1871, at 20-21 (2003) (finding no deprivation of due process where CMS raised allegation of failure to adequately treat a resident’s pressure sore that was not noted in the SOD)).  We thus see no basis for Petitioner’s allegation that it was deprived of due process. 

Based on the foregoing, we conclude that the ALJ did not misapply section 483.12 in upholding the deficiency CMS cited as Tag F600 based on Petitioner’s failure to protect the right of its residents to be free from abuse. 

2.      The ALJ did not err in determining that Petitioner did not adequately react to notice of the risk of abuse.

Aside from its legal exceptions discussed above, Petitioner principally disputes the ALJ’s finding that the facility had been “warned . . . that the resident had a proclivity for inappropriate sexual conduct” and thus had “a duty . . . to investigate further before admitting the resident” and “to assess Resident #2 carefully to determine what risk he posed to other residents of Petitioner’s facility,” but “failed to react . . . in any meaningful way.”  ALJ Decision at 4-5.  The ALJ pointed to a nurse practitioner’s January 26, 2018 wellness exam progress note that, as stated earlier, says Resident 2’s daughter-in-law reported that police had been called to his home because he “exposes himself in public and to people who come to his home, i.e. Cable lady.”  Id. at 4 (quoting CMS Ex. 10, at 34).  Petitioner does not dispute having “received the nurse practitioner’s report,” which “appears as part of the documents that Petitioner assembled when it admitted Resident 2 to its premises.”  Id. (ALJ referring to the records admitted as CMS Ex. 10); see also P. Ex. 22, at 1 (affidavit testimony of Marketing/Admissions Director R.L., who “became aware of some claims of inappropriate sexual behavior” by Resident 2 “[w]hile processing Res. #2 for admission to the facility”).13  The ALJ thus held “that Petitioner failed, in violation of 42 C.F.R. § 483.12, to take actions that might have prevented . . . Resident #2[] from sexually abusing another resident, Resident #1.”  ALJ Decision at 3.

Petitioner responds that “[c]ontrary to the ALJ’s decision, Benbrook did investigate Resident #2’s alleged inappropriate behavior prior to admission by speaking with the very person with whom Resident #2 had allegedly been inappropriate, and who had knowledge about the other alleged incidents.”  RR at 8; see P. Reply at 5 (stating “it is undisputed . . . that [R.L.] discussed the alleged incidents involving Resident 2’s behavior

Page 17

with both his daughter in law and his granddaughter”).  As to that investigation, Petitioner contends that Resident 2’s “daughter in law and granddaughter confirmed that the incidents did not involve sexually inappropriate behavior, but instead represented behaviors in which Resident 2 engaged while in the privacy of his own bedroom behind a closed door.”  P. Reply at 5-6 (citing P. Ex. 21, at 2; P. Ex. 22, at 2-3).  Petitioner thus asserts that “there is no way the incident involving Resident #1 and Resident #2 could have been foreseen or prevented by the Benbrook staff.”  RR at 8.

The record contradicts Petitioner’s claim to have adequately investigated the nature of Resident 2’s sexual conduct and shows no error in the ALJ’s determination. 

As an initial matter, the ALJ did not find that the facility should have “foreseen,” or that it was foreseeable, that Resident 1 would reach into Resident 2’s pants without consent nor otherwise address foreseeability.  The ALJ found that Petitioner’s “fail[ure] to act on information in its possession prior to admission . . . suggesting that the resident engaged in inappropriate behavior of a sexual nature including exposing himself in public  . . . violated Petitioner’s policy against abuse, which states in relevant part that its staff will: ‘identify residents with needs and behaviors which might lead to conflict or neglect.’”  ALJ Decision at 3 (citing CMS Ex. 15, at 1 (Facility Policy)).  The ALJ thus concluded that “Petitioner failed, in violation of 42 C.F.R. § 483.12, to take actions that might have prevented . . . Resident #2, from sexually abusing another resident, Resident #1.”  Id.  The ALJ did not err in not considering whether Resident 2’s specific actions were foreseeable, as compliance with the abuse regulation does not end at preventing only such specifically foreseeable incidents but requires facilities to protect residents from foreseeable risks of abuse.  The Bridge at Rockford, DAB No. 2954, at 24 (2019) (in cases of resident abuse by other residents, “the facility’s responsibility for protecting them from each other cannot extend to ‘entirely unforeseeable risks’” (emphasis added) (citing Kindred Transitional Care & Rehab – Greenfield, DAB No. 2792, at 9-10 (2017)).  The relevant question is whether, based on available information, Petitioner could reasonably have anticipated that Resident 2 might engage in sexual behaviors that could impact other residents.  The record shows the facility had reasons to anticipate the possibility that Resident 2 could act out sexually in a manner that could impact other residents harmfully.

First, the record does not support Petitioner’s claims that “Benbrook” spoke with “the very person with whom Resident #2 had allegedly been inappropriate” and that both the “daughter in law and granddaughter confirmed” that he did not knowingly engage in sexual conduct in front of others, but only in private.  RR at 8; P. Reply at 5-6.  Petitioner does not identify the person with whom it says Resident 2 had allegedly been inappropriate but cited no evidence indicating that anyone from the facility spoke to the “cable lady” referenced in the progress note in connection with the police being called to Resident 2’s home.  If Petitioner means Resident 2’s daughter-in-law who apparently told the nurse practitioner of his exposing himself, there is also no record of anyone from the

Page 18

facility speaking with her.  None of the exhibits Petitioner cites – the surveyor’s notes and the written testimony of its Administrator and its Marketing/Admissions Director – show that the latter official “discussed the alleged incidents involving Resident 2’s behavior with both his daughter in law and his granddaughter.”  P. Reply at 5 (citing CMS Ex. 11, at 29; P. Ex. 22, at 1-3; P. Ex. 21, at 5) (emphasis added).  The surveyor’s notes indicate only that R.L. reported that the daughter-in-law had “let nurse [practitioner] know res was touching self/masturbating” (CMS Ex. 11, at 28), and at the hearing the surveyor could not recall if R.L. had spoken with the daughter-in-law.  Tr. at 29.  The Administrator’s testimony merely summarizes the Marketing/Admissions Director’s testimony, as the ALJ found, and reports no follow up with the daughter-in-law.  See P. Ex. 21; ALJ Decision at 5 (Administrator did not “claim to have investigated the allegations” or to have “first-hand evidence concerning that resident”).  And most notably, R.L.’s testimony identifies only Resident 2’s granddaughter as a family member with whom she spoke prior to his admission and does not report any contact with the daughter-in-law.  P. Ex. 22.  That is consistent with an undated note from R.L. that also identifies only the granddaughter as having spoken with R.L.  P. Ex. 5. 

As the ALJ noted, R.L.’s testimony is the only evidence Petitioner proffered of direct communication with Resident 2’s family members or others with first-hand knowledge concerning Resident 2’s pre-admission conduct.  ALJ Decision at 5 (noting that the other affidavits Petitioner provided are from witnesses who do not claim to have investigated the allegations about Resident 2 and do not have “first-hand evidence concerning that resident”).

While Petitioner emphasizes that surveyor B.R. did not interview Resident 2’s granddaughter, the daughter-in-law, the “police department,” or “the ‘cable lady’ with whom Resident 2 supposedly had a pre-admission interaction,” there is no evidence that facility staff (including R.L) interviewed any of those individuals except the granddaughter before determining to rely solely on the granddaughter’s account and beliefs, and to dismiss the daughter-in-law’s report as apparently unfounded.  P. Reply at 3; see also P. Post-Hearing Br. at 3 (each citing Tr. at 16-18).14  Petitioner cites nothing in the record indicating that the daughter-in-law confirmed that the referenced incidents did not involve sexually inappropriate behavior.

This record thus does not establish an “assurance from the family that there were no incidents of inappropriate sexual behaviors,” as Petitioner states.  RR. at 6 (emphasis added).

Page 19

Second, and relatedly, the record does not show that Petitioner adequately investigated Resident 2’s sexual proclivities as reported in the progress note.  Petitioner relies on R.L.’s written testimony that she “became aware of some claims of inappropriate sexual behavior being reported” prior to Resident 2’s admission.  P. Ex. 22, at 1 (affidavit).  R.L. “spoke with [Resident 2’s] granddaughter who explained that the reported incident happened” when Resident 2 “had been in his private room, in his home, with the door closed, masturbating” when the cable installer “came into the room without knocking,” and “overreacted and called the police.”  Id.  The granddaughter further told R.L. that on another occasion she “had also entered his room without knocking on the closed door, and discovered Res. #2 masturbating” and “exited the room quietly and shut the door.”  Id.  “Based on these facts,” R.L. “determined that Res. #2 had not done anything that would constitute inappropriate sexual behavior since he was well within his rights to privacy which had been inappropriately violated by the two women[.]”  Id. at 1-2.  Petitioner thus “made the decision to accept Resident #2 for admission” based on the “granddaughter’s explanation and the assurance from the family that there were no incidents of inappropriate sexual behaviors.”  RR at 6.  Petitioner’s “staff echoed this confirmation based upon their observations of Resident #2 up until the time of the incident” on February 4, 2018.  Id. at 8.

We agree with the ALJ that Petitioner’s reliance on solely an interview with Resident 2’s granddaughter was not sufficient to establish compliance.  At a minimum, the progress note reveals a discrepancy between two family members as to whether Resident 2’s acknowledged sexual conduct occurred exclusively in private behind closed doors, as the granddaughter told R.L., or outside of his room in the presence of others, as the daughter-in-law apparently told the nurse practitioner.  The progress note also raises questions as to the extent of Resident 2’s conduct, stating that according to the daughter-in-law, he “exposes himself in public and to people who come to his home.”  CMS Ex. 10, at 34.  Yet, the record shows no particular facility effort to investigate and resolve the discrepancy in the accounts of Resident 2’s conduct and the questions raised by the progress note.  In particular, the Marketing/Admission Director’s testimony provides no rationale for crediting the granddaughter’s account and belief that Resident 2 never purposefully exposed himself to others and to dismiss the daughter-in-law’s reports and concerns, thus apparently deeming the daughter-in-law’s report and beliefs to be incorrect, incorrectly reported, or otherwise unreliable.  The testimony does not indicate whether R.L. simply did not believe the daughter-in-law’s account, or instead (or additionally) did not believe the nurse practitioner’s reporting of that account in the progress note. 

Relying solely on the granddaughter’s denial of any sexual conduct beyond the two instances of allegedly private actions, and not interviewing the daughter-in-law or anyone else who might be familiar with Resident 2’s history, deprived R.L. and the facility of the means to assess accurately the nature of the risks Resident 2 posed based on his reported, recent inappropriate behavior.  See ALJ Decision at 6 (R.L. “failed even to contact

Page 20

individuals who might have had first-hand knowledge” of the actions alleged in the progress note, “and the information she received failed to resolve the allegations concerning Resident 2’s alleged proclivity to expose himself in public.”).  The record thus provides no reasonable basis for concluding that the reports of possible indecent exposure and police involvement recorded in the nurse-practitioner’s progress note were not credible and could be ignored.

Petitioner’s assertion that there were no incidents of inappropriate sexual behaviors by Resident 2 prior to his admission (RR at 6) is also belied by comments made by Petitioner’s own staff immediately after the abuse incident involving Resident 1.  Here, the record plainly shows that at least some staff were aware that Resident 2 had a history of sexually inappropriate behavior, which was part of the reason Resident 2’s family sought to place him in the facility.  CMS Ex. 5, at 5; CMS Ex. 11, at 23; CMS Ex. 12, at 1; see also CMS Ex. 10, at 34.

3.      Petitioner failed to comply substantially with 42 C.F.R. § 483.12.

Having determined that the facility had warning of Resident 2’s “proclivity for inappropriate sexual conduct” and thus “a duty . . . to investigate further” and “assess Resident #2 carefully to determine what risk he posed to other residents of Petitioner’s facility,” the ALJ found Petitioner not in substantial compliance with the abuse regulation because it “failed to react” to that warning “in any meaningful way” and “effectively allowed Resident #2 free reign to perpetrate sexual abuse against other residents.”  ALJ Decision at 4, 7.  “Most notably,” the ALJ found, “Petitioner failed to act on information in its possession prior to admission of Resident #2 to its facility suggesting that the resident engaged in inappropriate behavior of a sexual nature including exposing himself in public.”  Id. at 3 (citing CMS Ex. 10, at 34).  The ALJ cited various actions the facility could have, but did not, take to protect residents from sexual behaviors by another resident, including assessing and planning on how to deal with the possibility of the sexual conduct by Resident 2 that was raised by the progress note.  Id. at 4-5.  The ALJ also found that such failures to protect residents from sexual abuse violated facility policy against abuse.  Id. at 3 (citing CMS Ex. 15, at 1).  The ALJ thus concluded that the evidence “establishes that Petitioner failed, in violation of 42 C.F.R. § 483.12, to take actions that might have prevented a resident . . . from sexually abusing another resident, Resident #1.”  Id.

On appeal, Petitioner relies on arguments we rejected above criticizing the survey and the citation of the deficiency as abuse and maintaining that the facility adequately investigated and properly dismissed the report of Resident 2’s sexual conduct.  Petitioner, however, does not dispute the ALJ’s account of measures the facility could have but did not take to protect residents from the possibility of abuse following receipt of that information that pointed to a recent history of non-private sexual conduct.  Petitioner does not dispute the ALJ’s findings that the facility and its staff:

Page 21

• Did not provide evidence of an “assessment of the resident’s sexual behavior and proclivities”;
• Did not “generate an interim care plan for the resident that mentioned the possibility of inappropriate sexual behavior as an issue requiring its staff’s attention”;
• Did not warn caregivers “that the resident might engage in inappropriate behavior”;
• Did not “undert[ake] measures to protect its residents from the possibility that Resident #2 might engage in sexually abusive conduct” and, until the incident on February 4, 2018, “the staff was not instructed to watch” Resident 2, who was “free to interact with other residents including those who were helpless and incapacitated, such as Resident #l”;
• Did not, after the February 4, 2018 incident with Resident 1, “commence one-to-one monitoring of Resident #2 for at least an hour after the nursing assistant saw and reported the abuse.”

ALJ Decision at 4-5.  In short, Petitioner did not protect the right of its residents, including Resident 1, to be free from abuse as required by 42 C.F.R. §  483.12.

Petitioner also does not dispute the ALJ’s conclusion that “Petitioner’s failure to protect its residents violated Petitioner’s policy against abuse, which states in relevant part that its staff will:  ‘identify residents with needs and behaviors which might lead to conflict or neglect’”; Petitioner does not address its policies.  Id. at 3 (citing CMS Ex. 15, at 1).15 

We have held that a facility’s “failure to comply with its own policies can support a finding that the facility did not achieve compliance with the regulatory standard,” as such policies “may reflect the facility’s own judgment about how best to achieve compliance with th[e] requirements” in the regulations.  Good Shepherd Home for the Aged, Inc., DAB No. 2858, at 12 (2018) (citing Board decisions) (internal quotation marks and brackets omitted); see also Heritage Plaza Nursing Ctr., DAB No. 2829, at 20 (2017) (“Once a facility adopts a policy that incorporates the measures that are appropriate to assure that residents receive adequate supervision and assistance devices to prevent accidents, . . . the facility is held to follow through on them.”). 

Page 22

Petitioner does argue that Resident 1 “was not abused because Resident #2 could not form the requisite intent to commit an intentional or willful act” because “Resident #2 did not have the capacity to act willingly or knowingly or to commit abuse of another resident.”  RR at 7-8 (citing P. Ex. 7; P. Ex. 19, at 3-7).  This argument fails for assuming that a resident who acts out towards another must have done so with intent to harm another for the act to constitute abuse.  That is not the case; the act need only have been “willful,” which “means the individual must have acted deliberately, not that the individual must have intended to inflict injury or harm.”  42 C.F.R. § 488.301 (defining “Abuse”); id. § 488.5 (same definition).  See, e.g., Consulate Healthcare of Jacksonville, DAB No. 3119, at 14 (2023) (“Given both residents’ known cognitive limitations, the sexual act the [nurse] reported seeing could be abuse even if Resident 1 could not perceive the act as abusive and even if Resident 2 acted without harmful intent, so long as he acted deliberately.”); Maysville Nursing & Rehab., DAB No. 2874, at 11 (2018) (stating that “willful,” in the definition of abuse, means only that the perpetrator’s act was deliberate, rather than accidental or inadvertent); Yakima Valley School, DAB No. 2422, at 15 (2011) (stating that “[t]he likelihood of serious injury [from resident-to-resident abuse] stems from the aggressor’s actions, not his intent”).  The record demonstrates that Resident 2’s actions in putting his hand down Resident 1’s pants was willful and not merely accidental or inadvertent.  The CNA who separated the residents witnessed Resident 1 pushing Resident 2 away.  CMS Ex. 11, at 23; CMS Ex. 5, at 4-5.  When the CNA asked Resident 2 what he was doing with his hand down Resident 1’s pants, he quickly pulled his hand away and reportedly replied, “Nothing.”  CMS Ex. 5, at 5; CMS Ex. 11, at 23; CMS Ex. 12, at 1.  Facility staff noted that Resident 1 did not have the capacity to consent to sexual activity.  CMS Ex. 11, at 22-24, 27; CMS Ex. 19, ¶ 26.  Absent any evidence that Resident 1 consented to Resident 2 putting his hand down her pants, that act meets the regulatory definition of “sexual abuse” in section 483.5. 

Petitioner also asserts that “[n]o resident suffered any harm,” as “confirmed by the IDR reviewers, as well as by CMS,” when CMS agreed with the reduction of the scope and severity of the deficiency from L to D.  RR at 9 (citing P. Ex. 25; CMS Ex. 4; CMS Ex. 5, at 2).  According to Petitioner, the ALJ “ignored the uncontroverted evidence” Petitioner submitted, which Petitioner says proves Resident 2 sustained no harm, and which CMS did not challenge on cross-examination.  Id.  Resident harm is not required to find a violation of the abuse regulations, since “CMS is not required to establish, and the ALJ is not required to find, that actual abuse occurred to show [the facility] was not in substantial compliance with section 483.13(b).”  Holy Cross Village of Notre Dame, Inc., DAB No. 2291, at 7-8 (2009); see also Golden Living Ctr. – Trussville, DAB No. 2937, at 12 (2019) (actual abuse need not occur for a facility to violate the abuse regulation).

Petitioner has thus shown no error in the ALJ’s conclusion that Petitioner was noncompliant with 42 C.F.R. § 483.12 by failing to protect the right of its residents, including Resident 1, to be free from abuse.  We affirm the ALJ’s conclusion.

Page 23

II.     The ALJ’s conclusion that the $20,000 per-instance CMP was reasonable was erroneous; a $10,000 CMP is reasonable.

“A SNF may challenge the reasonableness of the amount of any CMP imposed.”  Fireside Lodge Retirement Ctr., Inc., DAB No. 2794, at 17 (2017) (citing Golden Living Ctr. – Superior, DAB No. 2768, at 26 (2017), citing Lutheran Home at Trinity Oaks, DAB No. 2111, at 21 (2007)).  Petitioner argues that the $20,000 per-instance CMP, which the ALJ noted “is near the top of the range of penalties that CMS may impose,” should be reduced to reflect CMS’s reduction in the level of scope and severity posed by the noncompliance, as the state agency recommended after IIDR.  RR at 9-10; ALJ Decision at 8; CMS Ex. 4, at 1. 

We agree.  CMS’s determination that the F600 deficiency was at the “D” level of scope and severity (following CMS’s decision to “concur” with the IIDR recommendation “to amend F600 from a Widespread Level 4-L to an Isolated Level 2-D”) means that the noncompliance was “[i]solated” with “[n]o actual harm with potential for more than minimal harm that is not immediate jeopardy” and was not “[w]idespread” “[i]mmediate jeopardy to resident health or safety,” as CMS initially determined in setting the CMP.  CMS Ex. 1, at 1; CMS Ex. 4, at 1; P. Ex. 25, at 7; SOM Ch. 7, § 7400.3.1 (scope and severity matrix).  Neither CMS nor the ALJ explains why CMS’s determination—that the noncompliance was at the lowest scope and severity level eligible for CMPs—does not justify a reduction in the original CMP, which was both (1) near the maximum amount ($20,000 of $20,965), and (2) based on a now-revised determination that the deficiency was at the highest level on the scope and severity matrix.  See Claiborne-Hughes Health Ctr., DAB No. 2223, at 18 (2008) (reducing per-day CMP “to more reasonably reflect the lower level of noncompliance we have found”).  The ALJ erred in relying on inapplicable law in declining any such corresponding adjustment.

The ALJ declined to reduce the CMP because “IDR determinations, whatever they may be in a given case, are not binding on CMS” or ALJs, and because “CMS reasonably could have imposed per-diem penalties for this noncompliance that in sum exceeded the amount of the per-instance penalty.”  ALJ Decision at 8-9.  The ALJ also cited “the seriousness of Petitioner’s noncompliance” as evidenced by “[t]he helplessness of Resident #1 in the face of Resident #2’s sexual abuse.”  Id. at 8.  CMS does not mention IIDR or IDR but cites an ALJ decision for the notion that “the authority to impose a per-instance CMP of up to $20,000 ‘is based on Petitioner’s noncompliance and not on the presence of immediate jeopardy’ and is ‘measured without regard to the presence or absence of immediate jeopardy.’”  CMS Resp. at 16 (quoting NMS Healthcare of Hagerstown, DAB CR3232, at 2 (2014)).  CMS also cites the ALJ’s discussion of the seriousness of the noncompliance and argues that Petitioner’s “culpability in this case,” about which “the ALJ did not make a specific finding . . .[,] further lends to the conclusion that its noncompliance in this case was serious” because Resident 2’s “history of sexual behaviors . . . was known to [Petitioner] at the time of his admission,” making

Page 24

such behavior “extremely predictable.”  Id. at 17; see also 42 C.F.R. § 438.438(f)(4) (“Culpability . . . includes, but is not limited to, neglect, indifference, or disregard for resident care, comfort or safety.”).

The Board has affirmed that, as the ALJ stated, IDR (or IIDR) determinations and recommendations do not bind CMS.  See, e.g., Kindred Transitional Care & Rehab – Greenfield, DAB No. 2792, at 5, 21-22 (2017) (holding CMS was “not bound to follow or defer to an IIDR determination” that found no noncompliance); Lakeland Health Care Ctr., DAB No. 3147, at 4-5, 16 (2024) (citing Kindred in upholding CMS’s decision to not adopt the IIDR recommendation to reduce a deficiency’s scope and severity level from “G” to “D”).  But that principle and those decisions do not apply here where CMS did concur with and adopt the IIDR’s finding that the scope and severity of the deficiency  – i.e., its seriousness – was substantially less than what CMS initially determined.  See The Oaks, DAB No. 3160, at 21 (2024) (“seriousness” per section 488.404 “mean[s] its severity and scope”).  Additionally, as the IIDR process did not recommend any CMP amount or otherwise address available penalty amounts, our determination that the $20,000 CMP is not reasonable in light of CMS’s substantial reduction of its assessment of the seriousness of the deficiency does not entail deferring to any IDR or IIDR determinations of penalty amounts.  P. Ex. 25.

Similarly, CMS’s reliance on the ALJ’s decision in NMS Healthcare as holding that the presence or absence (as here) of immediate jeopardy is not relevant in setting a per-instance CMP is not correct (and ALJ decisions are not binding on the Board, see Five Star Healthcare, LLC, DAB No. 3089, at 12 (2023)):  the Board on appeal found that language “not accurate” because “an immediate jeopardy citation is relevant to the seriousness of deficiencies and is a factor to be considered by an ALJ when determining whether the amount of a CMP is reasonable even where, as here, the immediate jeopardy determination itself is not subject to review because CMS imposed a per-instance CMP.”  NMS Healthcare of Hagerstown, DAB No. 2603, at 1 n.1 (2014), appeal dismissed, 619 F. App’x 225 (4th Cir. 2015); see 42 C.F.R. §§ 498.3(b)(14) (“level of noncompliance” may be challenged only if it would “affect . . . the range of penalty amounts CMS could collect”); 488.438(a) (setting a single range of per-instance CMPs vs. two ranges for immediate jeopardy and non-immediate jeopardy deficiencies).  The presence or absence of immediate jeopardy is, moreover, among the factors that the regulations provide must be considered in determining seriousness.  42 C.F.R. § 488.404(b)(1). 

Regulations (and Board decisions addressing them) that limit a petitioner’s ability to challenge CMS’s scope-and-severity and immediate jeopardy determinations thus have no relevance here where CMS assigned the deficiency the lowest, non-immediate-jeopardy seriousness level authorizing CMPs.  CMS’s reduction of the deficiency’s scope and severity level, and its accompanying withdrawal of its initial immediate jeopardy determination, are relevant as they reflect CMS’s ultimate, overarching determination

Page 25

that the noncompliance was less serious than what CMS originally determined when it set the $20,000 CMP amount. 

CMS argues, “When determining the amount of a CMP, CMS first considers the seriousness of the deficiencies,” and CMS here considers the seriousness to be at the lowest level for which it may impose a CMP.  CMS Resp. at 15; CMS Ex. 4, at 1.  CMS has not revised that determination nor argued it erred in lowering its earlier assessment of the noncompliance.  The substantial reduction of the seriousness that CMS effected renders unreasonable the CMP it imposed at the time it considered the seriousness to be at the highest available level.

Finally, the ALJ’s observation that the $20,000 per-instance CMP is less than the total per-day CMPs that CMS could have imposed is speculative and unsupported, given that a per-day CMP could have been as low as $105 per day based on the “D” level of seriousness CMS assigned, the absence of any CMS determination of the beginning date or duration of the F600 noncompliance, and the wide range of beginning dates CMS may select.  42 C.F.R. § 488.438(a)(1)(ii); 45 C.F.R. § 102.3 (table) (as amended effective Feb. 3, 2017); 82 Fed. Reg. 9,174, 9,182-83 (Feb. 3, 2017); see Fireside Lodge at 15 (noting CMS found that immediate jeopardy began on the date non-compliance began (June 17) but “was authorized to determine (and ultimately did determine) that the immediate jeopardy began on August 20 . . . during the survey in which the surveyors identified it”); Regency Gardens Nursing Ctr., DAB No. 1858, at 10 (2002) (“From the provision that remedies may be imposed as early as the first day of noncompliance, it follows that CMS may choose to begin any remedy at a later date.”).

The ALJ’s reasons for not considering CMS’s reduction of its assessment of the seriousness of the deficiency, and his resulting affirmation of the CMP amount, were thus erroneous. 

Our conclusion that CMS’s reduction of the deficiency’s level of seriousness warrants a lower CMP does not mean that Petitioner’s noncompliance does not warrant a substantial penalty.  In considering the seriousness of Petitioner’s noncompliance, the ALJ noted that “Petitioner’s staff’s failure to research the potential for harm that Resident #2 posed” could have compromised the safety and well-being of other residents in the facility.  ALJ Decision at 8.  The ALJ noted that an “essentially unsupervised” Resident 2 “assault[ed]” Resident 1, who was “helpless,” “utterly vulnerable,” “completely dependent,” and “could neither see nor communicate and was unable to move without assistance,” as a result of Petitioner’s failure to assess the potential for harm posed by Resident 2’s behavior.  Id.  Notably, the ALJ found that staff left Resident 2 “without close supervision even after he perpetrated his sexual assault” on Resident 1, as staff began supervising Resident 2 “one-to-one” an hour after the assault on Resident 1 because Resident 2 “attempted to elope Petitioner’s facility and not because [Resident 2] abused

Page 26

another resident sexually.”  Id.  Thus, we agree with the ALJ’s assessment that Petitioner’s noncompliance was “very serious.”  Id. 

Regarding the other relevant factors for consideration listed in the regulations, the ALJ rejected CMS’s citation of Petitioner’s compliance history, and CMS does not challenge the ALJ’s determination to base his assessment “of the per-instance penalty on the seriousness of Petitioner’s noncompliance and not on its compliance history.”  ALJ Decision at 9.  CMS argues that the CMP should reflect the facility’s culpability, which “includes, but is not limited to, neglect, indifference, or disregard for resident care, comfort or safety.”  42 C.F.R. § 488.438(f)(4).  The ALJ did not address culpability, but we agree that the facility management’s unwarranted dismissal of the report of Resident 2’s sexual conduct and its failure to adequately investigate that report, demonstrate its culpability for the noncompliance.  In consideration of that culpability, and the seriousness of Petitioner’s noncompliance, we conclude that $10,000 is a reasonable CMP.16

Conclusion

We affirm the ALJ’s determination that Petitioner was not in substantial compliance with the requirement to protect residents from abuse, but we modify the ALJ Decision to hold that $10,000 is a reasonable per-instance CMP for the noncompliance.