Twin Pines Health Care Center, DAB CR5267 (2019)

DECISION

Petitioner, Twin Pines Health Care Center, was not in substantial compliance with program participation requirements as of January 22, 2015, and did not return to substantial compliance until April 29, 2015. Accordingly, a statutory denial of payments for new admissions (DPNA) was triggered April 22, 2015, and continued through April 28, 2015, the day prior to the date on which Petitioner returned to substantial compliance.

I. Background

Petitioner is located in Victoria, Texas, and participates in Medicare as a skilled nursing facility (SNF). Joint Stipulation of Undisputed Facts (Jt. Stip.) ¶ 1; Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 1. On January 22, 2015, the Texas Department for Aging and Disability Services (state agency) completed a complaint investigation of Petitioner (the January survey) and found Petitioner not in substantial compliance with program participation requirements due to violations of 42 C.F.R.

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§§ 483.13(b), (c)(1)(i) (Tag F223This is a “Tag” designation as used in CMS Pub. 100-07, State Operations Manual (SOM), Appendix PP – Guidance to Surveyors for Long Term Care Facilities (http://www.cms.hhs.gov/Manuals/IOM/list.asp).  The “Tag” refers to the specific regulatory provision allegedly violated and CMS policy guidance to surveyors.  Although the SOM does not have the force and effect of law, the provisions of the Act and regulations as interpreted in the SOM clearly do have such force and effect.  Ind. Dep’t of Pub. Welfare v. Sullivan, 934 F.2d 853 (7th Cir. 1991); Northwest Tissue Ctr. v. Shalala, 1 F.3d 522 (7th Cir. 1993).  Thus, while the Secretary of Health and Human Services (Secretary) may not seek to enforce the provisions of the SOM, he may seek to enforce the provisions of the Act or regulations as interpreted by the SOM.) (scope and severity (s/s) FScope and severity levels are used by CMS and a state when selecting remedies.  The scope and severity level is designated by an alpha character, A through L, selected by CMS or the state agency from the scope and severity matrix published in the SOM, ch. 7, § 7400E.  A scope and severity level of A, B, or C indicates a deficiency that presents no actual harm but has the potential for minimal harm, which is not considered “noncompliance,” and which is an insufficient basis for imposing an enforcement remedy.  Facilities with deficiencies of a level no greater than C remain in substantial compliance.  42 C.F.R. § 488.301.  A scope and severity level of D, E, or F indicates a deficiency that presents no actual harm but has the potential for more than minimal harm that does not amount to immediate jeopardy.  A scope and severity level of G, H, or I indicates a deficiency that involves actual harm that does not amount to immediate jeopardy.  Scope and severity levels J, K, and L indicate deficiencies that constitute immediate jeopardy to resident health or safety.  The matrix, which is based on 42 C.F.R. § 488.408, specifies which remedies are required and which are optional at each level based upon the frequency of the deficiency.); 483.13(c)(1)(ii)-(iii), (c)(2)-(4) (Tag F225) (s/s F); 483.13(c) (Tag F226) (s/s F); 483.15(b) (Tag F242)The parties stipulated that the state agency cited Petitioner for noncompliance with 42 C.F.R. § 483.15(a) (Tag F241).  Jt. Stip. ¶ 9.  The Statement of Deficiencies (SOD) for the survey completed on January 22, 2015, shows that the state agency cited Petitioner for noncompliance with 42 C.F.R. § 483.15(b) (Tag F242).  CMS Ex. 2 at 22-38.  The Post-Certification Revisit Report (CMS-2567B) for the revisit on April 28, 2015, shows that Petitioner completed correction of noncompliance under Tag F242 effective January 23, 2015.  P. Ex. 3 at 3.  Michael Greer, a state agency investigator, states in his declaration that noncompliance was cited under Tag F242.  CMS Ex. 39 at 3-4.  Thus, CMS evidence is consistent with a deficiency citation based on a violation of 42 C.F.R. § 483.15(b) (Tag F242), rather than a violation of 42 C.F.R. § 483.15(a) (Tag F241).  However, Petitioner’s Plan of Correction (POC), which appears in the right column of an SOD that reflects it was for a survey of Petitioner completed on January 22, 2015, lists noncompliance under Tag F241 and that is the alleged noncompliance addressed by Petitioner in its POC.  P. Ex. 1 at 7-10.  I find no explanation for the discrepancy in the evidence.  However, I have compared the factual allegations in the extract of the SOD in evidence as P. Ex. 1 at 7-10 and the SOD in evidence as CMS Ex. 2 at 22-28, and find the factual allegations to be the same despite the different regulatory and Tag citations.  I conclude that the alleged factual basis is more consistent with an alleged violation of 42 C.F.R. § 483.15(a) (Tag F241) as stipulated by the parties.  I conclude that the citations to 42 C.F.R. § 483.15(b) (F242) are merely clerical errors and treat all such citations as to 42 C.F.R. § 483.15(a) (Tag F241), consistent with the stipulation of the parties.  Because Petitioner’s plan of correction addressed Tag F241 there is no prejudice to Petitioner.  There is also no prejudice to CMS.  The discrepancy has no impact upon the outcome in this case. (s/s E);

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483.60(a), (b) (Tag F425) (s/s F); and 483.75 (Tag F490) (s/s F).Citations are to the 2014 revision of the Code of Federal Regulations (C.F.R.), unless otherwise stated. Jt. Stip. ¶¶ 2, 6-11; CMS Ex. 2; P. Ex. 3 at 3.

On February 5, 2015, the state agency notified Petitioner that the complaint investigation completed on January 22, 2015, determined Petitioner was not in substantial compliance. The state agency advised Petitioner it must submit its POC within ten days and that failure to do so might result in termination of Petitioner’s provider agreement. The state agency also advised Petitioner that Petitioner must complete directed in-service training related to pharmaceutical services (Tag F425) by February 26, 2015, and there was no opportunity for Petitioner to correct as to that deficiency citation. The state agency advised Petitioner that mandatory termination would occur on July 22, 2015, if substantial compliance was not achieved before that date, citing 42 C.F.R. § 488.456. The state agency also advised Petitioner that a “statutory” DPNA would be triggered after three months of noncompliance, that is, on April 22, 2015, citing 42 C.F.R. § 488.417(b)(1). The state agency advised Petitioner that the citations of noncompliance under 42 C.F.R. §§ 483.13, 483.15, and 483.25 (the January 22, 2015 SOD did not cite this violation) constituted substandard quality of care that triggered an extended or partial extended survey and that made Petitioner ineligible to conduct a Nurse Aide Training and Competency Evaluation Program (NATCEP) for two years. The state agency also notified Petitioner of its right to request informal dispute resolution (IDR) and administrative law judge (ALJ) review. P. Ex. 8.

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On February 12, 2015, the state agency completed a second survey of Petitioner (the February survey), a recertification survey and complaint investigation. The state agency found Petitioner was not in substantial compliance with program participation requirements due to violations of 42 C.F.R. §§ 483.13(c)(1)(ii)-(iii), (c)(2)-(4) (Tag F225) (s/s E); 483.13(c) (Tag F226) (s/s E); 483.15 (Tag F240) (s/s E); 483.25(a)(3) (Tag F312) (s/s E); 483.30(a) (Tag F353) (s/s E); and 483.35(f) (Tag F368) (s/s E).The state also cited Petitioner for allegedly violating two Life Safety Code Standards, but those citations were at a scope and severity of C (P. Ex. 2 at 6-8), and did not amount to noncompliance that would permit imposition of an enforcement remedy. Jt. Stip. ¶¶ 12-17; CMS Ex. 23.

On February 27, 2015, the state agency notified Petitioner that the survey completed on February 12, 2015, found Petitioner not in substantial compliance. Petitioner was advised of the requirement to submit a POC in ten days; and its right to request IDR and ALJ review. The state agency notice advised Petitioner it was subject to mandatory termination on July 22, 2015, but did not mention the statutory DPNA. P. Ex. 9.

Petitioner requested a hearing before an ALJ on April 3, 2015. Petitioner requested review of the state agency’s determinations announced in its February 5 and 27, 2015 notices. Petitioner’s hearing request was docketed as C-15-1927 and assigned to me for hearing and decision on May 5, 2015, and an Acknowledgment and Prehearing Order was issued at my direction.

CMS notified Petitioner on April 15, 2015, that it was imposing enforcement remedies based on the January and February survey findings. CMS informed Petitioner that it concurred with the survey findings. CMS advised Petitioner that its provider agreement would be terminated July 22, 2015, if Petitioner did not return to substantial compliance before that date. CMS cited section 1819(h)(2)(C) of the Act, which requires termination of all payments to a SNF in the event of noncompliance of more than six months. CMS also advised Petitioner that the statutory DPNA would be effective April 22, 2015, if Petitioner did not return to substantial compliance before that date, citing section 1819(h)(2)(D) of the Act. CMS acknowledged that the state agency imposed directed in-service training on February 5, 2015. P. Ex. 5.

On April 24, 2015, CMS notified Petitioner that it imposed directed in-service training related to the alleged noncompliance with Tags F223, F225, and F226 (violations of 42 C.F.R. § 483.13(b) and (c)) identified by the January and February surveys. P. Ex. 6.

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On April 28, 2015, the state agency conducted a revisit survey and found that Petitioner had corrected all alleged noncompliance cited during the January survey as of January 23, 2015 for Tags F242, F425, and F490; and as of February 13, 2015 for Tags F223, F225, and F226. P. Ex. 3. On May 4, 2015, the state agency conducted a desk review and determined that Petitioner had corrected all alleged noncompliance cited during the February survey as of February 13, 2015, including Tags F225, F226, F240, F312, F353, and F368. P. Ex. 4.

CMS notified Petitioner on June 3, 2015, that it determined that Petitioner resumed substantial compliance effective April 29, 2015. CMS noted that the state agency found that deficiencies cited during the January and February surveys had been corrected, but did not state the date of correction found by the state agency. CMS did not state that it rejected the state agency findings as to the dates of correction of the noncompliance or explain why it determined Petitioner returned to substantial compliance on April 29, 2015, rather than an earlier date based on the dates of correction found by the state agency. CMS advised Petitioner that the DPNA ran from April 22 through April 28, 2015. CMS informed Petitioner that the termination action was rescinded, although that was not a discretionary enforcement remedy imposed by CMS as it was a statutory requirement. CMS Ex. 1 at 1; Jt. Stip. ¶ 4.

On June 12, 2015, Petitioner filed a second request for a hearing before an ALJ. Petitioner requested review of the state agency findings from the January and February surveys and the CMS determinations announced in CMS’s April 15, 2015 and June 3, 2015 notices.

This case was docketed as C-15-2916 and assigned to me for hearing and decision on June 19, 2015. I consolidated docket numbers C-15-1927 and C-15-2916 for hearing and decision. On January 21, 2016, the parties jointly waived oral hearing and agreed to a decision on the briefs and documentary evidence. On January 27, 2016, I accepted Petitioner’s waiver of oral hearing and set a briefing schedule.

On February 26, 2016, CMS filed its opening brief (CMS Br.). Also on February 26, 2016, Petitioner filed its opening brief (P. Br.). On March 28, 2016, Petitioner filed its reply brief (P. Reply). On March 29, 2016, CMS waived filing a reply brief. CMS filed CMS Exs. 1 through 40 and Petitioner filed P. Exs. 1 through 12. No objections have been made to my consideration of the exhibits submitted and CMS Exs. 1 through 40 and P. Exs. 1 through 12 are admitted as evidence.

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II. Discussion

A. Applicable Law

The statutory and regulatory requirements for participation of a SNF in Medicare are at section 1819 of the Social Security Act (Act) and 42 C.F.R. pt. 483. Section 1819(h)(2) of the Act authorizes the Secretary to impose enforcement remedies against a SNF for failure to comply substantially with the federal participation requirements established by sections 1819(b), (c), and (d) of the Act. The Act requires that the Secretary terminate the Medicare participation of any SNF that does not return to substantial compliance with participation requirements within six months of being found not to be in substantial compliance. Act § 1819(h)(2)(C). The Act also requires that the Secretary deny payment of Medicare benefits for any beneficiary admitted to a SNF, if the SNF fails to return to substantial compliance with program participation requirements within three months of being found not to be in substantial compliance – commonly referred to as the mandatory or statutory DPNA. Act § 1819(h)(2)(D). The Act grants the Secretary discretionary authority to terminate a noncompliant SNF’s participation in Medicare, even if there has been less than six months of noncompliance. The Act also grants the Secretary authority to impose other enforcement remedies, including a discretionary DPNA, CMPs, appointment of temporary management, and a directed plan of correction. Act § 1819(h)(2)(B).

The Secretary has delegated to CMS and the states the authority to impose remedies against a long-term care facility that is not complying substantially with federal participation requirements. “Substantial compliance (complying substantially) means 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 harm.” 42 C.F.R. § 488.301 (emphasis in original). A deficiency is a violation of a participation requirement established by sections 1819(b), (c), and (d) of the Act or the Secretary’s regulations at 42 C.F.R. pt. 483, subpt. B. Therefore, a facility may violate a statutory or regulatory requirement, but it is not subject to enforcement remedies if the violation does not pose a risk for more than minimal harm. The term “noncompliance” refers to any deficiency (statutory or regulatory violation) that causes a facility not to be in substantial compliance; that is, a deficiency that poses a risk for more than minimal harm. 42 C.F.R. § 488.301. State survey agencies survey facilities that participate in Medicare on behalf of CMS to determine whether the facilities are complying with federal participation requirements. 42 C.F.R. §§ 488.10-.28, 488.300‑.335. The regulations specify the enforcement remedies that CMS may impose if a facility is not in substantial compliance with Medicare requirements. 42 C.F.R. § 488.406.

Petitioner was notified in this case that it was ineligible to conduct a NATCEP for two years. Pursuant to sections 1819(b)(5) and 1919(b)(5) of the Act, SNFs and NFs may

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only use nurse aides who have completed a training and competency evaluation program. Pursuant to sections 1819(f)(2) and 1919(f)(2) of the Act, the Secretary was tasked to develop requirements for approval of NATCEPs and the process for review of those programs. Sections 1819(e) and 1919(e) of the Act impose upon the states the requirement to specify what NATCEPs they will approve that meet the requirements that the Secretary established and a process for reviewing and re-approving those programs using criteria the Secretary set. The Secretary promulgated regulations at 42 C.F.R. pt. 483, subpt. D. Pursuant to 42 C.F.R. § 483.151(b)(2) and (f), a state may not approve and must withdraw any prior approval of a NATCEP offered by a skilled nursing or nursing facility that has been: (1) subject to an extended or partial extended survey under sections 1819(g)(2)(B)(i) or 1919(g)(2)(B)(i) of the Act; (2) assessed a CMP of not less than $5,000; or (3) subject to termination of its participation agreement, a DPNA, or the appointment of temporary management. Extended and partial extended surveys are triggered by a finding of “substandard quality of care” during a standard or abbreviated standard survey and involve evaluating additional participation requirements. “Substandard quality of care” is identified by the situation where surveyors identify one or more deficiencies related to participation requirements established by 42 C.F.R. §§ 483.13 (Resident Behavior and Facility Practices), 483.15 (Quality of Life), or 483.25 (Quality of Care) that are found to constitute either immediate jeopardy, a pattern of or widespread actual harm that does not amount to immediate jeopardy, or a widespread potential for more than minimal harm that does not amount to immediate jeopardy and there is no actual harm. 42 C.F.R. § 488.301. Ineligibility to conduct a NATCEP is not an enforcement remedy that either the state agency or CMS have the authority or discretion to impose. 42 C.F.R. § 488.406. Petitioner became ineligible to be approved to conduct a NATCEP for two years by operation of law because the state survey agency cited Petitioner with widespread noncompliance under Tags F223, F225, and F226, which amounted to an allegation of substandard quality of care that triggered an extended or partial extended survey. Petitioner also became ineligible due to the statutory DPNA being triggered on April 22, 2015. I have no authority to declare the ineligibility invalid except to the extent that I conclude that there was no trigger to the ineligibility based on a conclusion that the alleged noncompliance did not occur or that it was not widespread, and the statutory DPNA was not triggered. Petitioner’s two-year period of ineligibility began on January 22, 2015 and ended on January 21, 2017. P. Ex. 8 at 3; 42 C.F.R. § 483.151(b)(2). Although the period of ineligibility has already expired, the ineligibility to conduct a NATCEP remains an issue as it triggers Petitioner’s right to request review of the alleged noncompliance and the scope and severity determinations that triggered the ineligibility to be approved to conduct a NATCEP. In this case, the alleged substandard quality of care triggered an extended or partial extended survey and the ineligibility to conduct a NATCEP. 42 C.F.R. § 498.3(b)(14)(ii) & (16) (finding of substandard quality of care that results in loss of approval of NATCEP is initial determination subject to review).

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The Act and regulations make a hearing before an ALJ available to a long-term care facility against which CMS has determined to impose an enforcement remedy. Act §§ 1128A(c)(2), 1866(h); 42 C.F.R. §§ 488.408(g), 498.3(b)(13). A facility has a right to appeal a “certification of noncompliance leading to an enforcement remedy.” 42 C.F.R. § 488.408(g)(1); see also 42 C.F.R. §§ 488.330(e), 498.3(b)(13). However, the choice of remedies, or the factors CMS considered when choosing remedies, are not subject to review. 42 C.F.R. § 488.408(g)(2). A facility may only challenge the scope and severity level of noncompliance determined by CMS if a successful challenge would affect the range of the CMP that may be imposed or impact the facility’s authority to conduct a NATCEP. 42 C.F.R. § 498.3(b)(14), (d)(10)(i); see, e.g., Ridge Terrace, DAB No. 1834 (2002); Koester Pavilion, DAB No. 1750 (2000). The CMS determination as to the level of noncompliance, including the finding of immediate jeopardy, “must be upheld unless it is clearly erroneous.” 42 C.F.R. § 498.60(c)(2); Woodstock Care Ctr., DAB No. 1726 at 9, 38 (2000), aff’d, Woodstock Care Ctr. v. Thompson, 363 F.3d 583 (6th Cir. 2003). ALJ review of a CMP is subject to 42 C.F.R. § 488.438(e).

The hearing before an ALJ is a de novo proceeding, that is, “a fresh look by a neutral decision-maker at the legal and factual basis for the deficiency findings underlying the remedies.” Life Care Ctr. of Bardstown, DAB No. 2479 at 33 (2012) (citation omitted). The allocation of the burden of persuasion and the quantum of evidence required to meet the burden is not addressed by regulations. Rather, the Board has long held that the petitioner, that is, the nongovernmental party, bears the burden of persuasion to show by a preponderance of the evidence that it was in substantial compliance with participation requirements or any affirmative defense. Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004); Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004), aff’d, Batavia Nursing & Convalescent Ctr. v. Thompson, 129 F. App’x 181 (6th Cir. 2005); Emerald Oaks, DAB No. 1800 (2001); Cross Creek Health Care Ctr., DAB No. 1665 (1998); Hillman Rehab. Ctr., DAB No. 1611 (1997) (remand to ALJ), DAB No. 1663 (1998) (after remand), aff’d, Hillman Rehab. Ctr. v. U.S., No. 98-3789 (GEB), 1999 WL 34813783 (D.N.J. May 13, 1999). The Board has indicated that only when CMS makes a prima facie showing of noncompliance, is the facility burdened to show, by a preponderance of the evidence on the record as a whole, that it was in substantial compliance or had an affirmative defense. Evergreene Nursing Care Ctr., DAB No. 2069 at 7 (2007). The Board has not specified how much evidence CMS needs to present to meet its burden of making a prima facie showing. The Board has stated that CMS must come forward with “evidence related to disputed findings that is sufficient (together with any undisputed findings and relevant legal authority) to establish a prima facie case of noncompliance with a regulatory requirement.” Id.; Batavia Nursing & Convalescent Ctr., DAB No. 1904. “Prima facie” means generally that the evidence is “[s]ufficient to establish a fact or raise a presumption unless disproved or rebutted.” Black’s Law Dictionary 1228 (8th ed. 2004). One might conclude that if the preponderance of the evidence is required in these proceedings, that standard would also apply to the requirement for CMS to make a prima facie showing; that is, CMS should be

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burdened to present evidence sufficient to establish a fact as more likely true and to raise a presumption. However, the Board has never ruled that CMS must establish its prima facie case by a preponderance of the evidence. Indeed, it is unclear from prior Board decisions whether CMS can make a prima facie showing with little more than mere allegations or a scintilla of evidence. In this case, I conclude that CMS has made its prima facie showing by a preponderance of the evidence.

B. Issues

Whether there is a basis for the imposition of an enforcement remedy; and, if so,

Whether the enforcement remedy imposed is reasonable.

C. Findings of Fact, Conclusions of Law, and Analysis

My conclusions of law are set forth in bold text followed by my findings of fact and analysis. I have carefully considered all the evidence and the arguments of both parties, though not all may be specifically discussed in this decision. I discuss in this decision the credible evidence given the greatest weight in my decision-making.“Credible evidence” is evidence that is worthy of belief.  Black’s Law Dictionary 596 (8th ed. 2004).  The “weight of evidence” is the persuasiveness of some evidence compared to other evidence.  Id. at 1625. I also discuss any evidence that I find is not credible or worthy of weight. The fact that evidence is not specifically discussed should not be considered sufficient to rebut the presumption that I considered all the evidence and assigned such weight or probative value to the credible evidence that I determined appropriate within my discretion as an ALJ. There is no requirement for me to discuss the weight given every piece of evidence considered in this case, nor would it be consistent with notions of judicial economy to do so. Charles H. Koch, Jr., Admin. L. & Prac. § 5:64 (3d ed. 2013).

Petitioner disputes that it was not in substantial compliance as alleged by the January and February surveys. Petitioner also urges me to conclude, based on state agency findings, that, if Petitioner was not in substantial compliance, it returned to substantial compliance before April 22, 2015, when the mandatory DPNA was triggered.

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The January survey cited the following noncompliance: 42 C.F.R. §§ 483.13(b), (c)(1)(i) (Tag F223) (s/s F); 483.13(c)(1)(ii)-(iii),;Subsection 42 C.F.R. § 483.13(c)(1)(ii) and (iii) prohibit Petitioner from hiring individuals found guilty by a court of abusing, neglecting or mistreating a resident; and require reporting to the state nurse aide registry and licensing authorities any knowledge of court action against an employee that would indicate unfitness for service as a nurse aide or facility staff.  The facts alleged in this case do not implicate these regulatory provisions and they are not addressed further. (c)(2)-(4) (Tag F225) (s/s F); 483.13(c) (Tag F226) (s/s F); 483.15(a) (Tag F241) (s/s E);;See footnote 3. 483.60(a), (b) (Tag F425) (s/s F); and 483.75 (Tag F490) (s/s F). Jt. Stip. ¶¶ 2, 6-11; CMS Ex. 2; P. Ex. 3 at 3.

The February survey cited the following noncompliance: 42 C.F.R. §§ 483.13(c)(1)(ii)-(iii),See footnote 7. (c)(2)-(4) (Tag F225) (s/s E); 483.13(c) (Tag F226) (s/s E); 483.15 (Tag F240) (s/s E); 483.25(a)(3) (Tag F312) (s/s E); 483.30(a) (Tag F353) (s/s E); and 483.35(f) (Tag F368) (s/s E). Jt. Stip. ¶¶ 12-17; CMS Ex. 23.

1. CMS has not made a prima facie showing of a violation of 42 C.F.R. §§ 483.13(b) and (c)(1)(i).

2. Petitioner violated 42 C.F.R. § 483.13 (c)(2)-(4) (Tag F225) and 483.13(c) (Tag F226).

3. Petitioner’s violations of 42 C.F.R. § 483.13 (c)(2)-(4) (Tag F225) and 483.13(c) (Tag F226) posed a risk for more than minimal harm and caused Petitioner not to be in substantial compliance with program participation requirements.

a. Facts Related to Tags F223, F225, and F226 from the January Survey and Tags F225 and F226 from the February Survey

(i) January Survey

The three cited deficiencies from the January survey involve Certified Nursing Assistant (CNA) York and statements she made related to Resident 17. The state agency investigators allege in the SOD that sometime in December 2014, at an undetermined

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location in Petitioner’s facility, CNA York asked a nurse if there was anything she could give Resident 17 to knock her out because she had been pressing her call light every 5 or 10 minutes. CNA York allegedly stated that she had tape in her car and if the tape did not work she could use a baseball bat. There is no dispute that CNA York made the comments, and she admitted doing so to the state agency investigators. There is no evidence that Resident 17 was present and heard the statements of CNA York. There is also no dispute that Petitioner’s staff did not immediately report the incident to Petitioner’s Administrator or the state agency, or document an investigation of the incident. The complainant was anonymous. State agency investigators concluded that the complaint was substantiated. CMS Ex. 24 at 1-18, 103-04; P. Ex. 12 at 2.

Petitioner argues that there is no evidence that Resident 17 or any other resident heard the statements of CNA York. However, Petitioner does not dispute that a family member of another resident may have heard or heard about the incident. P. Br. at 7; P. Reply at 3. An anonymous complaint was filed with the state agency. CMS Ex. 24 at 1, 10. Therefore, while it is clear that someone was aware of the incident, it is not clear whether the complaint was filed by staff, a resident, family of a resident, or another person.

Petitioner’s Director of Nursing (DON) Andel advised the state agency investigators during her interview that she was informed by another resident’s daughter that CNA York threatened to hit Resident 17 with a bat. DON Andel did not know when the incident occurred, whether it occurred in the dayroom or dining room, or whether anyone may have overheard. CMS Ex. 24 at 3-4, 12-13, 103. DON Andel reportedly told investigators that the incident was not reported to the state because abuse was not substantiated. She also told investigators that no report of an investigation was prepared. CMS Ex. 24 at 4, 13, 103.

Interviews of Petitioner’s staff by state agency investigators revealed that Assistant Director of Nursing (ADON) Rath probably knew of the incident two weeks prior to the survey. CMS Ex. 24 at 4, 13, 103. Licensed Vocational Nurse (LVN) Dunnell and LVN Rathel also had some knowledge of the incident prior to the survey. LVN Rathel reportedly told investigators that another resident’s daughter approached her before January 1, 2015 and alleged that CNA York, while in the TV room, threatened to hit Resident 17 with a baseball bat. CMS Ex. 24 at 5, 14, 104.

Petitioner’s Administrator reportedly told investigators that he understood that DON Andel was told about the incident a couple days after it occurred and action had been taken against CNA York as she was “written up” and moved to a different hall. Petitioner’s Administrator told investigators that he did not see the incident as abuse and, therefore, it was not reported. CMS Ex. 24 at 5, 14, 104.

Petitioner waived an oral hearing and the right to call witnesses and offered only the affidavit of its Administrator (P. Ex. 12). Therefore, Petitioner did not contest or rebut

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the statements of staff recorded by the state investigators. Petitioner’s Administrator’s affidavit is also not inconsistent with the summary of his statements recorded by the surveyors.

The state agency investigators were given an employee counseling record for CNA York dated January 7, 2015. The record shows counseling of CNA York for unprofessional and inappropriate behavior or communication. The form indicates that CNA York was placed on 90 days’ probation and reassigned to a different part of the facility. The form was signed by DON Andel, ADON Cedeno on January 7, 2015, and Petitioner’s Administrator on January 21, 2015. CMS Ex. 24 at 6, 15, 104; CMS Ex. 38 at 52 (Adobe® page counter).

Michel Greer states in his declaration that he led the team of three investigators during the January complaint investigation. CMS Ex. 39 at 2. He confirmed that the SOD for the January survey accurately states the findings and conclusions of his team. CMS Ex. 39 at 2-3.

Investigator notes from the January survey show that investigators interviewed several residents and family members, none of whom expressed concern about verbal abuse by staff. CMS Ex. 24 at 7-8, 16-17. The state investigators also noted that interviews with various staff revealed they were aware of facility policies addressing the prohibition of abuse and reporting procedures and they were aware that Petitioner’s Administrator was Petitioner’s abuse coordinator. CMS Ex. 24 at 5-6, 8, 14-15, 17.

(ii) February Survey

The February survey alleges violation of 42 C.F.R. § 483.13(c) and (c)(2)-(4). Specifically, the surveyors allege that Petitioner failed to report and investigate the alleged abuse of Resident 10 by CNA A; failed to protect Resident 10 from further abuse; and failed to implement its policy prohibiting abuse and its procedures for addressing an allegation of abuse. CMS Ex. 23 at 1-11.

The surveyors allege in the SOD for the February survey that Resident 10 reported that CNA A, while changing the resident’s brief, called the resident “panochona” which the surveyors translate to mean a woman with a huge vagina. The surveyors allege that Petitioner could produce no evidence that the incident was reported to Petitioner’s Administrator, that the incident was investigated, or that Resident 10 was protected from further abuse. CMS Ex. 23 at 2.

Resident 10 told surveyors she reported the incident to another CNA, who confirmed she received the report and relayed the information to the charge nurse. The charge nurse told surveyors she recalled Resident 10 complaining that CNA A was mean to her by taking away her call light, but she did not recall an allegation of name calling. CMS

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Ex. 23 at 4-5. The DON denied any knowledge when questioned by the surveyors. CMS Ex. 23 at 4-5. Petitioner’s Administrator also denied knowledge of the incident when questioned by surveyors. CMS Ex. 23 at 5. The surveyors allege that these facts show Petitioner failed to implement it abuse prevention policies and procedures. CMS Ex. 23 at 6-11.

CMS provided the declaration of Rosaena Sanchez-Mushel, a surveyor with the state agency who drafted the allegations of noncompliance under Tags F225 and F226 for the February survey. She testified that the SOD accurately states her findings. She states that she interviewed Resident 10 who could not recall the date of the incident. However, the complaint received by the state agency indicated that the incident occurred on January 12 or 13, 2015. She testified that she interviewed CNA A who denied the incident but revealed that two charge nurses had discussed the allegation with her. The Administrator told her he had not been notified of the allegation and Petitioner produced no documentation the allegation was reported to either the Administrator or the state agency or that any investigation had been done. CMS Ex. 40.

Petitioner did not deny the allegations of noncompliance under Tags F225 and F226 from the February survey in either prehearing or post-hearing briefing. Petitioner’s Prehearing Brief at 12; P. Br. at 14; P. Reply at 6.

(iii) Petitioner’s Policy

There is no dispute that Petitioner had a policy, revised January 2006, titled “Resident Abuse Prohibition Policy and Procedure” (Petitioner’s Policy). CMS Ex. 37. Petitioner was not cited because the surveyors determined Petitioner’s Policy was inadequate. The surveyors cited Petitioner because the surveyors determined Petitioner failed to implement its policy. The surveyors alleged that Petitioner’s staff did not identify abuse, protect the residents, investigate allegations of abuse, and report allegations of abuse. CMS Ex. 2 at 16; CMS Ex. 23 at 7.

Petitioner’s Policy required, among other things, that:

Any alleged violation involving abuse, neglect, or exploitation of a resident be reported immediately to the Administrator;

The Administrator notify the appropriate agencies;

Management take steps to facilitate the safety of all residents;

Staff assess any resident involved;

The nurse manager conduct an investigation;

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The attending physician and the resident’s responsible party be notified; and

The results of the investigation be delivered to the Administrator.

CMS Ex. 37 at 4-14. CMS did not allege noncompliance under Tag F226 because Petitioner’s Policy was inadequate; and I express no opinion regarding the adequacy of the policy.

b. Analysis

CMS alleges, based on the January survey, noncompliance under Tags F223, F225, and F226, specifically that Petitioner violated 42 C.F.R. § 483.13(b) and (c)(1)(i), (c)(2)-(4), and (c). CMS also alleges that all violations posed widespread risk for more than minimal harm with no actual harm or immediate jeopardy. CMS alleges, based on the February survey, noncompliance under Tags F225 and F226 based on violations of 42 C.F.R. § 483.13(c) and (c)(2)-(4) that was a pattern of noncompliance with no actual harm or immediate jeopardy. The pertinent regulatory provisions are:

(b) Abuse. The resident has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion.

(c) Staff treatment of residents. The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property.

(1) The facility must—

(i) Not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion;

* * * *

(2) The facility must ensure that all alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source, and misappropriation of resident property are reported immediately to the administrator of the facility and to other officials in accordance with State law through established procedures (including to the State survey and certification agency).

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

(4) The results of all investigations must be reported to the administrator or his designated representative and to other officials in accordance with State law (including to the State survey and certification agency) within 5 working days of the incident, and if the alleged violation is verified appropriate corrective action must be taken.

“Abuse means the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting harm, pain, or mental anguish.” 42 C.F.R. § 488.301 (italics in original). In Beverly Health and Rehabilitation Center – Williamsburg, DAB No. 1748 (2000), an appellate panel of the Board addressed a single citation of deficiency based on violation of 42 C.F.R. § 483.13(b). Before the Board, the predecessor agency to CMS argued that its case was based on neglect and not abuse. The Board upheld the ALJ determination that the agency failed to make a prima facie case. The Board interpreted 42 C.F.R. § 483.13(b) as follows:

[A] finding of noncompliance with section 483.13(b) on its face implies a failure (deliberate or negligent) by a facility to protect a resident from abuse, i.e., from a willfully inflicted injury resulting in harm (physical or mental).

Beverly-Williamsburg, DAB No. 1748 (published decision includes no page numbers). The Board specifically noted that “the entire definition of abuse is qualified by the requirement that the harm (mental or physical) be inflicted willfully.” Beverly-Williamsburg, DAB No. 1748. Thus, the Board appeared to conclude that an abusive act must have been committed willfully and with the intent to cause mental or physical harm. In Merrimack County Nursing Home, DAB No. 2424 (2011), a different panel of the Board rejected the position of the panel in Beverly-Williamsburg, stating the Board did not “specifically endorse or adopt the ‘intent to harm’ analysis of the ALJ” or define the term willful or hold that willful necessarily required intent to cause injury or harm. The panel stated that willful and intentional are not the same. The Board cited prior decisions that interpreted willful in the definition of abuse in 42 C.F.R. § 488.301 to mean that the

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actor acted deliberately. The Board found that it is unnecessary for CMS to show that the actor intended to cause injury or harm. Merrimack, DAB No. 2424 at 4-6.

(i) January Survey Tag F223The surveyors did not charge Petitioner with noncompliance under Tag F223 based on the facts related to CNA A and Resident 10 as found during the February survey, even though those facts may come closer to establishing actual abuse of a resident.

CMS alleges that CNA York’s statements were abuse. It is not disputed that CNA York made a statement related to knocking out Resident 17, or to using tape or a bat on Resident 17. The preponderance of the evidence shows that the statement was made in a public area, such as the dayroom, television room, or dining room and residents or family were present at the time and may have heard the statement. Clearly, someone heard or heard about the statement because an anonymous complaint was filed with the state agency. There is no evidence that Resident 17 actually heard or heard about the statement of CNA York. There is also no dispute that CNA York intended to make the statement. Under the definition of abuse and the interpretations of various panels of the Board, there is no requirement for CMS to make a prima facie showing that CNA York intended to actually cause injury or harm to Resident 17. However, CMS must as part of its prima facie case show that there was some injury or harm to a resident as required by the definition of abuse.

Petitioner agreed as part of its participation in Medicare as a SNF to protect its resident’s right to be free from verbal, sexual, physical, and mental abuse. 42 C.F.R. § 483.13. Abuse, per the regulatory definition, requires the “willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting harm, pain, or mental anguish.” 42 C.F.R. § 488.301. CNA York’s statement, a threat to silence a resident with tape or a bat, is clearly intimidating to any resident who may have heard. However, it is not sufficient to speculate about whether the intimidation may have resulted in harm, pain, or mental anguish. The regulatory definition of abuse clearly requires a showing of “resulting” harm, pain, or mental anguish due to the intimidating statement of CNA York. CMS has failed to produce any evidence of resulting harm, pain, or mental anguish suffered by a resident. Indeed, the evidence provided by the state agency investigators shows it was more likely than not that no resident suffered due to CNA York’s statement. Alert residents were interviewed during the survey and none reported knowledge or concerns about verbal abuse by staff. CMS Ex. 24 at 7-8, 16-17. The investigator’s report that they observed Resident 17 and that she was attentive and verbal with appropriate responses to questions through her interview. However, the investigators do not report whether they asked Resident 17 about knowledge of CNA York’s statement or whether she had any concern about verbal abuse. Therefore, there is

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no evidence of a statement by Resident 17 that she was aware of or concerned about any abuse by staff.

I conclude that CMS has failed to make a prima facie showing that Petitioner violated 42 C.F.R. § 483.13(b) and (c)(1)(i) by failing to protect any resident from abuse based on the statement of CNA York.

(ii) January and February Surveys Tag F225.

The allegation under Tag F225 from both surveys is that Petitioner violated 42 C.F.R. § 483.13(c)(2), (3), and (4) by failing to ensure that:

Allegations of abuse were reported immediately to the Administrator, the state agency and other officials as required under state law;

Petitioner had evidence that alleged abuse was thoroughly investigated;

Residents were protected from further potential abuse during the investigation; and

Results of the investigation were reported to the administrator, the state survey agency, or other state officials within five working days of the incident.

CMS Ex. 2 at 8-10; CMS Ex. 23 at 1-2.

This regulation “explicitly requires reporting of the results of all investigations of abuse, not merely those that substantiate abuse.” Singing River Rehab. & Nursing Ctr., DAB No. 2232 at 8 (2009) (emphasis in original). The regulation requires that all allegations of mistreatment, neglect, or abuse, including eyewitness accounts of possible sexual abuse, be immediately reported to the administrator and other officials in accordance with state law. 42 C.F.R. § 483.13(c)(2). Appellate panels of the Board have held that, “for reporting allegations of abuse to the state, ‘the salient question is not whether any abuse in fact occurred or whether [a facility] had reasonable cause to believe that any abuse occurred, but whether there was an allegation that facility staff had abused a resident.’” Britthaven, Inc., d/b/a Britthaven of Smithfield, DAB No. 2018 at 15 (2006) (quoting Cedar View Good Samaritan, DAB No. 1897 at 11 (2003)).

The evidence shows and Petitioner does not dispute that the conduct of CNA York and CNA A were not immediately reported to Petitioner’s Administrator, the state agency and other officials. No investigation was conducted by Petitioner of the alleged conduct. No residents were protected from potential further abuse by CNA York and CNA A. Petitioner retained no evidence of an investigation as none was conducted. Finally, Petitioner did not report the results of its investigation to Petitioner’s Administrator, the state survey agency or other state officials within five working days of the incidents.

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Petitioner’s only argument is that there was no verbal abuse. P. Br. at 6-9; P. Reply at 2-4. I have concluded that CMS failed to make a prima facie showing that Petitioner failed to protect Resident 17 from verbal abuse in violation of 42 C.F.R. § 483.13(b) and (c)(1)(i). However, the fact verbal abuse is not shown does not excuse Petitioner of its failure to comply with the requirements of 42 C.F.R. § 483.13(c)(2), (3), and (4). It is not disputed that CNA York and CNA A made statements that were potentially intimidating, belittling, or harassing and could result in mental harm. The comments were reported to Petitioner’s supervisory nursing staff and the DON, but they failed to recognize the potentially abusive nature of the statements. The allegation of abuse triggers the obligation to comply with the regulation. The facility has no opportunity to investigate an allegation before complying with the regulation. Petitioner can cite no authority for the proposition that the failure of Petitioner’s staff to recognize an allegation of abuse is a defense. Petitioner violated 42 C.F.R. § 483.13(c)(2), (3), and (4) and that violation posed a risk for more than minimal harm.

(iii) January and February Surveys Tag F226

In examining whether a facility has implemented policies and procedures prohibiting abuse, neglect, mistreatment, and misappropriation, the Board has held that the issue under 42 C.F.R. § 483.13(c) is, “whether the circumstances presented, viewed as a whole, demonstrate a systemic problem in implementing policies and procedures” to prevent abuse. Columbus Nursing & Rehab. Ctr., DAB No. 2247 at 27 (2009) (citing Liberty Commons Nursing & Rehab Ctr. – Johnston, DAB No. 2031 at 14 (2006), aff’d, Liberty Commons Nursing & Rehab Ctr. – Johnston v. Leavitt, 241 F. App’x 76 (4th Cir. 2007)).

There is strong evidence in this case of Petitioner’s systemic problem implementing its policy required by 42 C.F.R. § 483.13(c). The evidence clearly shows that Petitioner’s supervisory staff failed to recognize and treat the statements of CNA York and CNA A as potentially abusive and failed to take the actions required by 42 C.F.R. § 483.13(c)(2), (3), and (4). Petitioner’s supervisory staff also failed to comply with Petitioner’s Policy (CMS Ex. 37 at 4-14) that required immediate reporting to Petitioner’s Administrator and state officials, protection of residents potentially affected, investigation, notification of physicians and responsible parties, and delivery of the final report of investigation to the Administrator for reporting to state officials. Accordingly, I conclude that Petitioner failed to implement its policy as required by 42 C.F.R. § 483.13(c).

4. Petitioner did not return to substantial compliance before the statutory DPNA was triggered on April 22, 2015.

5. Petitioner did not return to substantial compliance until April 29, 2015 as determined by CMS.

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6. A statutory DPNA is reasonable as a matter of law.

I have concluded that Petitioner was not in substantial compliance with program participation requirements, specifically 42 C.F.R. § 483.13(c) and (c)(2), (3), and (4), based on the findings of the surveys completed in January and February 2015. Based on the undisputed facts, noncompliance actually began when CNA York made her statements at about the end of December 2014 and Petitioner’s staff failed to react in accordance with policy and regulations. Petitioner continued not to be in substantial compliance under Tags F225 and F226 as determined by the February survey based on violation of the same regulatory provisions, and the facts related to the incident involving CNA A and Resident 10. The surveyors alleged other noncompliance in both the January and February surveys. However, it is not necessary for me to address other allegations of noncompliance from those surveys, because the statutory DPNA was triggered in this case by three months of alleged noncompliance. The evidence shows Petitioner was not in substantial compliance under Tags F225 and F226 as of the end of the January survey on January 22, 2015 and continuing through the February survey. The issue is whether or not Petitioner returned to substantial compliance before the statutory DPNA was triggered on April 22, 2015. Further, CMS did impose a directed in-service training in this case specifically related to the violations of 42 C.F.R. § 483.13(c) and (c)(2), (3), and (4) only and no other noncompliance, which is significant for the reasons discussed hereafter.

The gist of Petitioner’s argument if I conclude that there was noncompliance, is that the state agency found that Petitioner corrected all deficiency citations before April 22, 2015. Petitioner argues that because the state agency found the deficiencies corrected, the statutory DPNA was not triggered and did not go into effect. P. Br. at 14-18; P. Reply at 6-7. The evidence shows that the state agency found Petitioner corrected the deficiencies cited by the January and February surveys not later than February 13, 2015. However, CMS did not conclude that Petitioner returned to substantial compliance based on the state agency findings and imposed directed in-service training of Petitioner’s staff related to 42 C.F.R. § 483.13(c) (Tags F225 and F226). P. Ex. 6. CMS found that Petitioner returned to substantial compliance on April 29, 2015. CMS Ex. 1 at 1; Jt. Stip. ¶ 4.

a. Facts

On January 22, 2015, and February 12, 2015, the state agency completed surveys of Petitioner’s facility, concluding Petitioner was not in substantial compliance with program participation requirements including noncompliance under Tags F225 and F226. Jt. Stip. ¶ 2; CMS Exs. 1 at 1; 2; 23; P. Exs. 8 at 1; 9 at 1. By letter dated February 5, 2015, the state agency informed Petitioner that a statutory DPNA would begin

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April 22, 2015, unless Petitioner returned to substantial compliance before that date. P. Ex. 8 at 2.The state agency assertion that it was imposing the statutory DPNA beginning April 22, 2015, was legal error.  Congress requires that the Secretary impose the statutory DPNA if a SNF fails to return to substantial compliance within three months of being found not in substantial compliance.  Act § 1819(h)(2)(D).  The Secretary and CMS have no discretion under section 1819(h)(2)(D) to delegate authority to the state agency to determine whether or not to impose a statutory DPNA.  CMS has no discretion to stop the statutory DPNA, which continues to prevent payment for new admissions to the SNF until the SNF returns to substantial compliance or its provider agreement is terminated.  42 C.F.R. §§ 488.412, 488.417(b)(1), (c), 488.454(a).

The state agency determined that Petitioner corrected all noncompliance found by both surveys, including the noncompliance cited by both surveys under Tags F225 and F226, not later than February 13, 2015. P. Exs. 3, 4.

CMS notified Petitioner on April 24, 2015, two days after the statutory DPNA was triggered, that it had completed an administrative review and determined to impose the additional enforcement remedy of directed in-service training of all staff related to Tags F223, F225, and F226 and sensitivity training for all staff. CMS specified that the directed in-service training would be based on a written reference document that would include all course content and be available for future reference and training, and include a pre-test, post-test, and a follow-up after six weeks. CMS informed Petitioner that termination would occur on July 22, 2015, and that the statutory DPNA was effective on April 22, 2015. P. Ex. 6.

On June 3, 2015, CMS notified Petitioner that it determined Petitioner achieved substantial compliance on April 29, 2015. CMS advised that Petitioner’s provider agreement would not be terminated and that the statutory DPNA was in effect April 22 through April 28, 2015. CMS Ex. 1.

b. Analysis

I have concluded that Petitioner was not in substantial compliance under Tags F225 and F226 as determined by the survey that ended on January 22, 2015. Petitioner continued not to be in substantial compliance with the same program participation requirements based on the February survey. The state agency determined that Petitioner corrected all noncompliance found by both surveys, including the noncompliance cited by both surveys under Tags F225 and F226, not later than February 13, 2015. P. Exs. 3, 4. Normally, I would accept evidence that the state agency determined that all

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noncompliance was corrected as strong and possibly determinative evidence that a facility returned to substantial compliance on about the date of correction of all noncompliance. However, in this case there is evidence that CMS did not agree with the state agency that Petitioner returned to substantial compliance on about February 13, 2015, the date the state agency found Petitioner corrected all deficiencies. The CMS determination controls under the regulations.

A state survey agency certification is a recommendation to CMS, and it is CMS that determines whether a provider or supplier is eligible to participate in or be covered by Medicare. 42 C.F.R. § 488.12(a). A determination that a SNF has returned to substantial compliance, thus ending either a statutory or discretionary DPNA, is contingent on a revisit survey or written credible evidence acceptable to CMS. 42 C.F.R. § 488.417(c), (d). A CMS determination that a facility did not return to substantial compliance takes precedence over a conflicting state agency determination. 42 C.F.R. § 488.452(a)(2). Thus, under the regulations, CMS has discretion to impose enforcement remedies, even if not recommended by the state agency and even if such action conflicts with the state agency recommendation. Directed in-service training is an authorized enforcement remedy that either the state or CMS may impose if a facility has deficiencies and education is likely to correct the deficiencies. If a facility has not achieved substantial compliance following the training, CMS or the state may impose other authorized enforcement remedies. 42 C.F.R. § 488.425.

In this case, the evidence shows that CMS notified Petitioner on about April 24, 2015, of its determination that Petitioner must complete in-service training for all staff related to the requirements of 42 C.F.R. § 483.13 and sensitivity training. The CMS determination clearly shows that CMS did not accept the state agency recommendation that Petitioner corrected all noncompliance by February 13, 2015. CMS was well within its discretion to make the determination and to require the directed in-service training in order for Petitioner to return to substantial compliance with the program participation requirements of 42 C.F.R. § 483.13. There is no question that the CMS determination that noncompliance continued until April 29, 2015, takes precedence over the state agency determination that Petitioner corrected all deficiencies by February 13, 2015. 42 C.F.R. § 488.452(a)(2).

Furthermore, Petitioner has no right to challenge the CMS determination to impose the enforcement remedy of directed in-service training. A facility may appeal a certification of noncompliance that leads to an enforcement remedy. However, a facility may not appeal the choice of the enforcement remedy or challenge the factors considered by CMS in selecting the remedy. 42 C.F.R. § 488.408(g). The CMS choice of alternative enforcement remedies to impose is not subject to review by an ALJ or the Board. 42 C.F.R. § 498.3(d)(11), (14).

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The facility bears the burden of demonstrating that it returned to substantial compliance at a date earlier than that determined by CMS. West Texas LTC Partners, Inc., d/b/a Cedar Manor, DAB No. 2652 at 18 (2015) (citing Chicago Ridge Nursing Ctr., DAB No. 2151 at 26 (2008)); Cmty. Northview Care Ctr., DAB No. 2295 at 15 (2009). Petitioner relies heavily upon the determinations of the state agency for its argument it returned to substantial compliance with the requirements of 42 C.F.R. § 483.13(c) prior to April 22, 2015. I have carefully considered the affidavit of Petitioner’s Administrator in which he focuses upon the position that no abuse occurred rather than detailing the corrective action taken by Petitioner. P. Ex. 12. I also considered carefully Petitioner’s plans of correction for both the January and February surveys. P. Exs. 1, 2, 10. I do not find that Petitioner’s evidence shows it more likely than not that it corrected its noncompliance cited under Tags F225 and F226. Petitioner’s plans of correction state Petitioner provided in-service training completed by January 23, 2015 (P. Ex. 1 at 3-6) and again by February 13, 2015 (P. Ex. 2 at 5 1-5). However, Petitioner’s evidence does not show how Petitioner verified that its staff actually could identify potential abuse and knew the requirements and procedures required when there is an allegation or evidence of potential abuse. I treat the state agency determination that Petitioner corrected all noncompliance as some evidence that noncompliance was corrected. However, given all the evidence in this case, including the affidavit of Petitioner’s Administrator and the plans of correction for both surveys, I conclude that the state agency determination is insufficient to establish Petitioner actually returned to substantial compliance prior to April 22, 2015. How the state agency determination should be treated has been addressed inconsistently by the Board. In Grace Living Center – Northwest OKC, the Board reversed in part a grant of summary judgment concerning the date that Grace Living returned to substantial compliance. DAB No. 2633 at 6-9 (2015). The Board rejected the view that it was “irrelevant” that the Oklahoma State Department of Health (OSDH) had found that as of November 12, 2013, Grace Living had corrected the sole instance of noncompliance cited following a November 1, 2013 survey and thereby returned to substantial compliance. Id. at 4, 8; Grace Living Ctr. – Northwest OKC, DAB CR3347 at 4 (2014). The Board found OSDH’s finding significant enough, when combined with other evidence, to raise a genuine issue of material fact as to whether Petitioner had returned to substantial compliance at a date (November 12, 2013) earlier than that determined by CMS (January 7, 2014). DAB No. 2633 at 4-5, 8-9. The Board treated OSDH’s finding as evidence supporting a finding that Grace Living had achieved substantial compliance earlier than alleged by CMS. Id. at 8-9. The Board observed that “OSDH’s finding that [Grace Living] had returned to substantial compliance on [November 12, 2013,] is not binding on CMS” and that “[w]hile OSDH is not required to provide its reason for finding substantial compliance, the absence of an explanation means that the state determination may reasonably have less persuasive weight to the ALJ.” Id. at 9. While the Board’s observations suggest that any unexplained finding by the state agency that a facility has corrected deficiencies and returned to substantial compliance may be given less weight, they do not undermine the basic premise that such

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a finding is evidence supporting a finding that the facility indeed corrected those deficiencies.

The Board reached a seemingly contradictory conclusion in West Texas LTC Partners, Inc., d/b/a Cedar Manor, DAB No. 2633 (2015). In that case, the Texas survey agency conducted an initial survey of West Texas’s facility in December 2013, which revealed multiple deficiencies. DAB No. 2633 at 1, 3-4. West Texas argued that it returned to substantial compliance on a date (January 16, 2014) earlier than that determined by CMS (February 1, 2014) and cited as its sole support a Post-Certification Revisit Report form completed by state surveyors, “which state[d] ‘Correction Completed 1/16/2014’ next to a recitation of each deficiency cited” during the initial December 2013 survey. Id. at 17-19. The Board rejected this argument, holding that “West Texas has provided no evidence that it actually achieved compliance by January 16, 2014[,] but only cites the dates the State agency determined it corrected the previously cited deficiencies.” Id. at 18 (emphasis added). Despite the Board’s treatment of a similar finding by OSDH as evidence in Grace Living, the Board appears in West Texas to have treated the Texas survey agency’s finding as non-evidence. However, in upholding the Board’s decision, the Fifth Circuit treated the Texas survey agency’s findings as evidence when making the following observations: “[T]he burden to prove that a facility has returned to substantial compliance is on the facility, not CMS. [West Texas] has not provided evidence to meet that burden beyond the [Texas survey agency’s] finding . . . .” West Texas LTC Partners, Inc. v. Dep’t of Health & Human Servs., 843 F.3d 1043, 1049 (5th Cir. 2016) (internal footnote omitted) (citing Chicago Ridge, DAB No. 2151 at 17). Despite a possible conflict between the opinions of two different appellate panels of the Board, I conclude it is appropriate to treat the state agency findings that Petitioner corrected all deficiencies as evidence to that effect. However, no explanation for those findings is in evidence, and considering Petitioner’s plans of correction and the affidavit of Petitioner’s Administrator, I conclude Petitioner has not met its burden to show by a preponderance of the evidence that it returned to substantial compliance with the requirements of 42 C.F.R. § 483.13(c) before April 29, 2015.

Petitioner complains that the state agency and CMS never informed Petitioner that its plan of correction was not acceptable. Petitioner complains that it was not notified that in-service training related to 42 C.F.R. § 483.13 was required before it could be found to have returned to substantial compliance. Petitioner complains that the DPNA was triggered on April 22, 2015, and CMS did not impose the directed in-service enforcement remedy until April 24, 2015, effectively depriving Petitioner of the ability to correct the noncompliance before the DPNA went into effect. Petitioner also asserts that the CMS action was punitive because it ensured that the statutory DPNA would be triggered before Petitioner could complete the in-service training. P. Br. at 17-20. Petitioner asserts that CMS violated its revisit policy. P. Reply at 7-10. While Petitioner’s frustration is apparent, Petitioner cites no legal authority in support of any of its complaints that suggests that there are grounds to grant Petitioner relief. Further, Petitioner understood

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its burden in this case to establish it returned to substantial compliance by a preponderance of the evidence. However, Petitioner simply presented insufficient evidence to show it was more likely than not that it returned to substantial compliance before the statutory DPNA was triggered. Although Petitioner points to CMS policy regarding when revisits should be conducted, Petitioner can point to no statute or regulations the require revisit surveys at a particularly time or any Board decision that supports applying that policy adversely as Petitioner advocates in this case. To the extent Petitioner’s argument could be construed to be for estoppel based on the CMS policy, estoppel against the federal government, if available at all, is presumably unavailable absent “affirmative misconduct,” such as fraud. See, e.g., Pacific Islander Council of Leaders, DAB No. 2091 at 12 (2007); Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 421 (1990). Petitioner presented no evidence of any affirmative misconduct by either the state agency or CMS in this case. Petitioner’s arguments may also be viewed as tantamount to requests for equitable relief, but I have no authority to grant such relief. US Ultrasound, DAB No. 2302 at 8 (2010).

III. Conclusion

For the foregoing reasons, I conclude that Petitioner returned to substantial compliance with program participation requirements under 42 C.F.R. § 483.13(c) effective April 29, 2015. A statutory DPNA was triggered and in effective from April 22 through April 28, 2015. The statutory DPNA is reasonable as a matter of law.