Lindberg Crossing Senior Living, DAB CR5560 (2020)

Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division

Lindberg Crossing Senior Living,
(CCN: 15-5690),
Petitioner,

v.

Centers for Medicare & Medicaid Services,
Respondent.

Docket No. C-17-779
Decision No. CR5560
March 19, 2020

DECISION

Petitioner, Lindberg Crossing Senior Living (Petitioner or facility) is a skilled nursing facility (SNF) located in Anderson, Indiana, certified by and participating in the Medicare and Medicaid programs. Based on a complaint investigation and partial extended survey completed on January 20, 2017, the Centers for Medicare & Medicaid Services (CMS) determined that Petitioner was not in substantial compliance with Medicare participation requirements. As a result of its determination, CMS imposed three per-instance civil money penalties (CMPs) against Petitioner. Petitioner sought review, and the parties filed cross-motions for summary judgment.

As explained herein, I grant Petitioner’s motion for summary judgment and deny CMS’s motion. Petitioner remained in substantial compliance with program participation requirements, and there is no basis for imposing an enforcement remedy.

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I. Background

Petitioner is a SNF doing business in Anderson, Indiana that participates in the Medicare and Medicaid programs. Surveyors from the Indiana State Department of Health (ISDH or state agency) completed a complaint investigation and partially extended survey at Petitioner’s facility on January 20, 2017. On February 1, 2017, ISDH advised Petitioner that it found Petitioner substantially noncompliant with the following three Medicare program participation requirements, all cited at the immediate jeopardy level: Tag F223 (42 C.F.R. § 483.12)1 at scope/severity (s/s) level “J;” Tag F225 (42 C.F.R. § 483.12(a)(3)-(4) and (c)(1)-(4)) at s/s level “J;” and Tag F226 (42 C.F.R. §§ 483.12(b)(1)-(3) and 483.95(c)(1)-(3)) at s/s level “J.”2

ISDH informed Petitioner that it would impose a mandatory denial of payment for new admissions (DPNA) effective April 20, 2017. The state agency recommended CMS impose the following remedies: (1) a CMP of $3,950 for one day, effective January 19, 2017, (2) a $650 per-day CMP effective January 20, 2017, until Petitioner achieved substantial compliance; and (3) termination of Petitioner’s Medicare provider agreement if Petitioner did not achieve substantial compliance by July 20, 2017. CMS Ex. 2. ISDH also advised Petitioner that because the facility had been subject to an extended or partial extended survey resulting in a finding of substandard quality of care, federal law required the state agency to withdraw approval of Petitioner’s nurse aide training and competency evaluation program (NATCEP), and bar it from offering or conducting such a program for two years. Id. at 4-5.

On March 2, 2017, ISDH conducted a revisit survey and concluded Petitioner had returned to substantial compliance as of January 21, 2017. CMS Ex. 3. As a result, the state agency rescinded imposition of the DPNA on March 7, 2017.

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On March 31, 2017, Petitioner timely filed a hearing request with the Civil Remedies Division. The case was docketed as C-17-514 and Administrative Law Judge Scott Anderson was designated to hear and decide this matter. On April 7, 2017, Judge Anderson issued an Acknowledgment and Pre-hearing Order (APHO) that set forth deadlines by which the parties were required to file their pre-hearing exchanges, including briefs, exhibits, witness lists, and the direct testimony of any witnesses identified. APHO at 3. Judge Anderson’s APHO also set a timeframe for the parties to move for summary judgment, and specified that a hearing in this matter would only be deemed necessary if either party requested to cross-examine the opposing party’s witnesses. Id. at 4, 6.

On May 24, 2017, CMS advised Petitioner of the final status for remedies related to the January 2017 survey. CMS rescinded the mandatory DPNA and the termination of Petitioner’s participation agreement and imposed a per-instance CMP of $6,988 for each of the three deficiencies (Tag F223, Tag F225, and Tag F226) cited at the immediate jeopardy level, for a total amount of $20,964. CMS also informed Petitioner of its right to request a hearing. CMS Ex. 4.

On June 7, 2017, Petitioner filed another hearing request with the Civil Remedies Division to challenge CMS’s imposition of the CMP indicated above. The case was docketed as C-17-779 and assigned to Judge Anderson, who consolidated docket numbers C-17-514 and C-17-779 on June 16, 2017. Judge Anderson advised the parties that the APHO issued in C-17-514 remained in effect, and confirmed new pre-hearing submission deadlines.

On July 11, 2017, Petitioner filed a motion for summary judgment (P. Br.). On August 25, 2017, this matter was transferred to me to hear and decide. On September 7, 2017, CMS filed its pre-hearing exchange, as well as a combined pre-hearing brief, motion for summary judgment, and response to Petitioner’s summary judgment motion (CMS Br.). On September 29, 2017, Petitioner filed a combined reply brief in support of its summary judgment motion and response to CMS’ summary judgment motion (P. Reply).3 CMS filed a reply on November 3, 2017 (CMS Reply).

II. Other motions

The parties filed additional motions during the pendency of this case. On September 7, 2017, CMS filed an unopposed motion to exclude personal details about Resident C from my decision in order to protect her privacy interests, as my decision would ultimately be available to the public on the Departmental Appeals Board (DAB) website and legal databases. CMS asked me to exclude information such as [REDACTED]

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[REDACTED]. I find good cause to grant CMS’s motion. The parties will receive an unredacted version of this decision by means of the DAB E-file system, which is not accessible to the public. CMS will then have 14 days to provide me and Petitioner a proposed redacted version of my decision. Petitioner will then have seven days to object to CMS’s proposed redactions. I will then make revisions as appropriate and direct the redacted version be uploaded for use as the publicly posted version on the DAB website.

On November 6, 2017, Petitioner filed a motion to strike a sentence and its accompanying citation from CMS’s reply brief. Petitioner argues CMS misrepresented the law when it cited a DAB case but failed to note the case was subsequently reversed by a federal appellate court. CMS responds that its omission of the citation’s subsequent history was inadvertent, but that in any case, CMS did not misstate the law reflected in its citation. CMS contends Petitioner failed to show it was prejudiced by the incomplete citation.

Petitioner’s motion is denied. The proper vehicle to counter a bad legal argument is to make a good legal argument, not to move to strike every sentence or legal citation to which a party may object. Further, CMS’s omission of the subsequent history from a case citation does not compel the conclusion that the citation misrepresents the law. Indeed, the appellate court did not address or disturb the legal principle relied upon by CMS in its citation before me. Petitioner’s motion is therefore denied as both procedurally and substantively meritless.

III. Admission of Exhibits

Petitioner filed one exhibit, P. Ex. 1, with its motion for summary judgment. Absent objection from CMS, it is admitted into the record.

CMS filed 30 exhibits with its combined pre-hearing submission, motion for summary judgment, and opposition to Petitioner’s motion for summary judgment. CMS identified the exhibits as CMS Exs. 1 through 30. Petitioner objected to CMS Exs. 24 and 28, which are CMS’ witnesses’ declarations, on grounds that the testimony contained therein is “incorrect,” “unreliable,” and “biased.” P. Reply at 18-22. Petitioner also objected to CMS Exs. 25-27 on grounds that the exhibits are irrelevant. P. Reply at 18, 23. Petitioner’s objections go to the weight that I should accord the exhibits and not their admissibility. Accordingly, I overrule Petitioner’s objections and admit CMS Exs. 1-30 into the record.

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IV. Issues

A. Whether summary judgment is appropriate;

B. Whether Petitioner was in substantial compliance with Medicare participation requirements at 42 C.F.R. § 483.12(a)(1) (Tag F223), 42 C.F.R. § 483.12(a)(3)-(4) and (c)(1)-(4) (Tag F225), and 42 C.F.R. § 483.12(b)(1)-(3) and 42 C.F.R. § 483.95(c)(1)-(3) (Tag F226) at the time of the survey completed on January 20, 2017; and

C. If Petitioner was not in substantial compliance, whether the CMPs imposed by CMS are reasonable.

V. Jurisdiction

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

VI. Discussion

A. Applicable Legal Authority

1. Evidentiary standards for deficiencies

The Act sets requirements for SNFs to participate in the Medicare program. The Act authorizes the Secretary of the United States Department of Health and Human Services (Secretary) to promulgate regulations implementing those statutory provisions. Act § 1819 (42 U.S.C. § 1395i-3). The Secretary’s regulations are found at 42 C.F.R. pts. 483 and 488.

A facility must maintain substantial compliance with program requirements in order to participate in the program. To be in substantial compliance, a facility’s deficiencies may “pose no greater risk to resident health and safety than the potential for causing minimal harm.” 42 C.F.R. § 488.301.

The Secretary contracts with state agencies to conduct periodic surveys to determine whether SNFs are in substantial compliance with the participation requirements. Act § 1864(a) (42 U.S.C. § 1395aa(a)); 42 C.F.R. § 488.10. The Act also authorizes the Secretary to impose enforcement remedies against SNFs that do not comply with the participation requirements. Act § 1819(h)(2) (42 U.S.C. § 1395i-3(h)(2)). The regulations specify the enforcement remedies that CMS may impose if a facility is not in substantial compliance. 42 C.F.R. § 488.406. Among other enforcement remedies, CMS

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may impose a per-day CMP for the number of days a facility is out of substantial compliance or a per-instance CMP for each instance of noncompliance. 42 C.F.R. § 488.430(a).

Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Pub. L. No. 114-74, 129 Stat. 584, 599, CMS increased CMP amounts beginning August 1, 2016, to account for inflation. The adjusted CMP amounts apply to deficiencies cited after November 2, 2015. See 81 Fed. Reg. 61,538 (Sept. 6, 2016). The deficiencies alleged in this case occurred after November 2, 2015, meaning Petitioner’s alleged deficiencies were subject to the increased CMP amounts.

If CMS imposes a CMP based on a noncompliance determination, then the facility may request a hearing before an ALJ to determine whether there was a basis for the deficiency findings that led to the imposition of the remedy and whether the CMP imposed was reasonable. Act §§ 1128A(c)(2) (42 C.F.R. § 1320a-7a(c)(2)), 1819(h)(2)(B)(ii) (42 C.F.R. § 1395i(h)(2)(B)(ii); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13). However, the facility may not appeal CMS’s choice of remedies. 42 C.F.R. § 488.408(g)(2).

CMS has the burden to produce evidence sufficient to make a prima facie case that Petitioner is out of substantial compliance with participation requirements to establish a basis to impose an enforcement remedy. See, e.g., Evergreene Nursing Care Ctr., DAB No. 2069 at 7 (2007). If CMS makes this prima facie showing, then Petitioner bears the ultimate burden of persuasion as to whether it substantially complied. In other words, Petitioner must show, by a preponderance of the evidence on the record as a whole that it was in substantial compliance with participation requirements. Id. Petitioner has both the burden of coming forward and the burden of persuasion as to any affirmative defense. Evergreene Nursing Care Ctr., DAB No. 2069 at 7; Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004), aff’d, Batavia Nursing & Convalescent Ctr. v. Thompson, 129 F. App’x 181 (6th Cir. 2005).

2. Standard for summary judgment

Summary judgment is appropriate in cases where 42 C.F.R. Part 498 applies if there is no genuine dispute of any material fact and the moving party is entitled to judgment as a matter of law. Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 750 (6th Cir. 2004); CRDP § 19(a). A “genuine” dispute exists if “the evidence is such that a reasonable [trier of fact] could return a verdict for the nonmoving party,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and a “material” fact is one “that, if proven, would affect the outcome of the case under governing law.” Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010).

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To obtain summary judgment, the moving party must show that there is no genuine dispute of material fact requiring an evidentiary hearing and that it is entitled to judgment as a matter of law. Mission Hosp. Reg’l Med. Ctr., DAB No. 2459 at 5 (2012). If the moving party meets this initial burden, the non-moving party must “come forward with ‘specific facts showing that there is a genuine issue for trial . . . .’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “To defeat an adequately supported summary judgment motion, the non-moving party may not rely on the denials in its pleadings or briefs, but must furnish evidence of a dispute concerning a material fact — a fact that, if proven, would affect the outcome of the case under governing law.” Senior Rehab., DAB No. 2300 at 3.

In evaluating a motion for summary judgment, an ALJ does not address credibility or evaluate the weight of conflicting evidence. Holy Cross, DAB No. 2291 at 5. Rather, in examining the evidence to determine the appropriateness of summary judgment, an ALJ must draw all reasonable inferences in the light most favorable to the non-moving party. See Brightview Care Ctr., DAB No. 2132 at 10 (2007) (upholding summary judgment where inferences and views of non-moving party are not reasonable). “[A]t the summary judgment stage the judge’s function is not . . . to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, drawing factual inferences in the light most favorable to the non-moving party does not require that I accept the nonmoving party’s legal conclusions. Cedar Lake Nursing Home, DAB No. 2344 at 7 (2010).

3. Applicable regulatory requirements

The Secretary’s regulations in effect at the time of the survey define “abuse” in a skilled nursing facility to be:

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.

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42 C.F.R. § 483.5 (eff. Nov. 28, 2016). “Sexual abuse” is defined as “non-consensual sexual contact of any type with a resident.” Id. “Mistreatment” means the “inappropriate treatment or exploitation of a resident.” Id. “Exploitation” is defined as “taking advantage of a resident for personal gain through the use of manipulation, intimidation, threats, or coercion.” Id.

A facility resident “has the right to be free from abuse, neglect, misappropriation of resident property, and exploitation as defined in [42 C.F.R. pt. 483, subpt. B]. 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.” 42 C.F.R. § 483.12. The facility must “[n]ot use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion.” 42 C.F.R. § 483.12(a)(1).

A facility must not employ or otherwise engage individuals who have either been found guilty of abuse, neglect, exploitation, misappropriation of property, or mistreatment, or who have been listed on a State nurse aide registry concerning abuse, neglect, exploitation, mistreatment of residents or misappropriation of their property, or whose professional license has been subject to a disciplinary action as a result of a finding of abuse, neglect, exploitation, mistreatment of residents or misappropriation of resident property. 42 C.F.R. § 483.12(a)(3). The facility must “[r]eport to the State nurse aide registry or licensing authorities any knowledge it has of actions by a court of law against an employee, which would indicate unfitness for service as a nurse aide or other facility staff.” 42 C.F.R. § 483.12(a)(4).

The regulations also require a facility to take the following actions in response to allegations of abuse, neglect, exploitation, or mistreatment:

(1) the facility must ensure that all alleged violations are reported immediately to the facility administrator and appropriate state officials, either within 2 or 24 hours depending on the circumstances;
(2) the facility must have evidence that all alleged violations are thoroughly investigated;
(3) it must prevent further potential abuse, neglect, exploitation, or mistreatment while the investigation is in progress; and
(4) the facility must report the results of all investigations to the administrator or designated representative and to the appropriate state officials within 5 working days of the incident, and take appropriate action if the violation is verified.

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42 C.F.R. § 483.12(c)(1)-(4).

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

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

B. Undisputed Facts

The deficiencies alleged by CMS stem from a relationship between a facility resident, Resident C, and one of Petitioner’s employees, Employee #14.4 Resident C [REDACTED]. CMS Ex. 12 at 1, 6, 15. [REDACTED]. CMS Ex. 12 at 15. Resident C’s December 31, 2016 Minimum Data Set (MDS) Assessment indicated she was cognitively intact.5 See CMS Ex. 1 at 2. There is no dispute between the parties that Resident C was mentally competent and exhibited no cognitive impairments that would affect her capacity to consent to such a relationship. CMS Br. at 23.

Employee #14 was a 29-year-old male. CMS Ex. 16 at 12. He successfully completed the 105-hour state nurse aide training program at Petitioner’s facility, and Petitioner hired him as a nurse aide student on November 23, 2016. CMS Ex. 16 at 1, 3-4. Employee #14 received both general employee and certified nursing assistant orientation on

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November 23, 2016. CMS Ex. 16 at 6-11. On that date, Employee #14 signed a statement titled “Abuse Policy,” in which he affirmed that he had “read and under[stood] the abuse policy of Lindberg Crossing Senior Living on 11-23-16.” CMS Ex. 16 at 5.

On January 3, 2017, Resident C reported to Petitioner’s Administrator that she had been in a “relationship” with Employee #14. CMS Ex. 22 at 1; CMS Ex. 20 at 5. Resident C stated the relationship had ended and described it “as being together like boyfriend and girlfriend.” CMS Ex. 22 at 1. Resident C told the Administrator that she was not afraid of Employee #14 but felt that he was stalking her. When questioned by the Administrator, Resident C stated that Employee #14 had never forced himself upon her or hurt her, and that when he touched her, it was consensual. CMS Ex. 20 at 5; CMS Ex. 22 at 1-2. Employee #14 was not on duty at the time Resident C reported the relationship. Petitioner’s Administrator initiated an investigation regarding Resident C and Employee #14. CMS Ex. 20 at 1.

On January 3, 2017, Petitioner’s Social Services Director (who had witnessed the earlier conversation between Resident C and the Administrator), the acting DON, and a nurse consultant interviewed Resident C. CMS Ex. 22 at 6-7, 12-13, 17-18; see CMS Ex. 20 at 6-8. Resident C told them that she and Employee #14 “had been boyfriend and girlfriend for approximately a month” until they broke up shortly before Christmas. In response to their questions, Resident C stated that she and Employee #14 had consensual sexual intercourse “two or three times” but “was fearful of them getting in trouble.” CMS Ex. 20 at 6; CMS Ex. 22 at 6. According to Resident C, the sexual activity “would happen in her room . . . when the other staff was on a break outside.” CMS Ex. 20 at 6.

Resident C stated that other than bringing her water, Employee #14 had not provided her care because she had requested that only female staff provide her care. CMS Ex. 20 at 6; CMS Ex. 22 at 6-7. Resident C stated that her family was aware of the relationship. CMS Ex. 22 at 7. A mental anguish assessment was performed during the meeting, and Resident C “denied being fearful of ‘Employee #14’ or having any other issues regarding ‘Employee #14.’” Id. The Social Services Director noted she discovered that Resident C had been seen by a psychiatric services nurse practitioner earlier in the day, prior to her seeing the Administrator. Resident C had not mentioned her relationship in her conversation with the nurse practitioner, nor had she exhibited any anxiety, concerns, or odd behaviors. CMS Ex. 20 at 1, 7; CMS Ex. 22 at 7.

On January 3, 2017, around 9:30 p.m., Petitioner’s Administrator and Activity Director confronted Employee #14 before his overnight shift and asked him about his relationship with Resident C. Employee #14 stated that he and Resident C had become emotionally involved a few weeks before Christmas but denied having any sexual relations with Resident C. CMS Ex. 22 at 2-3, 8-9; see CMS Ex. 20 at 21. Petitioner’s Administrator suspended Employee #14 on January 3, 2017, pending the investigation results. CMS Ex. 22 at 3. On or about January 3 or 4, 2017, Petitioner’s Administrator reported the

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relationship between Resident C and Employee #14 to the state agency. P. Req. for Hrng., Ex. J.

Petitioner’s Director of Operations/administrative consultant and a nurse consultant interviewed Resident C on January 4, 2017. CMS Ex. 22 at 15, 20-21; see CMS Ex. 20 at 12-13. Consistent with her previous statements, Resident C stated that she and Employee #14 had been dating and the relationship “included consensual sexual intercourse.” CMS Ex. 22 at 15, 20.

During the facility’s investigation, a staff person stated she had heard a rumor that Resident C and Employee #14 had conversed about pornography, but had not taken any action upon hearing it. CMS. Ex. 22 at 10-11. According to the surveyors’ investigation, another member of staff indicated she overheard Resident C talking about “dating” an employee. Another member of staff reported she heard a rumor about Resident C’s suspected relationship with Employee #14 and brought it to the DON’s attention, and understood the DON told Employee #14 to end the relationship. CMS Ex. 1 at 13-14.

On January 4, 2017, Petitioner contacted the local police. That same day, a police officer came to the facility and interviewed Petitioner’s Administrator, the Director of Operations, one of the nurse consultants, and Resident C. According to the police incident report, Resident C stated that she had given her cell phone number to Employee #14 when he asked for it, and, after having phone conversations with him for about a week or so, they started dating. Resident C confirmed she engaged in sexual activity with Employee #14, and stated it was consensual but she also feared he could lose his job and she would get in trouble. When asked if Employee #14 forced her to have sex, Resident C stated that “it was consensual and they were dating.” CMS Ex. 23 at 2.

Resident C stated she and Employee #14 broke up two days before Christmas. The police officer taking her report informed Petitioner’s Administrator that Resident C had “said the sex was consensual so [the police] would not have any criminal charges on [Employee #14] at this time.” CMS Ex. 23 at 2-3; see CMS Ex. 22 at 3. The police took no further action.

One of Petitioner’s nurse consultants spoke with [REDACTED] on January 4, 2017. They indicated they were aware Resident C had a consensual relationship with Employee #14; [REDACTED] stated she had met Employee #14 during their relationship. [REDACTED] explained she did not report the relationship to the facility because she believed she had to respect Resident C’s “independent decision to engage in a relationship with ‘Employee #14’.” CMS Ex. 22 at 18-19.6

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On January 4, 2017, at her request, Resident C underwent testing for [REDACTED] sexually-transmitted diseases. CMS Ex. 12 at 3, 22-25. On January 5, 2017, the Social Services Director put Resident C on daily one-to-one visits secondary to the “potential for fear/anxiety due to issues [with] relationship as well as grief due to the loss of [REDACTED] and other family & friend losses. Res. seen by psych services as well.” CMS Ex. 12 at 7.

Petitioner revised its abuse prevention policy in early January 2017 and held in-service training on the revised policy for all staff on January 3 and 4, 2017. CMS Ex. 21. On January 6, 2017, Petitioner terminated Employee #14. CMS Ex. 16 at 1; CMS Ex. 22 at 3. In its termination notice to him, Petitioner stated, “[a]s Lindberg Crossing prohibits relationships between an employee and a resident of any type beyond professional caregiver-to-resident interaction, and the facility could not confirm or deny the extent of any type of relationship between the resident and the nursing assistant student, the facility deems it appropriate to end employment of [Employee #14.]” CMS Ex. 16 at 1.

C. Findings of Fact and Conclusions of Law7

1. CMS may allege regulatory violations not cited in the SOD.

As an initial matter, the parties dispute the scope of violations at issue before me. The SOD based on the underlying survey asserted noncompliance under 42 C.F.R. §§ 483.12 and 483.95(c)(1)-(3), describing allegations related to sexual abuse and the failure to investigate it. However, in its initial brief before me, CMS also argued the provisions of 42 C.F.R. § 483.12 pertaining to exploitation and mistreatment would also apply. CMS. Br. at 13, 15, 23-24; CMS Reply at 3-4. Petitioner argues that CMS cannot assert regulatory violations before me that were not specifically cited in the SOD. P. Reply at 1-5.

Petitioner’s argument is without merit. As CMS correctly observes, the SOD “is a notice document, and is not designed to lay out every single detail in support of a finding that a violation has been committed.” CMS Br. at 23, quoting Pac. Regency Arvin, DAB No. 1823 at 9 (2002). Here, the violations outlined in the SOD are the basis for CMS’s allegations that a resident suffered sexual abuse, exploitation, or mistreatment. Petitioner has had more than ample notice of the claim against it, and has been provided every opportunity to contest it. Thus, for purposes of this decision, I have considered whether the facts set forth in the SOD state a deficiency that falls within the meaning of sexual abuse, exploitation, or mistreatment, as those terms are set forth at 42 C.F.R. § 483.12.

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2. Resident C’s relationship with Employee #14 did not constitute sexual abuse of Resident C by Employee #14 within the meaning of the regulations because it was consensual.8

CMS first contends that as a matter of law, the regulatory definition of sexual abuse necessarily includes both non-consensual and consensual sexual relationships where facility employees are involved. 42 C.F.R. § 483.12 mandates a facility resident “has the right to be free from abuse, neglect, misappropriation of resident property, and exploitation as defined in [42 C.F.R. pt. 483, subpt. B].” The regulation prohibits verbal, mental, sexual, or physical abuse. 42 C.F.R. § 483.12(a)(1). 42 C.F.R. § 483.5 defines “sexual abuse” as “non-consensual sexual contact of any type with a resident.” (emphasis added).

Although the plain language of the regulation defining sexual abuse appears to undermine CMS’s position, CMS nevertheless argues that 42 C.F.R. § 483.5 “does not define the term ‘non-consensual,’ and does not examine whether a nursing home resident’s putative consent to a sexual relationship is controlling when the other participant in the relationship is a nursing home employee.” CMS Reply at 2-3.

CMS’s effort to strain the plain language of the regulatory definition to mean its precise opposite is unavailing. It would be absurd for the drafters to define sexual abuse as non-consensual contact if they intended to include certain types of consensual contact in the definition of sexual abuse. It is equally absurd to claim the drafters did not contemplate the possibility that the definition of sexual abuse might be applied in a situation involving a nursing home employee, given the same regulation prohibiting sexual abuse includes, in the same subsection, a provision prohibiting employment of individuals with a history of abuse. 42 C.F.R. § 483.12(a)(3). Therefore, I reject CMS’s argument that the regulations on their face prohibit a consensual relationship between facility employees and residents.

CMS nevertheless contends that focusing on consent “misses the mark” because even with Resident C’s consent, Employee #14’s conduct constituted “abuse, mistreatment and/or exploitation under the regulations.” CMS Br. at 1-2. CMS argues that 42 C.F.R. § 483.12’s broad protective scope and supporting regulatory framework do not permit a sexual or other non-professional relationship between a resident and a facility employee.

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To support that assertion, CMS relies on its State Operations Manual (SOM)9 to argue Petitioner violated 42 C.F.R. § 483.12’s demand to keep its residents free of abuse, neglect, misappropriation, or exploitation. The version of the SOM cited by CMS does state a relationship between a facility resident and employee (outside a pre-existing relationship) would be considered sexual abuse:

Nursing home staff are expected to recognize that engaging in a sexual relationship with a resident, even an apparently willingly engaged and consensual relationship, is not consistent with the staff member’s role as a caregiver and will be considered an abuse of power. . . . Any sexual relationship between a staff member and a resident with or without diminished capacity may constitute sexual abuse in the absence of a sexual relationship that existed before the resident was admitted to the facility, such as a spouse or partner, and must be thoroughly investigated. However, in a rare situation, it may not be considered to be sexual abuse when a nursing home employee has a pre-existing sexual relationship with an individual (i.e., spouse or partner) who is then admitted to the nursing home, unless there are concerns about the relationship not being consensual.

SOM, CMS Pub. 100-07, Appendix PP (Tag F600 § 483.12) (eff. Nov. 28, 2017). CMS Ex. 30 at 1-2, 6, 32-33.

CMS’s argument fails here because the effective date of the revised SOM guidance is November 28, 2017, well after the January 20, 2017 survey that gave rise to the deficiency citation. At the time of the survey, the preceding version of the SOM would have been in effect and relied upon by the surveyors. CMS does not suggest the prior version of the SOM contained guidance to surveyors instructing them to deem all consensual sexual relationships between a nursing home employee and resident as sexual abuse.10 Without CMS’s perspective codified in the SOM, surveyors and facilities would have relied on the regulations to assess whether CMS would consider a relationship

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between a facility resident and employee abusive. CMS simply failed to put anyone on notice at the time of the survey that it held the view it expressed eleven months later.

CMS next argues Petitioner knew a consensual relationship between Resident C and Employee #14 amounted to a deficiency under the regulations because the facility’s employee training materials reflected that prohibition, and the facility amended its own abuse policy after the events at issue here to prohibit relationships between facility employees and residents. CMS Reply at 1-2. But the facility’s abuse prevention policy as of November 2016, in effect at the time of the relationship at issue, mirrored CMS’s regulations in defining “abuse,” “mistreatment,” and “exploitation.” CMS Ex. 14 at 1. The policy relied on CMS’s own regulation to define “sexual abuse” as “[n]on-consensual sexual contact of any type with a resident [that] [i]ncludes, but is not limited to, sexual harassment, sexual coercion, or sexual assault.” CMS Ex. 14 at 1; 42 C.F.R. § 483.5. It is clear that the facility, relying expressly on CMS’s regulations, articulated an abuse policy in which it believed a consensual relationship between a facility employee and resident was not prohibited. The fact that Petitioner amended its policy after an incident that exposed it to regulatory enforcement does not mean the facility was aware of its exposure prior to the incident.

CMS also points to Petitioner’s employee training policy to show Petitioner knew it should have prohibited a consensual relationship between a facility resident and employee, a policy which itself reflected the professional standard of practice for nurse aides in Indiana. It is true that Indiana’s nurse aide training curriculum effective November 2015 stated “[a]ny sexual relationship with a resident is considered to be abuse.” CMS Ex. 25 at 20 (emphasis in original). The state agency’s “Incident Reporting Policy” further provides “staff to resident sexual contact” and even “romantic and/or inappropriate relationship[s] between staff and resident that [do] not involve physical intimacy” are considered abuse and mistreatment which must be “report[ed] under Federal and State rules.”11 CMS Ex. 24 at 2; CMS Ex. 27 at 2-3.

Petitioner incorporated these principles into its own nurse aide training curriculum, which states “[a]ny sexual relationship with a resident is considered to be abuse.” CMS Ex. 15 at 1. And consistent with that policy, Petitioner terminated Employee #14 for “relationships between an employee and a resident of any type beyond professional caregiver-to-resident interaction.” CMS Ex. 16 at 1.

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CMS correctly observes an inconsistency in the definition of sexual abuse between state professional standards, as reflected in Petitioner’s training materials and Indiana’s nurse aide training curriculum, and the facility’s November 2016 abuse prevention policy; the former forbid a consensual relationship between a facility employee and resident while the latter permits it.

However, there is no reason to expect that the standards by which health care professionals meet their professional obligations under state law would precisely mirror federal regulatory compliance standards for skilled nursing facilities, which are set forth as minimum conditions of participation. See 42 C.F.R. § 488.301 (requiring only “substantial compliance” by skilled nursing facilities as a level of compliance necessary to meet federal standards for participation).

Here, it appears Petitioner’s employee training standards were consistent with state guidelines for training health care professionals, while its abuse prevention policies were consistent with federal compliance regulations concerning abuse prevention. This distinction does not suggest Petitioner had an obligation to impose higher standards than those required by federal regulations, which, as I have discussed already, did not expressly forbid consensual relationships between facility employees and residents. As Petitioner correctly argues, if a facility fails to meet its own standard and that standard exceeds the federal regulatory standard, the facility has not thereby failed to meet the federal regulatory standard.12

For the foregoing reasons, CMS has not established that its regulations, either specifically or as part of a broader framework, prohibited consensual relationships between facility residents and employees as a condition of participation. Nor has it demonstrated that this prohibition could be inferred from the SOM applicable at the time, or that based on its own abuse policy or its training policy for nurse aides, Petitioner understood the regulations to demand such a prohibition.

3. Resident C’s consensual relationship with Employee #14 did not trigger Petitioner’s obligation to investigate suspicions of abuse, mistreatment, or exploitation.

CMS alleges Petitioner violated its obligation under the regulations to implement its written policies and procedures to prevent abuse, neglect, and exploitation when its employees ignored sexually oriented rumors regarding Resident C and Employee #14

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that should have raised suspicions of abuse, mistreatment, or exploitation of Resident C. CMS Br. at 16-17.

The regulation prohibits facilities from permitting abuse, neglect, misappropriation of resident property, and exploitation or employing individuals who have a history of engaging in these prohibited behaviors. 42 C.F.R. § 483.12(a)(1),(3). The regulation also requires facilities to report allegations of abuse, neglect, exploitation, or mistreatment to the facility administrator and state officials, thoroughly investigate any allegations, prevent further instances during the investigation, report the results of that investigation within five days, and take appropriate action should a violation be confirmed. 42 C.F.R. § 483.12(c)(1)-(4).

Consistent with these regulatory requirements, Petitioner’s abuse prevention policy required alleged violations to be “thoroughly investigated”; that any further potential abuse, neglect, exploitation, or mistreatment be prevented during the pendency of an investigation; and that “all alleged violations, including mistreatment, neglect or abuse, including injuries of unknown source, misappropriation of resident property and exploitation are reported immediately to the administrator of the facility.” CMS Ex. 14 at 2; see also 42 C.F.R. § 483.12(c)(1)-(3). Petitioner’s policy stated that “[i]t is the responsibility of every employee of this facility to not only report abuse situations, but also suspicion of abuse and unusual observations and/or circumstances, to his/her supervisor.” CMS Ex. 14 at 4.

CMS argues that facility staff was aware of rumors that Resident C and Employee #14 were dating and had sexually oriented conversations, and that these rumors should have raised suspicions of abuse or mistreatment and qualified as “unusual observations and/or circumstances” under Petitioner’s abuse prevention policy. CMS Br. at 17.

Specifically, CMS avers Employee #2 overheard Resident C mention dating an employee. CMS Br. at 17, citing CMS Ex. 1 at 13. Employee #1 indicated she overheard Resident C “venting” to another resident when she discovered Employee #14’s engaged status. CMS Ex. 1 at 13. Employee #9 heard a rumor that the resident and Employee #14 discussed pornography. CMS Br. at 17, citing CMS Ex. 1 at 14. Employee #11 indicated Employee #14 once went into Resident C’s room while not working to watch a movie with her. CMS Br. at 17, citing CMS Ex. 1 at 15. Employee #12 reported she, Employee #1, and Employee #2 reported the rumors to the facility Administrator.13 CMS Ex. 1 at 15.

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Taking these characterizations to be true, as I must for purposes of resolving Petitioner’s summary judgment motion, the mere existence of rumors of an otherwise permissible relationship does not, on its own, signal possible abuse, mistreatment, or exploitation. I do not suggest that rumors of a relationship between a resident and employee can never trigger an investigation or reporting obligation. However, the record here lacks features that would suggest Resident C was in danger of more than a minimal risk of harm, features that, coupled with the existence of the resident-employee relationship, would have obliged facility staff to report or investigate further.

Critically, there was no indication that Resident C was in any way limited in her capacity to consent. Facility staff in a position to report such rumors would be familiar with Resident C’s medical condition; they would have known Resident C was mentally unencumbered and had no cognitive impairments that affected her ability to consent to a relationship. Resident C’s treatment notes from November 8, 2016 to January 2, 2017 similarly fail to reveal she expressed any fears, concerns, or issues regarding Employee #14 to her treaters.

There is also no indication in the record that the relationship between Resident C and Employee #14 was anything but consensual. In response to questioning by the facility Administrator14 and local police, Resident C stated that she had dated Employee #14 and that the relationship was consensual. CMS Ex. 20 at 5, CMS Ex. 22 at 1-2; CMS Ex. 23 at 2. She consistently maintained that Employee #14 had never forced himself on her or hurt her. CMS Ex. 20 at 5; CMS Ex. 22 at 2, 3; CMS Ex. 23 at 2. When Resident C was given a mental anguish assessment, she “denied being fearful of ‘Employee #14’ or having any other issues regarding ‘Employee #14.’” CMS Ex. 22 at 7. In fact, Resident C disclosed her relationship to [REDACTED], and [REDACTED] met Employee #14. CMS Ex. 22 at 18-19. It is noteworthy that [REDACTED] did not deem the relationship to be of potential harm [REDACTED] and report it to the facility or local police.

Equally significant, Employee #14 never provided care to Resident C or could have been involved in any aspect of her care. As the facility staff would have known, Resident C had insisted on only female staff members caring for her. CMS Ex. 20 at 6; CMS Ex. 22 at 6-7. The fact that it would have been essentially impossible for Employee #14 to rely on his caregiving role to coerce Resident C into consenting to interact with him undermines CMS’s contention that the mere existence of the relationship carried with it a potential for harm in this case.

In sum, Resident C was a fully competent adult who consented to interact with Employee #14, and there were no other corroborating signs of abuse, mistreatment, or exploitation by Employee #14. I find the rumors cited by CMS, in the absence of any other indicators

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or suggestions of abuse or mistreatment, were insufficient to signal to facility staff that Resident C was exposed to potential harm.

CMS also argues Petitioner’s inadequate implementation of its policy can be demonstrated by the fact that in response to Resident C and Employee #14’s relationship coming to light, it re-educated its employees to “immediately report inappropriate conversations” to the Administrator. CMS Br. at 17; CMS Ex. 20 at 9; CMS Ex. 22 at 15. The record shows, however, that the requirement for staff to report inappropriate conversations between staff and residents appears to have been included as part of the January 2017 in-service training staff received on the revised abuse prevention policy.15

The change in policy may very well have been driven by the disclosure of Resident C’s relationship with Employee #14, but the fact remains the training provided in January 2017 to facility staff was not “re-education” but instead training on a change in policy. There is nothing in the record to suggest that the prior version of the abuse prevention policy in effect at the time of Resident C’s relationship with Employee #14 obliged facility staff to report all rumors of consensual relationships between facility residents and employees.

Because the rumors involving Resident C and Employee #14 neither suggested a possible abuse situation nor rose to the level of an allegation of abuse, mistreatment, or exploitation, Petitioner’s staff had no duty under Petitioner’s abuse prevention policy to report the rumors or investigate them further. Accordingly, CMS has not established Petitioner was noncompliant with the reporting and investigation requirements set forth in 42 C.F.R. § 483.12(c)(1)-(4).

4. Even if the evidence establishes a cognizable violation under 42 C.F.R. § 483.12 and its relevant subsections, the violation posed no risk for more than minimal harm to Resident C.

Even if there had been a cognizable violation under 42 C.F.R. § 483.12 and its relevant subsections, the violation would have posed no risk for more than minimal harm to Resident C, and thus, would not have amounted to noncompliance. Under the regulations, a facility is not in substantial compliance when it has a deficiency that creates the potential for more than minimal harm to one or more residents. 42 C.F.R. § 488.301. CMS is authorized to impose enforcement remedies only when it determines that a facility is not in substantial compliance. 42 C.F.R. § 488.402(b).

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Here, even if I found the consensual relationship between Resident C and Employee #14 to be indicative of potential sexual abuse, or if I found facility staff should have reported and investigated rumors regarding Resident C and Employee #14, CMS would still have had the burden to show that there was a potential for more than minimal harm to Resident C resulting from her relationship with Employee #14. I conclude that CMS would not have satisfied this burden.

CMS argues that Resident C suffered harm in the form of emotional distress, anxiety, and physical symptoms around the time she reported the relationship. CMS Br. at 14-15. Among other things, CMS notes that Resident C stated she felt Employee #14 was stalking her, she felt “‘uncomfortable’ at times” when he stared at her, and voiced a concern about possibly [REDACTED]. CMS Br. at 14-15; CMS Reply at 6-8; CMS Ex. 12 at 13.

Even accepting Resident C’s characterizations as ‘harm,’ the record does not support attribution of her distress or anxiety to the relationship. As CMS acknowledges, Resident C was grieving the losses of relatives and friends, and she was also anxious about [REDACTED] health. CMS Br. at 10; CMS Ex. 12 at 6-7, 13.

A review of the social service progress notes from November 8, 2016 to January 2, 2017, reveals that Resident C voiced no concerns or issues regarding Employee #14. CMS Ex. 12. When the facility’s Social Services Director conducted a mental anguish assessment on January 3, 2017, following Resident C’s reporting of her relationship, Resident C denied having: changes in eating or sleeping habits; feelings of hopelessness or despair; anxiety symptoms, panic attacks, or fearfulness; withdrawal from normal routines or relationships; or increased agitation. CMS Ex. 12 at 12.

As part of that assessment the Social Services Director wrote that “[r]esident states anxiety [and] family health concerns, . . . [REDACTED] has cancer, but nothing related to incident. Resident only states she feels ‘uncomfortable’ at times when she feels employee ‘stares at her.’” CMS Ex. 12 at 13 (emphasis added). On January 5, 2017, two days later, Resident C “offered no further explanation of the extent of the relationship” and reported that “she is sleeping and eating well.” CMS Ex. 12 at 14. Resident C related “she feels safe in the facility and denies any increased anxiety at this time.” Id.

In short, there is nothing to suggest that Resident C had issues or concerns with respect to Employee #14 or her past relationship with him from its conclusion. To the extent Resident C experienced emotional distress and physical symptoms, she appears to have attributed it to family health concerns. CMS Ex. 12 at 13. I therefore find no evidence in the record that Resident C suffered or was exposed to a risk for anything more than minimal harm as a result of the relationship.

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5. There is no basis for the imposition of an enforcement remedy because Petitioner remained in substantial compliance.

Petitioner was in substantial compliance with program participation requirements during the January 20, 2017 survey. Accordingly, there is no basis for the imposition of enforcement remedies.

VII. Conclusion

I conclude that there was no abuse of Resident C by Employee #14 under the regulations, and, therefore, Petitioner was in substantial compliance with 42 C.F.R. § 483.12(a)(1). Resident C’s consensual relationship with Employee #14 was not prohibited under Petitioner’s abuse prevention policy then in effect and did not constitute abuse under the policy. Further, Petitioner did not fail to take any actions relating to the reporting and investigation of abuse or abuse allegations nor did it fail to develop and implement written policies and procedures regarding abuse prevention. Thus, I conclude that Petitioner was also in substantial compliance with 42 C.F.R. §§ 483.12(c)(1)-(4), 483.12(b)(1)-(3), and 483.95(c)(1)-(3). For these reasons, I grant summary judgment in favor of Petitioner. Petitioner remained in substantial compliance with program participation requirements, and there is no basis for imposing an enforcement remedy.

/s/

Bill Thomas Administrative Law Judge

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Lindberg Crossing Senior Living, DAB CR5560 (2020)

Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division

Lindberg Crossing Senior Living, (CCN: 15-5690), Petitioner,

v.

Centers for Medicare & Medicaid Services, Respondent.

Docket No. C-17-779Decision No. CR5560March 19, 2020