Northgate Care Center, DAB CR5766 (2020)

DECISION

Following a survey by the Iowa Department of Inspections and Appeals (state agency), the Centers for Medicare & Medicaid Services (CMS) concluded that Northgate Care Center (Petitioner or facility) was not in substantial compliance with Medicare participation requirements at 42 C.F.R. § 483.13(b), (c)(1)(i).I apply the regulations in effect at the time of the survey.  See Carmel Convalescent Hosp., DAB No. 1584 at 2 n.2 (1996).  CMS determined that Petitioner's noncompliance posed immediate jeopardy to resident health and safety and imposed a civil money penalty (CMP) of $11,791 per day for a single day.  Petitioner requested a hearing to challenge CMS's findings and the remedy imposed.

For the reasons explained in this decision, I conclude that Petitioner was in substantial compliance with the Medicare participation requirements at issue.  Accordingly, CMS lacked a basis to impose a CMP.

I.  Background and Procedural History

Petitioner is a skilled nursing facility (SNF) located in Waukon, Iowa.  See, e.g., CMS Exhibit (Ex.) 1 at 1.  Surveyors from the state agency completed a complaint survey of

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Petitioner's facility on November 9, 2016.  Id.  In a letter dated January 23, 2017, CMS informed Petitioner that, based on the state agency's survey findings, CMS determined that the facility was not in substantial compliance with Medicare participation requirements.  See Docket Entry 1a in the Departmental Appeals Board (DAB) Electronic Filing System (E-File).Neither party offered in evidence a copy of the notice letter imposing the CMP.  I therefore cite to the copy of the notice letter that Petitioner filed with its hearing request.  CMS further informed Petitioner that it was imposing a per‑day CMP of $11,791 per day for a single day of noncompliance, November 1, 2016.  Id.

Petitioner timely requested a hearing, and the case was assigned to me.  I issued an acknowledgment and prehearing order (Prehearing Order) establishing a briefing schedule.  In accordance with the schedule, CMS and Petitioner filed prehearing exchanges, including prehearing briefs (CMS Br. and P. Br., respectively), exhibit and witness lists, and proposed exhibits.  As part of its prehearing exchange, CMS offered the written direct testimony of one witness.  CMS Ex. 3.  Petitioner offered the written direct testimony of eight witnesses.  P. Exs. 11, 20-26.  Petitioner requested to cross‑examine CMS's witness.  CMS did not request to cross-examine Petitioner's witnesses.

On April 19, 2018, I held a hearing via video-teleconference (VTC), and a transcript (Tr.) was made of the proceeding.  I presided from the Departmental Appeals Board office in Washington, D.C.  Counsel for each party, and CMS's witness, appeared via VTC from the United States District Court for the Southern District of Iowa in Des Moines.  J.R. "Lynn" Böes, Esq., represented Petitioner.  Harry Mallin, Assistant Regional Counsel, represented CMS.  I admitted CMS Exs. 1-3 and P. Exs. 1-32 into the record.  During the hearing, counsel for Petitioner cross-examined a state agency surveyor who participated in the survey of Petitioner's facility.

Following the hearing, each party submitted a post-hearing brief (CMS Posthrg. Br.; P. Posthrg. Br.) and a reply brief (CMS Reply; P. Reply).

II.  Issues

The issues in this case are:

1. Whether Petitioner failed to comply substantially with Medicare participation requirements; and, if not,
2. Whether the CMP amount is reasonable.

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III.  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).

IV.  Discussion

A.  Statutory and Regulatory Framework

The Act sets requirements for SNF participation in the Medicare program.  The Act authorizes the Secretary of Health & 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. part 483.

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 or safety than the potential for causing minimal harm."  42 C.F.R. § 488.301.  A deficiency is a violation of a participation requirement established by sections 1819(b), (c), and (d) of the Act (42 U.S.C. § 1395i-3(b), (c), and (d)), or the Secretary's regulations at 42 C.F.R. pt. 483, subpt. B.  "Noncompliance" means "any deficiency that causes a facility to not be in substantial compliance."  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, 488.20.  The Act and regulations require that facilities be surveyed on average every twelve months, and more often if necessary, to ensure that identified deficiencies are corrected.  Act § 1819(g)(2)(A) (42 U.S.C. § 1395i-3(g)(2)(A)); 42 C.F.R. §§ 488.20(a), 488.308.

Regarding the specific participation requirements at issue in the present case,The deficiency citation incorporates both 42 C.F.R. § 483.13 subsection (b) and subsection (c)(1)(i).  Subsection (c)(1)(i) prohibits a facility from abusing its residents.  In the present case, there is no allegation that Petitioner or its staff abused a resident.  Therefore, the issue is whether Petitioner failed to protect its residents' rights to be free from abuse, consistent with 42 C.F.R. § 483.13(b). the regulations require facilities to ensure that residents are free from abuse:

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

42 C.F.R. § 483.13(b).

The regulations define "abuse" as follows:

Abuse means the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish. 

42 C.F.R. § 488.301.

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

1.  I find the following facts by a preponderance of the evidence.

Resident 1To protect their privacy, I refer to the residents at issue by the numerical identifiers assigned during the survey.  See CMS Ex. 2 at 21.

On November 1, 2016, Resident 1 was a 61-year-old man with diagnoses that included Parkinson's disease, unspecified dementia with behavioral disturbance, altered mental status, hallucinations, other depressive episodes, and high risk heterosexual behavior.  CMS Ex. 2 at 68-69; see also P. Ex. 12 at 15-16.  One member of Petitioner's nursing staff described Resident 1's Parkinson's disease as "severe."  CMS Ex. 2 at 178.  Resident 1 was prescribed medication for his Parkinson's that was administered in accordance with a 24-hour schedule.  Id. at 79 (medication to be administered during the night shift at 12:00 midnight, 3:00 a.m., and before 6:00 a.m.); see also id. at 178.  Resident 1 also had a brain stimulator which was apparently intended to treat his Parkinson's disease.The record also refers to this device using the acronym "DBS," which stands for deep brain stimulation.  See, e.g., CMS Ex. 2 at 143.  Petitioner's medical records for Resident 1 do not state explicitly that Resident 1 received the stimulator to treat his Parkinson's.  I infer, however, that it is more likely than not that it was inserted for this purpose.  See P. Ex. 14 at 2; see also CMS Ex. 2 at 80.  DBS is a recognized surgical treatment for Parkinson's disease.  See http://www.parkinsons.org/parkinsons-treatment.html (last visited Oct. 9, 2020).

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Resident 1's Minimum Data Set (MDS) assessment, dated August 10, 2016, documented that he scored 8 on the Brief Interview for Mental Status (BIMS).BIMS scores are categorized into 3 levels:  intact/borderline cognition (13–15), moderate cognitive impairment (8–12), and severe cognitive impairment (0–7).  See, e.g., Kali S. Thomas et al., The Minimum Data Set 3.0 Cognitive Function Scale, 55 Med. Care e68, e69 (2017) (online article), available at https://insights.ovid.com/crossref?an=00005650-201709000-00011 (last visited Oct. 8, 2020).  Thus, Resident 1's BIMS score of 8 falls in the moderately impaired range, bordering on severely impaired.  CMS Ex. 2 at 74.  The MDS assessment reflected that Resident 1 was independent with most activities of daily living (ADLs), except that he required some assistance with bathing.  Id. at 76-77.  The MDS assessment noted that, at least during the lookback period, Resident 1 did not exhibit any behavioral symptoms.  P. Ex. 12 at 11.  Nevertheless, Resident 1's care plan (target date 02/07/2017) documented the following focus:

I have a history of exhibiting inappropriate sexual behavior towards staff and other residents.  I also have attempted to elope as evidenced by tampering with my [W]anderguard[Wanderguard is a brand name for a security system that sounds an alarm when a resident wearing an electronic bracelet approaches or tries to exit through a door connected to the system.  See, e.g., CMS Ex. 2 at 80.  Petitioner's records note that the Wanderguard bracelet was necessary because Resident 1 was placed in Petitioner's facility by court order based on his history of eloping.  See id. at 133.] device.  I have a history of having delusions/hallucinations[;] the things I see are very realistic to me.

CMS Ex. 2 at 78.  The care plan elaborated that Resident 1's inappropriate behaviors included "public sexual acts, disrobing, etc."  Id. at 82.

Resident 1's care plan listed the following interventions, among others:

• I have been placed on medication for my inappropriate sexual behavior and for my hallucinations/delusions.
• I will be counseled by staff if I engage in inappropriate behavior or attempt to elope from the building.
• Involuntary discharge to another facility is possible if I continue to exhibit inappropriate sexual behaviors towards other residents.

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• Per BDH["BDH" stands for Brighter Day Health, which was a contracted mental health provider for Petitioner's residents that provided services to Resident 1.  See, e.g., P. Ex. 7 at 14.] instructions after staff explain to me why they will not have personal relationships with me, ask if I have any questions or concerns.
• Per BDH instructions if staff suspect that I have sexual preoccupations or if staff's treatment plan might be misconstrued, it is important for staff to protect themselves from me.  Make sure I understand the procedures and the reasons for them.
• Per BDH instructions staff will be honest in setting limits and boundaries by clarifying their roles. . . .  If I express that I want to have a relationship with [a] staff member, it is best to explain clearly to me that such [a] relationship is unethical, unprofessional, illegal, and would never be considered.
• Per BDH instructions staff will provide me with feedback as to how inappropriate behavior makes them feel (uncomfortable, unpleasant, etc.).
• Per BDH instructions, staff will set limits by telling me the consequences of my behavior.  Staff will carry out what they say the consequences will be.
• Per BDH instructions staff will use a flat affect and firm matter-of-fact tone of voice, labeling sexually inappropriate behavior and directing me to cease.
• Per BDH instructions if I respond inappropriately in spite of staff's efforts to help me alter my behavior, staff will immediately report my behavior and have it logged in my behavioral record/general medical notes.
• Staff will ensure that I am at a safe distance away from female residents.  Please intervene and redirect me to another area of the building if you notice me to be bothering female residents.

*        *        *

• At times, I like to be naked in my room.  Please pull my curtain shut and allow me my privacy.

*        *        *

• If I am stimulating myself in public, please provide me with a private, non‑judgmental discussion about the appropriate place to do this.
• If I disrobe in public, quickly intervene; cover me with a blanket/towel and attempt to assist me to get re-dressed in a private place.

Id. at 78-79, 82.

Medical records covering Petitioner's treatment of Resident 1 from June 2016 through November 2016 document that he exhibited a number of the behavioral symptoms

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described in his care plan.  For example, a monthly psychotropic medication assessment progress note dated June 8, 2016, reported that Resident 1 "had no sexual behaviors this past month [May 2016] which is an improvement from the month prior."  CMS Ex. 2 at 153.  However, the same progress report indicated that the resident removed his Wanderguard but told staff it had fallen off.  Id.  Resident 1 also took down shelves and broke a light fixture and a radio.  Id.  The psychotropic medication assessment progress note for the following month, dated July 7, 2016, documented that Resident 1 "had many sexual behaviors this past month and decline in functional level [related to] having his brain stimulator batteries replaced and adjusted."  Id. at 143; see also id. at 142.  The July note elaborated:

Behaviors included:  exposing his male genitalia 06/13; 06/24; 06/26.  Throwing all his bedding on floor in hallway 06/16; pushing his dresser around his room 06/22; urinating on floor 06/25; then throwing his clothes on floor then urinating on them; roaming around dining area 07/01 with pants around ankle and penis exposed . . . .  On 07/02 he verbalized "what does a guy have to do to get a boner around here?".  On 07/03 he removed his clothes and left his room door open so other resident[s] could see him.

Id.  On several other occasions in July and early August 2016, Resident 1 urinated on the floor or on items of clothing and ambulated outside his room not fully clothed.  See id. at 141-42.  A social services note dated August 19, 2016, documented that Resident 1 "continues to expose himself in common areas," but the resident denied the behavior when counseled by Petitioner's social worker.  Id. at 140.

From June through November of 2016, Resident 1 received mental health services from BDH via telemedicine.  See id. at 85-114.  The resident had regular therapy sessions with a therapist who was a licensed clinical social worker (LCSW), as well as consultations with a psychiatrist.  Id.  On August 25, 2016, Resident 1's psychiatrist recommended adding the medication Trileptal "due to sexually inappropriate behaviors."  Id. at 139; see also id. at 97, 135.  Resident 1's treating physician added a prescription for Trileptal that same day.  Id. at 139; see also id. at 68.  Resident 1's physicians continued to adjust his medications with a goal of decreasing his sexually inappropriate behaviors.  See, e.g., id. at 134-36 (tapering Pramipexole dosage and discontinuing Cimetidine).  On September 8, 2016, Resident 1's psychiatrist noted that the medication changes appeared effective because Resident 1 "is much better under control on the Trileptal and is not acting out inappropriately sexually."  Id. at 95.  In a note dated September 21, 2016, Resident 1's BDH therapist documented a report that Petitioner's staff had found pills that Resident 1 did not take.  Id. at 104.  According to the note, staff were "taking steps to monitor medication more effectively for him."  Id.  On October 6, 2016, the psychiatrist noted that Resident 1 was "at his baseline" and "doing very well according to staff."  Id. at 107.  In the same note, the psychiatrist elaborated that Resident 1 "is no longer taking his pants off in public and is stable [with] his inappropriate behaviors."  Id.

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Consistent with the psychiatrist's observation, Petitioner's staff completed a psychotropic medication assessment progress note, dated October 12, 2016, that documented Resident 1 "has had no major documented sexual behaviors" during the prior month.  Id. at 130-31.  However, the same note reported that, on September 19, 2016, a staff member overheard Resident 1 ask a female resident "if she 'could take it all in?'"  Id. at 131.  Petitioner's staff and Resident 1's BDH therapist interpreted this remark as sexual in content.  See id. at 104.

Although Resident 1's overtly sexual behaviors decreased following the medication changes, he continued to exhibit other behaviors.  For example, on August 28, 2016, Resident 1 attempted to leave Petitioner's facility.  Id. at 138.  A staff member responded to the door alarm and returned Resident 1 inside.  Id.  Resident 1 stated that he didn't know that he was not allowed to exit the facility alone.  Id.  On September 21, 2016, Resident 1 told his BDH therapist that his brother was in jail for "messing around with girls."  Id. at 103.  Similarly, on September 27, 2016, Resident 1 told Petitioner's social worker that his brother had recently been in jail.  Id. at 131.  He also told the social worker that his brother had come to the facility and stolen the resident's clothes.  Id.  These statements were not true.  Id.  On October 4, 2016, Petitioner's social worker noted that Resident 1 was attempting to sell some of his personal items.  Id.  On October 30, 2016, Petitioner's staff noted that Resident 1 had taken asparagus from lunch and smeared it throughout his room.  Id. at 130.  On the same date, the resident removed the pad and comforter from his bed, put them on the floor, and urinated on them.  Id.  Resident 1 also removed some of his clothing and urinated on those items as well.  Id.  When confronted, the resident denied having urinated on the items.  Id.

Petitioner's records for Resident 1 dated prior to November 1, 2016, include several entries that refer to Resident 1's roommate (Resident 2).  In a note dated August 24, 2016, Petitioner's social worker documented that Resident 1 complained that Resident 2 had taken some of Resident 1's magazines.  Id. at 139.  Resident 1 also complained that Resident 2 had taken Resident 1's shaver and broken it.  Id.  These statements were not true.  Id.  On August 27, 2016, Resident 1 again reported that Resident 2 had taken the shaver and "took it apart."  Id. at 138.  He further stated that Resident 2 was "smoking medications."  Id.  Also on August 27, one of Petitioner's nurses noted that Resident 1 was "spying thru divider curtain in his room" at Resident 2.  Id. at 135; see also id. at 138.  On September 8, 2016, a nurse noted that Resident 1 sat in Resident 2's chair (in their shared room) and urinated.  Id. at 136.

Resident 2

At the time of the events in question, Resident 2 was a 74-year-old man whose diagnoses included unspecified intellectual disabilities, adult failure to thrive, other amnesia, and unspecified protein-calorie malnutrition.  See, e.g., CMS Ex. 2 at 184.  In an MDS

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assessment dated October 26, 2016, Resident 2 scored 14 on the BIMS, indicating that his cognition was largely intact.  See n.6, supra.  The same MDS assessment documented that Resident 2 was largely independent with ADLs, requiring only set up and supervision with personal hygiene and bathing.  CMS Ex. 2 at 188-89.  Additionally, Resident 2 was ambulatory without the need for assistive devices and did not require assistance with transfers.  Id. at 189; see also id. at 192.  Resident 2's care plan noted that he did not use his call light to summon staff, but would let staff know if he needed anything.  Id. at 192.  Resident 2's care plan also noted that, "[a]t times I like to be in my room naked.  Please provide me with privacy and pull my curtains."  Id.

Events of November 1-2, 2016

At or about 11:45 p.m. on November 1, 2016, Resident 2 activated his call light, which was unusual for him.  CMS Ex. 2 at 12; P. Ex. 8 at 5.  Certified Nursing Assistant (CNA) Rebecca (Becky) Martins responded to the call light.  P. Ex. 8 at 5.  When CNA Martins entered the room that Resident 1 and Resident 2 shared, she did not see either resident initially because the privacy curtains in the room were pulled closed around Resident 1's side of the room.  Id. at 13.  When CNA Martins pulled the privacy curtain back, she found Resident 1 in Resident 2's side of the room.  Id.  According to the CNA's account, Resident 2 was in bed and Resident 1 was standing over him.  Id.  Resident 1's underpants were pulled down, and his penis was exposed.  CMS Ex. 2 at 12.  Resident 2's pants were unbuttoned and unzipped and pulled down enough to expose his buttocks.  P. Ex. 8 at 19-20; see also P. Ex. 28 at 7.  CNA Martins observed Resident 1 making thrusting motions with his hips toward Resident 2's buttocks.  P. Ex. 8 at 13.  CNA Martins spoke to Resident 1 and touched him on the shoulder, after which he returned to his side of the room.  Id. at 13-15.  CNA Martins notified Jill Kleppe, a licensed practical nurse (LPN) employed by Petitioner.  CMS Ex. 2 at 12.  LPN Kleppe interviewed Resident 2.  Id.  In response to questions from LPN Kleppe, Resident 2 indicated that he did not want Resident 1 to do what he did, that he did not like what had happened, and that Resident 1 had forced him.  Id.; see also P. Ex. 28 at 9.  Resident 2 also told LPN Kleppe that this had not happened before.  Id.

Following the incident, Petitioner's staff took Resident 1 to the dining room of the facility,The dining room of Petitioner's facility also serves as its common area.  See, e.g., P. Ex. 2 at 13. where he was placed on 1:1 supervision.  CMS Ex. 2 at 12-13.  Petitioner's staff notified police.  Id. at 13.  Two police officers responded to investigate.  Id.  Resident 2 was transported to Veterans Memorial Hospital (Hospital) by ambulance for evaluation.  Id.  In the emergency room (ER), Resident 2 told Antoinette Thompson, ARNP (Advanced Registered Nurse Practitioner), that there was no penetration.  Id. at 8, 157.  Beth Papp, RN, who was tasked with gathering evidence, reported she did not see signs

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of anal penetration.  Id. at 8; see also id. at 157, 161.  Nurse Papp noted that Resident 2 was calm and cooperative and that he denied Resident 1 had ever touched or assaulted him before.  Id. at 161.  She further documented that Resident 2 did not want to make a statement to police or to press charges against Resident 1.  Id.

Petitioner's staff later sent Resident 1 to the Hospital, apparently for a psychiatric evaluation.  Id. at 13; see also id. at 10, 155; P. Ex. 2 at 17-19.  Nurse Practitioner Thompson interviewed and examined Resident 1.  Id. at 155.  In her opinion, there was no reason for Resident 1 to be in the ER because he was not a threat to himself.  Id.  Nurse Practitioner Thompson spoke to Petitioner's staff by telephone and told them that, in her view, Resident 1's behavior was not a new finding and was not an emergency.  Id.

Both Resident 1 and Resident 2 returned to Petitioner's facility following evaluation in the Hospital ER.  CMS Ex. 2at 13.  There were no new orders for either resident.  Id.  However, ER staff recommended, "Place [Resident 2] away from [Resident 1] to prevent further complaints since [Resident 1] has been known for the behavior displayed tonight."  Id. at 158, 164.  Upon the residents' return to the facility, Petitioner moved Resident 1 to a private room with 1:1 supervision by staff.  Id. at 13. Petitioner's Director of Nursing (DON), Dana Heying, stated that the facility planned to continue 1:1 supervision of Resident 1 "until [an] alternate placement can be found."  Id. at 173.

Treatment of affected residents following November 1 assault

Following the assault, Petitioner's social worker did daily check-ins with Resident 2 for about a month.  P. Ex. 7 at 5.  The social worker observed Resident 2's behavior to be the same before and after November 1, 2016.  Id.

On November 3, 2016, Resident 1 met with the BDH psychiatrist via telemedicine.  CMS Ex. 2at 113.  The psychiatrist noted that Resident 1 denied he had assaulted Resident 2.  Id.  Under the heading "Treatment Plan," the psychiatrist documented:

[Patient] is a danger to self and others.  He requires specialized care for sexually aggressive male residents [with] dementia and psychosis.  [Petitioner's facility] is unable to meet this resident's needs as well as keep other residents safe in this setting due to [patient's] ongoing sexually aggressive behaviors refractory to behavioral and medical management.  [Patient] has not had actual sexual assault incident previous to this one. . . .

DISCHARGE FROM MY CLINIC AS THIS IS NOT APPROPRIATE PLACEMENT FOR THIS PATIENT AND I DO NOT FEEL COMFORTABLE [TREATING] HIM IN THIS SETTING.

Id. at 114 (italics added; capitalization in original).

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Resident 1 met with the BDH therapist (LCSW) on November 9, 2016, via telemedicine.  P. Ex. 13 at 1.  The therapist recorded the following notes of the session:

Staff reports that [Resident 1] had an incident with his roommate.  [Resident 1] denies remembering anything that has been reported.  [Resident 1] has been having positive therapy sessions and I would not have foreseen the behavior reported with his roommate.  [Resident 1] and I processed the incident and discussed that he will probably have to be moved to a facility for sexual predators.  [Resident 1] denies the activity and acknowledges that if it did happen it was wrong.  [Resident 1] denies any sexual urges or desires for men.  At this time I do not believe [Resident 1] is being honest and I would agree with staff that keeping [Resident 1] one on one until he can be placed in an appropriate setting is necessary to prevent harm to others and self. . . . [Resident 1] and I had this conversation and he stated that "he would try not to do anything again".  He did not admit to the incident, but did acknowledge the wrong.

Id. at 1-2 (italics added).  The LCSW therapist also recommended that Resident 1 be transferred to a "Level II Psychiatric facility."  Id. at 1.

Notwithstanding the mental health professionals' recommendations, Resident 1 was still residing at Petitioner's facility at least as of December 2, 2016, when he was seen by a new BDH therapist.  See P. Ex. 14 at 1.  The new therapist documented, among other observations: 

[Patient] is aware that there is a 1:1.  He denies memory of why he has a 1:1.  This is not consistent with [patient's] report of acknowledgment to his previous therapist on November 9th.  His previous therapist also assisted [Resident 1] with [i]nappropriate sexual behaviors toward females.  No prior sexual assault towards females was reported by SNF staff.

Id. at 2.  The new therapist also noted that Resident 1 "could benefit from a more restrictive milieu."  Id.  Petitioner eventually transferred Resident 1 to another facility, but the record does not reveal the date of transfer or the facility to which he was transferred.  See P. Ex. 2 at 11.

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Reporting allegations of abuse

On November 2, 2016, at 1:11,The copy of Petitioner's report that is in the record documents a "Submission Date" of 11/02/2016 01:11."  In a deposition taken July 11, 2017, the surveyor agreed that the time of submission appeared to be 1:11 a.m.  P. Ex. 4 at 16 (thumbnail pages 58-59).  However, during the hearing, the surveyor testified that the office secretary stated that the report was submitted at 1:11 p.m.  Tr. at 87.  I find the record does not establish by a preponderance of the evidence whether the facility submitted the report at 1:11 a.m. or 1:11 p.m. on November 2, 2016.  However, that fact is not material to my decision in this case. Petitioner's administrator, Lou Ann Wikan, notified the state agency of an "Entity Reported Incident."  CMS Ex. 2 at 2, 12.  Among other things, the report stated that Resident 1 had "allegedly tried to anally penetrate" Resident 2.  Id. at 12.

On November 2, 2016 at or around 6:10 a.m.  Nurse Papp, one of the ER nurses, reported a possible incident of dependent adult abuse involving Resident 2 to the Iowa Department of Human Services (DHS).  See CMS Ex. 2 at 14-17, 167.  DHS responded to this report by sending a social worker to Petitioner's facility to ensure the safety of Resident 2.  Id. at 6; see also id. at 16.  The DHS social worker interviewed Resident 2 at Petitioner's facility on November 2, 2016, at or around 7:10 a.m.  Id. at 16.  At that time, the DHS social worker documented that Resident 2 ‒

provided an account of what he recalled.  [Resident 2] reported [Resident 1] ha[d] his arm around [Resident 2] and was laying on top of him while both were laying in [Resident 2's] bed.  [Resident 2] recalled he [had] seen [Resident 1's] 'peter'.  [Resident 2] reported he felt [Resident 1] touch his 'peter'.  [Resident 2] reported it was uncomfortable for him to breathe while [Resident 1] was on top of him.  [Resident 2] recalled using his call light and a [n]urse came into the room.  [Resident 2] indicated this is [the] first time [Resident 1] had touched him.  [Resident 2] stated [Resident 1] is a homosexual. . . . [Resident 2] denied having any injuries or that any part of his body hurt.

Id. at 16.  DHS did not act further on the complaint, but referred it to the state agency (i.e., the Department of Inspections and Appeals) for further investigation.  Id. at 17; see also id. at 6; Tr. at 69.  The state agency received the referral from DHS on or about November 3, 2016.  Id. at 6.

On or about November 3, 2016, the ER nurse practitioner, Antoinette Thompson, also reported the incident to the state agency.  See id. at 8‑10.  Nurse Practitioner Thompson

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complained that Petitioner had left Resident 1 in the ER "without a reason."  Id. at 8.  She characterized Petitioner's management as "trying to get an emergency order to get the perpetrator [Resident 1] thrown out of the facility . . . and leaving the patient here . . . for us to find placement for this patient because they deemed it a "psych issue" where the perpetrator was a potential harm to people when this patient had KNOWN documented history of this medical treated [sic] issue."  Id. at 10 (capitalization in original).  She alleged that Petitioner had "dumped" Resident 1 by "'leaving' him in the [ER] for an evaluation and placement" and concluded "that is not what the [ER] is supposed to be utilized for."  Id.

State Investigation

On November 3, 2016, Wendy Kuhse, a Health Facility Surveyor employed by the state agency (Surveyor Kuhse), began a survey of Petitioner's facility to investigate the self-reported incident and the complaints.  See, e.g., CMS Ex. 2 at 2.  The survey was completed on November 9, 2016.  Id.; see also CMS Ex. 1 at 1.  As part of the survey process, Surveyor Kuhse interviewed the affected residents, members of Petitioner's staff, and the ER nurses who had reported the incident, among others.  The surveyor made handwritten notes of these interviews at or about the times she conducted the interviews.  See, e.g., P. Ex. 4 at 18 (thumbnail pages 65-66).

At or about 12:52 p.m. on November 3, 2016, Surveyor Kuhse interviewed Petitioner's DON, Dana Heying.  CMS Ex. 2 at 172-73.  During that interview, the DON recounted the events of November 1, 2016, consistent with the facility's self report.  Compare CMS Ex. 2 at 172 with id. at 12-13.  Also on November 3, 2016, at or about 2:00 p.m., Surveyor Kuhse observed Resident 1 resting in bed, with a member of Petitioner's staff seated directly outside the resident's room.  Id. at 67.  The surveyor documented that the resident was under constant supervision and that staff recorded the resident's activities every fifteen minutes.  Id.

On November 8, 2016, Surveyor Kuhse conducted additional interviews of Petitioner's staff.  At or about 10:00 a.m., she interviewed Petitioner's Administrator and DON concerning the status of Resident 1 and Resident 2.  Id. at 174; Tr. 93.  At or about 11:12 a.m., Surveyor Kuhse interviewed LPN Kleppe, who had been on duty the night of the assault.  CMS Ex. 2 at 178-79.  LPN Kleppe also recounted events consistent with the facility's self report.  Id. at 179.  She added that, prior to Resident 2 activating his call light, nothing unusual had occurred.  Id. at 178.  She noted that staff "kept an eye on" Resident 1 because of his "heterosexual tendencies."  Id.  However, Resident 1 had not exhibited any behaviors that night, such as exposing himself.  Id.  After CNA Martins reported the assault to LPN Kleppe, LPN Kleppe immediately went to check on Resident 2.  Id. at 179.  Resident 2 told LPN Kleppe that he was "OK," but that Resident 1 had forced him to do something he did not want to do.  Id.  LPN Kleppe separated Resident 1 from Resident 2 by bringing Resident 1 to the dining room with 1:1

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supervision.  Id.  She also initiated 15-minute checks on Resident 2.  Id.  She informed Petitioner's DON and Administrator and called 911.  Id.

Also on November 8, 2016, at or about 12:24 p.m., Surveyor Kuhse interviewed CNA Martins by telephone.  CMS Ex. 2at 176-77; see also P. Ex. 8 at 23.  During the interview, CNA Martins recounted witnessing the assault.  As recorded in the surveyor's notes, CNA Martins' recollections were consistent with the facility's self report.  Compare CMS Ex. 2 at 176-77 with id. at 12-13.  In addition to the facts surrounding the assault, CNA Martins told the surveyor that she never would have expected that Resident 1 would assault Resident 2.  CMS Ex. 2 at 176.  However, according to the surveyor's notes, CNA Martins stated that some staff didn't think Resident 1 and Resident 2 should have roomed together because both residents were known to masturbate and to be "up naked in their room."  Id.; see also Tr. at 94-95.  CNA Martins did not tell the surveyor the names of any staff members who allegedly held this opinion.  Tr. at 95.

At or about 12:48 p.m. on November 8, 2016, Surveyor Kuhse interviewed Resident 2 in his room.  CMS Ex. 2 at 171.  Petitioner's social worker accompanied the surveyor during the interview.  Id.  During the interview, Resident 2 stated that Resident 1 "did something you don't do to another man."  Id.  Resident 2 stated that he had been in bed when Resident 1 came to his side of the room and grabbed him.  Id.  In response to a question, Resident 2 indicated that Resident 1 had grabbed his neck and groin.  Id.  Resident 2 confirmed that Resident 1 had grabbed his genitals.  Id.  Resident 2 also stated that Resident 1 had never done this before.  Id.  Resident 2 volunteered that, a few times, Resident 1 had come to Resident 2's side of the room and looked through Resident 2's drawers.  Id.

At or about 3:05 p.m. on November 8, 2016,In her deposition, Surveyor Kuhse stated she "assumed" the interview occurred on November 3, 2016, because she had written "11-3-16" at the top of the page.  P. Ex. 4 at 27 (thumbnail page 101).  I infer, however, that the conversation with Nurse Graybill took place on November 8, 2016, because there is an intervening note dated "11-08-16" on the page.  CMS Ex. 2 at 67.  In any event, whether Surveyor Kuhse recorded the note on November 3, or November 8, 2016, is not material to my decision. Surveyor Kuhse spoke briefly to Adam Graybill, R.N., while he was in between patient care tasks.  P. Ex. 4 at 26 (thumbnail page 100); see also Tr. at 91.  At that time, Nurse Graybill stated that staff "always had to 'watch' [Resident 1] mostly [with] inappropriate verbal comments to female res[idents] and staff.  Never any indication [of] problems [with] men."  CMS Ex. 2at 67; see also P. Ex. 4 at 27 (thumbnail pages 102-03); Tr. at 91.

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On November 8, 2016, at or about 3:10 p.m., Surveyor Kuhse attempted to interview Resident 1.  CMS Ex. 2 at 67.  Petitioner's social worker accompanied the surveyor during the interview.  Id.  The surveyor recorded that Resident 1 agreed to "visit," but did not open his eyes when she spoke to him.  Id.  Resident 1's speech was "extremely slurred and very difficult to understand."  Id.  According to the surveyor's notes, Resident 1 "was aware/alert that he had [changed] rooms [and] once had a roommate [but he] Could not or would not say prior roommate[']s name.  When ask[ed] why he was moved – response was very slurred and unable to make any word from it."  Id.  Petitioner's social worker told the surveyor that it is hard to tell whether Resident 1 was "tired or just pretending" because she has known the resident to "fake" sleep."  Id.

On November 9, 2016, Surveyor Kuhse interviewed the ER nurses, Nurse Papp and Nurse Practitioner Thompson, by telephone.  CMS Ex. 2 at 7, 11; see also Tr. at 43-44, 48-49.  Nurse Papp told Surveyor Kuhse that Resident 2 informed her that Resident 1 had touched him and held him down; that Resident 2 had a reddened area [on his neck] that may have been a scratch mark; and that Resident 2 was obviously distressed, but this had never happened before.  CMS Ex. 2at 7.  Nurse Practitioner Thompson told the surveyor that she "knew by [Resident 1's] med[ication] sheet he was on med[ication] for sexual tendencies so . . . it was obvious he had prior behaviors related to sexual issues."  Id. at 11; see also Tr. at 53.

Surveyor Kuhse completed state form 427-0044 (known informally as a nine-factor form) during the course of her investigation.  CMS Ex. 2 at 3-4; see also P. Ex. 2 at 3 (thumbnail page 8); P. Ex. 30 (blank copy of form, including instructions).  In response to the prompt "The culpability of the facility as it relates to the reasons the violation occurred" (factor #3), Surveyor Kuhse wrote:  "the facility was aware & had care planned [Resident 1's] heterosexual behaviors.  [Resident 1] had never exhibited homosexual behaviors."  Id. at 3.  Surveyor Kuhse signed the form on November 11, 2016.  Id. at 4.  On November 18, 2016, Jolyn Meehan, a compliance officer with the state agency, added the following observation to factor #3:  "[Resident 1] found peeking through the curtains spying on [Resident 2]."  Id. at 3; see also P. Ex. 5 at 13 (thumbnail page 48).

Testimonial Evidence

Petitioner offered statements under oath from its administrator, Lou Ann Wikan; its DON, Dana Heying; its social services director, Allison Schulte; Nurse Adam Graybill; and CNAs Becky Martins, Katie Winters, and Betsy Baxter.  P. Exs. 2, 3, 6-10, 20-26.  CMS chose not to cross-examine any of these witnesses at the hearing.  See, e.g., Tr. at 7.  Petitioner additionally offered transcripts of the depositions of Surveyor Kuhse and compliance officer Jolyn Meehan.  See P. Exs. 4, 5.  CMS offered the written direct testimony of Surveyor Kuhse as CMS Ex. 3.  Petitioner cross-examined Surveyor Kuhse at the hearing.

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Petitioner's witnesses testified that, prior to November 1, 2016, Resident 1's sexual behaviors were directed toward female residents and staff.  P. Ex. 2 at 9; P. Ex. 3 at 9; P. Ex. 6 at 12-14; P. Ex. 9 at 13; P. Ex. 10 at 8.  The witnesses had never observed or been told that Resident 1 engaged in sexual behaviors or speech directed at males.  P. Ex. 3 at 10; P. Ex. 6 at 5, 12-13; P. Ex. 7 at 14, 18; P. Ex. 9 at 13; P. Ex. 10 at 9.  I find the witnesses' testimony credible because it is consistent with the treatment records that have been admitted as CMS Ex. 2.  The credibility of Petitioner's witnesses on this point is further supported by the testimony of Surveyor Kuhse.  At the hearing, Surveyor Kuhse agreed that Petitioner's staff had care-planned for Resident 1's behaviors towards women and that the records showed no evidence that Resident 1 engaged in homosexual behavior prior to November 1, 2016.  Tr. at 89.

Nurse Graybill was the staff member who documented that Resident 1 had been "spying" on Resident 2.  P. Ex. 6at 6.  Nurse Graybill testified that, when he observed them, the residents were seated in their chairs, separated by the privacy curtain that divided their room.  Id.  Nurse Graybill observed Resident 1 pull the curtain forward a few inches and look into Resident 2's side of the room.  Id. at 8.  Resident 2 was fully clothed at the time.  Id. at 7.  Nurse Graybill did not interpret Resident 1's action as sexual in nature.  Id. at 12-13.  In fact, around the time Nurse Graybill made the note, he did not recall that Resident 1 was "having any other negative sexual behaviors at that time."  Id. at 9.  Surveyor Kuhse testified that she did not question Nurse Graybill about the incident while she was at Petitioner's facility because the note characterizing Resident 1 as "spying" on Resident 2 was brought to her attention later.  Tr. at 91.

2.  Petitioner substantially complied with the Medicare participation requirements at 42 C.F.R. § 483.13(b), (c)(1)(i) (Tag F223).

There is no dispute that Resident 1 sexually assaulted Resident 2.  There is no dispute that the assault occurred while both individuals resided at Petitioner's facility.  In CMS's view, these facts are sufficient to establish that Petitioner failed to protect Resident 2 from abuse and, accordingly, failed to comply substantially with 42 C.F.R. § 483.13(b).  CMS Posthrg. Br. at 10.  Petitioner argues that it was in substantial compliance with the cited regulation because the assault committed by Resident 1 was unforeseeable.  See, e.g., P. Posthrg. Br. at 10.  Based on the record as a whole, I find that Petitioner proved by a preponderance of the evidence that, prior to November 1, 2016, it was not foreseeable that Resident 1 would commit a sexual assault or that the victim of such an assault would be a male.  As such, Petitioner did not fail "to take reasonable precautions in a situation that made the possibility of abuse reasonably foreseeable."  Golden Living Center – Trussville, DAB No. 2937 at 11 (2019).

CMS argues that it need not prove that an incident of abuse was foreseeable to establish noncompliance with 42 C.F.R. § 483.13(b).  CMS Posthrg. Br. at 10.  Rather, CMS contends, "the regulations make a facility liable for any abuse committed by it or its

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agents."  Id. (emphasis added) (citing Kindred Transitional Care and Rehab – Greenfield, DAB CR4659 at 3 (2016), aff'd, DAB No. 2792 (2017)).  However, CMS's reliance on the Kindred decision is misplaced.  In that decision, an administrative law judge rejected the facility's argument that it should not be held responsible for abuse committed by its employee because the abuse was an isolated incident and, thus, unforeseeable.  As the affirming decision in Kindred makes clear, a facility's responsibility for failing to protect residents from abuse differs depending upon whether the perpetrator of the abuse is an employee or a resident of the facility.  See DAB No. 2792 at 10 (Departmental Appeals Board (DAB) "precedent supports a distinction between 'staff‑to‑resident' abuse and 'resident‑to‑resident' interactions for purposes of determining compliance with section 483.13(b)").

In Kindred, as well as a number of other decisions, appellate panels of the DAB have held that facilities may not disavow abusive behavior by staff.  Id.  As one panel explained, "because a facility is responsible for its staff's actions, 'considerations of foreseeability are inapposite when staff abuse has occurred.'"  Springhill Senior Residence, DAB No. 2513 at 15 (2013) (quoting Gateway Nursing Ctr., DAB No. 2283 at 8 (2009)).  Thus, facilities are held responsible for acts of abuse committed by staff members without regard to whether the abuse was foreseeable.  By contrast, where a facility resident abuses another resident, it can hardly be said that the perpetrator is the agent of the facility.  For that reason, where an allegation of noncompliance turns on the facility's alleged failure to protect its residents from abuse by another resident, appellate panels have recognized that the facility is noncompliant with participation requirements where it fails to protect residents from foreseeable abuse:

It follows, then, that determining whether a facility failed to protect a resident's right to be free from abuse when another resident behaved harmfully depends on whether the facility staff had a basis to be aware that such behavior might occur and yet left the resident vulnerable to it.

Kindred, DAB No. 2792 at 11; see also Golden Living Center – Trussville, DAB No. 2937 at 12 (the administrative law judge correctly framed the issue as whether "(1) there was a reasonably foreseeable risk of abuse and (2) [whether the facility] failed to take reasonable steps to prevent abuse from occurring"); Lifehouse of Riverside Healthcare Ctr., DAB No. 2774 at 19 (2017) (statute and regulations "do not punish facilities for unavoidable negative outcomes or untoward events that could not reasonably have been foreseen and forestalled").

Accordingly, in the present case, Petitioner is responsible for failing to protect Resident 2 from abuse only if Resident 1 presented a foreseeable risk of abusive behavior prior to November 1, 2016.  CMS argues that, if abuse must be foreseeable to conclude that Petitioner was out of substantial compliance with 42 C.F.R. § 483.13(b), then the record demonstrates "Resident # 1 might be the perpetrator of abuse toward male residents, and

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the facility, thereafter, failed to protect each resident from sexual abuse."  CMS Posthrg. Br. at 10.  I disagree.

In CMS's view, Petitioner should have foreseen that Resident 1 might pose a danger to Resident 2 because patients with dementia may engage in sexual behaviors indiscriminately, without reference to their prior sexual orientation.  Id. at 10-11.  In support of this contention, CMS points to an article published in the Journal of Clinical Psychopharmacology and a fact sheet compiled by the Alzheimer's Society.  Id.  However, CMS made no effort to link indiscriminate sexual behaviors directed at both males and females to Resident 1 directly.  For example, CMS presented no medical evidence that Resident 1 engaged in such behaviors prior to November 1, 2016.In a single note, dated September 14, 2016, Petitioner's staff transcribed an order from one of Resident 1's physicians that referred to his behavior as "hypersexuality."  CMS Ex. 2 at 134.  In her deposition, Surveyor Kuhse testified that she Googled hypersexuality and, from the result, understood the term could refer to both heterosexual and homosexual behavior.  P. Ex. 4 at 23/85; 26/103-04.  However, for the reasons explained in the text, I do not find evidence that Resident 1 engaged in homosexual behaviors prior to November 1, 2016.  To the contrary, the evidence of record establishes that, before the assault on Resident 2, Resident 1's sexual behaviors were directed at female residents and staff.  P. Ex. 2 at 9; P. Ex. 3 at 9; P. Ex. 6 at 12-14; P. Ex. 9 at 13; P. Ex. 10 at 8.  This is in contrast to the patient described in the Journal of Clinical Psychopharmacology, who, as CMS acknowledges, had exhibited hypersexual behavior directed at both females and males.  CMS Posthrg. Br. at 11.  In fact, CMS itself points out that, "sexual feelings can change unpredictably for someone who has been diagnosed with dementia."  Id. (emphasis added).  "Unpredictable" is synonymous with "unforeseeable."The conclusion that Resident 1's assault on Resident 2 was unpredictable is reinforced by the notes of Resident 1's therapist, who stated, "I would not have foreseen the behavior reported with his roommate."  P. Ex. 13 at 1.  I therefore find that the fact that some dementia patients may engage in indiscriminate sexual behaviors directed toward females and males did not make it foreseeable that Resident 1, who had not previously displayed such behavior, would assault Resident 2.

CMS argues additionally that Petitioner's staff should have foreseen that Resident 1 might assault Resident 2 because Petitioner's staff documented that, on August 27, 2016, Resident 1 was "spying" on Resident 2 through the privacy curtain that divided their room.  Id.; see also CMS Ex. 2 at 138.  CMS argues that this incident "may have indicated a change in Resident #1's sexual interests, and should have led the facility to

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develop and implement appropriate interventions."  CMS Posthrg. Br. at 11.  CMS' argument is purely speculative and is unsupported by any documentary or expert evidence.I infer that CMS's argument concerning the privacy curtain is based in part on the opinion of compliance officer Jolyn Meehan.  See, e.g.,P. Ex. 5 at 13, 16-17.  Ms. Meehan testified at her deposition that she believed Resident 1 peeking through the curtain at Resident 2 should have been a "red flag" leading the facility to investigate further.  Id. at 17 (thumbnail page 62).  She elaborated that the behavior was concerning because Resident 1 "had inappropriate sexual behaviors a lot . . . [and] we also know that he masturbated a lot and he had a lot of . . . sexual thoughts about others."  Id.  Ms. Meehan's testimony speculates as to Resident 1's state of mind and mischaracterizes Resident 1's history as documented in the medical records.  In particular, there is no documentation (nor could there be) concerning how frequently Resident 1 had "sexual thoughts about others."  Further, although the records support that Resident 1 was known to masturbate on occasion, there is nothing in the records documenting how frequently he engaged in this behavior.  I therefore do not find Ms. Meehan's interpretation of the incident convincing.

Contrary to the speculation of CMS and the state agency, I find it unlikely that Resident 1's behavior on August 27, 2016, was sexually motivated.  I base this inference on the testimony of Nurse Graybill, who described that Resident 2 was fully clothed at the time of his observation.  P. Ex. 6 at 7.  Nurse Graybill did not interpret Resident 1's action as sexual in nature.  Id. at 12‑13.  In fact, around the time Nurse Graybill made the note, he did not recall that Resident 1 was "having any other negative sexual behaviors at that time."  Id. at 9.  I accord more weight to Nurse Graybill's assessment of Resident 1's behavior than that of compliance officer Meehan because Nurse Graybill was familiar with Resident 1's past behaviors and had the opportunity to observe Resident 1 frequently in the course of providing care.In this regard, I find it significant that Resident 1 was prescribed medication that was administered at two- to three-hour intervals day and night.  See CMS Ex. 2 at 79; see also id. at 178; P. Ex. 2 at 8-9.  I therefore infer that staff would have the opportunity to observe Resident 1's activities and behavior frequently, even during overnight hours.

Moreover, if Resident 1's motivation for peeking through the curtain at Resident 2 is relevant at all, I find the behavior consistent with Resident 1's delusions concerning Resident 2, which are documented in Petitioner's records.  As I have described above, on or about August 24, 2016, Resident 1 complained to Petitioner's social worker that Resident 2 had taken some of Resident 1's magazines.  CMS Ex. 2at 139.  Resident 1

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also complained that Resident 2 had taken Resident 1's shaver and broken it.  Id.  On August 27, 2016 (the same day as the "spying" incident), Resident 1 again reported that Resident 2 had taken the shaver and "took it apart."  Id. at 138.  He further stated that Resident 2 was "smoking medications."  Id.  Similarly, Resident 2 reported that Resident 1 on occasion came into Resident 2's side of the room and looked through Resident 2's belongings.  Id. at 171.  For these reasons, I conclude it is more likely that Resident 1's action on August 27, 2016, in peeking around the privacy curtain was motivated by paranoid delusions than by any sexual interest in Resident 2.  Therefore, the incident did not make it foreseeable that Resident 1 would sexually assault Resident 2 on November 1, 2016.

Although CMS seems to acknowledge that, as far as the record reveals, Resident 1's documented sexual orientation, as well as his documented behaviors, were heterosexual, there is some suggestion that Resident 1 was known to be homosexual.  CMS Posthrg. Br. at 11; see also CMS Ex. 2 at 16.  Following the assault, Resident 2 apparently described Resident 1 as homosexual.  CMS Ex. 2 at 16, 157.Other than Resident 2, the only other individual who described Resident 1 as homosexual was the ER Nurse Practitioner, Antoinette Thompson.  See, e.g., CMS Ex. 2 at 8, 157.  However, I infer that Nurse Practitioner Thompson reached this conclusion based on the nature of the assault combined with the fact that Resident 1's medication record revealed that he was prescribed Trileptal.  Id. at 8.  In Nurse Practitioner Thompson's view, Trileptal is used to treat "abnormal sexual tendencies," so it was "obvious he had prior behaviors related to sexual issues."  Id. at 8, 11.  I conclude that Nurse Thompson's opinion was based on speculation.  Therefore, I do not accord it weight.  Given the nature of the assault, it is unsurprising that Resident 2 would assume Resident 1 was homosexual.  However, Resident 2 acknowledged that Resident 1 had never touched him or assaulted him before.  Id. at 7, 161, 171.  In addition, Resident 1's brother, who was his power of attorney, told Surveyor Kuhse that he was unaware of any "same sex tendencies in his brother."  Id. at 180.  I therefore find, by a preponderance of the evidence, that Resident 1 was not known to be homosexual or to engage in homosexual behaviors prior to November 1, 2016.

CMS further argues that Petitioner should have foreseen that Resident 1 posed a risk to all of Petitioner's residents based on "numerous incidents involving Resident 1's inappropriate sexual behavior toward female residents."  CMS Posthrg. Br. at 12.  CMS contends that Petitioner "failed in its responsibility to develop and implement appropriate preventive measures to protect all residents" from Resident 1, who was "known to the facility to be sexually inappropriate in dealing with staff and other residents."  Id.  To the contrary, I find, by a preponderance of the evidence, that Petitioner did develop and

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implement preventative measures designed to address Resident 1's problematic heterosexual behaviors.

Petitioner's staff recognized, as CMS acknowledges, that Resident 1 engaged in inappropriate behavior toward female residents and staff.  Petitioner included in Resident 1's care plan many interventions to address the behaviors that Resident 1 displayed.  CMS Ex. 2 at 78-79, 82.  Moreover, when Resident 1's behavior continued, Resident 1's mental health providers provided counseling and prescribed and adjusted his medications with a goal of reducing or eliminating the behaviors.  See, e.g., id. at 85-107, 134-36.  Further, the record demonstrates that the interventions Petitioner implemented successfully reduced Resident 1's sexual behaviors.  For example, in notes dated September 8, and October 6, 2016, Resident 1's psychiatrist documented that Resident 1's behavior was under much better control and that he was no longer disrobing in public.  Id. at 95, 107.  Similarly, on October 12, 2016, Petitioner's staff documented that Resident 1 "has had no major documented sexual behaviors" during the prior month.  Id. at 130-31.

Thus, while "a pattern of mounting abuse and violence by [a resident] directed at other residents" is sufficient to put facility "staff on notice that [the resident is] dangerously out of control and that other residents need[] to be protected from him by all reasonable means," Martha & Mary Lutheran Services, DAB No. 2147 at 6 (2008), in the present case, the opposite was true.  Petitioner's records illustrate that, at least with respect to Resident 1's sexualized behaviors, a pattern seemed to be emerging that the behaviors were decreasing, rather than escalating.

Moreover, I find it significant that the record is devoid of any evidence that Resident 1 had perpetrated any sort of violent assault on any other resident or member of Petitioner's staff prior to November 1, 2016.  See, e.g., CMS Ex. 2 at 114 (psychiatrist noted that Resident 1 "has not had actual sexual assault incident previous" to the assault on Resident 2).  Resident 1 at times displayed bizarre and inappropriate behavior while he resided at Petitioner's facility, but as far as the record reveals, he never previously touched another resident.  The record suggests that, at some earlier time, Resident 1 may have touched female members of Petitioner's staff inappropriately.  See, e.g., P. Ex. 6 at 13; see also CMS Ex. 2 at 78 (care plan intervention instructing that, "if staff's treatment plan might be misconstrued, it is important for staff to protect themselves from me").  I infer from this evidence that Resident 1 may have touched staff inappropriately in the past (i.e. before May/June 2016), but that he did not do so during the period for which CMS offered records (June-November 2016).  I draw this inference based on the fact that CMS Ex. 2 does not document any instance of Resident 1 inappropriately touching a staff member.  I infer that, had Resident 1 done so, the incident would have been documented because Resident 1's care plan required staff to report inappropriate behavior and log such behavior in Petitioner's records.  See id. at 79.  The absence of any assaultive behavior by Resident 1 from May/June 2016 through October 31, 2016, is another factor

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on which I base my conclusion that it was unforeseeable that Resident 1 would sexually assault Resident 2.

In summary, based on the record as a whole, I find that Petitioner proved, by a preponderance of the evidence that, prior to November 1, 2016, it was not foreseeable that Resident 1 would commit a sexual assault, nor that the victim of such an assault would be a male.  Because the assault was unforeseeable, Petitioner did not fail to protect Resident 2 from a reasonably foreseeable risk of abuse and, therefore, did not fail to comply substantially with 42 C.F.R. § 483.13(b).

3.  Because Petitioner was in substantial compliance, no question remains as to whether its actions posed immediate jeopardy to resident health and safety.

4.  Because Petitioner was in substantial compliance with Medicare participation requirements, CMS lacked a basis to impose a CMP.

V.  Conclusion

For the reasons discussed above, I find that Petitioner substantially complied with the Medicare participation requirement defined at 42 C.F.R. § 483.13(b).  Because Petitioner was in substantial compliance, CMS had no basis for imposing a CMP of $11,791 per day for a single day.