Briarcrest Nursing Center, DAB CR5897 (2021)

DECISION

The case before me involves a long-term-care facility’s responsibility to protect its residents from verbal abuse and to timely report all allegations of abuse.

Petitioner, Briarcrest Nursing Center (also the facility), is a skilled nursing facility (SNF) in Bell Gardens, California, that participates in the Medicare program.  Following the November 27, 2019 completion of a complaint survey, the Centers for Medicare & Medicaid Services (CMS) determined that the facility was not in substantial compliance with participation requirements and found the most serious deficiencies were at scope and severity (S/S) levels D and G.  CMS imposed civil money penalties (CMPs) on a per-day basis at a rate of $935 effective August 4, 2019, until the facility returned to substantial compliance.  CMS further notified the facility that it would withdraw authorization for the facility to begin any new nurse aide training program.  CMS also gave notice that a denial of payment for new admissions (DPNA) would be imposed, effective December 28, 2019, if the facility did not return to substantial compliance prior to that date.  As of December 25, 2019, CMS determined that the facility retuned to substantial compliance and the notice of DPNA did not go into effect.  As of February 21, 2020, CMS gave notice that it would impose a total CMP of $133,705 ($935 per day for 143 days between August 4, 2019 and December 25, 2019).

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For the reasons discussed below, I find the facility was not in substantial compliance with Medicare program requirements 42 C.F.R. §§ 483.12(a) and (c) and that the penalty imposed is reasonable.

I. Procedural Background

By letter dated February 11, 2020, Petitioner appealed the determination of CMS and filed an Appeal and Request for Hearing Arising from a Survey ending November 27, 2019 (Appeal and Request for Hearing).  In an Acknowledgment and Pre-Hearing Order (Pre-Hearing Order) that issued on February 13, 2020, the presiding Administrative Law Judge (ALJ)The case was initially assigned to a different ALJ and then later transferred to the undersigned. set deadlines for the parties to file pre-hearing briefs in this matter.  The Order also set deadlines for the parties to submit their written request and intention to cross-examine opposing party witnesses.  The Order specified that a witness statement must be in the form of an affidavit made under oath or as a written declaration that the witness signs under penalty of perjury for false testimony.  Pre-Hearing Order at 5.

The Social Security Act (Act) sets forth requirements for nursing facilities to participate in the Medicare program and authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations implementing those statutory provisions.  Act § 1819.  The Secretary’s regulations are found at 42 C.F.R. part 483.  To participate in the Medicare program, a nursing facility must maintain substantial compliance with program requirements.  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 survey agencies to survey SNFs in order to determine whether they are in substantial compliance.  Act § 1864(a); 42 C.F.R. § 488.20.  Each facility must be surveyed annually, with no more than 15 months elapsing between surveys, and must be surveyed more often, if necessary, to ensure that identified deficiencies are corrected.  Act § 1819(g)(2)(A); 42 C.F.R. §§ 488.20(a), 488.308.  The state agency must also investigate all complaints.  Act § 1819(g)(4).

In this case, the California Department of Public Health (CDPH or state agency) completed a complaint survey on November 27, 2019.  Based on its findings, and citing the regulatory sections below, CMS determined that the facility was not in substantial compliance with two program requirements:

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• 42 C.F.R. § 483.12(a) (Failure to keep residents from abuse) cited at scope and severity level G (Tag F-600)
• 42 C.F.R. § 483.12(c) (Failure to timely report an allegation of abuse) cited at scope and severity level D (Tag F-609)

CMS has imposed a CMP of $935 per day for the period between August 4, 2019 and December 25, 2019, for a total of $133,705 for these deficiencies.

II. Admission of Exhibits and Decision on the Record

A. Admission of exhibits

CMS submitted its Pre-Hearing Brief (CMS Brief) on May 13, 2020.  CMS also submitted 18 proposed exhibits, including the written declaration for one witness, surveyor J. Castillo.  Petitioner filed its Pre-Hearing Brief (Pet. Brief) on October 2, 2020.  Petitioner submitted five proposed exhibits (P. Exs.), including the written declarations for two witnesses, its administrator (Administrator) and its Director of Nursing (DON).

On October 16, 2020, CMS filed objections to Petitioner’s proposed witnesses and exhibits.  CMS objects to Petitioner’s proposed witnesses because they did not join the facility’s staff until after the incident in issue.  Additionally, CMS asserts that because the Administrator’s statement is not signed, there is no direct testimony under penalty of perjury and it is in violation of the February 13, 2020 Order.

I agree that Petitioner’s proffered statement for the Administrator is not under penalty of perjury as it is unsigned.  P. Ex. 2.  Accordingly, it does not comply with the directive of the Pre-Hearing Order.  Pre-Hearing Order at 5.  While I may admit this unsigned statement into the record, I am under no obligation to find it credible as it is not made under oath.  Noting that Petitioner’s witnesses were both employed after the incident at issue, and inasmuch as one statement is unsigned, I will give these statements only the weight to which they should be accorded.  Notwithstanding the objections of CMS, I will receive Petitioner’s Exs. 1-5.

CMS proffered 18 exhibits (CMS Exs.), including the sworn statement of the registered nurse who conducted the survey.  In disputing the merits and/or form of the deficiencies issued and the state’s findings and penalties assessed, Petitioner asserts that CMS relied on the state’s prejudiced and incomplete information.  While the adequacy of the information is better explored with the discussion of the merits of CMS’s allegations, I address Petitioner’s argument of bias as it relates to CMS’s proposed exhibits and more specifically the sworn declaration of CMS’s only witness and surveyor.  J. Castillo is a

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registered nurse (RN) who is employed as a Health Facilities Evaluator Nurse (HFEN.) The HFEN or surveyor is the RN who participated in the state’s survey that was completed on November 27, 2019.  Petitioner asserts that the surveyor’s bias and prejudice adversely affected the outcome of the survey investigation and Petitioner cites two bases for the prejudice or bias.  Pet. Brief at 4.

First, Petitioner asserts that the surveyor had a familial or, at a minimum, a personal relationship with the resident in issue, Resident 1 (R1), and therefore there was a conflict of interest for the surveyor.  Petitioner contends that R1 told staff members that the surveyor was her niece.  Id.  Petitioner presents no witnesses in support of this assertion and provides no details as to whom this comment was made or when.  In a written statement dated August 15, 2019, the surveyor states that she does not have a family member residing or working at the facility and that she is fully aware that if she did so, it would be a conflict of interest according to regulations and policies.  CMS Ex. 11 at 16.

Petitioner also asserts that on a prior occasion, the surveyor “intended to issue a citation against the facility for alleged financial abuse.”  Pet. Brief at 4.  Petitioner explains that the allegation stemmed from the complaint of a family member of a former resident who alleged an overpayment to the facility.  Id.  In a written statement dated August 15, 2019, the surveyor confirmed that she had questioned a bookkeeping discrepancy at the facility and told the administrator of her intent to issue a citation.  Id.  There is no evidence, however, from either CMS or Petitioner that the surveyor issued a citation for the matter initiated by the former resident’s family.

As evidenced by the surveyor’s August 15, 2019 statement and by Petitioner’s arguments, it is apparent that the surveyor had previous interactions with the facility’s staff and that she contemplated taking further action in a previous matter.  The fact that a surveyor may have been involved in a prior survey or may have even previously recommended that a facility was not in substantial compliance with the regulations does not demonstrate bias or prejudice by the surveyor in subsequent investigations.  Further, while Petitioner asserts that there is a familial relationship or personal relationship between R1 and the surveyor, Petitioner presents no evidence to substantiate the claim.

Accordingly, I am not persuaded that there is any familial or personal relationship between the surveyor and R1 that adversely affected the outcome of the survey investigation, as Petitioner suggests.  Additionally, I do not find that there is sufficient evidence to demonstrate that any prior interactions between the surveyor and the facility have adversely affected the surveyor’s findings and recommendations.  As the Board has noted, the “appeals process is not intended to review the conduct of the survey but rather to evaluate the evidence of compliance regardless of the procedures by which the evidence was collected.”  Beechwood Sanitarium, DAB No. 1906 at 44 (2004), modified on other grounds, Beechwood v. Thompson, 494 F.Supp. 2d 181 (W.D.N.Y. 2007).  In a

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more recent case, the Board held, in an appeal by a home health agency challenging the termination of its Medicare participation, that allegations of “surveyor bias” are immaterial when “objective evidence,” such as the provider’s own records, would correct any alleged bias in a surveyor’s evaluation of that evidence.”  Aspen Grove Home Health, DAB No. 2275 at 24 (2009).  As discussed more fully below, there is no dispute that R1 alleged verbal abuse, and there is no dispute as to when Petitioner notified the state concerning R1’s allegations.  These undisputed facts dispel any allegation of surveyor bias.

Accordingly, I find no basis to deny the admission of any of CMS’s proposed exhibits and I receive CMS Exs. 1-18.

B. Decision on the record

The Pre-Hearing Order governing this case specified that a hearing in this matter would only be deemed necessary if either party requested to cross-examine the opposing party’s witnesses.  Pre-Hearing Order at 6.  While CMS filed an objection to Petitioner’s proposed witnesses and objected to the admission of their statements, CMS did not request to cross examine Petitioner’s witnesses.  Although Petitioner argued in its request for hearing and in its brief that CMS’s witness is prejudiced, Petitioner did not request to cross examine CMS’s witness.

Because neither party has affirmatively sought cross-examination of the opposing party’s witnesses, a decision on the record is appropriate.

III. Issues

The issues before me are:

1. Whether the facility was in substantial compliance with 42 C.F.R. §§ 483.12(a) and 483.12(c); and
2. If the facility was not in substantial compliance with 42 C.F.R. §§ 483.12(a) and 483.12(c), is the imposed $133,705 penalty reasonable.

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IV. Findings of Fact and Conclusions of LawMy conclusions of law are set forth by number and in bold text, followed by my analysis applying law and policy to the undisputed facts.

Background

The facility initially admitted R1 in August 2015 and readmitted her on March 19, 2016.  Upon the March 2016 admission, R1’s primary diagnosis was infection and inflammatory reaction due to internal left knee prosthesis.  A secondary diagnosis was Type 1 Diabetes Mellitus with diabetic neuropathy.  On April 26, 2016, R1 was diagnosed with histrionic personality disorder, which was “characterized by a pattern of excessive attention‑seeking emotions, usually beginning in early adulthood, including inappropriately seductive behavior and an excessive need for approval.”  CMS Ex. 1 at 2; CMS Ex. 6 at 1.  A Resident Assessment and Care Screening dated April 22, 2019, documents that R1 had no issues with her ability to hear, make herself understood, or understand others.  The assessment also confirms that she had no short term or long term memory deficits.  CMS Ex. 6 at 7, 9.  R1’s care plan also documented that if R1 made unrealistic requests for assistance or attention, staff were to approach her “calmly” and speak to her “calmly” and assist her to develop more appropriate methods of coping and interacting.  CMS Ex. 6 at 18.

On August 4, 2019, Resident 2 (R2) was a 68-year-old resident who had been at the facility since May 10, 2019.  His admitting diagnoses included anxiety disorder, major depressive disorder, heart failure, peripheral vascular disease, cerebral infarction, chronic obstructive pulmonary disease, and diabetes.  CMS Ex. 7 at 1-2.  R2 was not cognitively impaired and was able to hear adequately without the need for a hearing aide.  CMS Ex. 7 at 3.

The regulatory standard and the facility’s policies

42 C.F.R. § 483.12(a) provides that a facility resident has the right to be free from abuse, neglect, misappropriation of resident property, and exploitation.  The facility must not “use verbal mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion.”  42 C.F.R. § 483.12(a)(1).  In pertinent part, the regulations define “abuse” as the “willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish.”  42 C.F.R. § 483.5.  “Willful . . . means the individual must have acted deliberately, not that the individual must have intended to inflict injury or harm.”  Id.

As of the time in question, the facility’s abuse policy provided that all reports of abuse shall be promptly and thoroughly investigated by facility management.  CMS Ex. 10 at 1.

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The policy defines verbal abuse as “any use of oral, written, or gestured language that willfully includes disparaging and derogatory terms to residents or their families, or within hearing distance, to describe residents regardless of their age, ability to comprehend, or disability.”  CMS Ex. 10 at 5.  The policy also defines mental abuse as “[b]ut not limited to, humiliation, harassment, threats of punishment, or withholding treatment or services.”  Id.  Should a suspected violation of abuse be reported, the facility administrator or his/her designee is mandated to promptly notify the state licensing agency as well as law enforcement, medical personnel, and other entities identified in the policy.  The policy specifically requires that “verbal/written notices to agencies will be made within 2 hours of the occurrence of such incident and such notice may be submitted via special carrier, fax, email, or by telephone.”  CMS Ex. 10 at 3.

The underlying events of August 4 through August 6, 2019

On August 4, 2019, R1 shared a room with a resident who had a gastronomy tube (G‑tube) machine, a machine for mechanical feeding.  Near 8:00 p.m., the G-tube machine began beeping.  When the beeping continued, R1 used her call light to request assistance.  CMS Ex. 5 at 3.  When a Certified Nursing Assistant (CNA1) responded to the call light, R1 explained that the machine was continuously beeping.  CNA1 explained to R1 that she could not touch the machine or she would get a warning.  R1 asked if the charge nurse could come in to turn off the beeping.  CNA1 reported back that the charge nurse (LVN1) would come to attend to the machine.  When several minutes passed and LVN1 had not come to R1’s room, R1 yelled out to LVN1.  Several minutes later, LVN1 entered the room.  CMS Ex. 5 at 3-4.

The record contains several accounts of what LVN1 said to R1 when he entered the room.  During the facility’s internal investigation of the incident, R1 contended that LVN1 pointed his finger at her and yelled at her.  CNA1 reported that LVN1 yelled so loudly that she could hear it even though she was not in R1’s room.  CMS. Ex. 5 at 16‑18.  R2 reported that he heard LVN1 yelling at someone; however, he did not know with whom LVN1 was speaking.  R2 recalled hearing LVN1 say “shut up” and also to say that he had heard the resident’s pump beeping.  CMS Ex. 5 at 5-6.  CNA1 also recalled that while she could hear both arguing, she heard LVN1 tell R1 that she was hard-headed and exactly like another resident.  CMS Ex. 5 at 17.  CNA1 also recalled that LVN1 was speaking loudly with a “strong tone of voice.”  CMS. Ex. 5 at 17.  R1 told the surveyor that during the conversation, LVN1 called her stupid.  CMS Ex. 5 at 3.

R2 told the surveyor that he tried to avoid LVN1 because of LVN1’s demeanor and condescending attitude that made him angry and upset.  CMS Ex. 1 at 4.  R2 stated that LVN1 was rude to other residents, and R2 reported that he tried to also avoid LVN1 as LVN1 makes him upset and makes him feel like he is not worth anything.  CMS Ex. 5 at 6.

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During the facility’s internal investigation, LVN1 told the Administrator that R1 insulted him, and he only told her to keep her voice low.  CMS Ex. 9 at 15.  CNA1 told the surveyor that later in the day on August 4, LVN1 asked her to sign a prepared statement, stating that R1 had been aggressive with him and that nothing had happened.  CNA1 not only refused LVN1’s request, but told the surveyor that LVN1 was aggressive and abrupt toward residents.  CMS Ex. 5 at 17-18.

R1’s Reports of Verbal Abuse

Later in the day on August 4, R1 asked to speak with the nursing supervisor (RN1).  RN1 came to R1’s room, and R1 reported that LVN1 yelled at her and made her feel like a little kid.  CMS Ex. 5 at 3-4; CMS Ex. 9 at 11.  During the conversation, RN1 told R1 that she would report the matter to the facility administration.  CMS Ex. 5 at 3.  Later that evening, RN1 interviewed LVN1 about the incident.  After LVN1 asserted that nothing happened, RN1 made no further inquiries.  CMS Ex. 5 at 19-20.

The following day, R1 told the DON about LVN1’s actions the night before.  CMS Ex. 11 at 6.  Although the DON spoke with LVN1 about the allegations and verified the incident with CNA1, the record reflects that the matter was not brought to the attention of facility administration.  CMS Ex. 9 at 3.  The following day, August 6, and two days after the initial incident, R1 went to the Administrator.  She told the Administrator that she was verbally abused by LVN1 and that he had been very disrespectful to her.  It was at that point that the Administrator filed a report of the alleged verbal abuse with the state, the Ombudsman, and the Police Department.  CMS Ex. 9 at 3; CMS Ex. 16 at 3-5. The facility suspended LVN1 on August 16 for one day only.

1. The facility violated 42 C.F.R § 483.12(a).

Petitioner does not dispute that the August 4, 2019 incident involved yelling and acknowledges that LVN1 spoke loudly during the interchange with R1.  Pet. Brief at 3, 11.  Petitioner submits, however, that the verbal interchange was initiated by R1, and that it is R1’s personality/histrionic disorder that caused her to “confusingly and mistakenly misinterpret LVN1 as yelling at her.”  Pet. Brief at 7.  Petitioner asserts that in his attempt to “calm” R1, LVN1 gestured toward the feeding pump and spoke loud enough to compensate for the sound of the feeding pump.  Id.

Petitioner argues that “disagreements, differing opinions, and arguments are a common fact of life” and “sometimes they are necessary.”  Petitioner also argues that sometimes residents need to be spoken to loudly.  Pet. Brief at 11.  Petitioner cites NHC Healthcare Athens, DAB CR1870 at 28 (2008) to argue that “the regulations do not require that a facility be an insurer or unconditional guarantor of good outcomes in its delivery of services to its residents.”  I note, however, that this quotation is a comment taken from an ALJ’s decision.  The comment was in conjunction with a finding that was not appealed to

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the Board.  Accordingly, the Board neither sustained the ALJ’s finding nor addressed the ALJ’s related dicta.  Nevertheless, the Board has clearly held that ALJ decisions are not precedential and are not binding authority on the Board or other ALJs.  See, e.g., Avalon Place Trinity, DAB No. 2819 at 13 (2017); Green Oaks Health & Rehab. Ctr., DAB No. 2567 at 9 (2014); Lopatcong Ctr., DAB No. 2443 at 12 (2012).  Accordingly, I find the ALJ’s comment to have no significance to the allegation of abuse and the issues herein.

Petitioner denies that there was abuse because “an isolated incident of a resident, with a diagnosed personality disorder, purposely initiated an argument with an employee and, consistent with her personality and desire, generated a loud response and an argument.”  Pet. Brief at 10.

Without citing specific record evidence to support the statements, Petitioner asserts that R1 has a history of expecting preferential treatment, making negative or derogatory remarks about staff when she does not get her way, and being aggressive.  Pet. Brief at 6‑7.  Clearly, RN1 discounted R1’s allegation of verbal abuse after speaking with LVN1 and took no further action.  In a similar manner, the DON deemed it unnecessary to bring the matter to the Administrator’s attention after R1’s allegation of verbal abuse.  By their actions, both supervisors treated the allegations of verbal abuse in much the same way and apparently acted on their own assessment of the merits of the allegation.

Petitioner argues that all the circumstances need to be considered in determining whether the facility was in substantial compliance.  Petitioner’s overall argument appears to suggest that an allegation of abuse must be viewed in light of a resident’s past behavior and diagnosed mental disorder.  The regulations say otherwise.  “Instances of abuse of all residents, irrespective of any mental or physical condition, cause physical harm, pain, or mental anguish.”  Abuse includes verbal, sexual, physical, and mental abuse.  42 C.F.R. § 488.301 (emphasis added).

Assuming all of Petitioner’s assertions about R1’s personality and behavior are correct, Petitioner’s argument lacks merit.  Petitioner is tasked with the ethical and statutory duty to protect and care for the residents in its care.  This obligation extends to all residents regardless of their mental status and behavior.  To imply that there is no abuse because R1 may have initiated the disturbance or that R1 has a history of difficult behavior does not absolve the facility of its duty to protect a resident from verbal abuse.  Even if R1 used derogatory language or even yelled at LVN1 in frustration, that does not negate or excuse LVN1’s verbal responses to R1.  The relationship between the facility’s employees and the residents is not a level playing field where an employee is free to yell or speak harshly to residents because of, or in return for, the residents’ comments or behavior.

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No matter the extent to which R1 may have participated in or had any role in creating the incident, she obviously interpreted LVN1’s comments as demeaning and derogatory.  This is evidenced by the fact that she reported this incident to RN1 on the same night.  When no action was taken, she took her concerns to the DON the next day.  Again, when nothing happened, she took her concerns to the Administrator the following day.  R1’s mental anguish is further demonstrated by her continuing concerns about LVN1.  When the surveyor asked R1 how she felt about LVN1’s continued presence in the facility, she responded, “As long as he does not get near me, I’m fine. He makes me scare[d]and hope he doesn’t try to come and get me.”  CMS Ex. 5 at 6.

As the Board has found, mental anguish is in itself a form of abuse for which a facility may be cited.  Gold Living Trussville, DAB No. 2937 at 13 n.8 (2019).  Under the facility’s policy, abuse is “oral, written, or gestured language that willfully includes disparaging and derogatory terms to residents . . . to describe residents, regardless of their age, ability to comprehend, or disability.”  CMS Ex. 10 at 5.  Within the framework of the facility’s own policy, it is apparent that R1 viewed LVN1’s comments and actions as abuse.  Her perception is not negated or neutralized by her personality disorder or her history of interaction with staff and residents.

Although Petitioner does not acknowledge that R1 was verbally abused on August 4, 2019, Petitioner asserts that CMS has not proven that the facility “knew or should have known that the Briarcrest staff in this very isolated and unique instance was not complying with the regulatory requirements.”  Pet. Brief at 12.  Petitioner’s attempt to disavow responsibility for any alleged abuse is not persuasive.  The Board has held that a facility “cannot disavow responsibility for the actions of its employees.”  Springhill Senior Residence, DAB No. 2513 at 14 (2013).  Citing its earlier decisions in Beverly Health Care Lumberton, DAB No. 2008-05, Denial of Petition for Reopening of DAB No. 2156 at 6 (2008); Emerald Oaks, DAB No. 1800 at 7 n.3 (2001); and North Carolina State Veterans Nursing Home, Salisbury, DAB No. 2256 (2009), the Board reiterated in Springhill that “for purposes of evaluating a facility’s compliance with the Medicare and Medicaid participation requirements, the facility acts through its staff and cannot dissociate itself from the consequences of its employees’ actions.  Springhill Senior Residence, DAB No. 2513 at 14.

Petitioner’s argument is further diminished by the undisputed evidence that RN1 learned of the abuse allegations within hours of the underlying incident and yet no administrative action was taken until two days later.

Accordingly, the record as a whole demonstrates that the facility was not in substantial compliance in violation of 42 C.F.R. § 483.12(a).

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2. The facility violated 42 C.F.R. § 483.12(c).

42 C.F.R. §§ 483.12(c) and 483.5 require that facilities must ensure that all alleged violations involving abuse, “including verbal abuse,” are reported immediately, but not later than 2 hours after the allegation is made.  The facility’s own policy also requires that its administrator report suspected abuse within two hours to state authorities.  The policy specifically includes “verbal abuse” as a part of this mandate.  CMS Ex. 10 at 3.

There is no dispute that later in the evening of August 4, R1 asked to speak with the supervisory nurse.  When speaking with the supervisory nurse, R1 reported that LVN1 had yelled at her and treated her like a child.  CMS Ex. 5 at 19.  R1 recalled that the supervisory nurse told her that she would mention it to administration.  The following day, R1 pursued the matter further and reported LVN1’s behavior to the DON.  Although the DON verified the incident with the CNA and spoke with LVN1, no notice was given to the Administrator.  The facility notified the state, as required under the regulations and its own policy, only after R1 reported the incident to the Administrator on August 6.

Regardless of my findings discussed above, I do not need to find that LVN1 verbally abused R1 in order to find that the facility was not in substantial compliance with 42 C.F.R. § 483.12(c).  The regulations and the facility’s own policies require the facility to report any alleged violations of abuse immediately, but not later than two hours after the allegation is made.  The immediate notice must be made not only to the administrator, but also to the state survey agency and other entities that are required by State law.  The reporting requirements are triggered by any allegation of abuse, whether or not it is recognized as such by the facility.  Rockcastle Health & Rehab. Ctr., DAB No. 2891 at 11 (2018); Illinois Knights Templar Home, DAB No. 2369 at 11 (2011).  The regulation does not permit a facility to decline to report or to delay reporting based on its own evaluation that an allegation is not credible.  Rosewood Care Ctr. of Swansea, DAB No. 2721 at 10 (2016), aff’d, Rosewood Care Ctr. of Swansea v. Price, 868 F. 3d 605 (7th Cir. 2017).

CMS asserts that the facility’s failure to report R1’s allegation of abuse after her first or second report establishes that the facility failed to implement its own abuse reporting policy.  Citing Somerset Nursing & Rehabilitation Facility, DAB No 2353 at 2 (2010), CMS asserts the requirement to report “all” allegations “affords no discretion to a facility’s staff to decide what allegations are sufficiently credible to be reportable.”  CMS Brief at 16.  At a minimum, RN1 was required to report R1’s allegation of abuse to the Administrator.  She did not have the option of dismissing the matter after only speaking with LVN1.  Although the DON pursued the matter somewhat further by verifying the incident with CNA1, the DON was similarly not permitted to determine the merits of the allegation without the mandatory notification to the Administrator and the state.

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Petitioner does not deny that the facility delayed two days in notifying the state of the abuse allegations.  On August 9, 2019, Petitioner submitted a packet of materials identified as “Summary and Conclusion” and signed by the facility’s administrator.  CMS Ex. 9 at 5-6.  I note that the facility’s prepared summary uses somewhat different wording of R1’s allegations in describing R1’s conversations with RN1, the DON, and the Administrator.  The Administrator’s prepared summary includes R1’s August 4, 2019, allegation that LVN1 was “disrespectful” to her.  In describing the conversation between R1 and the DON, the Administrator notes that R1 “talked about the incident;” however, the Administrator did not specifically identify R1’s allegations.  In describing R1’s conversation with the Administrator on August 6, the Administrator includes that R1 stated that she felt that she was “verbally abused” and that LVN1 was “very disrespectful” to her.  The Administrator writes that it was at that point that the alleged abuse was reported to the state and the other required entities.  While the summary seems to imply that the Administrator acted appropriately and promptly reported the matter to the state upon hearing the allegation of verbal abuse, the record as a whole indicates that R1 alleged abuse as early as August 4 when she spoke with RN1 and that she continued to allege abuse when she spoke with the DON on August 5.  Regardless of what words she may have used to describe the August 4 incident, she clearly alleged abusive behavior as early as August 4, two days prior to the facility’s report of abuse.

Citing Cedar View Good Samaritan, DAB No. 1897 at 11 (2003), the Board in Britthaven, Inc., DAB No. 2018 at 15 (2006) reiterated that “the salient question is not whether any abuse in fact occurred or whether [a facility] had reasonable cause to believe that any abuse occurred, but whether there was an allegation that facility staff had abused a resident.”  Regardless of the words that R1 may have used in each of her reports of abuse, the facility was put on notice as early as August 4 that there was an allegation of abuse.

In the Administrator’s prepared summary and conclusion, the Administrator documents that R1 “reported” on August 4, 2019 that LVN1 was disrespectful to her and “the facility filed the grievance for the patient.”  CMS Ex. 9 at 3; CMS Ex. 16 at 3-5.  The Administrator reported to the surveyor that he had not reported the matter “right away” as it was initially “placed as a grievance.”  The surveyor reports that there was no grievance report available.  CMS Ex. 5 at 16.  Petitioner does not, however, provide any additional information concerning the referenced grievance in its Appeal and Request for Hearing or in its brief.  Had a grievance been filed on August 4, 2019 on behalf of R1, such action would not have obviated the facility’s requirement to report the alleged abuse as required by 42 C.F.R § 483.12(c) or as required by the facility’s policy for reporting abuse.  The Board has previously addressed a facility’s argument that a facility may use reasonable judgment in determining that a complaint may be appropriately handled as a grievance without the requirement to report to the state.  Rockcastle Health and Rehabilitation

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Center, DAB No. 2891 at 12 (2018).  The Board rejected the facility’s grievance argument and affirmed the facility’s requirement to report all allegations of abuse.  The Board rejected the facility administrator’s attempt to justify his failure to report the allegations immediately by contending that after his own investigation, he considered the allegations as grievances rather than allegations of abuse.  Id.  As the Board pointed out, facilities are not free to view their internal investigations as an opportunity to “pre‑screen” whether an alleged or suspected instance of abuse is substantiated.  Id.  Thus, even if the facility filed a grievance on behalf of R1 as early as August 4, the facility was not in substantial compliance with 42 C.F.R § 483.12(c) when it delayed reporting the allegation until August 6, 2019.

Petitioner also argues that CMS has not proven that the facility “knew or should have known that the Briarcrest staff in this isolated and unique instance was not complying with the regulatory requirements.”  Pet. Brief at 12.  Despite Petitioner’s assertions, however, the Board has repeatedly held that a SNF acts through its staff and administrators who, as agents of their employers, “make and implement policies, provide care, and perform the various responsibilities called for by federal programs to protect and ensure the welfare of residents.”  Beverly Health Care Lumberton, DAB Ruling No. 2008-05 at 6-7; see also SpringHill Senior Residence, DAB No. 2513 at 14; Kindred Transitional Care & Rehab-Greenfield, DAB No. 2792 at 13-14 (2017).  Accordingly, Petitioner cannot disavow the actions of LVN1, RN1, or even the DON by asserting that Petitioner was without knowledge of their actions.

3. The civil money penalty imposed is reasonable.

Here, CMS imposed a penalty of $935 per day from August 4, 2019 through December 25, 2019.  These penalties are at the low end of the applicable penalty range ($110 to $6,579 per day).  42 C.F.R. §§ 488.408(d)(1)(iii) and 488.438(a)(1)(ii).  Considering the relevant factors discussed below, these penalties are reasonable.

In appealing a determination of noncompliance, a SNF may challenge the reasonableness of the amount of any CMP imposed.  Crawford Healthcare & Rehab,DAB No. 2738 at 2 (2016).  In deciding whether a CMP is reasonable, I may consider only the factors specified in 42 C.F.R. § 488.483(f).  Those factors include:  (1) the facility’s history of noncompliance; (2) the facility’s financial condition; (3) factors specified in 42 C.F.R § 488.404; and (4) the facility’s degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort or safety.  The absence of culpability is not a mitigating factor.  The factors in 42 C.F.R. § 488.404 include:  (1) the scope and severity of the deficiency; (2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and (3) the facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies.

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I must consider whether the evidence supports a finding that the amount of the CMP is at a level reasonably related to an effort to produce corrective action by a provider with the kind of deficiencies found and in light of the above factors.  I am neither bound to defer to CMS’s factual assertions, nor free to make a wholly independent choice of remedies without regard for CMS’s discretion.  Barn Hill Care Ctr., DAB No. 1848 at 21 (2002); Cmty. Nursing Home, DAB No. 1807 at 22 et. seq. (2002); Emerald Oaks, DAB No. 1800 at 9 (2001); CarePlex of Silver Spring, DAB No. 1683 at 8 (1999).

The daily or per-instance penalty amount selected by CMS is presumptively reasonable based on the regulatory factors found in 42 C.F.R. § 488.438(f).  N. Las Vegas Care Ctr., DAB No. 2946 at 16 (2019) (citing Crawford, DAB No. 2738 at 19).  The burden is on the facility “to demonstrate, through argument and the submission of evidence addressing the regulatory factors, that a reduction is necessary to make the CMP amount reasonable.”  N. Las Vegas, DAB No. 2946 at 16; Crawford, DAB No. 2738 at 19.

In its brief, Petitioner lists the factors cited in 42 C.F.R. § 488.438(f) and asserts:  “There is no evidence in the case showing that the Petitioner has a poor compliance history.”  Petitioner also asserts:  “Nor is there evidence pertaining to its financial condition.” Pet. Brief at 12.  With respect to culpability, Petitioner contends:  “[T]he evidence does not support a finding of a high degree of culpability.”  Id. at 13.  Petitioner also contends:  “If anything, Petitioner’s staff made a judgment error in how loud and in what manner to respond, if anything.”  Id.  Furthermore, Petitioner maintains that with respect to the seriousness of its noncompliance, there was no serious risk and that the only risk, at best, was hypothetical and posed only the most minimal possibility of potential harm.  Id.  I note, however, that proof that a deficiency resulted in actual harm is unnecessary.  CMS need only show that a deficiency created a “potential” to cause more than minimal harm in order to find a facility out of substantial compliance.  Lakeport Skilled Nursing Ctr., DAB No. 2435 at 5 (2012).  In this instance, R1’s allegation of abuse was not hypothetical as Petitioner suggests.  The allegation was not only viable, but reiterated on three separate occasions to staff over the course of two days.  Thus, the cited deficiencies created a potential to cause more than minimal harm.

Although Petitioner submits that there is no evidence of a poor compliance history, CMS submitted evidence that the facility was cited for compliance issues during the state’s recertification surveys in 2016, 2017, and 2018.

Citing § 488.438(f), CMS asserts that culpability includes, but is not limited to, indifference or disregard for resident care, comfort, or safety.  CMS submits that multiple staff members either overheard LVN1’s abusive words or received timely reports of LVN1’s of abusive words to R1, and yet multiple staff members failed to report suspected or alleged abuse.  CMS contends that such actions reflect “indifference and disregard toward the well-being of residents.”  CMS Brief at 20.  While the absence of

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culpability is not a mitigating factor within the mandate of § 488.438(f), I note that although R1 reported the alleged abuse to both RN1 and to the DON over the course of two days, neither individual regarded the allegations as worthy of report to the Administrator or the state.  Even if they assessed these allegations in the context of R1’s general behavior, such actions reflect a degree of disregard and indifference that suggests culpability.

In summary, Petitioner argues that the preponderance of evidence demonstrates that there was no violation and therefore no penalty is reasonable.  Pet. Brief at 13.  Petitioner does not, however, offer argument or evidence in support of a reduced CMP amount.  Furthermore, Petitioner has not asserted that its financial condition affects its ability to pay the CMP.

In disputing the merits of the cited deficiencies, Petitioner argues that the information in the Statement of Deficiencies “is not accurate and complete, is missing relevant information, takes information out of context and misstates interviews.”  Pet. Brief at 9.  As I have noted earlier in this decision, the Board has consistently held that allegations of inadequate survey performance are irrelevant to an ALJ or Board review of CMS’s noncompliance and remedy determinations.  See Avon Nursing Home, DAB No. 2830 at 11 (2017) and the cases cited therein.  Based on my evaluation of the credibility of the submitted evidence and without deference to CMS’s or the state agency’s factual findings or legal conclusions, I find that the facility is culpable for both of these serious failings.  See N.C. State Veterans Nursing Home, Salisbury, DAB No. 2256 at 24 (2009).  Any assertions of an incomplete or inaccurate survey do not negate the remedies for noncompliance when the noncompliance has been established by credible record evidence.  For the reasons discussed above and as noted above, I find the CMP amount reasonable.

IV. Conclusions

For the reasons set forth above, I conclude that Petitioner was not in substantial compliance with the participation requirements at 42 C.F.R. § 483.12(a) and (c).  I further conclude that the CMP at issue is reasonable.