Alexandria Care Center, DAB CR5924 (2021)

DECISION

Alexandria Care Center (Petitioner or “the facility”), is a skilled nursing facility (SNF) in Alexandria, Indiana, that participates in the Medicare program.  Based on a survey completed on September 1, 2017, the Centers for Medicare & Medicaid Services (CMS) determined that Petitioner was not in substantial compliance with Medicare participation requirements relating to the prevention of abuse, the reporting of allegations of abuse, the implementation of abuse prevention policies, and the development and implementation of comprehensive care plans.  CMS imposed a per-day civil monetary penalty (CMP) of $505 from March 11, 2017 through and inclusive of September 24, 2017.  For the reasons discussed below, I find that Petitioner was not in substantial compliance with Medicare program requirements and the remedy imposed is reasonable.

I.    Background

The Social Security Act (Act) establishes requirements for SNF participation in the Medicare program and authorizes the Secretary of Health and Human Services (“the Secretary”) to promulgate regulations implementing those statutory provisions.  See 42 U.S.C. § 1395i-3; 42 C.F.R. pts. 483 and 488.  To participate in the Medicare program, SNFs must maintain substantial compliance with program participation requirements.  In order to be in substantial compliance, any deficiencies may “pose no

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greater risk to resident health or safety than the potential for causing minimal harm.”  42 C.F.R. § 488.301.  “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.”  Id.

The Secretary contracts with state agencies to conduct periodic surveys to determine whether SNFs are in substantial compliance with participation requirements.  42 U.S.C. § 1395aa(a); 42 C.F.R. §§ 488.10, 488.20.  The Act and its implementing regulations require that facilities be surveyed on average every twelve months, and more often if necessary, to ensure that identified deficiencies are corrected.  42 U.S.C. § 1395i‑3(g)(2)(A); 42 C.F.R. §§ 488.20(a), 488.308.  CMS may impose a per-day CMP for the number of days a facility is not in substantial compliance, or a per-instance CMP for each instance of noncompliance.  42 U.S.C. § 1395i-3(h)(2)(B)(ii); 42 C.F.R. § 488.430(a).  

If CMS imposes a remedy based on a noncompliance determination, then the facility may request a hearing before an administrative law judge (ALJ) to challenge the noncompliance finding and enforcement remedy.  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).

Surveyors from the Indiana State Department of Health Long-Term Care Division (state agency) completed a complaint survey on September 1, 2017, at which time the state agency determined that the facility was not in substantial compliance with Medicare program participation requirements.  The state agency cited noncompliance with 42 C.F.R. § 483.12(a)(1) (Tag F223Federal nursing home regulations substantially changed beginning on November 28, 2016.  81 Fed. Reg. 68,688 (Oct. 4, 2016).  Further, CMS revised the F-tags in November 2017; the F-tags referenced herein pre-date the redesignation of F-tags.  See https://www.cms.gov/medicare/provider-enrollment-and-certification/guidanceforlawsandregulations/nursing-homes (“F-Tag Crosswalk”) (last visited August 4, 2021).  – free from abuse) at the “G” level of scope and severity,Scope and severity levels are used by CMS and state survey agencies when selecting remedies.  The scope and severity level is designated by letters A through L.  Pub. 100-7 (State Operations Manual), chap. 7, § 7400.3.1 (Matrix for Scope and Severity); see also 42 C.F.R. § 488.408.  As relevant here, a scope and severity level of “G” indicates an isolated instance of actual harm that was not immediate jeopardy to resident health or safety, and a scope and severity level of “D” indicates an isolated instance that had the potential to cause more than minimal harm. and 42 C.F.R. §§ 483.12(a)(3)-(4) and 483.12(c)(1)-(4) (Tag F225 – investigate/report alleged violations), 483.12(b)(1)-(3) and 483.95(c)(1)-(3) (Tag F226 –

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develop/implement abuse/neglect policies), and 483.20(d) and 483.21(b)(1) (Tag F279 – develop/implement comprehensive care plans), all at the “D” level of scope and severity.

In a letter dated April 10, 2018, CMS notified Petitioner that it concurred with the state agency’s findings that Petitioner was not in substantial compliance with Medicare program participation requirements.  CMS Ex. 2.  CMS informed Petitioner that the “most serious deficiency” was cited as Tag F223, 42 C.F.R. § 483.12(a)(1), at the “G” level of scope and severity.  CMS Ex. 2 at 1.  CMS imposed a per-day CMP of $505 beginning on March 11, 2017, and continuing through September 24, 2017.  CMS Ex. 2 at 2.

Petitioner, through counsel, timely requested a hearing on May 25, 2018.This case was reassigned to me on March 8, 2019.  Thereafter, I issued my standing pre-hearing order directing the parties to submit the written direct testimony of any proposed witnesses.  I also allowed the parties an opportunity to submit additional briefing.  CMS filed 50 proposed exhibits (CMS Exs. 1-50), and Petitioner filed 25 proposed exhibits (P. Exs. 1‑25).

Petitioner objects to the admission of CMS Exs. 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 12, 15, 34, 35, 36, 37, 38, 39, and 47.In a November 21, 2018 filing, CMS withdrew CMS Ex. 47.  Preliminarily, I note that an ALJ rules on admissibility of evidence and that “[e]vidence may be received at the hearing even though inadmissible under the rules of evidence applicable to court procedure.”  42 C.F.R. § 498.61.

CMS does not cite to CMS Ex. 1 in its principal brief.  This exhibit addresses a fire at the facility on August 30, 2017, and is neither relevant nor material to the issues addressed in this decision.CMS also cited to CMS Ex. 14, a surveyor declaration, in support of its factual statement that a fire at the facility delayed the survey.  Petitioner did not object to CMS Ex. 14.  I sustain Petitioner’s objection.

I overrule Petitioner’s objection to CMS Ex. 2, which is CMS’s April 10, 2018 initial determination imposing enforcement remedies.  Petitioner argues that CMS Ex. 2 is “unsworn and is entirely dependent upon the Survey Document,” yet points to no requirement that notice of an agency enforcement action be sworn.  Through the instant request for hearing, Petitioner has had an opportunity to dispute the findings of noncompliance that are the basis for the imposition of enforcement remedies; in fact, CMS Ex. 2 establishes Petitioner’s right to request a hearing.  See 42 C.F.R.

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§ 498.3(b)(13).  Petitioner has offered no plausible reason supporting why a relevant notice issued by CMS is inadmissible, and I overrule this frivolous objection.

Petitioner objects to CMS Ex. 3, a completed Form CMS-2567, “Statement of Deficiencies and Plan of Correction,” citing its disagreement with the survey process and the content of the statement of deficiencies.  A statement of deficiencies is a standard form completed by surveyors for the purpose of documenting recommended findings of noncompliance.A facility may use the same form to report a plan of correction and completion date.  See Britthaven of Chapel Hill, DAB No. 2284 at 6-7 (2009).  The state agency surveyors who completed the form submitted separate sworn statements attesting that the completed form “accurately describe[s]” their “observations, interviews, and record review from the survey,” and Petitioner was given an opportunity to cross‑examine the surveyors.  CMS Exs. 49 at 2; 50 at 2.  To the extent Petitioner disagrees with the surveyors’ recommended findings of noncompliance, Petitioner has not identified any cognizable legal basis to exclude the statement of deficiencies from the evidentiary record.  By filing a request for hearing, Petitioner had an opportunity to challenge the findings of noncompliance that are the basis for the imposition of enforcement remedies.  Petitioner has not cited any plausible reason to exclude the Form CMS‑2567 from the evidentiary record, and I overrule its objection to CMS Ex. 3.I note that Petitioner appended both CMS Exs. 2 and 3 to P. Ex. 7 (supplemental witness affidavit).

I overrule Petitioner’s objection to CMS Ex. 4, which is its own abuse prevention policy.  The apparent basis for Petitioner’s objection is that it disagrees with content of its own policy, to include “the sub-definition of ‘verbal abuse’” provided in the policy.  Petitioner has not presented any cognizable basis why its own anti-abuse policy is inadmissible, particularly when three of the deficiencies that are the subject of its request for hearing involve its handling of allegations of abuse.  Although Petitioner argues that CMS Ex. 4 is “irrelevant to the allegations of CMS and the [statement of deficiencies],” it could not be more mistaken.  Petitioner’s adherence (or lack thereof) to its own abuse prevention policy is an issue in this decision.  See CMS Ex. 3 at 16 (deficiency cited under Tag F226 (develop/implement abuse/neglect, etc. policies, 42 C.F.R. §§ 483.12(b)(1)-(3) and 483.95(c)(1)-(3))).

Similarly, Petitioner has not offered any plausible basis why numerous resident records should be excluded from the evidentiary record.  Petitioner objects to CMS Exs. 5 (facility-generated “Mood and Behavior Communication Memos,” herein “Memos”), 6 (facility social service notes), 8 and 9 (resident care plan records), 10 and 12 (resident therapy records), 11 (resident psychiatric care records), and 34-39 (physician orders, interdisciplinary care plan conference records, resident care plans, social service assessments, social service progress notes, and Memos) based on its apparent belief that

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its witness testimony is more probative than its resident care records.  CMS correctly points out, “Petitioner here is attacking its own records.”  Petitioner has not provided any legal basis to support that the aforementioned exhibits are inadmissible, and I overrule Petitioner’s objections.

Petitioner objects to CMS Ex. 15, an “Issue Brief” by the National Association of State Units on Aging.  I overrule this objection because Petitioner has not offered a specific basis for its objection. 

I admit CMS Exs. 2-46 and 48-50, and P. Exs. 1-25 to the evidentiary record.

The parties have filed briefs, and I previously denied Petitioner’s “Motion for Partial Summary Judgments” because Petitioner had not identified undisputed facts that would support a disposition in its favor.  In filings dated July 18, 2019, the parties agreed that a decision should be issued on the record without a hearing for cross-examination of witnesses.  I therefore issue this decision on the merits.

II.   Issues

The issues presented are:

Whether Petitioner was in substantial compliance with the Medicare participation requirements at 42 C.F.R. §§ 483.12(a)(1), 483.12(c)(1)-(4), 483.12(b)(1)-(3), 483.95(c)(1)-(3), 483.20(d), and 483.21(b)(1).Because the requirement at 42 C.F.R. § 483.12(a)(3)-(4) (addressing employment and reporting of facility staff) is irrelevant to the deficiency cited under Tag F225, I omit further reference to those provisions.

If Petitioner was not in substantial compliance, whether the remedy imposed of a per-day CMP of $505 from March 11 through September 24, 2017, is a reasonable enforcement remedy.

III.  DiscussionFindings of fact and conclusions of law are in bold and italics.

1.  Facility records document an incident on March 11, 2017, in which an agitated Resident H was “verbally aggressive” and made “negative statements” to his roommate wife, Resident M, who exhibited “Crying/Tearfulness” in response.

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Resident H was admitted to the facility in October 2016, at which time his diagnoses included Alzheimer’s disease, dementia without behavioral disturbances, depression, subdural hemorrhage, normal pressure hydrocephalus with shunt, and multiple physical impairments.  CMS Ex. 30 at 8.  His wife, Resident M, was admitted to the facility in January 2017 and became his roommate.  CMS Ex. 38 at 5.  Resident M’s diagnoses upon admission included depression, anxiety, lewy body dementia, a history of left hip replacement, and a history of multiple falls.  CMS Ex. 38 at 5.  Resident M had an unsteady gait and used a walker for mobility.  CMS Ex. 38 at 5.  In a May 25, 2017 social services assessment of Resident M, the facility Social Services Director (SSD) reported suspected past verbal abuse.  CMS Ex. 37 at 4.

On March 11, 2017,Petitioner dated this form March 11, 2016; the correct date is March 11, 2017.  CMS Ex. 31 at 1. Petitioner completed a Memo for an incident in which Resident H was “Verbally Aggressive,” made “Negative Statements,” and exhibited “Agitation.”  CMS Ex. 31 at 1.  The Memo’s narrative summary reports the following:  

Called to res[ident] room by wife from down the hall, upon entering room noted res[ident] sitting on edge of recliner foot still extended holding on to [wheelchair] telling wife to get him up out of recliner aggressively telling her to do it, she isn’t trying[.]  Wife crying saying she couldn’t.

CMS Ex. 31 at 1.  Petitioner completed a separate Memo for Resident H’s wife to document her “Crying/Tearfulness” in response to the March 11, 2017 incident.  CMS Ex. 39 at 8.  Petitioner reported that “Resident [was] crying in response to husband[’]s request to help him from the chair to go to restroom.”  CMS Ex. 39 at 8.  Petitioner reported that it successfully provided “1:1” intervention with Resident M, allowed her to vent her feelings, and validated her feelings and words.  CMS Ex. 39 at 8.  Although the SSD reviewed and signed each Memo (CMS Exs. 31 at 1; 39 at 8), the SSD did not chart a progress note for either resident on March 11, 2017.Even though there are no social services progress notes dated March 11, 2017, I note that the record includes a “Possible or Mental Anguish Assessment” form completed by the SSD and dated March 11, 2017.  The form lists a straight line through a column listing 19 separate symptoms as indicated by the resident, and another straight line through the column for the same symptoms as observed by staff.  Even though Petitioner’s staff documented that it initiated several interventions to address Resident M’s “Crying/Tearfulness,” the straight lines went through the fields corresponding to an increase in tearfulness and/or crying.  CMS Ex. 37 at 7.  Notably, the form does not document the time it was completed, which is significant because it may not be possible to immediately rule out mental anguish following an incident.  See CMS Ex. 4 at 4 (abuse prevention policy directing that a resident “shall be placed under appropriate monitoring/ supervision”).  CMS Exs. 30, 38.  Rather, the

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SSD documented, on March 20, 2017, “numerous complaints” of Resident H’s “roommate wife” being “upset when [Resident H] becomes agitated.”  CMS Ex. 30 at 6.  A March 20, 2017 progress note for Resident M also documented, for the first time, Resident M’s “history of being tearful if she thinks husband may get upset.”  CMS Ex. 38 at 5.  Resident H’s March 20, 2017 progress note documents that the SSD “educated” Resident H on the “effect [his] behavior has on wife.”  CMS Ex. 30 at 6.  Between February 7 and April 24, 2017, Petitioner did not add any new focus areas or interventions to Resident H’s care plans.Only weeks after Resident M’s admission, a therapist reported, on February 6, 2017, “there have been reports that [Resident M’s] husband has been verbally abrasive toward her and she tends to take it.”  CMS Ex. 10 at 1.  Care plan interventions added for Resident H in February 2017 address cognitive loss, activities of daily living assistance, and the use of anti-depressants, but do not address his “verbally abrasive” treatment of his wife.  See CMS Ex. 29 at 13-15.  See CMS Ex. 29 at 2 (reporting that a care plan for “conflict with family-friends” was first initiated on April 24, 2017).

Nursing home abuse prevention requirements

Congress has mandated that SNFs “protect and promote the rights of each resident,” to include the “right to be free from physical or mental abuse.”  42 U.S.C. § 1395i‑3(c)(1)(A)(ii).  Implementing regulations likewise mandate that each resident has a right to be free from abuse, and that a facility must not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion.  42 C.F.R. § 483.12, 483.12(a)(1).  “Abuse,” as defined by 42 C.F.R. §§ 483.5 and 488.301, is the “willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish” and includes verbal abuse.  A facility must “[e]nsure that all alleged violations involving abuse . . . are reported [to the facility administrator and state survey agency] . . . not later than 24 hours if the events that cause the allegation do not involve abuse and do not result in serious bodily injury.”  42 C.F.R. § 483.12(c)(1).  Allegations must be thoroughly investigated and reported to the appropriate officials and further abuse must be prevented during the investigation.  42 C.F.R. § 483.12(c).  A facility must also develop and implement written policies and procedures that prohibit and prevent abuse and establish policies and procedures to investigate allegations of abuse.  42 C.F.R. § 483.12(b)-(c).

CMS, through its State Operations Manual (SOM), which provides guidance to surveyors, explained that verbal abuse “may be considered to be a type of mental abuse” and “includes the use of oral, written, or gestured communication, or sounds, to residents within hearing distance, regardless of age, ability to comprehend, or disability.”

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Pub. 100-07 (State Operations Manual), Appendix PP (Rev. 173, eff. Nov. 22, 2017).  The SOM provision includes a non-exhaustive list of examples of mental and verbal abuse, including harassing, mocking, insulting, and ridiculing a resident, and explains that verbal conduct can constitute abuse when it “causes or has the potential to cause the resident to experience humiliation, intimidation, fear, shame, agitation, or degradation.”  The SOM instructs that facility staff should “monitor for any behaviors that may provoke a reaction by residents,” which can include “[v]erbally aggressive behavior, such as screaming, cursing, bossing around/demanding, insulting to race or ethnic group, [and] intimidating.”

The Departmental Appeals Board (DAB) has explained that “a finding of noncompliance with [section 483.12] on its face implies a failure (deliberate or negligent) by a facility to protect a resident from abuse, i.e., from a willfully inflicted injury resulting in harm (physical or mental).”This decision, along with several other DAB decisions cited herein, references the pre‑November 2016 version of the anti-abuse regulations found at 42 C.F.R. § 483.13.  Beverly Health & Rehab. Ctr. – Williamsburg, DAB No. 1748 (2000).  Addressing the requirement to report allegations of abuse, the DAB has explained that “a facility’s reporting and investigation obligations are not dependent on whether or not the facility later determines there was abuse.”  Rockcastle Health & Rehab. Ctr., DAB No. 2891 at 12 (2018), (citing Singing River Rehab. & Nursing Ctr., DAB No. 2232 at 8 (2009)).  The DAB has also addressed that an allegation of abuse must be fully investigated, regardless of whether it is substantiated.  Illinois Knights Templar Home, DAB No. 2369 at 12 (2011).  The DAB has examined the requirement to “implement written policies and procedures that prohibit mistreatment, neglect, and abuse” and held that a facility will not be found to be in substantial compliance with participation requirements if it has “successfully implement[ed] only some of its policies concerning abuse of residents.”  Maysville Nursing & Rehab., DAB No. 2874 at 15 (2018) (emphasis in original).  The DAB further explained that, in examining whether a facility has implemented policies and procedures to prohibit abuse, the issue is “whether the circumstances presented, viewed as a whole, demonstrate a systemic problem in implementing policies and procedures.”  Columbus Nursing & Rehab. Ctr., DAB No. 2247 at 27 (2009) (citing Liberty Commons Nursing & Rehab Ctr. – Johnston, DAB No. 2031 at 14 (2006), aff’d, Liberty Commons Nursing & Rehab Ctr. – Johnston v. Leavitt, 241 F. App’x 76 (4th Cir. 2007)). 

Petitioner’s abuse prevention policy

Petitioner has a policy, “Abuse Prohibition, Reporting and Investigation,” that incorporates much of the SOM’s guidance.  Petitioner’s policy states that the facility “shall prohibit and prevent abuse,” and that “[a]buse is the willful infliction of . . . pain or mental anguish.”  CMS Ex. 4 at 1.  Unlike the regulatory definition of abuse, Petitioner’s definition of verbal abuse does not require that a victim suffer mental anguish.  Rather,

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the policy provides the following definition of abuse:  “Oral, written and/or gestured language that willfully includes disparaging and/or derogatory terms to residents or their families, or within their hearing distance, regardless of their age, ability to comprehend, or disability.”  CMS Ex. 4 at 1.  The policy directs that Petitioner “shall have evidence that all alleged violations are thoroughly investigated and shall prevent further potential abuse” and that it “shall not permit residents to be subjected to abuse by anyone, including . . . other residents . . . .”  CMS Ex. 4 at 2.  Further, the policy requires Petitioner to “ensure” that all alleged violations of abuse are immediately reported to the administrator and that the facility report “all reportable incidents, which include allegations of abuse, immediately to the Long Term Care Division of the State Department of Health.”  CMS Ex. 4 at 2.  With respect to “Investigation, Protection and Reporting,” the policy states:  “All reports of abuse must be reported to the Administrator immediately and to the resident’s representative (sponsor, resident representative) per policy.”  CMS Ex. 4 at 4.  The policy also states, “It is the responsibility of every employee of this facility to not only report abuse situations, but also suspicion of abuse and unusual observations and/or circumstances, to his/her supervisor.”  CMS Ex. 4 at 4.

2.  Beginning on March 11, 2017, Petitioner failed to protect and promote Resident M’s right to be free from abuse, as required by 42 C.F.R. § 483.12(a)(1).

Contemporaneous and probative evidence demonstrates that beginning on March 11, 2017, Petitioner failed to protect and promote Resident M’s right to be free from abuse.  The DAB has explained that “[p]rotecting and promoting a resident’s right to be free from abuse necessarily obligates the facility to take reasonable steps to prevent abusive acts” and that actual abuse is not necessary to determine noncompliance with this requirement.  Western Care Management Corp., d/b/a Rehab Specialties Inn, DAB No. 1921 (2004).  The DAB explained that the goal of keeping residents free from abuse “would be meaningless if [section 483.12(a)(1)] is not read as imposing an obligation to prevent the risk of abuse.”  Golden Living Center – Trussville, DAB No. 2937 at 13 (2019).  The DAB also stated that a “facility’s responsibility to protect its residents from abuse also encompasses the responsibility to protect them from the potential for abuse by family members and visitors.”  Id.  The DAB explained, “the proposition that actual abuse is required to support a section [483.12] deficiency [is] incompatible with the regulation’s underlying purpose (that is, to prevent abuse from occurring in the first place by taking appropriate action responsive to reasonably foreseeable risks).”  Id. n.8. 

The DAB has also addressed that a finding of abuse can be upheld even when there is no finding that an abuse victim suffered mental anguish.  Somerset Nursing & Rehab., DAB No. 2353 at 19 (2010); see 42 C.F.R. § 483.301 (defining abuse).  The DAB explained that when the impact, such as mental anguish, cannot be ascertained because the facility had failed “to conduct proper investigations with prompt examination by physicians or other staff,” that “no showing of actual harm is necessary.”  Id.  Likewise, the DAB also determined, in another case, that a facility’s failure to treat reports “as allegations of

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abuse and investigate them as such” made it “impossible to ascertain how [the alleged abuser’s] conduct affected” the victim.  Illinois Knights Templar Home, DAB No. 2369 at 8.  Because that facility had not investigated an incident (to include addressing whether the victim suffered mental anguish), the DAB determined it was “reasonable to infer” that an abusive resident’s conduct caused another resident to suffer mental anguish.  Id.  The DAB also acknowledged that a facility is bound by its own policy definition of abuse that does not require an abuse victim to suffer mental anguish.  Id. at 9-10.  Although the evidence supports that Resident H caused Resident M mental anguish, as evidenced by Resident M crying in response to Resident H’s verbally aggressive and negative statements, such a finding of mental anguish is unnecessary to determine that Petitioner failed to protect and promote Resident M’s right to be free from abuse.  Substantial noncompliance can be established based on the failure to investigate an allegation of abuse and the resulting failure to protect and promotea resident’s right to be free of abuse.  See 42 C.F.R. §§ 483.5, 483.12(a)(1).

In a Memo documenting the March 11, 2017 incident, Petitioner reported that an agitated Resident H was “verbally aggressive” and made “negative statements” to his roommate wife.  CMS Ex. 31 at 1.  Resident H had “aggressively” told his wife to assist him with getting up, and Petitioner documented she was “crying in response” and cried when explaining she could not assist him.  CMS Exs. 31 at 1; 39 at 8.  In order to address Resident M’s behavior/mood manifestation of “Crying/Tearfulness,” Petitioner provided several successful interventions to Resident M, including one-on-one care, allowing her to vent her feelings, and validating her feelings and words.  CMS Ex. 39 at 8.  Social services progress notes dated more than a week after the incident reflect that Resident M would become upset when Resident H was agitated, and the SSD “educated” Resident H about the effect his behavior had on Resident M.  CMS Ex. 30 at 6.  At that time, the SSD had already received “numerous complaints” of Resident M “being upset” when Resident H became agitated.  CMS Ex. 30 at 6.

CMS argues that the March 11, 2017 incident constituted verbal abuse, as evidenced by Resident M’s reaction of crying in response to Resident H’s verbal aggressiveness.  CMS Br. at 16-17, 23.  Petitioner argues that Resident M was not mentally anguished, and therefore, there was no verbal abuse.  See Petitioner Brief at 27.  Petitioner points to Resident M’s testimony in support of this claim, arguing that she testified “there was no verbal abuse.”  Petitioner Brief at 27.  However, Resident M did not provide such testimony.  See P. Ex. 2.  Rather, Resident M, in testimony provided after Resident H’s death, stated that his “use of profanity never upset [her] and never caused [her] any distress” and that she “never considered [Resident H’s] use of profanity during the time that we were both residents at Alexandria Care Center to be abusive to [her].”  P. Ex. 2 at 1 (emphasis added).  Resident M further explained that she had “one or more diseases which make [her] depressed and sometimes to [sic] cry” and that her husband’s “use of profanity at Alexandria Care Center never made [her] depressed and never made [her] cry.”  P. Ex. 2 at 2 (emphasis added).  But the issue here is not Resident H’s use of

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profanity; in fact, the records of the March 11, 2017 incident do not document the use of any profanity.A care plan for “verbal behavioral symptoms directed toward others,” updated on May 18 and August 17, 2017, listed a pre-printed focus of “cursing at others” that was unchecked.  CMS Ex. 29 at 8.  CMS Exs. 31 at 1; 39 at 8.  Rather, the documented “verbal aggressiveness” and “negative statements” directed at Resident M, along with Resident M’s reaction of crying in response, support a determination of verbal abuse.  Contrary to Petitioner’s claim and Resident M’s testimony, Resident H’s use of profanity is not the issue here. 

Further, to the extent Petitioner misinterprets Resident M’s testimony as an outright denial of being subjected to verbal abuse, a finding of abuse does not hinge on a resident’s personal opinion of whether he or she was abused.  A finding of abuse is determined based on the facts of the incident, the facility abuse policy, and the regulatory provisions.

Petitioner also argues that the testimony of the residents’ daughter that Resident M “never complained to [her] about [Resident H’s] use of profanity or his use of any other language” demonstrates the absence of verbal abuse.  P. Ex. 5 at 2.  However, Petitioner has not demonstrated a failure to report abuse to others establishes that abuse did not occur; in fact, a victim may deny that abuse has occurred.  CMS Ex. 15 at 7 (Issue Brief:  National Center on Elder Abuse, “Late Life Domestic Violence:  What the Aging Network Needs to Know.”).  And although Resident M’s daughter testified that her mother “did not and does not consider anything [Resident H] did at Alexandria to be abusive to her,” Resident M did not make any such statement in her own testimony.  P. Ex. 5 at 2; see P. Ex. 2.  Further, Resident M’s view of whether she was subject to abuse is not dispositive of whether she was abused.  Notably, Resident M’s daughter did not address how she defined abuse and whether her understanding of abuse is consistent with the facility policy and regulatory definition.  See CMS Ex. 4 at 1.  I point out that two Ombudsmen observed that the relationship between Resident H and his wife “had always been on a somewhat verbally aggressive level” during the course of their 30-year marriage.An April 25, 2017 therapy progress note, which addressed Resident H being “verbally aggressive toward staff and his wife,” included an assessment stating, “I suspect that he was ‘King’ at home . . . .”  P. Ex. 10 at 21.  CMS Ex. 16 at 1; see Request for Hearing, Exhibit F.

The Administrator testified that that she “was aware of [Resident H’s] episodic use of profanity and Alexandria developed interventions to address that use.”  P. Ex. 4 at 2.  However, once again, the issue here is not a resident’s use of profanity.  The administrator also testified that she had “personal knowledge from the wife that the Wife did not consider the Husband to be in any way abusive;” yet again, Resident M in her

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own testimony did not make such a claim.  P. Ex. 4 at 2; see P. Ex. 2.  Although the Administrator testified that Resident H and Resident M wanted to live together in the same room, she did not explain how their desire to live together supports the absence of abuse.  P. Ex. 4 at 1-2; see CMS Ex. 15 at 8 (discussing reasons why an elderly victim of abuse may choose to live with an abuser).  Although the Administrator testified about her personal knowledge that the wife did not consider Resident H to be abusive, she failed to acknowledge facility records documenting that Resident M had a suspected history of verbal abuse by Resident H and had reported an “[o]ngoing fear of [her] spouse.”  P. Ex. 4 at 2; see CMS Ex. 37 at 4; P. Ex. 11 at 31.

Petitioner’s own policy supports a finding of verbal abuse in such an instance when a resident has suffered mental anguish due to the verbal aggressiveness of another resident.  Resident H’s verbal aggression on March 11, 2017, which was accompanied by negative statements and agitation, caused a “response” of crying by Resident M.  CMS Exs. 31 at 1; 39 at 8.  And if, for the sake of discussion, Petitioner is correct that Resident M was not verbally abused on March 11, 2017, the incident unquestionably raised an allegation of verbal abuse.  Verbal aggressiveness and negative statements directed at a resident that cause that resident to cry raises, at a minimum, an allegation of abuse that requires action to ensure that Resident M remains free of abuse.

And because Petitioner did not investigate the incident, to include not documenting the specific “verbally aggressive” and “negative statements” by Resident H or obtaining witness statements regarding “facts and observations,” it failed to gather the information necessary for the administrator and/or state agency to assess whether Resident H committed verbal abuse by making disparaging or derogatory remarks to Resident M.  See CMS Ex. 4 at 1, 4 (Petitioner’s abuse prevention policy); Illinois Knights Templar Home, DAB No. 2369 at 10-13 (addressing that a failure to investigate an allegation of abuse can, in and of itself, demonstrate a failure to protect and promotea resident’s right to be free of abuse).  Further, because Petitioner did not notify Resident M’s physician or place her “under appropriate monitoring/supervision,” it failed to assess later-developing signs and symptoms of mental distress.  See CMS Ex. 4 at 4-5.  Petitioner argues that Resident M did not suffer mental anguish and therefore there can be no verbal abuse, but the opposite may be true.  Petitioner’s failure to investigate an allegation of abuse and adhere to its abuse prevention policy resulted in a failure to protect and promote Resident M’s right to be free from abuse.  See Illinois Knights Templar Home, DAB No. 2369 at 10-13.

3.  Following the March 11, 2017 incident, and over the intervening months leading up to the survey that was completed on September 1, 2017, Petitioner continued to fail to protect and promote the right of residents to be free from abuse.  Petitioner does not claim, much less offer evidence, that it implemented corrective actions to return to substantial compliance prior to September 25, 2017.

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Resident H continued to have verbal altercations with facility residents following the March 11, 2017 incident.  In a care plan most recently updated two weeks prior to the survey, Petitioner recognized that Resident H has “verbal behavioral symptoms directed toward others” that included “threatening others” and “screaming at others.”  CMS Ex. 29 at 8.If Resident H had threatened other residents, such threats could amount to verbal abuse pursuant to Petitioner’s policy.  CMS Ex. 4 at 1.  Although the care plan references threats by Resident H, the record does not contain any reports that Petitioner investigated or reported any threats by Resident H as suspected abuse.  And despite the repeated documentation of verbal aggressiveness by Resident H, only a handful of social services progress notes address the verbally aggressive behavior repeatedly detailed in facility Memos.  See CMS Exs. 6; 30 at 6 (April 17, 2017 progress note reporting that Resident H had “aggressive behavior toward [his] wife”); 5 (April 29, 2017 meeting addressing “recent behavior and effect that yelling/demands having on wife/roommate”); 3 (June 16, 2017 progress note reporting that “Resident began yelling at wife because she was not ‘following instructions.’”).  Midwest Behavioral Therapy (therapy) progress notes are largely silent for verbal abuse or aggressiveness, with an August 22, 2017 report documenting several incidents at one time, to include Resident M “yelling and cursing at his wife,” being “verbally aggressive toward another resident,” and on August 18, 2017, being “verbally abusive to his wife.”This incident is documented by a Memo (CMS Ex. 31 at 41).  After the Ombudsmen investigated allegations of abuse following the survey, the Ombudsmen recommended that “all of [Resident M’s] behavioral incidents be reported to the State.”  CMS Ex. 16 at 1.  The Ombudsman observed that social services records documented “several episodes of [Resident H] being verbally disrespectful to [his wife].”  CMS Ex. 16 at 1.  P. Ex. 10 at 35 (emphasis added).

The statement of deficiencies highlights other documented allegations of verbal abuse identified by the surveyors.  CMS Ex. 3 at 3-5.  Petitioner, in a July 11, 2019 filing, did not dispute that these incidents occurred, but rather, disputes that any of the incidents constituted verbal abuse (based largely on Resident M’s testimony that Resident H’s use of profanity was not abusive).  I highlight a few of these incidents below:  

• On April 13, 2017, Petitioner documented that Resident H was verbally aggressive and made negative statements and repetitive verbalizations, at which time Resident M was crying, which was attributed to Resident H “yelling [at] her” and that she was not feeling well.  CMS Ex. 31 at 2-3.  Petitioner also reported Resident M was “crying [due to] husband[’]s demands.”  CMS Ex. 39 at 15.

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• On April 26, 2017, Resident H was verbally aggressive and made negative statements when he was “rude and acting out” and “went balistic [sic]” on Resident M.  CMS Ex. 31 at 6.  Petitioner reported, “It was bad enough [Resident M] was in tears!”  CMS Ex. 31 at 6.  Petitioner reported, “He got even ruder with his comments!”  CMS Ex. 31 at 6 (multiple underlines omitted).

• On August 18, 2017, Resident H, while returning to his room, “was yelling” at his wife and called her a “son of a bitch” and “a useless and worthless piece of shit.”As previously discussed, an August 22, 2017 therapy progress note for Resident H documented that he was “verbally abusive toward his wife” on August 18, 2017.  P. Ex. 10 at 35.  Days later, on August 28, 2017, a psychiatric progress note for Resident M reported she had an “[o]ngoing fear of [her] spouse.”  P. Ex. 10 at 7.  CMS Ex. 31 at 41.

Because Petitioner did not allege, nor did it submit evidence, that it implemented corrective action prior to September 25, 2017, it is unnecessary to detail every allegation of verbal abuse reported in the statement of deficiencies.  Rather, I have focused on several unquestionable allegations of verbal abuse addressed in the statement of deficiencies, to include allegations involving disparaging and derogatory remarks.Further, under Petitioner’s abuse policy, using “disparaging” terms and making “derogatory” remarks within hearing distance of a resident is verbal abuse.  CMS Ex. 4 at 1.  Remarkably, several egregious allegations of verbal abuse directed at residents are not detailed in the statement of deficiencies.For example, on June 15, 2017, Petitioner “separated” Resident H from Resident M when he was yelling and pounding his fist after he became angry when his wife did not do what he asked her to do.  CMS Ex. 31 at 77.  And on August 17, 2017, Resident H was physically and verbally aggressive with another resident, at which time he called him a “fucking prick and told him to get the fuck out of his way.”  CMS Ex. 31 at 26.  Resident H “pushed” that resident, “called him a prick 3 more times,” and said, “Fuck You!”  CMS Ex. 31 at 26.  Additionally, on April 21, 2017, Resident H was “loud and aggressive verbally” to Resident M, at which time she was tearful and “visibly upset” that Resident H “teases” female residents.  CMS Ex. 39 at 11.  The evidence indicates that  Resident H did not merely tease other female residents; he verbally attacked and publicly humiliated female residents.  See CMS Ex. 31 at 19 (July 31, 2019:  Resident H “oinked” at a female resident and asked her if she was still eating); 27 (July 24, 2017:  While leaving the dining room, Resident H snorted at another resident and called her Miss Piggy); 28 (July 31, 2017:  While leaving the dining room. Resident H started snorting like a pig and asked a female resident whether she “should be eating all that.”).  Further, on June 2, 2017, Resident H, without any known trigger, called someone “an ignorant fucking woman” and an “ignorant dumb bitch.”  CMS Ex. 31 at 81.

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Petitioner has not alleged that it complied with the requirement at 42 C.F.R. § 483.12(a)(1) that it protect and promote each resident’s right to be free of abuse, but rather has presented a more nuanced argument that Resident M was free of verbal abuse.  Not only do the incidents reported above constitute verbal abuse, but the evidence establishes that Petitioner failed to protect and promote the right of residents to be free from abuse when it did not take meaningful action, such as investigating and reporting of these incidents or implementing measures to protect Resident M from repeated verbal aggression and negative statements.  Even accepting Petitioner’s unsupported claim that Resident M was not subjected to verbal abuse, the evidence undeniably demonstrates repeated incidents of “verbally aggressive” behavior and “negative statements” that caused Resident M to cry, and such allegations of abuse would necessitate prompt action by Petitioner to protect and promote Resident M’s right to be free from abuse.

Petitioner does not claim that it implemented corrective actions to return to substantial compliance prior to September 25, 2017.Without any legal support, Petitioner essentially argues that each listed allegation of abuse essentially constitutes a separate and distinct one-day deficiency, rather than a continuing and uncorrected deficiency.  Petitioner’s Brief at 45 (arguing that any CMP should be imposed for only the 11 specific dates of March 11, April 15, 16, 17, 23, 26, May 1, June 6, August 2, 9, and 18, 2017).  I reiterate that Petitioner has not presented any evidence that it corrected its noncompliance prior to September 25, 2017.  Petitioner remained out of compliance with 42 C.F.R. § 483.12(a)(1) from March 11, 2017, through and inclusive of September 24, 2017.  See CMS Ex. 2 at 2.

4.  Petitioner did not timely report allegations of abuse to the administrator or the state survey agency, as required by 42 C.F.R. § 483.12(c)(1)-(4).

Pursuant to 42 C.F.R. § 483.12(c)(1)-(4), a facility must ensure that “alleged violations involving abuse” are reported to the administrator and other officials, such as the state survey agency, within specified time frames.  Even if Petitioner’s staff did not determine that the incidents detailed above constituted actual abuse, the incidents undoubtedly raised allegations of abuse that necessitated reporting (and investigation) pursuant to 42 C.F.R. § 483.12(c)(1)-(4).  Petitioner has not submitted any evidence that it reported allegations of abuse to the administrator or state agency.  See 42 C.F.R. § 483.12(c)(4) and CMS Ex. 4 at 2 (requiring that a facility report the results of investigations to the administrator and to other officials in accordance with state law, to include the state agency, within 5 working days).  For example, an incident tracking log for the month of

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August 2017 does not document any instances of verbal abuse by Resident H.  CMS Ex. 46 at 1; but see CMS Ex. 31 at 41 (Memo that Resident H called his wife a “son of a bitch” and told her she is a “useless and worthless piece of shit”); P. Ex. 10 at 35 (documenting that Resident H was “verbally abusive to [his] wife” on August 18, 2017).  Thus, even months after the initial March 11, 2017 incident, Petitioner continued to fail to comply with the requirement that it report allegations of abuse.

Accepting as true, for the purpose of this discussion, Petitioner’s claim that there was no verbal abuse, the simple fact is that the evidence at the time of each incident supported there were allegations of abuse that necessitated prompt reporting to the administrator and state agency.

Petitioner did not comply with Medicare participation requirements when it failed to timely report allegations of abuse, and Resident H was allowed to engage in a continuing pattern of verbal aggression against other residents for months.  Petitioner failed to report allegations of abuse as required by both its own policy and 42 C.F.R. § 483.12(c)(1)-(4). 

5.  Petitioner did not investigate allegations of abuse, and therefore, it did not implement its abuse prevention policy, as required by 42 C.F.R. §§ 483.12(b)(1)‑(3), 493.95(c)(1)-(3).

Consistent with the regulatory requirement and the SOM guidance, a facility must fully implement all aspects of its abuse policies in order to comply with the participation requirement that residents be free from abuse, as required by 42 C.F.R. § 483.12(b).  See Heritage Plaza Nursing Center, DAB No. 2829 at 5 (2017), (citing Glenoaks Nursing Ctr., DAB No. 2522 at 14 (2013) (“[A] facility may be noncompliant with section 483.13(c) if it ‘fail[s] to develop policies or procedures adequate to prevent neglect’ or fails to implement its anti-neglect policy and procedures.”)).  

Per its own policy, Petitioner was required to investigate and “immediately” report allegations of abuse to the state agency.  CMS Ex. 4 at 2.  Further, based on its policy, Petitioner’s administrator, who is responsible for investigating and reporting allegations of abuse, is required to immediately initiate an investigation and compile the results within five days and to file a follow-up report with the state agency.  CMS Ex. 4 at 4-5.  Petitioner has not submitted any evidence that, pursuant to its policy, it investigated (or reported) any of the allegations of abuse dating back to March 11, 2017.  See Beverly Health Care Lumberton, DAB No. 2156 at 12-13 (2008) (quoting Cedar View Good Samaritan, DAB No. 1897 at 11 (2003), citing 56 Fed. Reg. 48,843-844 (Sept. 26, 1991) (emphasis added) (DAB holding 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” of resident abuse)).  The DAB’s rationale plainly applies to the context of abuse investigations as well, such that any allegation of abuse must be investigated thoroughly, regardless of whether the facility finds the

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allegation credible or not.  Petitioner has not alleged that it investigated the allegations of abuse, and therefore, it failed to adhere to its own policy and Medicare participation requirements.

6.  Petitioner remained out of compliance from March 11, 2017 through September 24, 2017.

Substantial compliance means not only that the facility corrected the specific cited instances of substantial noncompliance, but also that it implemented a plan of correction designed to assure that no additional incidents would occur in the future.  Once a facility is found to be out of substantial compliance, it remains so until it affirmatively demonstrates that it has achieved substantial compliance once again.  Ridgecrest Healthcare Ctr.,DAB No. 2493 at 15 (2013) (citing Premier Living & Rehab. Ctr., DAB No. 2146 at 23 (2008) and Lake City Extended Care Ctr., DAB No. 1658 at 12-15 (1998)).  The burden is on the facility to prove that it is compliant with program requirements and not on CMS to prove that deficiencies continued to exist after they were discovered.  Asbury Ctr. at Johnson City, DAB No. 1815 (2002).  Noncompliance found during a survey is “presumed to continue until the facility demonstrates that it has achieved substantial compliance.”  Taos Living Ctr.,DAB No 2293 at 20 (2009); see Pearsall Nursing & Rehab. Ctr. – North, DAB No. 2692 at 7 (2016) (affirming summary judgment where Petitioner “refer[red] broadly to ‘the evidence presented in [its] Response’” but “identifie[d] no specific evidence relevant to the material facts”). 

CMS determined that Petitioner was not in substantial compliance beginning on March 11, 2017, and I have upheld that determination.  The statement of deficiencies reflects a completion date for a plan of correction for each deficiency on September 25, 2017.  CMS Ex. 3.  Petitioner has not claimed it returned to substantial compliance prior to September 25, 2017.As I previously discussed, Petitioner did not offer any legal basis to support its argument that a CMP should be intermittently applied for only the 11 specific dates cited in the statement of deficiencies on which verbal abuse was alleged.  See Petitioner Brief at 41.  This unsupported argument is meritless.  Therefore, Petitioner has not offered any basis to disturb the date that CMS determined it returned to substantial compliance, September 25, 2017.

Petitioner’s arguments with respect to the cited deficiencies involving Resident H and Resident M lack merit.

Petitioner argues that the survey was flawed because the surveyors did not interview Resident M, who it claims would not have reported she was the victim of abuse.  Petitioner Brief at 23.  As previously discussed, a denial of abuse by Resident M would be immaterial to determining whether she, in fact, was a victim of abuse.  However, I note that Resident M had such an opportunity to deny being subjected to abuse, and she

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declined to do so in her written testimony.  P. Ex. 2.  Resident M, quite carefully, limited her statements to whether Resident M’s profanity caused her any mental anguish.  P. Ex. 2.  To the extent Petitioner suggests that the survey process was flawed because the surveyors did not interview Resident M, the regulations are clear that “[i]nadequate survey performance does not [r]elieve a SNF . . . of its obligation to meet all requirements for program participation” or “[i]nvalidate adequately documented deficiencies.”  42 C.F.R. § 488.318(b).  The DAB has addressed a similar argument, stating the following:  

The [DAB’s] holdings in this area emphasize that, under the governing administrative appeal regulations, the ultimate issue before an ALJ is not how the state agency performed the survey or what process it followed to reach its conclusions, but “whether the evidence as it is developed before the ALJ supports” CMS’s independent “finding of noncompliance” under the relevant participation requirements.

Avon Nursing Home, DAB No. 2830 at 11 (2017) (emphasis in original) (citing Sunshine Haven Lordsburg, DAB No. 2456 at 21 (2012).  The Avon decision also emphasized that “a state agency’s survey findings constitute recommendations to CMS.”  Id. at 14 (emphasis in original) (citing 42 C.F.R. §§ 488.11, 488.12).  The DAB further explained that “CMS makes its own determination of noncompliance, and decides what enforcement action to take, based on the survey’s findings.”  Id.  Petitioner may not absolve its own shortcomings through attacks on the survey process.

Further, Petitioner attempts to cast the citation of these deficiencies as somehow infringing on the right of a husband and wife to live together in the facility.  Petitioner does not point to any evidence that either the state agency or CMS has taken such a position.  The law is clear:  a facility is required to protect all residents from verbal abuse, regardless of whether married residents live together as roommates or had an abusive relationship that pre-dated their admission to a facility.  Although married residents may live together in the facility, a facility may not allow a married resident to abuse his or her spouse.

7.  Petitioner did not comply with 42 C.F.R. §§ 483.20(d) and 483.21(b)(1), which required it to develop and implement a comprehensive and person-centered care plan for each resident.

Resident B, who was born in 1957, was admitted to the facility on June 2, 2017.  P. Ex. 19 at 1.  Resident B’s diagnoses included acute metabolic encephalopathy, traumatic brain injury, and alcohol-induced persisting dementia.  P. Exs. 19 at 1; 20 at 2.  On June

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27, 2017, Resident B’s physician prescribed a weekly intramuscular injection of Depo‑ProveraThe National Institute of Health’s U.S. National Library of Medicine reports that Depo-Provera, which is the brand name for medroxyprogesterone, is “is in a class of medications called progestins.”  See https://medlineplus.gov/druginfo/meds/a604039.html (last visited August 4, 2021).  The use of hormonal agents to decrease sexual inhibition in men is “sometimes viewed as ‘chemical castration.’”  CMS Ex. 48 at 6 (“Pharmacologic Treatment of Sexual Inappropriateness in Long-Term Care Residents with Dementia”). for treatment of “sexual inhibition.”It appears that facility staff mis-transcribed this order; this medication was clearly prescribed for “sexual disinhibition.”  See P. Ex. 20 at 1, 3.  P. Ex. 20 at 1.

Even though Resident B had only been admitted to the facility for just a few months, he had a troubling history of both physically and verbally aggressive behavior, particularly against Petitioner’s staff members.The statement of deficiencies did not address instances of abuse by Resident B against staff members, but I nonetheless acknowledge that Petitioner failed to develop and implement a care plan for Resident B even after he repeatedly, and quite disturbingly, subjected female staff members to violent and sexually inappropriate behavior that included, but was not limited to, nonconsensual touching and sexually degrading remarks.  See CMS Ex. 44 at 8 (attempting to bite a staff member’s face at the nurses’ station); 13 (at the nurses’ station, grabbing and breaking a staff member’s name badge, trying to kick her, and running over her feet several times); 17 (after a nurse entered his room, holding his penis and playing with himself, and telling the staff member to “get the fuck out of [his] room”); 20 (asking a staff member if he “could touch [her]” and if she “shaved [her] pussy,” and trying to grab her “crotch” and touch her breasts); 23 (in the shower room, repeatedly asking a staff member to “lift [her] shirt,” and later starting to “grab [her] butt”); 25 (repeatedly trying to put his hand in a staff member’s back pocket and “rub [her] butt”); 26-27 (trying to kiss a staff member “on the lips,” offering to let her touch his penis, and telling her, “I need you to give me a blow job.”).  I cannot speculate why Petitioner would not develop and implement a care plan to protect its own staff from this resident, and it is puzzling that CMS did not recognize this grossly inappropriate behavior as a significant threat to the health and safety of Petitioner’s residents.  See CMS Ex. 44.  The statement of deficiencies documents incidents on August 10, 22, and 30, 2017, in which Resident B engaged in activities such as kissing a resident on the mouth and touching a resident on her thighs.  CMS Ex. 3 at 27-28.  Yet, Resident B, who had been prescribed Depo-Provera for sexual disinhibition and had a history of sexually inappropriate (if not abusive) behavior, did not have a care plan to ensure that he received the care and services necessary for his own well-being and the well-being of others in the facility.  See 42 C.F.R. §§ 483.20(d), 483.21(b)(1).  I add that although Resident B has a right to engage in sexual activity with

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other residents, a comprehensive person-centered care would have promoted the goal of ensuring that any sexual relationships were safe and consensual.  42 C.F.R. § 483.21(b).

The weekly administration of a Depo-Provera to address sexual disinhibition is not a substitute for necessary care planning.  See Britthaven of Havelock, DAB No. 2078 at 14 (2007) (rejecting a facility’s claim that it “implemented a care plan . . . by following a medication regime prescribed by . . . doctors”).  Resident B’s physician had determined that the administration of a medication to control sexual disinhibition was necessary, yet Petitioner did not care plan for the behavior associated with sexual disinhibition, even when Resident kissed and touched another resident and had repeated sexually inappropriate interactions with its staff.  Petitioner failed to develop and implement a care plan to address behavioral issues associated with a sexually uninhibited resident, and therefore, Petitioner did not have a means to assess the effectiveness of treatment with Depo-Provera.  Petitioner failed to comply with 42 C.F.R. § 483.21(b).I add that, to the extent Petitioner believed the administration of Depo-Provera addressed Resident B’s sexual disinhibition, several of the documented incidents involving sexual aggression with facility staff occurred while he was receiving that medication.  CMS Ex. 44 at 23, 25, 26.  Therefore, the administration of Depo-Provera, alone, was obviously insufficient to address Resident B’s sexual disinhibition.

8.  A per-day CMP of $505 at the very low end of the CMP range, is a reasonable enforcement remedy for Petitioner’s repeated failures to protect and promote its residents’ rights to be free of abuse, as required by 42 C.F.R. § 483.12(a)(1).

9.  Accounting for Petitioner’s noncompliance with the Medicare participation requirements involving its repeated failures to protect and promote the right of residents to be free from abuse, report allegations of abuse, and implement its abuse prevention policy, a per-day CMP of $505, which is less than 10% of the allowable per-day CMP amount, is an unreasonably low enforcement remedy.The per-day CMP of $505 is unreasonably low, even without taking into account the deficiency cited involving the failure to care plan for Resident B.  Because Resident B was not admitted to the facility until June 2, 2017, the per-day CMP would not be applicable to a substantial portion of Petitioner’s noncompliance dating back to March 11, 2017.  CMS has not elaborated on how it factored this deficiency into the per-day CMP of $505 that was imposed for all days of noncompliance, both prior to and during the period of noncompliance for the participation requirement involving Resident B.

If a facility is not in substantial compliance with program requirements, CMS has the authority to impose one or more of the enforcement remedies listed in 42 C.F.R. § 488.406, including a per-instance CMP.  In determining whether the per-instance CMP

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amount imposed against Petitioner is reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f).  42 C.F.R. § 488.438(e)(3).  These factors include:  (1) the facility’s history of noncompliance; (2) the facility’s financial condition; (3) the factors specified at 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.  42 C.F.R. § 488.438(f).  The absence of culpability is not a mitigating factor.  Id.  The factors at 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.

I 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.  See, e.g., Barn Hill Care Ctr., DAB No. 1848 (2002).  Unless a facility contends that a particular regulatory factor does not support the CMP amount, an ALJ must sustain it.  Coquina Ctr., DAB No. 1860 (2002).

At the time of the survey, the applicable inflation-adjusted CMP range was $105 to $6,289 per day.  42 C.F.R. § 488.438(a)(1)(ii); 45 C.F.R. § 102.3; 82 Fed. Reg. 9174, 9182 (Feb. 3, 2017) (setting 2017 inflation adjustments).  CMS imposed a per-day CMP of $505.  CMS correctly pointed out that a $505 CMP “is only 8.02% of the maximum amount” and was “set towards the bottom of the range.”  CMS Brief at 29.

Petitioner has not disputed the reasonableness of the per-day CMP of $505, nor has it cited any of the factors listed in 42 C.F.R. § 488.438.  The record does not include any evidence of a history of noncompliance.  Petitioner has not offered any evidence showing an inability to pay the per-instance CMP.  However, Petitioner’s noncompliance was serious, in that a resident was repeatedly subjected to verbal attacks from her husband, to the point she expressed “ongoing fear” of him, and Petitioner repeatedly failed to take measures to protect her from and to promote her to be free of abuse, report allegations of abuse, and implement its abuse prevention policy.  A per-day CMP of $505 is low, even without consideration of Petitioner’s failure to care plan for a sexually disinhibited resident who had a pattern of verbally, physically, and sexually aggressive behavior.  The $505 per-day CMP at the very low end of the per-day CMP range is entirely reasonable for multiple deficiencies involving repeated failures.

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IV.  Conclusion

For the foregoing reasons, I conclude that Petitioner was not in substantial compliance with 42 C.F.R. §§ 483.12(a)(1), 483.12(c)(1)-(4), 483.12(b)(1)-(3), 483.95(c)(1)-(3), 483.20(d), and 483.21(b)(1).  The imposition of a per-day CMP of $505 is a reasonable enforcement remedy.