Geer Nursing and Rehabilitation, DAB CR5948 (2021)

DECISION

In this case, a long-term-care facility recognized that one of its residents engaged in sexually inappropriate behavior toward women.  To address this problem, the facility directed staff to keep him away from women residents and to monitor him closely.  Yet, he was able repeatedly to approach and molest vulnerable women residents.  I now consider whether the facility fulfilled its obligations to keep its residents free from sexual abuse and to supervise its residents adequately.

Petitioner, Geer Nursing and Rehabilitation, is a long-term-care facility, located in Canaan, Connecticut, that participates in the Medicare program.  Following a complaint investigation survey, completed April 15, 2019, the Centers for Medicare & Medicaid Services (CMS) determined that the facility was not in substantial compliance with Medicare program requirements and that its deficiencies posed immediate jeopardy to resident health and safety.  CMS imposed a per-instance civil money penalty (CMP) of $21,393.

Petitioner appeals, and CMS has moved for summary judgment, which Petitioner opposes.

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For the reasons discussed below, I find that no material facts are in dispute and that CMS is entitled to judgment as a matter of law.  The undisputed evidence establishes that the facility was not in substantial compliance with Medicare program requirements, specifically, 42 C.F.R. §§ 483.12 and 483.25, and that the penalty imposed is not unreasonably high.

Background

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 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 skilled nursing facilities 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 fifteen 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).

Here, on April 15, 2019, surveyors from the Connecticut Department of Public Health (state agency) completed a complaint investigation survey (which they began on April 2, 2019).  Based on the survey findings, CMS determined that the facility did not comply substantially with two program requirements:

• 42 C.F.R. § 483.12 (Tag F600 – freedom from abuse and neglect), cited at scope and severity level K (pattern of noncompliance that poses immediate jeopardy to resident health and safety); and
• 42 C.F.R. § 483.25 (Tag F689 – quality of care:  accident prevention and adequate supervision), also cited at scope and severity level K.

CMS Exs. 1, 2.  CMS also determined that, as of April 2, 2019 – the first day of the survey – the deficiencies no longer posed immediate jeopardy, but that the facility's substantial noncompliance continued.  CMS Ex. 1 at 1.

CMS imposed against the facility a per-instance CMP of $21,393.  CMS Ex. 1 at 2.

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Petitioner timely requested review.  CMS has filed a motion for summary judgment with supporting brief (CMS Br.) and eight exhibits (CMS Exs. 1-8).  Petitioner filed a brief in opposition (P. Br.) with six exhibits (P. Exs. 1-6).Petitioner asked leave to file a brief in excess of 25 pages.  Although I don't understand why Petitioner could not meet the page limitations in this relatively uncomplicated case, I grant its motion.  See Standing Order at 3 (¶¶ 4c(1), 5).  CMS responded with a reply brief (CMS Reply) and an amended statement of undisputed facts, accompanied by a motion for leave to file the new submissions.  In its amended statement of undisputed facts, CMS generally accepts Petitioner's statements of fact, characterizing some as "helpful corrections," and others as "additional undisputed facts."  CMS Reply at 1-2.  A few, CMS maintains, are potentially disputed, but immaterial.  CMS Reply at 2.

Why Petitioner would object to CMS's accepting its statement of facts is a mystery, but it has done so.  Petitioner argues that neither my standing order nor Civil Remedies Division procedures authorize filing a reply and that CMS has not shown good cause for doing so.  Of course, nothing in my standing order or Civil Remedies Division procedures precludes CMS from amending its initial submission.  And the regulations that govern these proceedings allow me to grant a party the opportunity to reply upon a showing of good cause.  42 C.F.R. § 498.17(b)(2).  The regulations also direct me to inquire fully into all matters at issue and give me broad authority to receive evidence and to decide the order in which evidence and arguments are presented.  42 C.F.R. § 498.60(b).

CMS has shown good cause for filing its reply.  We generally require CMS to file first, and, obviously, its submissions are based on the information it has available at the time.  If Petitioner responds with new issues or assertions that CMS did not contemplate, CMS may appropriately reply.  This is particularly true where, as here, CMS has moved for summary judgment, and, for purposes of that motion, accepts Petitioner's rendition of the facts (which it did not necessarily have when filing its initial submissions).  Of course, it is always proper for a party to correct any factual errors.  I therefore grant CMS's motion and accept its reply and revised statement of undisputed facts.

Issues

I first consider whether summary judgment is appropriate.

On the merits, the issues before me are:

1. Was the facility in substantial compliance with Medicare program requirements, specifically, §§ 42 C.F.R. 483.12 and 483.25; and

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2. If the facility was not in substantial compliance, is the penalty imposed – $21,393 per instance – reasonable?

Immediate jeopardy.  I have no authority to review the immediate jeopardy determination.  I may review CMS's scope and severity findings (which include immediate jeopardy) if:  1) a successful challenge would affect the range of the CMP; or 2) CMS has made a finding of substandard quality of care that results in the loss of approval of a facility's nurse aide training program.  42 C.F.R. §§ 498.3(b)(14), 498.3(d)(10); NMS Healthcare of Hagerstown, DAB No. 2603 at 6-7 (2014); Cedar Lake Nursing Home, DAB No. 2344 at 9 (2010); Heritage Park Rehab. & Nursing Ctr., DAB No. 2231 at 15-16 (2009); Evergreen Commons, DAB No. 2175 (2008); Aase Haugen Homes, Inc., DAB No. 2013 (2006).

For a per-instance penalty, the regulations provide only one range (at the time the penalty was imposed, the range was from $2,140 to $21,393), so the level of noncompliance here does not affect the range of the CMP.  42 C.F.R. §§ 488.408(d), 488.438(a)(2); 45 C.F.R. § 102.3; 83 Fed. Reg. 51,369 (Oct. 11, 2018).Penalties are inflation-adjusted and change annually (more or less).  The amount is determined as of the date the penalty is assessed, in this case, on May 6, 2019.  CMS Ex. 1; see 83 Fed. Reg. 51,369.

If I approve a penalty of $10,697 or more, as I do here, CMS's scope and severity finding will not affect approval of the facility's nurse aide training program, assuming that it has one.  Under the statute and regulations, the state agency cannot approve the program if CMS imposes a penalty of $10,697 or more.  The facility thus loses its approval without regard to the immediate jeopardy finding.  Act § 1819(f)(2)(B); 42 C.F.R. § 483.151(b)(2)(iv); 83 Fed. Reg. 51,369, 51,380.

Discussion

Summary judgment.  Summary judgment is appropriate if a case presents no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.  Bartley Healthcare Nursing & Rehab., DAB No. 2539 at 3 (2013) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986)); Ill. Knights Templar Home, DAB No. 2274 at 3-4 (2009), and cases cited therein.

The moving party may show the absence of a genuine factual dispute by presenting evidence so one-sided that it must prevail as a matter of law or by showing that the non-moving party has presented no evidence "sufficient to establish the existence of an element essential to [that party's] case, and on which [that party] will bear the burden of proof at trial."  Livingston Care Ctr. v. Dep't of Health & Human Servs., 388 F.3d 168,

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173 (6th Cir. 2004) (quoting Celotex, 477 U.S. at 322).  To avoid summary judgment, the non-moving party must then act affirmatively by tendering evidence of specific facts showing that a dispute exists.  Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.11 (1986); see also Vandalia Park, DAB No. 1939 (2004); Lebanon Nursing & Rehab. Ctr., DAB No. 1918 (2004).  The non-moving party may not simply rely on denials but must furnish admissible evidence of a dispute concerning a material fact.  Ill. Knights Templar, DAB No. 2274 at 4; Livingston Care Ctr., DAB No. 1871 at 5 (2003).  In doing so, the non-moving party must show more than "some metaphysical doubt as to the material facts."  W. Tex. LTC Partners, Inc., DAB No. 2652 at 6 (2015), aff'd, W. Tex. LTC Partners, Inc. v. U.S. Dep't of Health & Human Servs., 843 F.3d 1043 (5th Cir. 2016); 1866ICPayday.com, L.L.C., DAB No. 2289 at 3 (2009) (quoting Matsushita, 475 U.S. at 587).

In examining the evidence for purposes of determining whether summary judgment is appropriate, I must draw all reasonable inferences in the light most favorable to the non-moving party.  Heritage House of Marshall Health & Rehab., DAB No. 3035 at 8 (2021); Brightview Care Ctr., DAB No. 2132 at 2, 9 (2007); Livingston Care Ctr., 388 F.3d at 172; Guardian Health Care Ctr., DAB No. 1943 at 8 (2004); see also Brightview, DAB No. 2132 at 10 (entry of summary judgment upheld where inferences and views of non-moving party are not reasonable).  However, drawing factual inferences in the light most favorable to the non-moving party does not require that I accept the non-moving party's legal conclusions.  W. Tex. LTC Partners,  DAB No. 2652 at 6-7 ; cf. Guardian, DAB No. 1943 at 11 ("A dispute over the conclusion to be drawn from applying relevant legal criteria to undisputed facts does not preclude summary judgment if the record is sufficiently developed and there is only one reasonable conclusion that can be drawn from those facts."); see Green Valley Health Care & Rehab. Ctr., DAB No. 2947 at 8 (2019), quoting Johnson v. Perez, 823 F. 3d. 701, 705 (D.C. Cir. 2016) (noting that a genuine factual dispute does not exist "when a putatively disputed body of evidentiary material could not, even assuming a sympathetic factfinder, reasonably support a finding crucial to the nonmoving party's legal position.").

Summary judgment applied to administrative review in Medicare cases.Deciding a case on summary judgment does not mean that it is decided without a hearing.  In reviewing administrative appeals decided on summary judgment, courts describe the case as having been decided without an "oral hearing" or without an "evidentiary hearing."  They recognize that, by considering the evidence and applying the law, the ALJ has granted the petitioner a hearing.  See CNG Transmission Corp. v. FERC, 40 F.3d 1289, 1293 (D.C. Cir. 1994) (holding that a "paper hearing" satisfies statutory requirements for "notice and opportunity for hearing.").  Thus, granting summary judgment (or deciding a case on the written record) satisfies the hearing requirements of sections 205(b) and 1866(h) of the Act.  It is well-established that an administrative law judge is empowered to decide a case on

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summary judgment, without an evidentiary hearing.  Shah v. Azar, 920 F.3d 987, 996 (5th Cir. 2019) (citing Cedar Lake Nursing Home v. U.S. Dep't of Health & Human Servs., 619 F.3d 453, 457 (5th Cir. 2010)); see Fal-Meridian, Inc. v. U.S. Dep't of Health & Human Servs., 604 F.3d 445, 449 (7th Cir. 2010).  Nevertheless, there seems to be some confusion about applying such well-founded principles of civil litigation to these proceedings, with some suggesting that doing so denies a party a fundamental right.  In one succinct observation, Judge Posner of the Seventh Circuit Court of Appeals gave lie to such misapprehensions:  "All it means for a decision to be based on a grant of summary judgment is that there are no issues that would benefit from being resolved in an evidentiary hearing."  Fal-Meridian, 604 F.3d at 449 (emphasis added).

In Fal-Meridian, the Seventh Circuit considered specifically the appropriateness of granting CMS summary judgment in a nursing home case involving (then) section 483.25(h) (now section 483.25(d)).The regulations governing long-term care facilities have been revised since the Seventh Circuit issued its decision in Fal-Meridian.  The requirement that facilities minimize the risk of accidents is now found at section 483.25(d).  81 Fed. Reg. 68,688 (Oct. 4, 2016); 82 Fed. Reg. 32,256 (July 13, 2017).  However, the substance of the "quality of care" requirements – which are also statutory – has not changed, so decisions that pre-date the regulatory changes remain valid.  The court sustained the administrative law judge's granting summary judgment in CMS's favor because the petitioner/nursing home did not tender "evidence that, if believed, would show that it had done everything possible (within the meaning of the regulation) to minimize the risks of an accident."  Fal-Meridian, 604 F.3d at 451.

Here, in opposing summary judgment, Petitioner lists what it characterizes as "numerous issues of material fact" (oddly numbered as 1-2 and 5-9, 11-27, an additional issue #27, and 28-30) that it maintains preclude summary judgment.   P. Br. at 7-13.  However, as the following discussion shows, Petitioner's list does not include any dispute of a material fact; it lists many facts not in dispute (some of which are, in any event, irrelevant); some arguably disputed facts that are not material; and many conclusions of law.  Petitioner has tendered no evidence establishing a dispute of material fact that would preclude my entering summary judgment.  It has tendered no evidence that, if believed, would show that it did everything possible (within the meaning of the regulations) to minimize the risk of accidents and to protect its vulnerable residents from abuse.

1. CMS is entitled to summary judgment because the undisputed evidence establishes that facility staff did not adequately protect its vulnerable residents from a sexually aggressive resident and did not adequately supervise that

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resident to prevent him from sexually molesting others.  These failings put the facility out of substantial compliance with 42 C.F.R. §§ 483.12 and 483.25.My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision.

Program requirements:  42 C.F.R. § 483.12 (Tag F600).  The Act mandates that facility residents be "free from physical or mental abuse, corporal punishment, [and] involuntary seclusion."  Act § 1819(c)(1)(A)(ii).  Consistent with that provision, the regulation governing abuse provides that each resident has the right to be free from abuse, neglect, misappropriation of resident property, and exploitation.  42 C.F.R. § 483.12.  Abuse is defined as "the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish."  Instances of abuse, "irrespective of any mental or physical condition," cause harm, pain, or mental anguish.  Abuse includes verbal, sexual, physical, and mental abuse.  "Willful" means that the individual acted deliberately, not that the individual must have intended to inflict injury or harm.  42 C.F.R. § 488.301 (emphasis added).  So long as the facility fails to protect its residents "from reasonably foreseeable risks of abuse," it is not in substantial compliance.  Holy Cross Village at Notre Dame, Inc., DAB No. 2291 at 7 (2009).

In order to keep residents free from abuse, facilities must develop and implement written policies and procedures that prohibit and prevent abuse, neglect, and exploitation of residents.  42 C.F.R. § 483.12(b)(1).  It must establish policies and procedures to investigate allegations of abuse.  42 C.F.R. § 483.12(b)(2).  The facility must ensure that all alleged violations involving abuse are reported immediately, but not later than two hours after the allegation is made, to the facility administrator and appropriate state officials.  42 C.F.R. § 483.12(c)(1).

The facility must have evidence that all alleged violations are thoroughly investigated, and it must prevent further potential abuse while the investigation is in progress.  The results of all investigations must be reported to the administrator (or designated representative) and to the appropriate state officials within five working days of the incident.  If the violation is verified, the facility must take appropriate action.  42 C.F.R. § 483.12(c)(2), (3), and (4).

Program requirement:  42 C.F.R. § 483.25(d) (Tag F689).  The statute requires that the facility ensure that each resident receive, and the facility provide, the necessary care and services to allow the resident to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the resident's comprehensive assessment and plan of care.  Act § 1819(b)(2).  To this end, the "quality of care" regulation mandates, among other requirements, that the facility "ensure" that each resident's environment remain as free of accident hazards as possible and that each

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resident receive adequate supervision and assistive devices to prevent accidents.  42 C.F.R. § 483.25(d).  The facility must therefore eliminate or reduce a known or foreseeable risk of accidents "to the greatest degree practicable."  Del Rosa Villa, DAB No. 2458 at 7 (2012); Clermont Nursing & Convalescent Ctr., DAB No. 1923 at 9-10 (2004), aff'd sub nom. Clermont Nursing & Convalescent Ctr. v. Leavitt, 142 F. App'x 900 (6th Cir. 2005); accord Briarwood Nursing Ctr., DAB No. 2115 at 5 (2007) (holding that the facility must "take all reasonable steps to ensure that a resident receives supervision and assistance devices that meet his or her assessed needs and mitigate foreseeable risks of harm from accidents.").  A facility is permitted the flexibility to choose the methods it uses to prevent accidents, but the chosen methods must constitute an "adequate" level of supervision under all the circumstances.  42 C.F.R. § 483.25(d); Briarwood, DAB No. 2115 at 5; Windsor Health Care Ctr., DAB No. 1902 at 5 (2003), aff'd sub nom. Windsor Health Care Ctr. v. Leavitt, 127 F. App'x 843 (6th Cir. 2005).

The Board long ago resolved that "accidents" are events that can cause injury to residents and can be prevented by supervision.  Accidents thus include assaults by demented residents.  The regulation's emphasis is on ensuring that supervision is adequate to meet the specified goal – preventing accidents and keeping residents safe.  Woodstock Care Ctr., DAB No. 1726 at 21, 36 (2000).

Where a facility policy or a resident's care plan requires staff to take specific measures in caring for a resident, those measures reflect the facility's own determination of what it must do to attain or maintain the resident's "highest practicable physical, mental, and psychosocial well-being" as required by the overarching quality-of-care requirement.  Heritage Plaza Nursing Ctr., DAB No. 2829 at 6 (2017).

Facility policy.  The facility had in place a policy aimed at preventing abuse.  According to the policy, the facility does not condone any form of resident abuse.  The facility's goal is to achieve an abuse-free environment, and it continually monitors its policies, procedures, training programs, and systems to prevent resident abuse.  CMS Ex. 7 at 16.

The abuse policy echoes the regulatory definition of abuse:  the willful infliction of injury, unreasonable confinement, intimidation, or punishment, with resulting physical harm, pain, or mental anguish.  "Willful" means that the individual acted deliberately, not that the individual intended to inflict injury or harm.  "Sexual abuse" includes, but is not limited to, sexual harassment, sexual coercion, or sexual assault.  "Mental abuse" includes, but is not limited to, humiliation, harassment, threats of punishment, or withholding goods or services.  CMS Ex. 7 at 18-19.

The policy acknowledges that all residents, even those in a coma, can be abused.  CMS Ex. 7 at 18.

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Among other approaches for preventing abuse, the policy calls for:  inservice and training programs, designed to teach staff how to understand resident behaviors; assessing, care planning, and monitoring residents with needs and behaviors that might lead to conflict or neglect; involving psychiatric medical professionals in aiding staff to manage difficult and aggressive residents; striving to maintain adequate staffing on all shifts to ensure that all resident needs are met; upon admission, informing residents and their families of how and to whom complaints, grievances, and incidents of abuse should be reported; requiring all personnel and encouraging residents, family members, and visitors to report immediately to facility management inappropriate behaviors or suspected incidents of abuse; and involving attending physicians and the medical director when findings of abuse have been determined.  CMS Ex. 7 at 16.

To prevent abuse, the policy mandates that staff monitor the behavior of other staff and address promptly any form of inappropriate behavior.  All staff are required to report immediately to their supervisors an observation or verbal allegation of abuse.  The assessment, care planning and monitoring of residents include identifying residents with needs and behaviors that might lead to conflict or neglect.  "This information is communicated[,] and appropriate interventions are implemented."  CMS Ex. 7 at 18.

Elsewhere, the policy directs all staff to report to their supervisors, the facility administrator or director of nursing (DON) any inappropriate behaviors, injuries of unknown origin, or allegations of abuse.  Such reports are made without fear of retaliation from the facility management or staff.  The DON, the assistant DON, or the on duty unit manager/supervisor must act promptly to determine the direction of the investigation.  CMS Ex. 7 at 19.

With respect to the investigation, the policy mandates that the administrator, DON, and/or their designee must immediately investigate any and all alleged or suspected incidents of resident abuse.  CMS Ex. 7 at 19.  The individual conducting the investigation must, among other requirements:  review and complete the "Reportable Event Form"; review the resident's medical record to determine the events leading up to the incident; interview all persons reporting the incident; interview all witnesses to the incident, including the person accused of abuse; interview the resident (as medically appropriate); interview staff members on all shifts who have had contact with the resident during the period of the alleged incident; interview the resident's roommate, family members and visitors, as applicable; document allegations or suspected incidents of abuse in the nurse's notes and the resident's care plan; place the resident on the 24-hour report sheet, monitoring on every shift for 72 hours, any change in the resident's behavior, mood, or general status, document any change in the nurse's notes, and notify the physician; and evaluate the need for psychiatric or social service assistance.  CMS Ex. 7 at 20.

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In addition to the resident and the resident's roommate, possible witnesses, who should be interviewed, include staff on duty around the time of the alleged event and others who may have witnessed the event.  When conducting interviews, each interview must be separate and private, and the purpose and confidentiality of the interview must be explained.  Witness reports must be reduced to writing, and witnesses will be asked to sign and date the reports.  CMS Ex. 7 at 20.

The individual in charge of the investigation will consult with the administration concerning its progress and findings.  The administrator or designee will keep the resident and the resident's representative informed of the investigation's progress.  The results of the investigation will be recorded on the "Result of Investigation Form," a copy of which will be provided to the administrator within five working days of the reported incident.  CMS Ex. 7 at 20.

If the alleged abuse involves another resident, the accused resident's representative and attending physician will be informed of the alleged abuse incident and that the resident may not be permitted to make unattended visits to other residents' rooms.  If necessary, family members may be asked to assist in meeting this requirement.  CMS Ex. 7 at 21.

All allegations, suspected abuse, or incidents of abuse must immediately be reported to the facility administrator and DON or their designee.  If the initial investigation reveals that abuse may have occurred, the administrator, DON, or designee must immediately notify, via telephone or fax:  the state health department; the state police; the resident's physician; the resident's family/responsible person; and the medical director.  CMS Ex. 7 at 21.  According to the policy, allegations or incidents of abuse must be reported to the state police and state department of public health within two hours.  Other allegations and incidents should be reported within 24 hours.  Id.

Within 72 hours of the allegation or incident, the facility must submit a "Reportable Event Form" to the state health department.  Within three days of the allegation or event, the facility must submit a "Mandated Reporter Form for Long Term Care Facilities" to the "Department of Social Services Elder Rights Unit."  According to the policy, in situations of resident to resident abuse, the Department of Social Services does not consider a cognitively impaired resident's abusive conduct to be "willful" and does not want a report.This state policy should not be confused with federal standards.  For reporting purposes, the Connecticut Department of Social Services may not consider "willful" the actions of a cognitively-impaired resident.  However, under the federal regulations, which govern these proceedings, an action is "willful" if the individual acted deliberately, notwithstanding his cognitive status.  42 C.F.R. § 488.301.  Within five days of completing the investigation, the facility must submit

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to the state health department the results of the investigation, indicating the action taken.  CMS Ex. 7 at 22.

The facility must advise the resident or responsible person how to contact the Ombudsman's office.  The facility administrator or designee must inform the resident and the resident's representative of the results of the investigation and the corrective action taken.  CMS Ex. 7 at 22.

An addendum to the abuse policies discusses "key triggers" to sexual abuse.  It defines possible or actual indicators of sexual abuse as "[a]ny form of non-consensual sexual contact of any kind" that can result from threats, force, or the resident's inability to give consent.  Sexual abuse includes any nonconsensual sexual contact, including unwanted or inappropriate touching.  If the victim is unable to express or demonstrate physical harm, pain, or mental anguish, the abuse is presumed to cause physical harm, pain, or mental anguish.  CMS Ex. 7 at 24.

Among the many key triggers that call for timely action are a resident's report of being sexually assaulted and any sexual activity that occurs when the resident cannot or does not consent.  CMS Ex. 7 at 24.

Resident 1 (R1).  R1 was an 88-year-old man, admitted to the facility on February 27, 2019, suffering from a long list of disorders, including vascular dementia with a behavioral disturbance, major depressive disorder, chronic obstructive pulmonary disease, cardiomyopathy, chronic atrial fibrillation, and chronic kidney disease.  He could walk independently (generally using a walker) but had a history of falling.  CMS Ex. 5 at 1-2, 7, 9, 17.

Before his admission, R1 resided in another long-term-care facility.  According to his treatment records from that facility, he had a history of sexually inappropriate behaviors.  Indeed, as early as October 2017, he had been sent to another institution for an evaluation of those behaviors.  CMS Ex. 5 at 4, 10.  Effective February 6, 2019, his physician had ordered 15-minute checks.  CMS Ex. 5 at 4.  A progress note, dated February 20, 2019, indicates that, in February, R1 twice required one-on-one supervision for inappropriately touching another person.  CMS Ex. 5 at 8.  "[H]e has significant dementia, and this is one of the behaviors that is constantly monitored."  Id.; CMS Ex. 5 at 9.  R1 had no memory of the incidents.  Staff were to continue the 15-minute checks and redirect as needed.  In the meantime, R1's family was looking for a facility closer to them.  CMS Ex. 5 at 9.

A February 25, 2019 discharge summary from R1's prior facility confirms the February incidents of inappropriate touching ("of other resident and a visitor").  It reports that the resident was being discharged to another facility and would be placed in a more secure dementia unit.  CMS Ex. 5 at 10-11.  A psychological diagnostic interview, also dated February 25, 2019, indicates that R1 was referred for the screening because of his

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inappropriate sexual behaviors.  CMS Ex. 5 at 12.  "He has had multiple episodes of sexually inappropriate behavior that have not been corrected despite multiple medication attempts[,] along with redirection."  CMS Ex. 5 at 13.

Thus, at the time of his admission to the facility (February 27), R1's sexually inappropriate behaviors were well-documented, and the facility was aware of the problem.

The first incidents:  February 28, 2019.  Almost immediately following his admission, R1 engaged in inappropriate sexual behavior toward the women on the staff and the women residents.  According to a progress note, entered at 11:02 a.m. on February 28, his nurse aide reported that he grabbed at her breast that morning.  When told to stop, he did so immediately.  CMS Ex. 5 at 31.  In a second incident, a note entered at 11:11 a.m. that day indicates that the facility's social worker was sitting in the common area, talking to him.  He attempted to touch her breast; she told him that it was inappropriate, and he withdrew his hand.  They continued talking but, when she went to leave, he placed his hand on her buttocks.  She again told him it was inappropriate, and he withdrew his hand.  CMS Ex. 5 at 31.

In a note entered at 1:27 p.m. that day, Registered Nurse (RN) Mary Lopez, who was then the Unit Manager, writes that R1 was in the common area, getting ready to eat lunch.  Staff walking by saw that he had lifted another resident's shirt and was touching her bare breast.  Staff separated the two, filled out incident reports, and called the families and the state troopers.  CMS Ex. 3 at 3, 5; CMS Ex. 4 at 7; CMS Ex. 5 at 31; CMS Ex. 7 at 1-3.

R1's victim, R2, was a severely impaired 93-year-old woman, suffering from Alzheimer's Disease, depressive and anxiety disorders, and a host of other impairments.  CMS Ex. 4 at 1-4.  She was nonverbal, totally dependent on staff for activities of daily living, and non-ambulatory.  CMS Ex. 3 at 5; CMS Ex. 4 at 4.  In short, this woman was utterly defenseless.

Subsequently, neither individual remembered the encounter.

Progress notes entered at 7:29 p.m., 9:49 p.m., and 9:57 p.m. on February 28 indicate that, although R1 had not, during that time, assaulted any other residents, he had reached out and grabbed a nurse aide's buttocks.  CMS Ex. 5 at 30-31.

The following morning, R1 continued to touch staff inappropriately.  Notes entered at 6:38 a.m. and 11:41 a.m. on March 1 report that he touched a nurse aide on both breasts and buttocks three times.  CMS Ex. 5 at 30.  A physician's note, dated March 1, cites R1's inappropriate behavior toward women and indicates that "he will be in need of close follow-up with geriatric psychiatry here."  CMS Ex. 5 at 14.

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R1's initial care plan.  R1's care plan was initiated and amended on February 28, 2019.  See P. Br. at 4 (indicating that the care plan was modified following the incident with R2).  The plan identifies R1's "potential to be sexually inappropriate[,] related to [his] poor impulse control."  To address the problem, the plan directs staff to:  "assess and address for contributing sensory deficits"; seat the resident next to male residents while in the common area and during activities "to help lessen temptation of inappropriate touch"; and monitor and document in the behavior log his observed behaviors and attempted interventions.  CMS Ex. 5 at 21.No evidence establishes that staff made any such entries into a behavior log.  In fact, the evidence suggests that they did not.  A behavior log policy is dated April 3, 2019 (which was during the survey), and the accompanying behavior log is blank.  CMS Ex. 7 at 10-11.  However, CMS has not specifically pursued this issue.  The plan also calls for consults with psychiatric or "psych APRN (Advance Practice Registered Nurse)," as needed.  CMS Ex. 5 at 22.

On March 1, the facility amended R1's care plan to note that he requires frequent observation.  The plan directs staff to ensure that, when seated in a common area or during activities, he must sit away from the other residents to prevent him from inappropriate touching.  CMS Ex. 5 at 21-22.On the same day, the facility added to R1's care plan that he was given a bed alarm, although the entry indicates that this was to address his poor safety awareness rather than his sexually aggressive behaviors.  CMS Ex. 5 at 21.

The next incident:  March 4, 2019.  R1's inappropriate sexual behaviors toward staff continued.  See, e.g., CMS Ex. 5 at 29 (reporting that R1 "continues to display increased sexual behaviors, attempting to grab/touch at female staff's breasts and thighs.").  Nevertheless, when implemented, the care plan interventions seemed to protect the other residents.  For example, at lunch on March 3, he was seated at a men's table and did not abuse any women residents at that time.  CMS Ex. 5 at 29.  However, contrary to the instructions in his care plan, staff did not consistently keep him away from women residents, and, given the opportunity, he assaulted them.  At about 7:30 p.m. on March 4, he was seated in the lounge, when a female resident (R3) approached.  R1 put his hand up her blouse and grabbed her breast.  Staff separated them and, for the rest of the shift, a staff member sat with R1.  CMS Ex. 3 at 6-10; CMS Ex. 4 at 13; CMS Ex. 5 at 29; CMS Ex. 7 at 4.  R3 was an 80-year-old woman suffering from advanced dementia.  CMS Ex. 3 at 8, 10; CMS Ex. 4 at 8-11.

On March 4, 2019, the facility again amended R1's care plan, directing staff to monitor, document, and report, as needed, any signs or symptoms of the resident "posing [a] danger" to himself or others.  CMS Ex. 5 at 22.  The next day, the facility added another

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instruction to the plan:  "Try to keep [R1] in chair in corner to provide less opportunity for other residents to get [too] close for him to touch."  Id. (emphasis added).

March 6, 2019 incident.  At about 4:10 p.m. on March 6, 2019, as a staff member was walking down the hall, she saw R1 in the sunroom.  She went in to see what he was doing and saw him rubbing R4's buttocks.  CMS Ex. 4 at 19; CMS Ex. 5 at 28; CMS Ex. 7 at 6.  The residents were separated.  CMS Ex. 3 at 12.  The facility directed staff to offer R1 "activities to keep [his] hands occupied and distract from females."  CMS Ex. 3 at 12-13.  The victim was a 78-year-old woman suffering from dementia, with severely impaired cognitive abilities, as well as depressive and anxiety disorders.  CMS Ex. 3 at 15; CMS Ex. 4 at 14-17.

Again, staff amended the care plan, adding that R1 "needs distance supervision.  When he leaves the common area[,] staff need to see where he is and redirect to a supervised area."  CMS Ex. 5 at 21 (emphasis added).  On March 10, the plan added instructions to staff to monitor R1's psychotropic medications for side effects and effectiveness and to monitor and record sexually inappropriate behaviors.  P. Ex. 6 at 8-9.

Incident reported on March 11, 2019.  During a routine meeting, another female resident, R5, told Social Worker Williams that R1 had touched her breast "a couple days ago."  CMS Ex. 3 at 16-18; CMS Ex. 4 at 26.  A progress note indicates that she reported that she had been sitting in the common area on Saturday, March 9 (although other reports indicate that she could not remember the exact date).  She got up and moved to another chair and told him not to touch her again.  CMS Ex. 4 at 26.  No staff observed the incident.  Although R4 was diagnosed with dementia, she remained cognitively intact.  CMS Ex. 4 at 20, 22.

Again, the facility's responses were listed as:  "Resident to be kept under close observation, away from female residents, given activities to occupy his hands."  CMS Ex. 3 at 17.

Physician progress notes, dated March 12, describe R1 as "agitated" and indicate that he "has been touching other residents inappropriately."  According to the note, the psychiatric APRN visited and he was started on Risperidone, which was only partly effective.  The physician had prescribed Depakote as well, although the resident "seems rather sedated."  CMS Ex. 5 at 15.Using psychotropic medications to control behavior presents significant problems.  They are simply not an appropriate substitute for proper supervision and may not be prescribed unless "necessary to treat a specific condition as diagnosed and documented in the clinical record."  42 C.F.R. § 483.45(e)(1).  R1's medical record does not identify an appropriate diagnosis for which these drugs (Risperidone and Depakote) were prescribed.  Dr. Mubbashar expresses his concern about these drugs and advocates for "non-pharmacological interventions."  P. Ex. 3 at 3 (Mubbashar Decl. ¶ 10).  However, CMS has not cited a deficiency under section 483.45, and the issue is not before me.

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On March 12, staff again amended R1's care plan, adding that he "needs tactile[,] soft hand held items to hold.  This will keep his mind occupied."  CMS Ex. 5 at 21.

March 21, 2019 incident.  On March 21, R2 was sitting in the common area with other residents.  Contrary to the explicit instructions in his care plan, R1 sat next to her and no staff prevented that.  The activities coordinator staff was, or had been, in the room, but she left, going into the "activities closet" to get supplies.  When she returned, R1 was massaging R2's breast.  The staff member yelled, "stop," and separated them.  CMS Ex. 4 at 6; CMS Ex. 7 at 8-9; see CMS Ex. 3 at 21-23.  The event report indicates that staff would "[c]ontinue to keep resident on close monitoring" and would use a busy box for distraction.  CMS Ex. 3 at 23.

Unit Manager Lopez, who was not there, maintains that R1 had not been sitting next to R2 when the activities director left the room "or at any time prior to her observation of the inappropriate touching."  P. Ex. 2 at 4 (Lopez Decl. ¶ 16).  She provides no underlying support for this but bases the claim on her "investigation" of the incident.  Her assertion is not well-supported by the contemporaneous documentation, including her own.  See W. Tex. LTC Partners, DAB No. 2652 at 15  (holding that a witness's "unsupported speculation" does not create even a "metaphysical doubt," much less raise a genuine dispute of material fact as required to preclude summary judgment).  In her contemporaneous progress note, Unit Manager Lopez wrote that R2 was sitting in a "broad chair" with other residents, when R1 "came out and sat next to her."  The "activities member" went "into the recreation," and, when she returned, R1 was massaging R2's breast.  CMS Ex. 4 at 6.

According to the activities coordinator's written report, she was not responsible for the residents' care and had no contact with them during her shift.  She vehemently denied knowing about anything, such as staff behavior or the environment (which would include where the residents were sitting), that may have precipitated the incident, responding "NO!" when asked.  CMS Ex. 7 at 8.  This tells me that she was not supervising the residents and had no idea where they were until she re-entered the room and observed R1 molesting R2.

More important, Unit Manager Lopez's assertion that  R1 did not sit next to R2 until the activities coordinator left the room is not material.  The undisputed evidence establishes that, contrary to his care plan, R1 was unsupervised and thus was able to sit next to a vulnerable woman resident and to molest her.  This incident alone put the facility out of substantial compliance with sections 483.12 and 483.25.

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A physician's progress note, dated March 21, indicates that R1 was not doing well with his antipsychotic regimen.  His behaviors have included touching female residents, and he does not seem to be aware of what he is doing.  CMS Ex. 5 at 16.

The facility again amended R1's care plan, directing staff to place an activity board in front of the resident when he was in the common area, around female residents, to occupy his mind and hands.  CMS Ex. 5 at 22.  A progress note, dated March 22, reiterates that staff "[w]ill continue to keep resident arms length from female residents."  CMS Ex. 5 at 24.

In a physician progress note dated March 27, R1's physician describes a "difficult balance" in titrating his medications.  The physician increased R1's Depakote, and the resident was spending more time sleeping; on the other hand, he was "very aggressive" and sexually inappropriate with female residents.  CMS Ex. 5 at 16.

A progress note dated March 25, 2019, describes R1 in the lounge, "touching himself" inappropriately.  CMS Ex. 5 at 24.  And he continued to grab at and touch female staff inappropriately.  See, e.g., CMS Ex. 5 at 24.

A progress note, entered at 8:57 a.m. on April 3, 2019, indicates that staff had supervised R1 one-on-one for the duration of the shift, and no problematic behaviors occurred.  CMS Ex. 5 at 23.  On April 4, the facility transferred R1 to a hospital inpatient psychiatric unit.  P. Ex. 3 at 2 (Mubbashar Decl. ¶ 4).  He did not return to the facility.

Thus, the undisputed facts establish that, from the time of his admission, facility staff knew that R1 engaged in sexually aggressive behavior.  They addressed those behaviors in the resident's care plan, and, whenever he abused another resident, staff amended the plan.  For the most part, these changes were variations on the same theme:  supervise the resident more closely; keep him away from women residents; and give him something to occupy his hands and mind.If staff ever gave R1 a "busy box" or other activity to occupy his hands, they did not record it, even though his care plan directed them to document their interventions and his response.  See CMS Ex. 5 at 21.  The problem was that staff did not consistently follow those instructions, leaving him free to molest vulnerable women.

Failing to follow the facility policies and failing to follow a resident's care plan put the facility out of substantial compliance.  See Guardian, DAB No. 1943 at 23 (citing Lebanon , DAB No. 1918 at 9); Windsor, DAB No. 1902 (holding that summary judgment is appropriate when (as here) the undisputed facts show that the facility did not follow its own care plan in keeping a resident safe); Maysville, DAB No. 2874 at 14 (agreeing that a sexually aggressive resident's "ongoing ability to inappropriately touch [another resident] on several occasions" demonstrates the facility's failure to comply

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substantially with the  regulations that require it to protect from abuse a compromised resident who was dependent on the facility for her care and well-being.).

Petitioner's arguments.  Petitioner, nevertheless, asserts that it adequately supervised R1 and, to the extent possible, protected vulnerable residents from his sexual advances.

Petitioner suggests that it was not required to implement 1:1 supervision or 15-minute checks on R1.  P. Br. at 16.  Apparently, the surveyors discussed these approaches with facility staff.  But, as noted above, a facility may choose the means by which it will adequately supervise its residents in order to prevent accidents.  And the facility laid out those means in R1's care plan, which did not include 1:1 supervision or 15-minute checks.  I do not find that the facility's purported failure to implement 1:1 supervision or 15-minute checks put it out of substantial compliance.  I find that its failure to implement consistently, the interventions set forth in R1's care plan put it out of substantial compliance with the Medicare requirements.

Nor do I accept Petitioner's other defenses:

Unit design.  Petitioner emphasizes the layout of the dementia unit where R1 was housed, suggesting that, by itself, the design was sufficient to ensure adequate supervision.  P. Br. at 3, 8-9 (#6), 16; P. Ex. 2 at 2 (Lopez Decl. ¶ 6).  No doubt, the unit staff shared this view.  And I accept that the unit was designed to make it easier for staff to supervise the residents.  But the unit's design, by itself, was not sufficient to ensure that the resident was adequately supervised, which R1's care plan reflected.  As Petitioner points out, R1 needed "to be watched at all times with other residents."  P. Br. at 9; CMS Ex. 5 at 30.  The undisputed evidence establishes that he was not consistently supervised as he interacted with women residents.  Either no staff were present, or they were present but not paying attention to him, and he was able to insinuate himself next to a vulnerable woman and to molest her.

No noticeable harm to victims.  Petitioner also maintains that none of R1's victims showed any adverse effects from the assaults; only one resident remembered what happened, and she did not feel threatened.  P. Br. at 6, citing CMS Ex. 4 at 5-7, 12-13, 18-19, 24-26 and CMS Ex. 7 at 7.  That a victim does not or cannot react to abuse is irrelevant.  42 C.F.R. § 488.301 (providing that abuse can occur without regard to the victim's mental or physical condition).  By their very nature, incidents of sexual abuse and harassment are likely to cause serious injury or harm to a vulnerable population.  Maysville, DAB No. 2874 at 21; see Grace Healthcare of Benton, DAB No. 2189 at 13 (2008).  Indeed, the facility's own policies recognize that the most seemingly unaware resident – someone in a coma – can be the victim of abuse.  CMS Ex. 7 at 18.  For seriously demented individuals, who are unable to express or demonstrate physical harm, pain, or mental anguish, the policy presumes that the sexual abuse causes physical harm, pain, or mental anguish and calls for timely action.  CMS Ex. 7 at 24.  See Neighbors

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Rehab. Ctr., LLC,  DAB No. 2859 at 18 (2018) (describing the potential harm caused by a facility policy that allowed severely cognitively impaired residents to be subjected to sexual advances so long as they did not protest).

R1's dementia.  Petitioner also argues that, because he suffered from advanced dementia, R1's conduct was not willful and thus did not constitute abuse within the meaning of section 483.5.This is one of many legal conclusions that Petitioner incorrectly characterizes as a dispute of material fact.  P. Br. at 8 (#2).  In support of this claim, Petitioner submits a declaration from Sabooh S. Mubbashar, M.D., the medical director at Sharon Hospital, the psychiatric facility to which R1 was transferred on April 4, 2019.  Dr. Mubbashar opines that R1 "did not act deliberately when he touched other residents" and "did not understand or intend the contact with the other residents to be sexual in nature."  P. Ex. 3 at 2 (Mubbashar Decl. ¶ 6).  But Dr. Mubbashar's understanding of "willful" differs from its regulatory meaning.  See Britthaven, Inc., DAB No. 2018 at 4 (2006) (observing that the term "willful" has "multiple meanings in the law – from ‘malicious' to ‘not accidental' – depending on the context in which it is used.").

It is settled that, so long as his actions were "deliberate" rather than "accidental" or "inadvertent," they are considered "willful" within the meaning of the regulation.  Maysville , DAB No. 2874 at 11  (citing Merrimack Cnty. Nursing Home, DAB No. 2424 at 5 (2011)); Britthaven, Inc., DAB No. 2018 at 4 ; cf. Singing River Rehab. & Nursing Ctr., DAB No. 2232 at 13 (2009) (suggesting that, so long as a mentally ill resident did not act "by accident," his conduct was abusive); see Neighbors Rehab. , DAB No. 2859 at 14 (finding that whether a demented resident intended or understood his actions to be sexual in nature is irrelevant to the issue of the facility's failure to assess and plan for the behavior).

No one has claimed that R1's inappropriate touching was accidental.

Using a different approach, Petitioner also claims (as a material fact in dispute) that R1 never displayed aggressive behaviors.  P. Br. at 12.  According to Unit Manager Lopez, "[a]t no time during his stay was it reported that [R1] had aggressive behaviors."  P. Ex. 2 at 4 (Lopez Decl. ¶ 17).  How Petitioner chooses to characterize Petitioner's behavior is not an allegation of fact; it is a conclusion, and an irrelevant one.Many, if not most, would probably consider grabbing a woman's breast or bottom an aggressive act.  Certainly, R1's treating physician did.  On March 27, 2019, Dr. Cohen justified increasing the resident's psychotropic medications by citing the resident's "very aggressive and sexually inappropriate behaviors with female [residents]."  CMS Ex. 5 at 16.  What is relevant is that staff identified R1's abusive behavior and care-planned for it.  It was incumbent on

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them to follow the plan.  Because they failed to do so, the facility was not in substantial compliance with program requirements.

2. The penalty imposed is reasonable.

To determine whether the CMP is reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f):  1) the facility's history of noncompliance, including repeat deficiencies; 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.

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.  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. 1638 at 8 (1999).

The burden is on the facility to demonstrate that a reduction is necessary to make the CMP amount reasonable.  Heritage Plaza, DAB No. 2829 at 22.

Here, CMS imposes a per-instance penalty of $21,393, which is at the high end for per-instance penalties ($2,140 to $21,393).  42 C.F.R. §§ 488.408(d); 488.438(a)(2); 45 C.F.R. § 102.3 (2017); 83 Fed. Reg. at 51,380.  But, considering what CMS might have imposed – a comparable per-day penalty for multiple days of substantial noncompliance – this penalty is modest.  See Plum City Care Ctr., DAB No. 2272 at 18-19 (2009) (observing that even the maximum per-instance CMP can be "a modest penalty when compared to what CMS might have imposed.").The penalty could have been as high as $21,393 per day starting February 28, 2019, and continuing through April 4.  83 Fed. Reg. at 51,380 .  Even the minimum per-day penalty ($6,525) for this period would have resulted in a total CMP far higher than the per-instance that was imposed.

Applying the relevant factors here, the $21,393 per-instance penalty is reasonable.  In fact, it is modest.

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CMS offers no evidence of the facility's history.

Petitioner does not claim that its financial condition affects its ability to pay the penalty.

Applying the remaining factors, from the time of his admission, facility staff recognized that R1 was sexually aggressive and, given the opportunity, would molest women residents, who were unable to defend themselves.  Staff also understood that, with proper distancing and close supervision, they could prevent these assaults.  Yet, as set forth in some detail above, on multiple occasions, they failed to do so.  For this, the facility is culpable.

For these reasons, I find that the relatively modest CMP is not unreasonably high.

Conclusion

CMS is entitled to summary judgment because the undisputed evidence establishes that, the facility was not in substantial compliance with Medicare program requirements.  The penalty imposed – $21,393 per instance – is reasonable.