Bedford Care Centre of Newton, DAB CR5988 (2021)

DECISION

Here, we consider what constitutes an adequate response to evidence that a severely impaired and vulnerable nursing home resident has been sexually abused.

Petitioner, Bedford Care Center of Newton, is a long-term-care facility, located in Newton, Mississippi, that participates in the Medicare program.  Following a complaint investigation survey, completed August 10, 2019, the Centers for Medicare and 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 civil money penalties (CMPs) of $6,635 per day for 32 days of substantial noncompliance that posed immediate jeopardy to resident health and safety (July 9 through August 9, 2019), and $215 per day for 18 days of substantial noncompliance that did not pose immediate jeopardy (August 10 through 27, 2019), for a total penalty of $216,190.

Petitioner appeals, and, because there are no witnesses to be cross-examined, I decide this case based on the written record.

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I find that, from July 9 through August 27, 2019, the facility was not in substantial compliance with Medicare Program requirements, including 42 C.F.R. § 483.12, and that, from July 9 through August 9, 2019, its deficiencies posed immediate jeopardy to resident health and safety.  The penalties imposed are reasonable.

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, responding to a complaint of possible abuse, surveyors from the Mississippi State Department of Health (state agency) surveyed the facility from August 5 through 10, 2019.  Based on the survey findings, CMS determined that the facility did not comply substantially with the following Medicare program requirements:

• 42 C.F.R. § 483.12(a)(1) (Tag F600 – freedom from abuse and neglect), cited at scope and severity level J (isolated instance of substantial noncompliance that poses immediate jeopardy to resident health and safety);
• 42 C.F.R. § 483.12(b)(5) (Tag F608 – freedom from abuse and neglect:  policies to ensure reporting), cited at scope and severity level J;
• 42 C.F.R. § 483.12(c) (Tag F610 – freedom from abuse and neglect:  reporting and investigation), cited at scope and severity level J;
• 42 C.F.R. § 483.20(g) (Tag F641 – resident assessment:  accuracy), cited at scope and severity level D (isolated instance of substantial noncompliance that causes no actual harm, with the potential for more than minimal harm); and

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• 42 C.F.R. § 483.80(a) (Tag F880 – infection control), cited at scope and severity level D.

CMS Exs. 1, 2.

CMS also determined that, as of August 10, 2019 – the last day of the survey – the deficiencies no longer posed immediate jeopardy, but the facility’s substantial noncompliance continued.  CMS Ex. 1 at 1.  Thereafter, following a revisit survey, completed October 17, 2019, CMS determined that the facility returned to substantial compliance on August 28, 2019.  CMS Ex. 3.

CMS imposed against the facility penalties of $6,635 per day for 32 days of substantial noncompliance that posed immediate jeopardy to resident health and safety (July 9 through August 9, 2019), and $215 per day for 18 days of substantial noncompliance that did not pose immediate jeopardy (August 10 through 27, 2019), for a total penalty of $216,190.  CMS Exs. 1, 3.

Petitioner appeals, challenging only the deficiencies cited at the immediate jeopardy level.

Exhibits.  CMS has filed a pre-hearing brief (CMS Br.) with 12 exhibits (CMS Exs. 1‑12).  Petitioner filed its own pre-hearing brief (P. Br.) with seven exhibits (P. Exs. 1-7).

CMS objects to my admitting P. Ex. 3, which Petitioner identifies as “[a]dditional written statements” of facility staff.  The document consists of two extremely brief statements, apparently signed by staff members.  The signatures are difficult to read, and Petitioner does not otherwise identify the signatories.  They are not listed as witnesses and did not provide written declarations.  In a footnote to its brief, Petitioner suggests that these were statements obtained as part of the facility’s internal investigation.  P. Br. at 3 n.2.  As such, they are relevant and material, if only to show the quality and content of the witness interviews.  They will therefore be admitted.  See 42 C.F.R. § 498.60(b) (directing the ALJ to admit evidence that is relevant and material).

Petitioner objects to CMS Ex. 7, pages 95-98.  CMS accurately describes CMS Ex. 7 as “[m]edical and facility records for Resident 2,” except the document includes four pages of surveyor notes.  The same notes are found in CMS Ex. 8 at 7-10.  Placing copies of the notes within CMS Ex. 7 was obviously an error.  Since it isn’t necessary to include two copies of the same notes, I decline to admit CMS Ex. 7, pages 95-98.

I admit into evidence CMS Exs. 1-6, CMS Ex. 7 pages 1-94 and 99-161, and CMS Exs. 8-12.  I also admit P. Exs. 1-7.

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Petitioner’s subpoena request.  Petitioner has asked that I issue a subpoena directing Trey Rogers, Senior Investigator with the Medicaid Fraud Control Unit, Office of the Attorney General of the State of Mississippi, to appear and testify.  CMS objects to my issuing the subpoena, arguing that some of the facts that the investigator would purportedly establish have already been established or are not disputed, and others are not relevant.

I may issue a subpoena only if “reasonably necessary for the full presentation of a case.”  42 C.F.R. § 498.58(a).  The subpoena request must, among other requirements, “[s]pecify the pertinent facts the party expects to establish” by the witness and “indicate why those facts could not be established without use of a subpoena.”  42 C.F.R. § 498.58(c)(3).

Petitioner explains that the Mississippi Attorney General’s office prohibits its investigators from testifying unless subpoenaed, so, unless I issue a subpoena, Petitioner cannot produce Investigator Rogers as a witness.  Petitioner’s Motion for Issuance of Subpoena at 2.  But the question is not whether the witness can be produced; the question is whether the witness’s testimony is “reasonably necessary for the full presentation of [Petitioner’s] case.”  I conclude that it is not.

Petitioner lists certain “facts” that, it maintains, it cannot establish without the investigator’s testimony.  For at least two of these “facts,” this is plainly not so:

• That the facility contacted “the relevant state law enforcement agency” concerning the resident’s positive lab result for trichomonas, a sexually-transmitted disease.The facility had evidence that a serious crime had been committed. It was incumbent on staff to report that fact to local law enforcement, as well as to the state. It did not do so. See 42 C.F.R. § 483.12(b)(5), CMS Ex. 5 at 15.
  
  Investigator Rogers is hardly the only person who can establish when and how the facility contacted the Attorney General’s Office.  The staff member who made the call would be an appropriate source for this information.  Moreover, the facility’s contact with law enforcement should have been documented, and the documentation would establish that the contact was made, without the use of a subpoena. 

• Investigator Rogers “communicated with an epidemiologist” and “confirmed trichomonas can be dormant.”
  
  There are obviously better ways to present medical evidence than through the hearsay testimony of an investigator, who “communicated” with an unidentified source.  This fact could more reliably be established by offering the testimony of

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an actual medical expert, submitting a learned treatise on the subject, or submitting easily-obtained publications from reputable sources (CDC, NIH, PHS).As discussed below, in deciding that no abuse occurred, the facility relied on a statement, made by the facility’s medical director, that the infection could lie dormant. However, the medical director has not been named as a witness and does not submit a written declaration confirming or defending that opinion.

Petitioner also maintains that Investigator Rogers is “the sole person able to communicate the details of his investigation” and would establish that the Medicaid Fraud Control Unit investigated the “possible sexual assault” related to the resident’s lab result.  He would describe the steps the Medicaid Fraud Control Unit took and the results of the investigation.  According to Petitioner, Investigator Rogers would establish that the Mississippi Attorney General’s Office and the facility reached the same conclusion as to the evidence of abuse, and he would opine that the facility’s investigation was thorough.

For several reasons, these assertions do not justify my issuing a subpoena.  First, no one disputes that the Attorney General’s Office launched an investigation of sorts.  CMS Br. at 5.  Establishing that fact does not require a subpoena.

Second, the facility’s reporting to the appropriate agencies, the subsequent investigations, and their results (to the extent they are even relevant) should have been known to the facility’s administration, and any resulting reports should have been available.  Petitioner has not explained why it has failed to produce the report of the Attorney General’s investigation, to which it presumably would have access.  To the extent that any of the facts surrounding the Attorney General’s investigation are relevant, that document would establish them, without the use of a subpoena.

Third, the testimony is not relevant.  I am not reviewing the quality of the Attorney General’s investigation.  Nor am I bound by any witness’s legal conclusions.  I am reviewing, de novo, the quality of the facility’s response to evidence that a vulnerable resident was sexually abused.  As CMS points out, the facility must establish that it thoroughly investigated the purported abuse.  It cannot satisfy that regulatory requirement by piggy-backing off of someone else’s investigation.  Nor can it justify its failing to conduct a thorough, independent investigation by claiming (or even establishing) that another entity had done so.

Petitioner thus has not met the regulatory criteria for my issuing a subpoena; it has not established that the witness testimony is reasonably necessary for the full presentation of its case.  Nor has it pointed to relevant facts that could not be established without use of a subpoena.  I therefore deny its subpoena request.

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Decision on the written record.  My standing order directed the parties to exchange, as a proposed exhibit and in the form of an affidavit or written declaration, the written direct testimony of any proposed witness.  Acknowledgment and Pre-hearing Order at 3 (¶ 4(c)(4)) (Nov. 7, 2019).  The order also directed each party to indicate whether it wanted to cross-examine the opposing party’s witnesses.  Acknowledgment at 5 (¶ 9).  It pointed out that a hearing would be necessary only if a party files admissible, written direct testimony, and, in compliance with the order, the opposing party asks to cross‑examine.  Acknowledgment at 5 (¶ 10).

CMS listed one witness.  Petitioner has declined the opportunity to cross-examine CMS’s witness.  Petitioner listed three witnesses, in addition to Investigator Rogers.  CMS withdrew its request to cross-examine any of Petitioner’s witnesses.

Since the witnesses’ direct testimonies are already in the record, and no witnesses will be cross-examined, an in-person hearing would serve no purpose.  This matter may therefore be decided based on the written record.

Issues

Based on the deficiencies Petitioner did not appeal, I find that, the facility was not in substantial compliance with Medicare program requirements, and I must sustain a penalty of at least $107 per day (the minimum regulatory amount).  See 84 Fed. Reg. 59,549 (Nov. 5, 2019).

The remaining issues are:

1. From July 9 through August 27, 2019, was the facility in substantial compliance with 42 C.F.R. § 483.12(a)(1), (b)(5), and (c);
2. If, from July 9 through August 9, 2019, the facility was not in substantial compliance, did its deficiencies then pose immediate jeopardy to resident health and safety; and
3. Are the penalties imposed – $6,635 per day for 32 days and $215 per day for 18 days – reasonable?

Discussion

1. The facility was not in substantial compliance with 42 C.F.R. § 483.12(a)(1), (b)(5), and (c) because facility staff did not immediately report, to law enforcement, evidence of sexual abuse; they did not adequately protect the suspected victim of sexual abuse while their investigation was pending; and their investigation was inadequate.

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Program requirement:  42 C.F.R. § 483.12(a)(1) (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).

Program requirement:  42 C.F.R. § 483.12(b)(5) (Tag F608).  The statute and regulations include strict abuse reporting requirements.  Facilities receiving federal funds must report to CMS and to one or more law enforcement agencies “any reasonable suspicion of a crime . . . against any individual who is a resident of, or is receiving care from, the facility.”  Act § 1150B(b)(1).  If the events that raise suspicion result in “serious bodily injury,” staff must report “immediately,” but not less than two hours after forming the suspicion.  If the events do not result in serious bodily injury, staff must report not later than 24 hours after forming the suspicion.  Act § 1150B(b)(2).

This reporting requirement applies to all “covered individuals,” who include owners, operators, employees, managers, agents, or contractors of long-term care facilities that receive federal funds.  Act § 1150B(a)(3).

The regulation requires the facility to develop and implement written policies and procedures that, among other requirements, ensure that crimes are reported “in accordance with section 1150B of the Act.”  Those policies and procedures must include notifying covered individuals of their obligations to comply with the reporting requirements:  to report to the state agency and one or more law enforcement entities “any reasonable suspicion of a crime against any [facility resident]”; to report “immediately,” but not later than two hours after forming the suspicion, if the events that cause the suspicion result in serious bodily injury, or not later than 24 hours if the events do not result in serious bodily injury; posting a conspicuous notice of employee rights, as defined by section 1150B(d)(3) (i.e., the employee may file a complaint without fear of retaliation); and prohibiting and preventing retaliation.

Program requirement:  42 C.F.R. § 483.12(c) (Tag F610).  The facility must ensure that all alleged violations involving abuse or resulting in serious bodily injury are reported immediately, but not later than two hours after the allegation is made, to the facility administrator and appropriate state officials.  If the events do not involve abuse, and do not result in serious bodily injury, staff must report (to the facility administrator,

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the state agency and other appropriate officials) not later than 24 hours after the allegation is made.  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)-(4).

Facility policies:  residents’ rights; abuse prevention, investigation, and reporting.  The facility’s policy on residents’ rights declares that the facility will “ensure that each resident admitted to the facility” is free from mental and physical abuse.  CMS Ex. 6 at 1.

The facility’s policy on abuse requires the facility to comply with all regulations, laws, policies, procedures, and guidelines for preventing, investigating, and reporting suspected abuse.  The policy echoes the statutory and regulatory requirement that each resident be free from physical, verbal, sexual, and mental abuse, corporal punishment, involuntary seclusion, neglect, and exploitation.  CMS Ex. 5 at 1.

I see some significant problems with the facility’s abuse policy.  Among other irregularities, it categorizes certain allegations of abuse as “invalid complaints” and certain types of residents (including the most vulnerable) as less reliable and thus entitled to fewer protections during the facility’s investigation.  The policy provides:

• All allegations of abuse, mistreatment, or neglect, including injuries of unknown origin, will be reported immediately to any supervisor or department head, who will then report to the administrator.  For any allegation of physical abuse, the resident will promptly be assessed and the assessment documented by the nurse supervisor;
• All incidents of possible abuse will initially be investigated by the administrator or designated staff;
• When the facility’s preliminary investigation indicates a possible reportable incident, these incidents will first be reported to “Corporate Compliance,” pursuant to instructions in the accompanying guidelines from the director of the Medicaid Fraud Control Unit, Mississippi Attorney General’s Office;
• After reporting to Corporate Compliance, reportable incidents will then be reported as follows:

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1. To local law enforcement pursuant to the Elder Justice Act of 2010;Policies are supposed to convey to staff what they are required to do. This policy repeatedly refers to complying with statutes but does not necessarily explain what the referred-to provisions require. The reporting requirements of the Elder Justice Act of 2010 are set forth in section 1150B of the Act and in 42 C.F.R. § 483.12.
2. To the Mississippi Attorney General’s Office and the Mississippi Department of Health, pursuant to the Elder Justice Act and the Mississippi Vulnerable Person’s Act;
3. The resident’s representative will be notified within 24 hours;
4. The resident’s physician will also be notified.

• Within 72 hours after the initial report of a reportable incident, the administrator or designee will provide a written report of the results of the investigation to the Mississippi Department of Health and/or the Mississippi Attorney General’s Office, the resident’s representative, and/or others “as required by law.”
• When an incident is determined reportable, the principally involved employee(s) will be placed on unpaid leave until the facility has conducted its investigation, unless certain information is known or quickly discovered that is inconsistent with the allegation (an “invalid complaint”), in which case the employee(s) may not be suspended.  The Administrator or designee makes the decision.

CMS Ex. 5 at 1-2, 13.

The policy lists examples of evidence of an “invalid complaint,”I highlight, in bold, the provisions that may run afoul of the federal statute and regulations. some of which seem weighted in favor of the facility and its employees, rather than designed to ensure that residents are protected while allegations of abuse are investigated:

1. Physical abuse is alleged but no supporting evidence or injury exists, no bruising, scratches, skin tears, etc., or other injury consistent with the allegation.
   
   This is problematic.  Not all instances of abuse, even physical abuse, leave obvious physical injuries.  For example, pinching may not leave a physical mark, but is painful and constitutes abuse; a slap may not leave a physical mark (or it may fade too quickly to be noticed) but is painful, humiliating, and constitutes

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physical abuse.  This policy presents the possibility, perhaps likelihood, that the facility would not protect an abused resident from an abuser while the investigation is pending.  See, e.g., Somerset Nursing & Rehab. Facility, DAB No. 2353 at 10-11 (2010) (rejecting a facility’s argument that pinching a resident’s breast did not constitute abuse because it caused no pain or injury).

2. Information previously known or currently discovered during the investigation is inconsistent and/or contradictory to the alleged abuse complaint.
3. The resident has a history of making inaccurate and/or false statements or accusations.
4. The resident has a history of self-injury or combative behavior.
5. The resident’s history includes confusion and/or dementia.
6. The resident is known to be racially biased or prejudiced.
7. The resident has indicated a desire not to be in the nursing facility “and/or has other indicators listed herein.”
8. The resident is known by staff to be manipulative and/or has made previous unfounded allegations against other residents or staff.
   
   These provisions (#3-#8) are especially troubling.  It’s no secret that confused, combative, and demented residents are often the most vulnerable to abuse.  See, e.g., Bridge at Rockwood, DAB No. 2954 at 15 (2019) (in which a severely cognitively impaired and partially-paralyzed resident was abused by his roommate); Vibra Hosp. of Charleston-TCU, DAB CR5091 (2018) (in which high-level facility employees physically assaulted a combative, troublesome resident).
9. Nothing is listed under entry #9.
10. The absence of any prior allegations of suspected abuse against the accused.
11. The accused employee’s total years of service as a caregiver.
12. The accused employee’s reputation as a caregiver.
13. The accused employee’s behavior, demeanor, work history, and quality of work have never indicated any propensity for abuse.

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14. Absence of corroboration – only one person (Resident or other) has accused the employee.

CMS Ex. 5 at 5, 11.Because CMS has not alleged that these problematic provisions put the facility out of substantial compliance, I do not base my decision on them.

In a separate provision, the policy reiterates that any suspected or alleged abuse, alleged resident mistreatment, or injuries of unknown origin be reported to the nurse supervisor or department head.  The nurse supervisor will immediately assess the resident and will document the assessment.  The allegation will be reported to the Director of Nursing and the administrator.  If they are not at the facility, the nurse supervisor or department head must contact the administrator or designee.

The administrator or designee will begin an investigation, using the facility’s “Alleged Abuse Incident Report” form.  The administrator may assign social services or other designees to assist with gathering preliminary statements and information.  The administrator or designee must notify appropriate state agencies, the resident’s representative, and/or physician (if required by law).

“As applicable,” the administrator or designee enters the resident’s name on the “Alleged Abuse/Injury of Unknown Origin Investigation Log.”  CMS Ex. 5 at 6, 12.

The facility will complete its investigation and submit a written report within 72 hours and will provide a verbal report of its findings to the resident’s family.  The report must include (but is not limited to):  1) a summary of the investigation; 2) written statements of witnesses; 3) documentation of the resident’s assessment; and 4) a conclusion – valid, invalid, or inconclusive.  If the facility or any government agency concludes that abuse occurred, the violator’s employment will be terminated.  CMS Ex. 5 at 6, 12.

The administrator or designee will complete the “Alleged Abuse Disposition Checklist” to ensure that appropriate interventions have been implemented.  Id.If either the investigation log or this checklist exists, it is not part of this record.

Allegations of abuse, neglect, or exploitation must be reported “pursuant to the [Mississippi] Vulnerable Persons Act and Elder Justice Act”; “appropriate action will be taken based on the results of the investigation.”  CMS Ex. 5 at 7, 12. 

A section of the policy describes signs and symptoms of sexual abuse.  It requires that staff “ALWAYS REPORT FOUL SMELLING URINE OR A DISCHARGE.”  CMS Ex. 5 at 13 (emphasis in original).  Under the facility policy, sexual abuse must be reported

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within two hours of the abuse.  It must be reported to law enforcement as well as the state agency.  CMS Ex. 5 at 15.

Resident 2 (R2).  R2 was a 91-year-old woman, admitted to the facility on September 26, 2016.  CMS Ex. 7 at 1.  She suffered from a multitude of conditions, including congestive heart failure, chronic atrial fibrillation, chronic kidney disease, a major depressive disorder, and dementia.  CMS Ex. 7 at 157, 69.  She was confused and severely cognitively impaired.  CMS Ex. 7 at 22, 24-25, 69.  Her BIMS (Brief Interview for Mental Status) score was 3.  CMS Ex. 7 at 50, 88.Three years earlier, on October 8, 2016, her score had been 9, making her moderately impaired. CMS Ex. 7 at 105. Plainly, her cognitive abilities were deteriorating, and she was incapable of consenting to sexual activity.  She was incontinent.  CMS Ex. 7 at 67.  She did not walk but ambulated, using a wheelchair.  CMS Ex. 7 at 32, 58, 59, 113‑14.

On July 9, 2019, R2 became short of breath, her breathing labored.  Her oxygen saturation level was dangerously low – 58% on room air, rising to 84% when oxygen was administered.  She was sent to the emergency room and subsequently admitted to the hospital.  CMS Ex. 7 at 7, 147.  Upon admission, R2 was “[c]onfused not fully oriented.”  CMS Ex. 9 at 10, 12.  The hospital reported that she was a poor historian of events.  CMS Ex. 7 at 15.

The hospital administered a urinalysis, which showed that R2 had contracted trichomonas, a sexually transmitted infection.  CMS Ex. 7 at 7, 10, 18.  The parties agree that the hospital social worker notified the facility of the test results, but, curiously, R2’s progress notes (which are sparse) do not mention the call or the diagnosis.  See CMS Ex. 7 at 147.  In fact, the record contains no contemporaneous notes of the contacts between the hospital and facility staff regarding the test result.

R2 returned to the facility the following day, with diagnoses that included acute diastolic congestive heart failure, aortic stenosis, chronic atrial fibrillation, chronic kidney disease, and trichomonas infection.  CMS Ex. 7 at 6.

The documentation.  Given the seriousness of the allegation, the facility’s treatment records are remarkably silent on the issue of abuse.  Except for the test results themselves, they do not reflect that there was any problem.

The record includes little contemporaneous documentation of the facility’s response to the news of R2’s sexually transmitted infection:  a few short statements from staff (CMS Ex. 7 at 2, 3; CMS Ex. 11; P. Ex. 3) and the signature pages from Quality Assurance Committee meetings held on July 9 and 18, 2019.  CMS Ex. 4 at 6, 7.  The July 18 page

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indicates that the committee reviewed the facility’s policies and procedures but recommended no changes.  CMS Ex. 4 at 7.

R2’s progress notes do not mention the infection.  CMS Ex. 7 at 145-147.

The bulk of the evidence in this record is dated about a month after the facility learned that R2 had tested positive for a sexually transmitted infection.  Petitioner has submitted its investigative report, which it sent to the state agency on July 12, 2019.  P. Ex. 1.  The rest of the evidence was generated during and after the survey.  It includes staff statements to surveyors (See CMS Ex. 8 at 7-10; CMS Ex. 10 at 2-3 (Hartley Decl. ¶¶ 14, 16, 18, 19) and the written declarations that were submitted in these proceedings.  CMS Ex. 10; P. Exs. 5, 6, 7.  The absence of contemporaneous documentation makes it more difficult to assess credibility and to pin down the precise chronology of events.  See Bridge at Rockwood, DAB No. 2954 at 21 (2019) (finding it reasonable to conclude that contemporaneous accounts are more reliable than later-written accounts); Cedar Lake Nursing Home, DAB No. 2390 at 9 (2011); Woodland Oaks Healthcare Facility, DAB No. 2355 at 8 (2010).

The facility’s response to evidence that a resident had been sexually abused.  The facility’s investigative report is signed by the facility’s administrator, Charlotte Donald, and its director of nursing (DON), Melissa Ivey.  According to the report, at around 4:00 p.m. on July 9, 2019, a hospital social worker called and advised DON Ivey that R2 had trichomonas, which the social worker said she would report to the State Board and the Attorney General’s office.  P. Ex. 1 at 1; see P. Ex. 6 at 1 (Ivey Decl. ¶ 2).  DON Ivey reviewed R2’s chart and found no history of trichomonas.  She noted, and later reported, that a June 20, 2019 uranalysis was negative for the infection.  P. Ex. 1 at 1; see CMS Ex. 9 at 1; P. Ex. 5 at 1 (Donald Decl. ¶ 5); P. Ex. 6 at 1, 2 (Ivey Decl. ¶¶ 3, 13).  In fact, R2’s medical record included at least three negative trichomonas tests; they were administered on July 6, 2018, and September 2, 2018, as well as on June 20, 2019.  CMS Ex. 7 at 4, 5, 21.  The facility did not mention these earlier tests in any of its reports.

The investigative report indicates that, at about 4:50 p.m. on July 9, Administrator Donald and DON Ivey called the facility’s medical director, Dr. John P. Lee, to report the trichomonas diagnosis.  P. Ex. 1 at 1.  Although the investigative report doesn’t say so, it seems that this call was made during the Quality Assurance Committee meeting, which convened on July 9.  CMS Ex. 4 at 6; CMS Ex. 9 at 1; P. Ex. 6 at 1 (Ivey Decl. ¶ 4).

Dr. Lee speculated that R2 may have had the infection for a long time; it could have been dormant but suddenly flared up.  DON Ivey told him about the June 20, 2019 negative test, and he said that the disease might not show up on every urinalysis.  P. Ex. 1 at 1; P. Ex. 5 at 2 (Donald Decl. ¶ 7); P. Ex. 6 at 2 (Ivey Decl. ¶ 5).  No one mentioned the two negative tests from 2018.  Dr. Lee asked staff to see if the hospital would repeat the test.  P. Ex. 1 at 1.

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Minutes of the July 9 committee meeting are less than minimal.  They list the attendees, including Dr. Lee (who joined by telephone) and the meeting’s purpose, “to review resident with a case of trichomonas.”  No other information is recorded, not even Dr. Lee’s speculation, upon which the facility purportedly relied when it determined that no abuse occurred.  CMS Ex. 4 at 6.

Petitioner maintains that the meeting attendees “reviewed the information then available,” and none of the meeting attendees were aware of any indications that R2 had been sexually abused.  They decided that no changes needed to be made.  P. Ex. 5 at 2 (Donald Decl. ¶¶ 6, 8); P. Ex. 6 at 1, 2 (Ivey Decl. ¶¶ 4, 6).  Of course, the facility had not then investigated the allegation, and the committee did not have complete information, so the conclusion seems premature.  As we see, the committee did not subsequently reconsider its decision, even when the investigation revealed previously unreported evidence of sexual abuse.

By the time DON Ivey called the hospital (there is no contemporaneous record of the call), R2 had started taking antibiotics, so it was too late to repeat the test.  P. Ex. 1 at 2.  According to the investigative report and DON Ivey’s written declaration, the emergency room nurse reported no signs of physical trauma, and the resident herself reported no problems at the facility.  P. Ex. 1 at 1; P. Ex. 5 at 2 (Donald Decl. ¶ 11); P. Ex. 6 at 3 (Ivey Decl. ¶ 14).

No one tried to corroborate Dr. Lee’s theory that the infection had been dormant.  Facility staff did not contact the County Health Department (or anyone else with expertise) to verify that R2’s infection could have been dormant and undetected, notwithstanding repeated negative tests.  CMS Ex. 8 at 10.  Dr. Lee later told Surveyor Hartley that he had been treating R2 since 1990, and the resident had no history of trichomonas or any other sexually transmitted disease.  CMS Ex. 10 at 2 (Hartley Decl. ¶ 17).  It seems unlikely that the infection would have remained dormant for up to 30 years, with no symptoms and consistently negative tests.  After all, Dr. Lee speculated that the dormant disease might not show up on every urinalysis; he did not say that it wouldn’t show up on any urinalysis.  Inasmuch as the facility seems to have relied on his theory, it should have verified that this was even possible.  No one did.

Staff advised R2’s brother, who was her representative, of the trichomonas diagnosis.  He also told them that he was not aware that she had any history of the sexually transmitted infection.  P. Ex. 1 at 1; P. Ex. 6 at 3 (Ivey Decl. ¶ 16).

DON Ivey verified that the resident had not been out of the facility “on pass” throughout 2018 and 2019, so, if she contracted the disease during those years, it must have happened at the facility.  CMS Ex. 7 at 2, 3.  Administrator Donald and DON Ivey reviewed video footage of the area surrounding the door to R2’s room, although just one week’s worth of footage was available – July 3 through 9, 2019.  Apparently, the videos

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taken before July 3 had been deleted automatically.  The investigators reported that they observed “[n]o unusual activity” or “questionable visitors.”  CMS Ex. 10 at 2 (Hartley Decl. ¶ 16); P. Ex. 5 at 3 (Donald Decl. ¶ 15); P. Ex. 6 at 2 (Ivey Decl. ¶ 7).

R2 was not confined to her bed or her room.  She was able to propel herself in her wheelchair.  CMS Ex. 7 at 146, 155-56.  Yet the investigators did not consider the possibility of abuse occurring anywhere but in her room.

Administrator Donald and DON Ivey interviewed R2 and her roommate.  The record does not include any contemporaneous record of those interviews.  According to DON Ivey, R2’s roommate reported that neither she nor R2 “had any visitors to their room” (which is inconsistent with staff statements, see below), and that she had not observed any inappropriate conduct.  P. Ex. 6 at 3 (Ivey Decl. ¶ 17).  R2 herself reported no concerns.  P. Ex. 6 at 3 (Ivey Decl. ¶ 18).

On July 9, DON Ivey took statements from staff.  They agreed that R2 did not have visitors in her room but said that R2’s roommate did have visitors.  CMS Ex. 11 at 1-3.

DON Ivey claims that R2’s chart “did not identify any physical or behavioral symptoms that might indicate abuse.”  P. Ex. 6 at 2 (Ivey Decl. ¶ 13).  Given the quality of the facility’s record-keeping, I find this argument less than compelling.

More important, the evidence uncontrovertibly establishes that there had been physical symptoms of abuse, but staff did not report them or record them.  In her written statement, Nurse Aide Patricia Bang reported that R2 had a “strong odor” when she was being changed, “much stronger” than when she had a urinary tract infection.  CMS Ex 11 at 1 (emphasis added).  A second nurse aide, Tanganyika Lloyd, agreed that the resident had a “foul odor,” which she attributed to a urinary tract infection.  CMS Ex. 11 at 3; see CMS Ex. 9 at 1 (facility report of corrective action, acknowledging the nurse aide statements).

Notwithstanding the facility policy that identifies a foul odor as a symptom of sexual abuse, which must be reported, staff had not done so.  CMS Ex. 5 at 13, 15.  The symptoms were not reported to the nursing supervisor, the DON, or the facility administrator, much less to the state agency.  No one investigated.  CMS Ex. 5 at 1, 6, 12, 13.  No one reported the symptoms to law enforcement.  This puts the facility out of substantial compliance with section 483.12.

Petitioner objects to CMS arguing that the facility failed to report this evidence of sexual abuse because it was not cited in the statement of deficiencies.  P. Br. at 10.  It is well‑settled that CMS is not limited to the specific allegations included in the Statement of Deficiencies.  As the Departmental Appeals Board has repeatedly explained, the Statement of Deficiencies is a notice document, not intended to “lay out every single detail in support of finding that a violation has been committed.  Life Care of Bardstown,

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DAB No. 2479 at 7 (2012) (citing Livingston Care Ctr., DAB No. 1871 (2003)); Alden Manor Rehab. & HCC, DAB No. 2054 at 17-18 (2006) (citing Pac. Regency Arvin, DAB No. 1823 at 9-10 (2002)).  So long as the facility knows what it must answer to – which can be accomplished through pre-hearing record development – the facility has sufficient notice.  Here, in its prehearing submissions, CMS laid out its position.  CMS Br. at 7.  The issue was thus properly raised, and Petitioner had ample notice and opportunity to respond.

Even more concerning, as of July 9, the facility knew that R2 had tested positive for a sexually transmitted infection and that she had previously unreported symptoms of sexual abuse.  Yet, the facility seems to have disregarded those symptoms when it conducted its investigation and reached its conclusions.  The facility did not mention them in its July 12 investigative report.  P. Ex. 1.  There is no evidence that anyone discussed them at the second Quality Assurance Committee meeting.  Indeed, DON Ivey and Administrator Donald continue to claim that “[n]o staff member reported any unusual observation or sign of abuse related to [R2].”  P. Ex. 5 at 2 (Donald Decl. ¶ 12), P. Ex. 6 at 2, 5 (Ivey Decl. ¶¶ 8, 32).  This is simply untrue.

DON Ivey now concedes that “[s]ome of the staff members did indicate to me that [R2] had an odor.”  Ignoring the facility policy, she discounts the significance of that information:

It was described as a strong urine odor due to the fact [R2] does not urinate frequently.  The identified odor was also described to be related to [R2] having a urinary tract infection at past times and the urine having a strong odor.  No staff member I interviewed described [R2’s] odor as being related to an infection other than a urinary tract infection.

P. Ex. 6 at 2 (Ivey Decl. ¶ 12).

First, the DON mischaracterizes what staff wrote.  Nurse Aide Bang was apparently familiar with the odor caused by R2’s urinary tract infection and described this as “much stronger.”  CMS Ex. 11 at 1.  From her statements, I can reasonably infer that R2 had previously had a urinary tract infection but that the nurse aide detected the “much stronger” odor at a time when the resident did not have one.  Apparently, no one asked follow-up questions, or, if they did, they did not report her answers.

Second, how is anyone, much less a nurse aide, to know what causes a foul odor if no one reports or investigates?  The facility policy does not say to disregard a foul odor if there is a possible, non-abusive explanation for it.  It says to report “ALWAYS.”  CMS Ex. 5 at 13, 15.

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I recognize the difficulties in investigating an allegation of abuse when no one can say when it might have occurred.  However, had these symptoms been reported and investigated timely, the investigators might have been better able to determine when the resident contracted the infection.

Failing to comply with its own policies supports the finding that the facility was not in substantial compliance with regulatory requirements.  Bivins Mem’l Nursing Home, DAB No. 2771 at 9 (2017); Life Care Ctr. of Bardstown, DAB No. 2233 at 21-22 (2009); see Green Oaks Health & Rehab. Ctr., DAB No. 1567 at 5 (2014) (holding that the methods a facility chooses to protect its residents are reflected in its policies, assessments, and care plans).  In the absence of contemporaneous documentation justifying their failure to follow facility policy, it is “certainly reasonable” to infer that staff were not aware of it, or that they simply disregarded it.  Oxford Manor, DAB No. 2167 at 5-6 (2008).

Further, even after the facility had the diagnosis of a sexually transmitted infection and its investigators learned that R2 had a symptom of sexual abuse, it did not report the symptom to the state agency and did not report anything to local law enforcement, again violating its own policies.  CMS Ex. 5 at 6, 12.

The facility justifies its failing to report by claiming that it did not have a reasonable suspicion that a crime had been committed.  P. Ex. 5 at 4 (Donald Decl. ¶ 29); P. Ex. 6 at 3 (Ivey Decl. ¶ 22).  The Departmental Appeals Board has repeatedly and soundly rejected any suggestion that the facility gets to determine when and whether to report a suspected violation.  The reporting requirement is triggered by any allegation of mistreatment, neglect, or abuse, whether or not it is recognized as such by the facility.  Beverly Healthcare Lumberton v. Leavitt, 338 F. App’x 307, 314 (4th Cir. 2009) (agreeing that the facility’s failure to implement its policies for reporting and investigating abuse “indicated a wider systemic problem in the facility” that leaves its residents “at real risk for serious harm”); Rockcastle Health & Rehab. Ctr., DAB No. 2891 at 11 (2018).  By failing to report the allegation, the facility is not ensuring that its residents are free from abuse.  See, e.g., Rosewood Care Ctr. of Swansea, DAB No. 2721 at 12-13 (2016) (finding that failing to report leaves facility residents unprotected against additional instances of abuse); Century Care of Crystal Coast, DAB No. 2076 at 25 (2007) (concluding that, where an incident went unreported and uninvestigated, the facility could not even identify, much less correct, the flaws in its systems).  Here, taken together, three factors supported the conclusion that a crime had been committed:  the foul odors; the diagnosis of a sexually-transmitted disease; and the resident’s cognitive status (she could not consent to sexual activity).  Regardless of whether the facility’s administration could confirm that abuse occurred, it was bound to report, investigate, and protect the residents while an investigation was pending.

During the survey, the facility finally reported the alleged abuse to the local police.  Administrator Donald asserts that both the Attorney General’s Office and the local police

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told her that she had taken all the steps she could to investigate and that the police department provided a statement.  P. Ex. 5 at 3-4 (Donald Decl. ¶¶ 19, 27).  Nothing in the record confirms this claim.  The facility submits two documents from these organizations.  The first is a July 9, 2019 email from the Attorney General’s Office, confirming that it received the facility’s report of the positive trichomonas test (no mention that the resident had symptoms of sexual abuse).  P. Ex. 2.  It seems that, based on the information the facility provided, the office declined to investigate on-site.  P. Ex. 6 at 4 (Ivey Decl. ¶ 26).  The Attorney General’s Office thus did not conduct an independent investigation but relied on the information the facility provided.  Inasmuch as the facility was not providing complete and accurate information, I consider the Attorney General’s action (or inaction) neither surprising nor meaningful.  See CMS Ex. 2 at 11 (indicating that the facility told the investigator that trichomonas can be dormant and undetectable and that there was no evidence of forceful sex).

The second document is from the police department.  It indicates that, on August 7, 2019, an officer was dispatched to the facility regarding a possible sexual assault on one of the residents.  The department had gathered information, the police chief was consulting with the city attorney, and the case was under investigation.  P. Ex. 4.

Until the time of the survey, the facility did not test its male employees or any of its residents for the infection.  The administrator and DON simply did not think it was necessary.  P. Ex. 5 at 3 (Donald Decl. ¶ 24).  As DON Ivey asserts, she “never believed [R2] had been sexually abused.”  P. Ex. 6 at 4 (Ivey Decl. ¶ 28).According to Surveyor R. Cherie Hartley, R.N., one facility resident, R11, was being monitored for sexually inappropriate behavior, but had not been tested since August 2017. CMS Ex. 10 at 2 (Hartley Decl. ¶ 15). The survey report form attributes this information to Registered Nurse Cynthia Holley. See CMS Ex. 2 at 8. RN Holley, however, denies making the statement and claims that she has “no knowledge” of his being sexually aggressive, although she does not deny the possibility. P. Ex. 7 at 2 (Holley Decl. ¶¶ 7, 8). Again, however, the record contains no assessment nor care plan for R11, which would have resolved the dispute. Petitioner concedes that a second male resident, R19, may have been sexually active but asserts that his activities were consensual, and he had never been identified as sexually aggressive. The facility did not test him or even question him until the time of the survey. P. Ex. 6 at 4 (Ivey Decl. ¶ 25).  The facility made minimal efforts to ensure R2’s (or anyone else’s) safety during the investigation. Thus, the evidence establishes that the facility was not in substantial compliance with the program requirements that it keep its residents free from abuse:

• Contrary to facility policies, when they detected a foul odor, staff did not report or investigate this symptom of sexual abuse;

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• After the resident tested positive for a sexually transmitted disease, the facility’s investigators disregarded the evidence of sexual abuse and instead reported evidence that tended to show the resident was not abused;
• Having come up with a theory to explain the positive test in a way that did not involve abuse, facility staff made no effort to confirm that the theory was even plausible; and
• The facility did not report the suspected abuse to local law enforcement, as required by the statute, regulations, and the facility’s own policies.

2. CMS’s determination that the facility’s substantial noncompliance posed immediate jeopardy to resident health and safety is not clearly erroneous.

Immediate jeopardy exists if a facility’s noncompliance has caused or is likely to cause “serious injury, harm, impairment, or death to a resident.”  42 C.F.R. § 488.301.  CMS’s determination as to the level of a facility’s noncompliance (which would include an immediate jeopardy finding) must be upheld unless it is “clearly erroneous.”  42 C.F.R. § 498.60(c).  The Board has observed repeatedly that the “clearly erroneous” standard imposes on facilities a “heavy burden” to show no immediate jeopardy and has sustained determinations of immediate jeopardy where CMS presented evidence “from which ‘[o]ne could reasonably conclude’ that immediate jeopardy exists.”  Florence Park Care Ctr., DAB No. 1931 at 27-28 (2004) (citing Koester Pavilion, DAB No. 1750 (2000)); Daughters of Miriam Ctr., DAB No. 2067 at 7, 9 (2007).

Once CMS presents evidence supporting a finding of substantial noncompliance, it need not offer evidence to support its immediate jeopardy determination.  The burden is on the facility to show that CMS’s determination is clearly erroneous.  Grace Healthcare of Benton, DAB No. 2189 at 13 (2008) (citing Liberty Commons Nursing & Rehab Ctr.- Johnston, DAB No. 2031 at 17-18, aff’d, 241 F. App’x 76 (4th Cir. 2007)).

By their very nature, incidents of physical or sexual assault are likely to cause serious injury or harm to a vulnerable population.  In this case, R2 was seriously harmed because she contracted a sexually transmitted infection.

Petitioner argues that “[t]his is not a matter where a facility ignored allegations of abuse, failed to report allegations of abuse to any state agency, failed to investigate, or failed to evaluate necessary protective measures.”  P. Br. at 18.  In fact, R2 exhibited signs and symptoms of sexual abuse (foul-smelling odor).  Yet, staff did not report, investigate, or evaluate necessary protective measures.  Either staff – including the administration – were not aware of the facility policy that required them to treat these symptoms as evidence of abuse, or they chose to ignore the policy.

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After the resident was diagnosed with a sexually transmitted infection, facility staff should have examined the relationship between that diagnosis and her symptoms of sexual abuse.  Instead, they concluded, without further investigation and without any support, that the infection had been dormant, presumably for years, if not decades.  They provided incomplete information to the state agency and to law enforcement.  They took no measures to ensure resident safety during the investigation.

Petitioner has thus not met its burden of establishing that CMS’s immediate jeopardy determination is clearly erroneous.

3. 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 Nursing Ctr., DAB No. 2017 at 22 (2017).

Here, CMS imposed a penalty of $6,635 per day for each day of immediate jeopardy, which is in the very low end of the penalty range ($6,524 to $21,393), and $215 per day for each day of substantial noncompliance that did not pose immediate jeopardy, also at the very low end of the penalty range ($107 to $6,418).  42 C.F.R. §§ 488.408(e), 488.438; 45 C.F.R. § 102.3; 83 Fed. Reg. 51,369 (2018); 84 Fed. Reg. 59,549 (2019).Penalties are inflation-adjusted and change annually. The amount is determined as of the date the penalty is assessed, in this case, September 6, 2019. CMS Ex. 1; 83 Fed. Reg. at 51,380.  Considering the relevant factors, this penalty is reasonable.

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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 penalties.

Applying the remaining factors, I have discussed in some detail the facility’s multiple failures here.  Facility staff, including the administration, disregarded evidence of sexual abuse and failed to implement its policies.  For these failures, it is culpable.

Other deficiencies.  In assessing whether the penalty is reasonable, I consider all of the deficiencies, including those that Petitioner has not appealed.  In addition to the abuse deficiencies, the facility was not in substantial compliance with the requirement that it accurately assess its residents, 42 C.F.R. § 483.20(g).  The facility has not disputed that it did not accurately assess a resident’s risk for pressure sores.  The assessment indicates that the resident was not at risk; in fact, the resident was at risk.  He had a history of pressure sores and an “excoriation to the coccyx area.”  CMS Ex. 2 at 59-60.

The facility was not in substantial compliance with infection control requirements, 42 C.F.R. § 483.80, because a nurse aide cleaned a resident’s coccyx wound with a soiled wipe and replaced the dressing while wearing soiled gloves.  CMS Ex. 2 at 62-63.

Fortunately, it seems that neither resident suffered actual harm in these instances, but these were not trivial problems and they evidence a lack of care and proper training, for which the facility is also culpable.

For these reasons, I find that the CMP is reasonable.Petitioner also blames the state agency for the size of the penalty. In Petitioner’s view, if the survey team had arrived sooner, the facility would have corrected sooner. Perhaps. However, correcting and maintaining substantial compliance is the facility’s responsibility. Nothing precluded it from implementing reasonable interventions to correct its deficiencies, without specific directions from the state agency. I note also that because the facility’s investigative report omitted critical evidence of sexual abuse, it did not convey a sense of urgency.

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Conclusion

For the reasons discussed above, I find that, from July 9 through August 27, 2019, the facility was not in substantial compliance with 42 C.F.R. §§ 483.12, 483.20(g), and 483.80(a).  From July 9 through August 9, its deficiencies under section 483.12 posed immediate jeopardy to resident health and safety.  The penalties imposed are reasonable.