San Rafael Operating Company, LP dba Pineridge Healthcare Center, DAB CR6197 (2022)

DECISION

San Rafael Operating Company, LP dba Pineridge Healthcare Center (Petitioner or facility), a skilled nursing facility (SNF) participating in the Medicare program, ordered one-to-one monitoring of a resident who had sexually abused another resident.  However, Petitioner did not implement the one-to-one supervision effectively to protect residents from future abuse. 

A California Department of Public Health (state agency) investigation resulted in findings that Petitioner was not in substantial compliance with numerous Medicare participation requirements for SNFs.  The state agency also found that Petitioner’s failure to properly implement the one-to-one monitoring of the resident who had sexually abused another resident immediately jeopardized the health and safety of residents.  Based on these findings, the Centers for Medicare & Medicaid Services (CMS) imposed a civil money penalty (CMP) of $8,935 per day for three days (July 29 through July 31, 2019) and $415 per day for 98 days (August 1 through November 6, 2019), for a total CMP of $67,475. 

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Petitioner disputes many of the state agency’s findings and the CMP.  Petitioner contends that it responded appropriately to the sexual abuse incident and implemented numerous measures to address the residents’ behaviors and prevent future incidents from occurring.  Petitioner disputes that its administration did not effectively administer the facility and asserts that its quality assurance committee engaged in comprehensive quality assurance activities. 

As discussed below, I uphold most of the deficiencies alleged against Petitioner and conclude that CMS’s immediate jeopardy determination was not clearly erroneous.  However, I reverse two of the deficiencies, concluding that Petitioner was in substantial compliance with  42 C.F.R. §§ 483.21(b)(2)(i)-(iii) and 483.70(d)(1), (2).  Despite this, I conclude that the remaining deficiencies are sufficient to justify the CMPs imposed in this case. 

I.    Legal Framework

The Medicare program “provides basic protection against the costs of . . . related post-hospital . . . care” for individuals over the age of 65 who are eligible for Social Security retirement benefits and for individuals under 65 who meet other criteria.  42 U.S.C. § 1395c.  Post-hospital care includes extended care services provided at an SNF.  42 U.S.C. §§ 1395f(a)(2)(B), 1395x(h)-(i). 

For Medicare program purposes, an SNF is an institution that is primarily engaged in providing skilled nursing care and/or rehabilitation services for its residents but is not primarily engaged in the care and treatment of mental diseases.  42 U.S.C. §§ 1395x(j), 1395i-3(a)(1).  Because an SNF is a “provider of services” in the Medicare program, each SNF that participates in the program must file a provider agreement with the Secretary of Health and Human Services (Secretary).  42 U.S.C. §§ 1395cc(a), 1395x(u). 

In addition to complying with the terms of the provider agreement, a participating SNF must meet a variety of ongoing statutory requirements regarding how it provides services, maintains the rights of its residents, and administers its facility.  42 U.S.C. § 1395i-3(a)(3), (b)-(d).  Further, SNFs must comply with “such other requirements relating to the health, safety, and well-being of residents or relating to the physical facilities thereof as the Secretary may find necessary.”¹  42 U.S.C. § 1395i-3(d)(4)(B); see 42 U.S.C. § 1395i-

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3(c)(1)(xi), (f).  The Secretary has promulgated regulations to establish those additional requirements.  See 42 C.F.R. pt. 483, subpt. B.² 

When an SNF fails to meet a statutory or regulatory participation requirement, then the SNF has a “deficiency.”  42 C.F.R. § 488.301; see 42 U.S.C. § 1395i-3(h)(1).  “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.”  42 C.F.R. § 488.301; see also 42 U.S.C. § 1395i-3(h)(3).  To maintain “substantial compliance,” an SNF’s deficiencies may “pose no greater risk to resident health or safety than the potential for causing minimal harm.”  42 C.F.R. § 488.301. 

Broadly, noncompliance that subjects an SNF to enforcement remedies is divided into two levels.  One level comprises deficiencies that immediately jeopardize the health or safety of residents and the other level is composed of deficiencies that do not.  42 U.S.C. § 1395i-3(h)(1).  “Immediate jeopardy” exists when “the provider’s noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.”  42 C.F.R. § 488.301. 

The Secretary has the duty to enforce the statutory and regulatory participation requirements for SNFs.  42 U.S.C. § 1395i-3(f)(1).  To do so, the Secretary contracts with state agencies to conduct surveys to determine whether SNFs are in substantial compliance.  42 U.S.C. §§ 1395aa(a), 1395i-3(g); 42 C.F.R. § 488.10.  Standard surveys are unannounced and occur at least once every 15 months.  42 U.S.C. § 1395i-3(g)(2)(A)(i), (iii)(I).  State agencies also conduct investigations into complaints against SNFs.  42 U.S.C. § 1395i-3(g)(1)(C), (4).  When the results of a survey show that an SNF is not in substantial compliance with program participation requirements, the Secretary may impose enforcement remedies on the SNF.  42 U.S.C. § 1395i-3(h)(2); 42 C.F.R. § 488.406.  When CMS selects an enforcement remedy to impose on an SNF, it determines the scope (i.e., the number of residents affected or potentially affected) and severity (i.e., the degree of harm or potential harm) for each deficiency.  See 42 C.F.R. § 488.404(a)-(b). 

One such remedy is a CMP.  42 U.S.C. § 1395i-3(h)(2)(B)(ii).  CMS may impose a per‑instance CMP for each instance of the SNF’s noncompliance or a per‑day CMP for the number of days an SNF is not in substantial compliance.  42 U.S.C.  § 1395i‑3(h)(2)(A), (h)(2)(B)(ii)(I); 42 C.F.R. § 488.430(a).  For CMPs assessed on or after October 11, 2018, and for deficiencies that occurred after November 2, 2015, the CMP amounts may range as follows:  $2,140 to $21,393 for per-instance CMPs; $107 to $6,418 per day for less serious noncompliance; or $6,524 to $21,393 per day for noncompliance that poses immediate jeopardy to the health and safety of residents. 

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45 C.F.R. § 102.3 (2019); 83 Fed. Reg. 51,369, 51,380 (Oct. 11, 2018); see 42 C.F.R. § 488.438(a)(1) (providing original CMP amounts before statutory inflation adjustments). 

If CMS imposes a CMP based on a finding of substantial noncompliance, then the SNF may request a hearing before an administrative law judge (ALJ) to challenge CMS’s initial determination of noncompliance that led to the imposition of an enforcement remedy and/or the level of noncompliance (if a successful challenge to the level would affect the range of CMP amounts imposed on the SNF).  42 U.S.C. §§ 1320a-7a(c)(2), 1395i‑3(h)(2)(B)(ii); 42 C.F.R. §§ 488.330(e)(3)(ii), 488.408(g)(1), 488.434(a)(2)(viii), 498.3(b)(13)-(14), (d)(10); see also 5 U.S.C. §§ 554, 556.  However, CMS’s choice of remedies is not reviewable.  42 C.F.R. §§ 488.438(e)(2), 488.408(g)(2), 498.3(b)(13). 

If an SNF challenges the existence of a deficiency, CMS must make a prima facie case that the SNF failed to substantially comply with federal participation requirements and, if such a showing is made, the SNF must then prove substantial compliance by a preponderance of the evidence.  Hillman Rehab. Ctr., DAB No. 1611 at 8 (1997); see Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004); Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004), aff’d, Batavia Nursing & Convalescent Ctr. v. Thompson,129 F. App’x 181 (6th Cir. 2005); Emerald Oaks, DAB No. 1800 (2001).  If an SNF challenges CMS’s determination as to the level of noncompliance, CMS’s determination must be upheld unless it is clearly erroneous.  42 C.F.R. § 498.60(c)(2). 

If an ALJ concludes that there was a basis for imposing a CMP on an SNF, then the SNF may dispute the amount of the CMP.  The ALJ’s review of the CMP amount is limited to considering the statutory and regulatory factors for setting a CMP amount.  42 C.F.R. § 488.438(e)(3); see 42 U.S.C. §§ 1320a-7a(d), 1395i-3(h)(2)(B)(ii)(I); 42 C.F.R. § 488.438(f).  The ALJ may not reduce a CMP to zero.  42 C.F.R. § 488.438(e)(1). 

Either the SNF or CMS may seek administrative review of an ALJ’s decision.  42 C.F.R. § 498.80. 

II.  Background and Procedural History

On September 20, 2019, the state agency completed a complaint survey at Petitioner’s facility.  State agency surveyors concluded that Petitioner was in substantial noncompliance with multiple Medicare requirements for SNFs.  The surveyors found that one deficiency, involving 42 C.F.R. § 483.12(a)(1), immediately jeopardized the health and safety of the residents of Petitioner’s facility.  The state agency issued a Statement of Deficiencies (SOD) detailing the following deficiencies: 

• F-Tag 550 (S/S = E) 42 C.F.R. § 483.10(a)(1), (2), (b)(1), (2) (Resident Rights/Exercise of Rights) 

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• F-Tag 600 (S/S = K) 42 C.F.R. § 483.12(a)(1) (Free from Abuse, Neglect, and Exploitation)

• F-Tag 609 (S/S = E) 42 C.F.R. § 483.12(c)(1), (4) (Reporting of Alleged Violations)

• F-Tag 657 (S/S = D) 42 C.F.R. § 483.21(b)(2)(i)-(iii) (Care Plan Timing and Revision)

• F-Tag 697 (S/S = D) 42 C.F.R. § 483.25(k) (Pain Management)

• F-Tag 725 (S/S = E) 42 C.F.R. § 483.35(a)(1), (2) (Sufficient Nursing Staff)

• F-Tag 761 (S/S = D) 42 C.F.R. § 483.45(g), (h)(1), (2) (Label/Store Drugs and Biologicals)

• F-Tag 835 (S/S = F) 42 C.F.R. § 483.70 (Administration)

• F-Tag 837 (S/S = F) 42 C.F.R. § 483.70(d)(1), (2) (Governing Body)

• F-Tag 841 (S/S = F) 42 C.F.R. § 483.70(h)(1), (2) (Responsibilities of Medical Director)

• F-Tag 867 (S/S = F) 42 C.F.R. § 483.75(g)(2)(ii) (QAPI/QAA Improvement Activities)

• F-Tag 868 (S/S = F) 42 C.F.R. § 483.75(g)(1)(i)-(iii), (2)(i) (QAA Committee)

CMS Ex. 31. 

On October 9, 2019, CMS issued an initial determination in which CMS concurred with the state agency survey findings and approved a certification of noncompliance based on those findings.  CMS Ex. 33 at 1-2.  As a result, CMS imposed a $8,935 per-day CMP for July 29 through July 31, 2019 (i.e., for three days of immediate jeopardy) and a $415 per-day CMP commencing August 1, 2019, and continuing until Petitioner returned to substantial compliance with Medicare program requirements.  CMS Ex. 33 at 2.  CMS also imposed a denial of payment for new admissions effective December 20, 2019.  CMS Ex. 33 at 2. 

The state agency conducted a revisit survey on November 7, 2019, and determined that Petitioner returned to substantial compliance on that date.  CMS Ex. 34 at 2.  Therefore, the denial of payment for new admissions did not go into effect and the $415 per-day

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CMP accrued from August 1, 2019, through November 6, 2019.  CMS Ex. 34 at 2.  The total amount of the CMP imposed was $67,475.  CMS Ex. 35. 

Petitioner requested a hearing to dispute all the findings in the SOD.  On December 18, 2019, the Civil Remedies Division acknowledged receipt of the hearing request and issued my Standing Prehearing Order (SPO).  The SPO established a prehearing submission schedule and the requirements for those submissions.  Due to the complexity of this case, I granted multiple requests for extensions from the parties. 

On June 2-3, 2020, CMS submitted a prehearing exchange that included a prehearing brief and 36 proposed exhibits, two of which were written direct testimony from witnesses (CMS Exs. 30, 36).  On August 10, 2020, Petitioner submitted a prehearing exchange that included a prehearing brief and 12 proposed exhibits, two of which were written direct testimony from witnesses (P. Exs. 11-12).  In addition, Petitioner submitted a witness list with more than 20 proposed witnesses. 

On August 25, 2020, CMS timely requested to cross-examine Petitioner’s witnesses from whom Petitioner had submitted written direct testimony.  CMS also objected to Petitioner’s other 24 proposed witnesses for which Petitioner had not provided written direct testimony.  On August 27, 2020, Petitioner requested that I accept its late request to cross-examine CMS’s witnesses.  CMS opposed Petitioner’s request. 

On September 2, 2021, I issued a Notice of Hearing in which I set December 6-7, 2021, as the dates for the hearing in this case.  In the hearing notice, I sustained CMS’s objections to the witnesses on Petitioner’s witness list for whom Petitioner failed to submit written direct testimony.  I overruled CMS’s objection to Petitioner’s untimely request to cross-examine CMS’s witnesses.  In the Notice of Hearing, I also admitted all the proposed exhibits. 

On December 6 and 7, 2021, I held a video teleconference hearing at which each party had the opportunity to cross-examine the opposing party’s witnesses; however, CMS ultimately waived cross-examination of one of Petitioner’s witnesses.  Tr. II at 26.³  At the end of the hearing, Petitioner withdrew its appeal of the following deficiencies:  F-Tag 550 (42 C.F.R. § 483.10(a)(1), (2), (b)(1), (2)), F-Tag 609 (42 C.F.R. § 483.12(c)(1), (4), F-Tag 761 (42 C.F.R. § 483.45(g), (h)(1), (2)), and F-Tag 841 (42 C.F.R. § 483.70(h)(1), (2)).  Tr. II at 33; see also Tr. II at 29-32. 

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In a January 14, 2022 Order, I notified the parties that the hearing transcript had been completed and set a post-hearing briefing schedule.  I limited briefs to 50 pages in length and specified that the parties could not cross-reference their pre-hearing briefs.  I stated: 

The parties must also provide in the post-hearing briefs all arguments they want me to consider.  The parties may not cross-reference their pre-hearing briefs.  The parties’ post‑hearing briefs should stand on their own as the parties’ complete arguments in this case.  The parties may copy and paste text from the pre-hearing briefs to the post-hearing briefs so long as it is still relevant and accurate.  

In the January 14, 2022 Order, I also dismissed Petitioner’s hearing request with respect to the deficiencies that Petitioner was no longer disputing.  CMS’s initial determination as to those deficiencies is binding.  42 C.F.R. §§ 498.20(b), 498.68(a). 

On March 15, 2022, CMS timely filed its post-hearing brief (CMS Br.).  On May 16, 2022, Petitioner timely filed its post-hearing brief (P. Br.).⁴  On May 31, 2022, CMS filed a Reply Brief (CMS Reply). 

III.  Issues

1. Whether Petitioner was in substantial compliance with the Medicare requirements for skilled nursing facilities. 
2. If Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(a)(1), was CMS’s finding that the noncompliance immediately jeopardized the health and safety of residents clearly erroneous. 
3. If Petitioner was not in substantial compliance with Medicare requirements, whether the amount and duration of the CMP that CMS imposed is appropriate under applicable statutory and regulatory factors.  42 U.S.C. § 1320a-7a(d); 42 C.F.R. § 488.438(f). 

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

Deficiencies Related to Resident 1

1. Petitioner did not investigate or care plan for Resident 1’s behavior of wandering into residents’ rooms before July 29, 2019.  On July 29, Resident 1 engaged in non-consensual sexually touching of Resident 2 in Resident 2’s room.  After the incident, Petitioner determined that one-to-one supervision of Resident 1 was necessary for his sexually inappropriate behavior. 

In July 2019, Resident 1 was 64 years old and had resided at the facility since May 25, 2016.  CMS Ex. 13 at 1.  Resident 1’s diagnoses included cerebral infarction, essential (primary) hypertension, peripheral vascular disease, unspecified psychosis, stimulant abuse, metabolic encephalopathy, disorientation, and dysphagia.  CMS Ex. 13 at 2.  A Minimum Data Set (MDS) dated May 7, 2019, stated that Resident 1’s Brief Interview for Mental Status (BIMS) score was seven, indicating severe cognitive impairment.  CMS Ex. 13 at 12; Tr. I at 72.  Resident 1 required supervision with most activities of daily living and ambulated without an assistive device.  CMS Ex. 13 at 14-15; see P. Ex. 2 at 29, 32, 85, 89, 103, 107, 140, 159. 

By the spring and early summer of 2019, Resident 1’s medical record indicated he needed to be watched closely.  CMS Ex. 13 at 6, 8; see P. Ex. 2 at 57, 74, 174-175.  His care plan dated April 23, 2018, stated he wore a wander guard bracelet because he was at risk for elopement and wandering out of the facility.  CMS Ex. 13 at 8.  A nursing note from July 1, 2019, indicated Resident 1 continued to wear a wander guard and that it had been checked.  CMS Ex. 13 at 6.  A July 3 social services progress note stated Resident 1 “has a behavior of wandering, lately and he needs to be in a room with NO sliding door.”  CMS Ex. 13 at 6. 

Based on a state agency interview of Resident 2, Resident 2 stated that Resident 1 had entered and sat down in Resident 2’s room before July 29.  CMS Ex. 31 at 20.  However, the state agency investigation did not establish that Petitioner investigated or care planed for Resident 1’s behavior of wandering into other residents’ rooms before July 29.  Tr. I at 79.  State agency surveyor,  James Shannon, based the finding that Resident 1 was wandering into other residents’ rooms on his discussion with Petitioner’s Director of Social Services, who observed Resident 1 in Resident 2’s room within a week prior to July 29 and reported Resident 1’s wandering behavior to a nurse leader at the facility.  Tr. I at 119.  Resident 2 confirmed to Surveyor Shannon that Resident 1 had been in his room before the sexual abuse incident.  Tr. I at 119.  During his testimony in this case Mr. Shannon noted that Resident 1 wore a wander guard as of July 1, 2019 (P. Ex. 2 at 57) and pointed to Resident 1’s care plan (CMS Ex. 13 at 8) and social services note

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(CMS Ex. 13 at 6) indicating that Resident 1 was at risk for elopement and wandering out of the facility.  Tr. I at 121, 123. 

In July 2019, Resident 2 was 61 years old and had resided at the facility since May 8, 2017.  CMS Ex. 14 at 1.  Resident 2’s diagnoses included altered mental status, intracerebral hemorrhage, major depressive disorder, difficulty walking, and muscle weakness.  CMS Ex. 14 at 2.  He also had dysphagia and impaired communication.  CMS Ex. 14 at 2, 7.  An MDS dated May 13, 2019, stated that Resident 1’s BIMS score was ten, indicating moderate cognitive impairment.  CMS Ex. 14 at 9.  Resident 2 had limited mobility and used a wheelchair.  CMS Ex. 14 at 10-11. 

On July 29, 2019, Resident 1 engaged in non-consensual sexual touching of Resident 2 in Resident 2’s room.  CMS Ex. 12 at 3-5; CMS Ex. 13 at 7; CMS Ex. 14 at 5, 14; P. Ex. 2 at 1, 143, 144; CMS Ex. 36 ¶¶ 21-24.  At 8:45 a.m., Certified Nursing Assistant (CNA) B walked into Resident 2’s room and noticed Resident 2 waving for attention.  CMS Ex. 12 at 3; CMS Ex. 36 ¶ 22.  She observed Resident 1 at Resident 2’s bedside with his hand inside Resident 2’s gown, at or around Resident 2’s genitals.  CMS Ex. 36 ¶ 22.  CNA B separated the residents and removed Resident 1 from the room.  CMS Ex. 13 at 7; CMS Ex. 14 at 5; P. Ex. 2 at 145.  CNA B told Mr. Shannon that she knew Resident 1 had touched Resident 2’s genitals because his penis was outside his brief when she performed his morning hygiene.  CMS Ex. 36 ¶ 22. 

CNA B notified the charge nurse and reported the abuse to Petitioner’s administrator, who was also the facility’s abuse coordinator.  CMS Ex. 14 at 5; CMS Ex. 36 ¶ 21.  Petitioner notified the residents’ physicians and reported the incident to the state agency and police in accordance with its abuse reporting policies.  CMS Ex. 13 at 7; CMS Ex. 14 at 5; P. Ex. 2 at 144, 145; Tr. I at 66-67; see CMS Ex. 19 at 4, 5, 9, 11, 14, 15. 

Mr. Shannon interviewed Residents 1 and 2 the day after the abuse incident.  CMS Ex. 8 at 5-6; CMS Ex. 36 ¶¶ 23-24.  Resident 1 recalled “fondling” and “feeling” Resident 2’s penis and stated:  “It was very entertaining and very exciting.”  CMS Ex. 36 ¶ 24.  Resident 2 confirmed that Resident 1 touched his penis underneath his brief and stated that he did not consent to the touching.  CMS Ex. 36 ¶ 23. 

Immediately after the incident, Petitioner placed Resident 1 on 15-minute visual checks to monitor him for sexually inappropriate behavior.  CMS Ex. 13 at 7, 16; P. Ex. 11 ¶ 33. 

An Incident/Accident Post Review indicated that Petitioner’s interdisciplinary team (IDT) met to discuss Resident 1’s sexual abuse of Resident 2.  P. Ex. 2 at 143-145.  The IDT noted Resident 1 had not exhibited sexually inappropriate behavior in the past.  The IDT recommended labs to rule out acute infection, one-to-one supervision of Resident 1 until evaluated for further needs, and a psychology evaluation of Resident 1.  P. Ex. 2 at 144. 

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Also on July 29, 2019, Petitioner updated Resident 1’s care plan to deal with the “Problem” of Resident 1’s inappropriate touching of another resident’s private area.  CMS Ex. 13 at 9; see also CMS Ex. 36 ¶ 26.  The “Approach” taken included one-to-one monitoring until Resident 1 was further evaluated, looking for patterns of behavior for root cause analysis to identify potential triggers, monitoring sexually inappropriate behavior, conducting a psychology evaluation, and engaging in meaningful and calming activities when appropriate.  CMS Ex. 13 at 9.  The facility implemented one-to-one monitoring of Resident 1 for sexually inappropriate behavior later that day.  CMS Ex. 13 at 7; P. Ex. 2 at 1, 148-159, 162-173; P. Ex. 11 ¶ 33. 

During a psychological evaluation on July 31, 2019, Resident 1 acknowledged that he needed to “obtain consent from another person before touching them.”  CMS Ex. 13 at 4.  Resident 1 told the psychologist that he may have touched someone but could not recall who he touched.  CMS Ex. 13 at 4.  The psychologist recommended Resident 1 be placed in a locked unit where he could participate in congregate activities while receiving one-to-one supervision. CMS Ex. 13 at 5. 

2. Petitioner did not adequately implement one-to-one monitoring of Resident 1 after Resident 1 engaged in non-consensual sexual touching of Resident 2.  Staff assigned to one-to-one supervision of Resident 1 were not aware of the reason for their assignment and occasionally left Resident 1 unattended, and Petitioner did not have documentation that the one-to-one coverage was always provided. 

Surveyor Shannon was at the facility to investigate from July 30 through August 1, 2019.  Tr. I at 58.  Mr. Shannon stated there is no federal regulation defining how one-to-one monitoring should be implemented.  Tr. I at 90, 113.  Mr. Shannon relied on the facility guidelines for monitoring and interviews with individuals to conduct his investigation.  Tr. I at 113-114. 

Petitioner’s Director of Nursing (DON) confirmed Petitioner had guidelines, not policies, defining supervision for one-to-one monitoring.  CMS Ex. 36 ¶ 29.  Petitioner’s Guidelines in Monitoring of Residents indicated one-to-one supervision could be implemented when a resident may be at an increased risk of hurting oneself or others, and when other interventions, including close supervision, had been ineffective based on the IDT’s assessment.  CMS Ex. 18 at 20; P. Ex. 11 ¶¶ 23-25.  One-to-one supervision could be utilized hourly, every 30 minutes, or every 15 minutes.  CMS Ex. 18 at 20; P. Ex. 11 ¶ 25.  The guidelines did not provide instructions or standards for one-to-one monitoring and permitted documentation of monitoring on forms or nursing notes.  CMS Ex. 18 at 20; CMS Ex. 36 ¶ 40. 

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Surveyor Shannon’s interviews with facility staff yielded the following information.  The DON expected staff with a one-to-one assignment to “watch the patient and only that patient, with no other assignment,” be “physically present,” and keep “the patient in vision.”  CMS Ex. 36 ¶ 33.  The DON checked the documentation by staff assigned to one-to-one supervision to ensure that the one-to-one supervision was implemented appropriately.  CMS Ex. 36 ¶ 33. Licensed vocational nurse (LVN) Z explained that one-to-one monitoring required the facility to “closely monitor” the indicated resident and the charge nurse to document “whatever [the resident is] doing.”  CMS Ex. 36 ¶ 32.  LVN Z checked visually every hour to ensure the assigned staff member was with Resident 1.  CMS Ex. 36 ¶ 32.  The Director of Staff Development (DSD) stated that a one-to-one assignment required constant observation of the assigned resident in close proximity to the resident.  CMS Ex. 36 ¶ 30. 

Ms. De Jesus, the Regional Director of Clinical Operations, testified in this proceeding that the facility provided all employees with in-service training on abuse, including monitoring for sexually inappropriate behavior.  Tr. II at 8-10, 23-24.  However, the DSD had explained to Mr. Shannon that the facility did not provide non-clinical staff with formal one-to-one monitoring training or even a copy of the guidelines for monitoring residents.  CMS Ex. 36 ¶ 30.  Instead, non-clinical staff received verbal training from charge nurses and were instructed to speak to nurses if they had questions.  CMS Ex. 36 ¶ 30. 

Ms. De Jesus testified that Petitioner employed one-to-one supervision of Resident 1 to prevent him from going into other residents’ rooms.  Tr. II at 14, 22.  She testified that one-to-one supervision means that:  one staff member supervises one resident; the staff member’s only responsibility is to watch the assigned resident; the staff member must find someone to cover when taking a break; the care plan for the resident should state why one-to-one supervision is needed; and the staff member assigned to one-to-one supervision should be informed of the reason in the care plan for the one-to-one supervision.  Tr. II at 10-12, 23.  Ms. De Jesus explained that CNAs and hospitality aides do not review resident care plans and there are instances when the staff member providing one-to-one supervision is not a CNA, LVN, or RN.  Tr. II at 13-15. 

During his investigation, Mr. Shannon found that all five staff members (CNA A, CNA H, Activities Assistant I, Administrative Staff G, Maintenance Staff F), who were assigned to one-to-one supervision of Resident 1, did not consistently execute the one-to-one assignment to supervise Resident 1 and document their one-to-one monitoring in the clinical record.  Tr. I at 77-78; CMS Ex. 31 at 7.  Mr. Shannon’s investigation also revealed that staff assigned to one-to-one monitoring of Resident 1 were unaware of the reason for the monitoring.  Maintenance Staff F did not know the duties of his assignment or that the purpose of his assignment was to prevent Resident 1 from sexually abusing other residents.  CMS Ex. 36 ¶ 27; Tr. I at 97-98.  He believed that he was supervising Resident 1 to “ensure the safety of [Resident 1].”  CMS Ex. 36 ¶ 27.  Activities Assistant

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I believed she was assigned to monitor Resident 1 because he was at risk for falls.  CMS Ex. 36 ¶ 35. 

Mr. Shannon testified that he observed two staff members to leave Resident 1 unsupervised during their assignments.  Maintenance Staff F was seated in the lobby with Resident 1 on the morning of July 31.  CMS Ex. 36 ¶ 27.  Mr. Shannon observed Maintenance Staff F walk over to the reception desk to help the receptionist fix a desk drawer and turn his back to Resident 1.  CMS Ex. 36 ¶ 28; Tr. I at 95-96.  Maintenance Staff F returned to the chair beside Resident 1 to fix the desk drawer.  CMS Ex. 36 ¶ 28.  Maintenance Staff F then stood up and walked ten feet away to speak with another staff member, leaving Resident 1 unattended again.  CMS Ex. 36 ¶ 28.  Maintenance Staff F returned to his seat beside Resident 1 after the conversation ended.  CMS Ex. 36 ¶ 28.  Mr. Shannon testified that Maintenance Staff F’s visual contact with Resident 1 was disrupted for about two to three minutes.  Tr. I at 96.  Mr. Shannon did not observe Resident 1 stand up and attempt to go to another resident’s room.  Tr. I at 97. 

Mr. Shannon also testified that CNA H was assigned to one-to-one monitoring of Resident 1 in the afternoon on July 31.  He observed another resident called for CNA H’s attention while she was standing in the lobby near where Resident 1 was seated.  CMS Ex. 36 ¶ 36.  CNA H went into a room behind the nurses’ station to put the other resident’s food away and closed the door behind her.  CMS Ex. 36 ¶ 36.  She eventually returned to the lobby.  CMS Ex. 36 ¶ 36.  CNA H stated that she knew Resident 1 would not leave if she left the lobby “because [Resident 1] stays.”  CMS Ex. 36 ¶ 36.  

Mr. Shannon testified that Petitioner did not require staff to document their one-to-one monitoring of Resident 1.  Tr. I at 92-93.  Activities Assistant I assigned to one-to-one supervision of Resident 1 on July 29 was not required to document her monitoring.  CMS Ex. 36 ¶ 35.  CNA A was assigned to supervise Resident 1 for “sexual contact and other contact [with] residents” on July 30.  CMS Ex. 8 at 3; CMS Ex. 36 ¶ 25.  CNA A told Mr. Shannon that he was to report all observations of sexual-contact behavior by Resident 1.  CMS Ex. 36 ¶ 25.  Further, according to LVN Z, two of the staff assigned to one-to-one supervision of Resident 1 on July 31, Maintenance Staff F and Administrative Staff G, did not have to document their supervision of Resident 1.  CMS Ex. 36 ¶ 32; see CMS Ex. 36 ¶ 31.  Rather they were only required to provide a verbal report to Resident 1’s nurse or the unit manager after their shifts.  CMS Ex. 36 ¶ 32. 

Moreover, staff did not document that they performed all required one-to-one supervision of Resident 1.  Tr. I at 115-116.  Staff did not indicate on “Resident 15 Minutes Visual Check” forms that they performed visual checks of Resident 1 every 15 minutes on July 29 (between 11:00 a.m. to 3:00 p.m. and after 11:00 p.m.) and July 30 (between midnight to 2:30 a.m., 3:00 a.m. to 4:45 a.m., and 5:15 a.m. to 6:35 a.m.).  CMS Ex. 18 at 21-22; see CMS Ex. 36 ¶¶ 38-39.  On July 31, staff did not indicate on an “Every 30 Minutes Safety Watch” form if they completed a safety watch every thirty minutes before

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6:30 a.m. or after 1:30 p.m.  CMS Ex. 18 at 23.  Staff documented some of their one-to-one coverage of Resident 1 in progress notes, but the progress notes did not cover all missing periods from the 15-minute visual check sheets and the 30-minute safety watch form.  P. Ex. 2 at 1-3; see CMS Ex. 18 at 21-23. 

Staff also noted Resident 1’s activity every 30 minutes between 8:00 a.m. and 2:30 p.m. on a form titled “1:1 Monitoring Documentation.”  CMS Ex. 18 at 24.  Upon review, Administrative Staff G indicated that the form was incomplete and missing documentation such as the date and staff member’s initials in the column next to Resident 1’s activities.  CMS Ex. 18 at 24; CMS Ex. 36 ¶ 34.  Administrative Staff G also stated that a CNA should have completed the form.  CMS Ex. 36 ¶ 34. 

3. Petitioner did not provide adequate one-to-one supervision of Resident 1 after he sexually abused Resident 2.  Therefore, Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(a) because it failed to protect and promote the right of facility residents to be free from abuse. 

“[S]killed nursing facilit[ies] must protect and promote the rights of each resident, including . . . [t]he right to be free from physical or mental abuse . . .”  42 U.S.C. § 1395i-3(c)(1)(A)(ii).  SNFs must give all residents written notice of their right to file a complaint of abuse with the state agency.  42 U.S.C. § 1395i-3(c)(1)(B). 

The Secretary’s regulations implementing this requirement generally state: 

The resident has the right to be free from abuse, neglect, misappropriation of resident property, and exploitation as defined in this subpart.  This includes but is not limited to freedom from corporal punishment, involuntary seclusion and any physical or chemical restraint not required to treat the resident’s medical symptoms. 

42 C.F.R. § 483.12(a). 

The regulations also prohibit a facility from using “verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion.”  42 C.F.R. § 483.12(a)(1).  Although 42 C.F.R. § 483.12(a)(1) specifies that the facility must not use physical abuse against residents, residents also have the right to be free from abuse by individuals who are not members of the facility staff so long as the facility could have foreseen the abuse.  See The Bridge at Rockwood, DAB No. 2954 at 23-24 (2019); Kindred Transitional Care and Rehab – Greenfield, DAB No. 2792 at 12-15 (2017); Woodstock Care Center, DAB No. 1726 at 25-28 (2000). 

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The regulations define “abuse” as “the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish” and “includes verbal abuse, sexual abuse, physical abuse, and mental abuse including abuse facilitated or enabled through the use of technology.”  42 C.F.R. § 483.5.  “Willful, as used in this definition of abuse, means the individual must have acted deliberately, not that the individual must have intended to inflict injury or harm.”  42 C.F.R. § 483.5. 

CMS alleges that Petitioner failed to protect its residents from abuse by Resident 1 because the one-to-one supervision it employed was not a sufficient response to Resident 1’s sexual abuse of Resident 2.  CMS Br. at 6.  Staff were not trained on one-to-one monitoring, did not know the reason for the one-to-one supervision, walked away or started doing other tasks during their one-to-one assignment, and did not consistently document their monitoring of Resident 1, as evidenced by blank spaces on documentation forms.  CMS Br. at 6. 

Petitioner does not deny that Resident 1 was found in Resident 2’s room touching Resident 2’s genitals.  P. Br. at 3.  Petitioner also does not deny that, although it did not know that Resident 1 would sexually abuse another resident, “the act of one resident touching the genitals of another resident warrants a deficiency.”  P. Br. at 3.  Despite this admission, Petitioner argues that CMS did not establish a prima facie case that Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(a).  P. Br. at 10. 

Petitioner argues that the survey failed to identify noncompliance because there is no federal regulation defining the requirements for one-to-one supervision.  P. Br. at 5, 12.  Instead, a single surveyor (i.e., Mr. Shannon) interpreted Petitioner’s one-to-one monitoring guidelines and applied that interpretation.  P. Br. at 12.  Further, Petitioner asserts that its witness testimony shows it sufficiently implemented its one-to-one monitoring policy and rebutted CMS’s case concerning the abuse deficiency.  P. Br. at 13-14.  Petitioner argues that the surveyor was unable to provide guidance on how to correct the policy.  P. Br. at 14. 

Petitioner’s arguments miss the mark.  This deficiency raises the question as to whether Petitioner took proper action to protect and promote the right of Petitioner’s residents to be free from abuse.  Resident 1 committed an act of sexual abuse on Resident 2.  I must determine if Petitioner took sufficient action in response to that abuse to protect Petitioner’s residents from Resident 1.  Petitioner’s primary response was to place Resident 1 on one-to-one supervision with a staff member.  How well, in actual practice, Petitioner watched Resident 1 is most dispositive to this deficiency.  Similarly, Petitioner’s documentation of staff performing the one-to-one supervision of Resident 1 is important to determine whether staff actually performed the one-to-one supervision of Resident 1. 

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As to Petitioner’s specific argument, the regulations do not specify acceptable clinical nursing standards, such as the parameters for one-to-one coverage of a resident.  An accepted standard of clinical practice does not need to be specified in a regulation before it may be considered by an ALJ, and professional standards of care can be established by surveyor testimony.  Omni Manor Nursing Home, DAB No. 1920 at 12-14 (2004). 

In this case, Mr. Shannon, who is a registered nurse, testified that Petitioner failed to comply with professional standards to provide adequate one-to-one monitoring of Resident 1 after Resident 1 sexually abused Resident 2.  CMS Ex. 36 ¶¶ 2, 40.  Mr. Shannon explained it was important that staff knew the basis for the supervision so they could monitor for specific behaviors and employ techniques such as redirecting Resident 1 if he started behaving inappropriately toward another resident.  CMS Ex. 36 ¶ 40.  Based on Mr. Shannon’s understanding of nursing delegation, a staff member assigned to one-to-one monitoring should have some knowledge of the actual risk posed.  Tr. I at 99-100.  Mr. Shannon further testified one-to-one supervision should be employed consistently, especially since Resident 1 was at risk for sexually abusing Resident 2 again or another resident.  CMS Ex. 36 ¶ 41.  This includes documenting the one-to-one supervision so that supervisory staff can ensure the monitoring is implemented properly.  CMS Ex. 36 ¶ 41. 

Ms. De Jesus, a registered nurse and one of Petitioner’s witnesses, largely agreed with Mr. Shannon.  She testified in this proceeding that staff performing one-to-one supervision should not have any other responsibilities and must find someone to cover when taking a break.  Tr. II at 10.  Although Ms. De Jesus initially testified that it was not necessary to inform the staff providing one-to-one supervision that Resident 1 had sexually abused Resident 2, she later admitted that the resident’s care plan should state the reason for one-to-one supervision and the staff member assigned to one-to-one supervision should be informed of the reason in the care plan for the one-to-one supervision.  Tr. II at 10-15, 23. 

Mr. Shannon and Ms. De Jesus’s view as to the normal requirements for one-to-one supervision are consistent with statements made to Mr. Shannon by Petitioner’s staff during the investigation.  The DON and LVN Z expected staff assigned to one-to-one monitoring to focus solely on watching the resident and always keeping the resident in sight.  CMS Ex. 36 ¶¶ 32, 33.  The DON expected staff to document the one-to-one coverage and check the documentation to ensure that the one-to-one supervision was implemented appropriately.  CMS Ex. 36 ¶ 33.  The DSD stated that a one-to-one assignment required constant observation of the assigned resident in close proximity to the resident.  CMS Ex. 36 ¶ 30. 

Therefore, I conclude that one-to-one supervision, conducted according to the standard for one-to-one supervision as expressed by the witnesses, would have been appropriate to protect and promote the right of Petitioner’s residents to be free from abuse by

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Resident 1.  However, I conclude that Petitioner’s staff did not provide one-to-one supervision in a manner sufficient to protect residents from Resident 1.  

As found above, non-clinical staff assigned to perform one-to-one monitoring were not given formal training on one-to-one monitoring or even given a copy of Petitioner’s resident monitoring guidelines.  Tr. II at 13-15; CMS Ex. 36 ¶ 30.  Further, assigned staff were unaware of the reason for the one-to-one monitoring, did not monitor Resident 1 closely enough, and did not thoroughly document the one-to-one coverage. 

From July 30 through August 1, 2019, Mr. Shannon observed five staff assigned to one-to-one monitoring of Resident 1, three of whom were non-clinical staff.  Tr. I at 58, 77-78; CMS Ex. 36 ¶¶ 25, 27, 31.  Maintenance Staff F and Activities Assistant I did not know that the purpose of their assignments was to prevent Resident 1 from sexually abusing other residents.  CMS Ex. 36 ¶¶ 27, 35; Tr. I at 97-98.  According to Mr. Shannon, Petitioner should have communicated Resident 1’s medical history, including psychosocial and behavioral, to staff providing one-to-one supervision so that staff knew the risk Resident 1 posed to other residents.  Tr. I at 152, 159-160; CMS Ex. 36 ¶ 40.  He further explained that staff should know what is required of them, including reporting and documenting requirements, and should have been trained on how to respond if they saw Resident 1 moving toward or make contact with another resident.  Tr. I at 152-153; CMS Ex. 36 ¶ 40.  For example, staff would not know to redirect a resident if the resident began behaving inappropriately toward another resident if they were unaware of the reason for the one-to-one monitoring.  CMS Ex. 36 ¶ 40.  

In addition, Mr. Shannon’s testimony, as detailed earlier, provides eye-witness evidence of various failures by staff to provide sufficient monitoring of Resident 1.  CMS Ex. 36 ¶¶ 25-36.  Significantly, Petitioner did not provide testimony from staff to contradict Mr. Shannon’s testimony.  While Petitioner’s witnesses, who were not eyewitnesses to the one-to-one supervision, both indicated that the surveyor was aggressive, intimidating, and insulting to staff he interviewed (P. Ex. 11 ¶ 38-39; P. Ex. 12 ¶ 16), these allegations do not contradict the substance of Mr. Shannon’s testimony about the deficient one-to-one supervision he observed.  Therefore, I consider Mr. Shannon’s testimony concerning his observations of the one-to-one supervision as uncontroverted and credible. 

I agree that staff assigned to one-to-one supervision should have known that Resident 1 sexually abused Resident 2.  Resident 1’s care plan required that Petitioner monitor him for sexually inappropriate behavior.  CMS Ex. 13 at 9.  Without knowing Resident 1 had previously sexually abused Resident 2, staff could not effectively monitor Resident 1 for such behavior.  Staff needed to know that their task was to protect other residents, and Resident 2 in particular, from Resident 1.  The facility should have informed staff that Resident 1 must not be allowed near Resident 2.  Staff also needed to have a basic understanding of the threat Resident 1 posed and how to respond to any display of inappropriate sexual behavior so that they could protect other residents from Resident 1. 

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Mr. Shannon also observed two staff leave Resident 1 unsupervised, which is inconsistent with one-to-one supervision.  CMS Ex. 36 ¶¶ 27, 28, 36, 41.  Maintenance Staff F walked ten feet away from Resident 1 and turned his back on Resident 1, losing visual contact with Resident 1 for about two to three minutes.  CMS Ex. 36 ¶¶ 27-28; Tr. I at 96.  CNA H left Resident 1 in the lobby and went into another room.  CMS Ex. 36 ¶ 36.  Mr. Shannon testified that if a staff member needed a break, the staff member should ask another staff member to step in and provide the one-to-one supervision.  Tr. II at 154.  Ms. De Jesus agreed that staff performing one-to-one supervision should not have any other responsibilities and must find someone to cover when taking a break.  Tr. II at 10. 

This testimony supports CMS’s position that several of the staff members providing one-to-one monitoring of Resident 1 were not sufficiently focused on their task. 

In addition, Petitioner’s documentation of the one-to-one coverage of Resident 1 shows that there were periods of time when staff were not supervising Resident 1.  Petitioner’s position is that the regulations do not contain guidelines for documentation of one-to-one monitoring, such as a requirement that staff document one-to-one monitoring at a particular interval.  P. Ex. 11 ¶ 35; P. Ex. 12 ¶ 27.  Petitioner also contends that staff sufficiently documented the one-to-one coverage in nursing notes.  P. Ex. 11 ¶¶ 32, 35; P. Ex. 12 ¶ 27. 

Petitioner did not require non-licensed staff providing one-to-one monitoring to document their monitoring.  CMS Ex. 36 ¶¶ 25, 32, 35; Tr. I at 92-93.  In accordance with the monitoring guidelines, staff who did document used various forms to document their one-to-one monitoring of Resident 1.  However, the forms were incomplete and showed numerous periods of time for which there was no documentation.  CMS Ex. 18 at 21-24.  Further, the documentation in the nursing notes did not account for the missing periods in the 15-minute visual check sheets and the 30-minute safety watch form.  P. Ex. 2 at 1-3.  The periods of time for which there is no documentation means that there is no evidence to conclude Petitioner provided consistent one-to-one monitoring. 

Petitioner’s one-to-one monitoring was not sufficient to protect Resident 2 and other residents from foreseeable sexual abuse by Resident 1.  The fact that staff members were not aware that they were supposed to be looking for sexually inappropriate behavior from Resident 1 demonstrates that Resident 1 was not adequately supervised according to his care plan.  Staff were not focused on their task and left Resident 1, who was mobile, unwatched and unattended.  Finally, there is a lack of documentation showing that staff consistently carried out one-to-one monitoring. 

As mentioned above, SNFs must “protect and promote” resident rights, including the right to be free from physical abuse.  42 U.S.C. § 1395i-3(c)(1)(A)(ii).  “Protecting and promoting a resident’s right to be free from abuse necessarily obligates the facility to take

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reasonable steps to prevent abusive acts, regardless of their source.”  Western Care Management Corp., d/b/a Rehab Specialties Inn, DAB No. 1921 at 8 (2004).  It is sufficient for CMS to show that a facility failed to protect residents from reasonably foreseeable risks of abuse.  Golden Living Ctr., DAB No. 2937 at 13 (2019) (quoting Holy Cross Vill. at Notre Dame, Inc., DAB No. 2291 at 7 (2009)).  CMS does not need to show that actual abuse occurred.  Golden Living Ctr., DAB No. 2937 at 13. 

My review of the record shows that Resident 1 was likely to sexually abuse another resident again.  He found his abuse of Resident 2 to be “entertaining and very exciting.”  CMS Ex. 36 ¶ 24.  The notes from the facility’s psychological evaluation does not show an effort to learn Resident 1’s motivation for his actions and appeared to simply be a means to convey to Resident 1 that he needed consent before touching another person.  CMS Ex. 13 at 4-5.  However, the psychologist recommended Resident 1 be placed in a locked unit where he could participate in congregate activities while receiving one-to-one supervision.  CMS Ex. 13 at 5.  There is no evidence that Resident 1 showed any remorse concerning the abuse he inflicted on Resident 2.  Resident 1 had severe cognitive impairment and had a history of wandering and elopement behaviors.  CMS Ex. 13 at 6, 8, 12; P. Ex. 2 at 57, 74, 174-175; Tr. I at 72, 119.  Further, Resident 1 was mobile and ambulated without assistance.  CMS Ex. 13 at 15.  Without understanding the cause of his conduct or making an effort to treat that cause, monitoring Resident 1 closely was the only intervention that Petitioner attempted to implement that would stop Resident 1 from abusing another resident. 

Therefore, I conclude that Petitioner did not sufficiently protect and promote the right of Resident 2 and other residents to be free from abuse by Resident 1. CMS correctly determined that Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(a). 

4. Petitioner’s collateral arguments concerning the 42 C.F.R. § 483.12(a) deficiency involving Resident 1 are not a basis to find Petitioner in substantial compliance with that Medicare requirement.

Petitioner posited various arguments in an effort to undermine the legitimacy of the survey/investigation in this case.  Petitioner’s arguments are unavailing. 

Petitioner first argues that the state agency sent only one surveyor to the facility on July 31, not a team of surveyors as required by Appendix Q to the State Operations Manual (SOM) (P. Ex. 3), and the failure to send a team of surveyors makes the surveyor’s analysis clearly erroneous.  P. Br. at 9-10.  However, the composition of the survey team does not affect the deficiencies found in the case, which must be adjudicated on the merits.  Avon Nursing Home, DAB No. 2830 at 10 (2017) (“Even if [New York Department of Health] violated a statutory or regulatory directive concerning the composition of its survey team, the ALJ erred in overturning CMS’s noncompliance determination and remedy on that basis.”).  

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Petitioner also takes issue with Surveyor Shannon’s interviews with staff as to whether they knew why they were monitoring Resident 1, Resident 1’s underlying diagnoses, and the sexual abuse incident rather than basic objective questions about how staff would respond if Resident 1 walked into another resident’s room and if staff knew their obligations to prevent abuse.  P. Br. at 9-10.  However, it was up to Petitioner to call those employees as witnesses if it wanted to refute the surveyor’s testimony.  Beatrice State Developmental Ctr., DAB No. 2311 at 17, 18 (2010) (pointing out that the facility could have but did not present employee testimony that refuted the statements the surveyors claimed they made). 

Petitioner next argues that the surveyor failed to follow survey protocols because there is no evidence the surveyor notified the survey team leader of the circumstances or that the survey team leader was involved in the immediate jeopardy determination.  P. Br. at 11.  Assuming this to be true, even inadequate survey performance cannot invalidate adequately documented deficiencies.  42 C.F.R. § 488.318(b)(2); Rosewood Care Ctr. of Swansea, 868 F.3d 605, 621 (7th Cir. 2017).  Essentially, I must decide the case on the evidence and not as to whether the surveyors followed all protocols.  Avon Nursing Home, DAB No. 2830 at 11 (2017) (citing Sunshine Haven Lordsburg v. U.S. Dept. of Health & Human Servs., 742 F.3d 1239 (10th Cir. 2014) (“The Board’s holdings in this area emphasize that, under the governing administrative appeal regulations, the ultimate issue before an ALJ is not how the state agency performed the survey or what process it followed to reach its conclusions, but ‘whether the evidence as it is developed before the ALJ supports CMS’s independent ‘finding of noncompliance’ under the relevant participation requirements.”).  Allegations that a state survey agency used improper personnel or methods during the survey will not upset a determination of noncompliance when reliable evidence supports the noncompliance.  Del Rosa Villa, DAB No. 2458 at 20 (2012), aff’d, Del Rosa Villa v. Sebelius, 456 F. App’x 666 (9th Cir. 2013).  

5. CMS’s determination that Petitioner’s noncompliance with 42 C.F.R. § 483.12(a) concerning Resident 1 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.  The regulation does not require that a resident actually be harmed.  Lakeport Skilled Nursing Ctr., DAB No. 2435 at 8 (2012). 

I must uphold CMS’s determination as to the level of a facility’s substantial noncompliance (which includes an immediate jeopardy finding) unless it is “clearly erroneous.”  42 C.F.R. § 498.60(c).  The “clearly erroneous” standard imposes on facilities a heavy burden to show no immediate jeopardy, and determinations of immediate jeopardy have been sustained where CMS presented evidence “from which

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‘[o]ne could reasonably conclude’ that immediate jeopardy exists.”  See, e.g., Barbourville Nursing Home, DAB No. 1962 at 11 (2005) (quoting Florence Park Care Ctr., DAB No. 1931 at 27-28 (2004)).  In reviewing CMS’s finding, I “must consider whether the totality of the allegations support the Agency’s determination that [the SNF’s] noncompliance ‘has caused, or [was] likely to cause, serious injury, harm, impairment, or death to a resident.’”  Rosewood Care Ctr., 868 F.3d at 618 (7th Cir. 2017) (emphasis omitted). 

In the present case, only the deficiency at 42 C.F.R. § 483.12(a) involving Resident 1 was the basis for the immediate jeopardy determination.  Tr. I at 81.  CMS argues that Petitioner’s failure to protect residents from abuse by Resident 1 was likely to cause serious injury, harm, impairment, or death to a resident.  CMS Br. at 20.  CMS notes there was no indication Resident 1 was remorseful or would refrain engaging in sexually inappropriate behaviors in the future.  CMS Br. at 21.  CMS also points out that Petitioner identified Resident 1 as being at risk for committing future sexual abuse when it added monitoring of Resident 1 for sexually inappropriate behavior as an intervention to Resident 1’s care plan.  CMS Br. at 21. 

Petitioner first argues that there is no immediate jeopardy because Mr. Shannon merely thought that staff failures provided an “opportunity” for Resident 1 to reoffend, or that there remained the potential for further abuse of either Resident 2 or other residents.  P. Br. at 3.⁵ Petitioner contends that these determinations do not meet the criteria in the regulations that a deficient practice is “likely” to cause serious injury, harm, impairment, or death to a resident.  P. Br. at 4.  Petitioner says CMS failed to offer evidence that established the failure to provide one-to-one monitoring was likely to cause serious injury and, at best, only provided evidence of an opportunity or potential for additional harm.  P. Br. at 4. 

As CMS points out (CMS Reply at 10-11), the immediate jeopardy template that Petitioner quotes shows that the state agency selected the answer “yes” to the question “Serious injury, serious harm, serious impairment or death:  Is there evidence that a serious adverse outcome occurred, or a serious adverse outcome is likely as a result of the identified noncompliance?”  P. Ex. 1 (emphasis in original).  The state agency also

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selected “yes” to the question “Need for Immediate Action:  Does the entity need to take immediate action to correct noncompliance that has caused or is likely to cause serious injury, serious harm, serious impairment, or death?”  P. Ex. 1 (emphasis in original).  Further, Mr. Shannon, who wrote the deficiency, testified at the hearing that the state agency properly determined that Petitioner’s noncompliance rose to the immediate jeopardy level because of Resident 1’s ongoing risk to other residents.  Tr. I at 65, 104-105, 109-110. 

Further, while Mr. Shannon discussed the deficiency involving Resident 1 in terms of risk, this does not mean the deficiency cannot immediately jeopardize residents.  While a simple potential or risk for harm is insufficient for immediate jeopardy, “the issue is whether the ‘potential’ or ‘risk’ are sufficiently great to constitute a ‘likelihood.’”  Fairfax Nursing Home, Inc., DAB No. 1794 at 8 (2001).  Based on the record in this case, Resident 1 was at a significantly high risk for sexually abusing another resident, constituting a likelihood for serious harm, injury, or impairment. 

I also agree with CMS’s argument that it applied the correct immediate jeopardy standard in its prehearing and post-hearing briefs.  CMS Reply at 11.  CMS discussed the immediate jeopardy allegations in its prehearing brief (CMS Prehearing Brief at 28-29), clearly arguing that Petitioner’s failure to sufficiently monitor Resident 1 was likely to cause serious, injury, harm, or impairment to a resident.  Petitioner had an opportunity to respond to those allegations, therefore, the actual language in the SOD is not relevant to the issues in this case.  NHC Healthcare Athens, DAB No. 2258 at 16 (2009). 

Petitioner also tries to demonstrate that the state agency did not properly apply CMS guidance documents and only considered the matter to show that there was a potential for further abuse.  P. Br. at 5-7.  Petitioner argues that the state agency used an incorrect standard in the immediate jeopardy template (P. Ex. 1) and the SOD (CMS Ex. 6 at 7).  P. Br. at 5-7.  However, the statute and the regulations are controlling and not CMS guidance manuals.  “The SOM, in general, is a compilation of interpretive guidelines, standards of practice, and internal policies directed to the state survey agencies that conduct long-term care facility surveys and that certify facility compliance . . . .While the SOM may reflect CMS’s interpretations of the applicable statutes and regulations, the SOM provisions are not substantive rules themselves.”  Foxwood Springs Living, DAB No. 2294 at 8-9 (2009).  Therefore, I apply the regulations in this case without determining whether the specific provisions of the SOM are correct and regardless of whether the surveyor complied with the SOM.  I base my analysis in this case on the definition of immediate jeopardy in the regulations. 

Petitioner articulates that the post-incident monitoring of Resident 1, not Resident 1’s sexual abuse of Resident 2, was the reason for the immediate jeopardy determination.  P. Br. at 8.  Petitioner asserts that even though caretakers performed other tasks while keeping Resident 1 within their line of vision, or there were two or three minutes where

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no staff was watching Resident 1, this does not show likelihood of harm.  P. Br. at 8.  Further, Petitioner notes that despite being left unattended, Mr. Shannon testified that Resident 1 did not attempt to enter another resident’s room.  P. Br. at 8. 

The fact that Resident 1 did not get up from his chair or wander into another resident’s room during the short period of time that Mr. Shannon was at the facility does not excuse Petitioner from its obligation to ensure the facility’s residents were free from abuse by Resident 1.  Petitioner’s staff left Resident 1 unattended during two different shifts.  CMS Ex. 36 ¶¶ 27, 28, 36; Tr. I at 95-96.  One staff member went into another room and closed the door behind her, losing all visual contact of Resident 1.  CMS Ex. 36 ¶ 36.  Given Resident 1’s history of wandering and the fact that he had recently sexually abused Resident 2 and verbally stated that he enjoyed abusing Resident 2, it was likely that he would attempt to sexually abuse Resident 2 again or another resident.  It was critical for staff assigned to one-to-one monitoring to always supervise Resident 1.  Petitioner’s own witness acknowledged that staff assigned to one-to-one monitoring should focus solely on monitoring and needed to find another staff member to cover the one-to-one monitoring when taking a break.  CMS Ex. 36 ¶¶ 30, 32, 33; Tr. II at 10. 

Petitioner also thinks that whether staff knew the reason for the one-to-one coverage is not a basis for immediate jeopardy.  P. Br. at 10.  Rather, Petitioner asserts that the issue is whether staff knew what to do if Resident 1 tried to leave the lobby or enter another resident’s room.  P. Br. at 10.  The purpose for the one-to-one monitoring of Resident 1 was to protect other residents from Resident 1’s inappropriate sexual behaviors.  However, staff assigned to one-to-one supervision of Resident 1 thought that their task was to protect Resident 1.  Without knowing the purpose and goals for their assignment, staff were bound to take a laxer approach to supervising Resident 1, as Mr. Shannon noted during his observation. 

Petitioner further argues that staff documented supervision of Resident 1 before the state agency declared immediate jeopardy, citing the July 29-31 monitoring forms (CMS Ex. 18 at 21-23).  However, as discussed above, Petitioner simply has not established that it provided documentation of monitoring Resident 1 at all times from July 29 through July 31. 

For me to reverse an immediate jeopardy finding, I must conclude that CMS was clearly erroneous in that finding.  Petitioner failed to show that CMS’s immediate jeopardy determination was clearly erroneous.  A staff member caught Resident 1 sexually abusing Resident 2.  CMS Ex. 36 ¶ 22.  Petitioner acknowledged that Resident 1 was at risk for sexually assaulting a resident again and developed a care plan to address that risk.  CMS Ex. 13 at 9-10.  The psychologist who evaluated Resident 1 agreed that Resident 1 needed one-to-one supervision.  CMS Ex. 13 at 5.  Mr. Shannon’s testimony supports that Resident 1 was at high risk for sexually abusing Resident 2 again or another resident.  Tr. I at 104‑105.  Resident 1 articulated to the surveyor that he enjoyed the sexual abuse,

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and the sexual abuse was exciting.  CMS Ex. 36 ¶ 24; Tr. I at 155.  Additionally, Resident 1 was mobile and tended to wander, including into other residents’ rooms.  Tr. I at 119, 121, 123; CMS Ex. 13 at 6, 8, 14, 15. 

Despite Resident 1’s high risk of reoffending, Petitioner did not take immediate and effective action to determine how to control Resident 1’s sexually inappropriate behavior.  Without getting to the cause of his conduct and trying to mitigate that cause, one-to-one monitoring of Resident 1 was the most important intervention added to Resident 1’s care plan.  Resident 1’s ability to evade monitoring, Resident 1’s stated enjoyment of his abusive acts toward Resident 2, and the seriousness of that prior sexual abuse made careful one-to-one monitoring necessary.  Moreover, Resident 2’s limited mobility and lack of ability to yell for help made him vulnerable to further sexual abuse by Resident 2.  CMS Ex. 36 ¶ 23.  Resident 1 appears to have specifically preyed on a vulnerable resident.  Therefore, I easily conclude that Resident 1 was likely to cause serious injury or harm to Resident 2 again or another resident unless closely monitored.  Accordingly, I conclude that CMS did not clearly err in determining that Petitioner’s noncompliance with 42 C.F.R. § 483.12(a)(1) posed immediate jeopardy to the health and safety of its residents. 

6. Petitioner was not in substantial compliance with 42 C.F.R. § 483.35(a)(1), (2) because it did not have sufficient nursing staff with the appropriate competencies and skills to provide one-to-one monitoring of Resident 1 in accordance with his care plan.

The regulations require the following: 

The facility must have sufficient nursing staff with the appropriate competencies and skills sets to provide nursing and related services to assure resident safety and attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care and considering the number, acuity and diagnoses of the facility’s resident population in accordance with the facility assessment required at § 483.70(e). 

42 C.F.R. § 483.35.  A facility must provide services by sufficient numbers of licensed nurses and other nursing personnel, including but not limited to nurse aides, on a 24-hour basis to provide nursing care to all residents in accordance with resident care plans.  42 C.F.R. § 483.35(a)(1).  A facility must also designate a licensed nurse to serve as a charge nurse on each tour of duty.  42 C.F.R. § 483.35(a)(2). 

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CMS asserts that Petitioner failed to ensure it had adequately trained staff members, such as maintenance or administrative staff, to provide Resident 1 with one-to-one supervision after Resident 1 sexually abused Resident 2.  CMS Br. at 47.  Petitioner points to the SOM and argues that CMS did not establish that Petitioner had an insufficient number of staff.  P. Br. at 15. 

The deficiency is not that Petitioner had an insufficient number of staff.  Rather, Petitioner did not have enough staff who were appropriately trained to provide one-to-one supervision of Resident 1.  The regulation requires that facilities have “sufficient nursing staff with the appropriate competencies and skills sets to provide nursing and related services.”  42 C.F.R. § 483.35 (emphasis added).  As discussed above, after Resident 1 sexually abused Resident 2, Petitioner implemented a care plan to address Resident 1’s inappropriate sexual behavior that included an intervention to provide one-to-one supervision of Resident 1.  CMS Ex. 13 at 9.  Yet, Petitioner did not have enough competent staff to provide adequate one-to-one monitoring of Resident 1 as ordered in his care plan.  Petitioner did not train staff on the purpose of their assignment, how to respond if Resident 1 displayed any inappropriate sexual behavior, and how to document their supervision for Resident 1’s medical record.  Staff members, including non-clinical staff, assigned to one-to-one monitoring of Resident 1 were unaware that Resident 1 had recently sexually abused Resident 2 and their task was to prevent Resident 1 from abusing Resident 2 again or another resident. 

Petitioner failed to comply with professional standards of care for SNFs when it assigned untrained staff members to provide one-to-one supervision of Resident 1.  CMS Ex. 36 ¶ 91.  As a result, staff left Resident 1 unattended, providing him with the opportunity to walk away and sexually abuse another resident.  Therefore, Petitioner was not in substantial compliance with 42 C.F.R. § 483.35(a)(1), (2) because the facility did not have sufficient staff with the appropriate competencies and skills to provide effective one-to-one monitoring of Resident 1 as directed in his care plan. 

Deficiencies Related to Resident 4

7. Resident 4 displayed inappropriate sexual behavior towards other residents since February 2016.  Resident 4 offered kisses in exchange for cigarettes and wrote poems to give to staff and residents.  In the few months preceding the survey, Resident 4 engaged in inappropriate and unwelcome sexual conduct with several residents. 

In August 2019, Resident 4 was a 79-year-old male who was admitted to the facility on February 13, 2014.  CMS Ex. 11 at 1.  His diagnoses included muscle weakness, schizophrenia, difficulty walking, and Parkinson’s disease.  CMS Ex. 11 at 2.  Resident 4’s schizophrenia was manifested by verbal aggression towards staff.  CMS Ex. 11 at 5.  Petitioner developed a care plan on February 24, 2016, to address Resident 4’s physical

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and verbal abuse of others.  CMS Ex. 11 at 16.  The care plan also noted Resident 4 “loves to write poems and gives to staff and residents.”  CMS Ex. 11 at 16.  Approaches to address his behavior included teaching him that he could not touch, kiss, or ask for kisses from anyone and explaining that physical and verbal aggression towards others is not acceptable.  CMS Ex. 11 at 16. 

Petitioner’s IDT discussed Resident 4’s inappropriate sexual behaviors on May 15, 2019.  CMS Ex. 11 at 29.  The IDT noted that staff had instructed Resident 4 more than once to immediately stop his behavior of offering kisses to residents in exchange for cigarettes.  CMS Ex. 11 at 29.  The activities director recalled discussing Resident 4’s sexual advances towards other residents during the conference.  CMS Ex. 36 ¶ 58.  The IDT met again on August 13, 2019, to discuss and review Resident 4’s care plan, specifically his behavior of distributing poems to staff and residents.  CMS Ex. 11 at 30.  The IDT recommended referrals for behavior management and cognitive evaluation, and continuing with redirection and explaining inappropriate behavior.  CMS Ex. 11 at 30. 

Yet Resident 4 continued requesting cigarettes in exchange for kisses.  CMS Ex. 36 ¶ 45.  Resident 11, who also smoked, stated that Resident 4 “always” asked residents for cigarettes.  CMS Ex. 36 ¶ 45.  Resident 11 recalled a recent incident when Resident 4 requested a kiss in exchange for a cigarette from a young female resident.  CMS Ex. 36 ¶ 45. 

Further, in August 2019, a few residents reported instances of abuse by Resident 4 that had occurred in the past several months.  Resident 10 told Mr. Shannon that Resident 4 had harassed her but declined to share more information.  CMS Ex. 36 ¶ 56.  Resident 5 experienced two episodes of unwanted sexual contact by Resident 4.  On one occasion, Resident 4 entered Resident 5’s room and kissed her and touched her with his penis.  CMS Ex. 36 ¶ 54.  Before leaving the room, Resident 4 offered Resident 5 a poem.  CMS Ex. 36 ¶ 54.  In another incident, which occurred around July 4, Resident 5 was in Resident 4’s room because Resident 4 had told Resident 5 that he would give her a blanket.  CMS Ex. 12 at 15.  While Resident 5 was seated at Resident 4’s bedside, Resident 4 pulled down his pants and touched her leg with his genitals.  CMS Ex. 12 at 15; CMS Ex. 22 at 7.  Resident 5 stated to Mr. Shannon that Resident 4 tried to get on her; however, Resident 8 witnessed the incident and notified a maintenance staff member, who separated the residents.  CMS Ex. 36 ¶¶ 53, 55.  There is no indication in the record that the staff member who separated the residents reported the incident to the administrator or appropriate facility designee. 

On August 5, Resident 6 reported to the administrator that on or about August 2, Resident 4 made a sexual hand gesture towards her while she was lying in bed.  CMS Ex. 12 at 32; CMS Ex. 20 at 9, 10; CMS Ex. 36 ¶¶ 49, 50.  On the same day as the incident, Resident 6 reported to the charge nurse that she wanted a room change and staff moved Resident 6 to another room that day.  CMS Ex. 12 at 32; CMS Ex. 20 at 10.  On August 6, 2019,

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Petitioner developed a care plan to address Resident 4’s alleged inappropriate gesture.  CMS Ex. 11 at 12. 

Resident 9 alleged that Resident 4 molested her while she was sleeping about three to four months earlier.  CMS Ex. 12 at 11; CMS Ex. 24 at 3, 5.  Although the record indicates that Resident 9 did not immediately report the incident, Resident 9 told the surveyor that she informed CNA J of the abuse and told nursing staff that she did not want Resident 4 in her room.  CMS Ex. 36 ¶ 47.  There is no indication in the record that CNA J reported Resident 4’s abuse to a supervisor or the administrator.  After Resident 9 made the allegation on August 16, staff notified the abuse coordinator immediately.  CMS Ex. 24 at 3.  Petitioner initiated a care plan on August 15, 2019, to address Resident 4’s inappropriate sexual behavior.  CMS Ex. 11 at 10-11.  Interventions included one-to-one monitoring and monitoring for sudden behavioral changes.  CMS Ex. 11 at 10-11.  

Mr. Shannon interviewed facility staff about Petitioner’s response to the allegations of abuse against Resident 4.  CNA J stated that before the allegations, he would “just keep an eye on” Resident 4, rather than perform closer monitoring such as one-to-one monitoring.  CMS Ex. 36 ¶ 57.  The facility implemented one-to-one monitoring for 72 hours on August 15.  CMS Ex. 11 at 10-11; CMS Ex. 36 ¶ 57.  However, the record does not support that Petitioner closely monitored Resident 4 following the abuse allegations.  See CMS Ex. 11. 

8. Petitioner did not coordinate with Resident 4’s psychiatrist to address Resident 4’s inappropriate sexual behavior. 

In a letter dated November 29, 2017, a psychiatrist from the County of Marin Department of Health and Human Services stated that Resident 4 had been under care at Marin County Mental Health since 2006 because of his history of schizophrenia and major neurocognitive disorder possibly due to Parkinson’s disease.  CMS Ex. 11 at 36.  The physician opined that Resident 4 required 24-hour supervision.  CMS Ex. 11 at 36. 

As part of the survey, Mr. Shannon interviewed the Marin County Mental Health psychiatrist.  The psychiatrist informed the surveyor that Petitioner “never contacted her about coordinating Resident 4’s care until recently” and the facility had a history of poor communication.  CMS Ex. 36 ¶ 60.  The psychiatrist received a “panicked” telephone call in August 2019 requesting that she immediately call Petitioner’s attending physician to discuss Resident 4.  CMS Ex. 36 ¶ 60. 

Petitioner’s administrator did not show the surveyor any evidence that it attempted to coordinate care with Resident 4’s psychiatrist at Marin County Mental Health until August 29 and September 5, a few weeks after residents made numerous allegations of sexual abuse by Resident 4.  CMS Ex. 11 at 37; CMS Ex. 36 ¶ 61. 

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9. Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(a) because it did not protect residents from Resident 4’s sexual abuse and misbehaviors. 

CMS asserts that although Petitioner was aware of Resident 4’s repeated instances of sexually inappropriate behavior, Petitioner failed to protect residents from foreseeable sexual abuse by Resident 4.  CMS Br. at 30.  CMS alleges that the facility did not report abuse allegations in accordance with its policies, failed to care plan to meet Resident 4’s needs for sexual expression and supervise Resident 4’s interactions with other residents, and did not coordinate care with Resident 4’s psychiatrist.  CMS Br. at 25-30.  Petitioner does not rebut the abuse allegations against Resident 4.⁶  During the hearing, Petitioner argued that CMS never determined that Petitioner’s delay in reporting the abuse allegations caused further instances of abuse.  Tr. I at 124-125. 

As stated above, CMS is not required to establish that actual abuse occurred in order for Petitioner to be in noncompliance with 42 C.F.R. § 483.12(a).  Golden Living Ctr., DAB No. 2937 at 13.  Proof that a deficiency created a “potential” to cause more than minimal harm is sufficient to find a facility out of substantial compliance.  Lakeport Skilled Nursing Ctr., DAB No. 2435 at 5 (2012).  The record shows that Petitioner’s failure to adequately address Resident 4’s ongoing inappropriate sexual behaviors had the potential to result in more than minimal harm to the facility’s residents. 

Petitioner’s abuse policy defined abuse as “the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting harm, pain or mental anguish.”  CMS Ex. 19 at 1.  The policy stated that sexual abuse “includes, but is not limited to, sexual harassment, sexual coercion, or sexual assault.”  CMS Ex. 19 at 1.  To prevent abuse, residents exhibiting abusive behavior, which require professional services not provided in the facility, will be reviewed by the physician and treatment plans modified as appropriate.  CMS Ex. 19 at 3. 

California’s Abuse and Neglect Prohibition Policy and Procedure requires a facility administrator or designee to report all incidents of alleged or suspected abuse to the state agency immediately, or within 24 hours.  CMS Ex. 19 at 5.  The policy also required the facility to investigate all alleged or suspected abuse and forward a written report within two business days to a local ombudsman and law enforcement.  CMS Ex. 19 at 5.  

Petitioner was aware of Resident 4’s inappropriate sexual behaviors since 2016 and the IDT discussed Resident 4’s behaviors in May and August 2019.  CMS Ex. 11 at 16, 29.  Yet, without effective interventions, Resident 4 continued offering kisses in exchange for cigarettes and making sexual advances towards residents.  CMS Ex. 12 at 11, 15, 32;

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CMS Ex. 20 at 9, 10; CMS Ex. 22 at 7; CMS Ex. 24 at 3, 5; CMS Ex. 36 ¶¶ 45, 47, 49, 50, 54, 56.  

Following the various allegations of abuse, Petitioner eventually developed care plans to address the sexual gesture towards Resident 6 and sexual abuse of Residents 5 and 9.  CMS Ex. 11 at 10-11.  However, the care plans did not target Resident 4’s need for sexual expression or include interventions to more closely monitor Resident 4’s interactions with other residents.  CMS Ex. 36 ¶ 59.  Staff who were aware of the abuse allegations did not immediately report the abuse allegations to the administrator.  Once the residents reported the allegations to staff, the facility delayed reporting to the state agency.  Additionally, Petitioner failed to regularly and timely communicate with Resident 4’s psychiatrist about Resident 4’s care, which prevented his psychiatrist from properly addressing Resident 4’s inappropriate sexual behaviors.  CMS Ex. 11 at 37; CMS Ex. 36 ¶¶ 60, 61.  

By failing to sufficiently address Resident 4’s inappropriate behaviors, which had been ongoing for many years, Petitioner did not protect and promote the facility residents’ right to be free from abuse.  42 U.S.C. § 1395i-3(c)(1)(A)(ii).  At least six residents were either subjected to or witnessed Resident 4 engage in inappropriate and unwanted sexual touching or abuse.  Further, Petitioner’s delayed response in August 2019 after learning of multiple allegations created the potential for Resident 4 to continue abusing residents.  Therefore, Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(a). 

10. Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(c)(1), (4) because it did not timely report allegations of abuse against Resident 4 to the state agency. 

In response to allegations of abuse, a facility must ensure that all alleged violations are reported immediately, but not later than two hours after the allegation is made, if the events involve abuse, or no later than 24 hours if the events do not involve abuse.  The allegations must be reported to the administrator, state agency, and other officials in accordance with state law.  42 C.F.R. § 483.12(c)(1).  A facility must report results of all investigations to the administrator, state agency, and other officials within five working days of the incident and must take corrective action if the abuse allegations were verified.  42 C.F.R. § 483.12(c)(4). 

The facility’s abuse policies required the administrator or designee to report all alleged or suspected abuse to the state agency immediately, or within 24 hours.  CMS Ex. 31 at 42.  In violation of its policies, Petitioner did not report Resident 6’s allegations about Resident 4’s sexual hand gestures to the state agency within 24 hours of Resident 6 expressing her concerns to staff.  CMS Ex. 31 at 39-40. 

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Resident 6 reported Resident 4’s sexual hand gestures to a charge nurse on August 2 and requested a room change.  CMS Ex. 31 at 41.  The charge nurse did not inform the administrator of the sexual abuse allegation even though the administrator was at the facility that day.  CMS Ex. 31 at 40.  The administrator did not learn of Resident 6’s allegation until August 5, when Resident 6 directly informed her about Resident 4’s behavior.  CMS Ex. 31 at 40.  Further, the administrator delayed reporting the sexual abuse allegations to the state agency until August 8, six days after Resident 6 vocalized concerns to a charge nurse and three days after Resident 6 personally informed the administrator about Resident 4’s inappropriate hand gestures.  CMS Ex. 31 at 41, 42. 

Petitioner withdrew its appeal of this deficiency.  Tr. II at 33; see also Tr. II at 29-32.  Therefore, I must consider CMS’s determination as to noncompliance as binding in this case.  42 C.F.R. § 498.20(b). 

11. Petitioner was not in substantial compliance with 42 C.F.R. § 483.70(h)(1) and (2) because Resident 4’s attending physician did not coordinate care with Resident 4’s psychologist or meaningfully participate in Quality Assessment Performance Improvement (QAPI) committee meetings.

A facility must designate a physician to serve as medical director, who is responsible for implementing resident care policies and coordinating medical care in the facility.  42 C.F.R. § 483.70(h)(1), (2); see 42 U.S.C. § 1395i-3(b)(1)(B). 

The medical director did not ensure Resident 4’s attending physician coordinated care with Resident 4’s psychiatrist.  CMS Ex. 31 at 84.  Resident 4’s attending physician stated the facility “always” coordinated with residents’ outside psychiatric providers.  CMS Ex. 31 at 85.  However, Resident 4’s psychiatrist stated that it was “nearly impossible” to coordinate care with the facility because the facility had not contacted her since Resident 4 had been admitted to the facility.  CMS Ex. 31 at 87. 

Additionally, the medical director did not meaningfully participate in QAPI meetings as required by facility policy.  CMS Ex. 31 at 84.  The medical director had an advisory role rather than a decision-making role.  CMS Ex. 31 at 86.  As a result, he did not vote on measures presented to the committee for approval.  CMS Ex. 31 at 86. 

Petitioner withdrew its appeal as to this deficiency.  Tr. II at 33; see also Tr. II at 29-32.  Therefore, I must consider CMS’s determination as to noncompliance as binding in this case.  42 C.F.R. § 498.20(b). 

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12. Petitioner was not in substantial compliance with 42 C.F.R. § 483.10(a)(1), (2), (b)(1), (2) because Petitioner failed to provide Resident 4 with language interpretation services. 

A resident has a right to a dignified existence, self-determination, and communication with and access to persons and services inside and outside the facility.  42 C.F.R. § 483.10(a).  A facility must treat each resident with respect and dignity and care for each resident in a manner and in an environment that promotes maintenance or enhancement of his or her quality of life, recognizing each resident’s individuality.  42 C.F.R. § 483.10(a)(1).  The facility must protect and promote the rights of the resident.  42 C.F.R. § 483.10(a)(1). 

The SOD alleges Petitioner failed to ensure the rights of non-English speaking residents because it did not provide certified translation services to those non-English speaking residents.  CMS Ex. 31 at 2-3.  The facility did not employ a certified translator but contracted with a company that provided certified translator services.  CMS Ex. 31 at 3, 4.  However, according to the DON, the facility never used the contracted agency’s services.  CMS Ex. 31 at 4.  Rather, Petitioner utilized staff to serve as translators for the residents but did not provide staff competency training for translation services.  CMS Ex. 31 at 3. 

Resident 4 was one of seven residents who did not speak English, the dominant language at the facility.  CMS Ex. 31 at 3, 6.  Resident 4 primarily communicated in Spanish but his care plan for communication did not indicate the facility planned to utilize translation services to meet Resident 4’s care needs.  CMS Ex. 31 at 3-5.  Resident 4, through a translator, stated that the facility did not provide anyone to help him communicate his medical and social needs to staff.  CMS Ex. 31 at 5. 

Petitioner withdrew its appeal as to this deficiency.  Tr. II at 33; see also Tr. II at 29-32.  Therefore, I must consider CMS’s determination as to noncompliance as binding in this case.  42 C.F.R. § 498.20(b). 

Deficiency Related to Resident 7

13. A December 2018 care plan directed staff to encourage Resident 7 to participate in activities of interest.  Petitioner did not update the care plan with specific activities that Resident 7 indicated he enjoyed in a March 2019 MDS assessment. 

In August 2019, Resident 7 was a 67-year-old man who had been admitted to the facility on March 4, 2017.  CMS Ex. 7 at 5.  His diagnoses included restlessness and agitation, unspecified psychosis, and Alzheimer’s disease.  CMS Ex. 7 at 6.  Resident 7 had anxiety

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and exhibited physical and verbal aggression towards residents and staff.  CMS Ex. 7 at 4, 10, 15, 26, 57. 

A December 28, 2018 care plan directed staff to encourage Resident 7 to read the daily activity calendar, attend activities of interest, and socialize with others.  CMS Ex. 7 at 47.  The care plan stated that Resident 7 “enjoys coffee social[,] Price is Right, Trivia or History, Hangman, Music, special events” and “[tries] to help others and needs things to do.”  CMS Ex. 7 at 47.  The December 28, 2018 care plan also stated that Resident 7 liked to spend time out on the patio in the sun.  P. Ex. 5 at 1. 

A MDS dated March 11, 2019, indicated it was very important for Resident 7 to “keep up with the news” and “go outside for fresh air when the weather is good.”  CMS Ex. 7 at 13.  An April 7 annual activity assessment and a June 15 quarterly activity assessment indicated that Resident 7 preferred cards/other games, music, watching television, talking or conversing and was interested in current events, movies, woodworking, and animals/pets.  P. Ex. 5 at 2-10. 

Petitioner did not update the December 2018 care plan or include in subsequent care plans Resident 7’s activity preferences that had been identified in the MDS and the activities assessments.  See CMS Ex. 7 at 29, 31.  The DON confirmed that the facility did not update the December 2018 care plan to include the activities identified in the MDS.  CMS Ex. 30 ¶ 14. 

14. Petitioner was in substantial compliance with 42 C.F.R. § 483.21(b)(2)(i)-(iii) because Petitioner’s failure to update Resident 7’s December 28, 2018 care plan did not have the potential to cause more than minimal harm. 

SNFs are required to conduct comprehensive, accurate, standardized, reproducible assessments of each resident’s functional capacity.  42 U.S.C. § 1395i-3(b)(3)(A).  The comprehensive assessment is based on the uniform MDS specified by the Secretary.  42 U.S.C. § 1395i-3(b)(3)(A)(ii).  The SNF must conduct comprehensive assessments:  1) promptly upon admission to the facility (i.e., no later than 14 days after the date of admission), 2) promptly after a significant change in a resident’s physical or mental condition, and 3) no less than once every 12 months (although the SNF must examine each resident once every three months to ensure the continued accuracy of the assessment).  42 U.S.C. § 1395i-3(b)(3)(C).  The result of the comprehensive assessment “shall be used in developing, reviewing, and revising the resident’s plan of care.”  42 U.S.C. § 1395i-3(b)(3)(D).  A facility’s IDT must develop a comprehensive care plan within seven days of a comprehensive assessment.  42 C.F.R. § 483.21(b)(2)(i)-(ii).  The IDT must review and revise the comprehensive care plan after each assessment, including both the comprehensive and quarterly review assessments.  42 C.F.R. § 483.21(b)(2)(iii). 

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Petitioner’s Comprehensive Plan of Care policy required the facility to “[r]e-evaluate and modify care plans:  as necessary to reflect changes in care, service and treatment; quarterly; and with significant change in status assessment.”  CMS Ex. 5 at 2-3.  At a minimum, care plan reviews will include:  “completed MDS and [Care Area Assessments], problem list, long-term goals, short-term goals, approaches/interventions, barriers, rehabilitation potential, and discharge plan.”  CMS Ex. 5 at 6.  A resident’s comprehensive care plan must be “periodically reviewed and revised by the interdisciplinary team as changes in the resident’s care and treatment occur.”  CMS Ex. 5 at 1. 

In this case, CMS alleges that Petitioner failed to update Resident 7’s December 28, 2018 care plan to reflect a March 11, 2019 MDS assessment showing that it is “very important” to Resident 7 to “keep up with the news” and “go outside to get fresh air when the weather is good.”  CMS Br. at 32-34; Tr. I at 27; CMS Ex. 7 at 13; CMS Ex. 30 ¶ 7.  CMS notes the May 29, 2019 and June 20, 2019 care plans directed staff to involve Resident 7 in activities of interest but did not list the specific activities in which Resident 7 was interested.  CMS Br. at 33-34; CMS Ex. 7 at 29, 31; CMS Ex. 30 ¶¶ 12-13.  CMS was particularly concerned that Resident 7 had anxiety, manifested by verbal aggression, and that Resident 7’s emotional and psychological condition was to be stabilized by interventions that included involving Resident 7 in activities with which he had an interest.  CMS Ex. 30 ¶ 12. 

In response, Petitioner asserts that Resident 7’s care plan already indicated, before the March 2019 MDS, that Resident 7 “enjoys being out on the patio areas sitting in the sun as he use[d] to work in the sun (P[.] Ex. 5 [at] 1).”  P. Br. at 15.  The December 28, 2018 care plan’s “approach” to this states that “Resident spends time out in the patio an[d] in the sun.”  P. Ex. 5 at 1.  Petitioner also contends that it properly conducted assessments, pointing to the March 2019 annual activities assessment and June 2019 quarterly activities assessment (P. Ex. 5 at 2-10).  P. Br. at 15. 

State agency surveyor Regis Figur testified that, although Petitioner conducted activities assessments annually and quarterly, the MDS assessment is the official CMS assessment that facilities are required to use when creating a care plan.  Tr. I at 30; CMS Ex. 30 ¶ 16.  A nurse conducts the MDS assessment, which is a very technical document, that should then be used to create a care plan.  Tr. I at 43; CMS Ex. 30 ¶ 16.  The care plan should reflect the most recent MDS assessment.  Tr. I at 32, 40; CMS Ex. 30 ¶ 16. 

According to Mr. Figur, nursing staff, specifically CNAs and licensed nurses, are the primary users of residents’ care plans.  Tr. I at 25.  A care plan informs nursing staff about the services and care they need to provide to the resident.  Tr. I at 43.  The potential harm of failing to include information from the MDS assessment in the care plan is that nursing staff will not know what services and care to provide a resident.  Tr. I at 44.  

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Mr. Figur clarified that taking a resident outside is considered a nursing intervention and “everything that the staff has to do should be written in a care plan.”  Tr. I at 46. 

Mr. Figur opined that the failure of the care plan to specify the preference of Resident 7’s activities had the “potential for Resident 7 to not participate in activities important to him, potentially increasing his anxiety and aggressiveness.”  CMS Ex. 30 ¶ 17.  However, Mr. Figur acknowledged that staff may have been aware that Resident 7 enjoyed watching television and going outside.  Tr. I at 30.  Mr. Figur clarified that he cited Petitioner with the deficiency for failure to update Resident 7’s care plan to reflect his activity preferences, not whether or not staff knew Resident 7’s preferences.  Tr. I at 30-31.  He did not determine whether staff denied Resident 7 the opportunity to watch television or go outside.  Tr. I at 41. 

I conclude that Petitioner’s failure to update Resident 7’s care plan to indicate that Resident 7 enjoyed keeping up with the news and going outside for fresh air when the weather was good did not have the potential to cause more than minimal harm.  The care plan already included, starting on December 28, 2018, that Resident 7 enjoyed sitting outside in the sun on the patio and that Resident 7 spends time on the patio in the sun.  P. Ex. 1 at 5.  This is sufficiently similar to the MDS’s indication that Resident 7 liked to go outside for fresh air when the weather is good.  CMS Ex. 7 at 13.  Further, although Petitioner failed to update the care plan to reflect that Resident 7 generally liked to keep up with the news, the record does not establish how this failure, alone, had the potential for causing more than minimal harm to Resident 7.  The December 2018 care plan sufficiently conveyed to nursing staff that they should encourage Resident 7 to participate in activities that he was interested in and specified several activities, including spending time outside.  P. Ex. 5 at 1.  Therefore, Petitioner was in substantial compliance with 42 C.F.R. § 483.21(b)(2)(i)-(iii). 

Deficiency Related to Resident 12

15. Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(k) because nursing staff did not consistently evaluate Resident 12’s pain level before and after administering opioids, assess her sedation level, or utilize non-pharmacological methods of pain management.  

A facility must ensure that pain management is provided to residents who require such services, consistent with professional standards of practice, the comprehensive person-centered care plan, and the residents’ goals and preferences.  42 C.F.R. § 483.25(k). 

CMS argues that Petitioner failed to consistently monitor Resident 12’s pain level before and after administering opioids and assess Resident 12’s sedation level to prevent respiratory depression.  CMS Br. at 37-38.  CMS also asserts that Petitioner failed to

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utilize non-pharmacological interventions, such as music therapy, to address Resident 12’s pain.  CMS Br. at 38. 

Resident 12 was a 58-year-old woman who was initially admitted to the facility on July 8, 2016 and readmitted on August 17, 2018.  CMS Ex. 16 at 1.  Resident 12 had a history of stroke and had bilateral above the knee amputations, lupus, chronic pain syndrome, diabetes mellitus with diabetic neuropathy, chronic kidney disease, and major depressive disorder.  CMS Ex. 16 at 2.  Resident 12 believed the facility was not working to minimize her chronic pain issues because staff did not ask for a pain score after administering medications and had not assessed her desired level of pain, which was a “3 or 4.”  CMS Ex. 36 ¶¶ 73, 74.  At the time she spoke with Mr. Shannon, Resident 12 stated her current level of pain was 6 or 7.  CMS Ex. 36 ¶ 73.  Resident 12 also informed Mr. Shannon that gospel music was the most effective non-pharmaceutical method of managing her pain.  CMS Ex. 36 ¶ 74. 

Pain medication administration histories for June and July 2019 showed that staff did not consistently evaluate Resident 12’s pain before and after administering opioids.  CMS Ex. 16 at 6, 18.  Mr. Shannon testified that facilities should consistently assess a resident’s pain level to ensure the medication is necessary and effective, or if medication modifications are required.  CMS Ex. 36 ¶ 68.  The histories also did not indicate that nursing staff assessed Resident 12’s sedation level prior to administering pain medication to prevent respiratory depression or an overdose.  CMS Ex. 16 at 3-9, 11, 14-23, 25; CMS Ex. 36 ¶¶ 69, 88. 

In addition, the record shows that from June 3, 2017 through August 1, 2019, the facility developed four separate care plans to address Resident 12’s pain.  CMS Ex. 16 at 28-33.  However, the care plans did not indicate Resident 12’s desired pain level or that gospel music could be used as a non-pharmaceutical approach to address her pain.  CMS Ex. 16 at 28-33.  Pain monitoring and medication administration records also did not show use of non-pharmacological approaches to manage Resident 12’s pain.  CMS Ex. 16 at 3-9, 11, 14-23, 25. 

As CMS points out, Petitioner did not present any arguments related to 42 C.F.R. § 483.25(k) in its prehearing brief or at the hearing.  CMS Br. at 37.  Petitioner also did not include any arguments regarding this deficiency in its post-hearing brief.  See P. Br.  Because CMS provided a prima facie case to support this deficiency and Petitioner did not dispute it, I uphold this deficiency. 

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Deficiency Related to Drug Storage

16. Petitioner was not in substantial compliance with 42 C.F.R. § 483.45(g), (h)(1), (2). 

Drugs and biologicals must be labeled in accordance with currently accepted professional principles, and include the appropriate accessory and cautionary instructions, and expiration date.  42 C.F.R. § 483.45(g).  A facility must store all drugs and biologicals in locked compartments under proper temperature controls and permit only authorized personnel to have access to the keys.  42 C.F.R. § 483.45(h)(1).  Controlled drugs listed in Schedule II of the Comprehensive Drug Abuse Prevention and Control Act of 1976 and other drugs subject to abuse must be stored in separately locked, permanently affixed compartments, except when the facility uses single unit package drug distribution systems in which the quantity stored is minimal and a missing dose can be readily detected.  42 C.F.R. § 483.45(h)(2). 

According to the SOD, an LVN failed to store non-controlled and controlled medication securely in accordance with facility policy, which requires staff to store medication in a locked storage area that is only accessible to authorized personnel, under a double-lock system.  CMS Ex. 31 at 67.  The LVN left her assigned medication unlocked and unattended, with the narcotic keyring on top and unsecured.  CMS Ex. 31 at 67. 

Petitioner withdrew its appeal as to this deficiency.  Tr. II at 33; see also Tr. II at 29-32.  Therefore, I must consider CMS’s determination as to noncompliance as binding in this case.  42 C.F.R. § 498.20(b). 

Deficiencies Related to the Quality Assessment Performance Improvement Committee

17. Petitioner’s QAPI committee did not maintain adequate records or effectively identify and rectify quality of care issues at the facility.  Additionally, the medical director did not have a decision-making role on the committee. 

The primary goals of the QAPI committee included:  establishing, maintaining, and overseeing facility systems and process to support the delivery of quality of care and services; helping identify actual and potential negative outcomes relative to resident care and resolving those outcomes appropriately; and coordinating the development, implementation, monitoring, and evaluation of performance improvement projects to achieve specific goals.  CMS Ex. 29 at 335.  Petitioner’s policies required the QAPI committee to meet monthly to review reports, evaluate the significance of data, and monitor all quality-related activities.  CMS Ex. 39 at 334, 336.  Further, the QAPI committee was required to maintain minutes of all regular and special meetings, which

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should include a summary of reports, findings, and action plans to be implemented.  CMS Ex. 29 at 336-337. 

Despite its policies, the QAPI committee did not have attendance records from meetings conducted in February, April, and June 2019 and did not maintain minutes from February, March, and April 2019 meetings.  CMS Ex. 36 ¶¶ 102, 115, 118.  The facility also did not have QAPI data reports that the DON and Regional Vice President of Operations submitted monthly to the QAPI committee.  CMS Ex. 36 ¶ 115.  The DON stated the facility could not account for the minutes and other records because the facility’s previous administrator had not implemented a system to ensure QAPI minutes, agendas, or other pertinent documents were collected, organized, and readily accessible on reasonable request.  CMS Ex. 36 ¶ 107. 

In addition to failing to maintain records of all meetings, the QAPI committee did not sufficiently address quality of care issues at the facility.  The committee identified two of the same quality of care issues during the May and June 2019 meetings, environmental cleanliness and Ambassador Rounds (bedside visits by facility management).  CMS Ex. 36 ¶¶ 102, 114.  However, Ms. De Jesus stated the facility did not develop plans of action after identifying the two quality issues.  CMS Ex. 36 ¶ 114.  

Petitioner’s policies also prescribed that the administrator, DON, and the medical director, amongst others, would serve on the committee.  CMS Ex. 29 at 336.  However, the medical director only had an advisory role, not a decision-making role.  CMS Ex. 36 ¶ 117.  Surveyor Shannon testified that the medical director should have had a decision-making role to ensure that the committee’s decisions reflected a medical director’s viewpoint.  CMS Ex. 36 ¶ 117. 

18. Petitioner was not in substantial compliance with 42 C.F.R. § 483.75(g)(2)(ii) because the QAPI committee did not develop corrective action plans to address two identified quality of care issues. 

The quality assessment and assurance committee reports to the facility’s governing body and must develop and implement appropriate plans of action to correct identified quality deficiencies.  42 C.F.R. § 483.75(g)(2)(ii); see 42 U.S.C. § 1395i-3(b)(1)(B). 

CMS argues that Petitioner’s QAPI committee did not analyze monthly data reported to the committee or develop and monitor plans of action to correct identified quality of care issues.  CMS Br. at 53.  Petitioner argues that it presented evidence the committee engaged in comprehensive QAPI activities like evaluating practices related to fall prevention (P. Ex. 10 at 7, 88), immunizations (P. Ex. 10 at 16), medication monitoring (P. Ex. 10 at 49-56), in‑service trainings (P. Ex. 10 at 57), monthly resident weights (P. Ex. 10 at 63), action plans (P. Ex. 10 at 66), nutrition (P. Ex. 10 at 70), and pressure sores, psychotropic medications, weights, and nutrition (P. Ex. 10 at 96).  P. Br. at 16. 

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Petitioner was not in substantial compliance with quality assurance requirements because the QAPI committee did not develop corrective action plans to address two quality of care issues, environmental cleanliness and Ambassador Rounds, that it identified in both the May and June 2019 meetings.  Jewish Home of Eastern Pennsylvania, DAB No. 2380 at 9 (2011) (citing Alexandria Place, DAB No. 2245 at 22 (2009)).  Petitioner does not rebut any of the facts CMS asserts.  Although Petitioner submitted documentation showing some of its activities, Petitioner has not shown that the QAPI committee developed or implemented plans of action to correct the environmental cleanliness and Ambassador Rounds issues.  CMS Ex. 36 ¶¶ 102, 114.  Petitioner also did not show that the QAPI committee analyzed monthly data reported to the committee.  CMS Ex. 36 ¶ 115.  Further, as CMS points out, Petitioner did not argue or present any evidence that its QAPI committee addressed the sexual abuse incidents at the facility.  CMS Reply at 15.  

Petitioner also argues that the QAPI program did not become a requirement until November 2019.  P. Br. at 16.  However, while parts of the QAPI program were not implemented until November 28, 2019 (81 Fed. Reg. 68688, 68697 (Oct. 4, 2016)), the regulations in effect at the time of the survey, which had been in effect since July 13, 2017, required that the facility’s quality assessment and assurance committee develop and implement appropriate plans of action to correct identified quality deficiencies.  42 C.F.R. § 483.75(g)(2)(ii).  The record establishes that Petitioner’s QAPI committee failed to develop corrective action plans to address two deficiencies the committee identified.  Accordingly, I conclude that Petitioner was not in substantial compliance with 42 C.F.R. § 483.75(g)(2)(ii). 

19. Petitioner was not in substantial compliance with 42 C.F.R. § 483.75(g)(1)(i)-(iii), (2)(i) because the QAPI committee did not sufficiently coordinate activities to address quality of care issues and the medical director did not have a decision-making role on the committee. 

A facility must maintain a quality assessment and assurance committee consisting of, at a minimum:  the director of nursing services; the medical director; and at least three other staff members, including one who must be the administrator, owner, board member, or other individual in a leadership role.  42 C.F.R. § 483.75(g)(1)(i)-(iii); see 42 U.S.C. § 1395i-3(b)(1)(B).  The committee must meet quarterly and as needed to coordinate and evaluate activities, such as identifying which quality assessment and assurance activities, including performance improvement projects required under the QAPI program, are necessary.  42 C.F.R. § 483.75(g)(2)(i). 

CMS argues that Petitioner failed to ensure that its QAPI committee adequately addressed quality of care issues at the facility or that its medical director voted on QAPI

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decisions.  CMS Br. at 55.  Petitioner argues that the QAPI committee engaged in comprehensive QAPI activities.  P. Br. at 16. 

Petitioner’s medical director had an advisory role, as opposed to a decision-making role, on the committee.  CMS Ex. 36 ¶ 117.  As Mr. Shannon stated, Petitioner’s medical director should have had a decision-making role so that committee decisions reflected the medical director’s viewpoint.  A medical director is in the best position to identify medical issues that need to be addressed, coordinate medical care in the facility, ensure that the facility is providing sufficient medical care to meet residents’ needs, and verify that the committee’s decisions comply with professional standards of medical care. 

Additionally, as previously discussed, the committee did not maintain minutes for February, March, and April 2019 meetings to support that it sufficiently identified necessary quality assessment and assurance activities.  Although the committee identified that it needed to address environmental cleanliness and its Ambassador Rounds program, it did not coordinate and develop any improvement projects to resolve those quality of care issues.  Further, despite Petitioner’s assertion that the committee engaged in comprehensive activities, Petitioner did not provide any evidence to show that the committee identified and investigated the numerous sexual abuse incidents involving multiple residents.  Therefore, I conclude that Petitioner was not in substantial compliance with 42 C.F.R. § 483.75(g)(1)(i)-(iii), (2)(i). 

Deficiencies Related to the Administration of the Facility

20. Petitioner was not in substantial compliance with 42 C.F.R. § 483.70 because the facility was not administered in a manner so that residents could attain or maintain the highest practicable physical, mental, and psychosocial well-being as evidenced by other deficiencies in this case. 

A facility must be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident.42 U.S.C. § 1395i-3(d)(1)(A); 42 C.F.R. § 483.70. 

CMS argues that Petitioner’s medical director failed to ensure that Resident 4’s attending physician coordinated care with Resident 4’s psychiatrist.  CMS Br. at 48.  CMS also argues that the administration failed to ensure staff were trained to provide one-to-one monitoring of Resident 1.  CMS Br. at 48-50.  Finally, CMS contends that the QAPI committee did not show that it consistently maintained meeting records or sufficiently addressed quality of care issues at the facility.  CMS Br. at 50. 

Petitioner argues that “CMS bootstrapped on additional deficiencies” and “there was no need for this deficiency at all given other deficiencies written.”  P. Br. at 15-16.  Further,

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Petitioner contends that CMS did not present any evidence to support noncompliance with 42 C.F.R. § 483.70.  P. Br. at 16. 

My conclusions above, that Petitioner was not in substantial compliance with numerous deficiencies, including with 42 C.F.R. § 483.12(a)(1), at the immediate jeopardy level, is a sufficient basis for me to further conclude that Petitioner failed to comply substantially with 42 C.F.R. § 483.70.  The administrative deficiency is a derivative deficiency based on findings of other deficiencies.  Asbury Ctr. at Johnson City, DAB No. 1815 at 11 (2002), aff’d, Asbury Ctr., at Johnson City v. Dep’t of Health & Human Servs., 77 F. App’x 853 (6th Cir. 2003); Odd Fellow & Rebekah Health Care Facility, DAB No. 1839 at 10 (2002).  The existence of those separately identified deficiencies “may constitute a prima facie case that a facility has not been administered efficiently or effectively as required by section [483.70].”  Lopatcong Ctr., DAB No. 2443 at 13 (2012) (citing Odd Fellow and Rebekah Health Care Facility, DAB No. 1839 at 17).  Where a facility has been shown to be out of compliance with program requirements at the immediate jeopardy level, the facility was not administered in a manner that used its resources effectively to attain the highest practicable physical, mental, and psychosocial well-being of each resident.  Asbury Ctr., DAB No. 1815 at 11. 

In this case, Petitioner’s administrative failures placed residents at risk for more abuse by Residents 1 and 4.  Despite Resident 4’s long history of inappropriate sexual behavior directed towards other residents, the administrator, who was also the facility’s abuse coordinator, and the medical director, did not take measures to address Resident 4’s sexual abuse.  Resident 4’s attending physician claimed the facility “always coordinated care with a resident’s outside psychiatric provider.”  CMS Ex. 36 ¶ 98.  However, the administrator only provided evidence that the facility contacted Resident 4’s psychiatrist on August 29 and September 5, 2019, at least two weeks after residents reported sexual abuse by Resident 4.  CMS Ex. 11 at 37. 

The administration also failed to ensure that staff were trained to supervise Resident 1.  Although the DON stated that nursing leadership was responsible for training non-clinical staff on the specific duties required to perform one-to-one monitoring, the DSD explained that the facility did not provide non-clinical staff with formal resident monitoring training.  CMS Ex. 36 ¶ 30.  The DSD further stated that the facility did not have a training record to demonstrate the competency of non-clinical staff assigned to one-to-one monitoring of Resident 1.  CMS Ex. 36 ¶ 101. 

Petitioner’s administration also did not ensure that the QAPI committee functioned in accordance with facility policies.  The facility did not have attendance records from February, April, and June 2019 meetings and did not maintain minutes from February, March, and April 2019 meetings.  CMS Ex. 36 ¶ 102.  Further, the Regional Director of Clinical Operations informed the surveyor that, although the committee identified two of the same quality of care issues during May and June 2019 meetings, the facility did not

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have evidence that it implemented a plan to improve the two quality of care issues or monitor and assess the progress of its improvement projects.  CMS Ex. 36 ¶ 102. 

The administration failed to ensure that its residents were free from abuse because it did not adequately address Residents 1 and 4’s inappropriate sexual behaviors to protect residents from further abuse by Residents 1 and 4.  Additionally, the facility’s administration did not adhere to its own QAPI program policies to effectively address quality of care issues.  Accordingly, I conclude that Petitioner was not in substantial compliance with 42 C.F.R. § 483.70 because the administration did not act efficiently or effectively to attain and maintain resident well-being. 

21. Petitioner was in substantial compliance with 42 C.F.R. § 483.70(d)(1), (2) because it had a governing body. 

The regulations provide:  

(1) The facility must have a governing body, or designated persons functioning as a governing body, that is legally responsible for establishing and implementing policies regarding the management and operation of the facility; and
(2) The governing body appoints the administrator who is—
      (i) Licensed by the State, where licensing is required;
      (ii) Responsible for management of the facility; and
      (iii) Reports to and is accountable to the governing body. 

42 C.F.R. § 483.70(d)(1), (2); see 42 U.S.C. § 1395i-3(f)(4), (5)(A). 

CMS argues that Petitioner’s governing body failed to ensure that facility policies and procedures were implemented consistently and the QAPI program was run effectively.  CMS Br. at 51; CMS Ex. 31 at 75-76; CMS Ex. 36 ¶ 105.  However, 42 C.F.R. § 483.70(d)(1), (2), on its face, is directed at the existence of a governing body, not the body’s performance.  Odd Fellow, DAB No. 1839 at 11.  Ms. De Jesus and Ms. Dise testified that the facility had a governing body at all relevant times.  P. Ex. 11 ¶ 65; P. Ex. 12 ¶ 35.  The facility’s governing body was comprised of the administrator, DON, compliance officer, and Ms. Dise.  CMS Ex. 36 ¶ 105. 

Therefore, CMS failed to provide sufficient prima facie evidence to show this deficiency exists.  As a result, I conclude that Petitioner was in substantial compliance with 42 C.F.R. § 483.70(d)(1), (2). 

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Enforcement Remedies

22. The $8,935 per‑day CMP for three days from July 29 through July 31, 2019, and $415 per-day CMP for 98 days from August 1 through November 6, 2019, for a total CMP of $67,475, is appropriate under relevant statutory and regulatory factors for determining the amount of CMPs. 

CMS imposed an $8,935 per-day CMP for three days (July 29 through July 31, 2019) and $415 per-day CMP for 98 days (August 1 through November 6, 2019) for a total CMP of $67,475.  CMS Ex. 33 at 2; CMS Ex. 34 at 1-2; CMS Ex. 35 at 1.  When CMS imposes a per-day CMP, an SNF may challenge the amount and duration of the CMP. 

Amount of CMP

When determining whether a CMP amount is appropriate, I apply the factors listed in 42 C.F.R. § 488.438(f):  1) the facility’s history of noncompliance; 2) the facility’s financial condition; 3) the 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.  See 42 U.S.C. §§ 1320a-7a(d)(2), 1395i-3(h)(2)(B)(ii)(I).  The absence of culpability is not a mitigating factor.  42 C.F.R. § 488.438(f).  The factors listed 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.  See 42 U.S.C. §§ 1320a-7a(d)(1), (3), 1395i-3(h)(2)(B)(ii)(I). 

The regulations leave the decision regarding the choice of remedy to CMS, and the amount of the remedy to CMS and the ALJ, requiring only that the regulatory factors at §§ 488.438(f) and 488.404 be considered when determining the amount of a CMP within a particular range.  42 C.F.R. §§ 488.408, 488.408(g)(2); 498.3(d)(11); see also 42 C.F.R. § 488.438(e)(2) and (3); Alexandria Place, DAB No. 2245 at 27 (2009); Kenton Healthcare, LLC, DAB No. 2186 at 28-29 (2008).  However, unless a facility contends that a particular regulatory factor does not support the CMP amount, an ALJ must sustain it.  Coquina Ctr., DAB No. 1860 (2002). 

Facility’s History of Non-Compliance:  CMS argues that Petitioner has a history of numerous D-level deficiencies or higher as found in 2016, 2017, 2018, and 2019 surveys.  CMS Br. at 59.  Petitioner argues that CMS did not present evidence of a history of non-compliance.  P. Br. at 17.  CMS responded that it submitted CMS Exhibit 32, showing Petitioner’s history of deficiencies.  CMS Reply at 16. 

CMS Exhibit 32 documents what appears to be standard surveys conducted from 2016 through 2019, which found many deficiencies.  The 2016 survey found one G-level

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deficiency (i.e., actual harm to a resident related to dignity and respect of individuality), four F-level deficiencies (i.e., no actual harm but widespread potential for more than minimal harm to residents), and 24 deficiencies at scope and severity levels “D” and “E” (i.e., no actual harm but isolate/pattern of deficiencies with the potential for more than minimal harm to residents).  CMS Ex. 32 at 2-5.  The 2017 survey found six F-level deficiencies as well as 21 deficiencies at the D and E-levels.  CMS Ex. 32 at 2-5.  The 2018 survey found one F-level and 18 D and E-level deficiencies.  CMS Ex. 32 at 2-5.  The 2019 survey found four F-level deficiencies as well as 17 deficiencies at scope and severity levels “D” and “E.”  CMS Ex. 32 at 2-5.  

CMS has proven that Petitioner regularly engages in deficient behavior that poses a potential of more than minimal harm to residents.  The existence of an actual harm deficiency as well as 15 deficiencies that posed widespread potential for more than minimal harm (i.e., the F-level deficiencies) in the three years before the survey at issue in this case provides strong support for a significant CMP amount to serve the remedial purpose of attempting to ensure that Petitioner will conform with Medicare requirements for SNFs. 

Scope and Severity of Deficiencies and Relationship Between Deficiencies:  CMS argues that it considered the seriousness of the deficiencies cited, focusing on the protection of residents from potential abuse.  CMS Br. at 58-59.  Petitioner generally states that there is no evidence as to “the other identified criteria,” which I assume includes this factor.  P. Br. at 17. 

CMS is correct.  Resident 1 was likely to sexually abuse again, yet Petitioner failed to implement sufficient one-to-one monitoring of Resident 1, immediately jeopardizing the health and safety of residents.  Petitioner’s failure to take appropriate action to avoid the threat of further harm weighs heavily in favor of a high CMP in this case.  The non-immediate jeopardy citations also reflected serious matters justifying a significant CMP amount.  Petitioner’s response to Resident 4’s sexual abuse was also deficient.  The facility did not develop interventions to closely monitor Resident 4 or address his need for sexual expression, timely report abuse allegations against Resident 4 to the state agency, or coordinate with Resident 4’s psychiatrist.  

Many of the other deficiencies were also related to Petitioner’s failure to maintain the health, safety, and well-being of residents and address quality of care issues at the facility.  The facility failed to provide certified translation services to non-English speaking residents, securely store medications, sufficiently manage Resident 12’s pain, and conduct quality assurance activities in accordance with the regulations and facility policies.  Therefore, this factor supports a substantial CMP amount. 

Culpability:  CMS argues that Petitioner was culpable because it failed to properly supervise Resident 1 after he sexually abused Resident 2.  CMS Br. at 58.  While

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Petitioner decided one-to-one supervision was necessary, Petitioner did not sufficiently train the staff who performed the function, failed to inform some of the staff performing this function of the reason for the one-to-one monitoring, and did not properly document the one-to-one coverage.  CMS Br. at 58.  CMS also points to a failure to timely report the abuse allegations against Resident 4 to the state agency in violation of the regulations and its own abuse policy.  CMS Br. at 58.  Petitioner generally states that there is no evidence as to “the other identified criteria,” again, I assume, referring to this factor.  P. Br. at 17. 

Petitioner is highly culpable.  Petitioner did not act with the seriousness Resident 1’s sexual abuse of Resident 2 deserved by ensuring that staff adequately supervised Resident 1 to prevent future abuse.  Although Petitioner acknowledged that Resident 1 was likely to sexually abuse a resident again, it did not take immediate and effective measures to determine how to control Resident 1’s sexually inappropriate behavior.  Further, despite Petitioner’s awareness of Resident 4’s long history of sexual harassment of others, Petitioner did not coordinate care with Resident 4’s outside psychiatric care provider or implement interventions to address Resident 4’s behavior and prevent him from continuing to abuse residents.  Petitioner also did not timely report abuse allegations against Resident 4 to the state agency.  Petitioner’s failure to prevent and report abuse placed vulnerable residents at risk for abuse and demonstrates neglect and disregard for resident safety. 

Petitioner’s noncompliance with other participation requirements also showed neglect, indifference, and disregard for resident care, comfort, and safety.  Petitioner did not ensure that non-English speaking residents could communicate their care needs and left medications unsecured and accessible to residents.  Petitioner did not consistently evaluate Resident 12’s pain level before and after administering opioids to determine necessity and effectiveness of the medications, assess Resident 12’s sedation level to prevent respiratory depression or an overdose, or utilize non-pharmaceutical interventions to manage her pain.  Additionally, Petitioner’s QAPI committee did not maintain records in accordance with facility policy and did not develop and implement appropriate plans of action to correct two quality of care issues at the facility.  This factor strongly supports the CMP imposed in this case. 

Financial Condition of the Facility:  As CMS indicates (CMS Br. at 59), Petitioner did not assert its financial condition justifies a reduction of the CMP amount.  Therefore, this is not a factor requiring further consideration. 

CMP Amount:  As indicated by the review of factors above, an $8,935 three‑day CMP from July 29 through July 31, 2019, and a $415 per‑day CMP for 98 days from August 1 through November 6, 2019, is well-supported.  The $8,935 immediate jeopardy per-day CMP and the $415 non-immediate jeopardy per-day CMP are both at the low end of the

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enumerated CMP ranges.  Therefore, based on the factors above and in consideration of the amounts imposed, the CMPs imposed are supported by the record. 

Duration of CMP

Petitioner complains that the state agency delayed in issuing the SOD and accepting the Plan of Correction resulting in a higher total CMP based on the per-day CMPs imposed.  P. Br. at 17.  Petitioner argues that the total of $67,475 in penalties is exorbitant given CMS did not show actual harm.  P. Br. at 17. 

CMS construes these arguments as Petitioner asserting that it returned to substantial compliance at an earlier date than found by CMS.  CMS Br. at 60.  CMS indicates that Petitioner’s argument is unfounded because Petitioner did not meet its burden of showing that it returned to substantial compliance earlier than the date found by CMS.  CMS Br. at 60. 

As CMS stated, Petitioner has not attempted to prove that it returned to substantial compliance at an earlier date.  Owensboro Place & Rehab. Ctr., DAB No. 2397 at 12 (2011).  Additionally, Petitioner’s concern that CMS did not establish actual harm is not relevant.  A finding of immediate jeopardy does not require actual harm to a resident, only that the facility’s noncompliance was likely to cause serious injury, harm, impairment, or death.  Lakeport Skilled Nursing Ctr., DAB No. 2435 at 8 (2012).  Here, Petitioner’s failure to properly supervise Resident 1 was likely to result in further harm to Resident 2 or other residents. 

Finally, I can only consider the per-day amount and the duration of the CMP, not the total amount of the CMP.  As discussed above, both the $8,935 immediate jeopardy per-day CMP and the $415 non-immediate jeopardy per-day CMP amounts are at the low end of the CMP amounts that could have been imposed.  They are certainly not inappropriate under the factors.  Therefore, I uphold the duration of the CMP. 

V.    Conclusion

Petitioner was not in substantial compliance with the following deficiencies:  42 C.F.R. § 483.12(a)(1); 42 C.F.R. § 483.35(a)(1), (2); 42 C.F.R. § 483.70; 42 C.F.R. § 483.75(g)(2)(ii); 42 C.F.R. § 483.75(g)(1)(i)-(iii), (2)(i); 42 C.F.R. § 483.25(k); 42 C.F.R. § 483.10(a)(1), (2), (b)(1), (2); 42 C.F.R. § 483.12(c)(1), (4); 42 C.F.R. § 483.45(g), (h)(1), (2); and 42 C.F.R. § 483.70(h)(1), (2).  Further, Petitioner’s

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noncompliance with 42 C.F.R. § 483.12(a)(1) immediately jeopardized the health and safety of Petitioner’s residents.  Petitioner was in substantial compliance with 42 C.F.R. § 483.21(b)(2)(i)-(iii) and 42 C.F.R. § 483.70(d)(1), (2).  Finally, the $8,935 per-day CMP from July 29 through July 31, 2019, and $415 per-day CMP from August 1, 2019 through November 6, 2019, for a total CMP of $67,475, is an appropriate penalty. 

---

Endnotes

¹  “It is the duty and responsibility of the Secretary to assure that requirements which govern the provision of care in skilled nursing facilities . . . are adequate to protect the health, safety, welfare, and rights of residents and to promote the effective and efficient use of public monies.”  42 U.S.C. § 1395i-3(f)(1). 

²  All citations to the Code of Federal Regulations are to the version in effect at the time of the survey unless otherwise indicated. 

³  There are separate transcripts for each day of the hearing.  Each transcript is separately paginated.  Therefore, when citing these transcripts, I will refer to the transcript for December 6, 2021, as “Tr. I at [page number]” and to the transcript for December 7, 2021 as “Tr. II at [page number].” 

⁴  I only address the arguments raised in Petitioner’s post-hearing brief.  Petitioner did not comply with my requirement, stated at the hearing (Tr. II at 35-36) and in my January 14, 2022 Order, that the parties’ post-hearing briefs were not to cross-reference their pre-hearing briefs.  See P. Br. at 2.  I note that Petitioner’s post-hearing brief was only 18 pages.  Therefore, with a post-hearing brief page limit of 50 pages, Petitioner could have copied and pasted all relevant sections from its pre-hearing brief (only 25 pages) into the post-hearing brief. 

⁵  Petitioner sometimes argues that CMS failed to make a prima facie case for the immediate jeopardy determination.  This conflates the requirement that CMS supply prima facie evidence of Petitioner’s alleged noncompliance with Medicare requirements for SNFs (Hillman Rehab. Ctr., DAB No. 1611 at 8 (1997); see Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004); Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004), aff’d, Batavia Nursing & Convalescent Ctr. v. Thompson,129 F. App’x 181 (6th Cir. 2005); Emerald Oaks, DAB No. 1800 (2001)) with the requirement that Petitioner show that CMS’s immediate jeopardy determination is clearly erroneous. 42 C.F.R. § 498.60(c)(2). 

⁶  As discussed in the next Finding of Fact/Conclusion of Law, Petitioner withdrew its appeal of 42 C.F.R. § 483.12(c)(1), (4), related to its failure to properly report the abuse allegations against Resident 4.