Trinity Hill Care Center, LLC, DAB CR6391 (2023)

DECISION

Petitioner, Trinity Hill Care Center, LLC is a skilled nursing facility located in Hartford, Connecticut, that participates in the Medicare Program.  On September 15, 2021, it was notified by the Centers for Medicare & Medicaid Services (CMS) that it was found out of compliance with participation requirements following a survey completed on September 23, 2020.  CMS Exhibit (Ex.) 2.  The facility was cited at federal tag F600 at a scope and severity level “G”, actual harm, for noncompliance with 42 C.F.R. § 483.12(a)(1) (Free from Abuse and Neglect).¹  A Civil Money Penalty (CMP) of $1,190.00 per‑day for five days beginning on September 19, 2020, and continuing through September 23, 2020, for a total of $5,950.00, was imposed.  Petitioner filed a timely request for hearing on November 15, 2021.

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On November 17, 2021, Judge Leslie A. Weyn issued a Standing Prehearing Order for Medicare Health, Safety, and Quality Standards Cases (Order), setting forth pre-hearing procedures.²  Included in that Order was the directive to each party to include in its prehearing exchange any objection it had to any of the proposed exhibits or witnesses of the opposing party and to affirmatively request cross-examination of any proposed witnesses.  Order at 5-6.  The Order also stated that an in-person hearing would be necessary only if the opposing party requested an opportunity to cross-examine a proposed witness.  Id. at 6.

Pursuant to the Order, CMS filed CMS Pre-Hearing Brief and Motion for Summary Judgment with Incorporated Memorandum of Law in Support of Motion for Summary Judgment (CMS PH Br.) and 10 proposed exhibits.  Petitioner filed Petitioner’s Pre‑Hearing Exchange with Incorporated Memorandum of Law in Opposition to CMS’s Motion for Summary Judgment (P. PH Br.) and 6 proposed exhibits.  Neither party filed an objection to the other party’s proposed exhibits.  As a result, CMS Exhibits (Exs.) 1 through 10 and P. Exs. 1 through 6 are admitted into the record.

Although, as discussed below, there are no disputed facts in this case, I do not find it necessary to adjudicate this case using the criteria for summary judgment.  Petitioner has not offered any witnesses and has not requested to cross-examine the witness of CMS.  As a result, a hearing for the purpose of cross-examination is not necessary.  Order at 6.  As an in-person hearing to cross-examine witnesses is not required, it is unnecessary to further address CMS’s motion for summary judgment and I proceed by issuing a decision based on the written record.

I.     BACKGROUND

The Social Security Act (Act) sets forth requirements for nursing facility participation in the Medicare program and authorizes the Secretary of Health and Human Services to promulgate regulations implementing those statutory provisions.  Act § 1819.  The Secretary’s regulations are found at 42 C.F.R. Part 483.  The Secretary contracts with state survey agencies to conduct periodic surveys to determine whether skilled nursing facilities are in substantial compliance.  Act § 1864(a); 42 C.F.R. §§ 488.10, 488.20.  The regulations require surveying each facility an average of every 12 months, and more often if necessary, to ensure that identified deficiencies are corrected.  Act § 1819(g)(2)(A); 42 C.F.R. §§ 488.20(a), 488.308.

To participate in the Medicare program, a nursing facility must maintain substantial compliance with program requirements.  To be in substantial compliance, a facility’s deficiencies may pose no greater risk to resident health and safety than the “potential for

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causing minimal harm.”  42 C.F.R. § 488.301.  42 C.F.R. § 483.12 provides that a resident has the right to be free from abuse, neglect, misappropriation of resident property, and exploitation.  The facility must not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion, pursuant to the provisions of 42 C.F.R. § 483.12(a)(1).

II.     ISSUES

The issues to be resolved are:

• Whether the facility was in substantial compliance with 42 C.F.R. § 483.12(a)(1); and
• If the facility was not in substantial compliance, is the penalty imposed of $1,190.00 per‑day for five days, for a total of $5,950.00, reasonable? 

III.     DISCUSSION

1.    The evidence establishes that the facility was not in substantial compliance with 42 C.F.R. § 483.12(a)(1) because it failed to protect residents from abuse.³

The facts in this case are not in dispute.  Resident # 2 (R2) was a 70-year-old woman who was initially admitted to Petitioner’s facility in April 2009 for diagnoses which included schizoaffective disorder, bipolar type, mild cognitive impairment, bipolar disorder, anxiety disorder, metabolic encephalopathy, paraplegia, osteoarthritis, and asthma.  CMS Ex. 7 at 28.  On July 29, 2020, she received a Brief Interview for Mental Status (BIMS) score of 3/15, with disorganized thinking, inattention, and delusions noted.  Id. at 37, 38, and 41.  Beginning on March 14, 2017, R2’s Resident Care Plan documented she exhibited an altered thought process; she was reported to have conversations with people who were not there and often accused others of taking her money, although no one had done so.  Id. at 8.  She had a conservator of person/guardian appointed.  Id. at 4, 27.

Resident # 1 (R1) was admitted to Petitioner’s facility on June 15, 2018, with diagnoses that included type 2 diabetes, cannabis abuse, dementia without behavioral disorder, mental disorder - NOS, and human immunodeficiency virus (HIV) disease.  CMS Ex. 6 at 7.  His Resident Care Plan (care plan) dated June 18, 2018, included the problem of alteration in mood state and behavior secondary to schizophrenia and psychosis.  Id.  A conservator of person and estate was appointed for him due to his poor judgment.  Id. at 2.  On October 8, 2018, the care plan indicated he was involved in a consensual romantic relationship with a peer.  Id. at 4.  On February 28, 2019, he was noted to sometimes flirt

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with peers and staff.  Id.  The care plan identified a goal of not pursuing more verbal flirtation if the flirtation was rejected.  Id.  On September 1, 2020, the care plan included the problem of wanting to engage in consensual intimate activity with a peer.  Id. at 3.  The conservator was aware and supportive as long as R1 had sexual education and condoms.  Id.  The care plan goal was that if there are sexual encounters they will be consensual.  Id.

On September 19, 2020, at 7:02 PM, an LPN entered R2’s room to administer medications.  CMS Ex. 8 at 6.  After calling her name to notify her that she was entering, the LPN observed R1 standing at R2’s bedside with his penis in her mouth.  Id.  R1 was told to leave immediately, which he did.  Id.  R2 reportedly displayed no sign of distress or facial grimacing, and nodded her head with a smile when asked if she was okay.  Id.

R2 was sent to the Hartford Hospital Emergency Room (ER) for a sexual assault examination.  CMS Ex. 8 at 1.  However, it was determined there that she was unable to consent for herself and the conservator could not be reached so no sexual assault examination could be performed.  Id.  Because R1 was HIV positive, consideration for prophylaxis was advised.  Id.

The facility conducted an investigation of the allegation of resident-to-resident abuse (sexual).  The immediate intervention recommended that R1 be placed on 1:1 supervision.  CMS Ex. 5 at 1-5.  The facility completed a “Resident Sexuality Evaluation Checklist” on September 21, 2020, for R1.  Id. at 9.  The checklist indicated that R1 could willfully consent to sexual activity.  Id.  However, it noted that the intended activity would place R2 at risk of harm because R2 could not fully consent.  Id.  The checklist documented that R2 did not want a consensual relationship with R1 and that R2 could not fully consent.  Id.  R1 needed 1:1 supervision to prevent nonconsensual sexual activity, and Petitioner changed R1’s room to the HIV unit.  Id.  The “Resident Sexuality Evaluation Checklist” was also completed for R2 on September 21, 2020.  CMS Ex. 7 at 26.  This assessment again indicated that R2 did not have the capacity to give willful consent to sexual activity, which placed her and others at risk of harm because of the consent issues.  Id.  Her conservator was also opposed to relationships with peers, according to this evaluation.  Id.

Based on the above evidence, CMS found that Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(a)(1) because its staff failed to prevent foreseeable sexual abuse of R2.

Petitioner argues initially that the sexual encounter between R1 and R2 was “a consensual activity that was voluntarily initiated by Resident # 2” and R2 “had capacity to consent to the sexual activity with Resident # 1 at the time of the incident.”  P. PH Br. at 5-6.  It cites as support for this position two statements from R1, including a rather colorful detailed description of the encounter, in which he indicated that R2 had initiated

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the encounter.  CMS Ex. 1 at 7; P. Ex. 5 at 1.  Petitioner also cites a note by the Director of Social Work dated September 21, 2020 indicating that “per him”, R1 had “exposed himself to [R2] . . . by her request and she then licked him.”  CMS Ex. 5 at 6.

It is possible that R2 initiated the encounter on September 19, 2020, but, even assuming that was the case, this does not provide any support for a conclusion that she was capable of consenting to the sexual activity.  The CMS Definition & Interpretative Guidelines for Sexual Abuse:  November 2017, submitted by Petitioner, makes clear that sexual contact is nonconsensual even if the resident “[a]ppears to want the contact to occur, but lacks the cognitive ability to consent.”  P. Ex. 1 at 1.  So, the relative inquiry here is not whether R2 initiated the encounter but whether she had the capacity to consent to it.

As further evidence of consent by R2, Petitioner cites the observations of the Charge Nurse who witnessed the incident and then stayed with her and “continued to ask her if she was okay.”  P. PH Br. at 6.  The charge nurse reported that R2 “continued smiling”, nodded that she was okay, did not communicate any distress regarding the incident and did not appear confused or give any indication that she did not understand what happened.  P. PH Br. at 6; see also CMS Ex. 8 at 6.

Similarly, Petitioner cites a psychiatrist’s evaluation of R2 on September 20, 2020, in which R2 was reported to have indicated the incident was consensual and not forced and the event “was processed with her extensively.”  P. PH Br. at 6.  The psychiatrist indicated that during her assessment, R2 did not appear to be significantly cognitively impaired, was not “disorganized in thought process,” presented as “calm and pleasant,” and reported that she felt safe at Petitioner’s facility.  P. PH Br. at 7 (citing P. Ex. 3 at 2).

Both the Charge Nurse and the psychiatrist note their observations that R2 did not appear to be upset about the incident, which Petitioner cites for the proposition that R2 consented to the sexual contact.  Again, however, this approach misses the ultimate question, which is whether R2 was capable of consenting.  Her reaction to the incident does not bear on her ability to consent.  Neither the Charge Nurse nor the psychiatrist provide any opinion as to R2’s capacity to consent.  The psychiatrist does note that R2 did not appear to be cognitively impaired, was not disorganized in thought processing and was alert and oriented.  He also stated, however, that her insight and judgment were impaired.  CMS Ex. 8 at 4.

In determining the significance of the observations of the psychiatrist and the Charge Nurse with respect to the issue of whether R2 was capable of consenting to sexual activity, it is necessary to consider the remainder of the record with respect to R2’s capacity.  As discussed above, R2 had a history of bipolar disorder, anxiety disorder, mild cognitive impairment, and she had delusions.  CMS Ex. 7 at 10.  She had conversations with people who were not present and a conservator was appointed for her.  Id. at 7-8, 27.  On August 12, 2020, R2 was reported to be “confused and repetitious” in an interview

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with hallucinations noted.  CMS Ex. 8 at 17.  When seen for a psychiatric assessment on September 15, 2020, four days before the incident in question, she exhibited increased agitation with aggression toward staff, restlessness, and non-sensical speech.  Id. at 15.  On September 21, 2020, one day after the psychiatric examination cited by Petitioner, R2 had no recollection of the incident, was disorganized in thought process, and talked about living in a mansion with a little boy.  Id. at 18.  On the same date, she reported to a social worker that she didn’t remember the incident and believed she was at Harvard and had just changed dorm rooms.  Id. at 26.  R2 reported she liked her new dorm room, did not recall any boys from the weekend, thought the social worker was her cousin, and pointed out the window to show other places on campus where she had lived.  Id.

R2 was seen for a comprehensive assessment on September 22, 2020, at which time memory loss, confusion, and disorientation were observed and the examining physician indicated a range of systems was unobtainable due to dementia.  CMS Ex. 7 at 5-6.  Vascular dementia with behavioral disturbance was diagnosed.  Id. at 5-6.  When evaluated on September 23, 2020, she did not remember the incident, was confused, did not remember the name of the facility or the date, and was agitated and restless.  CMS Ex. 8 at 13.

Other records contain similar observations and conclusions.  When seen at Hartford Hospital ER on September 20, 2020, the day of the incident, that facility was unable to perform a sexual assault examination because R2 was “unable to consent for herself” and her conservator could not be reached.  CMS Ex. 8 at 1.  In the Resident Sexuality Evaluation Checklist completed by the facility, R2 was reported to not have the capacity to give willful consent to sexual activity and she was at risk of harm because of this consent issue.⁴ CMS Ex. 7 at 26.  That same report indicated that the conservator did not support a relationship with a peer.  Id.

Given these records, the psychiatric examination on September 20, 2020 and the observations of the Charge Nurse are not terribly probative on the issue of whether R2 was capable of consenting to sexual activity.  The evidence of ongoing confusion, disorganized thinking, and delusions does strongly support a conclusion that R2 was not capable of consenting to sexual activity.  The CMS guidance submitted by Petitioner indicates that “[c]apacity on its most basic level means that a resident has the ability to

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understand potential consequences and choose a course of action for a given situation.”  P. Ex. 1 at 2.  It is difficult to imagine an argument that an individual who believes that she is at Harvard and merely changed dorm rooms was capable of understanding potential consequences and then giving valid consent to sexual activity.  Rather, the numerous findings cited above do not suggest a person who is capable of understanding consequences or choosing a course of action.⁵

Petitioner argues that several Departmental Appeals Board (Board) decisions support its argument that a “resident does not have to be free of all mental impairments to have capacity to participate in and consent to sexual activity.”  P. PH Br. at 6 (citing Amboy Care Ctr., DAB CR1411 (2006); Meadville Convalescent Home, DAB CR1434 (2006)).  It must be first noted that the decisions cited are not decisions of the Board.  Rather, they are Administrative Law Judge (ALJ) decisions, which do not carry precedential weight and are not binding on the Board or other ALJs.  Lopatcong Ctr., DAB No. 2443 at 12 (2012); Universal Health Care – King, DAB No. 2383 at 9 (2011); Green Oaks Health & Rehab. Ctr., DAB No. 2567 at 9 (2014) (and cases cited therein).  Moreover, the cited ALJ decisions merely indicate that, in those particular cases, the individual involved did have the capacity to consent, despite some degree of mental impairment.  Those particular factual scenarios have no bearing on the facts in this case.

As noted above, the question in this case is whether R2 had the capacity to consent to sexual contact with R1 on September 19, 2020.  The weight of the record establishes that she did not.

Petitioner next argues that even if R2 did not consent to the sexual encounter with R1, a violation of section 483.12(a)(1) can only be found if the facility failed to prevent resident-to-resident abuse that was foreseeable.  P. PH Br. at 9.  It asserts that the DAB has held that in “determining whether a facility failed to protect a resident’s right to be free from abuse when another resident behaved harmfully depends on whether the facility staff had a basis to be aware that such behavior might occur and yet left the resident vulnerable to it.”  Id. (citing The Bridge at Rockwood, DAB No. 2954 at 24 (2019)) (internal citations omitted; emphasis added).

Petitioner is correct that to find the facility culpable, the possibility of sexual abuse by one resident on another must be foreseeable.  It asserts that it was not foreseeable that R2 would initiate a sexual encounter with R1 “based on her history of no sexual encounters at a Facility where she lived for over 10 years.”  P. PH Br. at 11.  This position distorts the facts of this case.

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The scene set by Petitioner is that R2 wanted a sexual experience with R1 and somehow contacted him to come into her room for a consensual sexual encounter.  The facts reflect a very different scenario.  CMS Ex. 7 at 5-6.  R2 was a morbidly obese person with a BMI of 41.60, and resulting mobility issues requiring the use of a wheelchair.  Id. at 5-6.  She needed assistance with care due to the obesity and paraplegia.  Id. at 18.  She was in a secured unit because of her diagnoses of bipolar disorder, anxiety disorder, major depressive disorder, delusions, and mild cognitive impairment.  Id. at 10.  She preferred to eat in her room and spent most of her time in her room.  Id. at 8, 16.⁶  R2’s Intimacy Resident Care Plan identified a problem as “[a]t times I express the desire to have intimacy with my peers.  Id. at 4.  I sometimes flirt and call men into my room.  I have a [history] of flirtatious behavior with men including speaking to them in a sexual manner.”  Id.  The specified interventions included education on boundaries and collaboration with her conservator about her behaviors and desires.  Id.  Although this problem was not entered into the plan of care until September 24, 2020, it refers to a “history” of flirtatious behavior, indicating the facility had prior knowledge of it.  Id.

The facility also had prior knowledge of the behaviors of R1.  A conservator of person and estate was appointed for him after a psychiatric evaluation indicated poor judgment.  CMS Ex. 6 at 2.  R1 had been involved in a consensual romantic relationship with a peer in the past and had a reported problem of sometimes flirting with peers and staff since February 28, 2019.  Id.  Interventions included an explanation from a social worker that if verbalizations were unwanted, they had to stop, suggesting this had been an issue in the past.  Id. at 4.  On September 1, 2020, R1 expressed a desire to engage in consensual intimate activity with another peer.  Id. at 3.  Interventions for that problem included notifying staff if he intended to be intimate so that the conservator could be contacted, private space could be arranged and protection would be discussed.  Id.

What the facility knew then was that R1, an HIV+ male, expressed ongoing interest in sexual contacts with peers and, despite being directed to notify staff if he intended to be intimate, was allowed to wander onto R2’s secured unit, where the facility was aware of her history of flirting with men and calling them into her room.  While Petitioner states that it was not foreseeable that R2 would initiate a sexual encounter with R1 (P. PH Br. at 11), R2’s plan of care included the problem of a history of flirtatious behavior with men and calling them into her room.  CMS Ex. 7 at 4.  The plan of care included the intervention of collaborating with her conservator regarding this history, not leaving her open to a visit from R1.  Thus, it was entirely foreseeable that R1 would enter R2’s room for a sexual encounter to which she could not consent.  After carefully considering the entire record, I find that the weight of the evidence establishes there was a basis for Petitioner to foresee the potential of R1 sexually abusing R2 and a failure to protect

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against that.  As a result, the facility was not in substantial compliance with 42 C.F.R. § 483.12(a)(1) because it failed to protect R2 from abuse.

2.    The evidence establishes that the penalty imposed is reasonable.

Petitioner argues that because no actual harm occurred, the scope and severity level of the penalty should be reduced.  RH at 8.  However, under the provisions of 42 C.F.R. § 498.3(b)(14), a scope and severity determination by CMS is reviewable only if a successful challenge on this issue would affect the range of CMP amounts CMS could collect or if would result in the loss of approval for a nurse aide training program.⁷  In this case, the $1,190.00 per‑day CMP is already in the lower range of the two CMP ranges so a successful challenge would not affect the range of the CMP.  85 Fed. Reg. 2869, 2880 (Jan. 17, 2020).  There is no evidence of the loss of approval of a nurse aide training program here.  As a result, I have no jurisdiction to review the scope and severity of the level of noncompliance found by CMS.

As noted above, CMS imposed an $1,190.00 per-day CMP for the five days from September 19, 2020 through September 23, 2020, for a total of $5,950.00.  CMS Ex. 2 at 2.  In the Request for Hearing, Petitioner requested that the amount of the CMP be reduced.  RH at 9.  However, it has not presented any argument on the issue of the reasonableness of the penalty imposed nor has it presented any specific argument addressing the factors cited in the regulation for assessing the reasonableness of the CMP.  Petitioner failed to argue that any of the factors support a reduction of the CMP amount.  Because of the presumption that CMS has considered the regulatory factors in setting the amount of the CMP and that those factors support the CMP amount imposed by CMS, unless a facility contends that a particular regulatory factor does not support the civil money penalty amount, an ALJ must sustain it.  Coquina Ctr., DAB No. 1860 at 32 (2002).  On that basis, I conclude that the CMP amount is reasonable.

CONCLUSION

I find that the facility was not in substantial compliance with 42 C.F.R. § 483.12(a)(1).  The per instance penalty imposed of $5,950.00 is reasonable.

Endnotes

¹  The facility was also found to be out of compliance with other regulatory provisions.  CMS Ex. 2 at 1.  However, Petitioner is only appealing the imposition of the CMP for federal tag F600.  Request for Hearing (RH) at 1.  As a result, this decision will only address the appeal of that determination.

²  This case was originally assigned to Judge Weyn, but was reassigned to me on September 28, 2023.

³  My findings of fact and conclusions of law are set forth in bold and italic text in the discussion captions of this decision.

⁴  Petitioner seriously misstates the conclusions in this report.  Petitioner indicates in its brief that “this checklist only documents the resident’s lack of interest in a relationship with Resident # 1 and does not contradict or refute other evidence that she initiated and voluntarily participated in sexual activity with Resident #1.”  P. PH Br. at 5.  It is referring to the checklist completed for R1, which refers to R2 not wanting a consensual relationship but which also indicated that R2 “cannot fully consent.”  CMS Ex. 5 at 9.  The checklist completed by the facility for R2 makes it quite clear that she did not have the capacity to consent to sexual activity.  CMS Ex. 7 at 26.

⁵  This is further complicated by the fact that R1 was HIV+, creating another issue that R2 would have had to consider in deciding whether to consent to sexual contact with him.

⁶  These facts should put to rest any implication that R2 was cruising up and down the halls looking for sexual partners.

⁷  Given this regulatory provision, it is not necessary to address the apparent argument from Petitioner that allowing R2 to be subjected to non-consensual sexual activity did not result in any actual harm.