Legacy Heights Nursing and Rehab, LLC, CR6415 (2024)

DECISION

Petitioner, Legacy Heights Nursing and Rehab, LLC (Legacy or facility), is a skilled nursing facility (SNF) located in Russellville, Arkansas, that participates in the Medicare program.  On November 2, 2022, 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 29, 2022.  CMS Exhibit (Ex.) 2.  The facility was cited at federal tags F-609 and F-610 at a scope and severity level “J”, for noncompliance with 42 C.F.R. 483.12(c)(1), (4) and (c)(2)-(4) (Reporting of Alleged Violations and Investigate/Prevent/Correct Alleged Violations).  A per instance Civil Money Penalty (CMP) of $11,455 was imposed.¹  Petitioner filed a timely request for hearing (RFH) on December 30, 2022. 

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On January 3, 2023, Administrative Law Judge (ALJ) 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.  

Pursuant to the Order, CMS filed a Motion for Summary Judgment or Prehearing Brief (CMS PH Br.), 10 proposed exhibits, and one proposed witness.  Petitioner filed a Pre-Hearing Brief in opposition to CMS’s Motion for Summary Judgment and Cross-Motion for Summary Judgment (P. PH Br.), 19 proposed exhibits, and six proposed witnesses. CMS then filed a response to Petitioner’s Cross-Motion for Summary Judgment.  Neither party filed an objection to the other party’s proposed exhibits.  As a result, CMS Exs.  1 through 10 and P. Exs. 1 through 19 are admitted into the record.  

After carefully considering this record, I grant CMS’s motion for summary judgment and concurrently deny Petitioner’s cross-motion for summary judgment.  As discussed below, the undisputed evidence establishes that the facility was not in substantial compliance with Medicare program requirements and that the penalty imposed is reasonable.  

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 (the Secretary) 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 SNFs 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 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.  

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

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

II.    Issue

As a threshold matter, I consider whether summary judgment is appropriate. 

On the merits, the issues are: 

1. Whether the facility was in substantial compliance with 42 C.F.R. § 483.12(c)(1), (4);
2. If the facility was not in substantial compliance, is the per instance penalty imposed of $11,455 reasonable. 

It is also necessary to identify the issues that are not before me.  Legacy raises a number of arguments related to its right to administrative review of certain determinations by CMS.  In its brief, Legacy “challenges the factual accuracy and the legal propriety of the deficiency that formed the basis for CMS’s findings of noncompliance, “immediate jeopardy,” and submits that no resident was placed at risk of immediate jeopardy to resident health or safety.  Petitioner further challenges all sanctions related to these findings and conclusions, including the per instance CMP.”  P. PH Br. at 11.  It asserts as “unreasonable” CMS’s interpretation of the regulations governing the right to administrative review of certain CMS determinations and raises due process concerns.  Id. at 22-23.  Each of these arguments is considered separately. 

Petitioner asserts it has a right to administrative review of CMS’s finding of noncompliance under Tag F-610, which relates to Investigate/Prevent/Correct Alleged Violations under 42 C.F.R. § 483.12(c)(2)-(4).  P. PH Br. at 22.  However, the CMP imposed by CMS was based on only the alleged violations under Tag F-609, which is related to Reporting of Alleged Violations under 42 C.F.R. § 483.12(c)(1), (4).  CMS Ex.

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3 at 1.  Because CMS imposed no penalties for the deficiency cited under 42 C.F.R. § 483.12(c)(2)-(4), Tag F-610, the issue of the facility’s compliance with that requirement is not before me for adjudication. 

There is a right to a hearing on an issue only when there has been an adverse “initial determination.”  As the Departmental Appeals Board (Board) has consistently held, “Section 498.3 of the regulations provides that a facility is entitled to an ALJ hearing where CMS has made an adverse ‘initial determination’ of a kind specified in 42 C.F.R. § 498.3(b).”  Columbus Park Nursing & Rehab. Ctr., DAB No. 2316 at 6 (2010) (citing 42 C.F.R. 498.3(a)(1)), appeal dismissed, 940 F.Supp.2d 805 (N.D. Ill. 2013); see also Great Lakes HealthCare, LLC, DAB No. 2777 at 8 (2017) (“Section 498.3(b) establishes the administrative actions – initial determinations – for which the right to an ALJ hearing (and Board review) exists.”).  Section 498.3(b)(13) defines “initial determinations” with respect to skilled nursing facilities to include “the finding of noncompliance leading to the imposition of enforcement actions specified in § 488.406 . . . .”  Section 488.406 authorizes CMS to impose enforcement remedies, such as CMPs, based on a facility’s noncompliance.  42 C.F.R. § 488.402(b).  Section 488.408(g)(1) provides that a facility may “appeal a certification of noncompliance leading to an enforcement remedy.”  “Thus, consistent with section 498.3(b), section 488.408 provides that a facility has a right to an ALJ hearing where a certification of noncompliance has led to one or more of the enforcement remedies specified at section 488.406(a).”  Columbus Park, DAB No. 2316 at 6. 

The Board has long held that “a [facility] has no right to an ALJ hearing to contest survey deficiency findings where CMS has not imposed any of the remedies specified at section 488.406 based on those findings . . . .”  Columbus Park, DAB No. 2316 at 7.  Since Legacy is challenging a determination by CMS that does not meet the definition of an “initial determination,” as set forth in § 488.3, it does not have a right to a hearing on that determination.  While Petitioner characterizes this as “unreasonable” and “unconstitutional,” I have no authority to disregard validly promulgated regulations, much less declare them unconstitutional.³  RFH at 19. 

Petitioner also argues that it has a right to administrative review of CMS’s determination of immediate jeopardy.  It asserts its “legal right to dispute an immediate jeopardy finding along with the CMPs which [CMS] imposed for this survey.”  P. PH Br. at 23.  As indicated above, I am bound to follow the governing regulations which, in this case, provide me with no authority to review CMS’s immediate jeopardy determination.  An ALJ may review CMS’s scope and severity findings, which include a finding of immediate jeopardy, only if a successful challenge would affect the range of the CMP

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assessed or CMS has made a finding of substandard quality of care that results in the loss of approval of a facility’s nurse aide training program.  42 C.F.R. § 498.3(b)(14), (d)(10); see Evergreen Commons, DAB No. 2175 (2008); Aase Haugen Homes, Inc., DAB No. 2013 (2006); Logan Healthcare Leasing, LLC d/b/a Logan Care & Rehab., DAB No. 3036 (2021).  As noted above, the penalty imposed here is a per instance CMP, for which the regulations provide only one range.  42 C.F.R. § 488.438(a)(2); 45 C.F.R. § 102.3 .  This is in contrast to a per day CMP, which, by regulation, consists of two ranges of penalties, an upper range and a lower range.  42 C.F.R. § 488.438(a)(1).  Because CMS imposed a per instance CMP, a successful challenge to CMS’s immediate jeopardy finding would not affect the range of the CMP that CMS could collect.  NMS Healthcare of Hagerstown, DAB No. 2603 at 6-7 (2014), appeal dismissed, NMS Healthcare of Hagerstown, LLC v. U.S. Dep’t of Health & Human Servs., 619 F. App’x 225 (4th Cir. 2015).  Nor does CMS’s scope and severity finding affect approval of a nurse aide training program since there is no evidence that Petitioner had a nurse aide training program.  For these reasons, I conclude that I have no authority to review CMS’s finding of immediate jeopardy. 

III.   Discussion

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

The moving party may show the absence of a genuine factual dispute by presenting evidence so one-sided that it must prevail as a matter of law or by showing that the non‑moving party has presented no evidence “sufficient to establish the existence of an element essential to [that party’s] case, and on which [that party] will bear the burden of proof at trial.”  Livingston Care Ctr. v. Dep’t of Health & Human Servs., 388 F.3d 168, 173 (6th Cir. 2004) (quoting Celotex Corp., 477 U.S. at 322).  To avoid summary judgment, the non-moving party must then act affirmatively by tendering evidence of specific facts showing that a dispute exists.  Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 n.11 (1986); see also Vandalia Park, DAB No. 1939 (2004); Lebanon Nursing & Rehab. Ctr., DAB No. 1918 (2004).  The non‑moving party may not simply rely on denials, but must furnish admissible evidence of a dispute concerning a material fact.  Ill. Knights Templar, DAB No. 2274 at 4; Livingston Care Ctr., DAB No. 1871 at 5 (2003).  In doing so, the non‑moving party must show more than “some metaphysical doubt as to the material facts.”  W. Tex. LTC Partners, Inc., d/b/a Cedar Manor, DAB No. 2652 at 6 (2015), aff’d, 843 F.3d 1043 (5th Cir. 2016); 1866ICPayday.com L.L.C., DAB No. 2289 at 3 (2009) (quoting Matsushita Elec. Indus. Co., 475 U.S. at 587). 

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In examining the evidence for purposes of determining the appropriateness of summary judgment, I must draw all reasonable inferences in the light most favorable to the non‑moving party.  Brightview Care Ctr., DAB No. 2132 at 2, 9 (2007); Livingston Care Ctr., 388 F.3d at 172; Guardian Health Care Ctr., DAB No. 1943 at 8 (2004); but see Brightview, DAB No. 2132 at 10 (entry of summary judgment upheld where inferences and views of non-moving party are not reasonable).  However, drawing factual inferences in the light most favorable to the non-moving party does not require that I accept the non‑moving party’s legal conclusions.  W. Tex. LTC Partners, Inc., DAB No. 2652 at 6-7, 14-15; Cf. Guardian, DAB No. 1943 at 11 (“A dispute over the conclusion to be drawn from applying relevant legal criteria to undisputed facts does not preclude summary judgment if the record is sufficiently developed and there is only one reasonable conclusion that can be drawn from those facts.”). 

Here, CMS has come forward with evidence – primarily the facility’s own documents – establishing facts showing that the facility was not in substantial compliance with 42 C.F.R. § 483.12(c)(1), (4).  As discussed below, Petitioner does not dispute the material facts but, instead, offers facts and opinions, which while accepted at face value, do not establish that a dispute concerning a material fact exists. 

A. CMS is entitled to summary judgment because the undisputed evidence establishes that the facility failed to ensure that all alleged violations involving abuse, neglect, exploitation, or mistreatment were reported immediately.  These deficiencies put the facility out of substantial compliance with 42 C.F.R. § 483.12(c)(1), (4).⁴Petitioner’s cross-motion for summary judgment is denied. 

The material facts in this case are not in dispute.  R1 was admitted to the facility on January 8, 2022, with diagnoses that included acute kidney failure, atrial fibrillation, altered mental status, and anxiety disorder.  CMS Ex. 6 at 2.  She was reported to experience hallucinations, delusions, and episodes of confusion.  P. Ex. 8 at 14, 18, 71. Legacy records document a plethora of complaints and accusations from R1.  She accused staff of bringing her food she couldn’t eat, stealing from her, and plotting against her.  Id. at 12, 14, 20, 26, 31, 36, 46, 57, 68, 77, 87.  Progress Notes frequently indicated her reports of seeing young children in her room.  Id. at 69, 70, 75, 78.  

A Progress Note dated September 7, 2022, indicated R1 came out of her room around midnight, saying she wasn’t going to put up with “her” stealing anymore and “the girl” had gotten into her purse and stolen her perfume.  The involved Registered Nurse (RN) saw the bottle and asked R1 if that was her perfume.  She said yes but said “that girl” Trish goes to her house and steals things and has done so for years.  P. Ex. 8 at 87. 

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The following day, in a Progress Note dated September 8, 2022 at 23:43 pm, Licensed Practical Nurse (LPN) # 1 reported that she saw R1 visibly upset in the hallway, accusing a Certified Nursing Assistant (CNA) of being hateful and rude, and talking bad to her.  R1 reportedly stated that all she did was inform the CNA that she smelled smoke and wanted her to check on another resident.  R1 then reportedly indicated that the CNA started talking bad to her but she couldn’t remember what she said.  She stated she thought the CNA was coming at her like a bull and trying to use her size to scare her.  R1 was reassured by LPN # 1 that the CNA would not be coming back into her room and she would personally take care of anything she needed.  CMS Ex. 6 at 49, P. Ex. 8 at 89. 

The facility initiated a “Facility Investigation Report for Resident Abuse, Neglect, Misappropriation of Property, and Exploitation of Residents on Long-Term Care Facilities” on September 8, 2022.  Statements were taken on that date from Kristin Ashley Newell, RN, the Director of Nursing (DON), Patricia Smith, LPN (LPN # 1), CNA Gibson, the involved CNA, and CNA Edwards.  P. Exs. 3, 4, 5, and 6.  

CNA Gibson provided a statement in which she indicated that she answered a call light in R1’s room, who reported she smelled wood burning and wanted her to go next door to check.  The CNA told R1 that her neighbor was asleep.  R1 responded that the CNA was being “smart” and she got out of bed to talk to someone about the CNA’s “mouth.”  At the nurses’ station, R1 stated she wanted to talk to the person in charge but the CNA informed her the nurse was not there but she could wait for her.  R1 pointed at another CNA and insisted she was the one who had stolen her perfume.  CNA Gibson told R1 that the other CNA had not stolen her perfume and R1 then again accused her of “being smart” and wanted to know her name.  She told her it was Gibson with a “B” and not a “P” and asked R1 if she wanted her to write it down.  The CNA stated she walked away when R1 began speaking to her inappropriately and raising her voice.  P. Ex. 3. 

The DON provided a statement as part of the investigation on the day of the incident indicating that she had reviewed camera footage of the incident and observed that CNA Gibson went to R1’s room to answer the call light.  R1 alleged that her next door neighbor was smoking cigarettes in her bathroom and she wanted the CNA to go check.  CNA Gibson told R1 that the other resident was sleeping and was not in the restroom.  R1 followed the CNA to the nurses’ station and asked where the nurse was.  CNA Gibson said she wasn’t sure but R1 could wait there for her.  R1 indicated she would be reporting and asked for the CNA’s name.  The CNA said “Gibson,” R1 said “Gitson,” and CNA Gibson said it was with a “B” and not a “T” and asked R1 if she wanted her to write it down.  The DON stated that during the conversation between R1 and CNA Gibson, the CNA was standing at the desk and R1 was approximately 6 to 9 feet away.  She stated CNA Gibson never walked toward R1 or displayed any threatening behavior.  P. Ex. 6. 

The DON also provided an additional written statement in which she indicated that she viewed video footage from the incident in order to determine whether CNA Gibson

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appeared threatening.  She stated the video indicated the CNA was in the resident’s room for less than 20 seconds.  The CNA walked to the resident’s bed to turn off the call light and then was seen briefly standing by the roommate/husband’s bedside near the door, cleaning his bedside table before exiting the room.  She stated the video showed CNA Gibson leaving R1’s room and R1 following her to the nurses’ station.  Thereafter, R1 asked where the (charge) nurse was.  CNA Gibson stated, “I’m not sure, do you want to wait here for her to come back?”  The resident stated, “I will be reporting…what is your name?”  The CNA said, “Gibson.”  The resident said, “Gitson.”  The CNA indicated that it was spelled with a “B” and not a “T.”  CNA Gibson then asked the resident if she would like her to write it down.  The resident said something that could not be heard.  Soon thereafter, Patricia Smith, LPN, walked back to the nurses’ station and approached the resident in the hallway.  Nurse Smith redirected the resident back to her room.  The DON indicated that during the conversation between the resident and CNA Gibson, CNA Gibson was standing at the desk and the resident was approximately 6 to 9 feet away from her and CNA Gibson never walked toward the resident or displayed any threatening behavior or body language.  P. Ex. 14 at 5-6. 

The facility Administrator provided a written statement in which she indicated that CNA Gibson is approximately 5’10” tall and is of large build.  As part of the investigation, it was believed that R1 was commenting on CNA Gibson’s body size in a derogatory manner when she referred to her as a “bull” and not because she was physically “charged” by the CNA.  She stated there was no evidence on the video footage that CNA Gibson’s body language was threatening or that she stepped towards the resident in an intimidating manner.  She concluded that “the allegations made by R1 on September 8, 2022 were thoroughly investigated at the time the allegation was made and the facility believed it to be unfounded and related to the resident’s confused behaviors.”  P. Ex. 13 at 30-31.  

In response to a Resident/Patient/Client Abuse complaint filed with the Office of Long-Term Care (OLTC), a complaint survey was commenced on September 27, 2022.  CMS Ex. 1 at 21.  As part of that inspection, the surveyor interviewed a sample of residents, including R4.  R4 was asked whether any staff member had ever answered her light and yelled or screamed at her.  R4 responded “yes, one time, but the other nurse told her not to talk to me like that and she kept coming in and apologizing.”  R4 said this happened a few days ago during the night shift and she did report it to the night nurse.  Id. at 21-22. 

The surveyor indicated that she notified the Administrator of R4’s allegation of verbal abuse on September 27, 2022, between 4:00 pm and 4:30 pm.  On September 28, 2022, the Administrator told the surveyor that after speaking with R4’s daughter, they believed that R4 may have been thinking about the last facility she was at, where she was not treated very well.  According to the surveyor, there was no “reportable documented” reported to the OLTC for either R1 or R4.  CMS Ex. 1 at 22. 

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While the surveyor stated that the Administrator said she “didn’t think the allegation of abuse was “reportable,” the Administrator strongly denies making that statement.  P. Ex. 13 at 31.  Given that granting summary judgment to CMS requires that I review the evidence in the light most favorable to Petitioner, I accept as true that the Administrator did not make this statement. 

On October 31, 2022, the Arkansas Department of Human Services, Division of Provider Services and Quality Assurance, notified Legacy that the allegation of suspected adult maltreatment on September 8, 2022, was determined to be unsubstantiated.  P. Ex. 2. 

Petitioner argues that “Nurse Smith investigated the allegation made by R1 and concluded the encounter was related to her ongoing behaviors and her need for redirection.  Based on this evidence, the Facility did not report this incident to the state office as an allegation of abuse.”  P. PH Br. at 17-18.  Petitioner further asserts that the “evidence in this case demonstrates Petitioner appropriately investigated the allegations of abuse regarding R1 and R4.”  P. PH Br. at 24.  

In examining the evidence to determine the appropriateness of granting CMS’s motion for summary judgment, I must draw all reasonable inferences in the light most favorable to Petitioner.  Brightview, DAB No. 2132 at 2, 9.  However, drawing factual inferences in the light most favorable to Petitioner does not require that I draw unreasonable inferences or accept its legal conclusions.  Brightview, DAB No. 2132 at 10; Cedar Lake Nursing Home, DAB No. 2344 at 7 (2010). 

In this case, I have reviewed the evidence in the light most favorable to Petitioner.  I will accept its statements that it did conduct investigations of the abuse allegations made by R1 and R4.  This acceptance, however, does not help Legacy avoid the imposition of summary judgment.  Even drawing all reasonable inferences in the light most favorable to Petitioner, I find that the uncontested facts establish that it failed to immediately report the abuse allegations to the Administrator and the appropriate state officials. 

Although the Administrator denied telling the surveyor that these allegations were not reportable, the significant fact here is that they were not reported.  Petitioner makes no argument that it did report the abuse allegations.  Instead, it argues through the Prefiled Testimony of Rebecca Berry that there was no need to report.  Ms. Berry opined that “[b]ased on the facility’s investigation, the facility had no reason to report an allegation of verbal abuse or to even investigate an allegation of verbal abuse prior to the state surveyor’s report since R4 clearly indicated the event occurred at another healthcare institution” and the “allegation should have been unsubstantiated.”  P. Ex. 11 at 13.  Ms. Berry then opined that Legacy “appropriately investigated R1’s allegation of abuse, found the allegation to be unsubstantiated based on the witnesses’ testimony and R1’s ongoing behavior, and therefore there was no need for the facility to report R1’s allegations to the state officeon September 8, 2022 or thereafter.”  Id. at 14.  

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Consistent with granting CMS’s motion for summary judgment, I have not weighed or evaluated the opinions provided by Ms. Berry.  However, I am not required to accept her legal conclusions regarding the need to report the allegations of abuse.  The governing regulation makes quite clear the responsibilities of the facility in the face of an allegation of abuse.  42 C.F.R. § 483.12(c)(1) and (4) provide that the facility must “ensure that all alleged violations involving abuse . . . are reported immediately, but not later than two hours after the allegation is made” to the facility administrator and appropriate state officials.  The results of all investigations must be reported to the administrator (or designated representative) and to the appropriate state officials within five working days of the incident. 

Contrary to Petitioner’s position, section 483.12(c)(1) specifies that “all alleged violations” must be reported immediately.  It does not say that only substantiated alleged violations must be reported.  It does not say that alleged violations must only be reported after an investigation is conducted.  And, particularly in reference to R1, it does not say that if the individual making the allegations has “ongoing behaviors,” this would eliminate the need to report. 

As part of the complaint survey, the surveyor interviewed a sample of residents on September 27, 2022.  She interviewed R4, who was admitted on August 19, 2022.  P. Ex. 9 at 10.  R4 was asked whether any staff member had ever answered her call light and yelled or screamed at her.  She said yes, one time, but the other nurse told the staff member not to talk to her like that.  R4 said this occurred on a night shift a few days ago and she had reported it to the head nurse.  CMS Ex. 4 at 5.  On September 27, 2022, between 4:00 pm and 4:30 pm, the Administrator was notified by the surveyor of R4’s allegation of verbal abuse by a staff member.  CMS Ex. 1 at 22.  Petitioner does not dispute this notification of abuse.  CMS Ex. 4 at 5.  However, the evidence does not establish, nor does Petitioner contend, that this allegation of abuse was “reported immediately” to the appropriate state officials.  Id.  Legacy’s contentions that the allegations of abuse were the result of a “misunderstanding” and were in reference to a previous facility are not relevant.  P. PH Br. at 20.  The fact that the allegation was subsequently determined to be unsubstantiated is not relevant.  What is relevant is that the facility was notified of an allegation of abuse and did not make the regulatorily required report of this allegation.⁵  It was, thus, in violation of 42 C.F.R. § 483.12(c)(1), (4).  

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An allegation of abuse by a staff member was made by R1 on September 8, 2022, and a formal complaint alleging abuse of R1 was filed with the OLTC on September 14, 2022.  CMS Ex. 4 at 3-4.  The evidence does not establish, nor does Petitioner contend, that this allegation of abuse was “reported immediately” to the Administrator or to the appropriate state officials.  Rather, as indicated above, it takes the position that because it investigated the allegations of R1’s abuse and found them unsubstantiated, “there was no need for the facility to report R1’s allegations concerning CNA Gibson to the state office on September 8, 2022 or thereafter.”  P. PH Br. at 21.  Petitioner, however, has cited no authority for this position, which runs contrary to the governing regulation. 

It is particularly troubling that Petitioner dismissed R1’s allegations, in part, because of her past behaviors.  It argues that “[b]ased on the documentation regarding R1 and her numerous accusations and complaints, Facility staff had to determine on almost a daily basis whether R1’s numerous accusations directed at staff, residents and other individuals were tantamount to an allegation of abuse, neglect or misappropriation of property.”  P. PH Br. at 17.  In essence, it is arguing that facilities should be allowed to decide which allegations of abusive actions toward their residents are worth investigating and reporting so as not to overburden their staff or state authorities.  Such a position creates the risk that a troubled individual, like R1, would not be taken seriously if they alleged abuse because of a history of problem behaviors.  The Board has consistently stated that the regulations expressly demand that “all alleged violations involving mistreatment, neglect or abuse” must be “reported immediately” to both the administration of the facility and to state officials and thoroughly investigated, and the facility “must prevent further potential abuse while the investigation is in progress,” and report its results.  Somerset Nursing & Rehab. Facility, DAB No. 2353 at 8 (2010). 

It is also troubling that Legacy’s actions in this matter were not consistent with its own written policy, titled Abuse, Neglect, Misappropriation, and Exploitation, Investigation and Reporting Policy.  CMS Ex. 9.  That policy statement indicates that all facility personnel “must immediately report all incidents of alleged, witnessed, or suspected resident maltreatment, including abuse . . . to the Administrator or the Administrator’s Designee, who will report events as required by State law or regulation.”  Id. at 3.  

Therefore, after considering the entire record in the light most favorable to Petitioner, I find that the failure to immediately report the abuse alleged by R1 and R4 was a violation of 42 C.F.R. § 483.12(c)(1), (4). 

Legacy argued that there were several deficiencies in the manner in which the survey was conducted, based on the failure of the surveyor to consider all evidence it considered

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relevant.  RFH at 3; P. PH Br. at 10.  Petitioner’s witness also alleged unprofessional behavior on the part of the surveyor.  P. Ex. 11 at 11.  However, the Board has made clear that CMS, not the survey agency, determines whether a facility is in substantial compliance and “determinations of compliance by state agencies are not binding on the ALJ, who is charged with making a de novo determination based on the record before him as to whether the facility was in substantial compliance with the requirements in the federal regulations.”  Ridgecrest Healthcare, DAB No. 2598 at 11 (2014) (citing Grand Oaks Care Ctr., DAB No. 2372 at 15 (2011) (“The authority for deciding substantial compliance lay with the ALJ.”)).  Thus, my decision must be, and is, based on the weight of the record as a whole, notwithstanding any failings on the part of the surveyor.⁶ 

Legacy challenges the DAB’s policy to impose the burden to demonstrate “substantial compliance” on Petitioner as inconsistent with the requirement set forth in the Administrative Procedure Act, 5 U.S.C. § 556(d), that CMS, as the proponent of the order imposing the sanction challenged herein, has the burden to sustain that order.  The facility also challenges the DAB’s informal policy which allocates the burden of proof to Petitioner to the extent that operates to deprive Petitioner of its property without due process of law, permitting the DAB to minimize or disregard Petitioner’s evidence of compliance.  RFH at 19.  In Vandalia Park, DAB No. 1940 (2004), the Board explained its view that in that case the petitioner was the proponent of an order that it was in compliance with Medicare participation requirements.  Therefore, the Board concluded that there was no violation of 5 U.S.C. § 556(d).  The Board also concluded in that case, revisiting the Hillman line of cases, that it was not necessary for the Secretary to engage in rulemaking to promulgate a regulation specifying the allocation of the burden of persuasion.  Vandalia Park, DAB No. 1940 at 13-19.  The Board has consistently addressed its allocation of the burden of proof, which has been upheld by the federal courts.  See e.g., Batavia Nursing & Convalescent Ctr., DAB No. 1904 at 15 (2004), aff’d, Batavia Nursing & Convalescent Ctr., 129 Fed. App’x 181 (6th Cir. 2005). 

The Board has long held that CMS has the burden of coming forward with evidence related to disputed findings that is sufficient (together with any undisputed findings and relevant legal authority) to establish a prima facie case of noncompliance with a regulatory requirement.  It is only after CMS makes this prima facie showing that the SNF must then assume its ultimate burden of persuasion by showing, by a preponderance of the evidence, on the record as a whole, that it was in substantial compliance during the relevant period.  Hillman Rehab. Ctr., DAB No. 1611 (1997), aff’d, Hillman Rehab. Ctr. v. U.S. Dep’t of Health & Human Servs., No. 98-3789 (GEB) (D. N.J. May 13, 1999); Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004), aff’d, Batavia Nursing & Convalescent Ctr. v. Thompson, 143 F.App’x 664 (6th Cir. 2005); Guardian, DAB No. 1943; Fairfax Nursing Home, Inc., DAB No. 1794 (2001), aff’d, Fairfax Nursing Home,

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Inc. v. U.S. Dep’t of Health & Human Servs., 300 F.3d 835 (7th Cir. 2002), cert. denied, 2003 WL 98478 (Jan. 13, 2003). 

In this case, CMS has made a prima facie showing of noncompliance with 42 C.F.R. § 483.12(c)(1), (4) and Legacy has not established, with a preponderance of the evidence, that it was in substantial compliance with these regulatory requirements. 

B. The evidence establishes that the per instance CMP imposed is reasonable.

As noted above, CMS imposed a per instance CMP of $11,455.  CMS Ex. 2 at 1.  In deciding whether the CMP amount imposed by CMS is reasonable, I may consider only the factors specified in 42 C.F.R. § 488.438(f).  42 C.F.R. § 488.438(e)(3); Southpark Meadows Nursing & Rehab. Ctr., DAB No. 2703 at 12 (2016).  Those factors are:  (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.  The absence of culpability is not a mitigating factor.  42 C.F.R. § 488.438(f).  The factors in 42 C.F.R. § 488.404, in turn, 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.  

The Board has further held that “there is a 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.”  Coquina Ctr., DAB No. 1860 at 32 (2002); Brenham Nursing & Rehab. Ctr., DAB No. 2619 at 18 (2015), aff’d, Brenham Nursing & Rehab. Ctr. v. U.S. Dept. of Health & Human Servs., 637 F.App’x 820 (5th Cir. 2016).  “Accordingly, the burden is not on CMS to present evidence bearing on each regulatory factor, but on the SNF to demonstrate, through argument and the submission of evidence addressing the regulatory factors, that a reduction is necessary to make the CMP amount reasonable.”  Oaks of Mid City Nursing & Rehab. Ctr., DAB No. 2375 at 26 (2011); Crawford Healthcare & Rehab., DAB No. 2738 at 19 (2016).  

Legacy challenges the amount and duration of the CMP as inappropriate under the regulatory provisions as provided in the federal regulations.  Legacy also challenges the DAB’s policy cited above that permits CMS to impose CMPs without offering evidence that it considered the regulatory criteria set forth at 42 C.F.R. §§ 488.404 and 488.438(f) as a violation of the Medicare Act and due process of law.  RFH at 19. 

Legacy also argues that the “DAB has noted many times that an ALJ must evaluate whether any proposed CMP actually has a “remedial” purpose.  See, e.g., Emerald Oaks

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v. HCFA,⁷ DAB Dec. No. 1800 (2001), pp. 11, 13, quoting CarePlex of Silver Spring v. HCFA, DAB Dec. No. 1683 (1999), pp. 8, 17-18.”  P. PH Br. at 24.  However, it has seriously misstated the position of the Board in these decisions.  The Board stated in CarePlex that the “assessment of an amount reasonably related to the remedial purpose of the Act as contemplated by the regulations is thus objective and requires HCFA to weigh the factors set out in the statute and regulations.”  CarePlex of Silver Spring, DAB No. 1683 at 4 (1999) (emphasis added).  The Board further added that “the regulations define factors to be considered in addition to the scope and severity of deficiencies to set an amount reasonably calculated to bring about compliance.  42 C.F.R. § 488.438(f).”  Id.  Thus, the ALJ is not required to specifically determine whether the CMP has a remedial purpose and instead must consider only the factors specified in the regulations. 

I would first note that Petitioner does not cite any evidence addressing the above regulatory factors to establish that a reduction is necessary to make the CMP amount reasonable.  Secondly, it does not cite any authority authorizing me to ignore Board precedent on this issue and I am not aware of any such authority.⁸  As noted above, the Board has held that the CMP amount selected by CMS is presumptively reasonable and based on consideration of the regulatory factors listed above and that the burden is on the facility “to demonstrate, through argument and the submission of evidence addressing the regulatory factors, that a reduction [in the penalty amount] is necessary to make the CMP amount reasonable.”  Crawford, DAB No. 2738 at 19.  Given this holding and the absence of any evidence from Petitioner relating to any of the regulatory factors, I find that the penalty imposed in this case is reasonable. 

IV.     Conclusion

I find that the facility was not in substantial compliance with 42 C.F.R. § 483.12(c)(1), (4).  The CMP imposed of $11,455 is reasonable. 

Endnotes

¹  Additional penalties of termination of Petitioner’s Medicare/Medicaid provider agreement and denial of payment for new Medicare and Medicaid admissions were rescinded because the facility achieved substantial compliance before they were effectuated.  CMS Ex. 3 at 1.  

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

³  Petitioner appears to acknowledge this, indicating in the RFH that it “preserves its legal challenge to certain matters that may be beyond the authority of the Departmental Appeals Board to adjudicate.”  RFH at 19. 

⁴  My findings of fact and conclusions of law are set forth in bold and italic text in the discussion captions of this decision. 

⁵  Petitioner again asserts that “[b]ased on the limited interview by the state surveyor, the resident’s confusion regarding the surveyor’s question, and the subsequent statements provided by R4 and her daughter . . .  to the staff at the facility, the allegation made by the state surveyor was unsubstantiated.  Based on the facility’s investigation, the facility had no reason to report an allegation of verbal abuse or to even investigate an allegation of verbal abuse prior to the state surveyor’s report to me during the survey.”  P. Ex. 13 at 34.  However, as discussed above, the fact that the subsequent investigation of R4’s allegation did not establish any abuse by Legacy does not relieve it of the obligation to report the allegation of abuse at the time it was initially notified of the allegation by the surveyor.

⁶  Pursuant to 42 C.F.R. § 488.318(b)(2), inadequate survey performance does not “invalidate adequately documented deficiencies.” 

⁷  CMS was “formerly the Health Care Financing Administration (HCFA).”  See 42 C.F.R. § 400.200. 

⁸  As discussed above, Petitioner has intimated it will pursue the constitutional issues it has raised in a different forum and it may intend to raise these issues in that forum as well.