Aristacare at Cedar Oaks, CR6431 (2024)

DECISION

I grant summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS) and against Petitioner, Aristacare at Cedar Oaks, a skilled nursing facility. I sustain remedies consisting of the following civil money penalties: 

• $10,800 for each day of a period that began on January 20, 2023, and that continued through February 1, 2023; and
• $245 for each day of a period that began on February 2, 2023, and that continued through March 27, 2023.

I. Background

With its motion for summary judgment CMS filed a brief and exhibits identified as CMS Ex. 1 – CMS Ex. 16. Petitioner filed a brief in opposition to CMS’s motion along with exhibits identified as P. Ex. 1 – P. Ex. 26.¹ 

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I do not receive the parties’ exhibits into evidence. It is unnecessary that I do so because I grant summary judgment based on facts that are undisputed. However, in this decision I cite to relevant parts of some of the exhibits to illustrate facts that are not in dispute or to address a party’s contentions and arguments. 

II. Issues, Findings of Fact and Conclusions of Law

A. Issues

The issues are whether the undisputed facts establish that Petitioner failed to comply substantially with a Medicare participation requirement, whether its noncompliance put residents at its facility in immediate jeopardy, and whether the remedy that CMS determined to impose is reasonable. 

B. Findings of Fact and Conclusions of Law

I apply the principles of Rule 56 of the Federal Rules of Civil Procedure in deciding whether to grant summary judgment. I base my decision on facts that are undisputed. I make no fact finding that requires a credibility determination. I find no impediment to deciding a case if resolving a fact dispute in favor of one party or the other would make no difference to the outcome. Where reasonable inferences may be made from the undisputed facts, I make those inferences that are favorable to the party against whom the motion for summary judgment is filed. 

At bottom, the question that I ask in any case where a party moves for summary judgment is this: is there any issue that would benefit from being resolved in an evidentiary hearing? Fal-Meridian, Inc. v. U.S. Dep’t of Health and Human Servs., 604 F.3d 445, 449 (7^th Cir. 2010). 

There is no such issue in this case. The undisputed facts unequivocally establish Petitioner’s noncompliance. The undisputed facts establish also that the noncompliance put residents in immediate jeopardy, and that CMS’s remedy determination is reasonable. 

1. Noncompliance

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At issue in this case is Petitioner’s compliance with 42 C.F.R. § 483.12, a regulation that states that residents of a skilled nursing facility have the right to be free from abuse. “Abuse” is defined at 42 C.F.R. § 488.301 to include the willful infliction of injury to a resident. In applying the term, CMS distinguishes between acts that are inadvertent and those that are deliberate. CMS Ex. 13 at 2-3. Hitting, slapping, or punching a resident is a deliberate and abusive act. Inadvertent contact between staff and a resident or between residents is not generally abusive. Id. at 5. 

A skilled nursing facility must take all reasonable measures necessary to protect its residents against abuse. Western Care Mgmt. Corp., DAB No. 1921 (2004). In practice that means that a facility must carefully assess each of its residents to determine whether that resident might abuse other residents or be vulnerable to abuse. It must also, based on its assessments, develop and implement measures that protect residents against potential abuse. 

CMS’s allegations of noncompliance focus on the care that Petitioner gave to a demented male resident, identified as R2.² The undisputed facts describe obvious – indeed, blatant – failure by Petitioner and its staff to respond to repeated warnings that R2 endangered other residents of Petitioner’s dementia unit. 

At the time of the resident’s admission to Petitioner’s facility, staff failed to heed the warning issued by a neurologist at the hospital where the resident had stayed, which indicated that R2’s agitation and aggression necessitated continuous monitoring. The staff failed even to write a plan of care to address these issues. They failed to make interim assessments of the resident’s condition. They failed to revise the resident’s plan of care to address his aggression and violence after he threatened to kill others and struck a nurse with a full water bottle. They allowed R2 to wander within the dementia unit without enhanced supervision, potentially to interact with other demented residents. They left other residents unprotected from R2’s violent outbursts. These many failures set the stage for R2’s unprovoked assault on another resident, R1, an assault that led to R1’s death. 

These failures contravened the requirements of 42 C.F.R. § 483.12 and Petitioner’s own policies. 

Petitioner and its staff knew or should have known that R2 posed a physical threat to other residents. The resident had been hospitalized for more than a month, just prior to his admission to Petitioner’s facility in August 2022, to evaluate and treat his tendency to

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become violent towards people with whom he resided. CMS Ex. 6 at 28. Physicians at the hospital concluded that R2 suffered from moderate dementia with aggressive behaviors. Id. at 102, 104. A Spanish-speaker, R2 did not comprehend English. His dementia prevented him from understanding speech even with the aid of a Spanish interpreter. He was disoriented and confused, he was incoherent and illogical, his insight and judgment were limited, and he was non-responsive to questions. Id. at 43-44. 

On August 8, 2022, the day that R2 was discharged from the hospital and admitted to Petitioner’s dementia unit, a neurologist evaluated the resident and concluded that the resident tended to become very aggressive towards people with whom he resided. The neurologist concluded that the resident’s acute agitation and aggressive tendencies necessitated that he be provided 1:1 (continuous) supervision wherever he lived. CMS Ex. 6 at 43. 

Petitioner’s staff neither evaluated the resident as a potential danger to other residents nor did they implement the recommendation of the hospital neurologist. The initial plan of care that Petitioner’s staff developed for R2 does not identify the resident’s tendency to become violent towards other residents as a problem that needed to be addressed. See CMS Ex. 6 at 3-22.³ Indeed, the initial plan of care says nothing about the resident’s aggressive tendencies and consequently, contains no measures intended to protect other residents from R2. 

Petitioner instructed its staff to monitor the resident once per eight-hour shift. CMS Ex. 6 at 115-121. That is far less supervision than had been recommended. Petitioner provided no explanation for that decision.

Staff did not even monitor the resident consistently at a rate of once per shift. There were numerous shifts in which staff failed to record that they had monitored R2. On the occasions when they monitored R2, staff checked boxes on a form to indicate that monitoring had occurred but failed to record any observations of the resident’s behavior while he was monitored. CMS Ex. 6 at 115-121. 

On January 11, 2023, a registered nurse reported that R2 was highly agitated, screaming: “I’m going to kill them and they’re going to kill me.” He struck the nurse on her head with a full water bottle. Unable to calm R2, staff called 911. The resident was transferred to a hospital where he was treated for a urinary tract infection. CMS Ex. 6 at 74. 

R2 was seen by a psychiatrist while at the hospital. The psychiatrist noted that Petitioner’s staff had reported that the resident had “frequent behavioral outbursts.” Although the psychiatrist concluded that the resident was psychiatrically stable, she also reported that the resident was restless and grossly confused. CMS Ex. 6 at 104. 

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R2 returned to Petitioner’s facility on January 12, 2023. The resident continued to exhibit confusion and to engage in irrational behavior. The hospital staff noted that, when he was discharged, R2 refused to change from his hospital scrubs back into the clothing he was wearing when he was admitted. P. Ex. 4 at 2-7. 

Petitioner’s staff treated the resident’s urinary tract infection. CMS Ex. 6 at 16, 73. But the staff did nothing to address the resident’s aggressiveness. The staff did not increase their monitoring of the resident. There is nothing to show that the staff observed the resident’s behavior closely. The resident was left free to wander and interact with other residents. No special protections of other residents were considered by Petitioner’s staff, much less were they put into place. 

Indeed, and notwithstanding the resident’s very recent aggressive and violent behavior, Petitioner’s staff continued to fail to monitor the resident once per shift as they had been instructed to do. Staff did not monitor the resident’s behavior at all on January 13, 2023, the day after his return to the facility. On no day in January 2023 did the staff monitor the resident at least once per shift. CMS Ex. 6 at 121. 

R2 assaulted R1 on January 16, 2023, just four days after he returned from the hospital. One of Petitioner’s nursing assistants witnessed the assault. In her sworn statement she avers that she saw R1 – a frail, demented, 91 year-old woman – walking down a corridor in Petitioner’s dementia unit. As R1 passed the doorway to R2’s room, R2, who was in the doorway, struck (“slapped”) her with his open hand with such force that R1 fell face down on the hallway floor. P. Ex. 19. Subsequently, Petitioner’s director of nursing characterized the assault as “unprovoked.” CMS Ex. 9 at 4. 

R1 was unconscious for a time. She sustained an external laceration and bruising. She was transported to a hospital where she was diagnosed with an intracranial hemorrhage. She died on January 19, 2023, three days after R2 had assaulted her. CMS Ex. 5 at 18-19; CMS Ex. 10 at 1. 

A nurse practitioner on Petitioner’s staff assessed R2 shortly after he assaulted R1. She found that he was agitated, aggressive, confused, and restless. She noted that just four days prior the resident had been sent to the hospital for evaluation of similar behavior. CMS Ex. 6 at 68-69. The nurse practitioner concluded that R2 suffered from: “mood disorder and dementia exhibiting recurrent agitation and aggression towards staff and another resident.” Id. at 69.

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The care that Petitioner provided to R2 – and the resulting failure to protect other residents from R2’s aggressive behavior – contravened Petitioner’s own policies.

Petitioner adopted a behavior assessment and monitoring policy that required its staff to document changes in mood and behavior of any resident who is being treated for psychiatric issues. CMS Ex. 8 at 1. The policy specifically states: 

The interdisciplinary team to include psychiatrists will evaluate behavioral symptoms in residents to determine the degree of severity, distress and potential safety risk to the resident, and develop a plan of care accordingly. Safety strategies will be implemented immediately if necessary to protect the resident and others from harm.

CMS Ex. 8 at 4. This policy spells out the minimum measures that the staff must take to address a resident’s psychiatric problems. Staff must document the frequency, intensity, duration, outcomes, location, environment, and precipitating factors of a resident’s behavior. Id.

Petitioner’s staff knew or should have known as of the date of R2’s admission – August 8, 2022 – that the resident suffered from severe psychiatric issues and posed a threat to other residents. The behavior assessment and monitoring policy directed the staff to develop an appropriate plan of care for R2’s psychiatric issues, to implement safety strategies, and to protect other residents. It directed staff to document the resident’s behavior. The staff did none of that. 

Even if R2 never was aggressive or violent previously, the behavioral symptoms that the resident manifested on January 11, 2023, when he threatened to kill others and attacked a nursing assistant with a full water bottle, should have triggered the evaluation and planning requirements of Petitioner’s behavior assessment and monitoring policy. But staff did nothing in response to that behavior. As I have discussed, the undisputed facts establish that when R2 returned to Petitioner’s facility from the hospital, staff reintegrated him with its demented residents without doing any assessment or planning to address the resident’s now-obvious aggressiveness. 

Petitioner also adopted a detailed abuse prevention policy. The policy states that staff will supervise residents and engage in ongoing monitoring of their behavior to identify residents who might be abusive or abused. CMS Ex. 8 at 14. 

As I have discussed, Petitioner’s staff was directed to monitor R2. The monitoring that staff conducted was haphazard and incomplete. Moreover, Petitioner’s staff failed to document R2’s behavior when they did monitor him. 

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Additionally, Petitioner’s abuse prevention policy states that its staff will develop a comprehensive dementia management program to protect residents against abuse. CMS Ex. 8 at 15. The record is devoid of any facts showing that such a program existed. If it existed, there are no facts to show that Petitioner’s staff used it to protect residents from R2’s aggressive behavior. 

Petitioner’s staff not only violated Petitioner’s policies, but they also failed to comply with applicable standards of nursing care in dealing with R2. CMS offered evidence, through the unrebutted testimony of Maria San Juan, R.N., that the professionally recognized standard of nursing care requires timely care planning by a facility’s staff to address potentially dangerous conduct by a resident. CMS Ex. 14 at 17. 

Petitioner should have developed immediately a care plan upon R2’s admission to the facility in August 2022 to address R2’s history of aggression. That plan should have adopted either the hospital neurologist’s recommendation that the resident receive continuous monitoring, or it should have explained why the staff decided that such monitoring was unnecessary. The staff also should immediately have adopted a care plan after the resident returned to Petitioner’s facility from the hospital after his January 11 outburst and violent attack of a nursing assistant that addressed that behavior. Staff did not do so in either case. 

I have considered Petitioner’s assertions and arguments that it makes in opposition to CMS’s motion. I find that Petitioner offers nothing that impedes my issuance of summary judgment. 

Although Petitioner contends that there are “multiple” disputed material facts, it has not offered evidence-based facts that conflict with any of the facts that I recite as the basis for my decision. See Petitioner, Aristacare at Cedar Oaks’, Pre-hearing Brief and Opposition to Respondent’s Motion for Summary Judgment (Petitioner’s brief) at 28. A party opposing a motion for summary judgment will not prevail by asserting baldly that there are disputed issues of material fact. That party must establish that there are evidence-based facts that, when viewed in a light most favorable to it, create a genuine dispute that necessitates a hearing on the record. 

Petitioner offered a lengthy recitation of the resident treatment records of both R2 and his victim, R1. Petitioner’s brief at 1-13; P. Ex. 13. I take no issue with the accuracy of that recitation. It essentially duplicates that which CMS relied on in its motion and that I have addressed in this decision. But what Petitioner failed to do is to identify facts that create an actual dispute between the parties. 

Petitioner has not denied any of the facts and events that I describe in this decision. It has not denied that it received warnings that R2 was irrational, confused, aggressive, and had a history of confrontation with other residents of the facilities in which he stayed. It has

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not denied that it was warned that R2 needed continuous supervision. It has not denied that it failed to heed that warning, nor has it denied that it failed even to address it in planning R2’s care. It has also not denied that its staff failed to plan to address R2’s history of aggressive behavior at any time up to and including his January 16, 2023, assault on R1. It has not denied that R2 struck R1 as she ambulated past the doorway to R2’s room.⁴ Nor has Petitioner denied that its staff failed consistently to perform the monitoring of R2 that its staff was supposed to conduct. It has not denied that its policies are as I recite them. And finally, it has offered no evidence to refute Ms. San Juan’s description of the applicable standards of nursing care.

Petitioner contends that the behavior exhibited by R2 did not provide a history of threatening behavior or assaults against other residents. It asserts – and offers the testimony of several witnesses as support – that on January 16, 2023, R2 offered no advance warning that he would assault R1. Petitioner’s brief at 8. From this, Petitioner contends that its staff had no reason to know or conclude that R2 posed any threat. Petitioner’s brief at 13-14. 

Petitioner engages in hair-splitting to support this contention, stating that R2 “did not exhibit behaviors directed toward any Residents until the spontaneous unprovoked swing of his arm toward Resident # 1 . . . .” Petitioner’s brief at 13. That assertion may be technically true, but it provides Petitioner with no defense. R2 may not have threatened or attacked other residents at Petitioner’s facility prior to January 16, 2023, but he had a history of aggression directed towards residents of his previous abode. That history of aggression plus the resident’s behavior when hospitalized prior to his admission to Petitioner’s facility was the basis for an explicit warning as of the date of the resident’s admission that the resident posed a threat to other residents that required him to be monitored continuously. 

Petitioner’s argument also ignores the fact that R2 was severely demented, and that his behavior was utterly irrational and could be explosive. That he’d assaulted only staff at Petitioner’s facility prior to assaulting R1 offered zero assurance that his future outbursts would be directed only at staff. Moreover, the January 11 assault by R2, like the one on January 16, was spontaneous. Staff should have considered the likelihood that R2 could explode without warning, and it should have planned the resident’s care accordingly. 

Petitioner asserts that R2’s assault on R1 was not a volitional act. It cites to reports by some individuals on Petitioner’s staff that R2 habitually swung his arm as he walked in the dementia unit’s hallway. Petitioner’s brief at 14; see CMS Ex. 10 at 5, 10. From this Petitioner argues that I might reasonably infer that there was no assault but simply

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inadvertent, random contact between R2 and R1, something that Petitioner’s staff could not have anticipated or prevented. Petitioner’s brief at 14, 22-23. 

There are no evidence-based facts from which I could infer reasonably that R2’s assault on R1 was inadvertent. None of the individuals whose statements Petitioner relies on witnessed the assault against R1. None of those witnesses can say whether R2 was merely swinging his arm when he struck R2 or whether he deliberately struck her. 

There is only one eyewitness report of that assault. The individual who witnessed the assault avers explicitly that she saw R2 slap R1 as the victim passed the doorway to R2’s room. P. Ex. 19. That is not non-volitional contact. 

Moreover, whether R2 assaulted R1 or merely inadvertently struck her is not a fact dispute that I need to resolve to find Petitioner noncompliant with 42 C.F.R. § 483.12. Indeed, I would find Petitioner to be noncompliant even if R2 had never struck R1 on January 16. 

The undisputed facts unequivocally prove that Petitioner failed to heed explicit warnings about R2’s behavior, failed to plan his care, failed to monitor his behavior, and failed to assess and plan for the resident’s irrational and explosive conduct. In sum, Petitioner’s staff ignored evidence that R2 posed a grave threat to other residents of the facility. Failure by the staff to respond to that evidence meant that the threat persisted. That was noncompliance in and of itself, whether leaving residents unprotected from R2 resulted in violence against a resident or not. The potential for violence existed at every moment that staff left R2’s behavior unaddressed. 

Petitioner contends that R2’s violence on January 11, 2023, was a consequence of the urinary tract infection that he was suffering from at that time. Petitioner’s brief at 13. From this assertion Petitioner seems to contend that Petitioner’s staff could assume reasonably that the resident posed no subsequent danger after January 11 because his infection was being treated by antibiotics. 

That is unsupported speculation. The psychiatrist who saw R2 at the hospital after the January 11, 2023 incident drew no conclusion as to the cause of the resident’s violent behavior on January 11. CMS Ex. 6 at 104. Petitioner offered no evidence to show that another physician assessed R2’s conduct and concluded that his urinary tract infection was the cause.

Indeed, Petitioner offered no evidence to show that staff assessed the resident and concluded that the resident’s January 11 outburst was a one-off incident resulting from a urinary tract infection. Nor did Petitioner offer evidence to show that its staff concluded that the resident’s urinary tract infection had abated and that he no longer posed a threat to others. 

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Even if the resident’s urinary tract infection contributed to his violent behavior Petitioner’s staff had no reason to believe that the resident had recovered at any time from January 12 through January 16, 2023. The resident was undergoing a course of antibiotic therapy throughout that period that was not scheduled to end until January 17. CMS Ex. 6 at 68-73. 

As support for its arguments Petitioner relies heavily on the declaration of a consultant, Gail E. Rader, RN, MSN, GNP, CALA. P. Ex. 13. I have closely reviewed Ms. Rader’s statement. Ms. Rader neither identifies disputed material facts nor does she offer reasonable opinions based on the undisputed facts of this case that might lead to a decision that is favorable to Petitioner. 

Ms. Rader is not a fact witness. She was not employed at Petitioner’s facility nor was she present during any of the events that are key to deciding this case. She did not independently assess any residents. In sum, Ms. Rader bases her opinions entirely on facts that she did not witness. She adds no new facts to the record. 

Ms. Rader asserts that R2’s assault against R1 “was an unprovoked spontaneous action by Resident #2 that was not willful and could not have been anticipated or prevented.” P. Ex. 13 at 30. Thus, according to Ms. Rader, Petitioner bears no responsibility for that assault and therefore, it complied with Medicare requirements.

I do not doubt that R2’s assault against R1 was unprovoked and spontaneous. Indeed, that was the essence of his aggressive behavior. R2 was a severely demented, confused individual who could not understand even simple communications in Spanish, his native language. His violent outbursts – before the inception of his stay at Petitioner’s facility and during that stay as well – were doubtlessly unplanned and unprovoked. But that made R2 no less of a danger to other residents. To the contrary, the resident’s capacity for unprovoked explosive outbursts was the essence of the danger that he posed. 

As to Ms. Rader’s assertion that R2’s assault was “not willful,” that is squarely belied by the only eyewitness account of the assault. Ms. Rader has offered no facts that would lead to a conclusion other than that R2 deliberately slapped R1 and with enough force to send her to the floor, render her unconscious, and likely cause her death. 

Finally, Ms. Rader’s conclusion that the January 16 assault could not be anticipated by Petitioner’s staff is absolutely belied by the undisputed facts. Staff had ample warning of R2’s potential for sudden, warning-free violence. He’d engaged in such violence before he was admitted to Petitioner’s facility, and he engaged in it while he resided there. The only conclusion that I can draw from the undisputed facts is that staff ignored the several warnings that they received. 

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Moreover, and as I have explained, I would find Petitioner to be noncompliant with the requirements of 42 C.F.R. § 483.12 even if R2 had not committed the January 16, 2023, assault. Petitioner’s staff was obligated to address the dangers that R2 posed for other residents of Petitioner’s dementia unit. He was a ticking bomb. He was a threat to the safety and security of other residents of Petitioner’s dementia unit throughout his stay at the facility. Petitioner’s responsibility to develop and implement measures to protect its residents against the possibility of R2’s explosive behavior would not have been diminished one iota if fortuitously, R2 had never lashed out. 

2. Immediate Jeopardy

CMS determined that Petitioner’s noncompliance with the requirements of 42 C.F.R. § 483.12 was so egregious as to comprise immediate jeopardy for residents of Petitioner’s facility. Regulations define immediate jeopardy as noncompliance that causes or is likely to cause a resident or residents of a facility to experience serious injury, harm, impairment, or death. 42 C.F.R. § 488.301. 

Where CMS determines that noncompliance is at the immediate jeopardy level the burden falls on the facility to prove that determination to be clearly erroneous. 42 C.F.R. § 498.60(c)(2). A finding of immediate jeopardy level noncompliance is presumptively correct. Liberty Commons Nursing & Rehab Ctr. - Johnston, DAB No. 2031 at 18-19 (2006), aff’d, 241 F. App’x 76 (4^th Cir. 2007). 

In cases where I hold evidentiary hearings, I would evaluate a finding of immediate jeopardy by asking whether evidence proved that the finding is clearly erroneous. My task is a bit different when considering a motion for summary judgment. Here, I ask: has Petitioner offered facts that, assuming their truth, would show that CMS’s immediate jeopardy determination is clearly erroneous?

I do not find anything in the record that could lead me to conclude that CMS’s determination of immediate jeopardy level noncompliance is clearly erroneous. To the contrary, the undisputed facts lead inexorably to the conclusion that Petitioner’s noncompliance put residents at immediate jeopardy. 

A skilled nursing facility maintains a locked dementia unit because the families or guardians of the residents who are housed there have concluded, and the facility’s staff agrees, that these residents are incapable of exercising the judgment required for self-protection. Demented residents are confused individuals who have lost basic coping skills. They can wander into trouble, they can misjudge the intent of others, and they can expose themselves to dangers that non-demented individuals would not encounter. 

Petitioner put all demented residents in its locked unit in immediate jeopardy when it housed R2 with them without assessing or planning for that resident’s aggressiveness and

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irrationally violent behavior. Putting a resident who is so demented that he is capable of unprovoked, explosively violent behavior, with other demented residents – without assessing or planning for the dangers posed by that resident to others – is a recipe for disaster. The undisputed facts of this case establish likelihood to be very high that the resident’s haphazardly supervised presence, sooner or later, would lead to a tragic outcome. 

3. Remedies

CMS imposed civil money penalties against Petitioner consisting of $10,800 for each day of a period of immediate jeopardy level noncompliance that began on January 20, 2023, and that continued through February 1, 2023, and $245 for each day of a period of non-immediate jeopardy level noncompliance that began on February 2, 2023, and that continued through March 27, 2023. CMS Ex. 4 at 10. 

As I noted at the inception of this decision, CMS contends that the remedies that it imposed are justified by Petitioner’s failure to protect residents from the violent and abusive behavior of R2 in violation of the requirements of 42 C.F.R. § 483.12. CMS found additional noncompliance but does not predicate its remedy determinations on that. 

Regulations authorize CMS to impose per-diem civil money penalties for both immediate jeopardy level and non-immediate jeopardy level noncompliance. 42 C.F.R. § 488.438(a)(1). In assessing the reasonableness of any civil money penalty, one looks to regulatory factors that govern penalty amounts. These factors may include the seriousness of a facility’s noncompliance, its culpability, its compliance history, and its financial condition. 42 C.F.R. §§ 488.438(f)(1)-(4); 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)). 

The regulations establish ranges that describe minimum and maximum amounts for both immediate jeopardy and non-immediate jeopardy level penalties. 42 C.F.R. § 488.438(a)(1), 45 C.F.R. Part 102 (penalty amounts are adjusted annually to account for inflation). The penalties that CMS imposed against Petitioner are modest, falling at the lower ends of the ranges for immediate jeopardy and non-immediate jeopardy level penalties.

The undisputed material facts amply support the penalty amounts. To begin with, Petitioner’s noncompliance was extremely serious. The demented residents at Petitioner’s facility were extremely vulnerable to unprovoked violence, precisely the behavior that R2 had a documented history of engaging in. Frail and helpless individuals like R1 were at great risk for harm from a violence-prone and irrational fellow resident. 

Moreover, Petitioner’s staff and management were culpable for exposing demented residents to R2 and his unprovoked violence. The undisputed facts establish that

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Petitioner’s staff knew from the inception of R2’s stay that he was a dangerous and unstable individual with a history of aggression against other residents at his previous abode. Petitioner’s staff ignored an explicit warning from a physician about the resident’s proclivities and his recommendation that the resident be supervised continuously. The staff failed even to assess the resident for those proclivities and failed to develop interventions that might have protected other residents. They left other demented – and defenseless – residents unprotected from R2’s violent behavior. 

Additionally, undisputed facts show that Petitioner has a history of noncompliance, including previous immediate jeopardy level failures to protect residents against abuse. CMS Ex. 3 at 1, 3. 

Petitioner offered no facts to show that it lacks the wherewithal to pay the penalties that CMS imposed. 

Petitioner challenged neither the reasonableness nor the duration of the penalties except to deny allegations of noncompliance. I have addressed that argument.

Endnotes

¹ CMS failed to identify the penalty amounts in its motion for summary judgment and failed largely to explain why these amounts are reasonable. I ordered CMS to file a supplemental brief that identified penalty amounts and CMS’s justification for imposing them. Order Directing Centers for Medicare & Medicaid Services to Provide Information Concerning Remedies, December 19, 2023. I provided Petitioner with the opportunity to respond to CMS’s submission. CMS filed a supplemental brief addressing remedies. Petitioner did not reply. 

² CMS made allegations about the care that Petitioner’s staff gave to other residents. However, it bases its motion for summary judgment entirely on the care that Petitioner’s staff gave to R2, contending that Petitioner’s noncompliance relating to that care is sufficient to establish CMS’s remedy determination to be reasonable. 

³ On January 16, 2023, after R2 had assaulted R1, Petitioner’s staff amended R2’s plan of care to address his tendency to engage in altercations with other residents. CMS Ex. 6 at 14

⁴ Petitioner would be hard put to do so because I have relied on the testimony of Petitioner’s witness to describe the assault. P. Ex. 19.