Garden Villa Nursing Home and Rehabilitation, DAB CR6464 (2024)

DECISION

I enter summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS) and against Petitioner, Garden Villa Nursing Home and Rehabilitation, a Medicare-participating skilled nursing facility.  I sustain CMS’s determination to impose the following remedies against Petitioner: 

• A civil money penalty of $13,400 for each day of a period that began on July 20, 2021, and that continued through August 6, 2021; and
• A civil money penalty of $350 for each day of a period that began on August 7, 2021, and that continued through September 2, 2021.

I. Background

This case was assigned originally to another administrative law judge.  It was recently reassigned to me. 

Petitioner filed hearing requests to challenge noncompliance findings made at surveys of Petitioner’s facility conducted on August 7, August 20, August 25, and August 26, 2021. 

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However, Petitioner clarified its position in its pre-hearing brief, stating that it was challenging the noncompliance findings made at the August 7 survey.  Petitioner’s Prehearing Brief at 8.  The noncompliance findings made at the August 20, August 25, and August 26, 2021 surveys therefore are administratively final.  CMS moved for summary judgment, and Petitioner opposed the motion. 

CMS filed exhibits identified as CMS Ex. 1 – CMS Ex. 43 in support of its arguments.  Petitioner filed exhibits identified as P. Ex. 1 – P. Ex. 5.  I do not receive these exhibits into evidence because I issue summary judgment.  I cite to some of them in this decision but only to illustrate undisputed material facts.¹ 

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 CMS’s determination of immediate jeopardy level noncompliance is clearly erroneous, 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.  Bartley Healthcare Nursing & Rehab., DAB No. 2539 at 3-4 (2013). 

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 & Human Servs., 604 F.3d 445, 449 (7th Cir. 2010).  

There is no benefit here to holding an evidentiary hearing.  The parties do not dispute the material facts.  Rather, they argue whether the undisputed facts justify findings of

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regulatory noncompliance and CMS’s remedy determinations.  That is a disagreement on matters of law only. 

1. Noncompliance

a. Abuse and Neglect

CMS asserts that undisputed facts establish that Petitioner failed to comply substantially with regulations governing participating nursing facilities.  First, CMS argues that Petitioner failed to comply with 42 C.F.R. § 483.12.  This regulation states that a nursing facility resident has the right to be free of abuse, neglect, misappropriation of resident property, and exploitation.  The regulations define abuse as “the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.”  42 C.F.R. § 483.5.  It includes verbal, sexual, physical, and mental abuse.  Id.  The regulations define “willful” to mean a deliberate act and not necessarily the intentional infliction of injury or harm.  Id.  “Neglect” means the failure of a nursing facility or its staff to provide goods and services to a resident that are necessary to avoid physical harm, pain, mental anguish, or emotional distress.  Id. 

CMS alleges that Petitioner failed to protect a resident, identified as Resident 1, from sexually abusive or highly inappropriate conduct by two other residents, identified as Residents 2 and 3.  CMS contends that Petitioner’s failure to protect Resident 1 violated Petitioner’s own policy as well as the requirements of 42 C.F.R. § 483.12.  Respondent’s Prehearing Brief at 13-15. 

The undisputed material facts strongly support CMS’s allegations of noncompliance. 

Petitioner’s policy promised its residents that its staff and treating physicians would actively identify residents who engaged in behavior that might be abusive or that would be dangerous to other residents and develop solutions to address whatever problems might be identified.  CMS Ex. 40.  The policy stated that a resident’s physician and Petitioner’s staff would identify risk factors for abuse within Petitioner’s facility.  The factors to be addressed included “residents with unmanaged problematic behavior.”  Id. at 2.  The policy stated further that its medical director would help identify, among other things, “inappropriate management of problematic behavior” within the facility.  Id. 

Petitioner failed to implement this policy.  The undisputed facts establish that Petitioner’s staff knew that they were housing Residents 2 and 3 along with Resident 1 in a secure unit reserved for demented and cognitively impaired residents.  Petitioner knew that Residents 2 and 3 required careful supervision due to these residents’ histories of engaging in inappropriate behavior.  Despite that, Petitioner failed to provide adequate supervision and consequently failed to protect Resident 1 from predatory sexual behavior perpetrated by Residents 2 and 3. 

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As of July 2021, Resident 1 was severely demented, beset with physical limitations, and highly vulnerable to abuse.  She was a 71-year-old woman afflicted with Alzheimer’s dementia.  CMS Ex. 3 at 4; CMS Ex. 5 at 14-15, 84.  She had physical limitations, including an abnormal gait, muscle weakness, and lack of coordination.  CMS Ex. 5 at 15.She was unable to complete a test for mental competence.  CMS Ex. 3 at 4; CMS Ex. 5 at 24. 

The resident wandered with no rational purpose and seemed to be oblivious to risks and hazards.  CMS Ex. 5 at 64.  Her care plan instructed Petitioner’s staff to remove her from other residents’ rooms when she wandered into them.  Id. 

Residents 2 and 3 were known to Petitioner’s staff to be cognitively impaired and to engage in inappropriate sex-related behavior. 

Resident 2 was 62 years old in July 2021.  He had physical impairments that included Parkinson’s disease and muscle wasting.  CMS Ex. 6 at 9-10.  He manifested psychosis and an anxiety disorder.  Id.  He was assessed as having moderate cognitive impairment.  Id. at 22.  Petitioner’s staff assessed Resident 2 as being prone to wandering without rational purpose.  His wandering included entering other residents’ rooms.  Id. at 63. 

Petitioner’s staff also knew that Resident 2 was prone to inappropriate sex-related behavior.  On June 18, 2021, the resident entered a female resident’s room while she was in bed and kissed her.  CMS Ex. 3 at 28.  He made an obscene gesture when Petitioner’s staff asked him to leave that resident’s room.  Id. 

Resident 3 had lived at Petitioner’s facility for more than seven months as of July 2021.  He was then 86 years old.  CMS Ex. 7 at 2.  He suffered from a range of physical and mental problems.  These included severe cognitive impairment.  Id. at 48. 

Petitioner’s staff knew that the resident exhibited inappropriate sexual behavior.  Among other things, he attempted to touch residents and staff inappropriately.  CMS Ex. 7 at 1, 3, 41.  Petitioner’s staff were instructed to monitor him frequently for attempts to make inappropriate sexual advances.  Staff were told to separate Resident 3 from other residents when he acted inappropriately and to call the resident’s physician and family.  Id. 

On January 26, 2021, a certified nursing assistant discovered Resident 1 in Resident 3’s room.  CMS Ex. 7 at 2-3.  Resident 1 was undressed down to her diaper, with Resident 3 standing over her.  CMS Ex. 12 at 15.  Staff separated the residents, and they notified Resident 1’s responsible party of the event. 

There was only one nursing assistant assigned to the secure unit on January 26, 2021.  CMS Ex. 3 at 14. 

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Petitioner’s staff certainly had reason to be concerned about Resident 1’s vulnerability, given her severe dementia, her infirmities, and her propensity to wander.  The January 26 incident made it absolutely clear just how vulnerable she was.  It also made it evident that having just one nursing assistant to watch over all of the residents in the secure unit was inadequate to provide the supervision that wandering-prone residents needed. 

There are no facts to show that Petitioner augmented the staffing of its secure unit after January 26, 2021.  Nothing in the record shows that it assigned additional nursing assistants to work in the unit.  There is nothing to suggest that Petitioner even considered doing so.  Nor is there anything to show that staff stepped up their supervision of Residents 1, 2, or 3. 

On July 17, 2021, Resident 1 became a victim of sexual abuse for a second time.  A certified nursing assistant, who was not assigned to Petitioner’s secure unit, but who had gone there to obtain ice for a resident, observed Resident 2 in Resident 1’s room.  CMS Ex. 3 at 7.  She saw Resident 2 sitting on the side of Resident 1’s bed with his pants down.  She observed Resident 1 in her bed with her pants down and her incontinence brief off.  Resident 2’s hands were on Resident 1’s thighs.  Id.; CMS Ex. 12 at 17. 

There was only one nursing assistant assigned to Petitioner’s secure unit on July 17, 2021, as had been the case on January 26.  CMS Ex. 3 at 7.  The nursing assistant assigned to the unit reported that she was occupied with another demented resident when the events of July 17 occurred.  Id.  Petitioner’s management acknowledged that there was a staffing shortage on July 17.  CMS Ex. 6 at 2. 

The undisputed facts point only to one conclusion, that being that Petitioner did not assign adequate staff to supervise the residents in its secure unit despite being aware of a need for enhanced supervision.  The incidents of January 26, 2021, and July 17, 2021, are the direct consequence of inadequate supervision of residents who plainly needed more supervision than Petitioner provided.  CMS Ex. 6 at 2.  The failure to supervise these residents resulted in the sexual abuse of Resident 1.  The Bridge at Rockwood, DAB No. 2954 at 24 (2019).  The lack of necessary supervision is an obvious example of neglect and noncompliance with the requirements of 42 C.F.R. § 483.12. 

Petitioner asserts that there are disputed issues of fact that preclude issuance of summary judgment.  Petitioner’s Response to Respondent’s Motion for Summary Judgment (Petitioner’s brief) at 12.  However, it does not identify any disputed material facts.  Indeed, its recitation of the facts corresponds in all material respects with the facts that I identify in this Decision.  Id. at 9-10. 

Petitioner’s principal argument is one of “no harm, no foul.”  It asserts that it is not deficient because there are no material facts establishing that either Resident 2 or Resident 3 sexually abused Resident 1.  It contends: “The facts show that residents were

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found together [in] rooms in various stages . . . [of] undress, but that does not equal sexual abuse.”  Petitioner’s brief at 12.  Petitioner argues that CMS fails to identify any authority that defines mere “sexual contact” as abuse.  Id. 

This argument is without merit.  The undisputed facts establish that both Residents 2 and 3 disrobed Resident 1, a helpless and demented individual.  Resident 2 removed his own pants and fondled Resident 1.  There is nothing to show that Resident 1 consented to the acts of Resident 2 or of Resident 3.  In fact, her severely demented state rendered consent impossible.  Disrobing and fondling a helpless woman is sexual abuse under any definition of the term. 

But Petitioner would have been deficient in protecting its residents even if none of the abuse had ever occurred.  As I have stated, Petitioner was well aware of Resident 2’s and Resident 3’s proclivities for inappropriate and abusive behavior.  It was also well aware that Petitioner’s secure unit housed demented and helpless individuals.  That knowledge imposed a duty on Petitioner to supervise the residents of the secure unit in order to prevent any abuse.  It failed to do so. 

In fact, the root cause of the dangerous situation that prevailed in Petitioner’s secure unit was a lack of sufficient staff to supervise the residents housed in that unit.  The absence of adequate supervision in the secure unit in and of itself constitutes neglect of Petitioner’s residents.  42 C.F.R. § 483.5. 

Petitioner contends that there is no “automatic causal connection between staffing levels and potential harm,” asserting that staff were present during several of the alleged incidents involving Residents 2 and 3.  Petitioner’s brief at 13.  However, Petitioner concedes that it had a staffing shortage in July 2021 and the undisputed facts unequivocally establish that there was a shortage of staff in Petitioner’s secure unit.  CMS Ex. 6 at 2.  Petitioner assigned only one nursing assistant to provide care in that unit, rendering it impossible to supervise all residents.  The two episodes of sexual abuse perpetrated against Resident 1 occurred while the nursing assistant who was assigned to the secure unit was otherwise occupied. 

b. Failure to Protect Residents Against Accident Hazards

CMS alleges that the undisputed material facts establish a second noncompliance by Petitioner, with the requirements of 42 C.F.R. § 483.25(d).  This section requires a skilled nursing facility to ensure that residents receive adequate supervision and assistance to prevent them from sustaining accidents. 

The regulation does not make a skilled nursing facility strictly liable for an accident sustained by a resident.  It imposes on the facility the duty to eliminate all foreseeable risks of accidents.  Clermont Nursing & Convalescent Ctr., DAB No. 1923 at 9-10

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(2004), aff’d sub nom. Clermont Nursing & Convalescent Ctr. v. Leavitt, 142 F. App’x 900 (6th Cir. 2005). 

An “accident” may consist of any event that may cause injury to a resident and that may be prevented by supervision.  Woodstock Care Ctr., DAB No. 1726 at 21, 36 (2000).  Abuse of a resident by another resident may cause injury to the resident and may be prevented by supervision and, therefore, qualifies as an accident within the meaning of 42 C.F.R. § 483.25(d). 

The undisputed facts establish that Petitioner had a duty to supervise the residents in the secure unit, especially Residents 1, 2, and 3.  It knew that these residents wandered.  It knew about Residents 2’s and 3’s proclivities.  It knew also that Resident 1 was helpless because of her advanced dementia and physical infirmities.  

Petitioner failed to translate that knowledge into action.  Its failure to supervise Residents 1, 2 and 3 was the proximate cause of the sexual abuse that Residents 2 and 3 perpetrated against Resident 1. 

Petitioner argues that charging it with two violations of different regulations based on identical facts is impermissible “stacking” of allegations by CMS.  Petitioner’s brief at 13-14.  It argues that the State Operations Manual, a CMS-generated document that provides guidance to surveyors of skilled nursing facilities, precludes charging Petitioner with two regulatory violations in this case.  Id.  It argues additionally that abuse or neglect cannot also be an accident within the meaning of the regulations.  Id. 

These arguments are unpersuasive.  First, the State Operations Manual is neither regulations nor an authoritative interpretation of regulations.  The regulations speak for themselves, and their meaning is not altered by the State Operations Manual.  Agape Rehab. of Rock Hill, DAB No. 2411 at 19 (2011).  Moreover, the State Operations Manual does not bar determinations that the same facts may justify findings of noncompliance with more than one regulation.  As Petitioner concedes, multiple deficiencies may emanate from the same facts if those facts describe noncompliance with more than one regulation.  Petitioner’s brief at 14; Azalea Court, DAB No. 2352 at 12 (2010), aff’d sub nom. Azalea Court v. U.S. Dep’t of Health & Human Servs., 482 F. App’x 460 (11th Cir. 2012); Brian Ctr. Health & Rehab./Goldsboro, DAB No. 2336 at 6 (2010). 

In this case the undisputed facts plainly establish abuse and/or neglect and also establish failure to protect residents against accidents.  As I explain above, failure by a skilled nursing facility to protect residents against an assault by another resident with a known proclivity for assaultive behavior may result from inadequate supervision.  In that case, the failure to prevent becomes an accident within the meaning of 42 C.F.R. § 483.25(d).  Woodstock, DAB No. 1726 at 21, 36. 

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2. Immediate Jeopardy

CMS determined that Petitioner’s noncompliance with the requirements of 42 C.F.R. §§ 483.12 and 483.25(d) 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 is 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, Liberty Commons Nursing & Rehab Ctr. – Johnston v. Leavitt, 241 F. App’x 76 (4th 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 yield only the conclusion that Petitioner’s noncompliance put residents at immediate jeopardy. 

Resident 1 was highly vulnerable to abuse and to accidents.  She was physically impaired, suffering from muscle weakness, a loss of coordination, and an abnormal gait.  She suffered from advanced dementia so severe that she was unable to complete a mental competency examination.  Her severely impaired state created an urgent need for Petitioner to protect her.  That need was heightened by the fact that Petitioner housed her with residents who had a history of sexually inappropriate behavior.  Housing Resident 1 with Residents 2 and 3 created a strong likelihood that Resident 1 would become a victim of abuse unless Petitioner employed measures to protect her, including enhanced supervision.  

Petitioner failed to provide Resident 1 with the necessary protection, and that failure created a likelihood that the resident would suffer serious injury, harm, impairment, or death at the hands of abusive residents. 

Petitioner argues that the only event that potentially put residents at immediate jeopardy was Resident 2’s molestation of Resident 1 on July 17, 2021.  Petitioner’s brief at 15.  It asserts that no immediate jeopardy resulted from that event because Petitioner transferred

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Resident 2 away from its premises on July 20, 2021, the first day of the period of immediate jeopardy level remedies determined by CMS.  Therefore, according to Petitioner, there is no basis in the record for CMS to find continuing immediate jeopardy.  Id. 

But removing Resident 2 did not address the fundamental problem at Petitioner’s facility.  Incidents of abuse and failure to protect Resident 1 from accidents may have related to Resident 2’s presence.  But they also related to Petitioner’s failure to supervise its residents.  That failure persisted after July 20. 

3. Remedies

The remedies that CMS determined to impose against Petitioner consist of civil money penalties of:  $13,400 for each day of a period that began on July 20, 2021, and that continued through August 6, 2021; and $350 for each day of a period that began on August 7, 2021, and that continued through September 2, 2021.  The larger penalty amount addresses the days when CMS determined Petitioner’s noncompliance to be at the immediate jeopardy level.  The smaller amount addresses a period during which CMS found that Petitioner’s noncompliance continued, but at a level that was less than immediate jeopardy. 

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 near the mid-point of the permissible range for immediate jeopardy level penalties (from $6,808 to $22,320) and near the bottom of the permissible range for non-immediate jeopardy level penalties (from $112 to $6,695).  45 C.F.R. § 102.3 (2020); 85 Fed. Reg. 2869, 2880 (Jan. 17, 2020). 

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CMS asserts that the penalty amounts are justified based on the seriousness of Petitioner’s noncompliance, its culpability, and its compliance history.  Undisputed facts amply support CMS’s assertions.² 

The noncompliance in this case was serious.  Residents of skilled nursing facilities are no longer able to deal without assistance with the basic requirements of day-to-day life.  They are usually sick and often cognitively impaired, rendering them among the most vulnerable members of our society.  A skilled nursing facility promises to care for and protect these fragile individuals in compliance with Medicare participation requirements.   Petitioner failed to keep its end of the bargain.  It knew that its secure unit housed vulnerable individuals who needed supervision and protection.  It failed to provide that protection, thereby allowing an essentially helpless resident to be sexually abused not once, but twice, by two different individuals. 

Petitioner exhibited a high level of culpability for its noncompliance.  It knew in January 2021 that abuse occurred in the secure unit.  The January 26, 2021 episode put Petitioner on notice that the supervision it provided within the secure unit was inadequate.  Yet Petitioner did not augment its staff.  Petitioner acknowledged that its facility was short-staffed when a second episode occurred in July 2021. 

Finally, Petitioner has a poor compliance history.  It had been found noncompliant at eight surveys in the five years prior to 2021.  CMS Ex. 39 at 1-3. 

Petitioner has offered no facts that suggest that CMS’s remedy determination is unauthorized or unreasonable.  Petitioner argues that the remedies are unreasonable because CMS’s findings of noncompliance are unsupported.  Petitioner’s brief at 17.  I have explained above why the undisputed facts and the regulations support CMS’s noncompliance findings.  But that assertion aside, Petitioner offers no facts or analysis that would undercut CMS’s remedy determinations as to penalty amounts. 

Petitioner also asserts that CMS’s determination of the duration of the remedies is unreasonable.  It has not offered any facts to show that this is so. 

Endnotes

¹  CMS objected to P. Ex. 1 on the ground that it lacks foundation.  I do not rule on CMS’s objection.  The exhibit appears to be a line-by-line comparison of language that may have been copied from regulations.  It does not contain any facts that are material to the outcome of this case. 

²  The findings of noncompliance made at surveys of Petitioner’s facility on August 20, 25, and 26, 2021 are administratively final.  These findings are sufficient, in and of themselves, to sustain the $350 per-diem penalty that CMS imposed for non-immediate jeopardy level noncompliance.