Consulate Healthcare of Jacksonville, DAB No. 3119 (2023)

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Consulate Healthcare of Jacksonville (Petitioner) appeals from an administrative law judge (ALJ) decision, Consulate Healthcare of Jacksonville, DAB CR5241 (2019) (ALJ Decision).  The ALJ upheld a determination by the Centers for Medicare & Medicaid Services (CMS), based on several compliance surveys of Petitioner’s skilled nursing facility (SNF), that Petitioner was not in substantial compliance with Medicare participation requirements from February 9, 2015, through March 10, 2015.  ALJ Decision at 1-2, 46.  The ALJ also upheld CMS’s assessment of immediate jeopardy from February 9, 2015, through March 9, 2015, and the remedies CMS imposed.  Id. at 1, 46.  For the reasons discussed below, we affirm the ALJ Decision.

Legal Background

Section 1819 of the Social Security Act (Act) and the regulations in 42 C.F.R. Part 483 govern SNFs’ participation in the Medicare program.¹  To participate, a SNF must be in substantial compliance with program requirements.  42 C.F.R. § 488.330(b); Shalala v. Illinois Council on Long Term Care, Inc., 529 U.S. 1, 6 (2000).  Substantial compliance means that no identified deficiency places residents at risk of more than minimal harm, and noncompliance means lack of substantial compliance.  See 42 C.F.R. § 488.301 (defining “deficiency,” “noncompliance,” and “substantial compliance”).

State health agencies conduct on-site compliance surveys of SNFs.  Act §§ 1819(g), 1864(a); 42 C.F.R. §§ 488.10, 488.11.  The surveys include conferring with facility staff, touring the facility, interviewing residents, reviewing medical records, and observing patient care.  42 C.F.R. § 488.110(a)-(h).  The surveys are intended to determine

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compliance with program participation requirements, and the surveyor’s primary role is to assess the quality of care and services as related to the legal requirements for program participation.  Id. § 488.110(m).

When surveyors find substandard care or services in the course of a survey, they prepare a Statement of Deficiencies that organizes deficiency findings by alpha-numeric “tags” corresponding to regulatory requirements and CMS guidance.  See id. § 488.110(i), (m); Vibra Hosp. of Charleston – TCU, DAB No. 3094, at 2 n.2 (2023); see generally CMS Pub. 100-07, State Operations Manual (SOM), Chapter 7, Survey and Enforcement Process for Skilled Nursing Facilities & Nursing Facilities, (last visited Oct. 27, 2023), https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Internet-Only-Manuals-IOMs-Items/CMS1201984; Cross Creek Health Care Ctr., DAB No. 1665, at 7 (1998) (explaining that the SOM “is distributed to state survey agencies to assist them in conducting facility surveys”).  The state agency provides the Statement of Deficiencies to the SNF and CMS.  42 C.F.R. § 488.110(j), (k).  In response, the SNF must submit an acceptable plan of correction specifying its corrective measures and a timetable for completing them.  Id. §§ 488.401 (defining “plan of correction”), 488.402(d), 488.408(f).  Follow-up surveys serve to re-evaluate the care deficiencies cited during the original survey.  Id. § 488.110(l).

CMS may impose one or more enforcement “remedies” on a SNF found to be out of substantial compliance.  Act § 1819(h); 42 C.F.R. §§ 488.400; 488.402(b)-(c); 488.404; 488.406; 488.408(a)-(e).  Available remedies include a civil money penalty (CMP), assessed either per day or per incident, and a denial of payment for new admissions (DPNA).  42 C.F.R. §§ 488.406(a)(3); 488.417; 488.430; 488.438(a).  The most serious noncompliance poses immediate jeopardy, meaning it “has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.”  Id. § 488.301 (defining “immediate jeopardy”).  A daily CMP can range from $3,050 to $10,000 per day for noncompliance posing immediate jeopardy, and from $50 to $3,000 per day for less serious noncompliance.  Id. §§ 488.408(d)-(e); 488.438(a).  Within either range, CMS sets a CMP amount by considering specified factors.  Id. §§ 488.404; 488.408(b), (d)(2), (e)(2); 488.438(b), (f).  A per day CMP may accrue “as early as the date that the facility was first out of compliance” and continues until the SNF achieves substantial compliance or its provider agreement terminates.  Id. §§ 488.440(a)(1), 488.454(a).  A DPNA cannot end until the facility achieves substantial compliance.  Id. § 488.417(e).

A SNF may appeal a noncompliance determination that led to imposition of a remedy by requesting an ALJ hearing and appealing an unfavorable ALJ decision to the Departmental Appeals Board (Board).  Id. §§ 488.408(g)(1); 498.3(b)(13)-(14); 498.5(a)-(c).  However, certain issues are not appealable, including CMS’s choice of remedy and CMS’s noncompliance level determination (unless it would affect the applicable CMP range).  Id. §§ 488.408(g)(2); 498.3(b)(13)-(14).

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Case Background²

Petitioner operated a facility in Jacksonville, Florida that participated in Medicare as a SNF.³  ALJ Decision at 2; Joint Stipulations ¶ 1.  As further detailed below, a February 9, 2015, incident (Incident) occurred that involved two of Petitioner’s residents, Resident 1 and Resident 2, and ultimately led to this appeal.

A.       Petitioner’s written policy concerning resident abuse, neglect, and mistreatment

Petitioner had a written Resident Abuse Policy dated November 30, 2014, for protecting residents’ “basic human rights,” including freedom from abuse.  CMS Ex. 10, at 1; see generally ALJ Decision at 22-23; CMS Ex. 1, at 21-23, 39.  The policy declared that facility employees have a “continuing obligation to treat residents so they are free from abuse, neglect, [and] mistreatment,” and a “duty to respect the rights of all residents” and “prevent others from violating their rights.”  CMS Ex. 10, at 1, 5.  The policy defined abuse to include sexual abuse (which could consist of sexual harassment, sexual coercion, sexual assault, or “allowing a resident to be sexually abused by another”) and acknowledged that “resident abuse can be committed by other residents.”  Id. at 2, 4; ALJ Decision at 22.  The policy defined “Neglect” as including failures to “take precautionary measures to protect the health and safety of the resident,” to “notify a resident’s legal representative in the event of an incident involving the resident,” or to “report observed or suspected abuse . . . to the proper authorities.”  CMS Ex. 10, at 2-3.  The policy designated an Abuse Coordinator to “endeavor to protect the rights of residents,” and appointed the facility’s Executive Director (Administrator) to fulfill that role, with the Director of Clinical Services (Director of Nursing, or DON) to serve in the Administrator’s absence.⁴  Id. at 7; ALJ Decision at 10, 20, 22.

The Resident Abuse Policy mandated procedures for identifying and reporting abuse.  ALJ Decision at 22-23; CMS Ex. 1, at 21-22, 39-41, 57-59; CMS Ex. 10, at 5, 7-9.  To identify abuse, the policy provided that the DON “will” investigate “[a]ll reported

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events,” including “inappropriate or abusive behaviors,” and report the resulting information to the Administrator serving as Abuse Coordinator; also, “[p]atterns or trends will be identified that might constitute abuse.”  CMS Ex. 10, at 7.  To report abuse, the policy mandated this procedure:

All incidents of resident abuse are to be reported immediately to the Clinical Nurse in Charge, [DON], and [Administrator].  Once reported to one of those three officials, the prescribed forms are to be completed and delivered to the Abuse Coordinator or his/her designee for an investigation.  The [A]buse [C]oordinator is responsible for reporting to appropriate officials in accordance with Federal and State regulations.

Id.

The Resident Abuse Policy also required certain investigative steps.  Id. at 5, 7-9; ALJ Decision at 22-23; CMS Ex. 1, at 21-22, 39-41, 57-59.  Specifically:

• “The Abuse Coordinator or his/her designee shall investigate all reports of suspected abuse.  A Social Service representative shall be present in the role of resident advocate during any questioning of or interviewing of residents.”  CMS Ex. 10, at 7.
• “Immediately upon report of an incident to the individual in charge, the suspect(s) shall be segregated from the resident.”  Id. at 8.
• “The Clinical Nurse in charge or [DON] shall perform and document a thorough nursing assessment, and notify the attending physician.”  Id.
• “An incident report shall be filed by the individual in charge who received the report in conjunction with the person who reported the abuse.  This report shall be filed as soon as possible in order to provide the most accurate information in a timely fashion.”  Id.
• “The Abuse Coordinator and/or [DON] shall take statements from the victim, the suspect(s) and all possible witnesses including all other employees in the vicinity of the alleged abuse.  He/she shall also secure all physical evidence.  Upon completion of the investigation, a detailed report shall be prepared.”  Id.
• “Once completed, the investigation’s report shall be reviewed by the [DON], the Abuse Coordinator, and one other Administrative staff member.”  Id. at 9.

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• The Abuse Coordinator “will refer any or all incidents and reports of resident abuse to the appropriate state agencies.”  Id.

B.       The Incident

Resident 1 was a widowed 79-year-old woman admitted to Petitioner’s facility in June 2014, with diagnoses including anxiety, cognitive communication deficit, depressive disorder, senile dementia, and unspecified psychosis.  ALJ Decision at 14; CMS Ex. 2, at 3-4, CMS Ex. 5, at 1-2; P. Ex. 10, at 2-3, 15.  She wore a Wanderguard device to prevent elopement.  ALJ Decision at 14; CMS Ex. 5, at 5, 23.  Six mental status examination reports from September 9, 2014 through February 2, 2015, consistently documented that Resident 1 had slow thought processes, impaired memory, and poor insight/judgment, and diagnosed her as having Alzheimer’s Disease with confusion, agitation, delusions, and depressed mood.  CMS Ex. 5, at 10-21; see also ALJ Decision at 14.  However, each report also documented that her mental capability – including whether she was competent or incompetent – was not evaluated or requested.  CMS Ex. 5, at 12, 14, 16, 18, 20.  A January 1, 2015, Social Service Progress Review noted Resident 1 was “moderately impaired” in daily decision-making.  Id. at 116; ALJ Decision at 17.  A January 1, 2015, Minimum Data Set assessment coded Resident 1 as continuously inattentive, with disorganized thinking, and recorded her Brief Interview for Mental Status (BIMS) score as 5 out of a possible 15, indicating severe impairment.⁵  ALJ Decision at 17; CMS Ex. 1, at 10; CMS Ex. 5, at 122; CMS Ex. 25, at 2, ¶ 9; P. Ex. 10, at 6-7.

Resident 2 was a 45-year-old man, admitted to Petitioner’s facility in June 2014, with traumatic brain injury from a traffic accident.  ALJ Decision at 18; CMS Ex. 1, at 10, 29-30, 47-48, 65-66; CMS Ex. 2, at 5; CMS Ex. 6, at 1.  Resident 2’s decision-making ability was described variously as “independent” and impaired with “modified independence.”  ALJ Decision at 18; CMS Ex. 2, at 6; CMS Ex. 6, at 11.  A December 2014 quarterly assessment diagnosed him with cognitive communication deficit and a BIMS score of 12 out of 15, indicating only moderate impairment.  CMS Ex. 6, at 89, 91.

On February 9, 2015, between about 1:15 p.m. and 1:30 p.m., a licensed practical nurse (LPN) reported to a supervising nurse (the Unit Manager) that the LPN, while walking

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down a facility hallway, had seen Resident 1 in her room performing oral sex upon Resident 2.  ALJ Decision at 12-13, 22; CMS Ex. 1, at 6-7, 43-44, 61; P. Ex. 6, ¶¶ 3-5; P. Ex. 9, ¶¶ 1-3.  The Unit Manager directed the LPN to report the Incident to the DON, who was serving as the facility’s Abuse Coordinator at that time.  ALJ Decision at 22; P. Ex. 6, ¶ 5; P. Ex. 9, ¶ 3.  The Unit Manager also called and informed the facility’s Social Services Director.  CMS Ex. 2, at 7; CMS Ex. 11, at 1; P. Ex. 4, ¶ 3.  As discussed herein, the term “Incident” refers to both the alleged sexual act between Residents 1 and 2 and the LPN’s reporting of it.

C.       Petitioner’s Response to the Incident

At approximately 1:30 p.m. on February 9, 2015, the LPN visited the DON’s office with the Social Services Director and reported the Incident to the DON.  ALJ Decision at 22; P. Am. Ex. 1 (written direct testimony of DON), at 2, ¶ 13; P. Ex. 2 (transcription of video testimony of DON), at 10.  The LPN reported having told Residents 1 and 2 to stop what they were doing, and opined that Resident 1 had dementia and could not consent to sexual activity.  ALJ Decision at 22; CMS Ex. 11, at 2; P. Ex. 6, ¶ 5.  The DON asked the Social Services Director to interview Residents 1 and 2.  P. Am. Ex. 1, at 3, ¶ 16; P. Ex. 2, at 11-12; P. Ex. 4, ¶¶ 3-4.  The Social Services Director interviewed both residents and reported to the DON that each resident denied sexual contact with the other.  ALJ Decision at 15-16, 18; P. Am. Ex. 1, at 3, ¶ 16; P. Ex. 2, at 12; P. Ex. 4, ¶¶ 3, 4.  The LPN insisted that “she was sure of what she saw.”  CMS Ex. 1, at 27, 44, 63.  The DON then reportedly spoke with two certified nursing assistants experienced in caring for Residents 1 and 2; one “didn’t see anything occur,” and the other “knew absolutely nothing.”  P. Ex. 2, at 13-14.  The DON also reportedly looked at the medical charts for Residents 1 and 2 and considered them able to make known their wishes and needs.  P. Am. Ex. 1, at 3, ¶ 20; P. Ex. 2, at 15.  The DON then deemed both residents to be consenting adults.  ALJ Decision at 16, 33; CMS Ex. 11, at 2.

The DON admittedly closed the post-Incident investigation “within an hour after” receiving the LPN’s report, with the “conclusion that the consent issue did not have to be addressed because the incident did not happen” and the LPN “didn’t see what she thought she saw.”  P. Am. Ex. 1, at 2-3, ¶ 15; P. Ex. 2, at 17; see also ALJ Decision at 23.  Alternatively, the DON concluded that if the Incident did occur, “it was consensual,” based on the DON’s belief that “both Residents were capable of consenting to having sex.”  P. Am. Ex. 1, at 3-4, ¶¶ 20, 21.  The DON admittedly “did not believe that . . . any protective measures needed to be employed for either Resident” or that any notice to their family members or physicians, the responsible state agency, or the facility Administrator was required.  Id. at 3-4, ¶ 21.  Accordingly, there was no immediate report to the Administrator or the State Agency, and the DON did not act to segregate Residents 1 and 2 or otherwise protect them.  ALJ Decision at 22-23.

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D.       The initial complaint survey

Two days after the Incident, on February 11, 2015, an anonymous complaint to the Florida Agency for Health Care Administration (State Agency) prompted an investigation and extended survey of the facility from February 12 through 17 of 2015.  ALJ Decision at 2, 12; CMS Ex. 1, at 1.  The anonymous tip was from the LPN, who felt that Resident 2 had “taken advantage of” Resident 1 and could “continue to take advantage of the dementia resident” because the DON “did not handle the situation appropriately” or “rectify the issue in any way.”  ALJ Decision at 12; CMS Ex. 23; CMS Ex. 26, at 2, ¶ 9.

The DON confirmed to surveyors that after interviewing Residents 1 and 2 the facility did nothing more (such as relocating one of them or changing their supervision) because the DON considered them “consenting adults.”  CMS Ex. 1, at 13, 32, 50.  The DON confirmed that “there was no documentation of an assessment of Resident #1 after the [I]ncident,” her physician was not notified, and both measures “should have been done.”  Id. at 19-20, 38-39, 56-57, 74; see also CMS Ex. 3, at 2; ALJ Decision at 33, 40.  The DON remained silent when a surveyor pointed out Resident 1’s January 1, 2015 mental status score of 5 out of 15, indicating severe impairment, and the DON acknowledged, “I should have investigated, and I take responsibility for that.”  CMS Ex. 1, at 10, 13, 20.

The surveyors also spoke with other members of Petitioner’s staff and reviewed facility records.  Petitioner’s Administrator was “very disappointed” to learn of the Incident for the first time on February 12, 2015, and asked the DON, “[W]hat were you thinking?  Why didn’t you report this?”  Id. at 13-14, 50-51, 68; CMS Ex. 2, at 10.  The Unit Manager admittedly did not consider Resident 1 capable of making sexual decisions, yet did not call the abuse hotline, but instead directed the LPN to “document what the [DON] told her and cover herself,” which the LPN did with a nursing note detailing the Incident and response.  CMS Ex. 1, at 2-3, 6-7, 9, 25-26, 28, 64; CMS Ex. 2, at 9; CMS Ex. 5, at 23-24.  The Social Services Director acknowledged leaving only an unspecified voice message for Resident 1’s daughter and not calling either of Resident 1’s other listed emergency contacts.  ALJ Decision at 34; CMS Ex. 1, at 4; CMS Ex. 3, at 2.  No one on Petitioner’s staff produced for surveyors a written incident report or evidence of a thorough investigation.  CMS Ex. 1, at 20, 39, 57, 74; CMS Ex. 2, at 15; CMS Ex. 3, at 3; CMS Ex. 26, at 3.  Resident 1’s care plan showed a direction added on February 10, 2015, to “attempt to redirect” if Resident 1 were found performing a sex act but provide privacy if both residents were in agreement.  ALJ Decision at 17; CMS Ex. 5, at 85; see also RR at 15 (acknowledging “the entry was made the day after the residents” were “found in the same room together”).  Petitioner had modified Resident 2’s care plan similarly.  ALJ Decision at 16; CMS Ex. 6, at 23.

The surveyors determined, through “observation, resident and staff interviews, and record review,” that members of Petitioner’s staff had known of “sexualized” behavior by Resident 1, sometimes involving Resident 2, before the Incident.  CMS Ex. 1, at 60.

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Several employees, and a “very sharp and cognitively intact” resident, made statements to that effect.  Id. at 8, 16-19, 27-28, 35-38, 45-46, 53-56, 63-64; CMS Ex.  2, at 11-13; CMS Ex. 3, at 4; CMS Ex. 25, at 4.  Resident 1’s care plan documented that she “makes sexual comments” and “sexual gestures,” on pages bearing dates both before and after the Incident.  ALJ Decision at 17; CMS Ex. 5, at 84, 87, 88.

After the survey commenced, Petitioner initiated remedial steps.  On February 12, 2015, the DON prepared an incident report and filed state and federal abuse reports.  ALJ Decision at 20; CMS Ex. 4; CMS Ex. 9; CMS Ex. 18, at 15, 34.  On February 13, 2015, Petitioner instituted one-to-one supervision for Residents 1 and 2 and told Resident 1’s daughter-in-law, who was a listed emergency contact, about the Incident.  ALJ Decision at 15; CMS Ex. 5, at 1, 114; CMS Ex. 6, at 24; CMS Ex. 24, at 12, 20; P. Ex. 11, at 1.  Also on February 13, 2015, Resident 1 received a physical assessment and Resident 2 received a psychological evaluation.  CMS Ex. 5, at 30; CMS Ex. 18, at 16-17; P. Ex. 11, at 1.  On February 14, 2015, Petitioner relieved the DON of the Abuse Coordinator role and reassigned it to the Administrator.  CMS Ex. 3, at 3; CMS Ex. 24, at 11, 20.  A Nurse Practitioner (NP) psychologically evaluated Resident 1 on February 16, 2015, assessed her as “Incompetent,” and noted “inappropriate sexual behavior.”  ALJ Decision at 14; CMS Ex. 5, at 8-9; CMS Ex. 18, at 16; P. Ex. 11, at 1.  A February 16, 2015, amendment to Resident 1’s care plan instructed staff to redirect her and notify a nurse immediately if an observed sex act occurred.  ALJ Decision at 17; CMS Ex. 3, at 7; CMS Ex. 5, at 86.

On February 17, 2015, the State Agency found Petitioner was not in substantial compliance beginning February 9, 2015, and cited immediate jeopardy beginning that date and ongoing upon survey exit.  ALJ Decision at 2; CMS Ex. 1, at 1, 5; CMS Ex. 14, at 12; CMS Ex. 18, at 1.  Petitioner presented to the State Agency a written Allegation of Compliance to abate the immediate jeopardy, and communicated with the State Agency by email from February 13, 2015, through March 3, 2015, about the deficiency citations and Petitioner’s remedial efforts.  CMS Ex. 18, at 1; CMS Ex. 24; CMS Ex. 27, at 2, ¶ 4.  Representatives of Petitioner and the State Agency met in person on March 3, 2015.  CMS Ex. 27, at 2, ¶ 4.  That same day, by letter, CMS imposed several remedies:  a CMP of $7,000 per day effective February 9, 2015; a DPNA to begin March 5, 2015; and a potential provider agreement termination as of March 12, 2015.⁶  ALJ Decision at 2;

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CMS Ex. 15, at 8-13.  On March 5, 2015, the State Agency and CMS accepted Petitioner’s amended Allegation of Compliance.  CMS Ex. 18, at 1.

E.       Revisit surveys, cited deficiencies, and imposed remedies

On March 10, 2015, the State Agency conducted a follow-up survey to determine the status of the ongoing immediate jeopardy.  Id. at 1-2.  The surveyors documented remedial steps by Petitioner that included revising its Resident Abuse Policy, retraining staff including the DON, relocating Resident 1 to a locked dementia unit at a different facility, and continuing one-to-one supervision of Resident 2.  ALJ Decision at 2, 10-11; CMS Ex. 18, at 1-2, 24, 26, 77; CMS Ex. 19, at 4; P. Ex. 14, at 17-27.  By letter dated April 6, 2015, CMS notified Petitioner that the revisit survey “found that immediate jeopardy was removed” but Petitioner’s facility “remained out of substantial compliance.”  ALJ Decision at 2; CMS Ex. 15, at 3.  CMS further notified Petitioner that the $7,000 daily CMP ended after March 9, 2015, but a $100 daily CMP continued, the DPNA remained in effect, and termination would occur if Petitioner did not return to substantial compliance by August 17, 2015.  ALJ Decision at 2; CMS Ex. 15, at 4-5.

The surveyors conducted a second revisit on April 10, 2015.  ALJ Decision at 2, 11; CMS Ex. 20.  On April 14, 2015, CMS notified Petitioner that it had returned to substantial compliance effective March 11, 2015, so as of that date the CMP ceased accruing, the DPNA ended, and Petitioner’s provider agreement would not terminate.  ALJ Decision at 2, 11; CMS Ex. 15, at 1; CMS Ex. 20, at 1.

In sum, CMS cited the following noncompliance:

ALJ Decision at 1, 9-10, 10 n.7; Joint Stipulations ¶ 3; CMS Ex. 1, at 1, 4-6, 23, 42, 60; CMS Ex. 18, at 1.  CMS imposed the following remedies:  a $7,000 per day CMP from February 9, 2015 through March 9, 2015; a $100 per day CMP on March 10, 2015; and a DPNA from March 5, 2015 through March 10, 2015.  Joint Stipulations ¶ 4.

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F.       Proceedings before the ALJ

On May 1, 2015, Petitioner requested an ALJ hearing.  ALJ Decision at 2; Req. for Hr’g (RFH) at 7-8.  The parties waived oral hearing and requested decision on the written record.  ALJ Decision at 2; Joint Settlement Status Report ¶ 2.  The parties filed principal and reply briefs and proposed exhibits (27 for CMS, 24 for Petitioner).  ALJ Decision at 3.

Petitioner sought to prove “that an objective assessment of the evidence demands the conclusion that there was no ‘incident’ between Resident #1 and #2.”  P. Prehr’g Br. at 2; see also id. at 3-8.  Petitioner disputed the “accuracy and/or completeness” of staff comments documented in the Statement of Deficiencies.  RFH at 3; see also P. Prehr’g Br. at 17-19; P. Am. Ex. 1; P. Exs. 2-9 (staff members’ proposed written testimony).  Petitioner discounted opinions that Resident 1 was incompetent to consent to sex, on the grounds that they either were rendered by unqualified persons, see P. Prehr’g Br. at 13, misconstrued, see P. Ex. 24, ¶ 3, or both, see P. Ex. 4, ¶ 7.  Petitioner also argued that, even if the Incident occurred as alleged, CMS did not establish any regulatory violations and acted unreasonably in assessing immediate jeopardy and imposing the CMP.  P. Prehr’g Br. at 8-17, 21-25.

CMS argued in response that Petitioner did not comply with regulations governing abuse and neglect, CMS Prehr’g Br. at 7-11, accidents and supervision, id. at 11-13, and notification, id. at 13-14.  CMS also defended its immediate jeopardy determination as not clearly erroneous, id. at 14-15, and the CMP imposed as reasonable, id. at 15-17.

The ALJ issued a written decision on February 4, 2019.  The ALJ admitted all exhibits except Petitioner’s proposed Exhibit 13, which the ALJ excluded as cumulative.  ALJ Decision at 3-4.  The ALJ reached six primary legal conclusions.  First, CMS made a prima facie showing that “Petitioner violated 42 C.F.R. §§ 483.10(b)(11), 483.13(c) and (c)(2), (3), (4), and 483.25(h) as alleged, and the violations posed a risk for more than minimal harm.”  Id. at 8, 11.  Second, Petitioner had not “rebutted the CMS prima facie showing or established an affirmative defense by a preponderance of the evidence.”  Id.  Third, Petitioner had not shown “that the declaration of immediate jeopardy and the duration of immediate jeopardy is clearly erroneous.”⁸  Id.  Fourth, the CMP amounts that CMS imposed were reasonable.  Id.  Fifth, CMS had authority to hold the CMP in escrow.  Id. at 12.  Sixth, Petitioner was not entitled to attorney fees, as Petitioner did

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“not prevail upon any issue in this case” and CMS’s “position was substantially justified.”  Id. at 12, 46.

G.       Proceedings before the Board

Petitioner timely requested Board review of the ALJ Decision, challenging all of the ALJ’s primary conclusions except those concerning escrow and attorney fees.  Request for Review (RR).  Petitioner asks the Board to “reverse the ALJ’s conclusions that there were deficiencies proven under Tags F157, F224, F225, F226 and F323.”  Id. at 26.  Next, “[t]o the extent those deficiencies are upheld,” Petitioner requests that the Board “find that the assignment of immediate jeopardy to Tags F224, F225, F226 and F323 was clear error or, alternatively, that continuing that rating and the corresponding $7000 per day CMP after February 13, 2015 was clear error.”  Id.

CMS filed a response brief arguing that the Board should sustain the ALJ Decision in its entirety.  CMS Br. at 23.  CMS asserts that substantial evidence supports the ALJ’s findings that Petitioner did not comply with regulations governing abuse and neglect (per Tags F224, F225 and F226), id. at 7-12, resident supervision and accident prevention (per Tag F323), id. at 12-14, and notification (per Tag F157), id. at 14-15.  CMS also contends that the ALJ’s determinations regarding the immediate jeopardy determination, CMP, and DPNA were not erroneous.  Id. at 20-23.  CMS asserts generally that Petitioner’s arguments are unsupported and meritless.  Id. at 15-20.

Petitioner filed a reply brief, neither party requested oral argument, and the record closed.

Standard of Review

The Board’s standard of review on a disputed factual issue is whether substantial evidence in the record as a whole supports the ALJ’s decision, and our standard of review on a disputed legal issue is whether the ALJ’s decision is erroneous.  Guidelines - Appellate Review of Decisions of Administrative Law Judges Affecting a Provider’s Participation in the Medicare and Medicaid Programs (Guidelines), (last visited Oct. 27, 2023), https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-board/guidelines/participation/index.html.  “When reviewing for substantial evidence, the Board reviews the whole record, considering both what supports the ALJ’s decision and what undercuts it.”  Golden Living Ctr. - Riverchase, DAB No. 2314, at 18 (2010), aff’d, 429 F. App’x 895 (11th Cir. 2011) (per curiam).

“Substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”  Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).  “The ‘substantial evidence’ standard is deferential.”  Glenoaks Nursing Ctr., DAB No. 2522, at 6 (2013).  “Under the substantial evidence standard, the Board does not re-weigh the evidence or

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overturn an ALJ’s choice between two fairly conflicting views of the evidence; instead, the Board determines whether the contested finding could have been made by a reasonable fact-finder taking into account whatever in the record fairly detracts from the weight of the evidence that the ALJ relied upon.”  Douglas Bradley, M.D., DAB No. 2663, at 5 (2015) (internal quotation marks, brackets, and citations omitted); see also Golden Living Ctr. - Frankfort, DAB No. 2296, at 9-10 (2009), aff’d, 656 F.3d 421 (6th Cir. 2011).

Analysis

We first summarize the parties’ evidentiary burdens.  CMS bore the burden to present a prima facie case concerning Petitioner’s noncompliance, after which the burden of proof shifted to Petitioner to show substantial compliance by a preponderance of the evidence.  See NHC Healthcare Athens, DAB No. 2258, at 2-3 (2009) (citing Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004), aff’d, 129 F. App’x 181 (6th Cir. 2005) (per curiam)); Barbourville Nursing Home, DAB No. 1962, at 3 (2005), aff’d, 174 F. App’x 932 (6th Cir. 2006) (per curiam).  “A facility can overcome CMS’s prima facie case either by rebutting the evidence upon which that case rests, or by proving facts that affirmatively show substantial compliance.”  Evergreene Nursing Care Ctr., DAB No. 2069, at 7 (2007).  The “clearly erroneous” standard in 42 C.F.R. § 498.60(c)(2) “means that CMS’s immediate jeopardy determination,” including the duration of immediate jeopardy, “is presumed to be correct, and the burden of proving the determination clearly erroneous is a heavy one.”  Mississippi Care Ctr. of Greenville, DAB No. 2450, at 15 (2012), aff’d, 517 F. App’x 209 (5th Cir. 2013) (per curiam); see also Brian Ctr. Health & Rehab./Goldsboro, DAB No. 2336, at 8-9 (2010).

After reviewing the entire record and all of Petitioner’s arguments as summarized below, we hold the ALJ did not err in concluding that CMS established a prima facie case of Petitioner’s noncompliance, which Petitioner did not rebut by a preponderance of the evidence.  We also uphold the ALJ’s determination that Petitioner did not prove that the immediate jeopardy assessment was clearly erroneous or that the CMP amounts that CMS imposed were unreasonable.  We further affirm the ALJ’s upholding of the DPNA.

A.       The ALJ’s conclusion that Petitioner violated 42 C.F.R. § 483.13(c), (c)(2), (c)(3), and (c)(4), per Tags F224, F225, and F226, is supported by substantial evidence and not legally erroneous.

Petitioner asks the Board to “strike the ALJ’s finding that the DON received an allegation of abuse, and the attendant conclusions of violations under Tags F224, [F]225 and F226 based on that finding, as being unsupported by substantial competent evidence and contrary to law.”  RR at 10-11.  Those Tags alleged noncompliance with 42 C.F.R. § 483.13(c), (c)(2)-(c)(4).

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Regarding Tags F224 (prohibiting resident mistreatment) and F226 (concerning anti-abuse and anti-neglect policies), 42 C.F.R. § 483.13(c) requires in pertinent part that “[t]he facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents.”  Petitioner undisputedly had a Resident Abuse Policy, but the ALJ found that Petitioner’s DON “failed to act in accordance with Petitioner’s policy and the federal regulation.”  ALJ Decision at 27.  The ALJ further found the DON’s “failure to recognize a potential allegation of abuse and her failure to understand and execute her duties as required by the law are not excusable.”  Id. at 26.

Regarding Tag F225 (concerning investigating and reporting), 42 C.F.R. § 483.13(c)(2) requires the facility to “ensure that all alleged violations involving mistreatment, neglect, or abuse . . . are reported immediately to the administrator of the facility and to other officials . . . (including to the State survey and certification agency).”  The ALJ found the DON “failed to recognize and treat [the] LPN[]’s report as a report of possible abuse of residents” and to notify Petitioner’s administrator and the State Agency immediately.  ALJ Decision at 40.  Under section 483.13(c)(3), “[t]he facility must have evidence that all alleged violations are thoroughly investigated, and must prevent further potential abuse while the investigation is in progress.”  The ALJ found the DON’s investigation was not thorough and Petitioner did not prevent further potential abuse while or after investigating.  ALJ Decision at 16, 21, 40.  Under section 483.13(c)(4), “[t]he results of all investigations must be reported to the administrator” and other officials, “(including to the State survey and certification agency) within 5 working days” after the incident, and “if the alleged violation is verified appropriate corrective action must be taken.”  The ALJ found the DON “did not document the findings of her investigation” or report them to the Administrator or State Agency, and Petitioner took no appropriate corrective actions “until the surveyors entered the facility on February 12, 2015, prompted by [the anonymous] complaint.”  ALJ Decision at 26.

For reasons explained below, we affirm the ALJ’s conclusions that Petitioner violated 42 C.F.R. § 483.13(c), (c)(2)-(c)(4), per Tags F224, F225, and F226.

1.       Petitioner’s arguments concerning the definition of “abuse” do not establish error by the ALJ.

Petitioner argues that residents “are permitted to have consensual sex,” and a statement “that two residents were observed having sex is thus not, by itself, an allegation of abuse.”  RR at 6.  Petitioner contends that, “for purposes of nursing home regulations, abuse is defined by the mindset of the aggressor, not the capabilities of the victim, and exists where the aggressor ‘willfully’ inflicts injury on a resident with resulting harm.”  Id. (citing 42 C.F.R. § 488.301); see also P. Reply at 2-3.  Petitioner states that “[t]he ALJ appears to find that . . . the DON should have known that the [LPN’s] report was an allegation of abuse because she informed the DON that Resident [1] had dementia, and opined that condition prevented her from being able to consent.”  RR at 7.  According to

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Petitioner, the DON “was entitled to conduct a further investigation to determine if Resident #1 was capable of consenting before concluding whether she had an allegation of abuse.”  Id.

Petitioner misunderstands its obligations under the applicable regulations and misinterprets “abuse.”  The ALJ correctly quoted and applied the full definition of “abuse” in 42 C.F.R. § 488.301, which is the “willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.”  ALJ Decision at 25.  That definition, applied in the context of section 483.13, “does not require that the purpose of the actor be to inflict harm, but rather requires that the action have been undertaken deliberately.”  Britthaven, Inc., DAB No. 2018, at 4 (2006); see also Ridgecrest Healthcare, DAB No. 2598, at 15 (2014) (stating that the definition means “that the actor must have acted deliberately but not necessarily with intent to do harm”).  Moreover, in developing section 488.301, CMS rejected a comment suggesting that the affected resident must perceive the conduct as abusive, explaining that “[o]ur obligation is to protect the health and safety of every resident, including those that are incapable of perception or are unable to express themselves.”  59 Fed. Reg. 56,116, 56,130 (Nov. 10, 1994).  Accordingly, CMS’s reading of the regulatory definition “presumes that instances of abuse of any resident, whether cognizant or not, cause physical harm, pain, or mental anguish.”  Id.

Petitioner’s argument that the LPN’s account did not suggest Resident 2 “was willfully or deliberately trying to inflict harm on Resident #1” is unavailing.  See RR at 6.  Given both residents’ known cognitive limitations, the sexual act the LPN reported seeing could be abuse even if Resident 1 could not perceive the act as abusive and even if Resident 2 acted without harmful intent, so long as he acted deliberately.  See Somerset Nursing & Rehab. Facility, DAB No. 2353, at 19 (2010) (“[T]he Board has recognized the nonaccidental actions of a compromised resident as potentially abusive to other residents and sufficient to impose a duty of protection, investigation and reporting on the facility.”), aff’d in part & rev’d in part, 502 F. App’x 513 (6th Cir. 2012); see also Maysville Nursing & Rehab., DAB No. 2874, at 11 (2018) (confirming that “willful,” in definition of abuse, means only that abuser’s actions were deliberate rather than accidental or inadvertent); Yakima Valley, DAB No. 2422, at 15 (stating, in case involving resident-on-resident abuse, that “[t]he likelihood of serious injury stems from the aggressor’s actions, not his intent”).

By any rational definition, the Incident as the LPN reported it was an allegation of abuse that triggered certain required actions by the facility, including investigation, protection, and reporting.  As the State Agency summarized, while the “severely cognitively impaired” Resident 1 was under Petitioner’s care, Resident 2 “went into the victim’s room, stood beside her bed, and put his penis in her mouth.”  CMS Ex. 24, at 7; CMS Ex. 27, at 2-3, ¶ 10.  Yet Petitioner’s staff “failed to take the required actions under the regulation until the surveyors entered the facility.”  ALJ Decision at 26.  The ALJ thus

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supportably determined that Petitioner’s DON/Abuse Coordinator “failed to recognize an allegation of potential abuse and report and protect the residents involved,” and “a preponderance of the evidence shows that Petitioner failed to adequately implement its policy.”  Id. at 27.  Petitioner’s contrary arguments based on its overly narrow definition of “abuse” establish no error.

2.       Petitioner’s attempts to distinguish potential from actual allegations of abuse do not establish error by the ALJ.

According to Petitioner, the ALJ identified the LPN’s account as only a “potential” allegation of abuse, yet erroneously “treated it as an allegation” and “concluded that the DON should have done the same” by undertaking the regulatory duties of resident protection, physician notification, investigation, and reporting.  RR at 2-3.  Petitioner contends the ALJ cited no legal “authority which defines what an allegation of abuse is” and described the LPN’s report “as only a ‘potential allegation,’ but treated it as an actual allegation” requiring reporting and resident protection measures.  Id. at 5.

Petitioner’s argument has no merit.  The ALJ interchangeably called the LPN’s account a “potential allegation of abuse,” ALJ Decision at 22, 25, 26, an “allegation of potential resident abuse,” id. at 26, an “allegation of potential abuse,” id. at 16, 27, and an “allegation of abuse,” id. at 25-27.  Regardless of the ALJ’s description, “the reporting requirements are triggered by an allegation of abuse whether or not it is recognized as such by the facility.”  Illinois Knights Templar Home, DAB No. 2369, at 11 (2011).  Thus, the ALJ correctly concluded that once the LPN made the allegation, “Petitioner had the responsibility to protect Resident 1 and Resident 2, immediately report, and investigate under 42 C.F.R. § 483.13(c)(2), (3), and (4).”  ALJ Decision at 25-26.

Furthermore, Petitioner’s Resident Abuse Policy required the Abuse Coordinator to investigate “[a]ll reported events” of “inappropriate or abusive behaviors” and “all reports of suspected abuse.”  CMS Ex. 10, at 7 (emphasis added).  Per 42 C.F.R. § 483.13(c)(2), a facility must “ensure that all alleged violations involving . . . abuse . . . are reported immediately to the administrator of the facility” and the State survey and certification agency.  (Emphasis added.)  Section 483.13(c)(3) requires the facility to “have evidence that all alleged violations” involving abuse “are thoroughly investigated.”  (Emphasis added).  In short, “even an allegation of abuse that turns out to be unsubstantiated (or in a ‘gray area’) must be reported and investigated.”  Beverly Healthcare Lumberton, DAB No. 2156, at 13 (2008), aff’d, 338 F. App’x 307 (4th Cir. 2009) (per curiam); see also Illinois Knights at 12 (“[E]ven an allegation of abuse not ultimately substantiated must be fully investigated.”).

Thus, the ALJ correctly rejected the DON’s belief that “it was up to her to determine whether there was actual abuse . . . prior to reporting the allegation of abuse to the administrator and state agency and taking action to protect the residents.”  ALJ Decision

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at 26.  Clearly, 42 C.F.R. § 483.13(c)(4) “explicitly requires reporting of the results of all investigations of abuse, not merely those that substantiate abuse,” and “facilities are not free to view their internal investigations as an opportunity to ‘pre-screen’ whether an alleged or suspected instance of abuse is substantiated.”  Singing River Rehab. & Nursing Ctr., DAB No. 2232, at 8 (2009) (underlining replaced with italics); see also Rockcastle, DAB No. 2891, at 11 (stating that section 483.13 required the SNF to report allegations to state authorities immediately, “before conducting its own investigation or forming its own opinion as to whether abuse might have occurred”).  That requirement dovetails with the regulatory mandate “that the ‘State must review all allegations of resident neglect and abuse.’”  Singing River at 12 (quoting 42 C.F.R. § 488.335(a)(1)) (underlining replaced with italics); accord Columbus Nursing & Rehab. Ctr., DAB No. 2247, at 21 (2009).  Petitioner’s arguments again establish no error.

3.       Petitioner’s allegations of inconsistent or incomplete legal guidance do not establish error by the ALJ.

Petitioner also defends its handling of the Incident by pointing to allegedly inconsistent or incomplete legal guidance in effect at the time.  Petitioner claims that “DAB decisions and CMS protocol” justified the DON “in believing she could further investigate the issue of consent before determining whether she had an allegation of abuse.”  RR at 8; see also P. Reply at 2-3.  Petitioner contends that the same ALJ who decided the present case had ruled in a prior decision that “the requirements of the anti-abuse regulations . . . authorize facilities to conduct a preliminary investigation into whether they have an allegation of abuse.”  RR at 8 (citing Cedar View Good Samaritan, DAB No. 1897 (2003)).  Petitioner also contends that, as of 2015, CMS had not yet “provided more direction on this specific type of abuse and what facilities should do” in response, and only “finally provided more direction” years after the Incident, so “the DON did not have the benefit of that direction.”  RR at 9.  Specifically, Petitioner contends that CMS made clarifying updates to its applicable regulations and SOM only after the Incident.  See Id. at 6 n.5, 7 n.7, 8; P. Reply at 2, 2 n.1.

Petitioner misreads Cedar View, which held that, “[a]s the ALJ recognized, the salient question is not whether any abuse in fact occurred or whether [the SNF] had reasonable cause to believe that any abuse occurred, but whether there was an allegation” of abuse.  Cedar View at 11 (underlining replaced with italics).  That holding aligns with 42 C.F.R. § 483.13(c)(2), which requires SNFs to “ensure that all alleged violations” involving abuse “are reported immediately to the administrator of the facility and to other officials in accordance with State law through established procedures (including to the State survey and certification agency).”  (Emphasis added.)  Just as an allegation triggered the SNF’s duty to report immediately in Cedar View, see id. at 12, so the LPN’s allegation triggered Petitioner’s duty to report immediately here.

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Petitioner’s arguments of insufficient legal guidance from CMS before it updated its regulations and SOM appear to be unpreserved for Board review.  Petitioner did not brief these arguments before the ALJ, and may not do so for the first time here.  See Guidelines, “Completion of the Review Process,” ¶ (a); Meadowmere Emergency Physicians, PLLC, DAB No. 2881, at 15 (2018) (“A party appearing before the Board is not permitted to raise on appeal issues that could have been raised before the ALJ but were not.”).  We reject Petitioner’s argument for this reason alone.

Even if the issue were properly before the Board, Petitioner’s argument concerning an alleged lack of legal guidance by CMS has no merit.  Although the DON may have misunderstood the applicable requirements, others at the facility did not.  For example, the facility Administrator plainly recognized the DON’s obligation to report the LPN’s allegation immediately, admittedly was “very disappointed” about not receiving a prompt report of the Incident, and asked the DON, “What were you thinking?  Why didn’t you report this?”  CMS Ex. 1, at 13-14, 50-51, 68; CMS Ex. 2, at 10; see also CMS Ex. 24, at 3 (email from Administrator describing the DON as a “good person” who made an “error in judgment”).  When surveyors inquired about training on sexual abuse, the Unit Manager acknowledged that “they are taught to call it in to the State” and “she didn’t call it in herself because she thought the DON would take care of it.”  CMS Ex. 2, at 10.

Furthermore, the amended regulations that CMS began implementing in 2016 do not apply retrospectively or excuse Petitioner’s noncompliance with prior versions, see supra n.1, and “the SOM is instructive, but unlike the regulations, it is not controlling authority,” Agape Rehab. of Rock Hill, DAB No. 2411, at 19 (2011).  Six years before the Incident, the Board rejected a facility’s analogous argument that “the ALJ held it to a reporting standard that was not laid out clearly in either federal or state law.”  See Singing River at 6.  After thoroughly discussing the meaning and requirements of 42 C.F.R. § 483.13(c), the Board held that “[t]he plain language of the regulation, as well as the Board’s prior decisions, sufficed to inform [the SNF] of its responsibilities.”  Id. at 14-15.  We reach the same holding here.

4.       Petitioner’s arguments concerning the reasonableness of the DON’s investigation and conclusion do not establish error by the ALJ.

Petitioner complains that the ALJ Decision contains “no analysis of the quality of the DON’s investigation” or “the reasonableness of her conclusion that the Resident had the capacity to consent to sex.”  RR at 9; see also P. Reply at 3.  Petitioner maintains that “uncontroverted evidence demonstrated the DON conducted a thorough investigation,” which supported a reasonable belief that “no sexual encounter between the Residents occurred or, if it occurred, was consensual.”  RR at 16.

Once the ALJ justifiably concluded the DON could not pre-screen the LPN’s allegation of abuse, further analysis of that screening’s “reasonableness” was unnecessary;

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nevertheless, the ALJ did assess it as deficient, and ample record evidence supports that assessment.  The DON’s inquiry admittedly ended “within an hour of receiving the report” from the LPN.  ALJ Decision at 21; P. Am. Ex. 1, at 2-3, ¶ 15; see also P. Prehr’g Br. at 14 (“The length of time that passed between the time [the DON] received the report of the incident and the conclusion of her investigation was no more than an hour,” at which time she concluded the “event did not occur.”).  The DON’s inquiry did not address charted evidence of Resident 1’s impairment.  See ALJ Decision at 17; CMS Ex. 5, at 122; P. Ex. 10, at 6.  The DON’s inquiry also omitted several components of a “thorough review” listed in materials the State Agency had circulated in 2008.  See P. Ex. 14, at 5, 9-10.  The DON admitted to surveyors, “I should have investigated,” and the Administrator conceded the DON had “made an error in judgment.”  CMS Ex. 18, at 40; CMS Ex. 24, at 3, 7; CMS Ex. 27, at 2, ¶ 8.  Still further, when the surveyors asked the DON how she determined that Resident 1 was capable of consenting to sexual activities, “she could not offer a basis for this unassessed determination.”  CMS Ex. 25, at 3, ¶ 12.  In fact, as the ALJ found, there was no contemporaneous medical or psychological assessment of whether or not Resident 1 was capable of such consent.  Id. at 4, ¶ 23; ALJ Decision at 15-16.

The ALJ also permissibly rejected Petitioner’s implication that the DON reasonably ruled out abuse on the basis that Resident 1 was not reportedly “crying or otherwise manifesting signs of mental anguish” after the Incident.  See P. Reply at 2; see also P. Prehr’g Br. at 4-5 (asserting that Resident 1 “manifested no signs or symptoms of trauma after the alleged incident,” which was “information. . . that might shed some light on whether [the LPN’s] report was credible”).  The Board has recognized that “serious psychological harm can result” from one resident’s sexual aggression towards another. Yakima Valley at 9.  The ALJ found that no prompt assessment for such injury to either resident occurred here.  ALJ Decision at 33 (finding no evidence that Resident 1’s physician “was actually consulted on February 9, 2015, about care and services Resident 1 might require for any mental or physical injury,” and “no evidence that Resident 2’s physician assessed whether, if a sex act occurred, Resident 2 was mentally or emotionally injured”).  As Petitioner did not follow its own policy in this respect, see CMS Ex. 10, at 8, Petitioner is in no position to claim the resident suffered no injury.  See Maysville at 21; Illinois Knights at 8, 12; Somerset at 9.

The ALJ also reasonably rejected as “no defense” the argument by Petitioner that local law enforcement’s decision not to prosecute Resident 2 corroborates the DON’s conclusion that no assault occurred.  ALJ Decision at 26; see also RR at 10; P. Reply at 5-6, 8-10.  The opinions of state, county, and municipal law enforcement agencies are not controlling.  See Copperas Cove LTC Partners, Inc., DAB No. 3049, at 31 (2021) (stating substantial compliance determination belongs to CMS alone); Ridgecrest at 11 (same).  In addition, the sheriff’s department and local police may have chosen not to pursue criminal charges against Resident 2 for myriad reasons having nothing to do with whether the DON appropriately handled the LPN’s allegation of abuse in keeping with

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Medicare participation requirements and Petitioner’s own policies.  Cf. Adel A. Kallini, MD, DAB No. 2944, at 6 (2019) (“[I]t is well-established that administrative enforcement in federal health care programs does not serve the same goals and purposes as criminal prosecution,” as administrative enforcement is “focused on the protection of program resources and beneficiaries rather than on punishment of wrongdoers.”); Kimberly Shipper, P.A., DAB No. 2804, at 8 (2017) (recognizing that “the objectives of the federal civil laws are not the same as the purposes of state criminal laws”), aff’d, No. 17-CV-00253, 2019 WL 2098120 (W.D. Tex. Mar. 1, 2019) (Order Adopting Magistrate R. & R. at 2019 WL 1029118 (W.D. Tex. Feb. 11, 2019)).

5.       Petitioner’s arguments concerning the LPN’s credibility do not establish error by the ALJ.

Petitioner also challenges the credibility of the LPN who alleged abuse.  Petitioner argues that determining Resident 1’s ability to consent was beyond the LPN’s “scope of practice” under Florida law and would justify the DON in “being skeptical” of the LPN’s opinion.  RR at 7; see also P. Reply at 3.

Petitioner did not raise this particular argument before the ALJ, so it is waived.  See Guidelines, “Completion of the Review Process,” ¶ (a); Meadowmere at 15.  Even if not waived, it is unpersuasive.  The only legal authority Petitioner cites in support is a definitional statute in Florida’s Nurse Practice Act that is not self-evidently relevant.  See RR at 7 (citing Fla. Stat. § 464.003(19)).  We also reject any implication that a “skeptical” abuse coordinator may dismiss an allegation of abuse whenever the person making it has less advanced medical credentials.  The DON’s apparent skepticism about the LPN’s allegation of abuse cannot excuse Petitioner’s violations of the regulations and its own policies.

The ALJ did address other criticisms by Petitioner of the LPN’s credibility and appropriately concluded that they “do not rebut the CMS prima facie case and are no defense.”  See ALJ Decision at 26.  As the ALJ explained:

Whether or not [the LPN’s] account of the [I]ncident is credible or not is not the issue.  Once the allegation was made, Petitioner was required by 42 C.F.R. § 483.13(c) to ensure that the residents were protected, the alleged incident was reported to the administrator and the state agency, and a complete investigation was conducted.  The evidence shows that Petitioner failed to take the required actions under the regulation until the surveyors entered the facility on February 12, 2015, prompted by [the LPN’s] complaint to the state agency.

Id.

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The ALJ’s assessment is not erroneous.  The ALJ appropriately rejected Petitioner’s attempts to impugn the credibility of the LPN, a member of Petitioner’s own nursing staff.  See Springhill Senior Residence, DAB No. 2513, at 21 (2013) (“[I]n the long-term care enforcement context, a nursing facility cannot avoid a finding of noncompliance by disavowing responsibility for its employees’ actions.”).  That is particularly true, as the LPN acted in furtherance of the governing regulations’ protective purpose.  See CMS Ex. 23, at 1 (explanation in LPN’s complaint to State Agency that “the caller is concerned for the dementia resident”); see also Golden Living Ctr. - Riverchase at 14 (“The purpose of the nursing home regulations is to protect vulnerable residents.”).

6.       Petitioner’s arguments concerning residents’ interests in dignity and privacy do not establish error by the ALJ.

Petitioner emphasizes residents’ rights to dignity and privacy, claiming (without evidence) that, if SNFs must “report any identified sexual contact between residents where a ‘possibility’ of abuse exists” then “there will rarely be an incident of sexual contact in a nursing home that does not meet the standard.”  RR at 8; see also P. Reply at 3-4.  Petitioner theorizes that, under CMS’s standard, “[r]esidents who may have engaged in consensual sex will have to be separated,” supervised, treated as a “criminal perpetrator” and “victim,” and repeatedly questioned by investigators, so the “potential destruction of their dignity and their right to privacy will thus be high.”  P. Reply at 4.

Petitioner misstates what the ALJ decided and the consequences of requiring facilities to follow the applicable law and their own abuse policies intended to protect residents’ right to freedom from sexual abuse.  As the ALJ recognized, Section 1819(c)(1)(A)(ii) of the Act requires a SNF to “protect its residents and promote their ‘right to be free from physical or mental abuse’” and 42 C.F.R. § 483.13(b) provides that a “resident has the right to be free from verbal, sexual, physical, and mental abuse.”  ALJ Decision at 23-24.  Petitioner’s own policy similarly recognized residents’ “right to be free from abuse.”  CMS Ex. 10, at 1.  The surveyors determined that “[t]he facility’s failure to prevent and investigate physical abuse, protect the victim, and monitor the alleged abuser, placed residents in the facility who were cognitively impaired at risk for serious injury, harm, or impairment.”  CMS Ex. 18, at 6.  It is noteworthy that, during the survey period, the SNF had over 100 residents, including 39 with dementia.  CMS Ex. 16, at 1-2; CMS Ex. 20, at 10.  The ALJ narrowly addressed “what a SNF must do when,” as here, “sexual contact between two residents is alleged to be or may be potentially abusive,” ALJ Decision at 23, and here there was an allegation of abuse and ample evidence to establish that Petitioner mishandled that allegation.  Applying the regulatory requirements, the ALJ reasonably concluded that “Petitioner is responsible to ensure that its residents are protected from abuse,” and Petitioner’s violations of section 483.13(c)(2)-(4) “posed a risk for more than minimal physical and emotional harm to the residents.”  See ALJ Decision at 25-26.

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Petitioner’s hypotheticals resemble arguments the Board previously has rejected.  See Woodstock Care Ctr., DAB No. 1726 (2000), aff’d, 363 F.3d 583 (6th Cir. 2003), reh’g & suggestion for reh’g en banc denied (6th Cir. 2004).  In Woodstock, a facility claimed that more effective protective measures could be “too intrusive on residents’ freedom.”  Id. at 30.  We acknowledged that “[i]rreducibly hard choices exist between preserving freedom and dignity and preserving health and safety” of residents, yet held the SNF had “abdicated its responsibility” by adopting an unacceptably “‘passive’ attitude” to known dangers.  Id. at 33, 35.  The ALJ reasonably reached a similar conclusion here.

7.       Petitioner’s arguments concerning “systemic” failure do not establish error by the ALJ.

Petitioner argues that “the ALJ’s finding that the failure to implement facility policy in this case was systemic is unsupported by the record as a whole, and his determination of a violation of 42 C.F.R. § 483.13(c) based on that finding was thus clearly erroneous.”  RR at 12.  Petitioner alleges an absence of evidence of “any employee who did not have an understanding of his or her responsibilities or who failed to carry them out other than the DON.”  RR at 11.  Petitioner calls the DON’s alleged mishandling of the Incident an “isolated” aberration, not “likely to be repeated,” as the DON previously had been “more than capable” as abuse coordinator, for example by submitting several “reports involving investigations into allegations of abuse and neglect” prior to the Incident.  Id. at 12; see also P. Reply at 6; P. Am. Ex. 1, ¶ 5.

The ALJ concluded that “the facts I have found . . . clearly show that Petitioner had a systemic failure to implement the policies and procedures required by 42 C.F.R. § 483.13(c).”  See ALJ Decision at 27.  We read this to mean that the conduct of Petitioner’s staff reflected a systemic problem and the facility therefore failed to implement its policies and procedures.  Under section 483.13(c), “[t]he facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property.”  42 C.F.R. § 483.13(c) (emphasis added); see also Glenoaks at 14 (“Noncompliance with section 483.13(c) can be based on either failure to develop policies or procedures adequate to prevent neglect, or failure to implement such policies.”).  The ALJ found that the DON’s failures to recognize an allegation of abuse, report it, and protect facility residents, “particularly given her position, are good evidence that Petitioner had not adequately implemented its policy required by 42 C.F.R. § 483.13(c).”  ALJ Decision at 26-27.  “[T]he failure was systemic in that [the DON] was responsible for ensuring her staff was trained and that she was capable of fulfilling her role as the designated abuse coordinator for Petitioner.”  Id. at 27.

The record as a whole supports the ALJ’s conclusion, in that several members of Petitioner’s staff besides the DON also erred.  Petitioner’s Resident Abuse Policy imposed certain obligations on all employees who knew of an abuse allegation, including

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the duty to notify the Administrator and segregate the suspect from the alleged victim.  CMS Ex. 10, at 1, 5, 8.  Yet not one employee with same-day knowledge of the Incident – including not only the DON, but also the Social Services Director and Unit Manager – took either protective step.  ALJ Decision at 22, 25; CMS Ex. 1, at 5.  Petitioner’s policy also mandated filing of an incident report “by the individual in charge who received the report in conjunction with the person who reported the abuse. . . .  as soon as possible.”  CMS Ex. 10, at 8.  Yet there is no evidence that Petitioner fulfilled this requirement, regardless of whether “the individual in charge who received the report” meant the Unit Manager or DON.  See ALJ Decision at 22-23, 40; CMS Ex. 2, at 15; CMS Ex. 3, at 3.  After an abuse allegation, Petitioner’s policy required a Social Services representative to be “present in the role of resident advocate during any questioning of or interviewing of residents.”  CMS Ex. 10, at 7.  Yet Petitioner’s Social Services Director evidently served as the primary interrogator, not resident advocate, during questioning of Residents 1 and 2.  See CMS Ex. 11, at 1 (Social Services Director’s February 13, 2015 written statement that, on the day of the Incident, “I went to [Resident 2’s] room” and “interviewed him about the incident” until he “appeared to become irritated by the questions,” after which “I then went to interview [Resident 1] at bedside”).

The record as a whole also supports the ALJ’s finding that the DON’s own individual failures as Abuse Coordinator had systemic ramifications.  When a facility’s policy calls for “obtaining written statements, and documenting the investigatory steps and resolution,” yet facility staff “failed to conform to that policy,” an ALJ reasonably may infer that the facility “had not implemented a written policy or procedures to prohibit abuse.” Columbus Nursing at 26-27; see also Vibra Hosp. at 13 (“The Board has long held that a facility is not in substantial compliance with section 483.13(c) when,” as here, “it fails to follow or carry out its own anti-abuse policies.”).  Lack of a serious investigation of possible abuse at a facility “evidences a serious breakdown in the implementation of its abuse and neglect prohibition and accident/incident investigation policies that posed a likelihood of further harm to . . . all other residents.”  Brenham Nursing & Rehab. Ctr., DAB No. 2619, at 17 (2015), aff’d, 637 F. App’x 820 (5th Cir. 2016) (per curiam).  Thorough investigations are essential not only to address a particular incident, but also to identify patterns and trends that may constitute abuse.  See Britthaven, Inc. at 12.  Petitioner’s policy accordingly provided that the Abuse Coordinator “will” investigate “[a]ll reported events” of abusive behaviors, and “[p]atterns or trends will be identified that might constitute abuse.”  CMS Ex. 10, at 7.  The DON’s failure to respond appropriately to the abuse allegation (until surveyors arrived) prevented the facility from promptly identifying any such patterns or trends and undermined its own policy.

The record as a whole does not prove Petitioner’s assertions concerning prior substantial compliance by Petitioner’s personnel, including the DON.  The DON’s written testimony states that, “[i]n the year preceding the survey at issue in this matter, I investigated and reported 9 separate allegations of abuse,” all of which were unsubstantiated, and none of

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which the surveyors faulted.  P. Am. Ex. 1, ¶ 5.  The DON’s testimony does not detail the previous alleged abuse (for example, whether it was sexual and resident-on-resident) to establish that the DON previously handled comparable incidents correctly.  Furthermore, the ALJ reasonably gave weight to documentary evidence that Petitioner “has a history of noncompliance prior to the surveys at issue.”  See ALJ Decision at 43; CMS Ex. 22, at 1.

Yet even if Petitioner had no history of noncompliance with the regulatory requirements, “it is irrelevant whether, as [petitioner] argues, it complied with these requirements in other instances where abuse was alleged.”  See Illinois Knights at 11.  “A SNF is expected to be in substantial compliance with Medicare participation requirements at all times.”  Life Care Ctr. of Tullahoma, DAB No. 2304, at 60 (2010) (citing 42 C.F.R. §§ 488.3(a)[(1)], 488.20), aff’d, 453 F. App’x 610 (6th Cir. 2011).

B.       The ALJ’s conclusion that Petitioner violated 42 C.F.R. § 483.25(h), per Tag F323, is factually and legally supported.

Petitioner’s arguments specifically addressing 42 C.F.R. § 483.25(h) (Tag F323), concerning resident supervision and accident prevention, are scant.  In Petitioner’s view, “[t]he ALJ’s determination of a violation of Tag F323 was simply an extension of his finding that the facility failed to put adequate protective measures in place for Resident #1 after the incident, identical to his findings of violations of the abuse regulations.”  P. Reply at 6 n.3.  Petitioner contends that, “[b]ecause the DON reasonably concluded that no sexual encounter between the Residents occurred and there was no abuse,” Petitioner “was not required to . . . implement protective measures,” so the ALJ’s finding of a violation under Tag F323 constituted “clear error.”  RR at 16.

The ALJ upheld CMS’s determination that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(h)(2).  ALJ Decision at 30.  The ALJ stated that “[a]n ‘accident’ is an unexpected, unintended event that can result in injury of a resident.”  Id. at 29.  The ALJ reasoned that, regardless of whether “Petitioner should have known that Resident 1 had the proclivity to engage in sexual activity and taken steps to protect Resident 1 from accidental injury associated with such activity” before February 9, 2015, Petitioner should have done so after the LPN alleged abuse.  Id. at 29-30.  The ALJ explained the significance of Petitioner’s failure to do so:

As of February 9, 2015, Petitioner was on notice of the need to assess Resident 1 and develop interventions to avoid accidental injury associated with sexual activity, both emotional and physical injuries.  Further, on February 9, 2015, Petitioner was on notice that Resident 2 reportedly engaged in sexual activity with Resident 1.  Petitioner’s staff could not know immediately whether the conduct actually occurred, whether it was consensual, or whether it was forced upon Resident 1 by Resident 2, or vice versa.  Petitioner’s staff should have realized they lacked this information

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and taken steps to ensure that Resident 2 did not cause accidental injury to either Resident 1 or any other resident.

Id. at 30.

The ALJ appropriately interpreted 42 C.F.R. § 483.25, which mandates that “[e]ach resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care.”  Section 483.25(h)(1) more particularly requires that the facility must ensure that “[t]he resident environment remains as free of accident hazards as is possible.”  Section 483.25(h)(2) requires the facility to ensure that “[e]ach resident receives adequate supervision and assistance devices to prevent accidents.”  Thus, section 483.25(h) places an affirmative duty on facility staff to intervene and supervise behaviorally impaired residents in a way that is calculated to prevent them from causing harm to themselves and each other.  Libertywood Nursing Ctr., DAB No. 2433, at 7 (2011), aff’d, 512 F. App’x 285 (4th Cir. 2013) (per curiam).  The ALJ properly interpreted and applied the regulation accordingly.

The ALJ’s analysis also was consistent with the Board’s longstanding application of the ordinary meaning of “accident” when evaluating noncompliance under 42 C.F.R. § 483.25(h).  See Woodstock at 20.  “The ordinary meaning of ‘accident’ includes any unexpected and undesirable event, which suggests untoward events or injuries suffered by an individual who neither expected nor wished it to occur.”  Id. Thus, accidents “include events that are unintentional from the viewpoint of the resident who was or could have been injured.”  Id. at 21.  As the Board has further explained:

The specific outcome to be attained here is the “highest practicable” physical well-being of residents.  42 C.F.R. § 483.25(h)(2).  The necessary care to be provided to that end is “adequate supervision and assistance devices to prevent accidents.”  Id.  Interpreting the regulation not to apply to events that could or did cause injury to residents and that could have been prevented by supervision, merely because those events were intentional from the viewpoint of another resident or involved some intentional act, would frustrate the regulatory goal.

Id.

The ALJ appropriately recognized that, despite Petitioner’s insistence that the DON acted reasonably, 42 C.F.R. § 483.25(h) imposed requirements upon the facility as a whole.  See Northeastern Ohio Alzheimer’s Rsch. Ctr., DAB No. 1935, at 8 (2004) (“[S]ection 483.25(h)(2) makes the facility ultimately responsible for ensuring the safety of residents through its policies, procedures, staff training and allocation, and other means – and not merely through the actions taken or choices made by individual employees.”)

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(underlining replaced with italics); see also Maine Veterans’ Home, DAB No. 1975, at 16 (“Resident safety is a basic facility responsibility.”) (citing section 483.25(h)).  Thus, when assessing compliance with section 483.25(h) in the context of preventing resident-on-resident abuse, “[t]he correct question is whether the facility did what it reasonably could to ensure that all residents received supervision needed to ‘mitigate foreseeable risks of harm.’”  Bridge at Rockwood, DAB No. 2954, at 10 (2019) (quoting Owensboro Place & Rehab. Ctr., DAB No. 2397, at 8 (2011)); see also Countryside Rehab. & Health Ctr., DAB No. 2853, at 17 (2018) (“Where the issue is avoiding resident-on-resident misconduct, the Board has long applied ‘the principle that facility staff must make all reasonable efforts to protect residents from foreseeable adverse incidents.’”) (quoting Springhill at 15).

Substantial evidence supports the ALJ’s conclusion that Petitioner did not make all reasonable efforts, as 42 C.F.R. § 483.25(h) requires, after the LPN’s allegation of abuse.  Petitioner did not immediately segregate Resident 2 from Resident 1, as Petitioner’s own Resident Abuse Policy required.  Compare CMS Ex. 10, at 8 (policy) with CMS Ex. 1, at 69 (documented non-segregation).  Petitioner did not ensure that both residents received “adequate supervision” as section 483.25(h)(2) requires until February 13, 2015.  See CMS Ex. 24, at 12 (stating Residents 1 and 2 were placed on one-to-one supervision on that date).  Petitioner admittedly did not investigate “[a]ll reported events” of abusive behaviors, as its policy required.  Compare CMS Ex. 10, at 7 (policy) with CMS Ex. 1, at 20 (DON’s admission).  Petitioner admittedly did not immediately notify either resident’s attending physician, as Petitioner’s policy required.  Compare CMS Ex. 10, at 8 (policy) with P. Am. Ex. 1, at 3-4, ¶ 21 (DON’s admission).

The ALJ correctly considered Petitioner’s violations of its Resident Abuse Policy as evidence of noncompliance with 42 C.F.R. § 483.25(h).  CMS “may reasonably rely on a facility policy as evidence of the provider’s own judgment as to what must be done to attain or maintain its residents’ highest practicable physical, mental, and psychosocial well-being, as required by section 483.25.”  Sheridan Health Care Ctr., DAB No. 2178, at 15 (2008); see also Agape Rehab. at 7; Desert Lane Care Ctr., DAB No. 2287, at 9 (2009).  “A facility’s failure to fully employ those measures as intended in its policies may thus be evidence that the facility failed to provide residents with the services required by specific subsections of section 483.25.”  Desert Lane at 10; see also Heritage Plaza Nursing Ctr., DAB 2829, at 6, 10 (2017) (stating that evidence of a facility’s “failure to provide the staff assistance prescribed in . . . facility policies amply demonstrates that [the facility] did not provide the supervision . . . needed to reduce known or foreseeable accident risks to the highest practicable degree, as required under section 483.25(h)”).

The ALJ appropriately placed particular emphasis on evidence that on February 10, 2015, Petitioner added a directive in both residents’ care plans to “provide privacy” for their future sexual activity without first undertaking any medical assessment of either

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resident’s capacity to give consent.  See CMS Ex. 5, at 85; CMS Ex. 6, at 23.  Petitioner admittedly obtained no psychological evaluation of Resident 1 until February 16, 2015 (four days after the survey began), when an NP “was called in” to evaluate her.  P. Prehr’g Br. at 20 n.11; see also CMS Ex. 24, at 20.  The surveyors documented that the same NP previously had told them, on February 13, 2015, that “she doesn’t think Resident #1 could consent to having sex.”  CMS Ex. 1, at 15; CMS Ex. 18, at 16; see also CMS Ex. 2, at 9.  The NP’s February 16, 2015 evaluation report marked “Inappropriate Sexual Behavior” as a “Chief Complaint” for Resident 1 and marked her “Mental Capability” as “Incompetent.”  CMS Ex. 5, at 8.  Yet the NP testified that in declaring Resident 1 incompetent, the NP “was not rendering an opinion as to whether [Resident 1] could understand and make personal decisions, such as whether or not she wanted to engage in sex.”  P. Ex. 24, ¶ 3.  The ALJ remarked that, under the circumstances, “one can only wonder why [the NP] did not evaluate” Resident 1’s capacity to give consent, “casting doubt upon [the NP’s] credibility and the thoroughness of her evaluation.”  ALJ Decision at 15.  Furthermore, even if credible, the NP’s testimony would establish only that, a full week after the allegation of abuse, Petitioner still had not taken the risk-mitigating step of assessing Resident 1’s competence to consent to sexual activity.

The ALJ also appropriately concluded that Petitioner failed to comply with 42 C.F.R. § 483.25(h) by failing to investigate the allegation of abuse thoroughly.  A facility’s duty of adequate supervision to prevent accidents per section 483.25(h) “encompasses a duty to adequately investigate why an accident occurred in order to prevent future accidents.”  See Owensboro Place at 14 (quoting Hotel Reed Nursing Ctr., DAB No. 2154, at 16 (2008), aff’d, 333 F. App’x 829 (5th Cir. 2009) (per curiam).  “The failure to adequately investigate an accident can thus be evidence of noncompliance with the requirement to ensure adequate supervision and assistance devices to prevent accidents.”  Owensboro Place at 14-15.

For the foregoing reasons, we affirm the ALJ’s conclusion that Petitioner did not establish substantial compliance with 42 C.F.R. § 483.25(h).

C.       The ALJ’s conclusion that Petitioner violated 42 C.F.R. § 483.10(b)(11), per Tag F157, is factually and legally supported.

Petitioner’s sole argument concerning 42 C.F.R. § 483.10(b)(11) (Tag F157), concerning family notification and physician consultation obligations, is that Petitioner was not required to notify Resident 1’s physician of the Incident “[b]ecause the DON reasonably concluded that no sexual encounter between the Residents occurred and there was no abuse.”  RR at 16.

In pertinent part, 42 C.F.R. § 483.10(b)(11) requires:

Notification of changes. (i) A facility must immediately inform the

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resident; consult with the resident’s physician; and if known, notify the resident’s legal respresentative [sic] or an interested family member when there is—
(A) An accident involving the resident which results in injury and has the potential for requiring physician intervention;
(B) A significant change in the resident’s physical, mental, or psychosocial status (i.e., a deterioration in health, mental, or psychosocial status in either life-threatening conditions or clinical complications);
(C) A need to alter treatment significantly (i.e., a need to discontinue an existing form of treatment due to adverse consequences, or to commence a new form of treatment); or
(D) A decision to transfer or discharge the resident from the facility as specified in § 483.12(a).

Notification “immediately” means “without any intervening interval of time,” “at once,” and “without delay.”  Magnolia Estates Skilled Care, DAB No. 2228, at 8-9 (2009); accord Maysville at 9.  The regulation’s requirements are not limited to life-threatening, crisis, or emergency situations.  Mississippi Care at 16; NHC Healthcare at 8–9.

Contrary to Petitioner’s contention, the DON’s conclusion about the alleged sexual encounter between Residents 1 and 2 is immaterial, because the ALJ’s assessment of noncompliance under 42 C.F.R. § 483.10(b)(11) is not dependent on finding that Residents 1 and 2 engaged in a sex act on February 9, 2015.  The ALJ made no such finding.  ALJ Decision at 22-23.  What the ALJ did find, with the support of substantial evidence in the record, was that Petitioner was noncompliant with section 483.10(b)(11) because Petitioner significantly altered the treatment plans of both residents following the Incident without any physician consultation.  See id. at 30-34; see also 42 C.F.R. § 483.10(b)(11)(i)(C).

A resident’s comprehensive care plan must include “measurable objectives and timetables to meet a resident’s medical, nursing, and mental and psychosocial needs.”  42 C.F.R. § 483.20(k)(1).  The care plan “serves as a roadmap for all of the resident’s caregivers,” to “provide consistent services and care tailored to the resident’s actual needs.”  Sheridan Health at 25.  Petitioner acknowledges, and cites no evidence disproving, the ALJ’s finding that on “February 10, 2015, the day after the alleged incident,” the facility “put an intervention into Resident 1’s behavior care plan to secure the privacy of the Residents if they wanted to have sex.”  RR at 15.  Specifically, the newly added entry to the “APPROACHES & INTERVENTIONS” column for Resident 1 instructed:  “attempt to redirect if found performing sex act, but provide privacy if both residents are both in agreeance [sic].”  CMS Ex. 5, at 85.  The equivalent notation in Resident 2’s care plan instructed:  “attempt to redirect if foun[d] in sex act [with] another res, provide privacy if both res. in agreement.”  CMS Ex. 6, at 23.  These new “approaches” and “interventions” reflect Petitioner’s perceived “need to alter treatment

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significantly” and “commence a new form of treatment,” which required immediate consultation with the residents’ treating physicians.  See 42 C.F.R. § 483.10(b)(11)(i)(C); see also Pinehurst Healthcare & Rehab. Ctr., DAB No. 2246, at 6-8, 12 (2009) (faulting facility’s failure to modify male resident’s care plan “to include measures to prevent a recurrence” of his staff-witnessed sexual behavior toward a female resident with dementia, and finding facility’s failure “especially troubling” given male resident’s denial of any misbehavior).

As the ALJ recognized, there is “no evidence that Resident 1 was medically and psychologically evaluated by her physician . . . to determine whether engaging in sexual activity was consistent with enhancing her quality of life (42 C.F.R. § 483.15) or her attaining and maintaining the highest practicable physical, mental, and psychosocial well-being in accordance with her comprehensive assessment and plan of care (42 C.F.R. § 483.25).”  ALJ Decision at 33.  The ALJ found the same lack of physician consultation with respect to Resident 2.  Id. at 33-34.  In other words, Petitioner significantly changed the treatment plans of both Residents 1 and 2 the day after the Incident without consulting with either resident’s physician as section 483.10(b)(11) required.

The ALJ specifically found that “the residents’ physicians were not immediately consulted following the incident that occurred between about 1:15 p.m. and 1:30 p.m. on February 9, 2015,” and the Incident also “was not reported to Resident 1’s family until February 13, 2015.”  Id. at 23, 33-34.  Substantial evidence supports those findings.  See, e.g., CMS Ex. 1, at 4; CMS Ex. 3, at 2-3; P. Am. Ex. 1, at 3-4, ¶ 21.  Resident 1’s physician told surveyors that “the earliest date he could recall being told” about the Incident was February 11, 2015, then “he was asked on 2/13/15 to examine Resident #1,” but “staff should have notified him” the day the Incident happened.  CMS Ex. 18, at 21.  There is no record of any call to (much less consultation with) Resident 2’s physician until February 12, 2015, at 6:00 p.m.  CMS Ex. 6, at 5.  Accordingly, we affirm the ALJ’s finding of noncompliance under 42 C.F.R. § 483.10(b)(11)(i)(C) because it is supported by substantial evidence and not legally erroneous.

Petitioner raises no specific arguments regarding the ALJ’s findings of noncompliance under other subsections of 42 C.F.R. § 483.10(b)(11)(i).  Petitioner, for example, does not identify or allege any error of fact or law in the ALJ’s findings concerning section 483.10(b)(11)(i)(A) or (B).  ALJ Decision at 32-34.  Generally, the Board will not consider issues which were not raised in a request for review, and we see no reason to depart from that general rule in this case.  See Richard Weinberger, M.D., & Barbara Vizy, M.D., DAB No. 2823, at 22 (2017).  We have determined that the ALJ’s findings and conclusions of Petitioner’s noncompliance with section 483.10(b)(11) are sufficiently supported with respect to subsection 483.10(b)(11)(i)(C) alone.  We need not and do not consider any alternative findings and conclusions by the ALJ regarding Petitioner’s noncompliance under other subsections of 483.10(b)(11)(i) for which Petitioner presented no specific argument.

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Thus, we affirm the ALJ’s conclusion that Petitioner did not establish substantial compliance with 42 C.F.R. § 483.10(b)(11).

D.       CMS’s immediate jeopardy findings concerning Tags F224, F225, F226 and F323 are not clearly erroneous.

The ALJ concluded that “Petitioner has not shown that the declaration of immediate jeopardy and the duration of immediate jeopardy is clearly erroneous for the violations of 42 C.F.R. §§ 483.13(c), (c)(2), (3), and (4) and 483.25(h).”  ALJ Decision at 11.  The ALJ thus upheld CMS’s determinations of both the existence and the duration of immediate jeopardy.

“CMS’ determination as to the level of noncompliance of a SNF,” including an immediate jeopardy determination, “must be upheld unless it is clearly erroneous.”  42 C.F.R. § 498.60(c)(2).  Under the clearly erroneous standard, “CMS’s determination of immediate jeopardy is presumed to be correct.”  Owensboro Place at 9.  “It is not CMS’s burden to prove that noncompliance constitutes immediate jeopardy,” but “[r]ather, once CMS has made a determination about the level of noncompliance, including a determination that the noncompliance constitutes immediate jeopardy, the provider bears the burden of proving that CMS’s determination is clearly erroneous.”  Hotel Reed at 20; see also Vibra Hosp. at 22.  “[T]he burden of proving the determination clearly erroneous is a heavy one.”  Mississippi Care at 15; see also Century Care of Crystal Coast, DAB No. 2076, at 23 (2007) (stating that under clearly erroneous standard, the facility “bears a high burden on the issue of whether immediate jeopardy was present”), aff’d, 281 F. App’x 180 (4th Cir. 2008) (per curiam).  “The ALJ must uphold CMS’s determination, even if not ‘compelled’ by the evidence, so long as it is not clearly erroneous.”  Century Care at 23.

Petitioner’s heavy burden of demonstrating clear error also “extends to overcoming CMS’s determination as to the duration of immediate jeopardy.”  Vibra Hosp. at 23; see also Brian Ctr. at 7-8 (“A determination by CMS that a SNF’s ongoing compliance remains at the level of immediate jeopardy during a given period constitutes a determination about the ‘level of noncompliance’ and, therefore, is subject to the clearly erroneous standard of review under [42 C.F.R. §] 498.60(c)(2).”).  “[A] facility found to have placed residents in an immediate jeopardy situation is presumed to continue to present immediate jeopardy unless the facility shows that the determination of continued immediate jeopardy is clearly erroneous.”  Bridge at Rockwood at 29.

Petitioner asserts various arguments challenging both the existence and duration of immediate jeopardy.  For reasons further explained below, we reject all of Petitioner’s arguments and affirm the ALJ’s conclusions concerning immediate jeopardy.

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1.       CMS’s determination that immediate jeopardy existed is not clearly erroneous.

Petitioner argues that “the ALJ’s finding that there was no error in CMS’ assignment of an immediate jeopardy rating to Tags F224, F225, F226 and F323 was clear legal error and unsupported by the totality of the evidence,” and counters that “immediate jeopardy never existed in the facility.”  RR at 17, 26.  Petitioner attacks the ALJ’s findings that the cited failures “created a situation that ‘could foster’ abuse and serious injury or harm to residents.”  Id. at 19.

We affirm the ALJ’s conclusion that CMS did not clearly err in finding that Petitioner’s noncompliance cited in Tags F224, F225, F226 and F323 rose to the immediate jeopardy level.  Immediate jeopardy exists when “the provider’s noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident,” 42 C.F.R. § 488.301, and the ALJ recited the following comprehensive findings supporting CMS’s immediate jeopardy assessment:

[The DON] failed to recognize and treat [the LPN’s] report as a report of possible abuse of residents.  Petitioner’s administrator and the state agency were not immediately notified.  Petitioner’s residents were not protected from further potential abuse and were not provided supervision to ensure no abuse would occur.  The residents’ physicians were not immediately consulted to determine what assessments and care and services were necessary to address either potential physical or emotional injury.  Without proper assessment both resident care plans were modified to allow them to engage in sexual activity if they agreed and they were to be provided privacy to engage in such acts.  Only after [the LPN] filed her complaint with the state agency and the agency surveyors entered the facility on February 12, 2015, three days after the alleged incident, did Petitioner’s staff begin the process of assessing the residents, developing interventions, and conducting an adequate investigation.  Petitioner’s failures clearly created a situation that could foster abuse and serious injury or harm to residents.  Petitioner’s failure to properly investigate and immediately report the abuse allegation prevented the state agency from conducting an independent investigation and taking any action necessary to protect the residents.  Petitioner has not presented convincing evidence showing that there was no likelihood for serious injury, harm, impairment, or death on account of its violations.

ALJ Decision at 40.

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The ALJ’s reasoning echoes the Board’s in Cedar View, DAB No. 1897:

[T]here did not need to be any signs of sexual abuse of either resident in order for the ALJ to uphold CMS’s determination that [the SNF’s] noncompliance with the requirements of section 483.13 posed immediate jeopardy.  [The SNF’s] failure to immediately report an allegation of sexual abuse was likely to cause serious harm to [the SNF’s] residents because it prevented the allegation from being investigated by the State agency in a timely fashion.  Absent an unbiased investigation to determine whether sexual abuse actually occurred and the circumstances which enabled any such abuse to occur, steps might not be taken to prevent future sexual abuse that would cause actual harm.  Similarly, [the SNF’s] failure to implement a policy to prevent sexual abuse or to take steps to prevent sexual abuse from occurring was likely to cause serious harm to [the SNF’s] residents because it increased the likelihood that sexual abuse might occur in the future, causing actual harm.  Thus, we see no basis for concluding that the ALJ should have found CMS’s determination of immediate jeopardy to be clearly erroneous.

Cedar View at 18-19.  Accordingly, we perceive no error in the ALJ’s comparable conclusion in the present case, and we reject Petitioner’s various counter-arguments for the reasons discussed below.

Petitioner unpersuasively contends that the ALJ erred by including the facility’s “failure to notify the residents’ physicians after the [I]ncident” as a fact supporting immediate jeopardy, because CMS’s rating of the scope and severity level of Tag F157 did not “rise to the level of immediate jeopardy.”  RR at 20.  This argument fails because Tag F157 was not the only one that encompassed Petitioner’s lapse in notifying and consulting with the physicians for Residents 1 and 2.  Tag F224 also encompassed that failure (among others), and was assessed as posing immediate jeopardy.  The surveyors’ narrative supporting Tag F224 includes the DON’s admission that Resident 1’s medical records showed “no documentation of an assessment of Resident #1 after the [I]ncident, or that her physician was notified,” which the DON acknowledged “should have been done.”  CMS Ex. 1, at 19-20.  CMS permissibly addressed Petitioner’s failure immediately to notify and consult with Resident 1’s physician in both Tags F157 and F224.  See Heritage Plaza at 22 (“CMS may, in its discretion, charge a facility with violating any number of applicable requirements based on the same or similar set of underlying facts and circumstances, so long [as] those facts make out a violation of each requirement.”); Brian Ctr. at 6 (“If a given set of facts demonstrates that a SNF has violated more than one participation requirement, CMS may, in its discretion, charge the SNF with violating any, or all, of the applicable requirements.”).

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In Sheridan Health Care Ctr., DAB No. 2178, the Board rejected an argument analogous to Petitioner’s.  In Sheridan Health, the SNF asserted a “fundamental inconsistency” between CMS’s assessing immediate jeopardy for one deficiency and citing two others premised on the same facts at “a lower level of scope and severity.”  Id. at 40-41.  The Board explained that the deficiency CMS cited as immediate jeopardy was broader than the other deficiencies, “cutting across and impacting multiple areas of need.”  Id. at 41.  Similarly here, the regulatory violation that CMS cited as immediate jeopardy under Tag F224 (failure to implement written anti-abuse policies) is wider in scope than the violation that CMS cited under Tag F157 (failure to carry out physician and family notification and consultation requirements).  There is no inconsistency in assessing immediate jeopardy on the more comprehensive facts supporting the broader Tag F224 but not the more limited facts supporting the narrower Tag F157.

Petitioner also complains that the ALJ did not explain why expert testimony was needed to counter CMS’s immediate jeopardy assessment.  RR at 23 n.13.  Petitioner asserts that expert testimony is unnecessary to explain or understand the effects of Petitioner’s “straight forward actions” to abate immediate jeopardy.  Id.

We reject Petitioner’s assertions.  The standard of review in 42 C.F.R. §§ 498.3(b)(14) and 498.60(c)(2) “means that a facility bears a heavy burden in challenging the assessment of immediate jeopardy, which, of necessity, includes an element of judgment.”  Golden Living Ctr. – Trussville, DAB No. 2937, at 3 (2019).  The “inherent imprecision” of distinguishing different levels of noncompliance “is precisely why CMS’s immediate jeopardy determination, a matter of professional judgment and expertise, is entitled to deference.”  Daughters of Miriam Ctr., DAB No. 2067, at 15 (2007).  Where, as here, a SNF has “introduced no testimony from any person qualified to question how CMS applied its professional judgment and expertise to determine the level of noncompliance,” the Board has upheld CMS’s assessment of immediate jeopardy.  Id.  “We defer to the ALJ’s assessment of witness credibility and determination of the weight to accord to specific evidence, absent compelling reasons not to do so.”  Countryside at 14.  While expert testimony may not be necessary to refute CMS’s determination of immediate jeopardy in every case, we see no compelling reason to reject the ALJ’s evidentiary assessment in this case based on its unique and complex facts.

2.       CMS’s determination of the duration of immediate jeopardy is not clearly erroneous.

Petitioner argues that, even if immediate jeopardy ever existed, “it was clear error to continue that rating for the deficiencies (and the corresponding $7000 per day CMP) after February 13, 2015,” or at latest after February 18, 2015, when Petitioner allegedly abated any possible danger to residents.  RR at 17, 25.  Petitioner objects that “CMS introduced no evidence,” and “the ALJ made no findings,” that Residents 1 and 2 likely would try to

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engage in sex again, with each other or any other resident, or that any other sexually inappropriate or aggressive residents were in the facility.  Id. at 20.  Petitioner contends that, after February 9, 2015, “[n]o further interaction occurred between Residents #1 and #2 and no other sexual assault of another resident occurred.”  P. Reply at 10.  Petitioner points to its “actions to remove the threat of another assault beginning February 13, 2015 that more than conclusively demonstrated that any risk of imminent harm the ALJ identified no longer existed as of that date,” or “certainly no later than February 18th.”  RR at 22 (citing P. Exs. 1, 11, and 24), 26; see also id. at 23 n.14, 25.

Petitioner’s arguments are inconsistent with established precedent.  “CMS does not have to prove immediate jeopardy.”  Britthaven of Havelock, DAB No. 2078, at 29 (2007).  “The burden is on the facility to prove the immediate jeopardy determination was clearly erroneous,” id., and Petitioner’s evidence does not meet that heavy burden.  “A showing that no further incidents of abusive behavior were substantiated after” noncompliance at the immediate jeopardy level has been established does not meet a facility’s burden of proof.  Pinehurst at 15.  There is no requirement that a remedy’s duration must coincide with particular adverse events.  Id.  Instead, “lack of competent follow-up” to an incident of possible abuse is enough to demonstrate “that other residents were exposed to likely harm because they could not rely on the facility to act effectively to protect them from abuse and to respond appropriately to any injury or allegation.”  Columbus Nursing at 28; see also Liberty Commons Nursing & Rehab Ctr. - Johnston, DAB No. 2031, at 21 (2006) (upholding immediate jeopardy determination as “not unreasonable” because facility’s failure to implement precautions for one resident “evidenced a systemic laxity” that “posed a very real and present threat to other residents who needed protection”), aff’d, 241 F. App’x 76 (4th Cir. 2007) (per curiam).  When assessing immediate jeopardy, “CMS may reasonably consider not only the actual incident regarding a resident but what it reveals regarding the facility’s planning procedures” to prevent future incidents.  Golden Age Skilled Nursing & Rehab. Ctr., DAB No. 2026, at 18-19 (2006).

Substantial record evidence supports the assessment of continuing immediate jeopardy by showing Petitioner’s lack of competent follow-up to the Incident and inadequate planning procedures to prevent future incidents, not only immediately after the LPN’s abuse allegation but also in the following days and weeks.  Petitioner did not even start taking appropriate remedial steps in response to the LPN’s abuse allegation until February 12, 2015.  See ALJ Decision at 40 (“Only after . . .  the agency surveyors entered the facility on February 12, 2015, three days after the alleged incident, did Petitioner’s staff begin the process of assessing the residents, developing interventions, and conducting an adequate investigation.”) (emphasis added).  Petitioner finalized its revised Resident Abuse Policy two weeks later, on February 26, 2015. CMS Ex. 19, at 6-15; P. Ex. 14, at 18-27.  On March 2, 2015, a supervisory Registered Nurse Consultant on the State Agency survey team explained to the Administrator that monitoring of a resident’s inappropriate sexualized behaviors “still is not well described in your policy,” and “[t]o remove the immediate danger,” re-training was needed for staff.  CMS Ex. 24, at 15-16, ¶ 4; see also

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CMS Ex. 27, ¶¶ 2-3, 11-12.  The surveyor further observed, “I have not seen any description of the training content.”  CMS Ex. 24, at 16, ¶ 4.  Furthermore, in-service training “could not alone establish that the facility had successfully implemented the practices and procedures required,” and “CMS could reasonably require evidence that the new practices and requirements were actually put into effect” before considering substantial compliance attained and immediate jeopardy abated.  See Oceanside Nursing & Rehab. Ctr., DAB No. 2382, at 20 (2011); see also id. at 21 (“[W]e agree with the ALJ that CMS was not required to accept mere assertions” of staff instruction, and “CMS could reasonably require evidence of corrections in practice.”).  Moreover, Petitioner did not discharge Resident 1 to a safer placement (another facility’s locked dementia unit) until March 8, 2015, and Petitioner still was consulting with Resident 2’s physician regarding pending test results, and the level of supervision Resident 2 would require, on March 10, 2015.  See CMS Ex. 19, at 1, 4.

It also is significant that through March 3, 2015, Petitioner and the survey team still were discussing, in writing and in person, various unresolved items in Petitioner’s Allegation of Compliance.  See CMS Ex. 24; CMS Ex. 27, ¶¶ 4-12.  Areas under discussion included completion of satisfactory training of Petitioner’s staff and Petitioner’s steps to ensure the DON would be competent in the role of Abuse Coordinator (because Petitioner’s amended policy still designated the DON as Abuse Coordinator in the Administrator’s absence).  CMS Ex. 24, at 1, 15-16, 20; P. Ex. 14, at 24.  “The Board ordinarily holds that a SNF cannot be regarded as having returned to substantial compliance, or abated immediate jeopardy, until measures specified in an approved plan of correction, or plan to remove immediate jeopardy, have been implemented.”  Countryside at 27 n.12; see also Maysville at 22; Brian Ctr. at 9.  The facility bears the burden to show that it timely completed implementation of its plan of correction and actually abated immediate jeopardy (to reduce the applicable CMP range), or achieved substantial compliance (to end application of all remedies), and Petitioner has not met that burden.  See Glenoaks at 18.

We also reject Petitioner’s process-oriented arguments.  Petitioner contends that, “at the conclusion of the survey,” it is “inconceivable that [the surveyors] would leave the building without assuring themselves” that no imminent threat of sexual assault remained, “in which case immediate jeopardy no longer existed.”  RR at 21.  Petitioner also asserts that “[a]batement and correction are two different processes” that CMS erroneously conflated.  P. Reply at 8.  Petitioner further asserts that allegedly belated notice of the findings supporting CMS’s immediate jeopardy assessment hindered Petitioner’s abatement efforts and raise “due process concerns.”  RR at 24-25.

These arguments lack support and are unpersuasive.  No legal authority requires surveyors to remain at a facility, or conduct daily checks there, until the facility shows its noncompliance has ended and immediate jeopardy is abated.  See Donelson Place Care & Rehab. Ctr., DAB No. 3046, at 43-44 (2021) (recognizing that “CMS does not bear the

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impossible burden of checking every day to see if noncompliant conditions persist”); CarePlex of Silver Spring, DAB No. 1683, at 5 (1999) (“Plainly, it would be impracticable to expect surveyors to return daily to monitor corrections before the facility even offers a credible allegation that it has achieved substantial compliance.”).  The surveyors and CMS demonstrably could and did distinguish abatement of immediate jeopardy from correction of non-compliance, by acknowledging after the March 10, 2015 follow-up survey that Petitioner had achieved the former but not yet the latter.  See ALJ Decision at 2; CMS Ex. 15, at 3.  The ALJ did not err in assessing Petitioner’s claims of tardy notice as “without merit,” because “[t]he evidence shows significant if not extensive communication between Petitioner’s staff and surveyors during and after the survey including explanation of the bases for the surveyors’ decision to declare immediate jeopardy.”  See ALJ Decision at 41 (citing CMS Exs. 24, 27).  If Petitioner seeks to invoke “due process” in the constitutional sense, “the Board has no authority to alter or reject applicable procedures on constitutional grounds.”  See Wax David Flowers, DAB No. 3039, at 10 n.10 (2021).

Most importantly, “the issue in this proceeding is not the competence or actions of the state reporting agency but rather the compliance of the facility with federal law.”  See Beverly Healthcare at 9.  Inadequate survey performance, even if proven, neither relieves a SNF of its obligation to meet all requirements for program participation, nor invalidates adequately documented deficiencies.  42 C.F.R. § 488.318(b); Mississippi Care at 18.

In sum, a facility’s “allegations that it reduced the threat that one resident posed to another resident while not having completed the actions it promised to ensure the protection of all residents do not show clear error in CMS’s determination of the duration of immediate jeopardy.”  Maysville at 22.  As we previously have recognized, sexual abuse by its very nature is likely to cause serious injury or harm, and a facility’s inadequate response to possible sexual abuse of one resident puts all residents in danger.  Id. at 21-22.  Thus, the ALJ did not err in upholding CMS’s determination of the duration of immediate jeopardy.

E.       We affirm the ALJ’s determination that the CMP amounts are reasonable and the ALJ’s upholding of the DPNA.

Petitioner asks the Board to review the ALJ’s conclusion that the $7,000 per day CMP for the duration of immediate jeopardy (February 9, 2015, through March 9, 2015) was reasonable.  RR at 16-26; P. Reply at 7-10; ALJ Decision at 41-44.  Petitioner argues that “there was no basis on which to impose a $7000 per day CMP as immediate jeopardy never existed in the facility.”  RR at 26.

The ALJ concluded that the $7,000 daily CMP was reasonable based on “consideration of the regulatory factors” in 42 C.F.R. § 488.438(f).  ALJ Decision at 43.  Those factors are the facility’s noncompliance history, financial condition, and degree of culpability, as

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well as any deficiency’s seriousness and relationship to other deficiencies as specified in section 488.404.  42 C.F.R. § 488.438(f).  The ALJ found that “Petitioner has a history of noncompliance prior to the surveys at issue,” Petitioner did not argue an inability to pay the proposed CMP, “Petitioner’s deficiencies are serious,” and “Petitioner was culpable.”  ALJ Decision at 43.  The ALJ also observed that “[t]he CMP of $7,000 per day proposed by CMS for the 28 days of immediate jeopardy is in the middle of the authorized range” of $3,050 per day to $10,000 per day.  Id.

The scope of Board review is limited.  We may not review CMS’s choice of remedies or reduce a CMP to zero.  42 C.F.R. §§ 488.408(g)(2); 488.438(e); 498.3(b)(13).  When reviewing a penalty amount, the Board, like the ALJ, may not consider any factors other than those that section 488.438(f) specifies.  See Brenham at 17 (“An ALJ or the Board determines de novo whether a CMP is reasonable based on facts and evidence in the appeal record concerning the factors specified in section 488.438.”).

Petitioner bears the burden of proof on this issue.  “[W]e presume that CMS considered the regulatory factors [in 42 C.F.R. § 488.438(f)] in choosing a CMP amount and that those factors support the penalty imposed.”  Crawford Healthcare & Rehab., DAB No. 2738, at 19 (2016); accord Vibra Hosp. at 30.  CMS has no responsibility to produce evidence concerning a particular factor unless the facility contends the factor does not support the CMP amount.  Liberty Commons Nursing & Rehab - Alamance, DAB No. 2070, at 18 n.16 (2007), aff’d, 285 F. App’x 37 (4th Cir. 2008) (per curiam).  “Accordingly, the burden is 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.”  Brian Ctr. at 12.

Beyond contesting the validity and duration of CMS’s immediate jeopardy assessment, Petitioner presents no evidence or argument that the per day CMP amount was unreasonable.  Petitioner does not challenge the ALJ’s assessment of the regulatory factors under 42 C.F.R. § 488.438(f) or cite any evidence that might undercut it.  We have affirmed, above, the ALJ’s conclusion that CMS’s immediate jeopardy determination (including the duration of immediate jeopardy) was not clearly erroneous.  When that is the case, and Petitioner “does not contend that [the per day CMP amount] is unreasonable based on the relevant regulatory factors, nor does it even mention the ALJ’s culpability finding,” we “find no basis for disturbing the ALJ’s conclusion that the amount of the CMP was reasonable.”  See Lutheran Home at Trinity Oaks, DAB No. 2111, at 22 (2007); see also Glenoaks at 27 (upholding CMP amount where petitioner did “not contend . . . on appeal . . . that any particular regulatory factor did not support the CMP amounts”).

Accordingly, we summarily affirm the reasonableness of the CMPs that CMS imposed during Petitioner’s period of noncompliance, at both the immediate jeopardy and non-immediate jeopardy levels.  See Rockcastle at 20 (2018) (stating that, because petitioner

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“does not specifically disagree with the ALJ’s findings and conclusions on” an issue, “we therefore summarily affirm those findings and conclusions”).

We also affirm the ALJ’s upholding of the DPNA from March 5 through March 10, 2015, as Petitioner asserts no particularized argument of error (and asserted none before the ALJ) concerning that remedy, apart from arguing that Petitioner was in substantial compliance.  Cf. Pinehurst at 33 n.13 (upholding DPNA where facility did “not challenge the imposition of that remedy, other than to argue there was no basis to impose any remedy because it was in substantial compliance, a contention that the ALJ properly rejected based on substantial evidence”).  Having concluded that Petitioner remained out of substantial compliance as CMS determined, we find no error in the ALJ’s conclusion regarding CMS’s authority to impose a DPNA effective March 5 through March 10, 2015.

Conclusion

We affirm the ALJ Decision upholding CMS’s determinations that Petitioner was not in substantial compliance with Medicare participation requirements from February 9 through March 10, 2015, and that immediate jeopardy existed for all but the last day of that period.  We also affirm the ALJ’s conclusions that the CMP amounts imposed were reasonable, and that CMS was authorized to impose a DPNA effective from March 5 through March 10, 2015.

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Endnotes

¹ We apply, as the ALJ did, the regulations in effect from February through April 2015, when the surveys supporting CMS’s enforcement action occurred.  See ALJ Decision at 1 n.1; North Las Vegas Care Ctr., DAB No. 2946, at 1 n.1 (2019).  In October 2016, CMS issued revised long-term care facility requirements that do not apply to this appeal.  See Final Rule, Medicare and Medicaid Programs; Reform of Requirements for Long-Term Care Facilities, 81 Fed. Reg. 68,688 (Oct. 4, 2016); see also 82 Fed. Reg. 32,256 (July 13, 2017) (technical corrections).

² This section is drawn from the ALJ Decision and the record before the ALJ and provides context for the issues Petitioner raises on appeal, but does not replace or modify the ALJ’s factual findings.

³ Petitioner also participated as a nursing facility in the Medicaid program, ALJ Decision at 2, per Title XIX of the Act, which authorizes federal grants to states for providing certain medical assistance.  See Act §§ 1900-1903.  “A long-term care facility can participate in both programs, and the regulations for long-term care facilities cover both Medicare SNFs and Medicaid nursing facilities (NFs).”  Putnam Ctr., DAB No. 2850, at 1 n.1 (2018) (citing 42 C.F.R. §§ 483.1, 483.5), aff’d, 770 F. App’x 630 (4th Cir. 2019).  Medicaid requirements for NFs under Section 1919 of the Act are consistent with Medicare requirements for SNFs under section 1819 of the Act, so this Decision cites Medicare provisions only.

⁴ We substitute the terms “Administrator” for “Executive Director” and “DON” for “Director of Clinical Services” for the sake of uniformity and consistency with the nomenclature used in record documents including Petitioner’s Request for Review.

⁵ Long-term care facilities must conduct “periodically a comprehensive, accurate, standardized, reproducible assessment of each resident’s functional capacity” using a standardized Resident Assessment Instrument (RAI).  42 C.F.R. 483.20(b); see also Act § 1819(b)(3).  The Minimum Data Set is a component of the RAI.  See Maine Veterans’ Home - Scarborough, DAB No. 1975, at 14 (2005).  The BIMS segment of the Minimum Data Set “is a tool to assess a person’s cognitive functioning.”  Crawford Healthcare & Rehab., DAB No. 2738, at 6 n.10 (2016).  BIMS scores from 0 to 7 signify severe impairment, from 8 to 12 signify moderate impairment, and from 13 to 15 signify intact cognition.  See CMS Ex. 25, at 2, ¶ 9; see also Rockcastle Health & Rehab. Ctr., DAB No. 2891, at 6 n.7 (2018) (citing CMS’s Long-Term Care Facility Resident Assessment Instrument 3.0 User’s Manual, (last visited Oct. 27, 2023), https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/NursingHomeQualityInits/Downloads/MDS-30-RAI-Manual-V113.pdf).

⁶ CMS also notified Petitioner of its potential two-year ineligibility to conduct a Nurse Aide Training and Competency Evaluation Program (NATCEP).  See ALJ Decision at 2, 6-7; CMS Ex. 15, at 11.  “Loss of NATCEP is not a remedy that CMS decides to impose . . . but, rather, a consequence that follows by action of law when a facility with or seeking approval for a NATCEP program is found to have provided substandard quality of care.”  Yakima Valley Sch., DAB No. 2422, at 7 (2011) (citing Act §§ 1819(f)(2)(B)(iii)(I), 1919(f)(2)(B)(iii)(I); 42 C.F.R. §§ 483.151(b)(2), 483.151(e); 488.301; 488.310)).  The ALJ determined that Petitioner had lost eligibility to conduct a NATCEP “by operation of law” for a two-year period that expired on February 16, 2017.  ALJ Decision at 6.  Petitioner does not challenge that ruling and we do not review it.  See Best Fla. Homecare, Inc., DAB No. 2873, at 9 n.10 (2018) (declining to address undisputed ALJ finding that “does not affect our analysis”).

⁷ The parties stipulated that Tag F225 also encompassed 42 C.F.R. § 483.13(c)(l)(ii)-(iii) (containing hiring prohibitions and reporting requirements as to individuals with prior findings against them concerning abuse or other unfitness for employment).  Joint Stipulations at 1, ¶ 3.  However, the ALJ determined the “facts alleged in this case do not implicate these regulatory provisions and they are not addressed further.”  ALJ Decision at 10 n.7.  Neither party challenges that ruling and we do not review it.  See Best Fla. Homecare at 9 n.10.

⁸ The ALJ Decision includes lengthy commentary by the ALJ on Board precedents concerning the “clearly erroneous” standard and “immediate jeopardy” determinations.  See ALJ Decision at 35-40.  That commentary was unnecessary to address the parties’ contentions or resolve the case, and therefore is dicta without legal effect or precedential value.  We do not parse or correct the ALJ’s dicta because we find, as explained below, that Petitioner has not shown CMS’s immediate jeopardy determination to be clearly erroneous under the standard as correctly applied.