SUBJECT:

Ridgely Care & Rehabilitation Center

Petitioner,

Centers for Medicare & Medicaid Services.

DECISION

I sustain the imposition of civil money penalties against Petitioner, Ridgely Care & Rehabilitation Center in the amount of $100 per day for each day of a period that began on November 17, 2003 and which ran through December 9, 2003. I predicate my decision on findings that:

� Petitioner failed adequately to protect the dignity of its residents during the period in question. Penalties in the amount of $100 per day are reasonable given the scope and severity of Petitioner's noncompliance and its degree of culpability.

� The evidence does not establish that Petitioner or its staff allowed residents of Petitioner's facility to be abused. Nor does it show that Petitioner or its staff failed to implement policies that were designed to prevent residents from being abused, neglected, or mistreated.

� Centers for Medicare & Medicaid Services (CMS) did not establish a prima facie case that Petitioner failed to provide medically related social services to its residents.

� Additional allegations of noncompliance were deleted after a State informal dispute resolution (IDR) proceeding that was completed on January 29, 2004. These include allegations that Petitioner failed to: investigate allegations of resident abuse; maintain an ongoing program of resident activities; have sufficient numbers of nursing staff; and manage itself in accordance with regulatory requirements. The effect of the IDR action was to remove entirely these allegations of noncompliance as a basis for imposition of remedies against Petitioner. CMS could have, but did not, overrule the IDR findings and, consequently, the noncompliance allegations that were deleted after IDR are not an issue in this case.

� Other allegations of noncompliance were reduced in scope and severity after completion of IDR. These include most notably the allegations that Petitioner failed adequately to protect its residents' dignity and that it failed to provide medically related social services to its residents. CMS did not overrule the IDR findings reducing the scope and severity of these allegations. Consequently, the allegations that Petitioner manifested immediate jeopardy level failures to respect its residents' dignity and to provide them with medically related social services are no longer at issue. These two allegations of noncompliance remain in the case, but at a scope and severity level that is at less than immediate jeopardy.

� CMS failed to press additional allegations of noncompliance that were made in the report of the November survey. I conclude that CMS abandoned these allegations. Alternatively, I impose sanctions for CMS's failure to press these additional allegations and I delete them from this case.

I. Background

Petitioner is a skilled nursing facility in the State of Tennessee. It participates in the Medicare program. Its participation in Medicare is governed by federal statutes which include sections 1819 and 1866 of the Social Security Act (Act) and by implementing regulations at 42 C.F.R. Parts 483 and 488.

Petitioner was surveyed for compliance with Medicare participation requirements in November 2003 (November survey) by surveyors employed by the Tennessee State survey agency. The surveyors found that Petitioner was not complying substantially with several participation requirements. In some instances the surveyors found that Petitioner's noncompliance was so egregious as to place residents of Petitioner's facility in a state of immediate jeopardy. The term "immediate jeopardy" is defined under federal regulations to mean:

a situation in which . . . [a skilled nursing facility'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.

CMS concurred with these findings and determined to impose remedies against Petitioner. These remedies included civil money penalties of: $5,000 per day for each day of a period that began on November 17, 2003 and which ran through December 4, 2003; and $50 per day for each day of a period that began on December 5, 2003 and which ran through December 10, 2003.

Petitioner requested a hearing and the case was assigned to me for a hearing and a decision. In addition, Petitioner engaged in an IDR process at the State level. The consequence of IDR was that, on January 29, 2004, the Tennessee State survey agency deleted several of the findings of noncompliance, including several of the immediate jeopardy level findings, and reduced in scope and severity several other findings of noncompliance.

I conducted an in-person hearing in Memphis, Tennessee on August 24, 2004. CMS offered as evidence, and I received, exhibits consisting of CMS Ex. 1 - CMS Ex. 37. Petitioner offered as evidence, and I received, exhibits consisting of P. Ex. 1 - P. Ex. 50. I also received the testimony of several witnesses.

II. Issues, findings of fact and conclusions of law

A. Issues

The issues in this case are whether:

1. Deficiencies that were cited in the report of the November survey were deleted from this case by an IDR decision.

2. The scope and severity of some deficiencies that remained in this case after completion of IDR were modified by the IDR decision.

3. CMS abandoned its allegations concerning some of the deficiencies that remained in this case after IDR.

4. Petitioner failed to protect its residents against abuse.

5. Petitioner failed to implement its policies against resident abuse, mistreatment, or neglect.

6. CMS proved a prima facie case that Petitioner failed to provide its residents with medically related social services.

7. Petitioner failed to protect its residents' dignity.

8. It is reasonable to impose civil money penalties against Petitioner of $100 for each day of its noncompliance with participation requirements.

B. Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below as a separate heading. I discuss each Finding in detail.

1. Deficiencies that were cited in the report of the November survey were deleted from this case by an IDR decision.

The report of the November survey alleged that Petitioner manifested 16 distinct failures to comply with participation requirements. CMS Ex. 28, at 1 - 195. These alleged deficiencies are organized under headings designated as "tags." The specific tags that were alleged in the survey report are headed with the following numeric designations: 221; 224; 225; 226; 241; 248; 250; 272; 279; 280; 282; 312; 324; 353; 365; and 490. Id.

As I discuss above, at Part I of this decision, Petitioner opted to engage in State IDR. I take notice that IDR is a hearing process that is available at the State level to a nursing facility that disagrees with noncompliance findings that are the basis for imposition of a remedy against that facility. At an IDR proceeding the facility may present evidence before a panel to dispute noncompliance findings. The evidence may include exhibits and testimony. The panel may, after hearing the evidence and the facility's arguments, sustain, modify, or delete entirely findings of noncompliance.

On January 29, 2004, the IDR panel issued its findings. It sustained some of the surveyors' findings of noncompliance. But, it also decided to delete Tags 225, 248, 353, and 490. P. Ex. 40. ⁽¹⁾ Each of these tags originally had been assigned an immediate jeopardy scope and severity by the State surveyors.

The consequence of the State IDR decision in this case to delete Tags 225, 248, 353, and 490 from the report of the November survey was to eliminate these tags as a basis for any remedy determination. The regulations which govern the participation of skilled nursing facilities in Medicare state that:

If a provider is subsequently successful during the . . . [IDR] process, at demonstrating that deficiencies should not have been cited, the deficiencies are removed from the statement of deficiencies and any enforcement actions imposed solely as a result of those cited deficiencies are rescinded.

42 C.F.R. � 488.331(c).

CMS now asserts that it disagrees with the State IDR decision and that, therefore, it has effectively overruled it. As support for its contention it relies on another regulation, 42 C.F.R. � 488.452(a)(2). The regulation provides, in relevant part, that CMS's findings of noncompliance take precedence over those of a State agency where:

(i) CMS finds that a . . . facility has not achieved substantial compliance; and

(ii) The State finds that . . . [the same] facility is in substantial compliance with the participation requirements.

42 C.F.R. � 488.452(a)(2)(i), (ii).

This regulation plainly states that CMS's findings of noncompliance take precedence where it and the State disagree. In that circumstance CMS may impose a remedy regardless of the State's determination.

However, that does not mean that CMS may simply ignore the findings of a State IDR panel. A primary purpose of IDR is to allow a facility an opportunity to expunge or modify adverse deficiency findings without having to incur the additional expense of an administrative hearing or possible court proceedings. Another important purpose of IDR is to make the enforcement process operate more efficiently. If after completion of IDR, and upon review of the IDR findings, CMS determines to pursue an enforcement proceeding regardless of those findings, it certainly may do so. But, in order to preserve the meaningfulness of the process CMS, at a minimum, should conduct a fair review of the findings and state its disagreement with them affirmatively. It is not enough for CMS simply to ignore the IDR findings. Allowing that would effectively render the IDR process meaningless. NHC Healthcare - Moulton, DAB CR898 (2002).

Here, CMS has offered nothing to show that it reviewed and rejected the State IDR findings. There is literally nothing in the record of this case to show that CMS at any time even considered them. In light of that I conclude that CMS failed to establish that it considered and rejected the IDR findings. Consequently, Tags 225, 248, 353, and 490 may not be a basis for imposition of remedies against Petitioner.

CMS now asserts that the fact that it did not explicitly and in writing agree with the State IDR findings means that it disagreed with them. I am not persuaded by this argument. Taken literally, it would mean that CMS is free simply to ignore what was done at IDR and, at some subsequent date, couch its indifference to the process as "disagreement." That is not the intent of the regulations which require CMS to defer to an IDR outcome unless it actively disagrees with it.

CMS's argument also misstates reality. CMS offered nothing to show that at any time it independently reviewed the conditions that prevailed at Petitioner's facility. Rather, CMS accepted the allegations that were made in the report of the November survey and derived its remedy determination from those findings. In other words, CMS's enforcement actions in this case derive exclusively from what the State survey agency found. But, after the Tennessee State survey agency made its original findings it changed them in significant respect as is evidenced by its IDR findings. P. Ex. 40. The IDR findings were tantamount to a conclusion by the Tennessee State survey agency that it had been mistaken in its original findings of noncompliance and that it was revising them to state narrower grounds of noncompliance. Given that, one would expect CMS to provide some evidence that it had independently reviewed and rejected the IDR decision if CMS intended to disagree with it. But, CMS offered no such evidence.

2. The scope and severity of some deficiencies that remained in this case after completion of IDR were modified by the IDR decision.

In addition to eliminating several tags entirely the IDR decision modified the scope and severity of several others. The scope and severity reductions are as follows: Tag 324 reduced from a scope and severity level of "K" to a scope and severity level of "G"; Tag 280, from "J" to "D"; Tag 282, from "J" to "D"; Tag 250, from "J" to "D"; Tag, 241, from "K" to "E". P. Ex. 40; see CMS Ex. 28. As a consequence of these reductions in scope and severity, several deficiency findings that the State survey agency and CMS had determined originally to be at the immediate jeopardy level were reduced to non-immediate jeopardy level findings. In most instances the reductions were from findings of immediate jeopardy to deficiencies of a low scope and severity within the non-immediate jeopardy category of deficiencies.

I take notice that State survey agencies and CMS rely on letter designations to describe the scope and severity of deficiencies. Deficiencies that are assigned letter ratings of "J", "K", and "L" are immediate jeopardy level deficiencies. Deficiencies that are assigned letter ratings of "D" through "G" are non-immediate jeopardy level deficiencies. Deficiencies that are rated at "D" and "E" are non-immediate jeopardy level deficiencies where no actual harm to residents has been established, but where there exists only the potential for more than minimal harm.

I find nothing in the record of this case to show that CMS reviewed and disagreed with any of these scope and severity reductions. Consequently, I am addressing these deficiencies based on the scope and severity that the State agency assigned to them after completion of IDR.

As a practical matter this finding may be academic. As I discuss below, at Finding 3, with the exception of Tags 241 and 250, CMS either abandoned its allegations about these alleged deficiencies or failed to comply with my directives concerning its presentation of argument and evidence relating to these deficiencies. For that reason, I find them no longer to be at issue in this case. At Finding 6, I find that CMS did not prove a prima facie case that Petitioner failed to provide medically related social services to its residents (Tag 250). That finding does not depend on the scope and severity assigned to Petitioner's alleged noncompliance, but on the absence of credible evidence showing that Petitioner failed to comply with the social services requirement in any substantial respect. At Finding 7, I find that Petitioner was deficient in protecting the dignity of its residents (Tag 241) at a non-immediate jeopardy level of scope and severity. I would find CMS's allegation of an immediate jeopardy level deficiency under this tag to be clearly erroneous if that scope and severity determination was still an element of this case.

3. CMS abandoned its allegations concerning some of the deficiencies that remained in this case after IDR.

I issued an initial pre-hearing order (Order) in this case on January 5, 2004, immediately after the case was docketed and assigned to me. The Order directed the parties to file pre-hearing briefs. At Paragraph 7 of the Order I told each party that its pre-hearing brief must contain: a statement of each of the facts that it intended to prove; a discussion of the relevant law and how it relates to the facts; and an explanation of how the evidence that the party proposes to offer proves the facts that the party alleges. I specifically warned the parties that:

A prehearing brief must contain any argument that a party intends to make including any argument that is not explicitly stated in a notice document such as a hearing request or a survey report. I may exclude an argument and evidence that relates to such argument if a party fails to address it in its prehearing brief. The parties are discouraged from submitting boilerplate arguments and are reminded that their presentations should relate specifically to the facts and arguments in the case at hand.

Order at 3.

At the close of the hearing, I reinforced my directive to the parties that they must address to me the precise issues and evidence that they wished me to decide. I told them that their post-hearing briefs should not simply repeat the allegations that the parties had made previously, but should focus specifically on the evidence that was introduced at the hearing. Transcript (Tr.) at 148. I also made it plain to the parties that I did not intend to do their work for them by wading through the evidence in the case unassisted and ferreting out that which supported or contradicted their positions. Tr. at 155 - 156.

In its pre-hearing brief CMS barely addressed some of the allegations that were made in the survey report and it all but ignored many others. The brief, consisting of eight unnumbered pages, asserted skeletal arguments as to Tags 224, 225, 241, 248, 250, 280, 282, 324, and 353 of the report of the November survey. ⁽²⁾ CMS did not discuss at all the additional seven deficiency tags that were cited in the report of the November survey, asserting only that:

CMS will present documentary evidence and testimony with regard to the other tags listed in the . . . [report of the November survey] as they are written. Further, CMS will also present documentary evidence in the forms of resident records and facility policies and procedures related to the cited tags.

CMS's pre-hearing brief at 6 - 7. In its post-hearing brief CMS presented arguments only about a subset of the tags that it addressed in its pre-hearing brief. It made arguments only about Tags 224, 225, 226, 241, 248, and 250. With respect to the remaining tags that were cited in the November survey report it asserted only that:

CMS relies upon the written testimony and submitted documentary evidence as it relates to the remaining tags as cited in the . . . [report of the November survey].

CMS's post-hearing brief at xv.

I conclude, from the briefs submitted by CMS, that it abandoned the deficiency findings that were made in the report of the November survey with the exception of those that were cited at Tags 224, 225, 226, 241, 248, and 250. I find abandonment to be the only rational explanation for CMS's failure to address the remaining deficiency tags with specificity in light of the instructions that I gave to the parties in my order and at the close of the hearing.

Moreover, even if CMS did not abandon its allegations concerning tags other than Tags 224, 225, 226, 241, 248, and 250, it failed to comply with my directives that it brief fully its allegations concerning these other tags. I am authorized to strike a party's pleadings, in whole or in part, where that party fails to comply with an order or a procedure that I impose in a case. Act, section 1128A(c)(4)(C). I do so here with respect to all of the deficiency tags that were alleged in the report of the November survey except Tags 224, 225, 226, 241, 248, and 250.

The tags that remain in this case as allegations of Petitioner's noncompliance, either as a consequence of the IDR decision to delete certain tags or as a consequence of CMS's abandonment of certain tags, are Tags 224, 226, 241, and 250. Of these remaining tags, two of them, Tags 241 and 250, are now at a scope and severity level of less than immediate jeopardy as a consequence of the IDR decision to modify the scope and severity levels of these tags. Tag 241 has a scope and severity level of "E" and Tag 250 has a scope and severity level of "D" as a consequence of the IDR decision.

4. The preponderance of the evidence does not establish that Petitioner failed to protect its residents against abuse.

CMS's principal allegation in this case of an immediate jeopardy level deficiency - made at Tag 224 of the November survey report - is that Petitioner failed to protect its residents against abuse, arguably in violation of the requirements of 42 C.F.R. � 483.13. The regulation provides, at 42 C.F.R. � 483.13(b), that a resident has a right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion. ⁽³⁾

The assertions that Petitioner failed to protect its residents against abuse focus on the behavior of a resident at Petitioner's facility who is identified in the November survey report as Resident # 11. CMS contends that Petitioner's staff permitted Resident # 11 to conduct a "reign of terror" against other residents over a several month period. During that period, according to CMS, Petitioner allowed Resident # 11 to commit numerous assaults against other residents that caused them to experience physical and psychological injuries.

The preponderance of the evidence fails to support these allegations. It supports the conclusion that Petitioner was confronted with a resident whose behavior became increasingly inappropriate despite Petitioner's best efforts at asserting control. It also supports the conclusion that the resident's behavior disrupted the lives of other residents to the point that it offended their dignity. But, it does not support a conclusion that residents in Petitioner's facility were abused, either by Resident # 11 directly or, indirectly, by Petitioner's management and staff as a consequence of their tolerating the resident's behavior.

Resident # 11 was an elderly, but ambulatory (albeit with a very unsteady gait), severely demented and psychotic individual. This resident wandered throughout Petitioner's facility and her confusion produced by her dementia and psychosis often caused her to enter the rooms of other residents. She would, at times, use residents' toilet facilities and climb into their beds. She rummaged through residents' personal possessions and appropriated items such as articles of clothing and keepsakes. When confronted she became agitated and, at times, combative. Without doubt her behavior was obnoxious and offensive to other residents. Moreover, over time it deteriorated to the extent that the resident posed some risk that she would injure herself. Eventually, it reached the point that a clinical psychologist on Petitioner's staff concluded that the resident's continued stay at Petitioner's facility was inappropriate. Petitioner was simply not equipped to provide Resident # 11 with the environmental restrictions that she needed.

However, the evidence relating to Resident # 11's behavior fails to support the allegation that the resident assaulted other residents. Nor is there credible evidence that other residents were frightened of Resident #11, much less were they subjected to a reign of terror by that resident. Finally, there is no credible evidence that residents were injured physically or psychologically by Resident # 11.

Resident # 11 was 84 years of age at the time of her admission to Petitioner's facility in July 2003. The resident had a history of wandering, plundering, pilfering, shouting out, and episodes of agitation and combativeness. CMS Ex. 10, at 18 - 19. She was evaluated by a clinical psychologist shortly after her admission to the facility. Id. at 18. The psychologist diagnosed the resident to be suffering from a major depressive disorder, psychosis, dementia, and agitation. He found the resident to be oriented only to person and not oriented to place, time, or situation. The psychologist found the resident's intellectual functioning to be reduced and her memory to be impaired.

In the weeks that followed her admission Resident # 11 manifested all of the behaviors that were noted by the psychologist upon initial examination. On October 23, 2003, the psychologist recorded that he had been advised by Petitioner's staff that the resident was manifesting increased agitation. CMS Ex. 10, at 22. The psychologist commented that the resident wandered during most of her waking hours, that she entered other residents' rooms and that she became agitated, and sometimes, mildly combative when she was redirected. Id. Shortly thereafter, the resident was referred to a hospital for evaluation and psychiatric treatment.

However, the resident continued to manifest her behaviors after her return to Petitioner's facility. On November 20, 2003, the psychologist made another assessment of Resident # 11. CMS Ex. 10, at 24. He noted that the resident continued to wander throughout Petitioner's facility. He commented that the resident went into other residents' rooms, that she slept in other residents' beds, and that she engaged in plundering behavior. The resident was somewhat calmer as a consequence of a change in her medication, but her psychotic behavior essentially was unchanged. The psychologist concluded that Resident # 11 was placing herself in danger due to her dementia, wandering, and agitation. He also concluded that the resident required a more restrictive level of care than she was receiving at Petitioner's facility and suggested that, perhaps, the resident should receive psychiatric inpatient treatment. Id.

Nursing progress notes for Resident # 11 contain numerous references to the resident's wandering, her inappropriate entries into and use of other residents' rooms, beds and toilets, her pilfering of other residents' personal items, her agitation, and her combativeness. CMS Ex. 10, at 25 - 34. The records document verbal altercations between Resident # 11 and other residents. They also document episodes in which Resident # 11 attempted to strike members of Petitioner's staff as these staff members attempted to provide care to the resident.

However, the weight of the evidence does not support a finding that Resident # 11 ever physically assaulted or struck any other resident at Petitioner's facility. CMS offered only scant evidence of episodes of physical confrontation between Resident # 11 and other residents. The few instances of alleged confrontation occurred in July and August, 2003, and not during the November 17 - December 10, 2003 period when Petitioner is alleged to have tolerated abuse of residents by Resident # 11. Furthermore, the meager allegations of episodes in which Resident # 11 allegedly perpetrated physical violence against other residents are not credible.

Petitioner's records mention only three instances during Resident # 11's stay in which the resident was alleged to have had a physical confrontation with another resident. On July 19, 2003, the resident's roommate, Resident # 13, alleged that Resident # 11 had slapped her. CMS Ex. 10, at 28. On August 8, 2003, Resident # 11 allegedly was confronted by another resident, Resident # 19, when Resident # 11 entered Resident # 19's room and used her bathroom. Id. at 25. On that occasion, the nurse reported that Resident # 11 "shoved . . . [Resident # 19] and . . . [Resident # 19] fell into the wall and scratched her lower arm." Id. at 25 - 26. On August 26, 2003, the resident allegedly was confronted by another resident, Resident # 21, and the other resident's husband, Resident # 22, when she entered their room. Id. at 29. Resident # 11 was reported to have cursed and hit at other people when an effort was made to get her to leave the room. Id. The notes do not state that the resident actually struck anyone on this occasion.

CMS produced no witness to testify that he or she saw Resident # 11 strike another resident. All of the allegations of physical altercations between Resident # 11 and other residents consist of attributions - in and of themselves hearsay - by Petitioner's nursing staff to some residents of uncorroborated hearsay statements. I find this evidence - consisting of two levels of hearsay - to be unreliable in the absence of any corroborative eye witness evidence.

Moreover, as inherently unreliable as is this hearsay, it is further belied by evidence that undercuts it. The allegations that residents were assaulted by Resident # 11 simply are not credible. For example, there is considerable evidence supporting the conclusion that Resident # 11's roommate, Resident # 13, was neither a credible nor an impartial witness. Resident # 13 had a motive for asserting that Resident # 11 had struck her, which was to force Petitioner's staff to move Resident # 11 into a different room at the facility. Resident # 13 had a long history, going back to 1994, of interpersonal conflicts with her roommates. She was described by Petitioner's staff to be manipulative and engaged in a variety of attention seeking behaviors. P. Ex. 2, at 3. And, Resident # 13 recanted her assertion that Resident # 11 had slapped her. P. Ex. 3, at 3.

The report that Resident # 11 shoved Resident # 19, causing her to hit a wall and to sustain a scratch to her arm, is also suspect. No witness testified as to having actually seen this purported incident. The nurse who recorded the allegation based it on the hearsay statement of the resident. P. Ex. 20, at 1. Resident # 19 is described by a clinical psychologist as having a tendency to misinterpret events and to report them in a negative way. P. Ex. 2, at 4. In an interview conducted in November 2003, Resident # 19 stated that, during the incident in question, she fell as she was approaching Resident # 11. P. Ex. 43. She did not recall that Resident # 11 had pushed or struck her. Id.

Evidence relating to the August 26, 2003 confrontation between Resident # 11 and Residents #s 21 and 22 does not, on close analysis, support a finding that Resident # 11 struck either of these residents. Neither Resident # 21 nor Resident # 22 claimed to have been struck by Resident # 11. In one account, Resident # 21 is reported to have asserted that, during the altercation on that date with Resident # 11, Resident # 11 backed up against the wall and cursed and hit at Resident # 22. P. Ex. 25. But, nowhere in this account or elsewhere is there an assertion that Resident # 11 actually made physical contact with either Resident # 21 or Resident # 22.

The preponderance of the evidence also does not support a conclusion that residents were frightened by Resident # 11. ⁽⁴⁾ CMS bases its contention that Resident # 11 frightened other residents essentially on statements allegedly made by residents at interviews that surveyors conducted with individual residents, and on statements made by residents who were interviewed as a group. The allegations that the surveyors attribute to the individual residents are stated in the November survey report as follows:

� When asked if she was fearful of Resident # 11, Resident # 13, the resident's roommate, is reported to have said: "Yes I am. I can't sleep at night. I'm afraid. She's threatened to cut my throat." CMS Ex. 28, at 22.

� Resident # 19 is reported to have said to a surveyor: "I was afraid after she [Resident # 11] pushed me. I didn't want to be involved with her, period. I don't want to hear her threats. I stay out of her way." CMS Ex. 28, at 23.

� When asked if she was afraid of Resident # 11, Resident # 22 is reported to have stated: "Yes, I'm too weak, I couldn't do anything." CMS Ex. 28, at 24. The resident also reportedly asserted that she was afraid that, when she was out of her room, she would return to find that items which belonged to her would be missing. Id.

According to CMS, residents who attended the group interview also expressed fear of Resident # 11. CMS's post-hearing brief at xi (citing to Tr. at 39).

These reported allegations, both from individual interviews and from the group interview, are hearsay and they are inherently unreliable. As with the hearsay that I discuss above, they consist of second-hand accounts of what individuals are reported to have said.

There is, in fact, no evidence of record that supports CMS's assertion that the residents who were interviewed as a group expressed fear of Resident # 11. The page of the transcript, Tr. at 39, cited by CMS to support this contention, does not provide support for it. The surveyor on whose testimony CMS relies testified that she wasn't at the group interview. Tr. at 39.

Moreover, there is reason to conclude that the statements that the surveyors attribute to individual residents were not reported accurately. The report of the November survey is not an accurate account of statements that are contained in Petitioner's records, which are in evidence, and which can be verified. The inaccurate references in the survey report to Petitioner's resident records makes highly suspect any attribution in the report that is not corroborated or supported by testimony. For this additional reason, the hearsay statements in the survey report that are attributed by surveyors to residents of Petitioner's facility are not credible.

For example, the survey report alleges that the following statement is contained in a nursing note made on October 19, 2003:

"Res [#11] cursing, very agitated nurse's interventions to take her to DR [dining room] for bkfst [breakfast] she continues to curse get aggitated at any time when nsg [nursing] staff tries to re-direct her . . . 3 PM . . . She cursed . . . continued to hit us, beat the hell out of us during entire assessment. She has scratched arms . . . clawing . . . skin . . . will continue to attempt nursing interventions.

CMS Ex. 28, at 9 (emphasis added). However, this alleged quotation from the nursing notes is inaccurate and highly misleading. The note actually says:

8:00 Am Res cursing, very . . . [agitated] @ nurse's instructions to take her to DR for bkfst she continues to curse and get . . . [agitated] at any time when nsg staff tries to re-direct her or provide nsg care. She is very confused . . . . 3Pm cking resident for skin & nail assessment done. This CN & 2 other [unintelligible, possibly "nurse aides"] C. Hayes, LPN, D. Bailey LPN @ assessment. We informed her what we wanted to do. She cursed & threatened to hit us, beat the hell out of us during entire assessment. She has scratched arms [unintelligible] & neck. She is clawing her skin. Will cont to attempt nsg intervention . . . .

CMS Ex. 10, at 30 - 31 (emphasis added).

The survey report makes it appear as if the resident perpetrated a vicious assault on Petitioner's staff. According to the survey report the resident "continued to beat the hell out of" the staff, scratched the staff's arms, and clawed at the staff's skin while the staff attempted to provide care. In fact, the nursing note says no such thing. It says only that the resident threatened the staff and that the resident inflicted injuries to herself.

This is an obviously significant discrepancy and it calls into question the accuracy of all of the quotes that the survey report attributes to residents. At the very least, it suggests that quotes in the report should not be accepted on their face. But more than that, it suggests that the surveyors failed to report accurately what they were told.

The inherently unreliable hearsay attributions in the survey report are not corroborated. CMS produced no witness - either a resident or a surveyor - who actually uttered these alleged statements or who could corroborate them. Nor did CMS produce clinical evidence to show that any of Petitioner's residents were fearful of Resident # 11. In fact, the alleged expressions of fear contained in the survey report are undercut or rebutted by other evidence.

Unlike CMS, Petitioner produced a witness who was familiar with the history of the residents whom the surveyors contended were fearful and who had spoken directly with these residents. Dennis W. Wilson, PhD, is a clinical psychologist who treated the residents whose alleged statements are at issue. P. Ex. 2; Tr. at 127 - 135. I find his testimony to be credible and to rebut any inference that residents were afraid of Resident # 11 that one might draw from the alleged statements contained in the November survey report.

Dr. Wilson testified credibly that Residents #s 13, 19, and 22 were his psychotherapy patients and that he'd seen them regularly. Tr. at 130. He testified that Resident # 13 had expressed fear of Resident # 11 but that, in fact, Resident # 13 had never acted as if she were afraid of Resident # 11. Moreover, he confirmed that Resident # 13 was a past master at ousting roommates, either through her manipulative behavior, or through stories that she told about her roommates, or through aggravating her roommates' families. Id. For these reasons, Resident # 13's expressions of fear - as with her contention that Resident # 11 had assaulted her - are not credible. As to the other residents, Dr. Wilson testified persuasively that:

[Resident # 11] was not one that people flocked to to be around, but nobody seemed afraid of her. But they did complain about her being annoying to them and they did not want her in their room[s] bothering their things. But absolutely none of these people were afraid of her. In fact, they would sometimes confront her themselves even though they'd been asked to let the staff do that, especially Resident [#]13. Resident [#]13 would seem to try to antagonize . . . [Resident # 11].

Tr. at 134 - 135.

Finally, CMS introduced no credible evidence to show that any of Petitioner's residents suffered either physical or psychological harm as a consequence of their interactions with Resident # 11. First, there is nothing credible in the record of this case to support the conclusion that any resident was harmed physically by Resident # 11. For the reasons that I discuss above, the allegations that Resident # 19 suffered a scratched arm as a result of a confrontation with Resident # 11 are not credible. I find also not to be credible CMS's contentions that Resident # 11 caused Resident # 22 to experience chest pain or to become incontinent. Statements to that effect that are attributed to Resident # 22 by the surveyors are contradicted by the resident's failure, at the time of the incident involving Resident # 11, to complain, either of chest pains or of incontinence. P. Ex. 24, at 1; P. Ex. 26, at 1.

Similarly, there is no credible evidence to support the conclusion that any resident was harmed psychologically by Resident # 11. Indeed, the only credible evidence supports the opposite conclusion. Dr. Wilson, who treated the residents and who saw them on a regular basis, averred persuasively that none of them experienced psychological harm. P. Ex. 2.

The term "abuse" is defined at 42 C.F.R. � 488.301 to mean the:

willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.

CMS's assertion that the alleged failure of Petitioner and its staff to manage the behaviors exhibited by Resident # 11 constituted abuse of residents is unpersuasive given that the preponderance of the evidence fails to show that any residents were assaulted by Resident # 11, were frightened of her, or were physically or psychologically harmed by her. There simply is no credible evidence proving that Petitioner's staff willfully allowed Resident # 11 to harm any other resident.

As I discuss in more detail, at Finding 7, the evidence does prove that Petitioner's staff was ineffective in preventing Resident # 11 from roaming the facility, invading other residents' personal space, and disrupting their lives. That the consequences of the staff's ineffective supervision of Resident # 11 were offensive to other residents and an affront to their dignity is beyond doubt. But, the staff's ineffectiveness in this case cannot be construed to constitute a willful infliction of injury, unreasonable confinement, intimidation or punishment of residents, in the absence of evidence that Resident # 11 was more than an annoying presence at the facility.

Moreover, even if the affront to residents' dignity caused by Resident # 11's behavior could be characterized as abusive, there is no evidence whatsoever in this case that Petitioner deliberately or willfully allowed such behavior to occur or allowed it to occur through indifference to the problems caused by Resident # 11. The evidence supports the conclusion that Petitioner's staff was not only aware of Resident # 11's behavior, but it attempted - albeit without success - to bring an end to it. The resident was monitored regularly by a clinical psychologist. Her medications were changed on more than one occasion in an attempt to ameliorate her behavior. The resident was referred to a psychiatric hospital for evaluation and for treatment in an attempt to manage her behavior. The staff put "stop" barriers in the doorways of residents' rooms in an attempt to curb Resident # 11's wandering. The staff counseled other residents about how best to deal with Resident # 11. Finally, when all efforts failed, Resident # 11 was transferred out of Petitioner's facility.

5. The preponderance of the evidence does not establish that Petitioner failed to implement its policies against resident abuse, mistreatment, or neglect.

At Tag 226 of the report of the November survey the surveyors allege that Petitioner failed to implement its anti-abuse policies in contravention of the requirements of 42 C.F.R. � 483.13(c). CMS Ex. 28, at 50 - 75. The allegations of noncompliance that are made under this tag essentially are the same as those that were made at Tag 224 of the November survey report. CMS does not contend that Petitioner lacked anti-abuse policies but, rather, that it failed to implement them in the case of Resident # 11.

At bottom, what CMS urges is that one infer from alleged evidence of "abuse" that Petitioner was not implementing its anti-abuse policy. CMS has not offered any direct proof of a failure by Petitioner to implement its policy. It has not, for example, offered evidence to show that Petitioner failed adequately to communicate its policy to its staff or to assure that the staff had the necessary training to implement the anti-abuse policy.

CMS's logic is not, on its face, defective. Evidence establishing the presence of abuse at a facility may provide a basis for inferring that there has been a failure by a facility to implement its anti-abuse policy. But, CMS's case is vulnerable where, as in the present case, the evidence of "abuse" offered by CMS is overcome by evidence showing an absence of abuse.

In this case not only does the preponderance of the evidence show an absence of abuse, but it shows that Petitioner was trying - albeit ineffectively - to shield its residents from Resident # 11's misbehavior. At Finding 4, above, I discuss those efforts. Suffice it to say that there is no persuasive evidence that Petitioner failed to implement its anti-abuse policy.

6. CMS did not prove a prima facie case that Petitioner failed to provide its residents with medically related social services.

At Tag 250 of the report of the November survey the surveyors alleged that Petitioner failed to provide medically related social services to its members in contravention of the requirements of 42 C.F.R. � 483.15(g). CMS Ex. 28, at 114 - 126. The allegations of noncompliance recite many of the allegations that are made at Tags 224 and 226 of the report of the November survey.

CMS's reasoning in support of its assertion that Petitioner did not provide its residents with medically related social services is that Petitioner was deficient because it failed to "prevent . . . [Resident # 11] from wandering through the halls of . . . [Petitioner] terrorizing fellow residents." CMS's pre-hearing brief at 5 - 6. In other words, CMS assumes an absence of adequate social services at Petitioner's facility based on Petitioner's inability to curb Resident # 11's behavior. ⁽⁵⁾

CMS failed to prove a prima facie case that Petitioner was not providing medically related social services to its residents. CMS's argument fails the test of logic. While it may be true that failure to provide social services may contribute to a resident management problem at a facility and might exacerbate the tendency of a resident to misbehave, it does not necessarily follow that a resident's behavior problems may be attributed to a failure to provide social services. Obviously, there may be many causes for a resident's behavior problems and a failure to provide social services is only one possibility. Therefore, it cannot follow automatically that a resident's behavior problems, including wandering and related behavior, must be caused by a failure to provide social services to that resident or to other residents.

CMS failed to provide any direct evidence that Petitioner was not providing medically related social services to Resident # 11 or to other residents. It did not offer prima facie proof, for example, that Petitioner's social services director had failed to: monitor Resident # 11's condition; participate in care planning for the resident; counsel the resident's family or other residents concerning the resident's condition and the most appropriate ways to deal with the resident; or, to make suggestions concerning the resident's care.

Indeed, Petitioner offered credible evidence to show that it was providing social services to its residents, including Resident # 11. In the case of Resident # 11, Petitioner's social services director was involved in the resident's care planning and made periodic evaluations of the resident's condition. The social services director's interactions clearly were appropriate. She met with and counseled other residents, concerning the behaviors manifested by Resident # 11, and how these residents could deal with those behaviors. P. Ex. 47, at 219. Additionally, she met with and counseled Resident # 11's family concerning the resident's condition. Id. at 217. In October, 2003, the social services director explained to the resident's family the need for in-patient psychiatric hospitalization for the resident and obtained their consent for hospitalization. Id. The social services director also provided weekly direct psychotherapeutic counseling to Resident # 13. P. Ex. 49, at 1.

7. Petitioner failed to protect its residents' dignity.

At Tag 241 of the report of the November survey the surveyors alleged that Petitioner failed to protect its residents' dignity in contravention of the requirements of 42 C.F.R. � 483.15(a). CMS Ex. 28, at 76 - 103. The evidence in this case overwhelmingly supports this allegation. The record, which I have discussed in detail at Finding 4, establishes that Resident # 11 routinely invaded other residents' rooms, slept in their beds, used their toilets, and pilfered their possessions. It establishes also that other residents found Resident # 11's behavior to be, at the very least, offensive.

Petitioner did not do all that it could have or should have done to manage the problems presented by Resident # 11. The resident resided at Petitioner's facility from mid-July until late November, 2003, a period of about four months. During this time the resident wandered and engaged in related behavior incessantly. Petitioner's efforts to curb this behavior, while they were made in good faith, were ineffective. It should have been obvious to Petitioner's staff long before November that monitoring the resident and putting "stop" signs in other residents' doorways was insufficient to prevent Resident # 11 from invading other residents' privacy. Ultimately, Petitioner's staff decided that the only recourse was to remove Resident # 11 from the facility and transfer her to a psychiatric facility. The persistence with which Resident # 11 wandered and engaged in related behavior suggests that Petitioner should have taken this action sooner rather than later if it could not find less drastic measures to control the resident's behavior.

There is no credible evidence that any resident experienced actual harm as a consequence of Resident # 11's behavior. As I discuss above, at Finding 4, the record does not show that Resident # 11 physically assaulted other residents nor does it show that any resident suffered psychological damage from Resident # 11's behavior. But, there certainly is evidence from which I may offer that there was a potential for more than minimal harm in Resident # 11's continued wandering and related behavior. The possibility that a confrontation could occur between Resident # 11 and another resident is evident from Resident # 11's behavior and the annoyance expressed by other residents about that behavior. Resident # 11's confusion was such that she could not distinguish between a member of Petitioner's staff and a fellow resident. Given that the record shows that Resident # 11 attempted to hit staff members when they provided care to her, the potential - if not the likelihood - certainly existed for her to strike at another resident. ⁽⁶⁾

8. It is reasonable to impose civil money penalties against Petitioner of $100 for each day of its noncompliance with participation requirements.

CMS determined to impose civil money penalties of $5,000 per day against Petitioner for each day of a period that began on November 17, 2003 and which continued through December 4, 2003. Additionally, CMS determined to impose civil money penalties of $50 per day against Petitioner for a second period beginning on December 5, 2003 and running through December 10, 2003. CMS predicated these penalty amounts on its conclusion that Petitioner was deficient at the immediate jeopardy level of noncompliance during the November 17 - December 4, 2003 period and remained deficient, albeit at a very low non-immediate jeopardy level of noncompliance from December 5 through December 10, 2003.

In this decision I find no basis to sustain immediate jeopardy level deficiency findings against Petitioner. But, a basis does exist to impose civil money penalties against Petitioner given that Petitioner failed to protect its residents' dignity in contravention of the requirements of 42 C.F.R. � 483.15(a) at a non-immediate jeopardy level of scope and severity. Consequently, any civil money penalty that I may impose must be in amounts that are reserved as remedies for deficiencies that are at less than the immediate jeopardy level of scope and severity. See 42 C.F.R. � 488.438(a)(1)(i), (ii). The permissible range for non-immediate jeopardy level civil money penalties is from $50 to $3,000 per day. 42 C.F.R. � 488.438(a)(1)(ii).

There is no question in this case as to the duration of Petitioner's deficiency. Petitioner has not argued that, if it was deficient, it corrected its deficiency at an earlier date than the date that CMS determined Petitioner to have attained compliance with participation requirements. That date is December 10, 2003. I note, however, that CMS does not have a basis to impose remedies against Petitioner on December 10, 2003, because CMS determined that Petitioner attained compliance with participation requirements on that date. Consequently, the period during which Petitioner was noncompliant and for which I may impose civil money penalties against Petitioner begins on November 17, 2003 and runs through December 9, 2003.

The remaining question, therefore, is what penalty amount within the non-immediate jeopardy range is reasonable to remedy Petitioner's deficiency during the November 17 - December 9, 2003 period? I conclude that $100 per day is reasonable based on my analysis of the evidence in light of the regulatory factors which govern penalty amounts.

These regulatory factors are set forth at 42 C.F.R. �� 488.438(f) and 488.404 (which is incorporated by reference into 42 C.F.R. � 488.438(f)(3)). They include the seriousness of a facility's deficiencies; the facility's compliance history; its financial condition; the relationship of one deficiency to another; and a facility's culpability for its deficiencies.

Neither CMS nor Petitioner offered arguments as to how these factors relate to the evidence. For that reason, I am left to analyze the penalty amount issue based solely on the record and the regulations. I conclude that there is no evidence in this case relating to Petitioner's past compliance with participation requirements. Nor is there any evidence about Petitioner's financial condition. The issue of interrelationship of deficiencies is absent here because Petitioner manifested only one deficiency during the relevant period.

What is left to consider therefore, is the seriousness of Petitioner's noncompliance and its culpability. As to seriousness, the scope and severity of Petitioner's noncompliance was at the lower end of the non-immediate jeopardy spectrum of scope and severity. The scope and severity assessment of "E" that the Tennessee State survey agency assigned after completion of IDR to Petitioner's failure to protect its residents' dignity means essentially, that the deficiency caused no harm to residents but had the potential for causing more than minimal harm, and was relatively widespread in Petitioner's facility. That certainly is an accurate description of what the evidence portrays. As to Petitioner's culpability, the evidence supports the conclusion that Petitioner's staff meant well and was not indifferent to the ongoing problems caused by Resident # 11's wandering and associated behaviors. This is not a case in which it can be said that Petitioner or its staff was indifferent to the problems caused by Resident # 11. Petitioner's fault lies in its ineffectiveness, not in a lack of concern for the welfare of its residents.

I find that civil money penalties of $100 per day are reasonable given my analysis of the seriousness of the deficiency and Petitioner's culpability. My decision as to remedy reflects both the relatively low level of the deficiency and Petitioner's well-meaning but ineffective attempts to deal with the problems caused by Resident # 11.

I note that CMS determined to reduce the civil money penalties it proposed to impose from $5,000 to $50 per day beginning on December 5, 2003, the day that it concluded that Petitioner had abated immediate jeopardy. CMS has offered no explanation for its determination to go to the lowest possible civil money penalty amount after December 4. In any event, I find $100 per day for the entire period of Petitioner's noncompliance to be reasonable.

Steven T. Kessel

Administrative Law Judge

1. The panel also retained other tags but reduced the scope and severity of those tags. Id. I discuss the scope and severity reductions and the effect of these reductions on this case below at Finding 2.

2. As I discuss above, at Finding 1, Tags 225, 248, and 353 had, in fact, been deleted from this case as a result of CMS's failure to overrule the findings made at IDR.

3. The allegations at Tag 224 do not cite to 42 C.F.R. � 483.13(b), but to 42 C.F.R. � 483.13(c)(1). This latter section actually addresses a facility's duty to implement written anti-abuse policies and not the issue of whether residents actually are protected against abuse. However, although the surveyors may have incorrectly cited to the regulation they made allegations that clearly fall under 42 C.F.R. � 483.13(b). I do not find that the incorrect citation in this case misled Petitioner.

4. By contrast, there is overwhelming evidence to show that other residents found Resident # 11 to be annoying and disruptive. I discuss that evidence in connection with my finding that Petitioner failed adequately to protect its residents' dignity. Finding 7.

5. As I discuss in detail at Finding 4, the record does not support a conclusion that Resident # 11 terrorized other residents.

6. The absence of any credible evidence that other residents were actually harmed or that there was a likelihood of serious injury or death resulting from Resident # 11's behavior makes clearly erroneous CMS's contention that Petitioner's violation of the dignity regulation was at the immediate jeopardy level of scope and severity. Moreover, as I find above, at Finding 2, the scope and severity of the dignity allegation was reduced at IDR to level "D", a non-immediate jeopardy level of noncompliance, and CMS did not overrule this decision.