SUBJECT:

Anchorage of Bensenville Home,

Petitioner,

Centers for Medicare & Medicaid Services

DECISION

For the reasons stated below, I conclude that Anchorage of Bensenville Home (Petitioner or Facility) was not in substantial compliance with Medicare conditions of participation governing nursing home facilities from January 10, 2002 through March 1, 2002. Accordingly, I sustain the Centers for Medicare and Medicaid Services' (CMS) imposition of a per day civil money penalty (CMP), but of only $60 per day rather than the $200 per day CMP that CMS imposed.

I. Background

A. The procedural background

Petitioner is a skilled nursing facility located in Bensenville, Illinois. The Illinois Department of Public Health (State Agency) conducted a standard survey ending on January 10, 2002, and as a result, determined that Petitioner was not in substantial compliance with Medicare and Medicaid participation requirements. On March 1, 2002, CMS notified Petitioner of its findings contained in the Statement of Deficiencies (SOD or 2567). CMS Exhibit (Ex.) 11. CMS alleged one deficiency at the "G" level of scope and severity (Tag F223) and three deficiencies at the "D" or "E" level of scope and severity (Tags F225, F237 and F332). As a result of informal dispute resolution with the State Agency, Tag F332 was deleted. CMS imposed a $200 per day CMP effective January 10, 2002. CMS Ex. 12. CMS conducted a revisit survey on March 1, 2002 and found Petitioner in compliance. Petitioner timely requested a hearing on March 28, 2002. Following my denial of Petitioner's motion for summary judgment, a hearing was held before me in Chicago, Illinois on October 28, 2004.

CMS submitted its exhibits, identified as CMS Exs. 1-34, and I admitted them into the record. Petitioner submitted its exhibits, identified as P. Exs.1-4, and I admitted them into the record.

The following persons testified for CMS: State agency surveyors Stephen Mott and Mary Cullington Durand. The following persons testified for Petitioner: Kathryn L. Wiggins, a current administrator and former director of nursing (DON) for Petitioner; Arleen Rodriguez Lopez, a former nurse aide for Petitioner; Alicetine Glover, a current rehabilitation aide for Petitioner; and Ada Bowen, a retired former DON and long-time employee of Petitioner.

Based on the testimony offered at the hearing, the documentary evidence, the arguments of the parties, and the applicable law and regulations, I find that from January 10, 2002 to March 1, 2002, Petitioner was not in substantial compliance with one Medicare participation requirement, Tag F327, which Petitioner left basically uncontested. I find the preponderance of the evidence is that Petitioner was in compliance with Tags F223 and F225. Accordingly, a CMP of $200 per day is unreasonable and I find CMS is authorized to impose a CMP of only $60 per day against Petitioner.

B. Applicable law and regulations

Petitioner is considered a long-term care facility under the Social Security Act (Act) and regulations promulgated by the Secretary of Health and Human Services (Secretary). The statutory and regulatory requirements for participation by a long-term care facility are found at sections 1819 and 1919 of the Act and at 42 C.F.R. Part 483.

Sections 1819 and 1919 of the Act invest the Secretary with authority to impose CMPs against a long-term care facility for failure to comply substantially with federal participation requirements.

Pursuant to the Act, the Secretary has delegated to CMS and the states the authority to impose remedies against a long-term care facility that is not complying substantially with federal participation requirements. The regulations at 42 C.F.R. Part 488 provide that facilities that participate in Medicare may be surveyed on behalf of CMS by state survey agencies in order to ascertain whether the facilities are complying with federal participation requirements. 42 C.F.R. �� 488.10 - 488.28. The regulations contain special survey conditions for long-term care facilities. 42 C.F.R. �� 488.300 - 488.335. Under Part 488, a state or CMS may impose a per instance or per day CMP against a long-term care facility when a state survey agency determines that the facility is not complying substantially with federal participation requirements. 42 C.F.R. �� 488.406, 488.408, and 488.430.

The regulations specify that a per day CMP that is imposed against a facility will fall into one of two broad ranges of penalties. 42 C.F.R. �� 488.408, 488.438. The upper range of CMPs, of from $3,050 per day to $10,000 per day, is reserved for deficiencies that constitute immediate jeopardy to a facility's residents, and in some circumstances, for repeated deficiencies. 42 C.F.R. �� 488.438(a)(1), (d)(2). The lower range of CMPs, of from $50 per day to $3,000 per day, is reserved for deficiencies that do not constitute immediate jeopardy, but either cause actual harm to residents, or cause no actual harm, but have the potential for causing more than minimal harm. 42 C.F.R. � 488.438(a)(2).

The regulations define the term "substantial compliance" to mean "a level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm." 42 C.F.R. � 488.301.

When a penalty is imposed and appealed, CMS must make a prima facie case that the facility has failed to comply substantially with federal participation requirements. To prevail, a long-term care facility must overcome CMS's showing by a preponderance of the evidence. Hillman Rehabilitation Center, DAB No. 1611 (1997); aff'd, Hillman Rehabilitation Center v. HHS, No. 98-3789 (GEB) (D.N.J. May 13, 1999). Under Hillman, CMS bears the burden of coming forward with evidence sufficient to establish a prima facie case that Petitioner failed to comply with participation requirements. Once CMS has established a prima facie case of noncompliance, Petitioner has the burden of proving, by a preponderance of the evidence, that it complied substantially with participation requirements. Hillman, at 3-8. ⁽¹⁾

The Act and regulations make a hearing before an Administrative Law Judge (ALJ) available to a long-term facility against whom CMS has determined to impose a CMP. Act, sections 1128A(c)(2); 42 C.F.R. �� 488.408(g), 498.3(b)(12) and (13). The hearing before an ALJ is a de novo proceeding. Anesthesiologists Affiliated, et al, DAB CR65 (1990), aff'd, 941 F2d. 678 (8^th Cir. 1991).

II. Issues

The issues in this case are: whether CMS had a factual basis to impose remedies against Petitioner for failing to comply substantially with Federal requirements and, if so, whether the amount of CMS's imposed CMP is reasonable.

III. Findings of fact and conclusions of law

I have examined closely all of the evidence of record to determine whether Petitioner was complying with participation requirements and to decide whether a CMP may be imposed against Petitioner. I conclude the preponderance of the evidence, as discussed below, supports the finding that Petitioner failed to comply with one condition of participation. This is a sufficient basis to affirm CMS's imposition of remedies against the Petitioner.

I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each of my ultimate Findings below as a separate heading. I discuss each Finding in detail, including the results of the survey, whether the results are supported by the evidence of record, and whether Petitioner has met its burden to overcome the findings the surveyors made.

A. Tag F223. Petitioner showed by a preponderance of the evidence that it was in compliance with the requirements of 42 C.F.R. � 483.13(b).

Each resident has the right to be free from verbal, sexual, physical and mental abuse, corporal punishment and involuntary seclusion. 42 C.F.R. �483.13(b). According to section 483.13(c)(1)(i) of the regulations, a facility must "not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion." CMS charges that Petitioner mentally abused one resident, referred to as R25 in this decision.

R25 was admitted as a resident at Anchorage in 1992 when she was 66 years old. CMS Ex. 8, at 5. R25 suffered from limited use of her legs as a result of polio. Id. At the time of the January 10 survey, R25 was 76 years old and was vice-president of the resident council at Petitioner's facility. Id; CMS Ex. 20, at 3. She was cognitively intact, was alert, structured her own time, was involved in the facility activities and she was "easily understood." CMS Ex. 8 at, 10, 12. She was described as a proud and private person. R25 was very involved in her own care. Tr. at 245. She preferred care from certain nurse aides and was reluctant to accept changes in her care. Id. Previously, if she was concerned about a change, she would get the aides to do the care the way she preferred and would suggest to aides that she would report them if they did not follow her directions. Tr. at 136.

As a result of her childhood polio, R25 had been confined to a wheelchair. She was dependent on the staff for transfers and toileting. Since being at the Facility, R25 had used her own preferred type of wheelchair, which was caned and had a tall wooden back and immovable arms. Tr. at 48. R25 also preferred to have her full-length locking leg braces applied when not lying down, though she did not stand or walk on her own even with the braces. It appeared that R25 had gained weight over the last few years at the facility, but she had refused to get weighed for confirmation. Tr. at 204, 216, 240.

R25 preferred a certain type of transfer from her bed to her wheelchair. Tr. at 46. She asked that her leg braces be put on so that her legs were in a straight position. Tr. at 106. Two to three aides would rock her forward with their arms under her arm and shoulder, lift her up and pivot her to the wheelchair. The aides would then tilt her wheelchair to get her into it. Tr. at 107.

Petitioner planned to purchase new lifts to assist with transfers. Tr. at 104. Prior to purchasing the lifts, the facility conducted an assessment of how all of the residents were transferred. Tr. at 105, 109. Petitioner determined that the transfer method preferred by R25 was unsafe for both the nurse aides and R25. The nurse aides would have to totally accept all the weight of R25 and the wheelchair could tip, causing injury to all involved in the transfer. Tr. at 107, 110. In fact, R25 had previously suffered a knee fracture during a transfer. Tr. at 48, 63. Petitioner concluded that one of the new lifts should be used to transfer R25. Tr. at 115.

Because R25's sister was involved in R25's care, DON Wiggins or someone on the facility staff, phoned R25's sister and told her the Facility was going to start using a lift to transfer R25. Tr. at 111. DON Wiggins also spoke to R25 and explained to her that the Facility would be purchasing additional lifts and would begin using the lift to transfer her. Tr. at 113-15. R25 expressed her reluctance to use the lift. Tr. at 115. R25 expressed that she did not like the feeling of being transferred by the lift. Id. The Facility had previously used a lift to transfer R25 when she had injured her knee during a transfer. Tr. at 115; CMS Ex. 5, at 1. Several staff members had reported back injuries as a result of transferring residents and difficulty with transferring R25. Tr. at 230. DON Wiggins met with R25 several times to advise R25 that, for the safety of R25 and the staff, the Facility would start transferring R25 with the lift. Tr. at 115, 119. R25 asked DON Wiggins what her resident rights were and DON Wiggins responded that R25 had the right to refuse to be transferred by the lift, but if no other way could be found to transfer R25 safely from her bed, R25 would be confined to the bed. Tr. at 119. During one of her meetings with R25, DON Wiggins told R25 that she would not require the new method of transfer during the time that R25 was confined to bed following cataract surgery. Further, DON Wiggins advised that even though she felt that R25 should be one of the first residents to use one of the new lifts for transfers, DON Wiggins would allow R25 to be the last. Tr. at 116. DON Wiggins also attempted to assure R25 that the aides who assisted R25 would all know how to use the lift for transfer. Tr. at 115, 116, 124, 172.

The nurse aides who cared for R25 asked DON Wiggins to participate in the change of R25's method of transfer because they were concerned that R25 would report them if they refused to use R25's old method of transfer. Tr. at 137. Therefore, sometime in November of 2001, DON Wiggins arrived at R25's room with five of the nurse aides who participated in caring for R25. She again told R25 that the Facility was going to start transferring her with the lift. She advised R25 that the Facility would purchase a personal lift sheet just for R25 if she was concerned about sitting on something used by other residents. Tr. at 120. She advised R25 that she and the aides would demonstrate the use of the lift so that R25 knew that the aides were competent in transferring with the lift and that R25 could get used to the feeling of the lift. R25 agreed to letting the five aides come into her room. Tr. at 207. R25 initially said she did not wish to participate in the demonstration and was teary-eyed about the proposal. Id. R25 eventually agreed to go forward with the demonstration. Tr. at 73, 126-230. During the demonstration, R25 remained anxious and teary-eyed. The demonstrators tried both ways of attaching the supports of the lift to determine if one method was more comfortable for R25 than the other. Tr. at 127. R25 did not tell DON Wiggins to stop the demonstration. Tr. at 125, 209, 232.

The parties do not contest that during the demonstration, R25 asked DON Wiggins if she had any rights to refuse to use the lift. DON Wiggins again responded that the lift must be used for transfer and the only other alternative for R25 would be to stay in bed, which would not be a good choice. Tr. at 119, 124, 176. Also, at the end of the demonstration, DON Wiggins told the five nurse aides that, if any method of transfer other than the lift was used with R25 in the future, the nurse aide would be disciplined. Tr. at 138, 185. The parties do disagree on the import of these statements.

Although the exact date is not determined, several days or weeks after the demonstration, a representative from the state's Department of Public Aid, Mr. Cichy, came to the Facility. As was the practice of the representative, Mr. Cichy picked several Medicaid residents to talk to about the care they were receiving. Tr. at 262. Unfortunately, Mr. Cichy stopped in to see R25. More unfortunate, he greeted her by saying, "I'm the man who pays your bills." R25 apparently assumed that DON Wiggins had asked Mr. Cichy to come and speak with her as part of the Facility's attempt to force her to use the lift. Tr. at 145. R25 complained to Mr. Cichy about the demonstration. Tr. at 189-90. Mr. Cichy brought up R25's complaint to DON Wiggins. Tr. at 143.

During the days immediately following the demonstration, R25 told various people at the Facility, including the Administrator, that she was upset about the lift demonstration. CMS Ex. 4, at 4; CMS Ex. 19, at 3. The Administrator asked Ada Bowen, an employee of Petitioner's corporate office, but also a former DON at the facility and friend of R25, to come to speak with R25 to determine what had occurred. Tr. at 244-45, 250. Ms. Bowen agreed and she went to visit R25. The Administrator contacted one of the facility's corporate attorneys who may have suggested that DON Wiggins apologize to R25. Tr. at 63-64. R25 also complained to several other people about the demonstration. CMS Ex. 5, at 4; CMS Ex. 7, at 7. She expressed her "embarrassment" or "humiliation" from the demonstration. R25 also relayed her view of the demonstration to her sister. Tr. at 192.

During Ms. Bowen's interview with R25, R25 primarily expressed concern about whether she had the right to refuse to use the lift. Ms. Bowen and R25 discussed the safety reasons for using the lift. Tr. at 250-51. Ms. Bowen thought that she and R25 had agreed that R25 needed to use the lift but that she did not have to like it. Id. R25 also brought up the demonstration and asked Ms. Bowen if she would not have handled it differently because R25 did not like it that DON Wiggins had brought five aides into R25's room. Ms. Bowen responded that she also would have brought several of R25's caretakers into the room to be present for the demonstration. Tr. at 252. R25 expressed that she had been embarrassed during the demonstration. Tr. at 253. Several days later, Ms. Bowen asked R25 how it was going with the lift. R25 replied that it was getting easier but that she still did not like using it. Tr. at 255.

After DON Wiggins learned that R25 was upset because she thought DON Wiggins had called Mr. Cichy to interview R25, DON Wiggins then went into R25's room to talk to her about the demonstration. She explained to R25 that she had nothing to do with Mr. Cichy's visit and was sorry if he had embarrassed her. She also expressed to R25 that she did not see a safe alternative to use of the lift for transferring R25. At the end of the conversation, DON Wiggins asked R25 if they were still friends and R25 answered yes. Tr. at 145 - 46.

About a month later, during the January 10 survey, R25 approached one of the surveyors and complained about the lift demonstration. CMS Ex. 2; Tr. at 19-20. R25 gave the surveyors her written recitation of what had occurred during the demonstration. CMS Ex. 2.

The note says the following:

On Nov 8 Cathy Wiggins came to my room to demonstrate how to get me to use EZ lift. I said I had used it all last fall due to fractured knee, but still hate the sensation. She brought with her Linda R, Pat, Alice, Arleen, Bernice & Blanche. She forced me to get on lift despite my repeated "no." Pulled my legs up so they hurt - I told her they hurt, but she ignored it, and then pried my fingers, one at a time, off the bar I was gripping. She threatened me with, "it's this or you stay in bed." If any aide helps you in another way, they will be terminated immediately. It was rough, and unprofessional, and humiliating in front of all those people. When I asked about resident's rights, she said I had none.

CMS Ex. 2.

R25's note also lists a chronology as follows:

Next day Mr. Ciccy (sic) came in morning.

* * *

Afternoon Jane (Jane Mueller, the Administrator) then Ada (Ms.Bowen).

Sunday: male aid

Tuesday Gin (R25's sister) saw Cathy - Rev Scott came to see me

* * *

Cathy came to talk.

2 days later came back - said she didn't mean to hurt me or offend. Left saying "Friends."

CMS Ex. 2.

Several surveyors interviewed R25. R25 said she had been humiliated and had lost sleep for several days after the demonstration. Tr. at 38-39. The State Agency surveyors concluded R25 was credible and she had been abused by DON Wiggins. Tr. at 23.

After my review of all the evidence, I conclude that R25's note and report to the surveyors is exaggerated in several respects. In her note, R25 alleges that during the demonstration DON Wiggins pried R25's fingers off a grab bar, one by one. Tr. at 29. DON Wiggins denies this allegation and the interviews of attending nurse aides support her denial. Tr. at 29, 67-68; CMS Ex. 17, at � 14; CMS Ex. 19, at � 13. CMS now says that, because CMS is alleging mental abuse rather than physical abuse, it is no longer relevant whether the finger prying actually occurred. Second, R25 asserted that someone pulled her legs so that they hurt. DON Wiggins denied having touched R25's legs and the attending nurse aides agree. DON Wiggins did say she asked one of the aides to hold R25's legs because they were heavy with the braces and needed additional support. Moreover, DON Wiggins testified that when she asked R25 about her comfort level and R25 said her legs were too close together, DON Wiggins directed the aides to change the configuration of the lift. Tr. at 122, 127-28. Again, CMS replies that this discrepancy is not relevant because CMS is not alleging physical abuse. Third, R25, in her note, states that DON Wiggins told the aides that if they helped R25 in any way other than the lift, the aide would be immediately terminated. Both DON Wiggins and the attending nurse aides reported DON Wiggins as saying the aides would be disciplined - not terminated.

As opposed to CMS, I find R25's exaggerations to be relevant because they reflect on her credibility and ability to relay accurately what occurred during the demonstration. I find that the State Agency surveyors relied too heavily on R25's own description of the occurrence without sufficient attention to the statements of the eye witnesses. Tr. at 28, 209-12, 218, 232, 235, 240-41. The surveyors also relied on the statements of R25's sister, but the sister's knowledge of the incident was also only as R25 relayed it. See CMS Ex. 21. The surveyors also relied on several alleged admissions DON Wiggins made; e.g., suggesting to R25's sister that she may have been too rough with R25. Tr. at 146-147. I find that DON Wiggins made these statements in the context of trying to reach common ground with R25's sister with respect to R25's need to use the lift.

Most importantly, I find Ms. Bowen to be a knowledgeable and credible witness. She is retired and had no incentive to travel over 300 miles to testify at the hearing to please Petitioner. She had known R25 for many years and understood R25's relationship with the Facility's staff. During the January 10 survey, at the instigation of the surveyors, Petitioner began an investigation into R25's allegations of abuse. Ms. Bowen assisted with that investigation. Tr. at 254. She and her partner interviewed the nurse aides who were present during the demonstration. She also interviewed R25 again about the incident. Tr. at 256-60. First Ms. Bowen expressed surprise to R25 because she did not think R25 had previously alleged abuse, but only that R25 was interested in her right to be transferred as she had been in the past. R25 then repeated that DON Wiggins had done something with her legs that hurt, had pried her fingers off of a bar, and that DON Wiggins had done all of the transferring with the lift. Tr. at 261. Again, Ms. Bowen expressed surprise that R25 had not mentioned this during their prior conversation. R25 then related her suspicion that DON Wiggins had called Mr. Cichy to "straighten me out because I didn't want to use the lift." Ms. Bowen asked what about Mr. Cichy's visit had made R25 so angry and R25 repeated his statement that "I'm the guy that pays your bill." Ms. Bowen reflected that R25, who had only recently become a Medicaid resident, ". . . is an extremely proud woman and I am sure that did not go over well . . . ." Tr. at 263.

As noted above, based on the testimony of DON Wiggins and the nurse aides who assisted in the demonstration, DON Wiggins did not touch R25 during the demonstration except to pat her hands for comfort. I find that, if R25 felt "humiliated," her humiliation resulted from her mistaken belief that Mr. Cichy had been called to see her because she was resisting use of the lift. I also find that one of R25's motives in alleging abuse to the State Agency surveyors was to compel the Facility to stop using the lift for her transfers. As related by Ms. Bowen, after the survey team left, one of R25's caregivers related to her that R25 was very surprised that she still had to use the lift for her morning transfer. Tr. at 266-67.

CMS contends that the incident of the lift demonstration manifests mental abuse. CMS states that Petitioner took no action to address R25's fear of being dropped or fear of using the lift except to warn R25 that change was coming. Further, according to CMS, Petitioner did not offer R25 any alternatives to going forward with the lift demonstration, such as one-on-one counseling, convening a care conference with R25 and her sister, or offering a more gradual transition, or having fewer staff persons in the room during the demonstration. CMS Br. at 19 -20. CMS also faults Petitioner for not involving its Social Services staff. CMS Reply Brief (R. Br.) at 3.

While I agree with CMS, in hindsight, that additional steps could have been taken to prepare R25 for use of the lift, the absence of the additional steps, however, does not turn DON Wiggin's actions into abuse. DON Wiggins was dealing with a cognitively intact resident with a history of insisting on her own methods of care even when they were less safe for her; e.g., R25's unusual wheelchair, her use of heavy leg braces, and an unorthodox transfer method. Certainly, DON Wiggins did the demonstration in a way to make clear to R25 that the lift would be used for her transfers in the future. She had already talked to R25 about the change. Tr. at 198. She had postponed use of the lift with R25 at least once. Before starting the demonstration, DON Wiggins asked R25 if there was another date certain when R25 would prefer the demonstration. Tr. at 125. R25 agreed to the demonstration at the urging of one of the nurse aides and did not further object during the demonstration and there is no evidence that R25 was shy or reticent about expressing her views about her treatment. Residents of nursing facilities certainly have the right to direct their own care but not to the extent of risking staff or resident safety. Moreover, had R25 fallen during transfer and been seriously injured in the fall, CMS likely would have objected to the Facility not using a safer transfer method. CMS's main witness in this case, Surveyor Mott, conceded that the lift was the safer transfer method. Tr. at 48.

"Abuse" is generally fairly obvious for what it is. Other DAB cases involving abuse are relatively clear. For example, in Vandalia Park, DAB CR1310 (2005), nurse aides inserted a catheter into a sleeping resident without a showing that the catheter was necessary. In Britthaven-Smithfield, DAB CR1259 (2004), nurse aides struggled with a resident to trim her nails and cut them too close; they called her names and threatened to slap her around. In Dawson Manor, DAB CR1224 (2004), a nurse aide left a 90 year old woman out in the cold due to behavior problems. While conceding that R25 was teary-eyed during the demonstration, the allegedly deficient conduct in this case (upsetting a resident in order to assure that she is transferred properly) simply does not look to me like abuse.

CMS points out that the State Operations Manual (SOM) provides that "mental abuse" includes humiliation, harassment, threats of punishment or deprivation. SOM, Appendix PP, at PP-47.2-49. Petitioner's own abuse policy defines mental abuse as humiliation, harassment, threats of punishment, or withholding of treatment or services. CMS Ex. 15, at 1-2. I find that R25 was not harassed. She had not been threatened with punishment. R25 was advised that she could do everything she had previously done, only that a lift would be used to put her in her wheelchair. DON Wiggins made no suggestion to R25 that any treatment or services would be denied her. CMS argues that because R25 used the word "humiliation" to describe how she felt, that she had been humiliated in fact. I find that the demonstration was done in the privacy of R25's room in the presence of caregivers to assure her the caregivers knew how to operate the lift. R25 was advised that she would not have to use the lift in public and that she would have a private sling for her own use. Moreover, Ms. Bowen testified that R25 often used words such as humiliation. Tr. at 273-75.

To protect beneficiaries in nursing facilities, the abuse regulations are a necessary part of the regulatory scheme. The regulations against abuse must be applied responsibly, however, if they are to retain any impact on nursing facility care. If CMS objects to a facility's lack of social services use, or abridgment of a resident's right to direct his or her own care, there are regulations that can be used to cite these deficiencies. For example, and while not suggesting it would be appropriate in this situation, 42 C.F.R. � 483.15(a) requires a facility to promote care for residents in a manner and in an environment that maintains or enhances each resident's dignity and respect in full recognition of his or her individuality. The rights of residents, as adult human beings, to direct their own care constitute an important part of the regulatory scheme. Per the regulation, nonetheless, residents must also be protected from falls and other accidents. 42 C.F.R. �483.25(h). A nursing home must balance these sometimes competing requirements.

I denied summary judgment for Petitioner because I thought CMS witnesses might convince me that DON Wiggins and Petitioner's staff participating in the demonstration had understated either DON Wiggins' "firmness" or "physical participation" in the demonstration. Instead, at the hearing, the testimony of Surveyor Mott, CMS's main witness, suggested to me that the surveyors either failed to do a thorough investigation or simply accepted R25's word out of context. Tr. at 42, 46, 66-76.

I find that DON Wiggins and, thus, Petitioner, did not mentally abuse R25 during the demonstration of the EZ lift in November 2001.

B. Tag F225. Petitioner showed by a preponderance of the evidence that it was in compliance with the requirements of 42 C.F.R. � 483.13(c)(2) and (3). ⁽²⁾

Sections 483.13(c)(2) and (3) of 42 C.F.R. states:

The facility must ensure that all alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source, and misappropriation of resident property are reported immediately to the administrator of the facility and to other officials in accordance with State law through established procedures (including the State survey and certification agency).

The facility must have evidence that all alleged violations (of abuse) are thoroughly investigated, and must prevent further abuse while the investigation is in progress.

CMS alleges in this case that Petitioner failed to investigate the allegations of abuse that resulted from the demonstration of R25's transfer using the EZ lift.

I find, as explained in Section III. A, above, that Petitioner did not abuse R25. Not-withstanding that finding, it does not necessarily follow that Petitioner was in substantial compliance with its requirement to investigate allegations of abuse. An appellate panel of the Departmental Appeals Board has pointed out that the salient question is not whether any abuse in fact occurred or whether Petitioner had reasonable cause to believe that abuse occurred, but whether there was an allegation that facility staff had abused a resident. Cedar View, DAB No. 1897, at 7 (2003). I find there was no allegation that abuse occurred until R25 reported to the surveyors that she felt she had been abused.

Without repeating the entire discussion above regarding Tag F223, I note that shortly after the lift demonstration, R25 complained directly to the Administrator that DON Wiggins had been "abrupt with her and forced her to use the mechanical lift contrary to her wishes." P. Ex. 1, at 6. In response to this, the Administrator asked Ada Bowen to talk to R25 about the lift incident. Tr. at 250. The Administrator told Ms. Bowen that R25 was upset about having to use the lift for transfers, not that she was abused. Id; Tr. at 269. Ms. Bowen testified that R25 told her the issue was whether or not she would have to use the lift or whether she could transfer as she had in the past. Id. Ms. Bowen and R25 discussed the need for safety for her and the staff. Tr. at 272. R25 further complained to Ms. Bowen that she did not appreciate that five people were in the room during the demonstration. Tr. at 252. Ms. Bowen discussed with R25 the need for staff to be in on the demonstration. R25 reported she was embarrassed by the lift demonstration and she requested that DON Wiggins apologize to her for not letting her make the choice of transfer method. Tr. at 253, 272; CMS Ex. 4. Ms. Bowen testified that, if R25 had told her that DON Wiggins hurt her legs and/or pried her fingers off of a bar, as R25 later told the surveyors and Ms. Bowen, Ms. Bowen would have considered R25 to have made an abuse allegation. Tr. at 269. Apparently, R25 reported to a certified nurses assistant (CNA) that DON Wiggins had embarrassed her. CMS Ex. 5, at 4. Ms. Bowen, who knew R25 well, testified, however, that R25 often expressed herself in terms of humiliation and wanting an apology. Tr. at 273-75.

I accept that R25 complained to Mr. Cichy, the Illinois Medicaid caseworker, that she thought her rights had been violated; i.e., her rights to transfers as she wished. Tr. at 143. However, there is no evidence that R25 told Mr. Cichy that she was abused or felt she was abused. Mr. Cichy reported to DON Wiggins his conversation with R25. Tr. at 142. So certainly DON Wiggins became aware very quickly that R25 was upset, and that R25 said she could not sleep for several nights because of the incident. In fact, the Administrator spoke with corporate counsel about R25's complaints. Tr. at 149-50. Nonetheless, I find that the Administrator could speak with corporate counsel and still reasonably believe that R25's being upset related to her unhappiness with using the lift for transfers and not that she was felt she was abused.

I find that DON Wiggins and other members of Petitioner's staff were aware that harassment, embarrassment and humiliation could constitute mental abuse and that nothing associated with the lift demonstration suggested to them that R25 had alleged she was mentally abused until the surveyors told Petitioner during the survey. Tr. at 147-48, 188, 218, 239; CMS Ex. 5. I find, therefore, that Petitioner had no obligation to investigate abuse allegations when Petitioner did not know an allegation had been made.

C. Tag F327. Petitioner failed to rebut CMS's prima facie case that Petitioner was not in substantial compliance with 42 C.F.R. � 483.25(j).

Pursuant to section 483.25(j) of 42 C.F.R. a facility must provide each resident with sufficient fluid intake to maintain proper hydration and health. CMS alleged that, with respect to one resident, R22, Petitioner failed to meet R22's assessed hydration needs, and failed to monitor R22's input and output of fluid according to his care plan. CMS Ex. 9, at 6.

R22 was a younger resident who was totally dependent on Petitioner's staff, including for nutrition and fluid which he received through a G-tube. CMS Ex. 9, at 6. Petitioner completed an "Annual Nutrition Assessment" on October 15, 2001 and a "Dietary Consult" on December 28, 2001. CMS Ex. 28, at 44. A physician ordered that R22 was to receive "Jevity Plus full strength at 40 cc/hour for 12 hours . . . flush G-tube with 250cc water every shift." The "Dietary Consult," however, indicated that R22 would need 2190 -2555cc's per day (using 30 - 35cc per kilogram of weight). According to CMS, R22's current tube feeding order provided only 1139cc of water per day, less than half of R22's assessed fluid needs.

Additionally, R22's care plan for his "indwelling catheter" directed Petitioner's staff to monitor R22's fluid input and output every shift. CMS Ex. 34. No one on Petitioner's staff completed R22's fluid input and output observation record from September 2001 until January 8, 2002, during the survey. DON Wiggins admitted during a survey conference that "someone dropped the ball" on monitoring R22's fluid input and output when R22 moved to a different wing of the facility. CMS Ex. 34.

With respect to this alleged deficiency, Petitioner's counsel stated at the hearing that "we are not bringing evidence and contesting it at this time, but we're not admitting to it in any manner. But we're not going to contest it, we directed our defense in terms of the abuse allegation . . . ." Tr. at 278. Petitioner submitted no documentary evidence or testimony to rebut CMS's prima facie case that Petitioner failed to substantially comply with 42 C.F.R. � 483.25(j). I conclude, therefore, that Petitioner was not in compliance with this federal requirement for nursing facilities.

D. A per day CMP of $200 per day, as assessed by CMS, is not reasonable in this case.

CMS may impose a CMP "for the number of days a facility is not in substantial compliance with one or more participation requirements. . . ." 42 C.F.R. � 488.430(a). When an ALJ finds that the basis for imposing a CMP exists, the ALJ may not: (1) set a penalty of zero or reduce the penalty to zero; (2) review the exercise of discretion by CMS to impose a CMP and (3) consider any factors in reviewing the amount of the penalty other than those specified in section 488.438(f). I have found that a basis exists for CMS to impose a CMP because I have found that Petitioner was not in compliance with 42 C.F.R. � 483.25(j). I must, therefore, review de novo whether the amount of the CMP is reasonable by considering the four factors specified in 42 C.F.R.� 488.438(f). These four factors are: (1) the facility's history of noncompliance, including repeated deficiencies (2) the facility's financial condition; (3) the scope and severity of the deficiencies, the relationship of one deficiency to other deficiencies, a history of noncompliance with reference to the deficiency at issue (factors specified in 42 C.F.R. � 488.404); and (4) the facility's degree of culpability.

Petitioner submitted no evidence on the reasonableness of the CMP. Petitioner did argue that no CMP should be assessed should I find no basis for CMS's abuse allegations. P. Br. at 27-28. Indeed, CMS's internal memo regarding the CMP indicates the CMP was being imposed because of the abuse allegation at Tag F223. CMS Ex. 25. Petitioner makes a legal argument and refers to section 7400 F.2 of the SOM Manual and submits that if the facility was not deficient under Tag F223 (the abuse allegation) which was cited at a "G" level of scope and severity and would call for a Category 2 remedy, no CMP should be imposed because the remaining alleged deficiencies at a "D" level scope and severity would warrant only a Category 1 remedy which would not include a CMP. Id. CMS responded that Petitioner's argument does not accord with the regulations at 42 C.F.R. � 488.430(a). CMS R. Br. at 12-13. I agree with CMS. Actually, the regulations at 42 C.F.R. � 488.408(d)(3) provide that CMS may apply one or more of the remedies in Category 2 to any deficiency except when the facility is in substantial compliance or when the deficiency constitutes immediate jeopardy. (emphasis added). Any deficiency that poses a potential for more than minimal harm constitutes substantial non-compliance. Petitioner provided no evidence that no potential for minimal harm existed due to noncompliance with Tag F327. The regulations at 42 C.F.R. � 488.430 (a) provide that CMS may impose a CMP for either the number of days a facility is not in substantial compliance with one or more participation requirements or for each instance of substantial noncompliance. I read these regulations as allowing CMS to impose a CMP for even one deficiency at a "D" level. Because CMS has shown Petitioner was noncompliant and there is, therefore, a basis for the CMP, I must consider whether the CMP imposed by CMS is reasonable based on the directions in the regulation, recognizing at the outset that I cannot reduce the penalty to zero or review CMS's exercise of discretion in imposing a CMP. 42 C.F.R. �� 488.438(e)(1) and (2).

The evidence of Petitioner's financial condition that CMS received from the State Agency indicates that Petitioner was able to pay the $200 per day CMP that had been assessed. CMS Ex. 23, at 1. Petitioner had a history of non-compliance on the last six consecutive surveys prior to the survey at issue herein. CMS Ex. 22, at 1; CMS Ex. 25, at 1. These two factors suggest that the CMP should not be the lowest amount allowed, i.e., $50 per day.

Nonetheless, Petitioner proved by a preponderance of the evidence that it was in compliance with the anti-abuse regulations, the major allegations of the survey, with the remaining one proved deficiency at only the "D" level - meaning a relatively low scope and severity. In setting the CMP, CMS also considered Petitioner's culpability. CMS argues that Petitioner was culpable because DON Wiggins had abused a resident and she needed to set an example to her staff how to treat residents. CMS further argues that DON Wiggins' failure to recognize and investigate R25's abuse allegations showed her disregard for R25's care, comfort and safety. CMS Br. at 24. I have found the abuse allegations to be groundless and that Petitioner had no notice that it needed to conduct an abuse investigation or report an allegation of abuse. I find that DON Wiggins was concerned about R22's care, comfort and safety and Petitioner's culpability was much lower than assessed by CMS. These factors lead to my conclusion that the originally assessed CMP of $200 per day is not reasonable, but that $60 per day is reasonable and in line with the scope and severity of the proved deficiency.

The CMP that CMS imposed became effective on January 10, 2002, and was discontinued effective February 28, 2002. Petitioner submitted no evidence that the duration of the CMP was not reasonable. With respect to the failure to provide appropriate hydration for R22, the State Agency surveyors determined that the facility was in substantial compliance with this requirement based on a review of clinical records during the revisit survey on March 1, 2002. Tr. at 84. CMS could not determine compliance with this requirement except by reviewing clinical records during the revisit survey. Id. I find, thus, that the duration of the CMP from January 10, 2002 through March 1, 2002 is reasonable.

IV. Conclusion

Due to Petitioner's substantial noncompliance with one requirement of Medicare and Medicaid participation, I conclude that CMS is authorized to impose a per day CMP of $60 per day for the period of January 10, 2002 through March 1, 2002.

Anne E. Blair

Administrative Law Judge

1. The burden of persuasion set forth in Hillman applies only where the evidence proffered by both sides is "in equipoise." In such cases, the burden of persuasion would be on the Petitioner.

2. CMS, in the SOD and its post-hearing brief, refers to 42 C.F.R. � 483.13(c)(1)(ii) as the regulation which Petitioner allegedly violated. CMS Ex. 9, at 3; CMS Br., at 20. Because CMS fully quoted the applicable regulation and the allegedly offending conduct in the SOD, I find that Petitioner was not prejudiced by the error. Cedar View Good Samaritan, DAB No. 1897 (2003).