SUBJECT:

Wellington Nursing & Rehab Center,

Petitioner,

Centers for Medicare & Medicaid Services.

DECISION

Petitioner, Wellington Nursing & Rehab Center (Petitioner or facility), is a long term care facility certified to participate in the Medicare and Medicaid programs as a provider of services. Petitioner challenges the Centers for Medicare & Medicaid Services' (CMS's) determination that, from April 11-June 2, 2004, it was not in substantial compliance with program participation requirements, and that, from April 11-21, 2004, its deficiencies posed immediate jeopardy to resident health and safety. ⁽¹⁾ The parties have agreed that this matter may be decided on the written record, without an in-person hearing. For the reasons set forth below, I find that the facility was not in substantial compliance with program participation requirements during the period in question, and that, from April 11-21, 2004, its deficiencies posed immediate jeopardy to resident health and safety. I therefore sustain the $5,000 per day civil money penalty (CMP) for the period of immediate jeopardy. For the period of noncompliance that was not immediate jeopardy, the penalty imposed ($50 per day) is the mandatory minimum per day CMP so must also be sustained.

I. Background

Following a complaint investigation/survey conducted April 21 and 22, 2004, surveyors from the North Carolina Department of Health and Human Services (State Agency) concluded that the facility was not in substantial compliance with federal requirements for nursing homes participating in the Medicare and Medicaid programs. Specifically, it found that the facility did not meet federal requirements under:

�42 C.F.R. � 483.13(b) (Tag F-223 - Abuse) at a "J" level of scope and severity (isolated instance of immediate jeopardy to resident health and safety);

�42 C.F.R. � 483.13(c)(1)(i), (2), (3) and (4) (Tags F-226 and F-225 - Staff Treatment of Residents) at a "J" level of scope and severity; ⁽²⁾

�42 C.F.R. � 483.20(b)(2)(iii) and � 483.20(c) (Tags F-276 and F-275 - Resident Assessment) at a "D" level of scope and severity (isolated deficiency that caused no actual harm with the potential for more than minimal harm);

�42 C.F.R. � 483.75(e)(8) (Tag F-497 - Administration) at an "E" level of scope and severity (pattern of noncompliance that caused no actual harm with the potential for more than minimal harm).

CMS Ex. 25; P. Ex. 28.

CMS agreed with the State Agency, and has imposed a CMP of $5,000 per day for 11 days of immediate jeopardy, April 11-21, 2004 ($55,000), plus $50 per day from April 22 -June 2, 2004, when the facility was still not in substantial compliance, but its deficiencies no longer posed immediate jeopardy (42 days x $50 = $2,100). According to CMS, the facility returned to substantial compliance as of June 3, 2004. CMS Closing Brief (Cl. Br.) at 2, 12; CMS Opening Brief (Op. Br.) at 1. ⁽³⁾ On the other hand, CMS puts the total CMP at $57,200, which is $100 more than the total of $55,000 plus $2,100 ($57,100).

I might have attributed this to a simple arithmetic error, except that, in its opening brief, Petitioner asserts that the $50 per day CMP continued through June 2, 2004, and then increased to $100 per day for one day, with CMS finding substantial compliance as of June 4, 2004. Petitioner submits an exhibit that seem to confirm this assertion and is consistent with the $57,200 total CMP referred to in Petitioner's opening brief and in CMS's briefs. Petitioner's Opening Brief (P. Op. Br.) at 2; Petitioner's Exhibit (P. Ex.) 31. Petitioner's closing brief (P. Cl. Br.) does not mention the amount of the CMP. CMS also submits a survey report form and plan of correction from the June 3, 2004 survey, which suggests that the facility was not in compliance at that time, but would complete its corrections on June 4, 2004. CMS Ex. 26.

Nevertheless, in both its opening and final briefs, CMS asserts that the facility achieved substantial compliance as of June 3, 2004. CMS Op. Br. at 1; CMS Cl. Br. at 2, 12. So, notwithstanding unexplained evidence to the contrary, I accept CMS's representations, and assume that the facility achieved substantial compliance on June 3, 2004.

Petitioner timely requested a hearing, and the case was assigned to me. After filing their initial (opening) briefs (CMS Op. Br. and P. Op. Br.) and submissions, the parties have agreed that this case may be decided based on their written submissions, without an in-person hearing. See Waiver of an In-Person Hearing and Joint Proposed Briefing Schedule (August 30, 2005); 42 C.F.R. � 498.66 (waiver of right to appear and present evidence). The parties filed closing briefs (CMS Cl. Br and P. Cl. Br.). CMS has filed 26 exhibits (CMS Exs. 1-26), which, in the absence of objection, I admit as CMS Exs. 1-26. CMS has also submitted, attached to its opening brief, the declarations of three witnesses.

Contrary to my pre-hearing order, these were not marked as exhibits. However, since Petitioner has not objected, I admit these documents as CMS Exs. 27-29. ⁽⁴⁾ Petitioner has filed 31 exhibits (P. Exs. 1-31). In the absence of any objection, I admit P. Exs. 1-31.

II. Issues

The case presents the following questions: ⁽⁵⁾

1. Whether, from April 11-June 2, 2004, the facility was in substantial compliance with requirements for facilities participating in the Medicare and Medicaid programs, specifically 42 C.F.R. �� 483.13, 483.20, and 483.75.

2. If the facility was not in substantial compliance from April 11-21, 2004, did its conditions pose immediate jeopardy to resident health and safety?

3. If, from April 11-21, 2004, the facility had deficiencies that posed immediate jeopardy to resident health and safety, is the amount of the CMP, $5,000 per day, reasonable? (If I find substantial noncompliance from April 22-June 2, 2004, I must sustain the $50 per day CMP, which is the statutory minimum per day CMP for deficiencies that do not pose immediate jeopardy).

III. Statutory and Regulatory Background

The Social Security Act (Act) sets forth requirements for nursing facility participation in the Medicare and Medicaid programs, and authorizes the Secretary of Health and Human Services to promulgate regulations implementing the statutory provisions. Act, sections 1819 and 1919. The Secretary's regulations governing nursing facility participation in the Medicare program are found at 42 C.F.R. Part 483.

To participate in the Medicare and Medicaid programs, facilities periodically undergo surveys to determine whether they comply with applicable statutory and regulatory requirements for Medicare (SNFs) and/or Medicaid (NFs). They must maintain substantial compliance with program requirements and, to be in substantial compliance, a facility's deficiencies may pose no greater risk to resident health and safety than "the potential for causing minimal harm." 42 C.F.R. � 488.301.

Each facility 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). The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents. It must not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion. 42 C.F.R. � 483.13(c)(1)(i). It must ensure that all alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source, are reported immediately to the facility administrator and to other officials in accordance with state law through established procedures. 42 C.F.R. � 483.13(c)(2). The facility must have evidence that all alleged violations are thoroughly investigated, and must prevent potential abuse while the investigation is in progress. 42 C.F.R. � 483.13(c)(3). The results of all investigations must be reported to the administrator or his designated representative and to other officials in accordance with state law within five working days of the incident. If the alleged violation is verified, appropriate corrective action must be taken. 42 C.F.R. � 483.13(c)(4).

Abuse means the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish. 42 C.F.R. � 488.301.

The facility must conduct an initial and periodic (not less often than every 12 months) resident assessment of functional capacity that is comprehensive, accurate, standardized, and reproducible. 42 C.F.R. � 483.20(b)(2)(iii). Assessments of new residents should be conducted within 14 calendar days after admission (with limited exceptions). 42 C.F.R. � 483.20(b)(2)(i). Not less frequently than once every three months, the facility must assess a resident using the quarterly review instrument specified by the state and approved by CMS. 42 C.F.R. � 483.20(c).

The facility must complete a performance review of every nurse aide at least once every 12 months, and must provide regular in-service education based on the outcome of these reviews. The in-service training must be sufficient to ensure the continuing competence of the nurse aides, but must be no less than 12 hours per year. It must address areas of weakness, as determined in the nurse aides' performance reviews, and may address residents' special needs. 42 C.F.R. � 483.75(e)(8).

Immediate jeopardy exists if the facility's noncompliance has caused or is likely to cause "serious injury, harm, impairment, or death to a resident." 42 C.F.R. � 488.301. CMS's determination as to the level of a facility's noncompliance - which includes its immediate jeopardy finding - must be upheld unless it is "clearly erroneous." 42 C.F.R. � 498.60(c).

If a facility is not in substantial compliance with program requirements, CMS has the authority to impose one or more of the enforcement remedies listed in 42 C.F.R. � 488.406, which include imposing a CMP. See Act, section 1819(h). CMS may impose a CMP for the number of days that the facility is not in substantial compliance with one or more program requirements or for each instance that a facility is not in substantial compliance. 42 C.F.R. � 488.430(a). In situations where the deficiencies do not constitute immediate jeopardy, but have caused actual harm or have the potential for more than minimal harm, CMS may impose a CMP in the lower range of $50 to $3,000 per day. Penalties in the range of $3,050 to $10,000 per day are imposed for deficiencies constituting immediate jeopardy. 42 C.F.R. � 488.438.

IV. Discussion

The most serious deficiencies alleged here stem from the facility staff's treatment of one resident, identified as Resident 1 (R1). There seems little dispute that, on the evening of April 11, 2004, an agitated R1 aggressively resisted staff efforts to provide care, so staff held her down by her wrists and forearms, causing significant bruising and two skin tears. I must determine whether staff's actions constituted abuse, and whether those actions, along with the facility's subsequent response, created immediate jeopardy to resident health and safety.

A. The facility was not in substantial compliance with 42 C.F.R. � 483.13(b) because the actions of its staff constituted abuse.

R1 was initially admitted to the facility on March 22, 2001. She had a long list of diagnoses, including organic brain syndrome, anxiety, transient cerebral ischemia, and rheumatoid arthritis. She also had a history of urinary tract infections. P. Ex. 22, at 2. Because of her significant dementia, she was adjudged incompetent in June 2003, and the court appointed a representative from Aging Family Services to act as her guardian. P. Ex. 29. At the time of the incident in question, R1 was 95 years old. CMS Ex. 9.

CMS claims that R1 had not been assessed as having any behavior problems, and Petitioner challenges that contention, arguing that R1 "had a history of engaging in aggressive, angry behaviors, physically striking out at others and, in paranoid fashion, accusing others (including family members) of stealing her possessions." P. Cl. Br. at 3. ⁽⁶⁾ CMS is correct that the resident's care plan did not identify aggressive behavior as a problem. The sole behavior problem noted was that she expressed anger with family members and did not regularly interact with other residents. In an entry dated March 25, 2002, the facility sought to address these problems, and subsequent entries, dated July, October, and December 2003, indicate that behavior goals were met, and R1 was doing well. P. Ex. 22, at 29. The care plan does not mention any combative behavior until April 22, 2004, eleven days after the incident in question. P. Ex. 22, at 30. On the other hand, Petitioner is also correct that, prior to April 11, R1 had been exhibiting significant aggressive behavior. See, e.g., P. Ex. 22, at 4-11. Guardianship documents dated April 2003 indicate that R1 "becomes confused, agitated, and combative." P. Ex. 29, at 2, 3. Petitioner does not seem to recognize that R1's care plan should have identified these aggressive behaviors and should have provided staff with strategies for addressing that behavior. See P. Cl. Br. at 5. ⁽⁷⁾ And it seems that her behavior further deteriorated in the months immediately preceding the incident.

Petitioner attributes this deterioration, in part, to R1's urinary tract infections (UTIs). Nursing notes reflect that she suffered from UTIs throughout the beginning of 2004, was mildly delusional, and occasionally incontinent of urine. P. Ex. 22. ⁽⁸⁾ According to Registered Nurse (RN) Margaret Leonard, a facility employee, behavioral changes may accompany a UTI in the elderly, and, early in March, staff noticed that R1 displayed increased anxiety, delusional thinking, and threatening behavior. P. Ex. 27, at 2 (Leonard Decl. � 3).

On April 9, 2004, R1's physician ordered insertion of a Foley catheter. P. Ex. 22, at 10.

Besides R1, the principal actor in the April 11 incident was a certified nurse assistant (CNA) named Rosa Toney. The record contains two written statements from CNA Toney describing the incident: 1) her written declaration submitted in lieu of testimony (P. Ex. 2), and 2) a handwritten statement prepared immediately after the incident (P. Ex. 6).

In her declaration, CNA Toney states that she noticed that R1's Foley catheter was improperly positioned and that R1 had soiled herself. With the assistance of CNA Taronta Mack, she tried to reposition the catheter by standing the resident up and pulling down her pants, but R1 protested, sat down on her bed, and "started swinging her arms" at the CNAs. She grabbed CNA Toney by the shirt collar, "threw her legs around and kicked up at us, and on several occasions, she even tried to bite us." CNA Toney then grabbed R1's wrists, and CNA Mack called in licensed practical nurse (LPN) Corrine Rallis, who helped remove R1's hand from CNA Toney's shirt collar. "In the interest of her safety, we decided to attempt quickly to reposition her catheter and to clean her and then leave her to calm down." While they were cleaning her vaginal area, R1 screamed that they were trying to rape her; she struck CNA Toney in the head, and CNA Toney "reacted by reaching for her hands and wrists in order to prevent her from hitting again." R1 spit in LPN Rallis' face when the LPN tried to talk to her. She kicked LPN Rallis in the chest while the LPN was examining her catheter. P. Ex. 2, at 2-4 (Toney Decl. �� 3-8)

In her handwritten statement, prepared the night of the incident, CNA Toney said that she entered the room and told R1 that she was there to get her ready for bed. R1 then "rose up, fixing her teeth in her mouth," and complained about the Foley catheter. CNA Toney noticed that the catheter was positioned improperly. She called in another CNA to see the way the catheter was hanging. They stood R1 up and pulled down her pants. R1 asked what they were doing, then sat down on her bed, swinging her arms. In CNA Toney's words:

I tried to hold her hands, but I couldn't due to the condition of her hands she (sic) grap (sic) me on the collar, so I grap (sic) her wrist while the other CNA grap (sic) her by the legs to put her in the bed to get the pants off. Meanwhile I have been scratch (sic) several times. She also bend over to bite me, but the teeth was still [indecipherable] in her mouth. I started laughing cause she tried to bite me but the teeth would not keep still in her mouth. The pants was (sic) off at this time. [R1] begin to throw her legs around, kicking at us. I told the CNA to get the nurse. While I was still holding [R1] by her wrist because she was still kicking and swinging her arms around. The nurse came and asked what is going on. I told the nurse . . . . Of course the nurse said you know that we have to leave the room for 15 minutes and then come back. I said yes but also we have to make sure that the resident is clean. [R1] has BM on her clothes. I asked do you want me to leave her like this wait (sic) and come back . . . her daughter could come in and she still have BM on her and she still refuse or we can all clean [R1] now while we are here and leave for 15 minutes but knowing that we have cleaned her up. The other CNA had gotten several wash cloths [and] I took a hand off [R1's] wrist and was trying to clean [R1's] vagina area because she had it all over. She told me that I was trying to rape her. I said no [R1] I am only cleaning you because you have stool here. She said I never had stool in my clothes and hit me on the side of my head so I reach for the wrist again and hold on the wrist until the other CNA finish what I had started. The nurse was trying to talk to [R1] but she would not listen. She spit at the nurse. The nurse told her that wasn't nice. I told her (the nurse) about the Foley, she looked at the Foley and got a kick in the chest several times. [R1] was throwing her legs like she was riding a bicycle. The nurse went out of the room and came back with some steri strips to put on her wrist. We all . . . left the room the same time.

(Emphasis added) P. Ex. 6.

In her declaration, CNA Mack does not mention that she and CNA Toney stood R1 up and pulled down her pants, but says that they "got [R1] to lie down in her bed with her head elevated," that CNA Toney "calmly" explained that they were going to reposition her Foley catheter and clean her for her safety, that she "appeared to be fine with this," but became very agitated when they started to reposition the catheter. According to CNA Mack, R1 then started pulling on the tubing of her catheter. CNA Toney explained that it was dangerous, and, when she tried to remove R1's hand from the tubing, R1 "started to bite, kick, and scratch at Ms. Toney, and she even grabbed Ms. Toney's clothing." CNA Mack called for help, and LPN Rallis "immediately tried to help Ms. Toney get away from [R1's] grasp, while I was trying to keep the Resident on her bed." R1 "was very combative and agitated, and started to swing, kick, and bite at all three of us." LPN Rallis left and returned with steri strips to treat the skin tears on R1's wrist, and the parties thereafter left the room. P. Ex. 3, at 2-3 (Mack Decl. �� 3-6).

In an undated statement, presumably handwritten shortly after the incident occurred, CNA Mack did not claim that CNA Toney "calmly" explained anything to R1, nor that R1 "appeared to be fine." Instead she wrote simply that CNA Toney went to fix R1's Foley and found that R1 had soiled herself. "She was laid down on a bed with the head elevated and everything in place on the bed." But when R1 started pulling on the Foley, CNA Toney told her not to and "removed [R1's] hand from it," R1 began to bite, kick, and pull on CNA Toney's clothing. "Coreen tried to pull Rosa [Toney] off and I was just trying to keep her on the bed." P. Ex. 7.

LPN Rallis apparently was not aware of what transpired before she entered the room. In a nursing note entered at 6:35 p.m. on April 11, 2004, she wrote that she was called into R1's room because R1 was in a combative state during care for bowel incontinence. "Resident striking staff with arms and kicking this nurse and CNAs." She reports that R1 suffered a skin tear (10 cm) on the top of her right hand, and on her forearm (10 cm), which she treated with steri strips. She notified R1's daughter. She also encouraged staff to leave the room for 10 to 15 minutes and return when the resident's agitation decreased. P. Ex. 22, at 11. The following day, nursing notes record "multiple purple bruises to both hands and forearms." P. Ex. 22, at 11; accord P. Ex. 8 (LPN Rallis' handwritten statement, dated April 25, 2004).

I find it significant that R1 suffered bruises to her hands as well as her forearms. CNA Toney admitted in her first statement that she "tried to hold [R1's] hands but couldn't due to the condition of her hands." P. Ex. 6. In her declaration, she suggested that she had not grabbed R1's hands because R1 had arthritis "and thus grabbing her hands would have caused serious pain." P. Ex. 2, at 3 (Toney Decl. � 5). She admitted, however, that after R1 hit her, she "reacted by reaching for [R1's] hands and wrists." P. Ex. 2, at 4 (Toney Decl. � 7). As evidenced by the bruising, CNA Toney apparently grabbed R1's hands, as well as her wrists, which, she acknowledges, would have caused R1 serious pain.

In her declaration, LPN Rallis says that when she entered the room, R1 was holding CNA Toney by her shirt collar and was "assaulting her by striking and scratching." She said that CNA Toney "had her hands up to her face and was in a defensive posture." The CNAs attempted to clean R1's vaginal area; R1 "responded by yelling out that they were raping her." She swung her arms and legs and "hit the CNAs on several occasions." She spit at LPN Rallis. As LPN Rallis was examining the catheter, R1 kicked her in the chest, and continued to move her legs "as if she was (sic) riding a bicycle." LPN Rallis noticed two skin tears on R1's wrist, and applied steri strips. P. Ex. 4, at 2-3 (Rallis Decl. �� 3-6).

I discuss below the facility's wholly inadequate investigation of this incident. The staff involved cannot be considered objective, dispassionate witnesses; it is in their interests to demonstrate that they acted appropriately. Unfortunately, it seems that no investigator closely questioned any of them. Still, CNA Toney's April 11 handwritten statement was drafted closest in time to the actual incident by the person most closely involved. Notwithstanding its mildly self-serving tone, it is not significantly contradicted by any other evidence in the record, including the other witness accounts, and is probably the most complete, detailed, and reliable statement of what occurred. And it describes an incident of abuse.

Throughout its argument, Petitioner assumes that malice is a necessary component of abuse. Although abuse involves "willful" conduct (42 C.F.R. � 488.301), this does not mean that the actor intended to inflict harm; it means that his/her action was "undertaken deliberately." If I find that staff "intentionally restrained" the resident, or did so in an unreasonable manner, and she suffered physical harm or mental anguish, then I must conclude that R1 was not free from physical and mental abuse, and therefore the facility was not in substantial compliance with 42 C.F.R. � 483.13(b). Vandalia Park, DAB No. 1939, at 12 (2004).

Petitioner concedes that its policies mandate that staff "walk away" from an aggressive resident, and return some minutes later, allowing the situation to de-escalate, and the resident to calm down. ⁽⁹⁾ But, according to Petitioner, staff must first make sure that the resident is safe, and staff did not immediately walk away here because they first needed to ensure her safety. P. Cl. Br. at 6-7. In support of this proposition, Petitioner offers opinions from its employees and internal investigative documents. Each concludes that staff appropriately restrained R1, but I see no evidence that those opinions and conclusions are based on a full understanding of the incident. The Social Service Progress notes dated April 19, 2004, for example, state that R1 became extremely combative while nursing staff were attempting to provide incontinent care. The social worker states, inaccurately, that "[s]taff allowed resident time to calm down, but when they reapproached her, she continued to be combative." P. Ex. 26, at 1. Nowhere in the statements of those involved is there any suggestion that staff allowed R1 any time to calm down. In her nurse's note, LPN Rallis writes that she encouraged staff to leave the room for 10 to 15 minutes and return when the resident's agitation decreased, but she does not say that staff did so. P. Ex. 22, at 11. CNA Toney confirms that Nurse Rallis said "we have to leave the room for 15 minutes," but when CNA Toney determined not to, LPN Rallis apparently did not insist. P. Ex. 6.

RN Leonard agrees that the staff's actions, of which she had no first-hand knowledge, constituted restraint, but characterizes those actions as "a very short period intervention scaled appropriately to the level of restraint staff needed to accomplish their tasks while keeping the Resident safe from herself and keeping themselves safe from her combative behaviors." P. Ex. 27, at 3 (Leonard Decl. � 7). Dr. Hedrick, the facility's medical director and R1's physician - who also lacks first-hand knowledge of the events - opines that the CNAs acted appropriately. However, his May 10, 2004 report of the incident reflects an incomplete understanding of what occurred: he wrote that R1 had a BM in her bed, and a Foley catheter in place. "When the CNA came to clean her, the patient refused to allow her to. The CNA then left and came back with some one to hold her. She held the patient's arms, while the other CNA cleaned her bottom." Based on this, he found "no evidence whatsoever of any abuse." P. Ex. 12, at 4; accord P. Ex. 5, at 2, 4 (Hedrick Decl. �� 4, 6).

But staff's actions, particularly those of CNA Toney, seemed designed to escalate confrontation, and the opinions posited by Petitioner do not consider those provocations. They do not consider that the two CNAs stood the resident up and pulled off her pants. When she protested, they simply applied force to hold her down, to the point of causing her injury, and they did so even before R1 started pulling on her catheter and before they realized that she had soiled herself. Incredibly, CNA Toney admits to "laughing" at R1, as R1's behaviors escalated, which is hardly an action designed to calm an agitated resident. They did not allow R1 "time to calm down"; rather they engaged in something closely resembling a brawl with a demented 95-year old woman who thought she was being sexually assaulted. Their actions kept nobody safe.

Moreover, while I recognize the importance of cleaning R1 and readjusting her catheter, the evidence does not establish such an emergency that staff could not have waited a few minutes to give R1 an opportunity to calm down. Of the individuals in the room at the time, only CNA Toney declares that immediate action was necessary. The professional in the room, LPN Rallis, did not make that claim. In fact, when she came upon the situation, her first thought was that staff should leave (P. Ex. 6), and, in her nurse's note, she points out that she encouraged them to do so. P. Ex. 22, at 11. Further, the facility ultimately seems to have recognized the over-arching importance of de-escalating this kind of situation, because in subsequent inservice training, staff were instructed to stop the care and leave for 10 to 15 minutes. CMS Ex. 10.

I recognize that, given her frail condition, R1 was likely susceptible to bruising. P. Ex. 5, at 3 (Hedrick Decl. � 5). ⁽¹⁰⁾ Of course, staff should then have been aware of her fragility, and treated her with special care. In any event, she suffered "multiple" bruises to both hands and forearms that were evident weeks later. She also suffered skin tears. Also deeply troublesome is that, notwithstanding her frail condition and the severity of the bruising, R1's bruises were not medically evaluated until long after the incident. ⁽¹¹⁾ Dr. Hedrick finally examined her at the time of the survey. P. Ex. 5, at 2 (Hedrick Decl. � 4). A nurse practitioner wrote a report of service two days after the incident, but that document includes no mention of bruising. P. Ex. 25, at 1. Two weeks after the incident, R1's daughter took her to the emergency room for an evaluation. P. Ex. 9. ⁽¹²⁾

The undisputed evidence thus establishes that CNA Toney intentionally restrained R1, and that she did so in an unreasonable manner, resulting in significant injury. The facility was therefore not in compliance with 42 C.F.R. � 483.13(b).

B. The facility was not in substantial compliance with 42 C.F.R. � 483.13(c) because it did not adequately report or investigate potential abuse.

Compounding its deficiencies, the facility then failed to report or adequately investigate the incident. The facility concedes that it conducted no "formal abuse investigation," but argues that its inquiry was sufficient to "uncover any malicious activity," and, because its perfunctory inquiry revealed none, it was justified in not pursuing the matter further. P. Cl. Br. at 6. This is neither the standard for investigation nor is it consistent with the facility's own policies. As noted above, "abuse" does not require a finding of malice. Moreover, all alleged violations must be reported to facility administration, appropriate state officials, and must be thoroughly investigated. 42 C.F.R. � 483.13(c)(2) and (3).

The facility's written policy for investigation of potential abuse sets forth in considerable detail requirements for investigating incidents and suspected incidents of abuse, neglect, or injury of an unknown source. P. Ex. 17, at 7 et seq. The policy specifically identifies bruises and lacerations as signs of potential abuse. P. Ex. 17, at 29. It requires that all accidents and incidents be reported "promptly" to the Director of Nursing (DON) and the facility administrator. An accident/incident report must be completed "on the shift in which the accident/incident occurred," and provided to the administrator within 24 hours. The resident's representative, attending physician, and the facility medical director must be notified promptly of the incident. All incidents must be thoroughly investigated by management, and the findings recorded in the resident's medical record. P. Ex. 17, at 35-36. The Director of Social Services also investigates all grievances and complaints. P. Ex. 17, at 13. ⁽¹³⁾

The facility policy requires that the administrator report to the State Agency within 24 hours the results of his/her preliminary investigation, and that he/she follow up with a five-day report. P. Ex. 17, at 9, 24, 32.

The facility's actions obviously fell far short of what its policies required.

CMS exaggerates in claiming that "virtually no one other than the involved nurses' aides knew about this incident, including the Director of Nursing and the Administrator, who would coordinate the abuse investigation pursuant to the facility's own regulations." CMS Cl. Br. at 9. In fact, R1's daughter was notified. CMS Ex. 9; P. Ex. 22, at 11. According to the incident report, the physician was also notified (CMS Ex. 9), but R1's physician, Dr. Hedrick, declares that he only learned of the incident at the time of the survey, on April 22, so it appears that he was not notified. P. Ex. 5, at 2. In its brief, Petitioner asserts that a nurse practitioner was told, and the record contains a terse progress record from a nurse practitioner, dated April 13, reflecting R1's increased combativeness at night, but I see no specific reference to the incident nor any evaluation of R1's bruises. P. Ex. 25, at 1. Petitioner offered no declaration from the nurse practitioner.

In any event, CMS is definitely correct that neither the facility administrator nor the DON were notified. CMS Ex. 28, at 3-4 (Richardson Decl. � 15). Petitioner has not challenged CMS's assertion that the facility administrator admitted to the surveyors that she was not aware of the incident (CMS Cl. Br. at 8), and the facility admits that "[b]ecause the Director of Nursing was on vacation, the report was not processed in the routine manner." P. Cl. Br. at 4. That the DON was on vacation is no defense. The facility should have designated a qualified individual to perform the job in her absence. Petitioner offers no explanation for staff's failure to inform the facility administrator, and, although required by law to do so, the facility did not notify R1's legal guardian, who only learned of the bruising from R1's daughter on April 13. P. Ex. 11.

Staff prepared a one page incident/accident report that offers only a cursory description of the incident. CMS Ex. 9. The record also includes a document titled "Resident Accident Investigation Report." P. Ex. 21. It is not dated, although it contains signatures from the administrator and medical director dated April 22, 11 days after the incident (and during the time of the survey). The report indicates that the resident was injured: bruises to forearm and two small skin tears. Only two of the three witnesses are mentioned: CNA Toney and LPN Rallis. CNA Mack is not mentioned. LPN Rallis told the investigator that the resident grabbed the CNA's collar and was trying to scratch her face, and that CNA Toney grabbed R1's arm to prevent her from pulling the Foley out. CNA Toney told the investigator that the resident was aggressive but had BM "up in vaginal area" and that she had to hold R1's hands while another CNA cleaned her up. R1 herself reported that someone was trying to rape her. From this the investigator concluded no abuse. It does not appear that the investigator even reviewed the CNAs' written accounts since the report does not mention any of the events that occurred prior to LPN Rallis entering the room.

I do not consider this an adequate investigation. Nor did the facility report the incident as required. The facility was therefore not in substantial compliance with 42 C.F.R. � 483.13(c).

C. Because the facility failed to assess timely its residents, it was not in substantial compliance with 42 C.F.R. � 483.20.

According to CMS, Resident 2 (R2) was admitted to the facility on March 16, 2004, but at the time of the survey, more than a month later, surveyors could not find an initial assessment. CMS Ex. 25, at 34. Similarly, Resident 5 (R5) was admitted on March 13, 2004, but the facility produced no assessment. The responsible staff member told surveyors that R2 had not yet been assessed, and that R5's assessment was "on the list to do tomorrow." CMS Ex. 25, at 35; CMS Ex. 27 (Smith Decl.). These assessments should have been completed within 14 days of the resident's admission. 42 C.F.R. � 483.20(b)(2)(i).

Facilities must also assess each resident at least every three months, using a quarterly review instrument chosen by the state, and approved by CMS. 42 C.F.R. � 483.20(c). For three residents, the surveyors found that their quarterly assessments had not been completed timely. R1's last quarterly assessment was dated December 22, 2003, so the facility should have completed another on or before March 23, 2004. However, a month later, her assessment had not been completed. CMS Ex. 25, at 36. Similarly, Resident 3's (R3) last quarterly assessment was dated December 28, 2003, and Resident 4's (R4) was dated December 27, 2003. CMS Ex. 25, at 36; see, CMS Ex. 28, at 4 (Richardson Decl. �� 19, 20).

With respect to the facility's alleged failure to complete assessments within 14 days of admission, Petitioner does not deny the surveyor findings, but points out that the survey report form cites an incorrect subsection of the regulation. The form cites 42 C.F.R. � 483.20(b)(2)(iii) (which requires an annual assessment) and does not specifically cite � 483.20(b)(2)(i), which requires an assessment within 14 days of admission. Petitioner does not claim that it was surprised or misunderstood the alleged deficiency; only that the survey report form did not include the correct regulatory citation. P. Op. Br. at 21. This is not a defense. Although the survey report form does not cite the applicable subsection, it states explicitly that the facility "failed to ensure comprehensive assessments were completed within 14 days after admission for 2 of 34 sampled residents (Residents #2 and #5)." CMS Ex. 25, at 34. Quoting the text of a regulation is sufficient notice of the violation, even without an actual citation to the regulation itself. Cedar View Good Samaritan, DAB No. 1897.

Petitioner does not challenge the survey findings with respect to quarterly assessments, but trivializes the deficiency as "at most in the nature of an "A" level deficiency. P. Op. Br. at 21. I disagree. The facility was not merely a day or two late in completing an assessment. The facility was weeks late in timely assessing these residents, one of whom, R1, was deteriorating significantly. Yet, her most recent assessment indicated that she was doing well. P. Ex. 22, at 29. ⁽¹⁴⁾ By failing to assess her condition, the facility denied its staff the tools needed to care for her properly, and failed even to consider, much less provide her, the treatment she needed. The situation with R1 illustrates the need for appropriate assessment and planning, and failure to do so presents the potential for more than minimal harm.

Because it did not provide timely assessments for these five residents, the facility was not in substantial compliance with 42 C.F.R. � 483.20.

D. From April 11 through 21, 2004, the facility's deficiencies posed immediate jeopardy to resident health and safety.

I next consider whether CMS's immediate jeopardy finding was "clearly erroneous." 42 C.F.R. � 498.60(c)(2). The Board has observed repeatedly that the "clearly erroneous" standard imposes on facilities a "heavy burden" to show no immediate jeopardy, and has sustained determinations of immediate jeopardy where CMS presented evidence "from which '[o]ne could reasonably conclude' that immediate jeopardy exists." Barbourville Nursing Home, DAB No. 1962, at 11 (2005); Florence Park Care Center, DAB No. 1931, at 27-28 (2004), citing Koester Pavilion, DAB No. 1750 (2000).

Immediate jeopardy exists if the facility's noncompliance has caused or is likely to cause "serious injury, harm, impairment or death to a resident." 42 C.F.R. � 488.301. R1 suffered skin tears and significant bruising. I consider this serious injury. The facility then compounded its deficiencies when it failed to report or investigate adequately. Because it did not recognize the problem, it took no steps to prevent any recurrence. This puts residents at risk of serious harm. CMS's immediate jeopardy determination is therefore not "clearly erroneous."

E. I find reasonable the imposition of a $5,000 per day CMP for the period of immediate jeopardy. ⁽¹⁵⁾

Having found a basis for imposing a CMP, I now consider whether the amount imposed is reasonable, applying the factors listed in 42 C.F.R. � 488.438(f). Emerald Oaks, DAB No. 1800, at 10 (2001); CarePlex of Silver Spring, DAB No. 1683, at 16-17 (1999); Capitol Hill Community Rehabilitation and Specialty Care Center, DAB No. 1629 (1997).

CMS imposed a penalty of $5,000 per day for the days of immediate jeopardy, which is at the lower end of the mandatory range ($3,050 to $10,000) for immediate jeopardy situations. Neither party says very much about the amount of the CMP. Aside from its claims regarding compliance, Petitioner offers no argument as to the reasonableness of the CMP amount, and has arguably waived the issue. For its part, CMS simply notes that the immediate jeopardy deficiencies threatened the health and safety of "a number of residents," and caused visible injury to at least one. CMS Cl. Br. at 11.

I determine whether the amount of a CMP is reasonable by applying the factors listed in 42 C.F.R. � 488.438(f): 1) the facility's history of noncompliance; 2) the facility's financial condition; 3) factors specified in 42 C.F.R. � 488.404; and 4) the facility's degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort or safety. The absence of culpability is not a mitigating factor. 42 C.F.R. � 488.438(f). The factors in 42 C.F.R. � 488.404 include: 1) the scope and severity of the deficiency; 2) the relationship of the deficiency to other deficiencies resulting in noncompliance; 3) the facility's prior history of noncompliance in general and specifically with reference to the cited deficiencies.

I have before me no evidence regarding facility history or financial condition. With respect to the other factors, however, I find that the deficiencies were serious. A resident was injured because staff responded inappropriately to her escalating behaviors. The facility then failed to report or investigate adequately the incident. Neither the administrator nor DON were even aware of it. For this, the facility is culpable. I therefore find reasonable the amount of the CMP.

V. Conclusion

For all of the reasons discussed above, I uphold CMS's determination that, from April 11-June 2, 2004, the facility was not in substantial compliance with program participation requirements, specifically 42 C.F.R. �� 483.13 and 483.20. I also find that, from April 11-21, 2004, its deficiencies posed immediate jeopardy to resident health and safety. I sustain, as reasonable, the $5,000 per day CMP for the period of immediate jeopardy. Finally, since the penalty imposed from April 22 through June 2, 2004 ($50 per day), is the statutory minimum CMP, I also sustain that amount.

Carolyn Cozad Hughes

Administrative Law Judge

1. I discuss below confusion in the record as to the duration of the facility's noncompliance, and the total amount of the civil money penalty.

2. Although neither party mentions it, the statement of deficiencies incorrectly cites 42 C.F.R. � 483.13(c)(1)(ii) for deficiencies that instead violate 42 C.F.R. �� 483.13(c)(1)(i), (2), (3) and (4). This is not the first time I have observed such an error involving the subsections of � 483.13(c). See Valley Oaks Camden, DAB CR1257, at 3 n.2; at 8 n.7. Nevertheless, although the subsections are mis-cited, the survey report quotes the text of the correct subsections and lays out, in considerable detail, how and why the surveyors found non-compliance. CMS Ex. 25, at 11-12. I consider this sufficient notice of violations. Cedar View Good Samaritan, DAB No. 1897 (2003) (quoting the text of the regulation held sufficient notice of violations, without actual citation to the regulation).

3. CMS counsel failed to number the pages of her briefs, which violates Civil Remedies Division procedures. Nevertheless, in the interest of time, we have numbered the pages ourselves. In future, however, I will instruct staff to return to CMS any briefs submitted without their pages numbered.

4. I admit the Smith Declaration (Smith Decl.) as CMS Ex. 27; I admit the Richardson Declaration (Richardson Decl.) as CMS Ex. 28; and I admit the Ryba Declaration (Ryba Decl.) as CMS Ex. 29.

5. I note that in its opening brief Petitioner raised a variety of Constitutional arguments and challenges to the regulations. P. Op. Br. at 25-26. I have no authority to consider these issues. See Northern Montana Care Center, DAB No. 1930 (2004); Wisteria Care Center, DAB No. 1892 (2003).

6. Each side seems to have staked out a position that does not further its cause. Staff might be forgiven for responding inappropriately to a sudden, unexpected burst of aggression. But, as discussed in the body of this decision, where such conduct was well-known, the facility and its staff should have planned an appropriate response.

7. As discussed below, the facility had significant problems in completing resident assessments, a critical step in care planning. R1's situation illustrates how assessing and planning are not simply paperwork issues, but are vital to resident health and safety.

8. Inexplicably, CMS cites the survey report form for the proposition that R1 "required care for incontinence of the bowel and bladder." CMS Cl. Br. at 5. However, the survey report form, referring to R1's December 22, 2003 Minimum Data Set, says exactly the opposite: that R1 "was continent of bowel and bladder." CMS Ex. 25, at 1. And R1's treatment records suggest that she was generally continent, but began to have episodes of urinary incontinence during the months immediately preceding the April 11, 2004 incident. I see no evidence of fecal incontinence prior to April 11.

9. Petitioner has not produced any actual written policy addressing the appropriate response to resident aggression.

10. On the other hand, I wonder why such a susceptible individual was not more bruised. She was kicking and flailing her arms about; she made contact with staff; one CNA grabbed and held her by the legs. I would have expected a particularly vulnerable individual to be bruised wherever she made contact or was held. Yet, the only bruises reported were to her hands and forearms, where CNA Toney had restrained her.

11. Petitioner makes much of the results of the medical assessments that were performed ten days to two weeks after the incident occurred. At the same time, Petitioner objects to the CMS's characterizing R1's bruises as "excessive," pointing out that the surveyors did not see them until ten days after the incident. Aside from the inconsistencies in its positions, Petitioner may not take advantage of its own failure to have R1's injuries medically assessed in a timely manner. According to nurse's notes, the day after the incident, R1 had "multiple purple bruises" to her hands and forearms. P. Ex. 22, at 11. Ten days later, the surveyors observed substantial bruises, Surveyor Richardson declaring she observed Resident 1 "with a dark purple bruise on her entire right wrist, as well as (3) sets of bruises on her right forearm, in the imprint of a hand. Her entire left wrist was also covered with a dark purple bruise." CMS Ex. 28, at 2-3 (Richardson Decl. � 11.g). Together, these observations are sufficient to establish serious injury.

12. In its opening brief, Petitioner refers to this two-week delay as "a few days later." P. Op. Br. at 15.

13. I have discussed above the Social Worker's "progress note," dated April 19, 2004, which includes the misinformation that staff allowed R1 time to calm down.

14. Regulations also require a comprehensive assessment within 14 calendar days "after the facility determines, or should have determined, that there has been a significant change in the resident's physical or mental condition." 42 C.F.R. � 483.20(b)(2)(ii). Here, Petitioner conducted no such assessment, even though it recognized early in March a significant change in R1's condition; she displayed increased anxiety, delusional thinking, and threatening behavior. P. Ex. 27, at 2 (Leonard Decl. � 3).

15. Because I find that the deficiency findings I have sustained under 42 C.F.R. �� 483.13(b), 483.13(c), and 483.20 provide a sufficient basis for sustaining the penalty imposed, I do not address the other deficiencies cited. The ALJ need not "address all of the deficiencies in order to conclude that CMS had a basis for imposing a CMP." Batavia Nursing and Convalescent Center, DAB No. 1904, at 23 (2004); Beechwood Sanitarium, DAB No. 1824, at 19 (2002) (within the ALJ's discretion to limit his decision to findings necessary to support the remedies imposed).