SUBJECT:

Greenery Extended Care Center,

Petitioner,

Health Care Financing Administration

I decide that the Health Care Financing Administration (HCFA) properly imposed a civil money penalty (CMP) in the amount of $500 per day for one day, March 7, 1997, against Petitioner, Greenery Extended Care Center.

I. Background and Undisputed Material Facts

A. Background

On September 5, 1997, HCFA notified Petitioner that it was not in substantial compliance with requirements for nursing homes participating in the Medicare and Medicaid programs. HCFA determined to impose a CMP against Petitioner in the amount of $500 per day for one day, March 7, 1997, and to deny payments for new admissions, effective September 26, 1997. On October 20, 1997, HCFA rescinded the denial of payment for new admissions because Petitioner was found to be in substantial compliance, effective August 26, 1997.

Petitioner requested a hearing and the case was assigned to me for a hearing and decision. The parties filed cross motions for summary judgement. The parties agreed that no genuine issues of material fact existed and that summary judgment was appropriate and will be dispositive in this case. The parties filed a Stipulation of Facts (SOF). Petitioner submitted a brief in support of its motion for summary judgment accompanied by10 exhibits, P. Exs. 1 - 10. HCFA submitted a brief in support of its motion for summary judgment accompanied by eight exhibits, HCFA Exs. 1 - 8, and two attachments. Both parties submitted reply briefs. In addition, Petitioner submitted a supplemental brief with one accompanying exhibit, which I have marked as P. Ex. 11. Neither party objected to my receiving into evidence any of the exhibits submitted for my attention. Therefore, I receive P. Exs. 1 - 11 and HCFA Exs. 1 - 8 into evidence.

B. Undisputed Material Facts

On March 8, 1999, the parties filed a SOF and the following is a summary of those facts. Petitioner is a nursing home located in Farmington, Michigan, and is certified to participate in the Medicare and Medicaid Programs. SOF, Paragraph 1. On March 7, 1997, the date of the incident at issue, Resident "C" was a resident at Petitioner's facility. SOF, Paragraph 2. On that date, Petitioner utilized the services of a certified nurse aide (CNA), CNA #3, who was an employee of Nursing Care Agency (NCA), an outside "pool" agency in the business of providing nurses and nurse aides to skilled nursing facilities on a temporary basis. SOF, Paragraph 3. On that date, CNA # 3 worked the afternoon shift and was assigned to Resident C. SOF, Paragraph 3. Petitioner's contract with NCA required that NCA "screen" all CNA's provided to Petitioner to ensure that each CNA had both the training and the certification required pursuant to State and federal law. The contract also required that NCA provide verification of each CNA's training and certification to Petitioner. SOF, Paragraph 4. The regulations governing a long term care facility's participation in Medicare and Medicaid prohibit a facility from employing individuals who have either been found guilty of abusing, neglecting, or mistreating residents or have had a finding entered into the State nurse aide registry concerning abuse, neglect, or mistreatment of residents. 42 C.F.R. � 483.13(c)(1)(ii). Petitioner's contract with NCA required that NCA screen all CNA's for compliance with these regulations and provide verification of compliance to Petitioner.

On March 7, 1997, a Licensed Practical Nurse (LPN) employed by Petitioner responded to yelling coming from Resident C's room. SOF, Paragraph 5. Resident C informed the LPN that CNA #3 had hit him. SOF, Paragraph 5. The LPN summoned the Nurse Supervisor on duty and Resident C repeated the allegation to the Nurse Supervisor. SOF, Paragraphs 5 and 6. Pursuant to Petitioner's policy, the Nurse Supervisor immediately relieved CNA #3 of his duties and ordered him to leave Petitioner's facility. SOF, Paragraph 6. Thereafter, the Nurse Supervisor notified both the Director of Nursing and the Interim Administrator of the incident. SOF, Paragraph 6. The Nurse Supervisor also documented Resident C's complaint in the Nurse's Notes for that date and in a memorandum to the Interim Administrator and notified Resident C's daughter of the incident. SOF, Paragraphs 6 and 7.

As a result of Resident C's complaint, Petitioner promptly began an investigation, as required by Petitioner's policy, which was monitored by the Interim Administrator. SOF, Paragraph 7. As part of the investigation, the Nurse Supervisor completed an incident report and took a statement from Resident C. SOF, Paragraph 7. Petitioner's Social Worker also interviewed Resident C. Petitioner's Social Worker also interviewed Resident C's roommate and Petitioner's staff members. SOF, Paragraph 7. Petitioner documented the investigation and the Director of Nursing made a final report. Petitioner also notified NCA of Resident C's complaint. SOF, Paragraph 8.

Pursuant to Petitioner's policy, Petitioner promptly notified all proper authorities of the incident, including the Michigan Department of Consumer and Industry Services (MDCIS). SOF, Paragraph 10. As a result of Petitioner's report to MDCIS, a State surveyor visited Petitioner's facility on June 5, 1997, for the purpose of investigating Resident C's complaint. SOF, Paragraph 12. Based solely on the actions of CNA #3, MDCIS recommended, and HCFA agreed, that Petitioner was not in substantial compliance with 42 C.F.R. � 483.13(b), violations of which are typically cited at survey tag F 223. SOF, Paragraph 17. However, because MDCIS investigated the complaint three months after the incident occurred, it cited Petitioner under survey tag F 698, which is a tag designation used to indicate past non-compliance. SOF, Paragraph 17. Nevertheless, the parties are in agreement that the substantive basis for the citation is an alleged violation of 42 C.F.R. � 483.13(b), as found at survey tag F 223. SOF, Paragraph 17. As a result of the deficiency citation, HCFA imposed a civil money penalty in the amount of $500 per day against Petitioner, effective for one day, March 7, 1997, when the incident involving Resident C occurred. SOF, Paragraph 18.

In this matter, HCFA does not deny that Petitioner has developed, implemented, and had in effect at the time of the incident, adequate and reasonable written policies and procedures that prohibit mistreatment, neglect, and abuse of residents. SOF, Paragraph 19. HCFA also does not deny that Petitioner had in effect adequate and reasonable written policies and procedures for preventing incidents of abuse to its residents. SOF, Paragraph 20. HCFA does not deny that Petitioner adequately screened CNA #3 before he was assigned to the facility and does not contend that Petitioner failed to monitor CNA #3's activities while he was on duty on March 7, 1997. SOF, Paragraph 21. HCFA does not dispute that, at the time of the incident, Petitioner had taken all reasonably appropriate measures to assure that its residents were free from verbal, sexual, physical and mental abuse, corporal punishment and involuntary seclusion. SOF, Paragraph 25.

Moreover, HCFA does not contend that Petitioner failed to report the incident which occurred on March 7, 1997, to its interim administrator and other governmental authorities required pursuant to State and federal Law. SOF, Paragraph 22. HCFA does not contend that Petitioner failed to adequately investigate the March 7, 1997 incident, or that Petitioner failed to report the results of such investigation to the appropriate governmental authorities. SOF, Paragraphs 22 and 23. Similarly, HCFA does not dispute that Petitioner took adequate steps to ensure that such an incident would not recur and took appropriate corrective action. SOF, Paragraph 24.

II. Issue

The parties agree that the sole issue is whether federal statutes and regulations require that a nursing care facility which has adopted and implemented a reasonable system regarding the prevention of resident abuse by facility staff be deemed noncompliant with the federal requirements of participation in the event an incident of resident abuse is committed by a nurse aide on its premises and, therefore, whether the factual circumstances described above in which a nurse aide struck a resident constitutes sufficient basis for the one day civil money penalty imposed by HCFA in this case. If a sufficient factual and legal basis for the imposition of the CMP exists, Petitioner does not contest the amount or reasonableness of the CMP that was imposed.

III. Applicable Law

The Medicare and Medicaid statutory provisions at issue in this matter are 42 U.S.C. � 1395i-3(c) and 42 U.S.C. � 1396r(c), which set forth the "Requirements Relating to Residents' Rights." The relevant portions of these virtually identical provisions state that a facility must "protect and promote the rights of each resident, including . . . the right to be free from physical or mental abuse, corporal punishment, involuntary seclusion, and any physical or chemical restraints imposed for purposes of discipline or convenience and not required to treat the residents' medical symptoms." The regulatory provisions which implement 42 U.S.C. � 1395i-3(c) and 42 U.S.C. � 1396r(c) are 42 C.F.R. � 483.10 (Resident Rights); 42 C.F.R. � 483.12 (Admission, Transfer and Discharge Rights); 42 C.F.R. � 483.13 (Resident Behavior and Family Practices); and 42 C.F.R. � 483.15 (Quality of Life). With respect to a resident's right to be free from abuse, 42 C.F.R. � 483.13(b) states:

[t]he resident has the right to be free from verbal, sexual, physical and mental abuse, corporal punishment, and involuntary seclusion.

The word "abuse" is defined elsewhere in the regulations. "Abuse" is defined to mean:

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

42 C.F.R. � 488.301.

IV. Discussion

HCFA contends that an instance of abuse such as occurred in this case gives rise, without more, to a violation of 42 C.F.R. � 483.13(b). Petitioner maintains that an isolated instance of abuse does not, in the absence of further circumstances, result in a violation of its regulatory obligations. Based upon my review of the record and the statutory provisions at issue, along with the implementing regulations, I conclude that HCFA's imposition of a civil money penalty was proper. 42 C.F.R. � 483.13(b) states that "[t]he resident has the right to be free from verbal, sexual, physical, and mental abuse, corporeal punishment, and involuntary seclusion." Obviously, where even a single instance of abuse has occurred, the resident's right to be free from abuse has been violated and, by implication, the facility has not complied with the requirements of 42 C.F.R � 483.13(b). This conclusion is further supported by the State Operations Manual (SOM) under tag F 223. The SOM, in interpreting the requirements of 42 C.F.R. � 483.13(b), provides:

Residents must not be subjected to abuse by anyone, including, but not limited to, facility staff, other residents, consultants or volunteers, staff of other agencies serving the individual, family members, or legal guardians.

SOM, Appendix P, at PP-48.

It is also settled that deference is due the agency's interpretation of its regulations and that the proper construction of 42 C.F.R. � 483.13(b) is not an issue that is to be decided de novo by this tribunal. Rather the Departmental Appeals Board (DAB) and its Administrative Law Judges are required to uphold an agency construction of a regulation so long as the agency's construction is a permissible reading of the provision involved. As was held in New York State Department of Social Services, DAB No. 1429 (1994):

[I]t is inaccurate to conclude that the DAB must then be authorized to address issues of law and policy in de novo fashion and to impose its own interpretations . . . Where a dispute involves the proper interpretation of a statutory or regulatory provision, the Board - much like a reviewing court - should determine whether the administering agency's interpretation, as determined in the first instance by the agency's officials themselves, is a permissible construction of the applicable statute or regulation. Where a number of interpretations are permissible, the administering agency's position should be sustained so long as it is reasonable and consistent with the controlling provisions.

Id. at 5.

Petitioner argues, however, that HCFA, in reality, interprets the federal regulation at issue in a manner that is in conformance with Petitioner's own interpretation of this same regulation. Petitioner bases this argument on its Exhibit 11. Petitioner submitted, as P. Ex. 11, a copy of a letter dated January 13, 2000, from Robert P. Daly, Ohio Wisconsin Operations Branch, Division of Survey and Certification, HCFA Region V, in which HCFA's Central Office clarified HCFA's policy in such cases. The letter directly refers to other facilities that were cited for resident abuse when in fact the facilities had taken all possible steps to prevent abuse. In those cases, as here, the facilities had properly screened and trained nurse aides, and had also properly investigated reports of abuse and disciplined or terminated the employees involved. These facilities were cited with a deficiency because the nurse aides actually committed acts of abuse against residents. The letter states, in relevant part:

We have . . . received a clarification of policy on this issue from HCFA Central Office. HCFA's position is that, if the state survey agency determines that the facility did indeed take all necessary steps to prevent abuse and also took appropriate actions after the abuse occurred, then a deficiency should not be cited. P. Ex. 11, at 1.

In light of this letter, which states HCFA Central Office's position on this issue, Petitioner is arguing that I should give deference to the interpretation of the regulation that is evidenced by this letter and not to the interpretation of this regulation that HCFA argues in its briefs. Petitioner seems to be implying that HCFA's right hand is unaware of what its left hand proposes as the proper interpretation of this regulation.

Petitioner's argument is unpersuasive, because the January 13, 2000 letter only states HCFA's policy, not its interpretation of the regulation. HCFA can decide to have a policy that, in certain circumstances, a regulation is not to be enforced. That is not to say that HCFA's interpretation of its regulation, as stated in its brief, is not reasonable and consistent with the controlling statute. In this case, however, HCFA has chosen to enforce this regulation and has clearly stated its interpretation of the regulation.

I find that HCFA's interpretation is reasonable and consistent with the controlling provisions. 42 U.S.C. �� 1395i-3(c) and 1396r(c) provide that a nursing facility must "promote and protect the rights of each resident . . . to be free from . . . abuse." Petitioner contends that the use of the term "protect and promote" rather than the use of the word "prevent" reveals that Congress did not intend to make a nursing facility liable for any and all instances of resident abuse without regard to the surrounding circumstances. Rather, Petitioner maintains that a nursing facility is under a requirement to take only those steps which are reasonable and within its control to prevent any violation of resident's rights. The statutory language and the language of the implementing regulations is broad enough to permit HCFA's interpretation that a CMP is warranted in this case, however, and, as stated above, the relevant section of the SOM supports HCFA's interpretation.

Petitioner asserts that HCFA's strict interpretation is inconsistent with the regulatory scheme. Specifically, Petitioner maintains that if it is held strictly non-compliant for any instance of abuse committed by its employees against one of its residents, such strict interpretation renders superfluous its obligations under 42 C.F.R. � 483.13(c). This regulation provides that "the facility must develop and implement written policies and procedures that prohibit mistreatment, neglect and abuse of residents and misappropriation of resident property." Section 483.13(c) further specifies that:

(1) The facility must-

(i) Not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion;

(ii) Not employ individuals who have been-

(A) Found guilty of abusing, neglecting, or mistreating residents by a court of law; or

(B) Have had a finding entered into the State nurse aide registry concerning abuse, neglect, mistreatment of residents, or misappropriation of their property; and

(iii) Report any knowledge it has of actions by a court of law against an employee, which would indicate unfitness for service as a nurse aide or other facility staff to the State nurse aide registry or licensing authorities.

(2) 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 to the State survey and certification agency).

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

(4) The results of all investigations must be reported to the administrator or his designated representative and to other officials in accordance with State law (including to the State survey and certification agency) within 5 working days of the incident, and if the alleged violation is verified appropriate corrective action must be taken.

Petitioner argues that the requirements imposed on a facility under section 483.13(c) are reflective of Congress's intension to require a facility to "protect and promote" a resident's right to be free of abuse by taking those preventative steps that are within its control.

This argument misapprehends the purpose of both 42 C.F.R. � 483.13(b) and 42 C.F.R. � 483.13(c). The plain meaning of those regulations respectively requires that the residents be free from abuse (section 483.13(b)) and that the facility must take measures to prevent abuse (section 483.13(c)). It is, therefore, not sufficient for a facility to demonstrate absence of abuse under subpart (b) because subpart (c) imposes the additional requirement that the facility implement polices and procedures to prevent abuse. Additionally, the implementation of such policies and procedures does not insulate a nursing home from the requirement of subpart (b) because such interpretation would make subpart (b) superfluous. Moreover, it may be that nursing facilities, having implemented such policies and procedures, would make no further efforts to prevent abuse under Petitioner's interpretation. Clearly, an interpretation that recognizes the liability in this case of the nursing facility under 42 C.F.R. � 483.13(b) would serve to make such facility very vigilant to protect the right of its residents to be free from abuse. Such interpretation is underscored by the SOM provision regarding 42 C.F.R. �� 483.13(b) and (c), which states concerning both provisions that "[t]hese requirements specify the right of each resident to be free from abuse, corporal punishment, and involuntary seclusion, and the facility's responsibilities to prevent not only abuse but also those practices and omissions, neglect and misappropriation of property, that if left unchecked, lead to abuse." SOM, Appendix P, at PP-48.

As a final argument in support of its contentions, Petitioner asserts that if HCFA is permitted to assess a CMP in this instance, such policy in effect affords more substantial rights to a nurse aide who commits abuse than to a facility which has, through its policies and procedures, attempted to minimize such event from occurring. This is so, according to Petitioner, because the nurse aide would be entitled to a hearing on the issue of whether he committed abuse. Petitioner asserts that, under HCFA's interpretation in this case, a facility is to be held strictly non-compliant for abuse. It is clear that even under Petitioner's interpretation of HCFA's action in its case, Petitioner is entitled to a hearing on a number of issues, including whether abuse occurred and whether Petitioner had violated 42 C.F.R. � 483.13(c), a charge not alleged in this case. For example, Petitioner would be entitled to a hearing on whether the necessary element of willfulness was present to meet the definition of abuse. Here, however, the way in which the parties agreed to frame the issue before me leaves no doubt that CNA #3 willfully abused Resident C. In fact, Petitioner concedes that CNA #3's action constituted abuse. P. Reply Br., at 2-3. I, therefore, do not find Petitioner's argument on this issue persuasive.

V. Conclusion

I uphold HCFA's assessment of a CMP in the amount of $500 per day for one day, March 7, 1997, against Petitioner.

Joseph K. Riotto

Administrative Law Judge