SUBJECT: Britthaven, Inc., d/b/a/ Britthaven of Smithfield,

Petitioner,

Centers for Medicare & Medicaid Services

FINAL DECISION ON REVIEW OF
ADMINISTRATIVE LAW JUDGE DECISION

Britthaven, Inc. (Britthaven) appealed the December 15, 2004, decision of Administrative Law Judge (ALJ) José A. Anglada. The decision upheld the imposition by the Centers for Medicare & Medicaid Services (CMS) of a $5,000 per day civil money penalty (CMP) from August 24, 2001 through August 29, 2001. Britthaven, Inc., DAB No. CR1259 (2004) (ALJ Decision).

For the reasons explained below, we uphold the ALJ's conclusions that CMS had a basis for imposing a CMP and that the CMP imposed was reasonable in amount.

Background

Britthaven is a long-term care facility in North Carolina certified to participate in the Medicare and Medicaid programs. ALJ Decision at 1. The North Carolina State Survey Agency conducted a complaint survey at Britthaven in August 2001. The surveyors found that Britthaven was not in substantial compliance with numerous participation requirements. CMS Ex. 2.

[Page 2] Pursuant to this survey, CMS imposed a per day CMP of $5,000 from August 24, 2001 to August 29, 2001. (CMS also imposed other remedies which are not at issue here.)

Britthaven requested a review by an ALJ pursuant to 45 C.F.R. � 488.408(g). Before the ALJ, the parties waived an oral hearing and requested a decision based on the documentary evidence and written memoranda. ALJ Decision at 2.

As to the August 2001 survey, the ALJ made 11 findings of fact and conclusions of law (FFCLs) that he identified with the letters A through K. Below we discuss the FFCLs to which Britthaven excepted. We affirm and adopt, without discussion, the FFCLS to which Britthaven did not except.

Applicable Legal Authority

The applicable legal authority is set out in the ALJ Decision. ALJ Decision at 3-5.

Standard of Review and Burden of Proof

Our standard of review on a disputed finding of fact is whether the ALJ decision is supported by substantial evidence on the record as a whole. Our standard of review on a disputed conclusion of law is whether the ALJ decision is erroneous. Guidelines for Appellate Review of Decisions of Administrative Law Judges Affecting a Provider's Participation in the Medicare and Medicaid Programs, www.hhs.gov/dab/guidelines/prov.html.

Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). Under the substantial evidence standard, the reviewer must examine the record as a whole and take into account whatever in the record fairly detracts from the weight of the decision below. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951). Thus, we review the findings to determine, among other things, whether conflicting evidence in the record has been addressed by the ALJ and whether the inferences drawn by the ALJ are reasonable. Barry D. Garfinkel, M.D., DAB No. 1572 (1996).

Before the ALJ, CMS must make a prima facie case that the facility was not in substantial compliance with one or more participation requirements; if CMS does so, then the facility will prevail only if it proves substantial compliance by a [Page 3] preponderance of the evidence. Batavia Nursing and Convalescent Center, DAB No. 1904 (2004), aff'd Batavia Nursing & Convalescent Center v. Thompson, No. 04-3325, 129 Fed.Appx. 181, 2005 WL 873514 (6th Cir. April 15, 2005).

1. The ALJ did not err in concluding that Britthaven failed to provide an environment free from verbal, sexual, physical, and mental abuse as required by 42 C.F.R. � 483.13(b) (Tag F 223 at CMS Ex. 2, at 1-5; ALJ Decision FFCL IV.B).

The ALJ concluded that Britthaven failed to provide an environment free from verbal, physical, and mental abuse for Residents 20, 12 and 8, as required by 42 C.F.R. � 483.13(b). ALJ Decision at 5-11.

Many of Britthaven's arguments on appeal are based on objections to the ALJ's reliance on hearsay evidence. This evidence consists of written statements, mostly submitted by Britthaven, from its employees and the employees' oral statements reported by surveyors. These statements are hearsay in that each is "a statement, other than one made by the declarant while testifying at the . . . hearing, offered in evidence to prove the truth of the matter asserted." Fed. R. Evid. 801(c).

Britthaven's hearsay objections are without merit for the following reasons.

• In administrative proceedings generally, and in Chapter 498 proceedings expressly, hearsay is admissible and can be probative on the issue of the truth of the matter asserted, where sufficient indicia of reliability are present. See 42 C.F.R. � 498.61; Pacific Regency Arvin, DAB No. 1823, at 14, n.6 (2002); Richardson v. Perales, 402 U.S. 389, 402 (1971).



• In this proceeding, Britthaven waived its right to an oral hearing and consented to "have the case decided on the basis of documentary evidence and written memoranda." ALJ Decision at 2. Thus, Britthaven chose not to subpoena and cross examine these declarants and consented to the use of their statements as the testimonial evidence in this proceeding. Britthaven even relies on some of these statements.



• [Page 4] Additionally, these statements fall under at least two exceptions to the hearsay rule as set forth in the Federal Rules of Evidence. For example, the statements to the surveyor as recorded in the SOD would qualify as admissible records and reports of public offices or agencies that set forth "matters observed pursuant to duty imposed by law as to which matters there was a duty to report" as well as "factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness." Fed. R. Evid. 803(8). The statements collected by Britthaven in the course of its investigation of possible abuse would fall under the exception for records of regularly conducted activity. Fed. R. Evid. 803(6).
  

• Finally, Britthaven did not argue to the ALJ that these statements were hearsay, except in one instance in which declarants repeated things they were told by another staff member to prove the truth of that staff member's assertion. As to this hearsay, we below explain why we conclude it is reliable.

Therefore, the ALJ properly relied on employees' written statements.

Britthaven also argues that the ALJ erred by not considering the definition of abuse. Abuse is defined as "the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish." 42 C.F.R. � 488.301. ⁽¹⁾ The Board has noted that the "term 'willful' has multiple meanings in the law - from 'malicious' to 'not accidental' - depending on the context in which it is used." Western Care, DAB No. 1921, at 14. The Board concluded that section 483.13(b) does not require that the purpose of the actor be to inflict harm, but rather requires that the action have been undertaken deliberately. Id. We consider the definition in discussing next why we conclude that the ALJ's findings regarding [Page 5] the abuse of specific residents were supported by substantial evidence, contrary to Britthaven's arguments.

Resident 20

Resident 20 had diagnoses including dementia and diabetes and lived in Britthaven's locked unit for residents with dementia (the SPARK Unit). ALJ Decision at 6, citing CMS Ex. 2, at 1. The ALJ found that on July 23 or 24, 2001, Certified Nursing Assistant 1 (CNA 1) cut Resident 20's nails in retaliation for Resident 20's scratching her in the face. The ALJ also found that CNA 1 cut the nails so short that she cut Resident 20's right index finger. ALJ Decision at 7. The ALJ concluded that CNA 1's conduct constituted abuse of Resident 20.

Britthaven argues that the record as whole does not support the ALJ's finding that CNA 1 cut Resident 20's nails on July 23 or 24 or the finding that CNA 1 cut the nails with retaliatory intent. P. Br. at 5-8. We disagree.

Substantial evidence in the record supports the ALJ's finding that CNA 1 cut Resident 20's nails and finger on July 23 or 24. Britthaven discovered this injury on July 25 and concluded that it occurred on July 23 or 24. ALJ Decision at 7, citing P. Ex. 9, at 8-9. CNA 1 worked on July 23 and 24. Id., citing CMS Ex. 5, at 4. As part of Britthaven's investigation of this injury, Britthaven obtained statements from CNA 2 and CNA 3, dated July 30, as to what CNA 1 told CNA 2 and CNA 3 about cutting Resident 20's nails "last week." P. Ex. 9, at 22, 23. The next day, CNA 1 gave a statement in which she admitted trimming Resident 20's nails and having "a very difficult time trimming her nails as always." Id. at 21. On the bottom of this statement, a nurse wrote that CNA 1 was told, in the future, to get help before trimming nails, to treat residents carefully and gently, and not to trim diabetics' nails. Id. After the August survey, Britthaven investigated this injury a second time, named CNA 1 as the accused, and suspended her as part of the resulting corrective action. Id. at 19.

The ALJ's finding that CNA 1 cut Resident 20's nails with retaliatory intent is supported by CNA 2's and CNA 3's statements. CNA 2 wrote, in her July 30 statement, that CNA 1 told her that Resident 1 scratched CNA 1's face, CNA 1 then cut Resident 20's nails, and "they tumbled to the floor but she cut [Page 6] her nails anyway." P. Ex. 9, at 23. CNA 3 wrote in her July 30 statement that -

[CNA 1] told me that [Resident 20] scratched CNA 1's face. So she went to get fingernail clippers to clip her fingernails. She said that her and [Resident 20] fell to floor but she clipped her fingernails anyway. She also said she was going to fix [Resident 20's] ass for scratching her in the face.

Id. at 22. ⁽²⁾

Britthaven argues that CNA 2's and 3's statements are not reliable because they contain hearsay, i.e., repetition of what CNA 1 told CNAs 2 and 3. P. Br. at 7-8. These statements are reliable for the following reasons. ⁽³⁾

• While Britthaven characterizes CNA 2 and 3 as "disgruntled employees," it identifies nothing in the record, and we found nothing, to substantiate this allegation. Indeed, CNA 2's and 3's statements are not inconsistent with those of a CNA Bell, on whom Britthaven relies. P. Br. at 6-8, citing P. Ex. 9, at 29 and 32. CNA Bell's statements, dated September 4 and 7, 2001, purport to describe an event occurring in March or April in which Resident 20 scratched CNA 1 on the face, and CNA 1 "reacted by cutting her fingernails all the way down. Her fingers did bleed some." P. Ex. 9, at 32. Given the other evidence discussed above, it is reasonable to infer that CNA Bell's statements show that (1) CNA 1 caused Resident 20's fingers to bleed on an occasion prior to the July incident or (2) CNA Bell was confused about dates and was actually describing the event of July 23-24. The first option does not detract from the ALJ's finding; the second option supports the ALJ's finding.



• CNA 1's statements to the other CNAs demonstrated her abusive attitude and conduct towards a resident and her retaliatory intent. Thus, CNA 1's statements are [Page 7] declarations against interest and inherently reliable because CNA 1 had no interest in stating falsehoods about herself that could result in punishment if repeated to facility management.



• Britthaven asserts that CNA 1 "has adamantly and consistently denied that Resident 20 ended up on the floor during care" (id. at 6) and "has consistently contradicted" the reports by CNA 2 and 3 (id. at 7). Britthaven cites nothing in the record to support these assertions. Neither of the two statements from CNA 1 supports Britthaven's assertion. The first is dated July 31 and provides: "During trimming [Resident 20's] nails it was said that one was cut too short, not noted by me on the evening of the trimming her nails. . . . While trimming her nails, resident was her normal self, very agitated and aggressive, jerking her arms and cursing me. Very difficult time trimming her nails as always." P. Ex. 9, at 21. The second statement is dated August 30 and provides "the statement that had previously made on 7-31-01 is still accurate." Id. at 24.

Substantial evidence in the record as a whole supports the ALJ's finding that CNA 1 abused Resident 20.

Resident 12

Resident 12 had diagnoses of depression, diabetes, and dementia. Resident 12 also lived in the SPARK Unit. On July 23, 2001, Resident 12 slapped Resident 8 and, when CNA 1 intervened, Resident 12 slapped CNA 1. ALJ Decision, 7, citing CMS Ex. 2, at 3. Nurse 1 then intervened in the presence of Staff 1 and 2, CNA 1, and a Supervisor. P. Ex. 10, at 31. Staff 1 and 2 reported to the surveyor that they observed Nurse 1 "nudging Resident 12's arm saying [repeatedly] 'come on, why don't you slap me around.'" ALJ Decision at 7, citing CMS Ex. 2, at 3. In a statement dated July 24, 2001, Staff 1 wrote, "I saw [Nurse 1] and [illegible] [Resident 12] saying come on [Resident 12] why don't you slapp me around, come on [Resident 12], why don't you slapp me, steady nugging his arm." P. Ex. 10, at 31. In a written statement dated September 10, 2001, CNA 1 reported that, after Resident 12 slapped her, "[Nurse 1] came over and said she would handle it. She began telling R12 hit me if you want to hit someone and bumping chests with resident." P. Ex. 6, at 41. In a statement [Page 8] dated September 11, 2001, Nurse 1 described her actions as follows:

Spoke to [Resident 12] loudly to get his attention over his yelling and [illegible] his arm before he could hit me. Still physically trying to hit and yelling. Told [Resident 12] if he needed to hit someone it would have to be me. [Resident 12] stopped struggling physically but still yelling. I kept talking to him possibly yelling so he could hear me over his yelling so he would focus on me. Released his hands he kept yelling - I was pointing at him as I was talking. [Resident 12] asked me to stop pointing. So I did I continued to stay in front of his face and follow him halfway around room until yelling stopped and he was just mad and not threatening anyone.

P. Ex. 6, at 40.

The ALJ concluded that "Nurse #1 was challenging and daring Resident 12 to slap her. Her words had a less than veiled threat as to what would happen if the resident dared hit her." ALJ Decision at 8. The ALJ concluded this conduct constituted abuse.

Britthaven argues the ALJ erred in concluding this conduct was abusive because "there was no 'wilful' infliction of emotional injury . . . Additionally, the words that were actually said to the resident cannot logically be construed as threatening or frightening to a resident." P. Br. at 9. Britthaven argues that the record does not support the ALJ's finding that Nurse 1's words were "challenging and daring" or contained a "'veiled' threat." Id. Britthaven asserts that Nurse 1 was simply "attempt[ing] to redirect [Resident 12's] attention to her as opposed to other residents or staff members." P. Br. citing P. Ex. 6, at 16, 40-41.

Clearly Nurse 1 was redirecting Resident 12; the question is whether she was doing so in an abusive manner. We conclude that the ALJ could reasonably infer from the evidence in the record as a whole that Nurse 1's approach at redirection was willfully challenging and threatening to Resident 12 and would result in mental anguish. Her words were confrontational; she was physically restraining, bumping or nudging the resident; and by her own admission, she was speaking loudly. The fact that a nurse, who should serve as a model for appropriate conduct, engaged in this type of behavior in the presence of a Supervisor is particularly disturbing. Additionally, Nurse 1's manner of dealing with Resident 12 was contrary to the portion of Resident [Page 9] 12's plan of care directing staff to "approach calmly [and] offer choices in routines as possible." CMS Ex. 21, at 127. Absent persuasive evidence that Nurse 1's intervention met professionally recognized standards of care as required by section 1810(b)(4) of the Social Security Act (the Act), the ALJ reasonably concluded it was abusive.

Resident 8

Resident 8 had diagnoses of dementia and was coded on the Minimum Data Set (MDS) as having no vision or as seeing only light, colors or shapes. CMS Ex. 2, at 6. On July 23 while Resident 8 was yelling, Resident 12 slapped him. In a written statement on July 24, Staff 1 reported to the facility that, after this incident, she heard Nurse 1 say to Resident 8, "Stop yelling before someone comes and slaps your face again" and "Your getten on my nerves." ALJ Decision at 9, citing CMS Ex. 2, at 4. The ALJ concluded that these statements constituted verbal abuse of Resident 8. ALJ Decision at 10.

Britthaven argues that the ALJ's finding that Nurse 1 said these words to Resident 8 is not supported by substantial evidence in the record as a whole. P. Br. at 10. The evidence cited by the parties consists of Staff 1's statement given on July 24, 2001 (P. Ex. 10, at 30-33), Nurse 1's statement given on September 11, 2001 (P. Ex. 6, at 40-41), and the surveyor's interview with Staff 1 and Staff 2 as reported in the SOD (CMS Ex. 2, at 4).

Britthaven takes issue with the ALJ's reliance on the statement of Staff 1 for two reasons. First, Britthaven argues the written statement of Staff 1 is "uncorroborated hearsay." P. Br. at 10. We reject this argument. As discussed above, even if staff members' written statements are hearsay, we find that they are not inadmissable or unreliable on that basis, where Britthaven waived the opportunity to subpoena the declarants. Additionally, Staff 1's repetition of Nurse 1's words is not hearsay because it is offered to prove the fact Nurse 1 said these words, not that the words were true.

Second, Britthaven argues Staff 1's statement should be rejected because she and her husband (Staff 2), a maintenance worker, were "disgruntled employee[s]" who were "out to get the facility and certain staff members, in particular." P. Br. at 10-12. Britthaven asserts Staff 1 was not concerned about the treatment of residents but was angry over perceived personal injustices and points out how Staff 1's July 24 statement complains about disparate treatment in regard to conveying telephone messages and the ability to sit behind the nurses desk. P. Br. at 11, citing [Page 10] P. Ex. 10, at 30-33. Britthaven represents that the source of these tensions was racial. Id. Britthaven also submitted the statement of an employee dated September 21, 2001, that a second employee told her that, in July 2001, the second employee heard Staff 1 say "she would bring everyone down. Before she left us. Especially Admin. Dept." P. Ex. 25.

The ALJ did not find this evidence sufficient to cause him to disbelieve Staff 1's assertions about Nurse 1's actions and neither do we. The surveyor, who personally interviewed Staff 1, found her to be credible; Staff 1's description of Nurse 1's treatment of Resident 12 is consistent with Nurse 1's and CNA 1's description; and Staff 1's statement describing Nurse 1's conduct was made the day after the event, weeks before the arrival of the surveyors. Finally, and most critically, even though Nurse 1 gave a lengthy statement as to the events of July 23, she does not deny Staff 1's assertion that she said "Stop yelling before someone comes and slaps your face again" or deny that she told the resident he was getting on her nerves. See P. Ex. 6, at 40-41. In fact, Britthaven identifies no document in the record, and we found no document, expressly contradicting Staff 1's description of Nurse 1's statements to Resident 8. ⁽⁴⁾ Thus, the record as a whole supports the ALJ's finding that Nurse 1 said to a severely vision-impaired resident who had been slapped a short time before, "Stop yelling before someone comes and slaps your face again" and told him that he was getting on her nerves.

Next Britthaven argues that, even if these words were spoken they do not constitute abuse. Britthaven asserts that "it is clear from the context of the incident that the Nurse was not threatening violence on the resident, but was merely warning him that another resident may react to his behavior. According to Britthaven, "the remarks at issue were neither disparaging nor derogatory, did not rise to the level of 'willful' conduct, and did not constitute noncompliance with federal regulations." P. Br. at 10.

The ALJ did not err in determining that these words were abusive. First, they were willful, as that term is used in section 488.301. They were said deliberately to modify Resident 8's [Page 11] behavior, i.e., to cause him to stop yelling. Second, they can reasonably be seen as an "infliction of intimidation . . . with resulting physical harm, pain or mental anguish." 42 C.F.R. � 488.301. As the ALJ pointed out, "the nurse's words would be intimidating and frightening to someone who was blind and had no way of knowing whether he was in further immediate and imminent danger." ALJ Decision at 10. Fright is a type of mental anguish.

For the reasons discussed above, the record as a whole supports the ALJ's conclusion that Nurse 1 abused Resident 8 by wilfully inflicting intimidation on Resident 8 that resulted in mental anguish.

2. The ALJ did not err in concluding that Britthaven failed to implement policies and procedures that prohibit mistreatment, neglect, and abuse of residents. 42 C.F.R. � 483.13(c)(1)(i) (Tag F 224 at CMS Ex. 2, at 5-14; ALJ Decision FFCL IV.C).

The SOD states that Tag F 224 should be used for deficiencies concerning mistreatment, neglect or misappropriation of property. CMS Ex. 2, at 5. The fact patterns alleged in the SOD as the bases for this deficiency were Britthaven's alleged failure to provide interventions to avoid repeated physical harm from resident to resident altercations (citing Resident 8 and Resident 30) and staff to resident abuse (citing Resident 20); and Britthaven's alleged failure to implement interventions to protect residents from repeated injuries of unknown cause (citing Resident 8). As to these fact patterns, the ALJ stated that they were "for the most part, a restatement of matters covered under Tags F 223, F 225, and F 226," relying on his findings under the other tags for his conclusion in FFCL IV.C that Brittenhaven failed to meet the requirements of section 483.13(c)(1)(i). ALJ Decision at 11.

Britthaven took exception to this FFCL based solely on its arguments related to other tags. Since we reject those arguments elsewhere, we uphold this FFCL without further discussion.

3. The ALJ did not err in concluding that Britthaven failed to investigate and report alleged violations involving mistreatment, neglect or abuse, including injuries of unknown source as required by 42 C.F.R. � 483.13(c). (Tag F 225; CMS Ex. 2, at 14-25; ALJ Decision FFCL IV.D).

[Page 12] Section 483.13(c)(2) of 42 C.F.R. provides -

the facility must ensure that all alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source, . . . . 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).

Section 483.13(c)(3) of 42 C.F.R. provides that the facility "must have evidence that all alleged violations are thoroughly investigated, and must prevent further potential abuse while the investigation is in progress."

Section 483.13(c)(4) of 42 C.F.R. provides --

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 5 working days of the incident, and if the alleged violation is verified appropriate corrective action must be taken.

Under this tag, the ALJ concluded that Britthaven failed to thoroughly investigate, to document, and to properly report to state officials.

(a) Failure to Thoroughly Investigate

The ALJ found Britthaven failed to meet the requirement that it have evidence it conducted thorough investigations of injuries of unknown source for Residents 8, 11, and 15. Thorough investigations are also required by Britthaven's abuse policy (CMS Ex. 16, at 5). Thorough investigations are critical in identifying not only what has happened in a particular incident but also in identifying "patterns and trends that may constitute abuse." State Operations Manual (SOM), App. PP. at F226 IV. As explained below, we conclude that substantial evidence in the record as a whole supports the ALJ's determination.

Britthaven uses a Quality Assurance Reporting Form (QA Reporting Form) to document adverse incidents (such as falls, elopements, and injuries) and its resulting investigations. CMS Ex. 2, at 15. According to Britthaven's Administrator, the investigation results should be written on the back of the form. Id.

[Page 13] Resident 8

The record contains at least 13 QA Reporting Forms for Resident 8 related to injuries between May 21 and August 18. ⁽⁵⁾ CMS Ex. 19, at 46-81. The ALJ discussed two of the injury investigations for Resident 8 identified in the SOD as deficient, one on May 24 and one on June 22. ALJ Decision at 12-13, citing CMS Ex. 2, at 15-16. On appeal, Britthaven asserts that its investigations were not deficient because its "method of investigation was to interview all who witnessed the incident, responded to the incident, or who were on duty in the area at or around the time of the incident." P. Br. at 17.

We reject Britthaven's argument because, as discussed by the ALJ, this described method of investigation is not reflected on the QA forms of May 24 and June 22 (CMS Ex. 19, at 48, 54 ) or on many of the other QA Reporting Forms contained in the record for Resident 8, see e.g., CMS Ex. 19, at 50-53, 68-69, 72-73. As the ALJ found, mere conclusory assumptions about the cause of an injury do not evidence a thorough investigation. Britthaven tries to characterize these situations as ones where the cause was known, but assumptions based solely on a resident's characteristics or past behavior do not constitute knowledge of the cause of an injury that justifies a failure to investigate.

Resident 11

Resident 11 suffered from hemiparesis and dementia. On August 20, 2001, she had unexplained discoloration over her left eye. ALJ Decision at 13, citing CMS Ex. 2, at 20. Britthaven's investigation of this injury, as documented on the QA Reporting Form, consisted of asking Resident 11 why her eye was discolored and concluding that "she does not recall how discolored area appeared under [right] eye." CMS Ex. 20, at 6. The ALJ found this insufficient. ALJ Decision at 13. We agree. In the MDS [Page 14] completed for Resident 13 on August 14, 2001, Britthaven reported that she had both long term and short term memory problems; and that she could not recall the location of her room, staff names or faces, or even that she was in a nursing home. CMS Ex. 20, at 9. The ALJ could reasonably conclude that an investigation limited to asking a memory-impaired person why her eye is bruised is inadequate.

Resident 15

According to a QA Reporting Form dated May 1, 2001, Resident 15 was found to have bruising on the right upper arm and left knee. ALJ Decision, citing CMS Ex. 2, at 24. The cause of these bruises was listed as "unknown." P. Ex. 8, at 1. There were no notes on the form indicating that any inquiry had been made as to the cause of these bruises. Id. Since the facility's policy was to document its investigation on the form, the ALJ reasonably concluded Britthaven had not conducted an investigation into the source of the bruises. Id.

(b) Failure to Report

The ALJ concluded that Britthaven was deficient under sections 483.13(c)(2) and (4) because it did not report allegations of abuse of Residents 20, 12, and 8 or its resulting investigatory findings to State officials. ⁽⁶⁾ ALJ Decision at 13-14.

[Page 15] Britthaven argues that it was only required to report to state officials "in accordance with state law" and that the relevant state law (N.C. Admin. Code tit. 10, r. 3H2210(b)) states: "The administrator shall ensure that the Health Care Personnel Registry Section of the Division of Facility Services is notified within 24 hours or as soon as practicable of all allegations which appear to a reasonable person to be related to patient abuse, neglect or misappropriation of property." Britthaven asserts that the allegations of CNA 2 and 3 as to Resident 20; of CNA 1 and Staff 1 as to Resident 12; and of Staff 1 as to Resident 8 would not "appear to a reasonable person to be related to patient abuse" and, therefore, the ALJ erred when he concluded it had an obligation to report them. P. Br. at 14

We disagree. First, as we explain above, the ALJ reasonably concluded that these incidents constituted abuse and abuse must be reported. Second, the Board has previously held that federal reporting requirements take precedence over state law and require that "[o]nce a facility's preliminary investigation implicates staff, the facility is responsible for notifying the State survey and certification agency." Cedar View Good Samaritan, DAB No. 1897, at 11 (2003), citing 56 Fed. Reg. 48843-48844 (Sept. 26, 1991). We reached this conclusion because Congress gave states and facilities concurrent responsibility for investigating allegations of abuse by staff in long term care facilities. Section 1819(g)(1)(C) of the Act. In order to enable states to fulfill this responsibility, CMS adopted section 483.13(c), which requires facilities to report "all alleged violations." (Emphasis added). Thus, for reporting allegations of abuse to the state, "the salient question is not whether any abuse in fact occurred or whether [a facility] had reasonable cause to believe that any abuse occurred, but whether there was an allegation that facility staff had abused a resident." Cedar View, at 11.

4. The ALJ did not err in concluding that Britthaven failed to implement its written policies and procedures that prohibit mistreatment, neglect, and abuse of residents as required by 42 C.F.R. � 483.13(c). (Tag F 226; CMS Ex. 2, at 14-38; ALJ Decision FFCL IV.E).

On the basis of his findings under Tag F 225 (failure to thoroughly investigate allegations of resident abuse) and Tag F 223 (failure to prevent abuse), the ALJ concluded Britthaven had [Page 16] failed to implement its own policies related to mistreatment, neglect, and abuse of residents. ALJ Decision at 16. Those policies called for investigation, suspension of staff pending investigation, documentation, and reporting. Id. citing CMS Ex. 16, at 5-16. The ALJ discussed the incident involving Resident 20's fingernails as illustrating Britthaven's failure to implement its policies, finding that Britthaven failed to immediately and thoroughly investigate the incident, failed to report the incident to the appropriate State officials, and failed to suspend CNA 1, as required by its abuse policies, pending the outcome of the investigation.

On appeal Britthaven relies on its challenges to the ALJ's conclusions under Tags F 223 and 226, and specifically, to the ALJ's conclusion that CNA 1 cut Resident 20's nails with retaliatory intent. We have rejected those arguments. Therefore, we conclude this FFCL is supported by substantial evidence in the record as a whole.

5. The ALJ did not err in concluding that Britthaven failed to ensure that each resident received adequate supervision and assistance devices to prevent accidents as required by 42 C.F.R. � 483.25(h)(2). (Tag F 324 at CMS Ex. 2, at 44-56; ALJ Decision FFCL IV.F).

The ALJ upheld CMS's citations under this tag for the failure to provide adequate supervision, which resulted in resident to resident altercations, resident injuries, and elopements. ALJ Decision, at 21-23.

Section 483.25(h)(2) provides that a facility "must ensure that . . . each resident receives adequate supervision and assistance devices to prevent accidents." As our prior cases have recognized, a facility's duty to supervise under section 483.25(h)(2) is part of the "quality of care" provision, which requires a facility to ensure that each resident receives "the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care." In Woodstock Care Center v. CMS, DAB No. 1726, aff'd, Woodstock Care Ctr. v. Thompson, 363 F.3d 583 (6^th Cir. 2003), based on the wording and history of this regulation, the Board concluded, "Thus, while the regulations do not make facilities unconditional guarantors of favorable outcomes, the quality of care provisions do impose an affirmative duty to provide services ... designed to achieve those outcomes to the highest practicable degree." DAB No. 1726, at 25. The Sixth Circuit upheld the Board, holding, "The regulations can and do set a higher standard than the common [Page 17] law" (363 F.3d at 590) and a facility must take "all reasonable precautions against residents' accidents." Woodstock Care Ctr. v. Thompson, 363 F.3d at 589 (emphasis in original).

Resident 8

The ALJ found, and Britthaven does not dispute, that from May 30, 2001 through August 2001, Resident 8 engaged in repeated instances of inappropriate behavior. ALJ Decision at 18, citing CMS Ex. 2, at 45-46. The nursing notes reflect that this behavior included taking off his clothes repeatedly, frequently urinating in inappropriate places (including on other residents and in other residents' beds), groping the scrotum and buttocks of residents, screaming loudly, and trying to get into other residents' beds. Additionally, the QA forms show that Resident 8 had multiple falls, skin tears, bruises and resident to resident altercations during this time. Id. citing CMS Ex. 2, at 47-49. Resident 8's care plan called for redirecting the resident when inappropriate behavior occurred. CMS Ex. 19, at 40.

The ALJ concluded that Britthaven had failed to provide Resident 8 with adequate supervision to prevent accidents because Britthaven's strategy of redirection had not proved effective for Resident 8, and Britthaven had failed to adopt alternative interventions. ALJ Decision at 19. He also noted that Britthaven's own abuse policy required the facility to implement strategies for modifying inappropriate or aggressive behaviors. Id. Such behaviors put a resident at risk for accidents since they can provoke other residents to retaliate or to use physical force to protect themselves. For example, the record reflects that on July 22 Resident 8 was slapped by another resident after he tried to take the resident's lunch (CMS Ex. 2, at 48); on July 23 Resident 8 was slapped by another resident after he had been yelling (id. at 4); on August 6 Resident 8 was knocked down by his roommate (id. at 49) ⁽⁷⁾; on August 14, Resident 8 was knocked down by another resident after entering her room (id. at 46); and on August 19 he complained of being punched in the nose (id. at 47).

Britthaven argues that, since Resident 8's inappropriate behavior was cited in the context of an abuse finding, it cannot also be cited as the basis of an accident finding. P. Br. at 21-22. [Page 18] Britthaven's argument misdescribes the findings supporting the abuse citation. The abuse citation is based on Nurse 1's treatment of Resident 8 after he had been hit by Resident 12. The accident citation is based on how the facility dealt with Resident 8's behavior and its potential for harming other residents and provoking other residents to harm Resident 8.

Britthaven argues that it had developed a care plan to deal with Resident 8's problems, that "much thought and deliberation went into evaluating the means for addressing the resident's problem," and that "the nurses notes are replete with documentation of supervision and redirection." P. Br. at 22-23. Britthaven asserts that "all but four of the more than twenty listed incidents used successful redirection." P. Br. at 23. We disagree. The cited four entries are those in which the nurse actually stated that redirection had been ineffective. In contrast, the SOD's long list of incidents demonstrates that supervision and redirection had been repeatedly ineffective in preventing the inappropriate behavior. See CMS Ex. 2, at 45-47. If a facility implements accident prevention measures for a resident but has reason to know that those measures are substantially ineffective, it must act to determine the reasons for the ineffectiveness and consider - and, if practicable, implement - more effective measures. Woodstock, DAB No. 1726, at 28. Thus, Britthaven's arguments do not address the ALJ's conclusion that employing supervision and redirection does not constitute adequate supervision to prevent accidents if these strategies are not preventing the problematic behavior. Given the pattern of behavior over a period of time, Britthaven should have reasonably foreseen the need to do more than it did.

Further, Britthaven did not address the ALJ's findings that it had failed to follow the steps set out in its own abuse policies for helping residents whose behavior poses a threat to themselves and others. ALJ Decision at 19. These included "assessing the possible causes of the behavioral symptoms to determine the necessary changes in the care being provided," "consultation with the resident's attending physician," and "referral to a psychiatrist or psychologist." Id. citing CMS Ex. 16, at 3. Therefore, we conclude substantial evidence in the record as a whole supports the ALJ's finding that the facility failed to adequately supervise Resident 8.

Resident 30

Resident 30 was admitted to Britthaven with profound dementia in February 2001. ALJ Decision at 19. In March, he was moved to the SPARK Unit because of wandering and inappropriate behavior. [Page 19] CMS Ex. 2, at 50; CMS Ex. 27, at 6. His March 2001 Behavior Symptoms Resident Assessment Protocol (RAP) indicated that Resident 30 was on psychotropic medicine due, in part, to physical and verbal abuse caused by him, and was at risk for harming himself or his peers. ALJ Decision at 20, citing CMS Ex. 27, at 52. His care plan completed June 2001 indicated that he was at risk for injury to himself and to others and was physically abusive towards staff. CMS Ex. 27, at 17-19; ALJ Decision at 19. On July 30, nurses notes documented his "cursing, pushing [and] threats to 'knock your head off.'" CMS Ex. 27, at 12; ALJ Decision at 19. On August 6, the nurses notes again described verbal aggression; staff tried "to redirect resident . . . [without] success." CMS Ex. 27, at 11; ALJ Decision at 20. On August 20, Resident 30 had a verbal altercation with another resident and was redirected and given Haldol at 7:25 p.m. At 7:55, without provocation, he struck the other resident with his fist, breaking the skin on his left inner eyebrow. CMS Ex. 27, at 9, 11; ALJ Decision at 20. No new interventions were added to his care plan and facility staff stated no new interventions had been put in place to deal with further aggression. ALJ Decision at 20, citing CMS Ex. 2, at 50-51.

Britthaven argues that, until "the first physical altercation, Petitioner was not put on notice that this resident's behavior would escalate to the point of violence." P. Br. at 25-26. We disagree. The ALJ reasonably concluded that Britthaven should have foreseen the likelihood that the resident could become physically aggressive, given the incident of July 30 and the fact that Britthaven had documented in the March RAP and the June care plan that the resident could pose a threat to others.

Additionally, Britthaven's response does not address that ALJ's findings about its actions after the August 20 incident. As the ALJ pointed out, the facility's social worker interviewed Resident 30 on August 22, concluded he was a pleasant man, and noted no concerns. ALJ Decision at 20, citing CMS Ex. 2, at 51. The ALJ could reasonably conclude that this response, and the facility's undisputed failure to adopt new interventions after the August 20 incident, show that Britthaven was not taking steps to ensure that Resident 30 received adequate supervision to prevent him from again assaulting a resident or from provoking other residents to assault him and had no system for implementing interventions when resident behavior deteriorated.

[Page 20] Resident 28

Resident 28 was admitted to the facility on June 23, 2000 with diagnoses that included dementia. ALJ Decision at 21, citing CMS Ex. 2, at 52. Because she exhibited wandering behavior and had previously eloped from the facility, at least as of July 2000 she was sent to the locked SPARK Unit between 7 a.m. to 9 p.m. Id.; CMS Ex. 26, at 27. On August 4, 2001, according to the nurses notes, Resident 28 opened and crawled out of a window in the SPARK Unit and wandered from the building. CMS Ex. 26, at 50. On July 28, August 7, and August 9, according to the nurses notes, Resident 28 threw chairs through windows in the SPARK Unit in unsuccessful attempts to leave the facility. Id. at 49-50.

The ALJ determined that the evidence supported a finding that Resident 28 had repeatedly eloped from the facility, even after her move to the SPARK Unit, and that these elopements demonstrated that she was receiving inadequate supervision. ALJ Decision at 21-21. On appeal, Britthaven challenges some of the evidence on which the ALJ relied and argues the record does not support a finding that Resident 28 successfully eloped after she was moved to the SPARK Unit. P. Br. at 26-27.

We disagree. Even if we discount the evidence Britthaven challenges, the nurses note clearly shows Resident 28 eloped through a window of the SPARK unit on August 4, 2001. Additionally, the Social Progress notes and Interdisciplinary Care Plan notes dated January 2, 2001 state that, while there had been no recent episodes of wandering, Resident 28 had left the facility two times that quarter. CMS Ex. 26, at 27, 33. Further, Resident 28's care plan called for staff to "monitor for residents whereabouts at all times." CMS Ex. 26, at 35. The fact that the resident was able to elope from the locked dementia unit by opening and crawling out of a window and to break three windows by throwing chairs indicates that she was not being monitored pursuant to her plan.

Additionally, as the surveyor noted and the record demonstrates, Britthaven's response to the incidents of July and August was inadequate in that it produced no incident reports as to the July 28 and August 4 events, and failed to describe any of these behaviors on the behavior sheet, which included as a targeted behavior "trying to leave facility." CMS Ex. 2, at 53; see P. Ex. 11, at 20, 22. Failure to adequately document raises the risk that subsequent care planning will not be fully informed. For example, neither of the QA Reporting Forms for the incidents of August 7 and August 9 reflects the events of July 28 or August 4, and both conclude that it is not necessary to revise Resident [Page 21] 28's plan of care. P. Ex. 11, 2-5. Finally, there is no indication in the record that effective interventions were adopted to address the fact that, as of the end of July 2001, Resident 28 had resorted to new and dangerous behavior in trying to elope.

Resident 7

Resident 7 had a diagnosis of cerebral vascular accident and had problems with long and short term memory. ALJ Decision at 22. She was totally dependent for transfer and was mobile with a wheelchair, only with supervision. Id. On August 5, 2001, Resident 7 was found outside the building in the parking lot. CMS Ex. 18, at 4. On August 25, 2001, Resident 7 eloped from the facility and was found in a wheelchair on a sidewalk by the side of the building. She had blood on her wrist but refused to be examined. ALJ Decision at 22, citing CMS Ex. 2, at 54. On August 26 she eloped and was found near the roadway; on August 28, she eloped and was found on the sidewalk by the facility. Id.

Despite the fact that Resident 7 eloped four times in one month and three times in four days, Britthaven argues that the ALJ erred in concluding she was not receiving adequate supervision. Britthaven points out that, because she was being monitored closely, she did not get very far in her elopements and that new interventions were added with each elopement. The only evidence Britthaven cites in support of these assertions is an August 26 nurses note stating that the staff continues to monitor Resident 7's whereabouts and redirect from exits every 15 minutes. P. Br. at 27, citing P. Ex. 3, at 20. ⁽⁸⁾

The ALJ's determination is supported by substantial evidence in the record as a whole. Resident 7 eloped repeatedly in August 2001. Further, as the ALJ pointed out, the fact that Resident 7 did not get far does not mean she was not exposed to serious harm or even death. For example, once she was found in the parking lot and once near the roadway. Both locations exposed her to danger from cars.

[Page 22] 6. The ALJ did not err in concluding that Britthaven was not in substantial compliance with the administration requirement at 42 C.F.R. � 483.75. (Tag 490 at CMS Ex. 2, at 58-59; ALJ Decision FFCL IV.H).

Section 483.75 requires that "a facility must be administered in a manner that enables it to use its resources effectively and efficiently to attain the highest practicable physical, mental, and psychosocial well-being of each resident." The ALJ concluded that there was a nexus or connection between the deficiencies found under Tags 223, 225, 226, and 324 and Britthaven's noncompliance with 42 C.F.R. � 483.75. ALJ Decision at 26-27.

Britthaven relies on Heritage Manor of Columbia, DAB No. CR995 (2003), which holds that "noncompliance with other requirements is not, in and of itself, sufficient to establish an overall failure by [a facility] to comply with applicable administration requirements." Britthaven argues there is no connection or nexus between the noncompliance findings related to abuse, investigation, reporting, implementation of policies, and supervision and the administration noncompliance finding. P. Br. at 28.

We disagree. The ALJ reasonably inferred that there were "systemic flaws in facility administration" because Britthaven had failed to properly investigate allegations of abuse and injuries of unknown origin, failed to retain evidence of some investigations, failed to use its resources to follow its written policies concerning resident abuse, and failed to provide adequate supervision. He reasonably concluded, "These deficiencies denote the absence of aggressive administration of facility resources directed at providing for the well-being of its residents." ALJ Decision at 27.

7. The ALJ did not err in concluding that CMS's finding of immediate jeopardy was not clearly erroneous. (ALJ Decision FFCL IV.J).

The ALJ sustained CMS's finding of immediate jeopardy as to Tags 223, 225, 226, and 324. The regulations define immediate jeopardy as "a situation in which the provider's noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident." 42 C.F.R. � 488.301. Immediate jeopardy does not require "a finding of present harm, but also encompasses a situation that is [likely to cause] harm." Hermina Traeye Memorial Nursing Home, DAB No. 1810, at 10 (2002), aff'd Sea Island Comprehensive Healthcare Corp. v. U.S. Dept. of Health & [Page 23] Human Services, 79 Fed.Appx. 563, 2003 WL 22451772 (4^th Cir. Oct. 29, 2003).. CMS's determination of immediate jeopardy must be upheld unless it is clearly erroneous. 42 C.F.R. � 498.60(c)(2).

The ALJ explained how the evidence before him showed that the deficiencies at issue were likely to cause serious injury, harm, impairment, or death. ALJ Decision at 29-30. On appeal, Britthaven raises the same arguments that the ALJ addressed in his decision. For the reasons set forth by the ALJ, we do not find them persuasive.

8. The ALJ did not err in concluding that the amount of the CMP was reasonable. (ALJ Decision FFCL IV.K).

CMS imposed a CMP of $5,000 per day from August 24, 2001 through August 29, 2001. As a basis for finding this amount not unreasonable, the ALJ relied on the severity of the deficiencies and the facility's culpability. He cited his findings that the circumstances surrounding the deficiencies demonstrated a systematic failure to prevent, investigate, and report abuse and to prevent elopements and concluded that staff had displayed a crass disregard for the dignity of residents. ALJ Decision at 30.

Britthaven asserts that its prior compliance history is excellent, that the deficiencies were not so serious as to warrant this amount, and that its culpability was de minimis. P. Br. at 31.

We first note that $5,000 is significantly less than the $10,000 maximum applicable to immediate jeopardy situations. Moreover, even though the ALJ did not uphold all of the survey findings, the evidence does support his finding that the facility had systemic problems both in implementing policies to prevent, investigate and report abuse and in providing adequate supervision for residents. Britthaven did not cite to any support for its assertion about its prior compliance history, and we agree with the ALJ that the facility's culpability, in some respects, went beyond mere neglect.

Conclusion

For the reasons explained above, we affirm the ALJ Decision.

Donald F. Garrett

Cecilia Sparks Ford

Judith A. Ballard
Presiding Board Member

1. Because Part 488 is related to Part 483 and because "abuse" is not separately defined for purposes of Part 483, the Board has relied on this definition in cases involving alleged noncompliance with section 483.13(b). Western Care Management Corporation, d/b/a Rehab Specialities Inn, DAB No. 1921 (2004); Beverly Health and Rehabilitation Center - Williamsburg, DAB No. 1748 (2000).

2. We transcribe the statements from staff without correcting any errors in spelling or grammer.

3. The ALJ did not rely on the statements from CNA 2 and 3. ALJ Decision at 7. For the reasons discussed above, we conclude that they are reliable evidence of retaliatory intent.

4. On appeal, Britthaven asserts that Nurse 1 "specifically denied making any statement to Resident # 8" about his yelling and being slapped, but Britthaven does not support this assertion with a record cite. P. Br. at 10. Similarly, in the brief before the ALJ, Britthaven failed to cite to any evidence which would support this assertion. P. Br. before the ALJ at 11-12.

5. As the SOD noted, Britthaven identified no QA Reporting Forms for the events of July 23, 2001, which began with Resident 12 slapping Resident 8. The Assistant Director of Nursing was called the night of July 23 in relation to these events. CMS Ex. 2, at 18. On July 24, Staff 1 submitted a statement reporting that Nurse 1 said to Resident 12 "why don't you slapp me" and then said to Resident 8 to "stop yelling before someone comes and slaps your face again." Id. However, the Administrator told the surveyor that "she was aware of the incident but had lost the paper work to the investigation and her findings [and] had not reported [the incident] to any state agency." Id.

6. The ALJ also concluded Britthaven was deficient because it did not report all injuries of unknown source to State officials. ALJ Decision at 13. The ALJ wrote:

The regulation requires all injuries of unknown source to be reported immediately to the State survey agency. 42 C.F.R. � 483.13(c)(2). The regulation leaves no room for discretion not to report, even if the facility does not suspect abuse.

Id. (emphasis in original). As discussed in the body of the decision, however, the discussion of section 483.13(c)(2) in the preamble to the final rule states: "Once a facility's preliminary investigation implicates staff [of a violation of rights established by subsections (a) and (b)], the facility is responsible for notifying the State survey and certification agency." Thus, while section 483.13(c)(3) requires a facility to do a thorough investigation of injuries of an unknown source, Britthaven could reasonably conclude that it was not required to report the injuries of unknown source to the State agency unless its preliminary investigation implicated staff.

7. Britthaven did change Resident 8's roommate after this incident but this change did not address his continuing behavior that was resulting in repeated accidents and altercations. CMS Ex. 2, at 49-50.

8. Britthaven also challenges the surveyor's assertion that the staff told her the facility's doors outside the SPARK unit were not locked and no doors were alarmed. P. Br. at 27 (referring to CMS Ex. 2, at 55.) However, Britthaven cites no evidence to support this assertion. Additionally, the ALJ appears to have accepted Britthaven's assertions as to alarms. ALJ Decision at 23.