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CASE | DECISION |JUDGE | FOOTNOTES

Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
IN THE CASE OF  


SUBJECT:

Vandalia Park,

Petitioner,

DATE: December 09, 2003
                                          
             - v -

 

Centers for Medicare & Medicaid

 

Docket No.C-02-631
Decision No. CR1120
DECISION
...TO TOP

DECISION

I sustain imposition of the following remedies against Petitioner, Vandalia Park:

� A per instance civil money penalty of $3,400;

� Civil money penalties of $3,050 per day for each day of a period that began on March 24, 2002 and which continued through April 21, 2002;

� Civil money penalties of $750 per day for each day of a period that began on April 22, 2002 and which continued through May 30, 2002;

� Denial of payment for new Medicare admissions for each day of a period that began on April 27, 2002 and which continued through May 30, 2002; and

� Prohibition against offering or conducting a Nurse Aide Training and Certification Education Program (NATCEP) for a two-year period beginning on April 9, 2002.

I do not sustain imposition of an additional per instance civil money penalty of $6,600 that the Centers for Medicare & Medicaid Services (CMS) seeks to impose against Petitioner.

I. Background

Petitioner is a skilled nursing facility that is located in Vandalia, Ohio. It participates in the Medicare program. Its participation in Medicare is governed by sections 1819 and 1866 of the Social Security Act and by federal regulations at 42 C.F.R. Parts 483 and 488.

These consolidated cases arise from two hearing requests by Petitioner to challenge deficiency findings that were made at surveys of Petitioner that were completed on April 9, 2002 (April 9 survey) and April 30, 2002 (April 30 survey). CMS determined to impose remedies against Petitioner based on these findings. Petitioner's hearing requests were docketed by the Civil Remedies Division of the Departmental Appeals Board as Docket Nos. C-02-631 and C-02-763. (1) I consolidated these requests and I conducted an in-person hearing in the consolidated cases on July 1, 2003 at Dayton, Ohio. At the hearing I received into evidence from the parties exhibits consisting of the following:

� From CMS, exhibits which I identified as CMS Ex. 3 - CMS Ex. 15, CMS Ex. 17, CMS Ex. 41 - CMS Ex. 44, CMS Ex. 46 - CMS Ex. 74, CMS Ex. 76 - CMS Ex. 79, CMS Ex. 87 - CMS Ex. 93, CMS Ex. 95, CMS Ex. 97 - CMS Ex. 123, and CMS Ex. 125 - CMS Ex. 128.

� From Petitioner, exhibits which I identified as P. Ex. 1 - P. Ex. 2, and P. Ex. 4 - P. Ex. 11.

I rejected Petitioner's proffer of exhibits which I identified as P. Ex. 12 - P. Ex. 23. Tr. 24 - 32.

II. Issues, findings of fact and conclusions of law

A. Issues

At the April 9 survey the surveyors concluded that Petitioner manifested five distinct failures to comply substantially with Medicare participation requirements. CMS Ex. 3. At the April 30 survey the surveyors found that Petitioner manifested two failures to comply substantially with Medicare participation requirements. CMS Ex. 4.

The surveyors who conducted the April 9 survey concluded that, of the five deficiencies that they identified at that survey, one of them - described at Tag 223 of the April 9 survey report - justified imposition of a $6,600 per instance civil money penalty against Petitioner. CMS's post-hearing brief at 2. CMS determined to impose a second per instance civil money penalty of $3,400 against Petitioner for an additional deficiency that is described at Tag 225 of the April 9 survey report. Id. CMS did not impose remedies to address the other three deficiencies that were cited in the report. See Id; see also CMS Ex. 3, at 11 - 16. (2)

The surveyors who conducted the April 30 survey concluded that one of the two deficiencies that they identified in the report of that survey was at the immediate jeopardy level. This deficiency is identified at Tag 324 of the April 30 survey report. CMS's determination to impose civil money penalties of $3,050 per day against Petitioner for a period that ran from March 24, 2002 through April 21, 2002 is based on this immediate jeopardy level deficiency finding. CMS's post-hearing brief at 2. CMS's determinations to impose additional remedies against Petitioner, including denial of payment for new Medicare admissions and loss of nurse aide training, are based on the deficiency findings made at the April 30 survey.

The issues in these cases are whether:

1. Petitioner manifested deficiencies as is alleged in the report of the April 9 survey;

2. Petitioner manifested deficiencies as is alleged in the report of the April 30 survey;

3. CMS may impose civil money penalties against Petitioner in the amounts and for the duration that CMS determined to be reasonable; and

4. CMS is authorized to impose additional remedies against Petitioner including denial of payment for new Medicare admissions and loss of authority to conduct NATCEP.

B. Findings of fact and conclusions of law

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

In summary, my Findings are as follows. The evidence that CMS offered as to the alleged sexual abuse of Petitioner's residents by two of Petitioner's employees is not sufficiently persuasive to establish a prima facie case that Petitioner allowed residents of its facility to be abused sexually (Finding 1). I find no basis for CMS to impose a $6,600 per instance civil money penalty against Petitioner (Finding 2). However, Petitioner failed to comply with its own policy for investigating allegations of abuse of its residents (Finding 3). Consequently, there is a basis for CMS to impose a per instance civil money penalty for that deficiency. A penalty of $3,400 is a reasonable remedy for Petitioner's failure to implement its policy (Finding 4).

Petitioner manifested a deficiency beginning March 24, 2002 consisting of its failure to provide adequate supervision to residents of its facility to prevent accidents (Finding 5). CMS' finding that this deficiency was at the immediate jeopardy level during the March 24 - April 21, 2002 period is not clearly erroneous, and is, moreover, supported by the weight of the evidence (Finding 6). Civil money penalties of $3,050 per day for each day of the period are reasonable as a matter of law (Finding 7). Petitioner manifested a second, non-immediate jeopardy level deficiency, as of the April 30, 2002 survey consisting of its failure to provide medically-related social services to residents (Finding 8).

Petitioner did not prove that it corrected fully the deficiencies that were identified at the April 30 survey prior to May 30, 2002. Therefore, CMS is authorized to impose remedies, including civil money penalties, against Petitioner for dates up to and including May 30, 2002 (Finding 9). The civil money penalty amounts of $750 per day that CMS determined to impose beginning on April 22, 2002, the day when CMS found immediate jeopardy to have been abated, and continuing through May 30, 2002, are reasonable (Finding 10). CMS is authorized to impose additional remedies against Petitioner including denial of payment for new Medicare admissions and loss of authority to conduct NATCEP (Finding 11). I deny Petitioner's arguments as to the burden of persuasion and the fairness of the hearing (Finding 12).

1. CMS did not establish a prima facie case that Petitioner allowed its residents to be abused sexually.

At Tag 223 of the April 9 survey report the surveyors alleged that Petitioner failed to comply with the requirements of 42 C.F.R. � 488.13(b). The regulation provides that a resident of a facility is entitled to be free from abuse including sexual abuse. The report, and CMS, allege that Petitioner allowed its residents to be abused sexually by members of Petitioner's staff between September 2001 and February 14, 2002.

"Abuse" is defined at 42 C.F.R. � 488.301 to be:

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

The parties do not dispute that the conduct alleged at Tag 223 of the April 9 survey report would satisfy this definition if it occurred.

CMS relies on the following allegations to support the contention that Petitioner allowed sexual abuse of its residents to occur:

� In September 2001 a male nurse aide, identified as S.O., allegedly was observed by Janet Saunders, another nurse aide employed by Petitioner, to be sexually abusing a resident, identified as Resident # 6. The resident is a totally dependent, quadriplegic woman, who suffers from mental deficiencies and who is unable to speak. CMS Ex. 4, at 22 - 23. Allegedly, on the day in question, Ms. Saunders walked into Resident # 6's room to witness S.O. leaning with his right hand around the resident's pubic area or clitoris. Tr. At 53, 58, 80. (3) Ms. Saunders allegedly demanded of S.O. to explain what he was doing and S.O. asserted that he was "changing" the resident. Tr. at 55. Ms. Saunders observed that S.O. was not wearing gloves. Tr. at 54. This, according to Ms. Saunders, violated Petitioner's protocol for changing and cleaning residents. Id.

� On February 11, 2002, a female resident, who is identified as Resident # 124, alleged to Petitioner's staff that she had been sexually assaulted by a male nurse aide, identified as C.S. She alleged that C.S. "had gotten on top of her 'and put his thing inside her private area'." CMS Ex. 56, at 11. Allegedly, Resident # 124 wanted to resist but was unable to do so. Id.

� On February 14, 2002, Resident # 124 complained to two members of Petitioner's staff that S.O. had sexually abused her. Allegedly, she asserted that S.O. "put the pad up against my ass and . . . was all touchy feely." CMS Ex. 61, at 1; CMS Ex. 63, at 1. Later on February 14, 2002, Resident # 124 complained to Petitioner's social worker that S.O. had "put his finger inside her private area while she was lying down in bed last night." CMS Ex. 56, at 13.

� On February 14, 2002, a female resident, who is identified as Resident # 141, complained to a nurse aide that she had been sexually abused by S.O. on the previous evening. Allegedly, the resident asserted "that man last night put his hands all up inside me . . . ." CMS Ex. 61, at 1.

I find this evidence insufficient to establish a prima facie case that Petitioner allowed its residents to be abused. Ms. Saunders' observation of S.O.'s interaction with Resident # 6 is less than compelling evidence that he sexually abused the resident. The allegations of Residents #s 124 and 141 are hearsay and not reliable.

The principal problem with Ms. Saunders' observation of S.O.'s interaction with Resident # 6 is that it is easily susceptible to more than one interpretation. Assuming Ms. Saunders' observation to be honest and accurate it is nevertheless impossible to infer from it exactly what S.O. was doing with the resident. Conceivably, he could have been in the process of sexually abusing the resident when he was observed by Ms. Saunders. But, equally likely, he could have been cleaning the resident and changing her diaper. A nurse aide could not provide such care without placing his or her hands near or on the resident's genital area. Tr. at 81. The fact that S.O. was observed by Ms. Saunders to have placed his bare hand on the resident's pubic area is not enough to support the conclusion that he was doing something improper. As Ms. Saunders conceded, she sometimes changed residents' diapers without using gloves. Tr. at 72, 76 - 77.

Aspects of Ms. Saunders' testimony appear to be inconsistent with her allegation that S.O. sexually abused Resident # 6. Rather, they tend to be consistent with a conclusion that S.O. was in fact cleaning the resident. Ms. Saunders testified that, when she observed S.O. allegedly engaged in sexual abuse of Resident # 6, she asked him "what the hell he was doing." Tr. at 55. According to Mrs. Saunders S.O. didn't respond for a moment but then simply asserted that he was changing the resident. Id. Ms. Saunders didn't observe S.O. to be startled. And, in fact, S.O. continued to interact with the resident while Ms. Saunders remained in the room briefly while checking on another resident. This observed behavior by S.O. is inconsistent with a guilty reaction to being caught in the act of committing sexual abuse.

Furthermore, Ms. Saunders' recitation of what she saw is less than credible. With the passage of time she changed significantly her account of S.O.'s interaction with Resident # 6. See P. Ex. 10, at 5 - 8; Tr. at 53, 56, 79 - 80.

CMS contends that there is corroboration for Ms. Saunders' account which makes believable the allegations of sexual abuse of Resident # 6 by S.O. I disagree with this contention. CMS has not produced any witness other than Ms. Saunders who was present when S.O. allegedly perpetrated sexual abuse against Resident # 6. Nor has CMS produced any physical evidence which might corroborate Ms. Saunders' allegations. The "corroboration" asserted by CMS consists of proof that Ms. Saunders related to other employees of Petitioner her alleged observations of the interactions between S.O. and Resident # 6. Specifically, CMS contends that Ms. Saunders related her observations to Petitioner's director of nursing and to a co-worker. However, evidence of Ms. Saunders' relating of her observations to others does not corroborate her observations or her conclusions. It merely proves that she related her observations to more than one individual.

CMS asserts additionally that S.O.'s alleged sexual abuse of Resident # 6 is corroborated by the fact that three other residents of Petitioner's facility complained early in 2001 that S.O. touched them inappropriately. I do not find these allegations to be corroboration of S.O.'s alleged sexual abuse of Resident # 6 in September 2001. The earlier complaints do not appear to have been substantiated. More important, they do not provide evidence from which I can infer that S.O. was engaged in improper behavior when he was observed by Ms. Saunders because, as I explain above, the behavior that Ms. Saunders witnessed was consistent with an appropriate discharge of duties by S.O. (4)

The allegations of sexual abuse made by Residents #s 124 and 141 are not credible because they consist of uncorroborated hearsay evidence. None of these residents' allegations was witnessed by another individual. No physical evidence supports their contentions.

The fact that I admitted these hearsay allegations into evidence does not make them credible. As I discussed in some detail in Heritage Manor of Columbia, DAB CR995 (2003), and in other decisions, there is no rule against the admission of hearsay evidence in hearings involving CMS. I admit hearsay because, in administrative hearings where there is no jury, it is not likely that the evidence will prejudice the fact-finder. But, that is not to say that hearsay evidence should be afforded any greater credibility in these proceedings than it is afforded under federal or State evidence rules where it is routinely excluded.

Moreover, there is at least some reason to doubt the credibility of the two residents' allegations. Both of these residents have diagnoses of mental illnesses which suggest that their assertions might not be accurate. Resident # 124 has diagnoses of schizophrenia and dementia. CMS Ex. 55, at 1. Resident # 141 has a history of mental illness. CMS Ex. 57, at 1.

CMS contends that there is substantial corroborating evidence to support its assertion that S.O. sexually abused Residents #s 124 and 141. But, in fact, CMS does not identify anything that corroborates the residents' allegations. The evidence that CMS relies on consists in part of a statement by one of Petitioner's employees in which she asserts that she is upset by allegations of sexual abuse by Resident # 124 because they "could be true." CMS Ex. 61, at 1 - 2. That is not corroboration but consists only of the impressions of an individual who witnessed nothing that is relevant. Additionally, CMS asserts that corroboration exists in the fact that Residents #s 124 and 141 made similar complaints about S.O. and that these allegations are part of a pattern of similar allegations about S.O.'s behavior with residents. But, the fact is that the allegations made by these residents are unsubstantiated. They are not made credible by virtue of the fact that they are similar.

2. There is no basis to impose a $6,600 per instance civil money penalty against Petitioner.

As I discuss above, CMS determined to impose a $6,600 per instance civil money penalty against Petitioner as a remedy for Petitioner's alleged failure to prevent residents from being sexually abused. I find that there is no basis for this remedy inasmuch as CMS has not established a prima facie case that Petitioner allowed sexual abuse to occur at its facility.

3. CMS established a prima facie case, which Petitioner did not rebut, that Petitioner failed to thoroughly investigate allegations of sexual abuse.

Although the evidence in this case does not support a conclusion that Petitioner allowed its residents to be abused sexually, it does support a finding that Petitioner failed to treat allegations of sexual abuse with the seriousness that is required by its own policies and by governing regulations.

At Tag 225 of the April 9 survey report the surveyors alleged that Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.13(c)(1)(ii). This regulation provides, in relevant part, that all alleged abuse violations are thoroughly investigated. CMS alleges also that Petitioner failed to comply with the more general requirement of 42 C.F.R. � 483.13(c), which requires that a facility develop and implement written policies that prohibit abuse of residents.

CMS introduced credible prima facie evidence to show that Petitioner failed to investigate thoroughly allegations of abuse consistent with the requirements of the regulation and Petitioner's anti-abuse policy. The evidence relied on by CMS includes the following:

� Petitioner's policy concerning abuse allegations provides that accusations of abuse are to be fully investigated, that law enforcement officials will be notified about any abuse complaints, and that, where abuse is alleged, a request for a physical examination will be made to a physician to determine whether evidence of abuse exists. CMS Ex. 74, at 3 - 4.

� There is nothing in the record to prove that Petitioner promptly referred to a physician any of the residents (Residents #s 6, 124, and 141) who were reported or who claimed to have been abused for an examination in order to determine whether there was physical evidence to corroborate the abuse allegations. An examination was made eventually of Resident # 6. However, that examination took place in March 2002, more than six months after the resident allegedly was abused by S.O. CMS Ex. 3, at 1.

� There is nothing in the record to prove that Petitioner ever notified law enforcement personnel about the allegations of abuse that were made about or by Residents #s 6, 124, and 141.

The foregoing evidence is strong prima facie proof that Petitioner failed to comply with its own anti-abuse policy and with regulatory requirements. The evidence offered by CMS demonstrates that Petitioner's policy explicitly required it to take clearly defined steps in the event of an abuse complaint. Petitioner simply failed to take these steps.

Petitioner's failure to follow through becomes more egregious when considered in the context of the allegations of sexual abuse that were being made by staff and residents at Petitioner's facility. When viewed from the vantage point of hindsight these allegations were insufficient to prove that sexual abuse occurred. Finding 1. But, they were certainly sufficient to warn Petitioner's management that there was a potentially serious problem - a possible pattern of sexual predation against residents by one or two members of Petitioner's staff - occurring at Petitioner's facility. Petitioner's management could not possibly have known when the complaints were being voiced whether or not these complaints had substance. It was urgent that Petitioner implement its policy and promptly and thoroughly investigate the complaints. The prima facie evidence offered by CMS shows that Petitioner failed to treat the complaints with anything approaching the urgency that they deserved.

Petitioner did not rebut CMS's prima facie evidence. Petitioner avers that: "All allegations involving neglect or abuse were timely and thoroughly investigated by . . . [Petitioner]." Petitioner's post-hearing brief at 13. But, Petitioner has not offered credible evidence to substantiate this contention.

Petitioner asserts that allegations of abuse of Resident # 6 in September 2001 were not reported to Petitioner's administrator until "at least" February 2002. Petitioner introduced affidavits by its former director of nursing and by its former administrator to support this assertion. P. Ex. 10, at 18 - 24, 33 - 36. The affiants aver that, contrary to Ms. Saunders' allegations, they were not told by her in September 2001 or thereafter about the alleged sexual abuse of Resident # 6 by S.O.

I will assume the affiants' assertions to be true for purposes of deciding this case. But, while their declarations may explain why Petitioner did not promptly investigate the allegations that were made concerning the interactions between S.O. and Resident # 6 in September 2001, they fail to explain Petitioner's inaction with respect to the allegations of abuse made by Residents #s 124 and 141 in February 2002. Specifically, they do not explain - and Petitioner has offered no other evidence to explain - why Petitioner did not follow its policy and promptly report Resident # 124's allegations of rape to the police or have her examined by a physician for physical evidence of rape. Nor do they explain why the other allegations of sexual abuse by Residents #s 124 and 141 were not addressed quickly and seriously by Petitioner's management.

4. CMS is authorized to impose a per instance civil money penalty against Petitioner for its failure to comply substantially with the requirements of 42 C.F.R. �� 483.13(c) and 483.13(c)(1)(ii). A per instance civil money penalty of $3,400 is a reasonable remedy for such noncompliance.

CMS may impose a civil money penalty against a facility either for the number of days during which the facility fails to comply substantially with a participation requirement or requirements or for each instance in which a facility fails to comply substantially with a participation requirement or requirements. 42 C.F.R. � 488.430(a). CMS determined to impose a per instance civil money penalty here. A basis for that penalty exists in Petitioner's noncompliance with the requirements of 42 C.F.R. �� 483.13(c) and 483.13(c)(1)(ii).

The penalty amount that CMS determined to impose, $3,400, is within the range of $1,000 to $10,000 that CMS may impose for each instance of noncompliance. 42 C.F.R. � 488.438(a)(2). The question remains, however, whether this specific amount is reasonable.

The penalty is reasonable based on consideration of the factors for determining penalty amounts set forth at 42 C.F.R. �� 488.438(f) and 42 C.F.R. � 488.404 (incorporated by reference into 42 C.F.R. � 488.438(f)(3)). In particular, the seriousness of the deficiency is in and of itself sufficient to justify a $3,400 per instance civil money penalty. There was a serious potential for harm resulting from Petitioner's failure to investigate thoroughly the allegations of abuse made by Residents #s 124 and 141 in February 2002.

The allegations of abuse, on their face, suggested that a sexual predator was at large in Petitioner's facility. The alleged victims of these allegations were individuals who clearly were helpless to fend off the advances of a predator. These residents depended on staff to provide them with the daily necessities of life, including cleaning them and changing their diapers. They were incredibly vulnerable to sexual abuse and Petitioner's staff and management should have been vigilant, if not hyper-vigilant, to any allegations of abuse. Their failure to act quickly and responsively to the allegations that were made by the residents potentially posed grave dangers to these residents' safety and well-being.

5. Beginning March 24, 2002 Petitioner failed to ensure that each of its residents received adequate supervision to prevent accidents.

At Tag 324 of the report of the April 30 survey the surveyors alleged that, beginning with March 24, 2002, Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.25(h)(2). CMS Ex. 4, at 4 - 13. This regulation requires that a facility ensure that each of its residents receives adequate supervision and assistance devices to prevent accidents.

The regulation has been the subject of much administrative litigation and the compliance standards imposed by the regulation are well-established. It has been interpreted as not imposing a strict liability standard on a facility. A facility is not responsible for preventing accidents that are unforeseeable. However, a facility must take all steps within its power to prevent residents from sustaining accidents that are reasonably foreseeable. Woodstock Care Center, DAB No. 1726 (2000). A facility must provide supervision and assistance devices to protect against hazards that it knows about, but also must protect against hazards that it should know about. JFK Hartwick at Edison Estates, DAB CR840 (2001).

CMS contends that Petitioner failed to comply with the requirements of 42 C.F.R. � 483.25(h)(2) in not providing adequate supervision to residents of its "behavioral unit." CMS Ex. 102, at 2. The unit was created by Petitioner to house residents who manifested behaviors which created a potential for harm, either to themselves or to other residents. CMS Ex. 120, at 1. To support its contention CMS relies on the following:

� One of Petitioner's residents, who is identified as Resident # 156, had a long history of engaging in violent behavior directed at other residents. CMS Ex. 116, at 39 - 40. Episodes included instances where the resident hit or kicked other residents or struck other residents with objects. Id.

Petitioner's staff recognized that Resident # 156 posed a hazard for other residents and in December 2000 developed a care plan which was intended to address them. CMS Ex. 116, at 24 - 25.

� However, the resident continued to engage in physically violent behavior directed at other residents. In April 2001 the resident struck another resident. CMS Ex. 116, at 26. This episode prompted Petitioner's staff to amend Resident # 156's care plan on May 1, 2001. Id. at 25.

� However, the resident continued to engage in physically violent behavior. The resident engaged in violent acts in June, September, and October 2001. CMS Ex. 116, at 29, 32, 35. In response, Petitioner's staff created an additional care plan for the resident on November 16, 2001. CMS Ex. 116, at 22 - 23.

� The May 1, 2001 care plan and the November 16, 2001 care plan essentially provided for the same interventions to deal with the resident's propensity for violent outbursts. Each of them specified that Petitioner's staff would use appropriate Crisis Prevention Institute interventions to deal with Resident # 156. The Crisis Prevention Institute program is a training program that is designed to teach staff how to deal with violent residents. CMS Ex. 101, at 3; CMS Ex. 119, at 1, 2, 4, 7, and 8.

� After November 16, 2001, the resident continued to perpetrate assaults that endangered the safety of other residents. On December 16, 2001, the resident attempted to trip another resident. CMS Ex. 116, at 2. On February 25, 2002, Resident # 156 again attempted to trip another resident. Id. at 5. On February 26, 2002, the resident attempted to pull another resident to the floor by yanking on the resident's suspenders. Id. On March 11, 2002, the resident hit another resident. Id. at 9. On March 14, 2002, Resident # 156 caused another resident to trip and fall by kicking her in the leg. Id. at 10.

� On March 24, 2002, Resident # 156 kicked another resident, identified as Resident # 157, causing Resident # 157 to fall to the floor. CMS Ex. 116, at 13. Resident # 157 sustained a broken hip as a consequence of this incident and died several days later. Id. at 23.

� After March 24, 2002, Resident # 156 continued to engage in violent behavior. The resident attempted to hit other residents twice on April 1, 2002. CMS Ex. 116, at 15. On April 20, 2002, the resident pushed another resident, causing the other resident to fall to the floor. Id. at 19. On April 22, 2002, Resident # 156 threatened Petitioner's staff and struck windows in Petitioner's facility. Id. at 20.

� Petitioner discharged Resident # 156 on April 22, 2002. CMS Ex. 116, at 20 - 21.

� Petitioner attempted no new interventions to deal with Resident # 156's propensity for violence after implementing the May 2001 care plan through April 22, 2002, the date of her discharge. The November 2001 care plan was essentially a restatement of the May 2001 plan. The staff did not modify the plan after November 2001 nor did it implement new interventions to deal with the resident's violent behavior in December 2001, February 2002 or March 2002. The staff implemented no new interventions to deal with the resident's propensity for violence after the incident of March 24, 2002.

� Petitioner made no efforts to protect other residents of its behavioral unit from the behavior of Resident # 156 after it implemented the May 2001 care plan.

� Petitioner failed to provide several members of its behavioral unit staff with Crisis Prevention Institute training despite relying on that entity's crisis prevention techniques as a way of dealing with the violent behaviors of Resident # 156.

� A resident, who is identified as Resident # 130, was diagnosed with schizoaffective disorder and manic depression. CMS Ex. 110, at 7. On April 18, 2002, the resident was placed on a suicide watch by Petitioner because he had been attempting to stab himself with a fork and had voiced suicidal thoughts. Id.

� Documentation produced by Petitioner's staff failed to record that suicide precautions were being taken for Resident # 130. CMS Ex. 101, at 2. Members of Petitioner's behavioral unit staff were unaware that the resident had been placed on suicide precautions. Id.

� On April 6, 2002, a resident, who is identified as Resident # 132, was observed to hit her roommate with her fist. CMS Ex. 112, at 10. On April 19, 2002, Resident # 132 attacked another resident by grabbing that resident's neck. CMS Ex. 111, at 9.

� Petitioner failed to take any interventions to protect Resident # 132's roommate from additional assaults by Resident # 132. Nor did Petitioner develop specific interventions to deal with Resident # 132's assaultive behavior.

� A resident, who is identified as Resident # 133, had medical problems which included diabetes. CMS Ex. 112, at 6. The resident was noted to be non-compliant with her medical regime. Id. Specifically, the resident failed to comply with dietary restrictions.

� The resident was observed on numerous occasions in March and April 2002 to steal food from other residents. CMS Ex. 112, at 6 - 12. The resident was observed by a surveyor to be stealing food on April 29 and 30, 2002. CMS Ex. 4, at 12.

� Petitioner attempted to address this problem by counseling the resident. However, this intervention had been attempted previously and was ineffective. Petitioner implemented no other intervention to deal with the resident's noncompliance.

� Petitioner permitted residents of its behavioral unit to sit in its common/dining area without staff supervision despite the fact that these residents were housed in the behavioral unit because of their propensity to engage in harmful conduct. CMS Ex. 101, at 3.

The foregoing, if not rebutted by Petitioner, is powerful support for a conclusion that Petitioner failed to provide its residents with adequate supervision. It shows that Petitioner allowed Resident # 156, a clearly violent individual, to attack other residents repeatedly without effectively intervening to protect them. It demonstrates also that Petitioner failed to provide adequate supervision to other residents who had known propensities to do harm to themselves or to others. Finally, it shows that Petitioner's staff was not adequately trained to protect residents from harm nor did they provide adequate general supervision to residents of Petitioner's behavioral unit.

Petitioner failed to provide evidence to rebut CMS's prima facie case. With respect to Resident # 156, Petitioner suggests that the resident engaged in only "five or six violent and unpredictable incidents . . . over a course of two years." Petitioner's reply brief at 5. In fact, CMS offered proof as to many more than just "five or six" episodes of violence by the resident. What CMS proved was a pattern of violence. Petitioner's staff plainly was aware of this pattern.

Indeed, the pattern of Resident #156's violent and assaultive behavior was clear. There were numerous instances in which the resident attempted to harm other residents by punching, grabbing, or tripping them. Petitioner's staff knew that it had to do something to protect other residents from Resident # 156. But, the evidence introduced by CMS establishes that Petitioner allowed the pattern of violence to continue without intervening effectively to stop it.

Petitioner in effect concedes this. It argues that it was, essentially, helpless to deal with Resident # 156, contending that "[s]hort of restraints, the only solution to thwart the attempted imposition of liability . . . was to discharge [the resident] . . . ." Petitioner's reply brief at 6. It is not clear from the record of this case that discharge was the only solution available to Petitioner. But, one thing is clear. Allowing Resident # 156 to perpetrate violence against other residents was intolerable. It is no defense for a facility to say that it stood helpless in the face of such violence. The fact is that other residents were endangered by Resident # 156 and Petitioner had an obligation to do something effective to put an end to that danger. Petitioner failed to discharge that obligation.

The unrebutted evidence offered by CMS concerning Petitioner's failure to provide adequate protection of its residents against Resident # 156's violent and assaultive behavior is, in and of itself, sufficient to establish substantial failure by Petitioner to comply with the requirements of 42 C.F.R. � 483.25(h)(2). The evidence establishes a pervasive failure to protect residents against a violent individual with resulting harm to several residents and a potential for harm to all of the residents of the behavioral unit. Evidence of failure by Petitioner to provide adequate supervision to other residents - which largely is unrebutted by Petitioner - reinforces my conclusion that Petitioner did not comply with the requirements of the regulation. But, it is not necessary to establish noncompliance.

With respect to Resident # 130 Petitioner claims that all of its direct care staff were aware of the suicide precautions that had been noted in the resident's care plan. Its evidence to support this contention consists of an unsworn statement by a facility representative, that is dated May 16, 2002, several weeks after the report of the April 30 survey had been given to Petitioner. P. Ex. 6, at 63 - 66. I do not find the statement to be persuasive. Aside from the fact that it is unsworn hearsay, it does not identify the individuals who ostensibly were aware of the resident's suicide precautions. The character of the statement is plainly self serving as well.

With respect to Resident # 132 Petitioner asserts that the resident's medical record and care plan clearly indicated the behaviors that were described in the report of the April 30 survey. Petitioner's post-hearing brief at 15 - 16. From this, Petitioner appears to contend that the supervision that was given to the resident by Petitioner's staff was adequate. Id. I disagree with this analysis. Petitioner's assertion that it documented the resident's behavior does not provide any answer to CMS's allegations of noncompliance. CMS did not contend that Petitioner inadequately documented the resident's behavior, it asserted that Petitioner failed to deal appropriately with the behavior that it documented. This included providing adequate protection for the resident's roommate after the resident assaulted her.

Petitioner's response concerning the allegations that were made by CMS about Resident # 133 is to argue, first, that her theft of food was essentially harmless and, second, that in any event, the resident was discharged from Petitioner's facility 15 days after the survey. I find this to be an unpersuasive response. Petitioner's assertion that the theft of food was harmless is unsupported by any evidence. Moreover, the assertion is belied by the fact that the resident was a diabetic who was on dietary restrictions. Clearly the dietary restrictions were put in place for a reason and the resident's consistent failure to comply with them is presumptive proof of a potential for more than minimal harm to the resident. The fact that the resident ultimately was discharged says nothing about Petitioner's failure to provide adequate supervision of the resident while the resident was at Petitioner's facility.

Petitioner offered no evidence to rebut CMS's evidence that residents were not supervised while in the behavioral unit's common area. Nor did Petitioner rebut CMS's evidence that Petitioner failed to train adequately its residents in Crisis Prevention Institute intervention techniques.

6. CMS's determination that Petitioner's failure to comply with the requirements of 42 C.F.R. � 483.24(h)(2) was at the immediate jeopardy level of noncompliance beginning March 24, 2002 and extending through April 21, 2002 is not clearly erroneous and is, moreover, supported by the weight of the evidence in this case.

CMS determined that Petitioner's noncompliance with the requirements of 42 C.F.R. � 483.25(h)(2) was so egregious as to place residents of Petitioner's facility at immediate jeopardy. The term "immediate jeopardy" is defined in regulations to mean:

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. A finding by CMS of the presence of immediate jeopardy must be affirmed, assuming that the underlying deficiency on which the immediate jeopardy finding is based is substantiated, unless it is found to be clearly erroneous. 42 C.F.R. � 498.60(c)(2). This standard of proof places a heavy burden on a provider who challenges a finding of immediate jeopardy:

[U]nder the clearly-erroneous standard, we cannot meddle with a prior decision . . . simply because we have doubts about its wisdom or think we would have reached a different result. To be clearly erroneous, a decision must strike us as more than just maybe or probably wrong; it must . . . strike us as wrong with the force of a five-week-old unrefrigerated dead fish.

Parts and Elec. Motors, Inc. v. Sterling Elec., 866 F.2d 228, 233 (7th Cir. 1988). A determination must be found not to be clearly erroneous where there is substantial evidence to support a decision. Snow v. Standard Ins. Co., 87 F.3d 327, 331- 332 (9th Cir. 1996).

Here there is more than substantial evidence to support CMS's determination that Petitioner's noncompliance with the requirements of 42 C.F.R. � 483.25(h)(2) placed residents at immediate jeopardy. Indeed, the weight of the evidence supports that determination.

The unrebutted evidence introduced by CMS establishes that Petitioner had on its premises a violent and dangerous resident - Resident # 156 - whose actions jeopardized the safety of fellow residents. The potential was great that this resident's repeated attacks against other residents would cause them to experience serious harm or worse. In fact, the resident's assault against another resident on March 24, 2002 was at least an indirect cause of that resident's death. The evidence also establishes that Petitioner and its staff were singularly ineffective in protecting its residents against the assaults that were perpetrated by Resident # 156. The resident assaulted other residents time after time and Petitioner did little to intervene.

Petitioner's only real response to this evidence is to argue that it was helpless to prevent the resident from assaulting other residents. It asserts that its only choice was to discharge the resident and that eventually that is what it did. That is no answer. Petitioner assumed the responsibility to protect the other residents in its behavioral unit from Resident # 156 when it decided to house her there. Petitioner had a duty to carry out that responsibility once it assumed it. It could not simply throw its hands up in the air and protest its helplessness in the face of the resident's assaultive conduct. Nor could it continue to deal with the resident with interventions that had been proven to be ineffective.

CMS determined that Petitioner's immediate jeopardy level noncompliance persisted from March 24, 2002 through April 21, 2002. Petitioner has offered no evidence to show that this determination was erroneous. Furthermore, it is amply supported by the fact that Resident # 156 remained at Petitioner's facility until April 21, 2002 and perpetrated or attempted several additional assaults against other residents during the March 24 - April 21, 2002 period.

7. It is reasonable as a matter of law to impose civil money penalties of $3,050 per day against Petitioner for each day of the March 24 - April 21, 2002 period.

CMS determined to impose penalties of $3,050 against Petitioner for the immediate jeopardy level deficiency that it manifested between March 24 and April 21, 2002. That penalty amount is reasonable as a matter of law inasmuch as it is the minimum immediate jeopardy level daily civil money penalty amount. 42 C.F.R. � 488.438(a)(1)(i).

8. Petitioner failed to provide medically-related social services to its residents.

At Tag 250 of the report of the April 30 survey the surveyors alleged that Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.15(g). CMS Ex. 4, at 1 - 4. This regulation states that a facility must provide medically-related social services to its residents to attain or maintain their highest practicable physical, mental, and psychosocial well-being.

The surveyors and CMS allege that Petitioner failed to provide medically related social services to Resident # 156 and to two additional residents who are identified as Residents #s 136 and 137. CMS contends that Resident # 156's care plan stated that the resident would be visited by its social services personnel in order to allow the resident to voice her fears and concerns. CMS Ex. 116, at 23. The resident did receive such visits between April and November 2001. However, there is nothing in the resident's records to show that she received social service visits after November 2001 until April 15, 2002, despite the fact that the resident manifested assaultive behavior after November 2001.

CMS contends that Petitioner's records for Resident # 136 show that the resident had a history of assaultive behavior towards other residents, manifested by episodes consisting of violent acts and threats. CMS Ex. 113, at 6, 7, 9. However, there is no documented evidence that this resident received social service visits. With respect to Resident # 137, CMS contends that this resident was experiencing episodes of agitated behavior in November and December 2001 but did not receive social service visits during this period. CMS Ex. 114, at 4, 6, 10. The resident was not visited by a social worker after October 2001 until January 25, 2002. Id.

This evidence, if unrebutted, is sufficient to prove a prima facie case that Petitioner did not comply substantially with the requirements of 42 C.F.R. � 483.15(g). The evidence offered by Petitioner shows that the three residents whose care is at issue did not receive social service visits at times when such visits might have benefitted them.

Petitioner has offered no argument in either its post-hearing brief or in its reply brief to respond to CMS's prima facie case. Given that, I conclude that Petitioner failed to comply substantially with the social services requirement.

9. Petitioner did not prove that it corrected the deficiencies that were identified at the April 30 survey prior to May 30, 2002. Therefore, CMS may impose remedies against Petitioner, including civil money penalties, for dates up to and including May 30, 2002.

Petitioner did not contend that it corrected the deficiencies that were identified at the April survey at any time prior to May 30, 2002, the date when CMS determined that Petitioner attained compliance with participation requirements. Therefore, CMS is authorized to impose remedies against Petitioner - in addition to the immediate jeopardy level civil money penalties that apply to the March 24 - April 21 period, which I discuss above at Finding 7 - for each day running up to and including May 30, 2002.

10. It is reasonable to impose civil money penalties of $750 per day against Petitioner for each day of the April 22 - May 30, 2002 period.

CMS determined to impose civil money penalties of $750 per day against Petitioner for each day of the period which began on April 22, 2002 and which ran through May 30, 2002. Petitioner has offered neither argument nor evidence to challenge the reasonableness of the penalty amounts - effectively waiving its right to do so - and, therefore, I find the penalty amounts to be reasonable. I also find them to be reasonable based on the seriousness of Petitioner's deficiencies. See 42 C.F.R. � 488.404.

CMS determined the seriousness of Petitioner's noncompliance with the requirements of 42 C.F.R. � 483.15(g) to be relatively high. Petitioner's failure to provide necessary medically-related social services to its residents was harmful to these residents. The three individuals whose care is at issue at Tag 250 of the April 30 survey report were all violence-prone individuals whom Petitioner understood needed special attention. These individuals wouldn't have been housed in Petitioner's behavioral unit unless they needed such attention. Yet, Petitioner failed to provide necessary attention to the residents at a time when each of them was engaging in dangerous and harmful conduct. Given that, a $750 per day civil money penalty to remedy Petitioner's deficiency is more than reasonable.

11. CMS is authorized to impose other remedies against Petitioner including denial of payment for new Medicare admissions and loss of NATCEP.

As a matter of law CMS is authorized to impose additional remedies against Petitioner including denial of payment for new admissions and loss of NATCEP (in this case the loss of NATCEP results from the presence of an immediate jeopardy level deficiency). Petitioner has offered no challenge to the imposition of these additional remedies and I sustain them.

12. I deny Petitioner's arguments concerning burden of persuasion and the fairness of the hearing.

Petitioner argues that I unfairly imposed on it a burden of establishing by the preponderance of the evidence that it complied with participation requirements. I deny this argument for two reasons. First, I allocated the parties' respective burdens of persuasion in accordance with the Departmental Appeals Board's decision in Hillman Rehabilitation Center, DAB No. 1611 (1997). More important, my Findings in this case would not change even were I to allocate the parties' respective burdens as Petitioner contends they should be allocated. The evidence that CMS offered as to Petitioner's noncompliance and the level of such noncompliance is overwhelming and it overcomes any evidence that Petitioner offered to support its contentions.

Petitioner also argues that I unfairly managed this case by requiring the parties to reduce their direct testimony to written statements made under oath and to exchange these statements prior to the in-person hearing. I addressed and rejected this argument on the record of the hearing. It is unnecessary that I revisit Petitioner's argument or restate my reasons for rejecting it here. Tr. at 19 - 23.

JUDGE
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Steven T. Kessel

Administrative Law Judge

FOOTNOTES
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1. The parties stipulated that findings made at an earlier survey, conducted on January 25, 2002, are not at issue in these cases.

2. I do not discuss the remaining three deficiencies in this decision inasmuch as they are not the basis for CMS' remedy determinations.

3. I base this allegation on Ms. Saunders' testimony at the hearing. The survey report makes the somewhat different allegation that Ms. Saunders observed S.O. "digitally penetrating Resident # 6's 'private area'." And, in fact, Ms. Saunders has given differing accounts of what she saw. See P. Ex. 10, at 5 - 8.

4. On the other hand, and as I discuss below, at Finding 3, the history of complaints involving S.O. was powerful reason for Petitioner's management to - at the very least - be vigilant about S.O. and to promptly and thoroughly investigate any additional complaints that were made about him by residents or staff.

CASE | DECISION | JUDGE | FOOTNOTES