SUBJECT:

Bryden Place, Inc.,

Petitioner,

The Inspector General.

DECISION

Petitioner, Bryden Place, Inc., did not violate 42 C.F.R. � 483.13(b) ⁽¹⁾ as alleged by the Centers for Medicare & Medicaid Services (CMS) based upon the survey of the facility that ended on July 28, 2002. Thus, there is no basis for imposition of an enforcement remedy.

I. Background

Petitioner, located in Columbus, Ohio, is certified to participate in the Medicare program as a skilled nursing facility (SNF) and in the state Medicaid program as a nursing facility (NF). In a survey completed July 28, 2002, the Ohio Department of Health (the state agency) alleged that Petitioner failed to protect one of its residents from abuse by an off-duty staff member a violation of 42 C.F.R. � 483.13(b) (Tag F 223). Based on recommendations of the state agency, CMS proposed to impose a per instance civil money penalty (CMP) of $2,900. CMS notified Petitioner of its decision to impose remedies by letter dated September 5, 2002. CMS Exhibit (CMS Ex.) 1.

By letter dated October 23, 2003, Petitioner requested a hearing challenging the findings of the state agency and the enforcement remedy. This case was assigned to me for hearing and decision on November 12, 2002, and on that date a Notice of Case Assignment and Prehearing Case Development Order was issued at my direction. A hearing was held before me in Columbus, Ohio, on July 21, 2003. CMS offered CMS Exs. 1 through 16, which were admitted. Transcript (Tr.) 15. Petitioner submitted 4 exhibits (P. Exs. 1 through 4) with no objection by CMS and they were admitted. Tr. 16. Connie Dickerson, state agency surveyor, testified for CMS. Gail A. Greenly, Clinical Advisor; Katherine Sommerville, Nursing Supervisor; LaTanya Cox, Director of Nursing (DON); and Margaret J. Leyde, Administrator, testified for Petitioner.

Based on the applicable law and regulations, the documents received as evidence, and the testimony taken at hearing, the preponderance of the evidence shows that on July 27, 2002, Petitioner was not in violation of 42 C.F.R. � 483.13(b) (Tag F 223) and there is no basis for the imposition of an enforcement remedy.

II. Discussion

A. Findings of Fact

The following findings of fact are based upon the exhibits admitted. Citations to exhibit numbers related to each finding of fact may be found in the analysis section of this decision if not indicated here.

1. The state agency alleged in a survey completed July 28, 2002, that Petitioner failed to protect one of its residents from abuse by an off-duty staff member, a violation of 42 C.F.R. � 483.13(b) (Tag F 223). CMS Ex. 2; P. Ex. 1.

2. CMS notified Petitioner of its decision to impose a per instance CMP of $2,900 for the alleged violation of 42 C.F.R. � 483.13(b) by letter dated September 5, 2002. CMS Ex. 1.

3. Petitioner requested a hearing by letter dated October 23, 2003.

4. On July 27, 2002, Richard Taylor, an off-duty employee of Petitioner, was visiting a resident at the facility with his grandchild.

5. Mr. Taylor was verbally abusive to Resident 19. Tr. 54; CMS Ex. 16; P. Ex. 3.

6. Mr. Taylor was escorted out of the building. Tr. 54-55.

7. The facility reported the incident to the state agency and began its abuse investigation on July 27, 2002 Tr. 81.

8. On July 28, 2002, the state survey agency began its investigation.

9. The facility determined, as a result of it's own investigation "that indeed there was some verbal abuse" and Mr. Taylor was terminated. Tr. 82; P. Ex. 3, at 3; CMS Ex. 16, at 2.

B. Conclusions of Law

1. Petitioner's request for hearing was timely and I have jurisdiction.

2. A resident of a facility "has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion." 42 C.F.R. � 483.13(b).

3. Abuse is "the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish." 42 C.F.R. � 488.301; see also, State Operations Manual (SOM), "Guidance to Surveyors" Tag F 233, at PP-47.2 (Revision 20, September 2000).

4. A facility is deficient under 42 C.F.R. � 483.13(b) if it fails to take reasonable steps to prevent abuse of a resident, regardless of the source of the abuse.

5. In this case, Petitioner took reasonable steps to prevent abuse.

6. Petitioner did not violate 42 C.F.R. � 483.13(b) (Tag F 223).

7. There is no basis for the imposition of any enforcement remedy in this case.

C. Issues and Burden of Persuasion

The general issues are:

Whether there is a basis for the imposition of an enforcement remedy; and

Whether the remedy imposed by CMS is reasonable.

Petitioner objected in its post hearing brief to the allocation of the burden of persuasion in accordance with Hillman Rehabilitation Center v. United States, No. 98-3789 (GEB) (D.N.J. 1999) and its progeny Hillman, DAB No. 1611 (1997), arguing that Hillman is incorrect and contrary to the Administrative Procedures Act (APA). Petitioner's Post Hearing Brief (P. Brief) at 16. The Secretary has never promulgated regulations defining the allocation of the burden of persuasion in proceedings pursuant to 42 C.F.R. Part 498 and the Social Security Act (Act) contains no provision controlling on the issue. In Hillman, the Board conducted an analysis of the Act, the regulations and the history of both and developed a position on the appropriate allocation in that case which has subsequently been applied by the Board and ALJs in other cases. CMS erroneously suggests that it is not for an ALJ to determine the appropriate allocation, relying on the notion that an ALJ cannot refuse to follow statutes and regulation and that Hillman constitutes binding precedent. However, the Board's decision in Hillman recognized that the determination of the appropriate allocation is to be decided in each case and thus, it is incumbent upon the ALJ to decide the issue whether or not raised.

Petitioner contends that by placing reliance on Hillman, I have imposed an erroneous burden of proof on the facility. However, Petitioner fails to cite any authority in support of its position. Furthermore, the allocation of the burden of proof is material only where the evidence is in equipoise, and the evidence in this case is not in equipoise. Fairfax Nursing Home, Inc. v. U.S. Dep't of Health and Human Services, 300 F.3d 835, 840, n.4 (7^th Cir. 2002), on appeal from Fairfax Nursing Home, Inc., DAB No. 1794 (2001), cert. denied 537 U.S. 1111 (2003).

D. Applicable Law

The Act sets forth requirements for long-term care facility (SNF and NF) participation in the Medicare and Medicaid programs, and authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations implementing the statutory provisions. Act �� 1819 and 1919. The Secretary's regulations governing nursing facility participation in the Medicare program are found at 42 C.F.R. Part 483. Regulations governing survey, certification, and enforcement procedures, and regulations governing provider agreements, are found at Parts 488 and 489, respectively. Regulations governing appeals procedures are found at Part 498.

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

If a facility is not in substantial compliance with program requirements, CMS has the authority to impose, in addition to termination, one or more of the enforcement remedies listed in 42 C.F.R. � 488.406, including a DPNA, directed in-service training, and imposition of a CMP. See Act � 1819(h). CMS may impose a CMP for the number of days that the facility is not in substantial compliance with one or more program requirements or for each instance that the facility is not in substantial compliance. 42 C.F.R. � 488.430(a). In situations where the deficiencies do not constitute immediate jeopardy, but have caused actual harm or have the potential for more than minimal harm, CMS may impose a CMP in the lower range of $50 to $3,000 per day. Penalties in the range of $3,050 to $10,000 per day are imposed for deficiencies constituting immediate jeopardy. 42 C.F.R. � 488.438. The regulations also authorize CMS to impose a CMP for an instance of noncompliance with a single range of $1,000 to $10,000 per instance that is not affected by the existence of immediate jeopardy. 42 C.F.R. �� 488.408, 488.438.

The Act and regulations make a hearing before an ALJ available to a long-term facility against whom CMS has determined to impose a CMP. Act, section 1128A(c)(2); 42 C.F.R. �� 488.408(g); 498.3(b)(13). The hearing before an ALJ is a de novo proceeding. Anesthesiologists Affiliated, et al, DAB CR65 (1990), aff'd, 941 F2d. 678 (8th Cir. 1991). A facility has a right to appeal a "certification of noncompliance leading to an enforcement remedy." 42 C.F.R. � 488.408(g)(1); see also 42 C.F.R. �� 488.330(e) and 498.3. However, the choice of remedies by CMS or the factors CMS considered when choosing remedies are not subject to review. 42 C.F.R. � 488.408(g)(2). A facility may only challenge the scope and severity level of noncompliance found by CMS if a successful challenge would affect the amount of the CMP that could be collected by CMS or impact upon the facility's nurse aide training program. 42 C.F.R. �� 498.3(b)(14) and (d)(10)(I). CMS's determination as to the level of noncompliance "must be upheld unless it is clearly erroneous." 42 C.F.R. � 498.60(c)(2). This includes CMS's finding of immediate jeopardy. Woodstock Care Center, DAB No. 1726, at 9, 38 (2000), aff'd, Woodstock Care Center v. U.S. Dept. of Health and Human Services, 363 F.3d 583 (6th Cir. 2003). The Departmental Appeals Board (the Board) has long held that the net effect of the regulations is that a provider has no right to challenge the scope and severity level assigned to a noncompliance finding, except in the situation where that finding was the basis for an immediate jeopardy determination. See, e.g., Ridge Terrac, DAB No. 1834 (2002); Koester Pavilion , DAB No. 1750 (2000). Review of a CMP by an ALJ is governed by 42 C.F.R. � 488.438(e).

When a remedy is imposed and appealed, CMS must make a prima facie showing that the facility has failed to comply substantially with federal participation requirements. "Prima facie " means that the evidence is "(s)ufficient to establish a fact or raise a presumption unless disproved or rebutted."Black's Law Dictionary 1228 (8th ed. 2004). To prevail, a long-term care facility must overcome CMS's showing by a preponderance of the evidence. Batavia Nursing and Convalescent Cente, DAB No. 1904 (2004); Batavia Nursing and Convalescent Inn, DAB No. 1911 (2004); Emerald Oaks, DAB No. 1800 (2001); Cross Creek Health Care Center, DAB No. 1665 (1998); Hillman Rehabilitation Center, DAB No. 1611 (1997), aff'd Hillman Rehabilitation Center v. U.S. Dept. of Health and Human Services, No. 98-3789 (D.N.J. May 13, 1999). A preponderance of evidence is "superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other."Black's Law Dictionary (7th ed. 1999) (cited by the Board in Beechwood Sanitarium, DAB No. 1906, at 38 (2004)).

E. Analysis

1. Petitioner did not violate 42 C.F.R. � 483.13(b) (Tag F 223).

The material facts are not disputed. P. Brief at 2. On July 27, 2002, Richard Taylor, an off-duty employee of Petitioner, was visiting a resident at the facility with his grandchild. While attempting to board the elevator Mr. Taylor was verbally abusive to Resident 19. Katherine Somerville according to the testimony given at hearing, was at the nurses' station when she heard someone yelling loudly and cursing in the hall way. When she went out to investigate who was doing the yelling she learned that it was Mr. Taylor. Tr. 54; CMS Ex. 16; P. Ex. 3. Ms. Somerville, accompanied by a nurse's aide, approached Mr. Taylor and asked him to leave "because what he was doing was inappropriate." Tr. 54-55. Mr. Taylor was then escorted out of the building by Ms. Somerville and the nurse's aide. Id.

When interviewed about the incident Resident 19 gave the following statement:

I was getting on the elevator and Richard Taylor and his grandson was getting on. The door started to close and Richard hit his hand on it and slammed it open mumbling something rude. I said something to the fact that it wasn't called for. There were elderly residents on the elevator and it scared them. He said shut the fuck up bitch and getting off the elevator he called me a bitch, walking down the back hall he said out loud, I was a yellow haired bitch. He was very rude and showed extreme anger.

P. Ex. 3, at 4; CMS Ex. 16, at 3.

Ms. Somerville contacted the facility's administrator, Margaret Leyde, at her residence, and informed her of the incident. Ms. Leyde then advised Ms. Somerville to "start an abuse investigation." Tr. 81. The next day the state survey agency began its investigation. The facility determined, as a result of it's own investigation "that indeed there was some verbal abuse" and Mr. Taylor was terminated. Tr. 82; P. Ex. 3, at 3; CMS Ex. 16, at 2.

CMS alleges that Petitioner failed to protect Resident 19 from verbal abuse by one of its employees and that Resident 19 suffered harm as a result. ⁽²⁾ CMS Ex. 2; CMS Post-Hearing Memorandum (CMS Brief) at 7-10. Petitioner does not deny the incident and, in fact, fired the employee for verbally abusing Resident 19. Petitioner argues, however that the incident cannot be described as a deficiency for there is no proof that Bryden Place had any reason to know or expect the alleged outburst by Mr. Taylor, particularly given his work history, training, and prior conduct. P. Brief at 9.

The regulation, 42 C.F.R. � 483.13(b), provides that a resident of a facility "has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion." "Abuse" is defined at 42 C.F.R. � 488.301 ⁽³⁾ to mean "the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish." See also, SOM, Guidance to Surveyors, Tag F 233, at PP-47.2 (Revision 20, September 2000) Abuse, as defined, includes two elements:

(1) the willful infliction of injury, unreasonable confinement, intimidation, or punishment;

(2) resulting in physical harm, pain, or mental anguish.

42 C.F.R. � 488.301.

In Western Care Management Corp., D/B/A Rehab Specialties Inn, DAB No. 1921 (2004), the Board interpreted 42 C.F.R. � 483.13. The Board stated that: "(p)rotecting and promoting a resident's right to be free from abuse necessarily obligates the facility to take reasonable steps to prevent abusive acts, regardless of their source."Id. at 12. Based upon the Board's decision in Western Care Management, a facility is deficient under 42 C.F.R. � 483.13(b) if it fails to take reasonable steps to prevent abuse of a resident, regardless of the source of the abuse.

I find, based upon undisputed evidence, that Petitioner did not violate 42 C.F.R. � 483.13(b) in this case. There is no dispute that Mr. Taylor was verbally abusive of resident 19 on July 27, 2002. However, Petitioner has shown that Mr. Taylor had the required abuse prevention training, he was a good employee, and he had no history of appearing at the facility intoxicated. ⁽⁴⁾ Petitioner had taken reasonable steps to ensure that Mr. Taylor would not abuse residents. Petitioner encouraged staff to return during their off-duty time to visit residents who may have had no family. Mr. Taylor had visited Petitioner's facility routinely while off-duty without incident. CMS Ex. 12; P. Exs. 1, at 3-9; 2, at 1-8, 14; Tr. 47, 48-49, 67-69, 73-76, 85. Petitioner has shown by a preponderance of the evidence, there was no reason to suspect Mr. Taylor of any potential to abuse residents prior to the incident of July 27, 2002. Accordingly, I find that prior to July 27, 2002, Petitioner had no reason to act to limit Mr. Taylor's access to the facility or residents; to limit his performance of duties as a nursing assistant; or to otherwise more closely supervise his interaction with residents than other staff. I also find that Petitioner did take the reasonably necessary steps to avoid further abuse by Mr. Taylor as soon as the incident occurred on July 27, 2002, by escorting him from the facility, promptly conducting an investigation, reporting the incident to the state agency, and terminating Mr. Taylor's employment. Accordingly, I cannot find that 42 C.F.R. � 483.13(b) was violated.

2. There was no violation of a participation requirement and there is no basis for the imposition of any enforcement remedy.

The remedy determinations made by CMS in this case are premised on the findings of noncompliance made at the survey. I have found that the preponderance of the evidence establishes that Petitioner was not in violation of 42 C.F.R. � 483.13(b) as alleged. Consequently, there is no basis for CMS to impose remedies against Petitioner

II. Conclusion

For the foregoing reasons, I conclude that there was no violation of 42 C.F.R. � 483.13(b) and no enforcement remedy may be imposed.

Keith W. Sickendick

Administrative Law Judge

1. Citations are to the version of the regulations in effect at the time of the survey.

2. The facility was not cited for non-compliance related to its investigation or its policies. CMS Ex. 2; Tr. 38-39.

3. Because Part 488 is related to Part 483 and because "abuse" is not separately defined for purposes of Part 483, the Board has upheld, as reasonable, an ALJ's application of this definition in a case involving alleged noncompliance with section 483.13(b). Beverly Health and Rehabilitation Center - Williamsburg , DAB No. 1748 (2000).

4. There were some unsubstantiated claims that Mr. Taylor was intoxicated during the event in question. Tr. 49-52, 60.