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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:

Meadville Convalescent Home,

Petitioner,

DATE: April 04, 2006
                                          
             - v -

 

Centers for Medicare & Medicaid Services.

 

Docket No.C-03-168
Decision No. CR1434
DECISION
...TO TOP

DECISION

I conclude that there is no basis for the Centers for Medicare & Medicaid Services (CMS) to impose remedies against Petitioner, Meadville Convalescent Home.

I. Background

On September 19, 2002, the Mississippi State Department of Health (state agency) surveyed Petitioner in order to determine whether Petitioner was complying with federal participation requirements. As a result of the September 19, 2002 survey, the state agency found that Petitioner was not complying substantially with federal participation requirements and cited two deficiencies, which were not challenged by Petitioner. On September 27, 2002, a complaint survey was completed by the state agency which found six deficiencies, identified as isolated deficiencies. These six deficiencies were determined to constitute immediate jeopardy and substandard quality of care, and were not related to the two deficiencies found in the earlier survey completed eight days before the complaint survey. Five immediate jeopardy deficiencies found during the complaint survey are at issue before me (1): abuse, Tag 223, 42 C.F.R. � 483.13(b); staff treatment of residents, Tag 226, 42 C.F.R. � 483.13(c)(1)(i); resident assessment, Tag 279, 42 C.F.R. � 483.20(k)(1); resident assessment, Tag 280, 42 C.F.R. � 483.20(k)(2); and administration, Tag 490, 42 C.F.R. � 483.75. The length of time the immediate jeopardy was determined to exist was from August 30, 2002 through September 23, 2002. After September 23, 2002, the immediate jeopardy was abated and the deficiencies were reduced to F level deficiencies. On October 31, 2002, the state agency conducted a revisit survey and determined that Petitioner had achieved substantial compliance. By letter dated October 15, 2002 and as revised by letter dated February 14, 2003, CMS imposed a civil money penalty (CMP) of $3500 per day from August 30, 2002 through September 23, 2002, and a CMP of $200 per day from September 24, 2002 through October 14, 2002.

Petitioner filed a request for hearing dated December 13, 2002, and this case was assigned to me for hearing and decision. The request for hearing was timely filed and I do have jurisdiction. A hearing was held in this case on March 22 and 23, 2004, in Jackson, Mississippi.

At the hearing, CMS introduced into evidence 24 exhibits (CMS Exs. 1-24). I received CMS Exs. 1-24 into evidence. Petitioner introduced into evidence a total of 42 exhibits, some of which were new exhibits introduced for the first time at hearing. After CMS counsel reviewed the new exhibits, I received all of Petitioner's exhibits (P. Exs. 1-42) into evidence.

One of the late-developing points of contention in this case has arisen from CMS's reliance on publicly-available documents concerning Alzheimer's Disease. This information was not proffered and admitted as evidence at the hearing, but was instead incorporated into CMS's post-hearing briefing. Petitioner has objected to this incorporation of extra-record information, and has correctly noted that I forbade it in general terms during the hearing. Transcript (Tr.) 252. I remain convinced that CMS's approach is inappropriate, and that at the very least FED. R. EVID. 201 provides a useful guide to the correct approach, suggesting that such documents might be admitted on notice, but only after motion and an opportunity for Petitioner to object. But the outcome announced in this Decision demands that CMS's case should have been given every possible latitude in both prima facie evaluation and in the overall consideration of all the evidence, and for that very limited reason I have taken the documents into consideration. They have not altered my conclusions on any of the salient points discussed herein, and by taking the material into consideration I do not suggest that the practice CMS has employed here is proper, or that it will be allowed in the future.

CMS presented one witness, surveyor Georgia Simpson. Petitioner presented four witnesses: Maxine Buie, Activities Coordinator; Cynthia Wheat, Minimum Data Set (MDS) Nurse; Joyce Lynn Johnson, Nurse Consultant; and Lou Ann Alexander, Legal Nurse Consultant.

II. Applicable Law and Regulations

Petitioner is a long-term care facility participating in both the Medicare program and in Medicaid. The statutory and regulatory requirements for participation by a long-term care facility are found at sections 1819 and 1919 of the Social Security Act (Act), and at 42 C.F.R. Part 483. Sections 1819 and 1919 of the Act vest the Secretary of Health and Human Services (Secretary) with authority to impose CMPs against a long-term care facility for failure to comply substantially with federal participation requirements.

Pursuant to the Act, the Secretary has delegated to CMS and the states the authority to impose remedies against a long-term care facility that is not complying substantially with federal participation requirements. Facilities that participate in Medicare may be surveyed on behalf of CMS by state survey agencies in order to determine whether the facilities are complying with federal participation requirements. 42 C.F.R. �� 488.10-488.28. The regulations contain special survey conditions for long-term care facilities. 42 C.F.R. �� 488.300-488.335.

Pursuant to 42 C.F.R. Part 488, a state or CMS may impose a per instance or per day CMP against a long-term care facility when a state survey agency concludes that the facility is not complying substantially with federal participation requirements. 42 C.F.R. �� 488.406; 488.408; 488.430. The regulations specify that a CMP that is imposed against a facility on a per day basis will fall into one of two broad ranges of penalties. The upper range of CMP, of from $3050 per day to $10,000 per day, is reserved for deficiencies that constitute immediate jeopardy to a facility's residents, and, in some circumstances, for repeated deficiencies. The lower range of CMP, from $50 per day to $3000 per day, is reserved for deficiencies that do not constitute immediate jeopardy, but either cause actual harm to residents, or cause no actual harm, but have the potential for causing more than minimal harm. There is only a single range of $1000 to $10,000 for a per instance CMP. 42 C.F.R. �� 488.408; 488.438.

Pursuant to 42 C.F.R. � 488.301, "(i)mmediate jeopardy means 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." (emphasis in original). Further, "(s)ubstantial compliance means a level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm." Id. (emphasis in original).

When a penalty is imposed and appealed, CMS must make a prima facie case that the facility has failed to comply substantially with federal participation requirements. To prevail, a long-term care facility must overcome CMS's showing by a preponderance of the evidence. Batavia Nursing and Convalescent Center, 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).

The Act and regulations make a hearing before an administrative law judge (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)(12), (13). The hearing before an ALJ is a de novo proceeding. Anesthesiologists Affiliated, et al., DAB CR65 (1990), aff'd, 941 F.2d. 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 (Board) has long held that the net effect of these 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 Terrace, DAB No. 1834 (2002); Koester Pavilion, DAB No. 1750 (2000).

III. Issues, findings of fact and conclusions of law

A. Issues

The issues in this case are:

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

Whether the remedy imposed is reasonable.

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 Finding below as a separate heading and I discuss each Finding in detail.

1. Petitioner was in substantial compliance with the regulation concerning abuse, Tag 223, found at 42 C.F.R. � 483.13(b).

The September 27, 2002 survey found that Petitioner was not in substantial compliance with the regulation concerning abuse which provides that:

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

42 C.F.R. � 483.13(b).

The regulations define "abuse" 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. In the matter before me, CMS is alleging that Resident 1 (R1), a male, had inappropriate sexual contact with two different female residents, Resident 2 (R2) and Resident 3 (R3). CMS alleges that Petitioner did not do enough to prevent the inappropriate sexual contact by R1 and that this constitutes sexual abuse.

Petitioner, at the hearing, attempted to make an issue of the fact that the standard survey of September 19, 2002, did not cite an abuse deficiency and that I should therefore infer that the abuse deficiency cited after the September 27, 2002 complaint survey was invalid. I make no such inference. My Finding that Petitioner was in substantial compliance with the regulation concerning abuse is discussed below and does not rest in any fashion on the results of the September 19, 2002 survey.

A description of R1 is in order here. R1 is a 68-year-old male resident. He is diagnosed as having diabetes, hypertension, cardiovascular disease, emphysema, chronic obstructive pulmonary disease, and angina pectoris. P. Ex. 2. R1 made many decisions independently, and his decisions were "consistent/reasonable." CMS Ex. 10, at 5. His room number at relevant times was 126W and his doctor at relevant times was Dr. Gabbert. Both parties agree that, at the relevant time period, R1 was competent and capable of consenting to and engaging in sexual activities. Tr. 166. R1 was assessed on a September 10, 2002 MDS as independent, making consistent decisions and reasonable. CMS Ex. 2. R1 was also assessed as exhibiting socially inappropriate or disruptive behaviors, which occurred between four to six days per week but less than daily. These behaviors consisted of disruptive noises, screaming, self-abusive acts, sexual behaviors or disrobing in public, smearing or throwing food and or feces, engaging in hoarding, and rummaging through others' belongings. Id. The immediate jeopardy was abated on September 23, 2002, when R1, at the request of his physician, was transferred to a Senior Care Unit located approximately one mile down the road from Petitioner's facility. The CMS surveyor never interviewed R1 regarding any of the alleged incidents of abuse, even though he was only one mile away. Tr. 166-167. The CMS surveyor also did not interview R1's roommate or either of R2's or R3's roommates.

a. CMS did not make out a prima facie case of abuse between R1 and R3.

R3 is a 74-year-old female resident with diagnoses of dementia, congestive heart failure, arthritis, and depression. P. Ex. 2. She had moderately impaired decision making ability, in that her decisions were described as "poor, cues/supervision required." CMS Ex. 12, at 6.

CMS did not make out a prima facie case in support of the Tag 223 citation as to any activity between R1 and R3. The only incident in which R3 was allegedly abused appears in a nursing note in CMS Ex. 12, at 5. The nurse's note states that R3 was in a room together with another resident engaging in inappropriate behavior. This report is vague, ambiguous, and may not even actually be talking about R1, since R1 isn't named. The incident happened in room 119D, which was neither R3's room nor R1's room. As noted above, R1's room was 126W and R3's room was 109D. CMS Exs. 10, 12. The note says nothing about sexual contact or activity, only "inappropriate" behavior. The note refers to an incident that happened on September 2, 2002, but was entered into the notes a day later on September 3, 2002. The nurse who entered the note was not called to testify. CMS's surveyor did not record an interview with the nurse-witness. CMS's surveyor also did not interview either R1 or R3. There is no other record of this event. The references to any alleged abuse of R3 in the Statement of Deficiencies (SOD) occurs at CMS Ex. 2, at 3, 4, 5, and 6, but all of these references are based on the single entry in the nurse's notes in CMS Ex. 12, at 5. R3 is mentioned only occasionally during the hearing (Tr. 24-25, 48, 63, 65-67, 217-218). The alleged incident involving R3 is mentioned only slightly in CMS's brief, and CMS, in its brief, concedes that its discussion focuses primarily on another incident involving a different resident, R2. CMS Br. at 9, n. 7. Such minimal evidence does not even hint at who was involved with R3, nor at any tangible details of what might have been going on. It definitely falls far short of evidence that would prove abuse. Such evidence does not amount to a prima facie case of abuse by R1 against R3.

b. CMS's prima facie case of abuse by R1 against R2 was rebutted by a preponderance of the evidence.

R2 is a 81-year-old female resident with diagnoses of Alzheimer's Disease, diabetes, congestive heart failure, hypertension, and cataracts; she also suffered from insomnia. P. Ex. 2. R2 was noted to have both short and long-term memory problems and is described in an MDS form as "easily distracted." CMS Ex. 11, at 5. She had moderately impaired decision-making ability, in that her decisions were described as "poor, cues/supervision required." CMS Ex. 11, at 5. Her room number at the relevant time was 111D and her doctor then was Dr. Larkin. CMS argues that R2 was impaired and therefore incapable of consenting to sexual relations.

The undisputed facts are that on August 28, 2002, R1 was seen in the common area "fondling" R2 (R1's hand was between R2's legs.) while in the presence of eight or so other residents. P. Ex. 8. On August 30, 2002, after another occasion when R1 was seen in the common room fondling R2, both residents left the common area and went to R1's room. A nurse knocked on the door to R1's room and then entered. R1 was seen with his hand inside R2's panties, which were down near her pubic area. The two residents were separated. Both responsible parties and the resident's physicians were notified. R2's family came and got her to help keep the residents apart for a few days. R1 was counseled by the administration and a registered nurse. CMS Ex. 2. There were several similar incidents between R1 and R2 during the time period from August 30 through September 23, 2002. Tr. 39.

CMS admits that consenting adults, at any age, without conditions that could affect their ability to consent to sexual activity, are free to engage in voluntary, or consensual, sexual activity. CMS Reply Brief at 3. The undisputed facts show that R1 was a consenting adult. The issue, as to R2, is whether she was competent to consent to engage in sexual activity. CMS's entire case as it relates to R2 rests on the surveyor's assessment that R2 was not competent to give her consent, and, therefore, the facility should have stepped in to prevent R1 from engaging in inappropriate sexual activity with R2.

The CMS surveyor bases her assessment that R2 was not capable to consent to engage in any sexual activity on three things. These three things are R2's diagnosis of Alzheimer's Disease, the MDS that indicated that R2 had moderately impaired decision making ability, in that her decisions were described as "poor, cues/supervision required" (CMS Ex. 11, at 5), and the interview she conducted with R2. The CMS surveyor also stated that one of the most important considerations for her in finding sexual abuse was that R2's family did not want her and R1 together. The surveyor's specific description of R2's family's feeling was that "[t]hey were very concerned about the behavior (and) they had done many things to try to stop it and were unable to . . ." Tr. 40. Drawing all possible inferences from the documents and the surveyor's testimony, it can be argued that a prima facie case was made of R2's inability to consent to R1's behavior, and for purposes of the discussion that follows, I will treat the evidence as so showing. But even granting that showing arguendo, CMS's prima facie case rests on the very thinnest of margins, and requires the help of a considerable number of sympathetic assumptions to be sustained. Absent the assumptions that the family based its objections to the activity on their own view of R2's competence, and that the facility's records corroborated the family's view, and that R2's reaction to being interviewed by the surveyor bore only one possible interpretation, there simply was no prima facie case. And, as will be seen, the totality of the evidence invalidates every one of those assumptions.

CMS never provided evidence on the record of any real specifics as to the effects on R2 with regard to her stage of Alzheimer's Disease over the relevant period of time. CMS's brief cites to a web site for information on Alzheimer's Disease. (2) On the other hand, Petitioner offered specific testimony directly addressing that important question: it showed that R2 was in the very early stages of Alzheimer's Disease, was alert, able to determine right from wrong, and was capable of making decisions for herself. Tr. 206-207, 237.

The surveyor's assessment was heavily based on R2s MDS. This assessment was strongly rebutted by Petitioner's evidence. Petitioner offered the testimony of Nurse Wheat, who was the same nurse who filled out the MDS form for R2. In the section of the MDS form that refers to cognitive skills for daily decision making, the form is marked "moderately impaired," in that her decisions are "poor; cues/supervision required." CMS Ex. 11, at 5. Nurse Wheat testified that "moderately impaired" on the MDS form refers to R2's decisions about how she performs her activities of daily living. Tr. 233. For example, R2 needed cues to dress more warmly because she preferred wearing shorts even when the weather was not warm (Tr. 234), and she needed cues to keep her on her diabetic diet (Tr. 230, 233). Ms. Wheat testified that R2, at the time of the complaint survey, was able to make her own decisions. Tr. 249. Another of Petitioner's witnesses, Lou Ann Alexander, was qualified as an expert witness and was a nurse who had actually participated in the MDS pilot program when the use of the MDS form was first initiated. Tr. 358. Ms. Alexander testified that the MDS was never intended for competency purposes. Tr. 367. Further, Ms. Alexander offered testimony that the part of the MDS form that refers to cognitive skills has nothing to do with the competency of a resident, but has to do with the performance of the resident's activities of daily living, which are bathing, dressing, eating, toileting, and locomotion. Tr. 367. Petitioner's evidence on the proper interpretation of the MDS form was not rebutted by CMS. A lack of functional capacity does not imply a lack or diminution of decision-making capacity.

The MDS itself supports the conclusion that R2 could make her own decisions. The MDS indicates that R2 could express herself clearly and could understand others, initiated her own activities and set her own goals, and had no unsettled relationships. The MDS form also indicates that R2 had none of the symptoms of delirium or of disordered thinking other than being "easily distracted." CMS Ex. 11, at 5. In addition, the MDS form indicates that the "Patient is responsible for self" where it asks for "Responsibility/Legal Guardian." Id. Therefore, I find that the surveyor's reliance on the MDS form is misplaced.

The CMS surveyor interviewed R2. The length of the interview was between five and ten minutes. During the interview, the CMS surveyor did not ask R2 about the alleged abuse, about her history, if any, with R1, or anything about R1. The surveyor stated that the interview was so limited because she felt that R2 was on the verge of a "catastrophic reaction." Tr. 36. A catastrophic reaction is an inappropriate uncontrollable reaction to stresses. Tr. 37. However, the term "catastrophic reaction" was never mentioned in the survey report or at any time prior to the hearing. The surveyor describes R2 as confused as to time and place. However, Petitioner offered testimony that R2 was alert and oriented in all spheres. Tr. 206, 308-309. R2 knew names, faces, locations, and knew where she was. Tr. 206. The surveyor also described R2 as speaking in fragmented sentences, and suddenly jumping and becoming agitated and then later smiling during the course of the interview. Tr. 140. The surveyor explained that her interview with R2 did not go into the subject of the alleged abuse or R1 because she felt that her questions were causing R2 stress and were agitating R2. Tr. 38.

The surveyor's investigation was extraordinarily limited, superficial, and based on incomplete information. The surveyor had an opportunity to find out everything she needed to know by merely asking the alleged victim of the abuse, but she did not. Tr. 35-38, 68-76, 139-142. There are simply too many possible reasons for R2's so-called "catastrophic reaction" to draw any inferences whatever from it regarding her consent or capacity. On the record before me, I can find no reason to accept the one chosen by the surveyor over many others, and none of those other possible explanations involves a clear situation of non-consensual sexual contact. The surveyor made no effort to learn about the history of the relationship between R1 and R2. Tr. 99. The surveyor could have pursued information about R1 and R2 from interviewing the nurses or certified nurse assistants familiar with these residents, other residents who knew both residents, or from R1 himself, and she did not. The surveyor could have interviewed R1's doctor, R2's doctor, or R3's doctor and she did not. She did not interview R3, the other alleged victim. She also did not interview the families of any of the residents involved, although it was clear that R2's family made the complaint that led to the survey. The surveyor's assessment of the three resident's mental states was based on their MDS forms, nurse's notes, and other write-ups, and she made no effort to get more detailed or specific information. The surveyor took written reports on activities with several possible interpretations and extremely subtle overtones, assumed they described non-consensual sex acts or sex acts in which the female residents were incompetent to consent, and stopped there. Her testimony on anything other than the existence of the records she relied on and the specific language in which they were written, is unreliable. Her assessments of the resident's competence or capacity to consent is not credible. Neither is she credible when she ascribes motivation or attitude to anybody, whether she had interviewed them or not. The plain fact is that the surveyor reached conclusions about the emotional motivations and the intellectual capacities of people she did not know and knew virtually nothing about, and failed to pursue readily-available opportunities to acquaint herself with them. I can accept no conclusions reached on such a paucity of information.

The more credible evidence which makes up a preponderance of evidence in this case is the testimony from two employees at the facility, Ms. Wheat and Ms. Buie. The testimony from these two witnesses is particularly important since they are the only two witnesses who had any meaningful acquaintance and personal relationship with all the residents involved. Both nurses who had regular contact with R2 testified that during the relevant time, R2's Alzheimer's Disease was in an early stage. Tr. 206, 237. One witness, Nurse Wheat, knew R2 long before she came to the nursing home. Tr. 246. The testimony showed that R2 was a "feisty" elderly woman capable of deciding what to consent to and of asserting her demands. Tr. 206. Nurse Wheat testified that R2 had always been feisty. Tr. 247. Petitioner offered a nurse's note from September 17, 2002, at 4:30 a.m., as an example of R2 being feisty:

[R2] up, dressed at nurse's station. [R2] has gone up to the dining room looking for [R1]. When nurse explained to Resident [2] that no one was up at this time, she [R2] stated, "I don't give a damn, I do what I want to do."

CMS Ex. 11, at 4; Tr. 50-51. Nurse Wheat further stated that, had R2 objected to any sexual touching, R2 would have verbalized her objection, and she did not do so. Tr. 250.

The evidence before me creates a very clear portrait of R2: she was responsible for herself and did want she wanted to do. Tr. 143. R2 liked to do search puzzles (Tr. 214) and she was in good physical condition. Tr. 229. R2 had some short term memory lapses and sometimes needed cues to dress more warmly because she preferred wearing shorts even when the weather was not warm (Tr. 234), and, she needed cues to keep her on her diabetic diet (Tr. 230). She was "very alert" (Tr. 206) and able to distinguish right from wrong. Tr. 239.

CMS points to an entry by Nurse Howard in the nurse's notes of August 28, 2002. Nurse Howard wrote that R2 was "confused at times and not able to capable of [sic] making appropr. [appropriate] decisions at times." CMS Reply Br. at 12. CMS argues that this is evidence of R2's inability to make a decision to consent to any sexual activity with R1. I find this statement in the nurses's notes to be open to various interpretations, and I note that twice the words "at times" were used. Since Nurse Howard could have been referring to R2's choice of foods to eat or how she dressed and Nurse Howard was not called as a witness to testify on R2's condition, I find that I can put very little weight on this evidence.

Petitioner also offered significant testimony of a relationship between R1 and R2. Testimony was given that R2 liked to dance and socialize and spend time with her roommate, with R1, and with R1's roommate. Tr. 209-210. R1 and R2 were often seen holding hands. Tr. 113. Many of the staff felt that R1 and R2 were "a couple." Tr. 208-209. When asked if R2 had the mental ability to engage in hand holding or touching with a male resident, Cynthia Wheat, the MDS Nurse, testified that:

A. Yes sir; I think she did.

Q. Okay. And why do you say that?

A. Well resident 2 was I know - at one time, resident 1 went out to the hospital and I - she would go to his room by herself looking for him and she would walk the halls and ask people where was resident 1 and she was looking for him and I really believe she did know.

Q. Did she like him?

A. Yes sir.

Q. Would you say they were girlfriend and boyfriend?

A. I - yes, sir.

Q. Was there anything about her mental ability that makes you think that she was not capable of consenting to any sort of touching with a male resident?

A. No sir, I don't.

Tr. 231.

After R1 left the facility to go to the Senior Care Unit on September 23, 2002, R2 "deeply missed him." Tr. 211. R1's mother was also a resident and R1 returned to the facility one time to attend his mother's birthday party. When R2 saw R1 on this occasion she "lit up like a Christmas tree." P. Ex. 26, at 2. Ms. Buie, who has been Petitioner's Activity Coordinator for 25 years, and who is very familiar with all the residents, testified that when R1 returned for his mother's birthday party, "[R2] saw who he was [when he entered the front door] and got up and went to him and told him to sit by her [R2]." Tr. 211. Ms. Buie stated that R1 did not go sit by R2 and that he acted "embarrassed." Tr. 211-12. I conclude, from the evidence of the staff who had daily interaction with R1 and R2, that the staff understood these two residents to be sometimes forgetful of proprieties in public, but nevertheless a "couple" who were engaging in consensual sexual activities.

The facility's response to R1's behavior was appropriate. When the first incident was observed, the CNA asked R2 to help get juice for the other residents in order to separate R1 and R2. Lou Ann Alexander, the Legal Nurse Consultant accepted as an expert in the federal requirements for facilities engaging in long-term care (Tr 267-68), summarized the facility's response and testified that the facility:

immediately notified [R1's] physician - they separated the residents immediately, first of all. They did the separation, did that throughout. They redirected the residents, they counseled with the residents many times. They had administrative, family, resident counseling sessions. They contacted the physician seven times during that short 23 day time span. The physician actually visited twice during the time span. They had psychiatric evaluations during the time span. They adjusted his [R1's] medication or started him on a new medication that the physician deemed necessary for this situation. [R1 was prescribed both Prozac and Aceon.] They called the physician back, he adjusted the medication on three different occasions. They care planned the incident, revised it on eight different occasions during this time . . . . They followed all seven steps in their policies and procedures. They did their investigation, they reported to the state - all those things. Monitoring, visual monitoring as well as monitoring in the nurse's notes.

Tr. 374-75.

Petitioner was monitoring R1 throughout this time period, from the date of the first incident until R1 was transferred out of the facility. Visual monitoring of R1was done every 30 minutes starting on September 11, 2002, and continuing until R1 was transferred on September 23, 2002. Tr. 375-76. The facility asked the physician on September 9, 2002 if R1 should be transferred to the Senior Care Unit, but the physician wanted to allow more time for the medication to work and replied that it was not appropriate at that time. Tr. 109, 376. Ms. Alexander also testified that had the facility transferred R1 without the physician's approval, that would have been an inappropriate discharge. Id.

The CMS surveyor suggested that Petitioner should have instituted one-on-one monitoring. However, Ms. Alexander testified that 30-minute monitoring was more appropriate in this situation than one-on-one supervision because 30-minute monitoring was a less-restrictive alternative and R1 also had a right to privacy. Tr. 377-78.

The record includes the affidavit of R1's physician that he, "does not feel that the staff at the Meadville . . . [was] negligent in the care of [R1]. P. Ex. 7. In fact, when the surveyor, on cross examination, was led through each of Petitioner's actions in response to the incidents concerning R1's behavior, the surveyor conceded that there was nothing inappropriate in Petitioner's response. Tr. 84, 103-20.

Although CMS was able to establish a prima facie case of abuse by R1 against R2, Petitioner has forcefully and overwhelming rebutted CMS's prima facie case by a preponderance of the evidence.

2. Petitioner complied substantially with all the other deficiencies cited against it.

Petitioner was cited for a deficiency under the regulation found at 42 C.F.R. � 483.13(c)(1)(i), which provides that a facility "must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident's property." CMS cited this deficiency because, although Petitioner had a written abuse policy, it did not have a specific policy or procedure directed to sexual abuse. Tr. 55. However, nothing in the regulations supports a requirement that a facility have a sexual abuse policy separate from an acceptable written abuse policy, and Petitioner did have an acceptable written abuse policy.

Petitioner was also cited for deficiencies under the regulations found at:

1. 42 C.F.R. � 483.20(k) that a facility "must develop a comprehensive care plan for each resident that includes measurable objectives and time-tables to meet a resident's medical, nursing, and mental and psychosocial needs that are identified in the comprehensive assessment."

2. 42 C.F.R. � 483.20(k)(2) which provides that a comprehensive care plan must be developed within 7 days after the completion of the comprehensive assessment and prepared by an interdisciplinary team.

3. 42 C.F.R. � 483.75 which provides that a facility "must be administrated in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident."

I find these allegations to be without merit. They derive entirely from the allegation that Petitioner failed to protect R2 and R3 from sexual abuse by R1 which I discuss in detail above. It is unnecessary to repeat the discussion here, except to state that CMS's prima facie case of sexual abuse by R1 against R2 was rebutted by a preponderance of the evidence, and CMS failed to establish a prima facie case of sexual abuse by R1 against R3.

In closing this discussion, a few more candid observations may not be amiss. It should go without saying that if the vast body of regulations governing the standards and operations of facilities like Petitioner means anything, it means to assure the safety of a facility's residents. If there is any group or class of residents for whom special solicitude and sympathy is demanded, it is those whose physical or mental frailties have placed them in a situation of added vulnerability to the indifference or design of others. If there is any danger or risk to these vulnerable residents that ought particularly to engage the conscience and excite the vigilance of all of us who are responsible for enforcing that vast body of regulations, it is the danger of sexual abuse, whether insidious or overt. But guesswork and assumptions, however well-meant, do not prove abuse. Neither do unasked questions and un-pursued inquiries. All of the real evidence in this case points in another direction entirely. It may not be a direction with which commonly-held assumptions, first reactions, or snap judgments may be comfortable, but it is a direction in every way consistent with the real evidence in this case.

IV. Conclusion

I do not address the issue of whether immediate jeopardy was present because Petitioner complied substantially with Medicare participation requirements. Nor do I discuss the issue of the reasonableness of CMS's remedy determination because CMS is not authorized to impose remedies where Petitioner has complied substantially with Medicare participation requirements.

JUDGE
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Richard J. Smith

Administrative Law Judge

FOOTNOTES
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1. CMS removed the deficiency concerning nursing services, Tag 353, 42 C.F.R. � 483.30(a)(1) and (2), from the allegations in this case and did not offer any direct testimony about this deficiency at the hearing. Tr. 58-59, 175; CMS Br. at 3, n. 4.

2. For the very limited reason discussed in Section I of this Decision, I have taken these documents into consideration. They have not altered my conclusions on any of the salient points discussed herein, and by taking the material into consideration I do not suggest that the practice CMS has employed here is proper, or that it will be allowed in the future.

CASE | DECISION | JUDGE | FOOTNOTES