SUBJECT:

West Point Community Living Center,

Petitioner,

Centers for Medicare & Medicaid Services.

DECISION

I find that West Point Community Living Center (Petitioner) failed to comply substantially with 42 C.F.R. � 483.13(c). I also find that the noncompliance constituted immediate jeopardy to Petitioner's residents. I therefore sustain the Centers for Medicare & Medicaid Services' (CMS's) imposition of civil money penalties (CMP) of $3,050 per day, effective August 7, 2001 through August 21, 2001. ⁽¹⁾

I. Background

Following a complaint investigation on August 21, 2001, surveyors from the Mississippi State Survey Agency concluded that the facility was not in substantial compliance with federal participation requirements for nursing homes participating in the Medicare and Medicaid programs. Specifically, it found that for the period of August 7 through August 21, 2001, the facility did not meet the federal requirements under 42 C.F.R. � 483.13(c)(1)(i) (F Tag 226 - Staff Treatment of Residents) at a "J" level of scope and severity (immediate jeopardy to resident health and safety). CMS Exhibit 2. CMS agreed with the State Agency and so advised the facility in a letter dated August 30, 2001. CMS Exhibit 8. CMS imposed a CMP of $3,050 per day for the period of noncompliance. The letter further advised the facility that its nurse aide training program would not be approved. Id. Petitioner timely requested a hearing.

This case was assigned to me for hearing and decision. I conducted a hearing on December 1, 2003 in Memphis, Tennessee; the parties received a transcript (Tr.) of the proceedings. CMS offered and I admitted CMS Exhibits (CMS Exs.) 1 through 8. Petitioner offered and I admitted Petitioner Exhibits (P. Exs.) 1 through 33. The parties submitted posthearing briefs and reply briefs.

II. Statutory and Regulatory Background

The Social Security Act (Act) sets forth requirements for nursing facility participation in the Medicare and Medicaid programs, and authorizes the Secretary of Health and Human Services to promulgate regulations implementing the statutory provisions. Act, sections 1819 and 1919. The Secretary's regulations governing nursing facility participation in the Medicare program are found at 42 C.F.R. Part 483.

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.

Under the Act and applicable regulations, each facility resident has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion. Act, sections 1819(c) and 1919(c); 42 C.F.R. � 483.13(b). The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents. 42 C.F.R. � 483.13(c). It must not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion. 42 C.F.R. � 483.13(c)(1)(i). It must ensure that all alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source, are reported immediately to the facility administrator and to other officials in accordance with state law through established procedures. 42 C.F.R. � 483.13(c)(2). The facility must have evidence that all alleged violations are thoroughly investigated, and must prevent potential abuse while the investigation is in progress. 42 C.F.R. � 483.13(c)(3). The results of all investigations must be reported to the administrator or a designated representative and to other officials in accordance with state law within five working days of the incident. If the alleged violation is verified, appropriate corrective action must be taken. 42 C.F.R. � 483.13(c)(4).

Abuse means the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish. 42 C.F.R. � 488.301.

Immediate jeopardy exists if the facility's noncompliance has caused or is likely to cause "serious injury, harm, impairment, or death to a resident." 42 C.F.R. � 488.301. CMS's determination as to the level of a facility's noncompliance - which includes its immediate jeopardy finding - must be upheld unless it is "clearly erroneous." 42 C.F.R. � 498.60(c).

If a facility is not in substantial compliance with program requirements, CMS has the authority to impose one or more of the enforcement remedies listed in 42 C.F.R. � 488.406, which include imposing a CMP. See Act, section 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 a facility is not in substantial compliance. 42 C.F.R. � 488.430(a). 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 parties' burdens in these proceedings are well-established. CMS must set forth a prima facie case that the facility was not in substantial compliance. Petitioner, in turn, has the burden of coming forward with evidence sufficient to establish the elements of any affirmative argument or defense, and bears the ultimate burden of persuasion. To prevail, Petitioner must prove, by a preponderance of the evidence, that it was in substantial compliance with relevant statutory and regulatory provisions. Batavia Nursing and Convalescent Center, DAB No. 1904 (2004), aff'd Batavia Nursing and Convalescent Center v. Thompson, No. 04-3325 (6th Cir. April 15, 2005); Hillman Rehabilitation Center, DAB No. 1611 (1997), aff'd, Hillman Rehabilitation Center v. United States, No. 98-3789 (GEB) (D. N.J. May 13, 1999); See also, Community Skilled Nursing Centre, DAB No. 1987, at 4 (2005)

III. Issues, findings of fact and conclusions of law

A. Issues

This case presents the following questions:

1. Whether, for the period of August 7 through August 21, 2001, the facility was in substantial compliance with program participation requirements for facilities participating in the Medicare and Medicaid programs, specifically with 42 C.F.R. � 483.13(c).

2. If the facility was not in substantial compliance, did the noncompliance pose immediate jeopardy to resident health and safety?

If I find substantial noncompliance at the immediate jeopardy level, the amount of the CMP will be sustained inasmuch as the statutory minimum per day CMP in an immediate jeopardy situation is $3,050.

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. I discuss each finding in detail.

1. Petitioner failed to comply substantially with 42 C.F.R. � 483.13(c), the regulatory requirement to develop and implement written policies and procedures prohibiting mistreatment and abuse of residents, during the period from August 7 through August 21, 2001.

This case centers upon two incidents that occurred on August 7, 2001, and which involved the conduct and actions of the same Certified Nursing Assistant (CNA), B. Singleton. At around 6:30 AM that day, CNA Singleton verbally abused Resident G. CMS Ex. 3, at 4; CMS Ex. 4, at 1; CMS Ex. 5, at 4, 11. The CNA, who was in Resident G's room at the time, shouted at him, calling him a "disgusting motherf*****." ⁽²⁾ CMS Ex. 3, at 1, 4; CMS Ex. 4, at 6. Two other staff members heard this; CNA Lenoir heard the abusive remark from the hallway and said that the epithet was delivered in a loud voice, and Housekeeper Hodges heard the remark from inside the bathroom of the room next to the Resident's. CMS Ex. 3, at 4-5; CMS Ex. 4, at 6. Neither employee intervened in the incident and neither reported the incident to the facility's administration or management. CMS Ex. 2, at 1-2; CMS Ex. 3, at 4-5. There is no dispute that CNA Lenoir, although she allegedly had received in-service training on abuse in the past, did not intervene or report the incident because she did not consider that the incident represented abuse. CMS Ex. 2, at 2; CMS Ex. 3, at 4; and CMS Ex. 5, at 7; P. Ex. 19 (CNA Lenoir signed that she attended in-service training along with CNA Singleton on May 23, 2001). Housekeeper Hodges stated that she understood the incident constituted abuse and that she should have reported it. CMS Ex. 2, at 2; P. Ex. 23, at 2 (indicating that Ms. Hodges attended in-service training on abuse and neglect on March 20, 2001).

Later that day, at approximately 1 PM, CNA Singleton was pushing Resident W, a 90-year-old female, down the hall in a wheelchair. Resident W was significantly impaired cognitively and physically, and her physical impairments included an above-the-knee amputation of one leg and a below-the-knee amputation of the other. CNA Singleton was seen forcefully pushing the Resident's chair, then letting go of the chair and yelling to another aide to catch Resident W. The Resident's wheelchair rolled approximately 15 feet down the hallway unattended before another CNA caught it. Because of her amputations, Resident W could not sit in a wheelchair without a belt and a cushion. CMS Ex. 3, at 3. After observing the resident during the survey, the surveyor concluded that if Resident W's wheelchair had tipped over or had run into anything, the resident likely would have been unable to protect herself from injury. This observation was substantiated by a facility nurse, who had witnessed the incident and also had concluded that the Resident could have been injured because she was incapable of reaching out and stopping herself from running into something. CMS Ex. 4, at 4.

After the second incident, the episodes of abuse were finally reported; CNA Lenoir reported the wheelchair incident and Housekeeper Hodges finally reported the earlier verbal abuse incident. ⁽³⁾ Although facility policy and procedures specify that staff accused of abuse were to be placed "on leave" or assigned to "nonresident care duties" pending investigation of any alleged incidents, that policy was not followed. P. Ex. 28, at 7. Apparently, CNA Singleton continued to work in the facility until 6:22 PM, assisting in the dining room with the evening meal and with residents. Tr. at 118. ⁽⁴⁾ There is no evidence that she was being supervised in any way or was under anyone's direct supervision.

At the outset, Petitioner does not dispute that CNA Singleton's actions were abusive. Rather, Petitioner contends that it was in substantial compliance with 42 C.F.R. � 483.13(c) which requires that it develop and implement policies and procedures that prohibit mistreatment and abuse of residents. P. Reply Br. at 4. I find no substantiation for Petitioner's contentions. Instead the evidence supports the surveyor's finding that Petitioner had not meaningfully implemented its own policies and procedures.

The facility's written policies set forth the CMS requirements. They state that residents have the right to be free from abuse and that a facility has the responsibility to not only prevent abuse but to prevent those practices and omissions that if left unchecked may lead to abuse. ⁽⁵⁾ The policy reiterates that residents may not be subjected to abuse by anyone. It defines "abuse" as the "willful infliction of injury, unreasonable confinement, intimidation or punishment with resulting physical harm or pain or mental anguish" and presumes that any instances of abuse of any residents, even those in a coma, cause physical harm, pain, or mental anguish. It further defines "verbal abuse" as "any use of oral, written, or gestured language that willfully includes disparaging and derogatory terms to residents . . . or within their hearing distance, regardless of their age, ability to comprehend, or disability." P. Ex. 28, at 3. CMS cogently summarizes the situation:

The undisputed facts are that a facility employee abused Resident [G] early that morning; that two other employees witnessed the abuse and failed to report or to intervene; that that afternoon the abusive aide committed a second act of abuse; and that the aide was allowed to continue performing resident care duties after it was known that she had committed two acts of abuse that day.

CMS Br. at 9-11.

This case presents the troubling picture of several facility employees who witnessed the events and did nothing. This was because they did not initially identify the incidents as abusive and, even if they did recognize CNA Singleton's actions as abusive after the second incident, the employees failed to follow the facility's policy and procedures for reporting and taking appropriate action. It was not only CNA Lenoir and Housekeeper Hodges who failed to follow the policies and procedures, but the failure also extended up the chain of supervision. Regional Nurse Hall, a corporate employee, testified that she did not consider that allegations of verbal abuse required that an accused employee be precluded from having contact with residents. She testified that not only was she in the facility at the time of the incidents but that she advised both the Assistant Director of Nursing as well as the administrator as to how to proceed. ⁽⁶⁾ Tr. 112 - 114, 116, 117. Frankly, if Administrator Lovelace was fully familiar with facility policy and procedures, she would not have asked Regional Nurse Hall what to do and certainly would not have allowed CNA Singleton to continue working in the dining room or with any resident at all. Tr. 117, 118. This illustrates a wider systemic problem in the facility; it points to a real failure because employees were not knowledgeable of the policies and procedures and did not implement them, leaving the residents at real risk for serious harm. The most significant evidence of this is the failure to immediately reassign CNA Singleton to non-resident care duties or put her on leave until the results of the investigation had been completed. This fact alone supports a finding that the facility had not implemented its required policy. P. Ex. 28, at 7. See Barn Hill Care Center, DAB No. 1848 (2002); Cedar View Good Samaritan, DAB CR997 (2003).

Essentially, there are several purposes for a facility policy against abuse: one is to provide specific notice to employees of a facility regarding what is considered abuse and that it will not be tolerated; the second is to direct other employees that they are under an obligation to report any instances of abuse against residents that they witness and to train employees to recognize abuse and to take appropriate action to report it; and the third and most important purpose is to protect residents, especially because they may not be able to protect themselves and to make sure that they feel safe and secure and not demeaned or fearful in their "home." However, the best policies and procedures are worthless if they are not being implemented and understood by each and every employee. What I find most troubling here from the testimony of Regional Nurse Hall and Administrator Lovelace is the lack of any real consideration about the ramifications to not only the two residents involved but to other residents of the facility that may have heard or witnessed these incidents. The occurrence of any such event would likely make any other residents who saw or heard this fearful of their own safety and dignity.

Therefore, I find that the evidence overwhelmingly establishes that Petitioner had not meaningfully implemented its written policies and procedures for prohibiting mistreatment and abuse of its residents. I further find that Petitioner did not present any evidence that rebutted CMS's findings; Petitioner failed to establish its compliance.

2. I find that Petitioner's noncompliance which began August 7, 2001, posed immediate jeopardy to resident health and safety and that the immediate jeopardy continued until August 21, 2001, when the facility noncompliance ceased and the facility was determined to have implemented appropriate measures to ensure that similar incidents would not recur.

Petitioner argues that CMS's evidence does not support a finding of immediate jeopardy because "no resident was physically harmed by either incident." P. Reply Brief at 4. Petitioner also contends that even if I sustain the immediate jeopardy finding, the immediate jeopardy was abated by August 8, when staff were allegedly in-serviced on facility abuse and reporting policy and CNA Singleton was suspended and certainly by no later than August 10, 2001, when CNA Singleton was terminated. Id.

I first consider whether CMS's immediate jeopardy finding was "clearly erroneous." 42 C.F.R. � 498.60(c)(2). The Board has observed repeatedly that the "clearly erroneous" standard imposes on facilities a "heavy burden" to show no immediate jeopardy, and has sustained determinations of immediate jeopardy where CMS presented evidence "from which '[o]ne could reasonably conclude' that immediate jeopardy exists." Barbourville Nursing Home, DAB No. 1962, at 11 (2005); Florence Park Care Center, DAB No. 1931, at 27-28 (2004), citing Koester Pavilion, DAB No. 1750 (2000).

Immediate jeopardy exists if the facility's noncompliance has caused or is likely to cause "serious injury, harm, impairment or death to a resident." 42 C.F.R. � 488.301. While Residents G and W did not suffer actual physical harm, they certainly were victims of verbal abuse and experienced mental anguish. Moreover, it is no better than fortuitous that Resident W was not injured in this incident, and the potential for grave injuries in the incident needs no emphasis here. The failure of the facility to adequately train its employees on what constitutes abuse and what to do if abuse is suspected put each and every resident of the facility in harm's way. I consider this at the very least to be a situation which was likely to cause serious harm to the residents. The facility then compounded its deficiencies when its employees failed to report or investigate adequately and when CNA Singleton was allowed to continue to interact with and care for residents. Because the facility did not recognize the problem, it took no steps to prevent any recurrence. This put residents at risk of serious harm. I therefore find that immediate jeopardy existed at the facility and CMS's immediate jeopardy determination is therefore not "clearly erroneous."

I next consider Petitioner's contention that immediate jeopardy was abated by August 8, or at least by August 10, 2001. CMS correctly pointed out the legal standard applicable here. Where noncompliance, including noncompliance that poses immediate jeopardy, is found to exist, CMS may impose a CMP "as early as the date the facility was first out of compliance," and the CMP will continue to accrue until the facility "alleges and establishes that it has . . . removed the immediate jeopardy." Florence Park Care Center, DAB No. 1931 (emphasis added). Noncompliance, including immediate jeopardy, may not be found to have ceased until "the incidents of noncompliance have ceased and the facility has implemented appropriate measures to ensure that similar incidents will not recur." Id. at 30 (emphasis in original). Petitioner submitted no evidence of any in-service training on August 8 other than a statement in its plan of correction and testimony from Regional Nurse Hall. P. Ex. 16, at 2; Tr. 120, 131-33 (Nurse Hall conceded that she did not know that all CNAs and employees received in-service training on that date). For every other instance of in-service training, Petitioner provided a sign-in sheet or other documentation indicating that in-service training was conducted and on what subject and for how long. See P. Exs. 19, 20, 21, and 23. What Petitioner offers as evidence of in-service training on August 8, 2001 are the records of Verbal Discipline citations issued with respect to Ms. Hodges, the housekeeper, and to CNA Lenoir. A close reading of these two documents does not indicate that there was any facility-wide in-service training done on August 8. Rather, P. Ex. 5, which is dated August 7, 2001, states only that Ms. Hodges was "instructed to always take immediate action when a suspected abuse has taken place" and P. Ex. 14 is dated August 21, 2001 and indicates that CNA Lenoir was "corrected and instructed to always report any type of abuse or suspected abuse immediately." The only evidence in the record of in-service training after the incident in question is for a facility-wide in-service training which occurred on August 21, 2001. CMS Ex. 6, at 26; Tr. 92. Therefore, I sustain CMS's determination that Petitioner did not establish that it had corrected the problems with respect to meaningful implementation of its policy and procedures for abuse and neglect until the completion of the facility-wide training on August 21, 2001. Thus, there is no basis for finding that the CMP should have stopped accruing earlier than that date.

IV. Conclusion

For all the reasons discussed above, I uphold CMS's determination that from August 7 through August 21, 2001, Petitioner failed to comply with 42 C.F.R. � 483.13(c) and that the noncompliance constituted immediate jeopardy to Petitioner's residents. I therefore sustain the imposition of a CMP of $3,050 per day, which is the statutory minimum per day CMP in an immediate jeopardy situation.

Richard J. Smith

Administrative Law Judge

1. CMS was formerly named the Health Care Financing Administration and referred to as HCFA. See 66 Fed. Reg. 34, 437 (July 5, 2001). I use "CMS" in this decision unless I am quoting documents that specifically refer to HCFA.

2. The record indicates that this same aide had been disciplined and sent home five months earlier for another verbal abuse situation which occurred on March 10, 2001. CMS Ex. 7. The documentary records indicate she attended two half-hour in-service training sessions on the subject of abuse and neglect on March 20, 2001 and May 23, 2001. P. Exs. 19 and 20; but see P. Ex 23, at 2 which does not include CNA Singleton's signature on the attendees' sign-in sheet for the March 20, 2001 in-service training.

3. The facility administrator learned of the episodes of abuse at approximately 2 PM. While the administrator reprimanded Housekeeper Hodges that day, she did not until August 21 reprimand CNA Lenoir who also witnessed the incident of verbal abuse and failed to report it. CMS Ex. 5, at 11; CMS. Ex. 2, at 3; CMS Ex. 3, at 4.

4. There is some conflict with respect to where CNA Singleton was after the two abusive incidents. It stems in large part from the testimony of Regional Nurse Hall, who worked for the corporation that operated Petitioner, and who was in the facility on the day of the incidents, although she did not witness either incident. CMS argues that this testimony was a complete departure from Petitioner's earlier statements during the survey, in its Plan of Correction, in its hearing request, and in its prehearing memorandum. CMS Brief (Br.) at 11. Ms. Hall contends that she told the administrator to relocate CNA Singleton away from the two residents who were the objects of her alleged abuse. Nurse Hall testified that if there was an allegation of physical abuse against an employee that employee would not be relocated to another unit in the building [the implication being that the employee would be removed entirely from interaction with residents], but that it would be okay to do so if the allegations were of verbal abuse and the employee was under constant supervision by another employee. Tr. at 117. She testified that the Administrator told her that the CNA was reassigned to the dining room where a licensed nurse was also on duty. Tr. at 118. The surveyor's testimony, however, contradicts Nurse Hall's statement. The facility administrator told the surveyor that the abusive aide had continued to perform CNA duties on another hallway after the incidents of abuse had been reported and that she worked until 6:22 PM that evening. Tr. at 32; CMS Ex. 8 at 3; P. Prehearing Memorandum at 2. Ms. Lovelace, the administrator, then recanted somewhat her prior statements and testified for the first time at the hearing that she moved CNA Singleton not to another hallway but to the dining area where she was under "close" supervision. Tr. at 73. In either case, CNA Singleton still was in a position to interact with residents.

5. Whether abuse actually occurred is not relevant to citations under F Tag 226. Under Tag 226 a facility is required to "develop and implement" policies and procedures that prohibit mistreatment, neglect, and abuse of its residents. A "suspicion" of abuse, neglect, or mistreatment is enough to require immediate action under its policies and procedures by a skilled nursing facility. Cedar View Good Samaritan, DAB CR997 (2003).

6. Administrator Lovelace testified that Regional Nurse Hall actually was acting as the Acting Director of Nursing for the facility at the time of the incident. Tr. at 99.