SUBJECT:

Mountain View Manor,

Petitioner,

Centers for Medicare & Medicaid

DECISION

For the reasons stated below, I conclude that Mountain View Manor (Petitioner) was not in substantial compliance with Medicare conditions of participation governing nursing home facilities at an immediate jeopardy level from May 25, 1999 through June 30, 1999, and at a non-immediate jeopardy level from July 1, 1999 through September 7, 1999. Accordingly, I sustain the Centers for Medicare and Medicaid Services' (CMS) imposition of civil money penalties (CMPs) and denial of approval of the facility's Nurse Aide Training and/or Competency Evaluation Program (NATCEP) for two years.

I. Background

A. The procedural background

Petitioner is a skilled long term nursing facility located in Prescott, Arizona. The Arizona Department of Health Services (State agency) conducted an annual certification survey of Mountain View Manor from June 28, 1999 to July 2, 1999. The State agency cited Petitioner for numerous alleged deficiencies, five of which were categorized as immediate jeopardy. On November 4, 1999, CMS notified Petitioner that it concurred with the State agency's findings and would impose a CMP and denial of approval of the facility's NATCEP for two years. CMS imposed a CMP in the amount of $3050 per day from May 25, 1999 through June 30, 1999, for thirty-seven days of alleged immediate jeopardy, and $500 per day effective July 1, 1999. Based on a second follow-up survey, CMS determined that Petitioner was back in substantial compliance with Federal participation requirements effective September 8, 1999. Petitioner timely requested a hearing by letter of December 29, 1999.

A hearing was held before me in Phoenix, Arizona, from November 13-15, 2002. CMS submitted its exhibits, identified as CMS Exs. 1-66, and I admitted them into the record. Petitioner submitted its exhibits, identified as P. Exs. 1-24, and I admitted them into the record. Both parties were sent a copy of the hearing transcript (Tr.) Petitioner submitted a post hearing brief (P. Br.) and CMS submitted a post hearing brief (CMS Br.) With its initial post-hearing brief, CMS provided a document entitled "NASW Standards for Social Work in Long-Term Care Facilities" and identified it as CMS Attachment 1. Petitioner offered no objection to my consideration of this document, so I have included it in the record of this case.

The following persons testified for CMS: State agency surveyors Lila Van Cuyk; Sue Collins-Welch, Mary Swanson; and Pauline Zautke. Also testifying for CMS were: Edgardo Japitana and Mary Frances Colvin, CMS oversight surveyors; Naomi Markle, a former State agency surveyor; Paula Perse, a CMS health insurance specialist; Linda Teri, Ph.D, a professor; and Barry Straube, M.D., CMS Chief Medical Officer, Region IX. The Petitioner presented the following witnesses: Connie Coulter, L.P.N.; Gary Olson, Mountain View's administrator; and Mary Mitchell, vice-president of Health Facilities Management Corporation, Mountain View's management company.

Based on the testimony offered at the hearing, the documentary evidence, the arguments of the parties, and the applicable law and regulations, I find that from May 25, 1999 until September 8, 1999, Petitioner was not in substantial compliance with Medicare participation requirements in a way that created immediate jeopardy to its residents from May 25, 1999 until July 1, 1999, and a potential for more than minimal harm to its residents thereafter through September 7, 1999. I also find CMS is authorized to impose a CMP at the rate of $3050 per day from May 25, 1999 through June 30, 1999; and $500 per day for the period from July 1, 1999 through September 7, 1999, for a total of $147,350. Moreover, as a result of the amount of the CMP, Petitioner could not be certified for NATCEP for two years.

B. Applicable law and regulations

Petitioner is considered a long-term care facility under the Social Security Act (Act) and regulations promulgated by the Secretary of Health and Human Services (Secretary). The statutory and regulatory requirements for participation by a long-term care facility are found at sections 1819 and 1919 of the Act and at 42 C.F.R. Part 483.

Sections 1819 and 1919 of the Act invest the 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. 42 C.F.R. Part 488 provides that 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. Under 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 in 42 C.F.R. § 488 give CMS a number of different remedies that can be imposed if the facility is not in compliance with Medicare requirements. Id.

The regulations specify that a CMP that is imposed against a facility will fall into one of two broad ranges of penalties. 42 C.F.R. §§ 488.408; 488.438. The upper range of CMPs, of from $3,050 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. 42 C.F.R. §§ 488.438(a)(1), (d)(2). The lower range of CMPs, of from $50 per day to $3,000 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. 42 C.F.R. § 488.438(a)(2).

The regulations define the term "substantial compliance" to mean "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." 42 C.F.R. § 488.301.

No facility can have an approved NATCEP if the facility has been assessed a CMP in excess of $5,000 in the prior two years. 42 C.F.R. § 483.151(b)(2)(iv).

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. Hillman Rehabilitation Center, DAB No. 1611 (1997); aff'd, Hillman Rehabilitation Center v. HHS, No. 98-3789 (GEB) (D.N.J. May 13, 1999). Under Hillman, CMS bears the burden of coming forward with evidence sufficient to establish a prima facie case that Petitioner failed to comply with participation requirements. Once CMS has established a prima facie case of noncompliance, Petitioner has the burden of proving, by a preponderance of the evidence, that it complied substantially with participation requirements. Hillman, at 3-8.

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 F2d. 678 (8^th Cir. 1991).

II. Issue

The issues in this case are whether CMS had a factual basis to impose remedies against Petitioner for failing to comply substantially with Federal participation requirements. If so, the next question is whether CMS's decision that the deficiencies put Petitioner's residents in immediate jeopardy was clearly erroneous. The final issue, if the CMP is authorized, is whether the amounts imposed are reasonable.

III. Findings of fact and conclusions of law

I have examined closely all of the evidence of record to determine whether Petitioner was complying with participation requirements and to decide whether a CMP may be imposed against Petitioner. Petitioner was cited for having failed to meet 15 requirements for participation in the Medicare program. These deficiencies were identified as "Tags" and refer to particular regulatory requirements as follows:

1. F157 - Residents Rights, 42 C.F.R. § 483.10 (b)(11).

2. F223 - Resident Behavior and Facility Practices - 42 C.F.R. § 483.13(b)

3. F224 - Resident Behavior and Facility Practices, 42 C.F.R. § 483.13(c)(1)(i)

4. F241 - Quality of Life - 42 C.F.R. § 483.15(a)

5. F272 - Resident Assessment - 42 C.F.R. § 483.20(b)

6. F279 - Resident Assessment - 42 C.F.R. § 483.20(d)

7. F282 - Resident Assessment - 42 C.F.R. § 483.20(d)(3)(ii)[sic]

8. F312 - Quality of Care - 42 C.F.R. § 483.25(a)(3)

9. F371 - Dietary Services - 42 C.F.R. § 483.35(h)(2)

10. F387- Physician Services - 42 C.F.R. § 483.40(c)(1) & (2)

11. F441 - Infection Control - 42 C.F.R. § 483.65(a)(1)

12. F490 - Administration - 42 C.F.R. § 483.75

13. F493 - Administration - 42 C.F.R. § 483.75 (d)(1) & (2)

14. F501 - Administration - 42 C.F.R. § 483.75(i)

15. F698 - past non-compliance

CMS cited the following Tags at the immediate jeopardy level: F223, F224, F490, F493, and F501. All of the alleged immediate jeopardy Tags are based on essentially the same set of facts.

Below, I discuss my Findings with respect to a number of alleged Tags. I do not discuss herein every cited Tag. The Departmental Appeals Board (DAB) has previously approved an ALJ's discretion to exercise judicial economy and not discuss every alleged deficiency. Beechwood Sanitarium, DAB No. 1824 at 22 (2002); Western Care Management, DAB CR1020 (2003).

Nonetheless, the preponderance of the evidence, as discussed below, supports the finding that Petitioner failed to comply with more than one condition of participation. This is a sufficient basis to affirm CMS's imposition of remedies against Petitioner.

I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each of my ultimate Findings below as a separate heading. I discuss each Finding in detail, including the results of the survey, whether the results are supported by the evidence of record, and whether Petitioner has met its burden to overcome the findings the surveyors made.

I will begin with the immediate jeopardy citations that, as conceded by CMS, are the most important part of its case, and I describe my underlying factual findings that form the basis for these alleged immediate jeopardy deficiencies in numbered paragraphs immediately below.

1. Petitioner's facility included a separate locked unit called "Autumn Court." Autumn Court was opened in June 1996. Petitioner advertised this unit as a special care unit for residents with Alzheimer's disease and related disorders. CMS Ex. 53, at 14. Autumn Court was designed for up to 26 residents. During the time at issue, approximately 20 residents were living at Autumn Court. This unit was locked and had its own dining room, social room, and outside courtyard. Tr. 623.

2. Alzheimer's disease is a terminal illness. There are generally three phases to the disease. During the first phase, the disease may not be readily apparent. Reactions are slow, judgment is impaired, and decisions are difficult. During the second phase, the patient is having increasing difficulty with math calculations, is becoming disoriented, and experiences difficulty in speaking and understanding. In the third phase, the patient cannot perform the activities of daily living, directions are not understood, extreme confusion is present, and the patient often cannot recognize family members and is totally dependent on others for care. CMS Ex. 43, at 59; Tr. 307. The residents at Petitioner's Autumn Court were generally in the third phase of the disease and either had no family or needed such extensive care that family members could no longer provide it. Tr. 451-52.

3. Alzheimer's patients, rather than being totally unaware of their surroundings, are especially susceptible to anxiety and agitation over others' actions. Tr. 308, 337, 360.

4. Alzheimer's patients often manifest some of the following behaviors that are difficult for caregivers: wandering/pacing; rummaging/pillaging; anxiety/agitation; exaggerated over-reactions; combativeness/aggression; screaming/yelling; repetitive movements; clothes layering or stripping; and inappropriate sexual behavior. CMS Ex. 43, at 56 and 57; Tr. 308.

5. Dealing with patients suffering from Alzheimer's disease and dementia who have behavioral problems requires employing the following steps: monitoring behavior; identifying problems; and identifying triggers for the behavior; redirecting the patient to prevent the behavior; and crisis management when prevention is not possible. Tr. at 311. In addition, a care giver must: remain quiet and calm; communicate slowly and clearly; approach patients calmly, quietly; and with a lot of care; be aware of the environment; back away from an agitated resident; apologize; and use a different staff member to redirect an agitated resident. Tr. 311 - 22. The standard of care for behavioral problems is to identify problems and intervene as early as possible. Care givers must be taught to see patterns in the patient's behavior. Id. at 311-13.

6. Petitioner staffed Autumn Court with from three to four individuals for each shift. Generally, the unit had a charge nurse, two Certified Nursing Assistants (CNAs) and an activities person available. This amounts to about one person per five residents who each needed extensive assistance with eating, toileting, bathing, dressing, and activities. At certain times, Autumn Court had fewer staff present. Occasionally at night and on weekends, the staff members divided their time between Autumn Court and the other parts of the facility. Tr 623. The staffing records for Autumn Court show that for at least one period of time between April 1, 1999 and April 10, 1999, there was no nurse scheduled for Autumn Court for the night shift. CMS Ex. 32, at 16; Tr. 624-25.

7. During the time at issue, the staff of Autumn Court prepared relatively extensive "nurses notes" regarding each of the residents. P. Ex. 1-7, 14-22. During the July 1999 survey, the surveyors reviewed these nurses notes and also observed some situations at Autumn Court they found particularly disturbing. These observations concerned resident-to-resident abuse. The surveyors were particularly concerned about three residents, referred to as Residents 15, 14 and 9. None of these residents was on a behavioral management program. Tr. 176.

9. Resident 15's behavior during the period of alleged immediate jeopardy was preceded by six months of other aggressive behaviors including: hitting a resident with a helmet on; pushing or shaking a chair when another resident was sitting down; giving three male residents a dutch rub; hitting three people on the head; hitting a female resident in the back; giving a female a "dutch rub;" fist fighting with another male; pushing a female and rubbing her head "hard;" grabbing a female resident's hair; booting with his foot a resident; booting a resident in the rear; and rolling a magazine and hitting a resident on the head with the magazine. P. Ex. 16, at 25, 27, 32, 39, 42, 43, and 47.

10. The nurses' notes contain no indication that Resident 15 physically hurt any other Autumn Court resident to any serious extent. Resident 15's behavior was noted, nonetheless, to have "agitated" other residents, and he "had unit all agitated the past two days." P. Ex. 16, at 25, 27.

11. Resident 15 also displayed sexually inappropriate behavior. Between May 25, 1999 and July 1, 1999, Petitioner's nurses notes record this resident as having patted staff or other residents' rears on seven different occasions. Additionally, the notes record that Resident 15 made sexual remarks, took off his diaper, and was naked in his roommate's bed. In the prior six months, he had whacked on the rear a new female resident that had an unsteady gait, he began going in and out of other residents' rooms in the nude, and had rubbed a female resident's legs and breasts. One of the surveyors personally observed Resident 15 pinch a female resident on the buttocks. Tr. 27-28.

12. Resident 15 caused other sorts of havoc at Autumn Court. He frequently yelled at other residents, banged on the tables and doors, and set off the door alarms. He obtained a staff member's cigarette lighter and cigarettes, and lit a cigarette before his activity was discovered. P. Ex. 16, at 38.

13. Resident 15 was very childish. He laughed at his actions and was attention-seeking. Tr. 517-19. I find it was unlikely he would rape another resident. Nonetheless, the havoc he created was mentally disturbing and painful to the other residents. Tr. 359. Contrary to Petitioner's contention (P. Br. at 16), Resident 15's behavior had not improved measurably before the surveyors arrived and allegedly disrupted the unit. P. Ex. 16, at 49.

14. Resident 14 was diagnosed with Alzheimer's disease and cognitive impairment with memory loss. CMS Ex. 20, at 1; P. Ex. 18, at 5. Nurse Coulter described Resident 14 as slight with a substantial visual deficit. The visual deficit and his disease caused him to swing out. Tr. 510-11.

15. By the July 1, 1999 survey, Resident 14 had been at the facility for an extensive period of time. The nurses' notes document that from May 25, 1999 to July 1, 1999, the time period of alleged immediate jeopardy, Resident 14 was observed: striking out more at females; feeling several female's breasts; hitting a female and grabbing another female resident, and grabbing a female resident's gown. P. Ex. 18, at 119-20; CMS Ex. 43 at 51. Resident 14 was engaged in this behavior after over 18 months of similar behavior. P. Ex. 18. Nurse Coulter denied that Resident 14 was a sexual predator. While I agree that Resident 14 was not a sexual predator, his actions, however, could be offensive, anxiety-producing to others, and physically painful to other residents. Tr. 359.

16. Nurse Coulter also opined that Resident 14 was too frail to actually injure another resident. Tr. 510 - 11. I find, to the contrary, Resident 14 was not too frail to actually hurt himself and others. The nurses' notes belie Nurse Coulter's testimony. In his many instances of hitting someone else, Resident 14 sustained bruises and skin tears. P. Ex. 18, at 105, 107, 110, and 119. Additionally, Resident 14 hit another female resident in the mouth and punched another female resident in the left cheek. He hit a female resident with a closed fist and slapped another female resident in the face. On other occasions, he hit a female resident two times in the face and jerked another female resident by the hair. P. Ex. 18, at 103, 112, 113, 119. The Autumn Court staff summed up by saying, "he is verbally and physically abusive to staff and other residents" and "he seems to go after two small female residents." P. Ex. 18, at 113, 129-30.

18. From May 25, 1999 until July 1, 1999, the time-period of the alleged immediate jeopardy, the nurses' notes document that Resident 9 had hit other females and hung on the men. She grabbed a male resident on both arms and caused multiple skin tears. She hit two other female residents by slapping them across the face. She also hit a female resident in the face at three different times. She pushed [Resident 1] and stalked her to get close enough to touch her. She was additionally noted to have hit another resident, pushed and socked other residents, yelled and hit other female residents, and she hit two female residents. She was abusive to staff. P. Ex. 15, at 45, 48, 50, 52, and 54; CMS Ex. 43, at 10.

19. Ed Japitana, the CMS surveyor who was conducting a federal oversight survey along with the State agency, observed Resident 9 strike out at other residents three times in the span of 50 minutes. Tr. 203-06. Surveyor Van Cuyk observed that staff members were present in Autumn Court when she observed Resident 9 was striking out at other residents and yet no one from the staff attempted to intervene. Tr. 37, 85-6. Surveyor Swanson testified that she observed Resident 9 trying to grab a male resident's arm and force him to kiss her. The facility did not intervene at this point either. Tr. 162. Both Ms. Swanson and Mr. Japitana witnessed Resident 9 hit another resident while a nurse or CNA called out from afar to tell Resident 9 to "stop it." Tr. 164, 205.

20. Petitioner, at or about the time of the July 1999 survey, arranged to have Resident 9 transferred to another facility. ⁽¹⁾

21. Simply because Autumn Court was an Alzheimer's unit does not mean the residents who harmed other residents could not be controlled. I carefully reviewed the testimony of Linda Teri, Ph.D. ⁽²⁾ I afforded great weight to her testimony because it would be difficult to deny that this witness is one of the foremost authorities on the care of Alzheimer's patients. Tr. 301 - 06. CMS Ex. 52. She has consulted, lectured, written, and taught on the subject. Dr. Teri adamantly disagreed that Alzheimer residents need to be subjected to the bad behavior of other residents. Tr. 323.

22. Petitioner did not do all it could have or should have done to protect its residents at Autumn Court. Dr. Teri testified that there are very few Alzheimer's patients whose bad behaviors cannot be managed. Tr. 323. Dr Teri further testified that a facility needs clearly defined, specific procedures in place for affording Alzheimer's patients with a safe, secure environment that is free from abuse. Tr. 350. Further, there must be reporting mechanisms in place for the care givers. Tr. 351. Defined procedures for screening potential residents and for assessment of and supervision of care givers are required. Tr. 351. Care givers must be trained on the job and procedures must be in place for that training. Tr. 351-52. All of these procedures should be in place before the facility opens its doors. Tr. 352. Dr. Teri testified that the procedures Petitioner had in place were too vague and broad to be helpful to the staff. Tr. 352 -53.

23. Dr. Teri testified to a number of situations where she felt the Autumn Court staff had not dealt with the residents according to standards of practice. For example, with Resident 14, she proffered that, if the staff knows there is a resident who can be violent and they know that the resident seems to target frail residents, someone on the staff must intervene when seeing this person approaching another frail resident. Tr. 330. Dr. Teri further testified that after Resident 14 hit another resident three days in a row, someone on the staff should have been watching him and, if he approached the other resident, redirect him. Tr. 333. She felt that the staff failed to pay sufficient attention to the triggers of Resident 14's bad behaviors. With respect to Resident 9, Dr. Teri felt that the staff was upsetting this resident in its way of providing care for her. Tr. 338. Moreover, Dr. Teri testified that because Resident 9 was targeting another particular resident, the staff should have dropped their other tasks when Resident 9 approached this resident and intervened. Tr. 340. "It [the staff's intervention] happened a lot after the fact. A lot of crisis management because things were out of control, but no plan, no prevention." Tr. at 340, 342, 360.

24. Petitioner argues that Resident 14, particularly, was unpredictable in his lashing out and there was no way to control his behaviors. I find, however, that the staff was well aware that he would strike particular residents. Moreover, the staff had several years to "monitor" Resident 14. Further "monitoring" as a tool was unlikely to help. By the time of the June 30, 1999 survey, the staff should have had a written description of who Resident 14 targeted, the time of day he was most likely to engage in bad behaviors, where he was when he engaged in the behaviors, the circumstances surrounding his behaviors, and what had specifically worked in the past to correct his behaviors. Tr. 333.

25. Petitioner did have some policies for Autumn Court that were given to the surveyors at the time of the survey. CMS Ex. 37. The policies were related primarily to admission criteria for Autumn Court, and for pre-admission screening. These policies did not address specifically problems of abuse. Id. ⁽³⁾ Petitioner's administrator Olson described the Petitioner's policies as "fairly general, quite frankly." Tr. 594-95.

26. Petitioner did not implement the policies it did have in place. Petitioner's policies did, however, specify that "[p]re-admission screening is mandatory." CMS Ex. 37 at 3. Several CMS witnesses at the hearing felt some of the resident-to- resident abuse at Autumn Court could have been avoided had Petitioner just followed its own policy regarding pre-admission screening and assessment, e.g., Resident 9 might have been shown to be inappropriate for Autumn Court before she was admitted. Tr. 108, 132, 165, 179. Dr. Teri testified that Petitioner's policy required the staff to use a behavioral assessment tool such as the "Memory and Behavioral Checklist Information" she had helped develop. CMS Ex. 37, at 5. Yet, Dr. Teri found no evidence that the staff was using any such tool. Tr. 349.

27. Moreover, the training of the staff at Autumn Court was insufficient to implement any meaningful policies against abuse. Too few in-service training programs were offered to protect the vulnerable residents. Tr. 345-48. The surveyors reviewed Petitioner's in-service training records for the time period of January 1998 until the July 1999 survey. Tr. 621. Petitioner performed four in-service training sessions in a 13 month period and none directly addressed how to deal with the residents' behavior. CMS Ex. 46. During this time period, Autumn Court staff received no special training in behavioral management, or any training at all specifically related to Alzheimer's and dementia patients. Tr. 105-06, 622, 627. CMS surveyors presented considerable hearsay testimony about Autumn Court CNAs who denied having received training. See, e.g., Tr. 43-4, 87-8, 185-87. Petitioner presented none of these CNAs at the hearing to rebut the surveyors' testimony.

28. There must have been some training at some point in time because the records show in September 1998, the staff was aware of approaches such as "1 on1," "withdraw and reapproach," "quiet time," "slow approach and reassurance." See, e.g., P. Ex. 2, at 24; P. Ex. 12, at 3-5. Clearly however, the training was too infrequent. By the time of the survey, some of those who had received training had moved on and were no longer working at Autumn Court. Newer staff members were not provided training beyond that offered during the initial CNA certification training. P. Ex. 7, at 3.

29. The limited training that was provided was inadequate for Autumn Court staff who were dealing with difficult behavioral issues. Tr. 344-48. Although Petitioner suggested that the surveyors did not speak to the appropriate people to determine the amount of training received by the Autumn Court staff, Petitioner provided no evidence that, in fact, specific training was done. It is particularly troubling that no in-service training was scheduled given the problems staff had in dealing with Residents 15 and 14 over a long period of time.

30. Autumn Court's charge nurse, Connie Coulter, L.P.N., testified for the Petitioner. She appeared to me to be a caring, giving individual who had a genuine affection for the residents of Autumn Court and who has been doing a very difficult job not many are willing to do, and probably for much less pay than the job deserves. Moreover, I would note that the residents were abusive to staff as well as other residents.

31. Ms. Couter testified that she had heard Dr. Teri's testimony and felt like her staff employed many of the same techniques indicated by Dr. Teri as appropriate. Nonetheless, her recollection about when the staff received more specific training on those techniques and generally in dealing with Autumn Court residents was unspecific. On review of the exhibits, this type of training was more likely initiated after the survey at issue. See also, Tr. 43-4, 87-8, 185-87.

32. The staff at Autumn Court was likely too few in number, particularly at certain times of the day or evening. The record does not contain any target staff- to- resident ratios for units such as Autumn Court. But when one considers that the residents were dependent on the staff for almost all of their basic care such as toileting, bathing, feeding, and dressing, and constant entertainment or diversion for those needing it, one wonders how a staff ratio of one to five could be sufficient, particularly if the staff was not trained sufficiently to deal effectively and efficiently with the residents.

33. As noted above in Finding 6, Autumn Court staff members, during the night shift or on weekends, were required to work at other areas within Petitioner's facility. While staffing may logically be reduced in a facility during the period of time when residents are sleeping, such a reduction of staffing in an Alzheimer's unit is problematic because often residents afflicted with Alzheimer's will act out at night. Tr. 634.

34. In order to better manage residents' behavior in a special Alzheimer's unit, the unit should be prepared to keep residents occupied with some sensory stimulation, music, snacks, touch, reassurance, and redirection. Tr 187. The CNAs at Autumn Court were too busy giving direct care to be available to provide or assist with therapeutic activities. Tr. 187.

35. Petitioner argued that, if one reads the full patient records as submitted in P. Ex. 1-6, 14-22, one gets a different view of what was actually happening at Autumn Court. I did review all of these records and, while the incidents reported by CMS are taken out of context, the incidents did occur, and occurred frequently. Moreover, in reading the resident records, one gets the distinct view that most of Autumn Court's attempts to manage behavior involved pharmacology. Dr. Teri testified that pharmacological treatment of behavioral problems in Alzheimer's and dementia patients should only be used as a last resort. Tr. 317. Prior to the July 1999 survey, the main management tool at Autumn Court appears to have been medication. Tr. 318. See, e.g., P. Ex. 2, at 8, 9, 24, 27, 40; P. Ex. 14, at 2, 6, 7, 8; P. Ex. 16, at 20, 27.

36. Petitioner also argued that the staff did not chart all of the times that it intervened and redirected a problem resident and was successful in avoiding an altercation. Charting the successes would have consumed far too much time, according to Petitioner. In fact, there are instances in the records where successful approaches were charted. See, e.g, P. Ex. 2, at 25; P. Ex. 14, at 9. P Ex. 15, at 35, 38. Petitioner's limited charting of successes with problem residents, however, was inadequate. Dr. Teri testified that triggers for bad behavior and successful approaches must be constantly charted to provide other staff members information on dealing with the residents. Tr. 329; 381-83, 395.

37. Even if the staff had far more successful interventions with Residents 15, 14, and 9 than were charted, the sheer number of incidents of these residents hitting and otherwise offending other residents and the length of time over which these behaviors occurred supports my finding that Petitioner had not developed and implemented written policies that would prohibit and control abuse. A facility's non-implementation of policies can be shown by a pattern of neglect or abuse. Emerald Oaks, DAB No. 1800 (2001).

38. One cannot assume that simply because the victims of resident abuse were Alzheimer's patients with extensive cognitive difficulties that they suffered no harm. Dr. Teri opined that the residents of Autumn Court indeed suffered physical harm from the other residents' bad behavior. Tr. 356. Dr. Teri testified:

I think the residents experienced physical harm in that they were assaulted. They were hurt. They were physically slapped. They fell down. They were sexually molested. Those, to me, are physical harm. So the answer is, Yes, I think they experienced tremendous physical harm.

Tr. 359.

39. It is unsettling to think any nursing home resident would be subjected to: physical abuse; "goosing;" being slapped on the rear; wandering naked people; getting "dutch rubs;" having his or her hair pulled; or nose twisted, regardless of the resident's own mental state. Even the thought of nursing home residents being subjected to the sounds of constant banging and door alarms ringing is disturbing. I find the type of behavior exhibited by Residents 15, 14 and 9, some of which occurred for at least six months and had not abated at the time of the finding of immediate jeopardy, to be a risk for serious mental and physical harm to all the other residents at Autumn Court. Tr. 359-60.

A. The preponderance of the evidence is that Petitioner failed to keep its Autumn Court residents free from verbal, sexual, physical, and mental abuse as required by 42 C.F.R. § 483.13(b).

B. The preponderance of the evidence is that Petitioner failed to develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of its residents as required by 42 C.F.R. § 483.13(c)(1)(i).

The regulatory requirements relating to "Resident Behavior and Facility Practices" are contained in 42 C.F.R. § 483.13. In pertinent part, the regulations assure a resident's right to be "free from verbal, sexual, physical, and mental abuse . . .," and require the facility to "develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents . . ." 42 C.F.R. §§ 483.13(b); 483.13(c)(1)(i).

The regulations define abuse as the "willful infliction of injury, unreasonable confinement, intimidation, or punishment, with resulting physical harm, pain or mental anguish." Neglect is defined as the "failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness." 42 C.F.R. § 488.301.

At the outset, I will note that CMS's citation of deficiencies at Tags F 223 and F 224 present some difficult legal issues, although Petitioner did not raise these issues at all and CMS did so only obliquely.

The first question I had regarding CMS's citation of Tag F 223 is whether the statement in 42 C.F.R. § 483.13(b) regarding a resident's right to be free from abuse creates any affirmative duty on the part of the facility. I conclude that it does and agree with other CRD ALJs that the facility's duty to act arises when the facility knows or should know that a potentially abusive event may occur and, when the duty to act is triggered, the facility must take reasonably appropriate steps to prevent the event. Oakwood Manor Nursing Center; DAB CR818 (2001); Cedar View Good Samaritan, DAB CR997 (2003). I conclude that Petitioner did not take appropriate steps to prevent reasonably foreseeable problems. Petitioner's staff, including the Administrator, the Director of Nursing, and the direct care-givers should have been aware that resident behaviors at Autumn Court were out of control. Findings 8-20, above. Petitioner had an affirmative duty to implement plans and policies to regain control of the unit.

The second legal issue is whether the requirements from 42 C.F.R. § 483.13(b) and (c) as prohibitions against abuse can apply to injuries inflicted by cognitively impaired or demented residents. As noted above, the definition of abuse describes the willful infliction of injury and I question whether Residents 9, 14, and 15 had willfully inflicted injury on their fellow patients given their own compromised mental states. This issue has been presented previously in DAB cases without a definitive answer. Beverly Health and Rehabilitation Center - Williamsburg, DAB No. 1748 (2001); Sunrise Care & Rehabilitation Center, DAB CR747 (2001). In the Sunrise Care case, the ALJ decided a demented resident's sexual misconduct was not willful and could not be considered abuse. She, instead, found the facility not in compliance with the administration requirements found at 42 C.F.R. § 483.75 (Tag F490, also at issue here).

Another related legal issue is whether 42 C.F.R. § 483.13(c)(1)(i), which CMS cited for Petitioner's alleged deficiency at Tag F 224, only applies to incidents of abuse by a facility's staff and cannot be used to deal with resident-to-resident abuse. At least one CRD ALJ has concluded that this regulatory section refers only to staff treatment of residents. Palm Beach County Home, DAB CR831 (2001). On the other hand, CMS appended to its post-hearing briefing another CRD ALJ's recent interlocutory ruling denying summary judgment in which the ALJ adopted a broader interpretation of 42 C.F.R. § 483.13(c)(1)(i), indicating it could apply to instances of resident-to-resident abuse. CMS's Post hearing Reply Brief, attachment.

While not determinative of the outcome in this case because, as in the Sunrise case, CMS also proved that Petitioner did not meet the requirements of 42 C.F.R. § 483.75, at the immediate jeopardy level, I conclude that CMS proved Petitioner failed to substantially comply with 42 C.F.R. §§ 483.13(b) and (c) for the following reasons.

First, I conclude a demented individual's actions can be willful as willful is used in the regulatory definition of abuse. While the individual cannot understand the results of his or her actions, the individual can intend to hit, or to kick. The facts in Beverly- Williamsburg case were substantially different than those presented herein. In Beverly-Williamsburg the cognitively impaired and offending resident meant to stop a noise annoying to her by dismantling her roommate's respiration equipment. In this case, the offending residents intended to hit, kick, and "goose" others, making the injuries inflicted willful and not accidental.

Second, in 42 C.F.R. § 483.13(b), there is no language in the regulation limiting a resident's right to be free only from abuse engendered by any particular source. The resident has a right to be free from abuse from all-including staff, visitors, and other residents. Thus, when a facility knows or should know a potentially abusive event will occur, the facility has a duty to control the abuse. In this case, Petitioner's duty arose repeatedly and Petitioner was, thus, responsible for the actions of Residents 9, 14, and 15.

Third, while 42 C.F.R.§ 483.13(c)(1)(i) refers particularly to abuse by staff, the introductory sentence in the regulation at 42 C.F.R. § 483.13(c) is not so restrictive. It refers to abuse in general. Further, when one considers the extensive history of resident-to-resident altercation in this case, one can ascribe neglect to the staff in allowing it to continue uncontrolled. I am fully aware that in Beverly-Williamsburg, the DAB appears to have dismissed the notion that failure to control one resident's detrimental action against another equates with staff neglect. The Beverly-Williamsburg case, however, is distinctly different from this one. The Beverly-Williamsburg case involved one resident-to-resident incident while this case involves numerous incidents over a lengthy period of time. In this case, I find that the residents in Autumn Court specifically needed specialized behavioral management services to control problem residents and, thus, avoid physical harm or mental anguish. The absence of those services over a lengthy period of time was neglect and the failure to implement appropriate policies was, indeed, a failure to implement policies that prohibit abuse and neglect.

Finally, facilities participating in Medicare should be aware of all of the participation requirements. Oak Lawn Pavilion, Inc., DAB No. 1638 (1997). If, in fact, a facility has not met the requirements at 42 C.F.R. § 483.25 because of a lack of supervision, but CMS has cited the failure to comply as a deficiency under 42 C.F.R. § 483.13(c), the situation at the facility should be the determining factor. ⁽⁴⁾ In relatively egregious situations such as this case, it would ill serve the remedial purposes of the Act to use a technicality to find no deficiency.

In summary, I conclude based on the enumerated findings above, that CMS proved by a preponderance of the evidence that Petitioner was not in substantial compliance with the Medicare participation requirements at 42 C.F.R. § 483.13.

C. CMS proved by a preponderance of the evidence that Petitioner was not in compliance with the requirement set forth at 42 C.F.R. § 483.75 that a facility must be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psycho social well-being of each resident.

F 490

CMS cited Petitioner at the immediate jeopardy level at Tag F490. In the Statement of Deficiencies (SOD), CMS alleged that Petitioner's administrator failed to effectively manage the facility to ensure that the residents on Autumn Court were protected from physical and psycho-social harm. CMS Ex. 1 at 33. As noted above, I have found that residents at Autumn Court were not protected from other residents and, as a result, were unable to attain or maintain the highest practicable physical, mental, and psycho-social well-being. 42 C.F.R. § 483.75.

I reviewed 42 C.F.R.section 483.75 in its entirety for guidance as to what the regulations contemplate as the administrator's responsibility for maintaining the physical, mental and psycho social well-being of the residents beyond the general overall responsibility for managing the facility. See, e.g., Albury Center at Johnson City, DAB No. 1815 (2002). Section 483.75 speaks about licensure (section 483.75 (a)); compliance with laws and professional standards (§ 483.75 (b)); compliance with other HHS regulations

(section 483.75(c)); establishing a governing body (section 483.75 (d)); and, in particular relevance to this case, requiring training and retraining of nurses aides (§ 483.75 (e) (8)) with regular in-service training. The preponderance of the evidence shows that Petitioner failed to provide sufficient in-service training to help the staff manage the residents at Autumn Court and to prevent the resident-to-resident abuse that frequently occurred prior to the survey of July 1999. Findings 27-29, above. I find, therefore, that Petitioner's administrator failed to effectively manage the facility in this regard and, thus, the facility was not in compliance with this regulation.

Similarly, CMS cited Petitioner at the immediate jeopardy level at Tag F501 under the administration section of the regulations. CMS made a prima facie showing that Petitioner was not in compliance with the requirement stated at 42 C.F.R. § 483.75(i) that a facility must designate a physician to serve as a medical director who is responsible for the implementation of resident care policies. As I have determined that Petitioner failed to develop and implement policies to prohibit abuse, it stands to reason that it failed to designate a medical director who provided the necessary direction for the development and implementation of resident care policies.

CMS submitted the written testimony of Dr. Barry Straube. CMS Ex. 59. Dr. Straube, CMS's Chief Medical Officer for Region IX, opined that a nursing home's medical director is responsible for, among other things, leading the development and implementation of a facility's clinical policies and procedures; being part of a staff team that reviews plans of care for residents to ensure the residents who have unique or challenging needs are cared for properly; and making sure the staff are properly trained.

Dr. Straube also attested that:

". . . Mountain View Manor failed to ensure that the resident care policies were implemented as evidenced by the fact that Residents 9, 14, and 15 consistently engaged in behaviors which harmed other residents in the Special Care Unit physically, verbally, and sexually."

CMS Ex. 59, at 3.

Dr. Straube added that Petitioner's medical director failed to ensure implementation of a prescreening admission policy to Autumn Court to prevent admission of residents the staff were unable to care for properly and to obtain care planning information so that behavioral management techniques could have been developed. Dr. Straube further indicated the medical director failed to ensure that the Autumn Court staff were properly trained. He concluded that the medical director's failures in the above-noted regards are contrary to the standard of practice for a nursing facility's medical director. Id.

Petitioner provided little, if any, evidence to rebut this cited deficiency. Petitioner suggested in its cross-examination of Dr. Straube that, in the real world, medical directors are merely part-time employees of facilities who spend very little time at the facility or on the facility's business. Indeed, Gary Olson, the facility's administrator, testified that Petitioner's medical director in 1999 was a part-time independent contractor who was paid only $650 a month. Tr. 592.

Dr. Straube responded that the regulations do not specify the number of hours required of a medical director but rather specify what is expected of the medical director. Tr. 412 - 13. Dr. Straube conceded that, in the real world, a medical director of a skilled nursing facility may be involved only perfunctorily in development of policies and procedures. Tr. 418. He added, nonetheless, ". . . it's up, then, to the facility to assure that whoever they hire is hired for a sufficient number of hours to perform those functions." Tr. 413-14.

Petitioner did not call its own medical director to rebut Dr. Straube's testimony. Administrator Olson testified that the facility's medical director had attended monthly quality assurance meetings. Tr. 592. A preponderance of the evidence, however, shows that Petitioner did not have a medical director who assured the facility had developed and implemented appropriate policies and procedures against mistreatment, neglect, and abuse. The regulations contemplate more involvement for a facility's medical director than simply attending monthly meetings.

D. CMS's assignment of immediate jeopardy to the deficiencies at Tags F 223, 224, 490 and 501 is not clearly erroneous.

Immediate jeopardy occurs when a 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. Given CMS's expertise in determining scope or severity, I cannot change CMS's assignment of immediate jeopardy unless that assignment is clearly erroneous. I am constrained by 42 C.F.R. § 498.60(c)(2), which provides that the ALJ upholds "CMS's determination as to the level of the noncompliance of a skilled nursing facility "unless it is clearly erroneous." See also 42 C.F. R. § 498.3(d)(10).

A finding of immediate jeopardy does not hinge on a showing of a direct causal relationship between the facility's failure and the serious injury or death of a resident. The regulations do not require any finding of actual harm to justify a determination that immediate jeopardy exists. Fairfax Nursing Home, Inc., DAB No. 1794, at 13-14 (2001); South Ridge Nursing and Rehabilitation Center, DAB No. 1778 (2001); Woodstock Care Center DAB No. 1726 (2000).

In this case, rather than the noncompliance having no risk of serious harm as argued by Petitioner, I find that the Petitioner was quite fortunate that serious harm did not occur. When one considers such incidents as Resident 15 obtaining a cigarette lighter and, of course, the number of times that a resident was hit - not swatted - by another resident, the likelihood of serious injury was palpable. Some of the Autumn Court residents were frail, lacked a sense of danger, and had an unsteady gait. Tr. 209. Resident 14 actually targeted small, frail female residents. Moreover, one must consider the likely harm of emotional damage to residents who were confronted by frequent banging on doors and alarms being set and "goosing" and other sexual overtures. Given these factors, I cannot find that CMS's assessment of immediate jeopardy was clearly erroneous.

Petitioner argues strenuously that unless a readily apparent and tightly defined time period of immediate jeopardy exists, it cannot be imposed. I do not agree. The question before me is not how the State agency or CMS determined the time period to assess immediate jeopardy. The essential question is whether serious harm was likely during the time period actually determined by CMS for immediate jeopardy. The record is clear that resident-to-resident abuse occurred at approximately the same frequency both before May 25, 1999, and thereafter until June 30, 1999. Simply because CMS chose not to go back further than May 25, 1999 to assign the period of noncompliance does not mean that immediate jeopardy did not exist from May 25, 1999 through June 30, 1999. Regency Gardens Nursing Center, DAB No. 858 (2002).

Petitioner also contends it is illogical to assume that, if immediate jeopardy actually existed, it could have been alleviated on June 30, 1999, when the only difference in circumstances was the administrator's phone calls to expedite the transfer of Resident 9. On the contrary, I find that CMS could logically conclude that once the administrator was advised of the seriousness of the situation at Autumn Court and began to take steps to implement changes that, while the noncompliance continued, the immediate jeopardy had been abated. Tr. 219, 225, 404.

E. With respect to a non-immediate jeopardy citation, CMS showed by a preponderance of the evidence that Petitioner failed to promote care for residents in a manner and in an environment that maintains or enhances each resident's dignity and respect in full recognition of his or her individuality as required by 42 C.F.R. § 483.15(a).

F241

CMS cited Petitioner under this Tag for a non-immediate jeopardy deficiency. The regulations require a facility to "promote care for residents in a manner and in an environment that maintains or enhances each resident's dignity and respect in full recognition of his or her individuality." 42 C.F.R. § 483.15(a).

This alleged deficiency was based on the observations of surveyor Sue Collins-Welch. At the hearing, Ms. Collins-Welch testified and described what she observed in a dining room at the facility (not in Autumn Court). A resident was admitted to the facility in May of 1998. This resident had a diagnosis of chronic obstructive pulmonary disease (COPD) and had a permanent tracheotomy in place. Although she had short and long-term memory problems, she was able to make her needs known and was interviewable. Tr. 110. At the dining hall, the surveyor observed this resident, on four different occasions, remove her tracheotomy tube and suck the contents out to clear the tube. The other residents were watching her. They stopped eating, looked away and portrayed non-verbal expressions indicating they were nauseated by this action. Id. at 110-112. The surveyor testified that the staff did nothing to intervene to either change the resident's behavior or otherwise assist her so that other residents could eat in the main dining room without having to observe this activity. Id. at 114.

Surveyor Collins-Welch also testified that in the main dining room some residents had on bibs that had multiple holes, were frayed, torn and held up with wooden clothes pins. She thought the bibs infringed on the dignity of the residents and were not even functional. Tr. 115-16. The surveyor also noted that one lady was being fed in the main dining room with a seam open on the side of her garment that exposed her breast to the other residents and yet no staff person attempted to cover her. Id. at 117. She also observed that residents were not served their meals at the same time. Even diners at the same table were not served at the same time. She saw residents sleeping in the dining room because they did not get needed staff assistance with their meals. Id. at 117-18.

Petitioner provided no evidence to rebut this surveyor's observations. Petitioner suggested it would have been inappropriate to isolate this resident with COPD at mealtimes. Certainly a middle ground could have been established between ignoring the effect of the resident's tracheotomy care and totally isolating her during mealtimes. I find that, while some might determine the allegations in this cited Tag to be minor nursing home deficiencies, the infractions do infringe on the residents' right to be treated in a dignified manner with concern for their self-esteem. When meal times are unappetizing and require the wearing of unattractive tattered bibs, living in a nursing home can only be more demeaning. I, therefore, find the preponderance of the evidence shows the Petitioner was not in compliance with this requirement.

F. CMS proved by a preponderance of the evidence that Petitioner failed to comply with Federal requirements to establish an infection control program under which it investigates, controls and prevents infections in the facility as required by 42 C.F.R. § 483.65(a)(1).

CMS determined that Petitioner had failed to establish an infection control program for investigating, controlling, and preventing infections in the facility. This cited deficiency is based on a State agency surveyor's observation that the facility staff was passing out water to residents and was using ice carts that were covered in dust and brown stains and the ice scoops were loosely hanging from a screw at the top corner of the carts. Moreover, the ice scoops were banging against the CNA's uniforms as the CNAs were moving from room to room.

Surveyor Sue Collins-Welch testified that she observed Petitioner's staff passing ice to residents out of a bucket, a large container with a lid. She saw that the bucket was dirty and had brown stains on the side of it. The staff would serve the ice, put the scoops back on the bucket and the scoops were bouncing off the staff's uniforms as the staff walked down the corridor. Tr. 120. She opined that CNAs, throughout the day, come into close contact with residents. They change incontinent residents, they help residents bathe, and they pick up soiled linen. Their uniforms should not come into contact with instruments used to add ice to residents' water glasses. Id.

Petitioner argued that the ice cart set-up was part of a prior plan of correction for a deficiency previously cited and, as a result the ice cart set-up had been approved by the State agency. Petitioner's administrator Olsen testified that the facility put the ice scoops on the edge of the ice cart in response to a prior survey and the plan to position the scoops on the edge had been accepted by the State agency. Tr. 595-96. He identified the brown on the side of the ice chest as paint from the wooden hand rails on the side of the facility's halls. The ice cart would bump against the handrail and some of the paint on the handrail would end up on the ice chest. Id. Petitioner provided no more evidence regarding this cited deficiency.

CMS provided the testimony of Pauline J. Zautke, a registered dietician, who stated that ice is a food product and can be contaminated like any other food product in that disease can be spread through the product. Ms. Zautke also stressed that a nursing home population is especially susceptible to infection. Tr. 233, 239-40.

Petitioner provided no testimony other than administrator Olson's statement that the facility's prior plan of correction had been approved. I am not persuaded by Petitioner's argument. Simply because the plan to have ice scoops hanging somewhere on the ice cart was accepted by the State agency does not mean that Petitioner's implementation under this plan was acceptable. I find, therefore, that the preponderance of the evidence confirms Petitioner was not in compliance with this requirement.

G. CMS proved by a preponderance of the evidence that Petitioner failed to comply with the requirement set forth at 42 C.F.R. § 483.35(h)(2) that requires a facility to store, prepare, distribute, and serve food under sanitary conditions.

CMS cited Petitioner in the SOD under Tag F312 for failing to "store, prepare, distribute, and serve food under sanitary conditions" as required by 42 C.F.R. § 483.35(h)(2).

The circumstance leading to this cited deficiency was a surveyor's observation that the facility had a broken freezer and had stored food underneath the ice buildup in the freezer. Tr. 257-58. Ms. Zautke, a registered dietician, testified that a freezer system that is leaking, either condensation or some other liquid, can cause contamination of food stored under the leak even if the food is wrapped. Food that appears to be wrapped may be contaminated by the food service worker when unwrapping the food or the leaks could be so small the food service worker would not notice the possible contamination. Tr. 237 -38. Ms. Zautke further testified that a nursing home houses a population very susceptible to any kind of food contamination because the elderly respond to a lower dose of bacterial growth than the population at large. Id. at 238-39. Ms. Zautke concluded the situation of the leaking freezer with food stored underneath the leak presented a potential for more than minimal harm.

Petitioner argued that CMS failed to present any compelling evidence there was a real potential for cross contamination. Moreover, the problem was corrected and never posed a threat to sanitation. P. Br. at 22. Petitioner provided no testimony to rebut that of surveyor Markle or Zautke.

I find that CMS presented reliable and credible evidence that the freezer had been broken for several months, that something non-potable was dripping from the pipes in the freezer onto the food stored underneath the freezer pipes, and that this situation presented a potential for more than minimal harm. Petitioner failed to overcome CMS's evidence. Tr. 238-39, 256 .

H. CMS proved by a preponderance of the evidence that Petitioner failed to comply with the Federal requirement that the services provided or arranged by the facility must be provided by qualified persons in accordance with each resident's written plan of care as set forth in 42 C.F.R. § 483.20(k)(3)(ii).

F 282

CMS cited Petitioner for failing to ensure that the services it provided or arranged were provided by qualified persons in accordance with each resident's written plan of care as required by 42 C.F.R. § 483.20(k)(3)(ii). In both the SOD and CMS' brief, CMS cites this as Petitioner's failure to meet the requirements of 42 C.F.R. § 483.20(d)(3)(ii). This cited regulation does not exist. As the language quoted in the SOD can easily be found in § 483.20, I do not consider this error of citation to have disadvantaged Petitioner in any substantial way. Oak Lawn Pavilion, Inc., DAB No. 1638, at 9 (1997).

Resident 19 was living at Autumn Court. He had been assessed as having an alteration in thought processes and a visual disturbance relating to Alzheimer's or another dementia. He was a wanderer and had a limited sense of safety concerns, and he often had difficulty walking. According to his Resident Assessment Protocol, he was medicated with Risperdol and Zoloft which increased his fall risk. P. Ex. 21, at 20-22.

Resident 19 experienced numerous falls while at Autumn Court. In the six months prior to the survey, this resident fell from 10 to 15 times. Resident 19's Resident Assessment Protocol dated August 16, 1998, identified this resident as being a fall risk. P. Ex. 21. In February 1999, the facility developed an "Acute Care Plan" for this resident with three suggestions: 1) "monitor effects & adverse effects of meds;" 2.) "Lay resident down for nap with one side-rail up at 1400;" and 3)"[m]onitor ambulation to determine if rest reduces falls." P. Ex. 5, at 6.

Surveyor Van Cuyk testified that the facility's staff relied too heavily on the plan to "monitor" Resident 19 to reduce his risk for falls because "monitor" was not explained or defined. Tr. 69. The facility's staff understood monitoring to be simply watching the resident. Id. During the course of the survey, Surveyor Van Cuyk observed Resident 19 to be unattended and walking with an unsteady gait. Tr. 79.

Petitioner argues that Resident 19's wife was actively involved in his care and did not want him placed in a wheelchair. The facility agreed with Resident 19's wife that a wheelchair could have been even more unsafe than simply allowing Resident 19 to walk at will. Tr. 524-26; P. Ex. 21, at 43-45; P. Br. at 21. Petitioner contends that Resident 19's incidents of falls included events beyond the control of staff to prevent. P. Br. at 21.

Mary Frances Colvin, a CMS Health Quality Review Specialist, testified that the facility should have been noting when the falls were taking place, what time of the day, where they were happening, what the resident was trying to do, and similar information that would describe what was occurring around the resident at the time of his falls. She said none of the information surrounding this resident's falls was analyzed to come up with a good care plan with strong interventions. Tr. 281-82. It was Ms. Colvin's opinion that the facility failed to implement its care plan to monitor Resident 19 closely because he continued to fall, indicating that the care plan was not working. Tr. 282, 299-300.

At one point, the Autumn Court staff attempted to have Resident 19 take a nap in the afternoon to see if that would help him walk with more stability in the evening. P. Ex. 21. However, the nurses notes indicate that this plan was seldom followed or was not charted if it was followed. As Dr. Teri noted it is good practice to chart what works with an Alzheimer's patient so that the successful intervention can be continued in the future. Tr. 350-353. I also note that due to the lack of sufficient Autumn Court staff, it is unlikely that Resident 19 could have been monitored sufficiently - and in the way recommended by Ms. Colvin - to prevent his frequent falls. I find, therefore, that a preponderance of the evidence supports a finding that Petitioner was not in compliance with the regulation set forth at 42 C.F.R. § 483.20(k)(3)(ii).

I concede Resident 19 experienced no serious injuries as a result of his numerous falls. He did have frequent skin tears. Moreover, it is certainly probable that, at some point, one of this resident's falls would cause a more serious injury such as a fracture or head injury. See Tr. 282-83. Therefore, I find Petitioner's noncompliance presents the potential for more than minimal harm.

I. The CMPs that CMS imposed were reasonable.

If an ALJ has determined, as in this case, that there is a basis for imposing a CMP, the regulations limit the ALJ, when determining the reasonableness of an assessed CMP, to consider the following factors: 1) the facility's history of noncompliance; 2) the facility's financial condition; 3) the factors specified in 42 C.F.R. section 488.404; and 4) the facility's degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort, or safety. The absence of culpability is not a mitigating factor. 42 C.F.R. § 488.438(f). The 42 C.F.R. section 488.404 factors include: 1) the scope and severity of the deficiency; 2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and 3) the facility's prior history of noncompliance in general and specifically with reference to the cited deficiencies.

CMS assessed Petitioner with a CMP in the amount of $3,050 per day for the period of time from May 25, 1999 through June 30, 1999, during which CMS determined that Petitioner's noncompliance was at an immediate jeopardy level. Because $3,050 is the lowest per day immediate jeopardy CMP, and I have found that CMS's assessment of immediate jeopardy is not clearly erroneous, I must find that this per day CMP is a reasonable amount.

With respect to the CMP of $500 per day assessed for the period of noncompliance from July 1, 1999 through September 7, 1999, I find this amount reasonable as well. While $500 per day is not the lowest amount that could have been assessed, it is well below the highest. I considered that Petitioner's deficiencies at Autumn Court represented some neglect, and disregard for resident care, comfort, and safety. I also considered that, while Petitioner's non-immediate jeopardy deficiencies were of limited scope and severity (E), the process required for Petitioner, during this time, to resolve its abuse and neglect problems at Autumn Court, while no longer immediate jeopardy, continued to pose a relatively high scope and severity for those deficiencies.

I also considered the facility's prior history of noncompliance. I reviewed CMS's Tag F 698 which listed some areas where Petitioner had been previously non-complaint. CMS Ex. 1, at 35-36. I also reviewed the testimony of Paula Perse and the declaration of Thomas M. Thorpe, a State agency inspection team leader. CMS Exs. 51, 58. Although there were some similar problems from before such as inadequate in-service training and problems with resident assessments, I did not find that Petitioner's prior noncompliance Tags were that closely related to the abuse problems at Autumn Court found during the survey of July 1999. Petitioner has been consistently cited, however, for problems with infection control and sanitation with respect to dietary services. Moreover, the Petitioner did not contest the per day CMP amount by submitting any financial information suggesting it could not pay the assessed amount.

Based on my consideration of all the factors listed in 42 C.F.R. § 488.438(f), I find the assessed amount of $500 per day from July 1, 1999 through September 7, 1999 to be reasonable.

IV. Conclusion

I find that Petitioner was not in compliance with Federal requirements for long-term care facilities, at an immediate jeopardy level, from May 25, 1999 through June 30, 1999, and was not in compliance with Federal requirements, at a non immediate jeopardy level, from July 1, 1999 through September 7, 1999. CMS is authorized to assess a $3,050 per day CMP for the period of immediate jeopardy, and $500 per day from July 1, 1999 through September 7, 1999.

Anne E. Blair

Administrative Law Judge

1. Petitioner makes much of the fact that the reason it took the facility so long to transfer Resident 9 was because of the Medicaid system in the State of Arizona which required several counties to review and approve the transfer. I do not see how the problems with transfer have much bearing on this case. Even though it took longer to transfer this resident than desired, the facility had the responsibility to protect other residents from her behavior. Moreover, my reading of Resident 9's records suggests that the attempt to move her was motivated primarily by her abuse of the staff, which was extensive. P. Ex. 15, at 43. On May 22, 1999, she hit the staff on ten different occasions. Id. at 42.

2. Petitioner suggested Dr. Teri had not seen all of the patient records and could not provide informed opinions. I am satisfied that Dr. Teri saw all of CMS and Petitioner's proposed exhibits regarding the patients at Autumn Court. Tr. 324, 330, 367. If Petitioner had other documents it thought may have altered Dr. Teri's opinion, Petitioner did not show them to Dr. Teri during cross-examination. Nor did Petitioner submit them as exhibits.

3. The facility's specific policy regarding abuse was not developed or implemented until after the July 1999 survey. CMS Ex. 43, at 65 et. seq.; Tr. 534, 594.

4. I note that, although the State Operations Manual (SOM) is not binding in the same way as a statute, regulation, or ruling, the SOM has instructed surveyors to cite resident-to-resident abuse as a failure to comply with 42 C.F.R. § 483.13. State Operations Manual, at Appendix PP (Guidelines to Surveyors for 42 C.F.R. § 483.13(b)).