SUBJECT:

Cedar View Good Samaritan,

Petitioner,

Centers for Medicare & Medicaid

DECISION

Petitioner, Cedar View Good Samaritan Center, violated 42 C.F.R. §§ 483.10(b)(11), 483.13(b), 483.13(c)(1), 483.13(c)(2) and (4), and 483.75 during the period August 24, 1998 through October 11, 1998. Further, the violations of 42 C.F.R. § 483.13 presented immediate jeopardy to Petitioner's residents during the period August 24, 1998 through October 11, 1998. A civil money penalty (CMP) of $3,050.00 per day for the period August 24, 1998 through October 11, 1998 is the lowest daily CMP authorized and it is reasonable in this case.

I. Procedural History

Petitioner is owned by Sumner County, Kansas and is managed by the Evangelical Lutheran Good Samaritan Society (ELGSS). Petitioner is certified to participate as a provider under Title XVIII (Medicare) and Title XIX (Medicaid) of the Social Security Act (Act) (42 U.S.C. §§ 302 - 1397jj) as a skilled nursing facility (SNF) and nursing facility (NF). Petitioner's facility was surveyed by the Kansas Department of Health and Environment (the State agency) from October 12 to October 16, 1998. The abbreviated survey was triggered by the report of possible abuse of a resident. The State agency found that Petitioner was not in substantial compliance and recommended enforcement remedies to the Centers for Medicare & Medicaid Services (CMS) based on two incidents which allegedly occurred on August 24, 1998 and October 8, 1998. ⁽¹⁾

In November 1998, CMS notified Petitioner that based on the survey completed on October 16, 1998, Petitioner was found not in substantial compliance; that conditions constituted immediate jeopardy to resident health and safety; that the facility had been identified as a poor performing facility; that a CMP was imposed effective August 24, 1998 through October 21, 1998, in the amount of $3,050.00 per day; and that the immediate jeopardy situation was considered corrected and Petitioner was in substantial compliance as of October 21, 1998. Petitioner requested a hearing by an administrative law judge on April 22, 1999. The case was assigned to Administrative Law Judge (Judge) Mimi Hwang Leahy for hearing and decision on June 11, 1999. The case was reassigned to Chief Judge Marion Silva on March 3, 2000. The case was assigned to me for hearing and decision on October 11, 2001.

A one-day hearing was conducted in Wichita, Kansas on January 29, 2002. Petitioner's exhibits (P. Ex.) offered and admitted at the hearing are P. Exs. 1 through 68. CMS's exhibits are marked as "HCFA" Ex. 1 through 23 and they are admitted as such as remarking the exhibits as "CMS Ex." is unnecessary. The prehearing stipulation of fact agreed to by the parties was marked and admitted as Court Ex. 1. No offered exhibits were withdrawn or excluded. A 181-page transcript of the hearing was prepared and approved by the parties.

II. Findings of Fact and Conclusions of Law

A. FINDINGS OF FACT

1. Petitioner is owned by Sumner County, Kansas and is managed by the ELGSS.

    

2. Petitioner is certified to participate as a provider under Medicare and Medicaid (42 U.S.C. §§ 302 - 1397jj) as a SNF and NF.

 

3. The State agency conducted a complaint survey of Petitioner's facility from October 12 to October 16, 1998, and found that Petitioner was not in substantial compliance and recommended enforcement remedies to CMS, based on two incidents which allegedly occurred on August 24, 1998 and October 8, 1998, and presented immediate jeopardy for Petitioner's residents.

 

4. CMS imposed a CMP of $3,050.00 per day for the period August 24, 1998 through October 21, 1998, finding Petitioner in substantial compliance as of October 21, 1998.



5. On August 24, 1998, the 16-year-old male Perpetrator, ⁽²⁾ who was employed by Petitioner as a certified nurse assistant (CNA), was found by a nurse in the room of 82-year-old female Resident 7.

   a. The Perpetrator's pants were part-way down.

   b. The Perpetrator's pants had a wet spot in the crotch area.

   c.The door to Resident 7's room was partially blocked by a wheelchair.

   d. Resident 7 was naked from the waist down.

6. On January 21, 1999, the Perpetrator pled guilty to aggravated sexual battery of Resident 7.



7. The nurse who discovered the Perpetrator in Resident 7's room reported her observations to the Administrator on August 24, 1998.



8. On August 24, 1998, the Administrator interviewed the Perpetrator and advised him that he could no longer care for female residents without having a female staff member present.



9. On August 24, 1998, the Administrator had the Director of Nursing (DON) examine Resident 7 for signs of sexual abuse but none were found.

10. On August 24, 1998, the DON advised the Administrator that she would keep an eye on the n Perpetrator.

11. On August 25, 1998, the Administrator announced at a management in-service training that male staff could only care for female residents with a female staff member present.

12. The Administrator did not report the August 25, 1998 incident to the State agency.

13. On October 8, 1998, the Perpetrator was discovered by a nurse assistant in the room of Resident 1.

a. The Perpetrator was on the bed of Resident 1.

b.The Perpetrator's pants were part-way down.

c. Resident 1 was on the bed and naked from the waist down.

14. On January 21, 1999, the Perpetrator pled guilty to aggravated sexual battery of Resident 1.

15. On Thursday, October 8, 1998, the incident involving Resident 1 was reported to the DON who was acting Administrator.

16. The DON suspended the Perpetrator from duty on October 8, 1998.

17. The DON examined Resident 1 and found no signs of sexual abuse.

18. On Monday, October 12, 1998, the Administrator reported the incident to the State agency.

19. On October 12, 1998, the Perpetrator terminated his employment with Petitioner.

20. The Perpetrator completed his CNA training at Petitioner's facility.

21. Petitioner did not check the various nurse registries in Kansas and other states prior to employing the Perpetrator.

22. The Administrator and DON were well acquainted with the Perpetrator and his family.

B. CONCLUSIONS OF LAW

1. Section 1819(g)(1)(C) of the Act and 42 C.F.R. § 483.13(c) establish a participating facility's duty to report and investigate all allegations of neglect or abuse or the misappropriation of the property of a resident of a facility.



2. There is no conflict between the specific reporting requirements of section 1819(g)(1)(C) of the Act, as implemented by 42 C.F.R. § 483.13(c), and the general reporting requirements of the Kansas law applicable in this case.



3. If staff is implicated in the abuse or neglect of a resident or the misappropriation of a resident's property, the Act and regulations require that the facility immediately notify the appropriate state agency which will conduct the investigation.



4. Staff is implicated if, after preliminary inquiry, there is a reasonable suspicion of involvement.



5. Reasonable suspicion, reasonable cause, or probable cause are essentially synonymous in this context and indicate that there is sufficient evidence to cause a reasonable person to believe that a charge is true.



6. Investigations of allegations of resident abuse or neglect or the misappropriation of resident property by staff must be done by the state pursuant to 42 C.F.R. § 488.335.



7. The facility must maintain documentation of its preliminary investigation and any more formal investigation conducted either by the facility or the state agency.



8. It may be inferred from repeated failures to comply with an existing written facility policy that the policy has not been implemented.



9. The Administrator had reasonable cause to believe that the Perpetrator committed a sexual assault or battery of Resident 7 on August 24, 1998.



10. The acting Administrator had reasonable cause to believe that the Perpetrator committed a sexual assault or battery of Resident 1 on October 8, 1998.

11. The Administrator did not immediately report the incident of August 24, 1998 to the State agency.

12. The acting Administrator did not immediately report the incident of October 8, 1998 to the State agency.

13. Petitioner violated 42 C.F.R. § 483.10(b)(11), F Tag 157, at a scope and severity level of G (actual harm but not immediate jeopardy), because the Petitioner failed to immediately notify the doctors and families of Residents 1 and 7 following the incidents on August 24 and October 8, 1998.

14. Petitioner violated 42 C.F.R. § 483.13(b), F Tag 223, at a scope and severity level K (immediate jeopardy), by failing to take appropriate action following the incident of August 24, 1998, and failing to protect its residents from sexual abuse.

15. Petitioner violated 42 C.F.R. § 483.13(c)(1), F Tag 224, at a scope and severity level K (immediate jeopardy), because, while the facility had developed a policy regarding resident abuse, the Administrator and DON failed to implement the policy in the case of the two incidents involving Residents 1 and 7.

16. Petitioner violated 42 C.F.R. § 483.13(c)(2) and (4), F Tag 225, at a scope and severity level K (immediate jeopardy), by failing to immediately report the incidents of August 24 and October 8, 1998, to the State agency.

17. Petitioner violated 42 C.F.R. § 483.75, F Tag 490, at a scope and severity level F (no actual harm but with potential for more than minimal harm), in that it failed to use its resources to attain or maintain the highest physical, mental and psycho-social well-being of each resident, by failing to ensure that Resident 1 was free of sexual abuse where Petitioner had reasonable cause to know of the potential for abuse after the incident of August 24, 1998 and failed to take reasonable steps to prevent abuse of Resident 1.

18. Petitioner did not violate 42 C.F.R. § 483.75(e)(5) - (7), F Tag 496, as Petitioner established by a preponderance of the evidence that the Perpetrator completed his CNA training at Petitioner's facility and Petitioner had no reason to believe that Petitioner might be listed on the register of another state.

19. Immediate jeopardy existed at Petitioner's facility from August 24, 1998 through October 11, 1998, the day prior to the Administrator's report to the state agency and the initiation of the complaint survey.

20. The CMS declaration that immediate jeopardy continued after the complaint survey began on October 12, 1998, was clearly erroneous.

21. A CMP of $3,050.00 per day is at the lowest end of the range of CMPs which may be imposed when immediate jeopardy is present.

22. A CMP of $3,050.00 per day for the period August 24, 1998 through October 11, 1998, is reasonable.

23. No enforcement remedy is appropriate for the period October 12, 1998 through October 21, 1998.

III. Discussion

A. ISSUES

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

2. Whether the remedy imposed is reasonable.

B. APPLICABLE LAW

The Act sets forth requirements for long-term care facilities, including SNFs and NFs, participating 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 (42 U.S.C. §§ 1395i-3; 1396r). ⁽³⁾ The Secretary's regulations governing SNFs and NFs participation in the Medicare program are found at 42 C.F.R. Part 483. Survey, certification and enforcement procedures for all long-term care facilities, including SNFs and NFs, are contained in 42 C.F.R. Part 488.

A SNF and/or NF must maintain substantial compliance with program requirements as set forth at 42 C.F.R. Part 483 to participate in the Medicare and Medicaid programs. If the State or CMS finds violations or Part 483 requirements or deficiencies in a facility's operation during a survey, the deficiencies noted must present no greater risk to resident health or safety than the "potential for causing minimal harm" or the facility will be found not in substantial compliance and a certificate of noncompliance will issue. 42 C.F.R. §§ 488.302 and 488.330. 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 section 1819(h) of the Act (42 U.S.C. § 1395i-3(h)) and 42 C.F.R. § 488.406. The purpose of the authorized remedies is to "ensure prompt compliance with program requirements." 42 C.F.R. § 488.402(a). Remedies are applied on the basis of the scope and severity of the noncompliance found during surveys. 42 C.F.R. § 488.402(b). The factors to be considered by CMS when selecting remedies are set forth at 42 C.F.R. § 488.404.

A facility has a right to appeal a "certification of noncompliance leading to an enforcement remedy." 42 C.F.R. § 488.408(g)(1); see also 42 C.F.R. §§ 488.330(e) and 498.3. However, a facility may not appeal the choice of remedies by CMS or the factors CMS considered when choosing remedies. 42 C.F.R. § 488.408(g)(2). A facility may only challenge the scope and severity level of noncompliance found by CMS if a successful challenge would affect the amount of the CMP that could be collected by CMS or impact upon the facility's nurse aide training program. 42 C.F.R. § 498.3(b)(14).

In this case, the State agency cited deficiencies at Petitioner's facility during the complaint survey which ended on October 16, 1998, as set forth in the Statement of Deficiencies (SOD) bearing that date (HCFA Ex. 4). The State agency alleged the following regulatory violations as deficiencies: 42 C.F.R. § 483.10(b)(11), F Tag 157, at a scope and severity level of G; ⁽⁴⁾ 42 C.F.R. § 483.13(b), F Tag 223, at a scope and severity level of K; 42 C.F.R. §§ 483.13(c)(1)(i) and (ii), F Tags 224 and 225, both at a scope and severity level K; 42 C.F.R. § 483.75, F Tag 490, at a scope and severity level of F; 42 C.F.R. § 483.75(e)(5) - (7), F Tag 496, at a scope and severity level of E. HCFA Ex. 4. There is significant discussion in this case regarding the facility's duty to investigate and report allegations of abuse as required by 42 C.F.R. § 483.13(c)(2) and (4). However, subsections 483.13(c)(2) and (4) are not specifically cited in the SOD. The language of those subsections is contained within the citation under F Tag 225 which alleges violation of subsection 483.13(c)(1)(ii). HCFA Ex. 4, pp. 12-13. Because the issues related to subsections 483.13(c)(2) and (4) are thoroughly discussed by the parties in the prehearing and post-hearing briefs, I conclude that the failure to include the regulatory citation in the SOD is harmless and not prejudicial. The language of the SOD provided adequate notice of the alleged violation of section 483.13(c)(2) and (4) even without the actual citation to those subsections of the regulation and there is no impermissible prejudice to Petitioner in proceeding upon those alleged violations.

CMS bears the initial burden of producing evidence sufficient to establish a prima facie case for each alleged violation of the regulations. CMS must set forth the basis for its determination with sufficient specificity for a petitioner to respond and come forward with evidence related to the disputed findings. The evidence set forth by CMS must be sufficient to establish a prima facie case that CMS had a legally sufficient basis to impose a remedy. In order for a petitioner to prevail, the petitioner must then prove by a preponderance of the evidence on the record as a whole that it was in substantial compliance with the relevant statutory and regulatory provisions or that it had an affirmative defense. Hillman Rehabilitation Center, DAB No. 1611 (1997), aff'd Hillman Rehabilitation Center v. U.S. Dept. of Health and Human Services, No. 98-3789 (D.N.J. May 13, 1999); Cross Creek Health Care Center, DAB No. 1665 (1998); Emerald Oaks, DAB No. 1800 (2001). Black's Law Dictionary (7^th Ed.) provides several definitions of "prima facie case," one of which is sufficient:

A case which has proceeded upon sufficient proof to that stage where it will support finding if evidence to contrary is disregarded.

The Departmental Appeals Board (DAB or Board) defined the requirements for a prima facie case in its decision in Hillman, DAB 1611, p. 8:

HCFA must identify the legal criteria to which it seeks to hold a provider. Moreover, to the extent that a provider challenges HCFA's findings, HCFA must come forward with evidence of the basis for its determination, including the factual findings on which HCFA is relying and, if HCFA has determined that a condition of participation was not met, HCFA's evaluation that the deficiencies found meet the regulatory standard for a condition-level deficiency.

If a provider appeals an enforcement decision, CMS has the initial burden of showing that its decision to terminate is legally sufficient under the statute and regulations. To make a prima facie case that its decision was legally sufficient in this case, CMS must: (1) identify the statute, regulation or other legal criteria to which it seeks to hold the provider; (2) come forward with evidence upon which it relies for its factual conclusions that are disputed by the Petitioner; and (3) show how the deficiencies it found amount to noncompliance that warrants an enforcement remedy.

C. ANALYSIS

1. Facts

This case involves two incidents at Petitioner's facility. Two eyewitnesses, Lisa Dunn (who saw the Perpetrator with Resident 7 on August 24, 1998) and Pat Helms (who saw the Perpetrator with Resident 1 during the October 8, 1998 incident) did not appear and testify at the hearing on January 29, 2002, and what they actually saw and reported about what they saw is disputed. Most of the fact evidence offered by the parties is hearsay or hearsay within hearsay. The only witness to testify at the hearing for CMS was Veva Sandrick, a State agency surveyor, who participated in the survey in issue and could provide first-hand information only as to her observations and conclusions. Doris Stamp, Petitioner's Administrator, and Randy Fitzgerald, Regional Director for ELGSS, testified for Petitioner. Doris Stamp had first-hand information as to the basis for her decision-making. Ms. Stamp actually spoke with Lisa Dunn, but did not speak to Patricia Helms.

As a general rule any evidence that is relevant and can be established to be authentic will be admitted in an administrative hearing such as this. 42 C.F.R. § 498.61. Nevertheless, hearsay evidence remains inherently unreliable and is generally only accorded much weight when other evidence shows that the hearsay is credible and worthy of being given probative value. See generally, Carehouse Convalescent Hospital, DAB No. 1799 (2001). I see no need to step into the morass of hearsay evidence in this case in an attempt to find what the eyewitnesses actually saw. The Perpetrator's guilty pleas conclusively establish that he committed aggravated sexual battery upon Residents 1 and 7. Furthermore, the stipulated facts and the testimony of the Administrator, the facility decision-maker, provide an adequate factual basis for assessing the actions the Petitioner took in response to the incidents and the ultimate resolution of the issues presented. It is, therefore, not necessary to resolve every alleged factual detail regarding the incidents in order to resolve the allegations in this case.

The parties stipulated to the following facts as set forth in Court Ex. 1 (the two incidents are referred to by Resident number and date for the sake of clarity):

a. Resident 7, August 24, 1998. The first incident occurred during the evening of August 24, 1998, and involved Resident 7, who was born January 29, 1916, died February 18, 1999, and resided at Petitioner's facility from October 1997 to October 1998. Lisa Dunn, a nurse at Petitioner's facility, reported the incident to a supervisor. Doris Stamp, the Administrator, and Donna Cummins, the DON, investigated. During the investigation, Dunn claimed she saw a wet spot on the 16-year old Perpetrator's pants at the time of the incident. The Perpetrator told the Administrator and DON that while transferring Resident 7 from her wheelchair to her bed he slipped on her blouse, which was on the floor, kicked the wheelchair, which rolled in front of the door, stepped on his pant leg, pulling his pants part-way down, and got the wet spot on his pants from the peri-wipes he had used to clean Resident 7. The Administrator and DON noted no wet spot on the Perpetrator's pants when they interviewed him. The DON physically examined and interviewed Resident 7. The Administrator concluded nothing improper had occurred between Resident 7 and the Perpetrator.

Following the incident of August 24, 1998, the Perpetrator was told by the Administrator that he must have a female present when providing care to a female resident. On August 25, 1998, an in-service training was done during the management meeting and a directive was issued that male staff must have a female staff member present when attending to female residents.

b. Resident 1, October 8, 1998. The second incident occurred during the evening of October 8, 1998, and involved Resident 1, who was born March 9, 1914, died in 1999, and resided at Petitioner's facility from March 1992 to October 1998. The DON examined Resident 1 subsequent to the incident on October 8, 1998. On Saturday, October 10, 1998, Resident 1's family contacted law enforcement, which responded to Petitioner's facility. The Administrator notified the State agency of the incident on Monday, October 12, 1998, when she returned to the facility.

The parties also stipulated that on January 21, 1999, the Perpetrator pled guilty to aggravated sexual battery of Resident 7, on August 24, 1998, and of Resident 1, on October 8, 1998. Court Ex. 1, p. 5; P. Exs. 66 & 67.

Doris Stamp testified that she served as the Petitioner's facility administrator from November 1995 to May 1999. Transcript (TR) 119. It was Ms. Stamp who decided that no abuse or other reportable incident occurred on August 24, 1998, according to the stipulation of the parties (Court Ex. 1) and her testimony (TR 134). Ms. Stamp testified to the facts that led to her conclusion and decision to take only limited action involving the Perpetrator. TR 119 - 157.

Ms. Stamp testified that on August 24, 1998, she was called to the facility by Lisa Dunn who advised her that "something funny" was going on at the facility and Ms. Stamp needed to check it out. She went to the facility where she and the DON interviewed Lisa Dunn. Ms. Dunn reported that she found it hard to open the door to Resident 7's room, as a wheelchair was blocking the door; when she entered the room, she saw the Perpetrator pulling up his scrub bottoms and Resident 7 on the bed with her gown up. Ms. Stamp testified the Ms. Dunn did not state that she believed any sort of "sexual abuse or sexual conduct" had occurred. TR 122 - 124.

Ms. Stamp also interviewed the Perpetrator during the evening of August 24, 1998. Ms. Stamp testified that he told her that he was getting Resident 7 ready for bed, transferring her from her wheelchair to the bed, when he slipped on her blouse, which was on the floor, kicked the wheelchair out of the way but into the path of the door, stepped forward onto the leg of his scrubs (which he wore low anyway) pulling them partially down, and that the wet spot Lisa Dunn saw on his pants was from the peri-wipes he had been using to clean Resident 7's perineal area. Ms. Stamp testified that she did not see a wet spot in the Perpetrator's crotch area when she interviewed him. TR 126 - 127. She also testified that she sent the DON to Resident 7's room and the DON found the peri-wipes (TR 128) and blouse on the floor (TR 133) as the Perpetrator alleged. The DON also physically examined Resident 7 and reported no sign of sexual contact. TR 131. The Perpetrator denied doing anything wrong and she believed him. TR 129. She judged the Perpetrator credible based on the foregoing facts and that he was not nervous or fidgety but was straightforward during the interview; that the door to Resident 7's room tends to stick; that it would be appropriate to have the door to Resident 7's room closed during peri-care; and that she knew the Perpetrator to wear his scrubs low all the time. TR 128 - 130.

No doubt Ms. Stamp's decision was also impacted by the facts that the Perpetrator's mother was employed at the facility; the Perpetrator's grandmother was a resident; the Perpetrator had started working at the facility as a volunteer, then as a laundry worker and a meal attendant; he did his CNA training at the facility; she believed he was liked by the residents; and he never caused a problem before August 24, 1998. Ms. Stamp had recommended him to attend math camp. TR 120 - 121; Court Ex. 1, pp. 2 - 3. She acknowledged that she personally felt there was no likelihood that a 16-year-old boy would be attracted to an 82 or 84-year-old female. TR 122.

Ms. Stamp also admitted that following her investigation during the evening of August 24, 1998, she and the DON decided that male CNAs would not be permitted to provide care to a female resident without a female CNA present. The decision was announced at a management team meeting on August 25, 1998. TR 130; P. Ex. 9. Further, Ms. Stamp testified that the DON was going to keep an eye on the Perpetrator in the future.

Ms. Stamp testified that when the incident occurred on Thursday evening, October 8, 1998, she was in Watertown, South Dakota. Until she returned to the facility on October 12, 1998, she had no first-hand knowledge of events, only what was reported to her by the DON who was acting administrator in Ms. Stamp's absence. ⁽⁵⁾ TR 136 - 137, P. Ex. 5. The DON advised Ms. Stamp that she had suspended the Perpetrator, an action with which Ms. Stamp agreed, but she advised the DON to consult with their corporate attorney who approved the suspension action. TR 139. Ms. Stamp testified that she had several contacts with the DON, who kept her advised of her investigation of the incident involving Resident 1 and the Perpetrator. TR 139 - 142. On Monday, October 12, 1998, at 8:00 a.m., Ms. Stamp began trying to telephone the State agency to report the incident of October 8. She testified that she finally reached the agency by telephone at 8:45 a.m. TR 142 - 143. The Perpetrator voluntarily terminated his employment on October 12, 1998. TR 143.

2. The Cited Deficiencies

The deficiencies in issue are alleged violations of 42 C.F.R. §§ 483.10(b)(11); 483.13(b); 483.13(c)(1) - (4); 483.75; and 483.75(e)(5) - (7). My review is de novo and I am not bound by the surveyors factual or legal conclusions. Hillman; CarePlex of Silver Spring, DAB No. 1683 (1999); Emerald Oaks, DAB No. 1800 (2001); Hermina Traeye Memorial Nursing Home, DAB No. 1810 (2002). I review each cited deficiency in light of the credible evidence, to determine whether the deficiency exists, based on the evidence presented by CMS or whether Petitioner has rebutted the deficiency or established an affirmative defense.

There can be no question at this point that the Perpetrator committed aggravated sexual battery upon Resident 1 on October 8, 1998, and upon Resident 7 on August 24, 1998. The Perpetrator's guilty plea before a court of the State of Kansas establishes the offenses beyond a reasonable doubt. Certainly, the Petitioner's Administrator and DON did not have the benefit of knowing that the Perpetrator was going to plead guilty. But the focus of the inquiry before me is not upon the guilt or innocence of the Perpetrator, but rather upon the actions of Petitioner in light of facts known at the time of the incidents and Petitioner's related actions. The actions of the Administrator and DON in response to the incidents of August 24 and October 8, 1998, are not disputed. The issue is whether their actions met the standards established by the statutes and regulations.

a. The Regulatory Scheme

The first step then is to determine what are the standards. The duty of a facility to investigate and report allegations of violations of a resident's rights derives from the Act, Section 1819(g)(1)(C) (42 U.S.C. § 1395i-3(g)(1)(C)) which provides:

The State shall provide, through the agency responsible for surveys and certification of nursing facilities under this subsection, for a process for the receipt and timely review and investigation of allegations of neglect and abuse and misappropriation of resident property by a nurse aide of a resident in a nursing facility or by another individual used by the facility in providing services to such a resident.

The plain language of the Act requires that states develop a process for investigations of neglect, abuse and misappropriation of resident property. The Act addresses only investigations of neglect, abuse, or misappropriation by a nurse aide or other individual used by the facility in providing services to residents. Section 1819(g)(1)(C) does not address violations of resident's rights by other residents or by persons from outside the facility.

The Secretary's implementation of section 1819(g)(1)(C) of the Act is found at both 42 C.F.R. § 483.13 and 488.335. Section 483.13 expands upon the requirements of the Act, recognizing residents' rights, obliging facilities to observe and preserve residents' rights, and establishing the requirement to report and investigate violations of residents' rights. Subsection 483.13(a), which is not involved in this case, establishes a resident's right to be free from restraints. Section 483.13(b) which is involved, establishes a resident's right to be free from abuse. Section 483.13(c) establishes a participating facility's responsibility to ensure that the rights established by sections 483.13(a) and (b) are not violated by the facility or staff. Subsection 483.13(c) requires the development and implementation of facility policy that: (1) prohibits abuse, employment of individuals with a history of abuse, and requires reporting of unfitness for service of staff; (2) requires reporting of "all alleged violations" of the rights established by subsections (a) and (b); (3) requires that the facility have evidence that "all alleged violations" are thoroughly investigated; (4) requires that the results of any investigation be reported to the Administrator and to other officials within five working days of the incident (emphasis added).

Title 42 C.F.R. § 483.13 clearly has a broader scope and application than contemplated by section 1819(g)(1)(C) of the Act, as explained by the responses of the drafters of section 483.13 to public comments received prior to implementation of the section. Several commenters noted that the drafters of section 483.13 did not consider the provisions of OBRA `87 (which amended section 1819(g)(1)(C) of the Act (42 U.S.C. § 1395i-3(g)(1)(C)) that required the state survey and certification agency to investigate all allegations of resident abuse, neglect or misappropriation of resident property by a nurse aide or other individual used by the facility. The drafters' responded:

While the survey and certification agency is charged under OBRA '87 with investigating and producing findings on all allegations of resident abuse, neglect and misappropriation of resident property by staff, we continue to believe that the facility has an important responsibility for identifying and investigating all incidents of suspected resident abuse, neglect, or mistreatment or misappropriation of property whether by staff or others. Often the source of the offense will be initially unknown. Other residents or visitors, rather than staff could be involved. Once the facility's preliminary investigation implicates staff, the facility is responsible for notifying the State survey and certification agency. If an incident appears to involve a criminal act, the facility is also responsible for notifying the appropriate law enforcement agencies.

56 FR 48842-43 (Sept. 26, 1991)(emphasis added).

This commentary shows that the drafters of section 483.13 recognized that Congress put the onus on the state survey and certification agency to handle all investigations of alleged abuse, neglect or misappropriation that implicated facility staff. However, they put some of the burden on participating facilities to do investigations of alleged abuse, neglect, and misappropriation, and expanded the responsibility to conduct investigations beyond staff to include others.

However, the drafters of 42 C.F.R. § 483.13 recognized that when preliminary investigation by the facility implicates staff, then the state survey and certification agency must be notified - this requirement is based upon the plain language of section 1819(g)(1)(C) of the Act, which clearly provides that investigation of incidents involving staff will be done by the state agency. According to Webster's New World Dictionary (2d College Ed.) an individual is implicated when it is shown that he or she has some connection with a crime or fault. One panel of the DAB has indicated that the duty to investigate and report arises when there is a "reasonable suspicion." Bergen Regional Medical Center, DAB No. 1832 (2002); see also, Life Care Center of Hendersonville, DAB CR542 (1998). I conclude that staff is implicated when there is a "reasonable suspicion" of involvement and at that point the state agency must be notified and a more formal investigation commenced.

Section 1819(g)(1)(C) of the Act specifies that the state will provide through the state survey and certification agency "for a process for the receipt and timely review and investigation of allegations of neglect and abuse and misappropriation of resident property" by facility staff. This provision of the Act is implemented by 42 C.F.R. § 488.335. While the Act does not specify that the state will conduct any or all investigations, it does indicate that the state is responsible to ensure that there is a process that leads to a complete investigation of allegations. Title 42 C.F.R. § 483.13(c) also does not specify by whom the investigation must be done when a staff member is implicated in the neglect, abuse, or mistreatment of a resident. But it is clear from the regulation that both the state agency and the facility are mandated to ensure that the investigation done is thorough and complete. Title 42 C.F.R. § 488.335(a) clearly puts the responsibility upon the State to conduct the investigation when there is an allegation of abuse or neglect of a resident or misappropriation of a resident's property that implicates staff. Construing the regulations in the context of the Act, it appears that in most cases it is expected that the investigation of allegations of abuse, neglect or misappropriation will be accomplished by the facility subject to the supervision of the state agency as specified in state law. However, when the allegations implicate facility, the duty to investigate falls upon the state. This construction is consistent with giving both the provisions of the statute and regulations meaning and effect, and with satisfying the intent of both the drafters of the statute and the regulations. Therefore, if a preliminary investigation by the facility reveals that there is an allegation of mistreatment or abuse that implicates staff, the state agency must be immediately notified and a complete investigation must be done in accordance with 42 C.F.R. § 488.335.

The legislative history of 42 C.F.R. § 483.13(c)(2) and (4) at 56 FR 48844 (Sept. 26, 1991) makes clear that when the facility investigates an allegation which does not involve staff, the intent of the reference to state law, which appears in both subsections, is that reports to state agencies (including the state survey and certification agency) will be done in accordance with the procedures specified in state law. This interpretation is consistent with the absence of such procedures for reporting in the federal regulations. It is also consistent with the fact that section 1819(g)(1)(C) of the Act (42 U.S.C. § 1395i-3(g)(1)(C)) imposes upon the states the duty to establish the process for reporting and investigation even absent regulations from the Secretary (section 1819(g)(1)(E)). Reporting of both the allegations (42 C.F.R. § 483.13(c)(2)) and the results of investigation (42 C.F.R. § 483.13(c)(4)) is obligatory. I find no authority for the proposition that the duty established by section 1819(g)(1)(E) of the Act to immediately report an allegation of a staff violation of resident rights to the Administrator and State survey agency is overridden by a different state reporting requirement. In this case, the applicable Kansas statute specifies that the investigation of any allegation of abuse of a resident will be done by the Department of Health and Environment (the State survey and certification agency) or the Department of Social and Rehabilitation Services. Kansas Statute Annotated (K.S.A.) 39-1404. ⁽⁶⁾

A prior decision of a panel of the DAB is in accord with my interpretation. In Beverly Health and Rehabilitation Center - Williamsburg, DAB No. 1748 (2000) the panel concluded that the regulatory scheme requires that a participating facility develop and implement a policy that prohibits mistreatment, neglect, abuse, and misappropriation, and that all allegations must be investigated. If there is an allegation of abuse, the policy must require that staff report the allegation to the Administrator. Furthermore, the facility must conduct a "preliminary investigation" and, if the allegation of mistreatment or abuse "implicates staff," the state survey and certification agency must be notified immediately. The DAB commented upon the need for a preliminary investigation by a facility in Carehouse Convalescent Hospital, DAB 1799 (2001), a case involving an alleged misappropriation of property. The DAB rejected an ALJ's conclusion that not every allegation of a minor injury, accident or loss of property be investigated. The DAB pointed out that the regulation requires that all alleged violations be investigated, and commented that a preliminary investigation by the facility will generally be required to determine whether there is an allegation of a violation and whether a more formal investigation is required. The Board also noted that a facility which documents its preliminary investigation can demonstrate that it complied with the regulations. Id. p. 48. ⁽⁷⁾

In Oakwood Manor Nursing Center, DAB CR818 (2001), Chief Judge Silva relied upon the DAB decision in Beverly for her conclusion that "proof of actual abuse is not a necessary prerequisite to a deficiency finding under 42 C.F.R. § 483.13(b) . . . a facility is deficient . . . if it either deliberately or negligently acts in some way that presents either actual abuse or the potential for abuse (emphasis in original)." Chief Judge Silva restated the standard of Beverly as "a facility will be deficient under 42 C.F.R. § 483.13(b) if it knows or should know that a potentially abusive event may occur and it does not take reasonably necessary steps to prevent it from happening." Chief Judge Silva rejected any strict liability approach but found 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. Her interpretation recognizes that facilities certified to participate in Medicare, Medicaid, and other federal health care programs, have a duty to prevent abuse of residents in their care, not just investigate and report incidents of abuse.

In Life Care Center of Hendersonville, DAB CR542 (1998), Judge Kessel made two points important for disposition of this case. He commented that the mere presence of episodes of abuse within a facility does not answer the question of whether a facility has implemented a policy to prevent abuse, but evidence of repeated episodes of abuse or a pattern of abuse may raise the inference that a policy has not been implemented. ⁽⁸⁾ Judge Kessel further noted that the facility in that case "had no reason to investigate 'suspected' abuse or to report 'suspected' abuse where no evidence existed to demonstrate even a reasonable probability that a resident was abused." Judge Kessel opined that the duty to investigate and report under the regulation is triggered when there is evidence that would cause a reasonable person to suspect the presence of abuse.

Based on the foregoing, I conclude that the procedure established by section 1819(g)(1)(C) of the Act and 42 C.F.R. § 483.13(c) is: (1) facility policy must require that all allegations of violation of resident rights be immediately reported to the administrator or his or her designee who will do a preliminary investigation to determine the nature of the allegations and whether staff is implicated; (2) if the preliminary investigation implicates staff abusing or violating other resident rights, the facility must immediately report to the state survey and certification agency which is charged by the Act with conducting the investigation as provided in 42 C.F.R. § 488.335; (3) the facility has a duty to ensure that all allegations of abuse, including those implicating staff, are fully investigated, and the facility must have documents reflecting the results of the investigation, whether the investigation is conducted by the state survey agency or the facility; (4) the report of the completed investigation is due to the administrator, the state agency, and other state officials in accordance with state law, within five working days of the alleged incident (42 C.F.R. § 483.13(c)(2) and (4)) or as provided by 42 C.F.R. § 488.335. See also 56 FR 48843-44 (Sept. 26, 1991); Beverly, and Carehouse. The purpose of the administrator's preliminary inquiry is only to determine whether there is an allegation of mistreatment, neglect, abuse, or misappropriation, and whether staff is implicated - not to determine whether the allegations are founded. If the allegation involves possible mistreatment or abuse and there is a reasonable suspicion staff is involved, reporting to the state agency is mandatory, whether or not the subsequent full investigation shows that the allegations were well-founded. ⁽⁹⁾ The DAB advice that all investigations be documented to demonstrate regulatory compliance applies equally well to a facility's preliminary inquiry, particularly when the facility concludes that its preliminary investigation shows the allegation is not one of mistreatment or abuse or that staff is not implicated. A facility has a duty to take reasonably appropriate steps to prevent abuse of its residents. The absence of allegations of abuse does not indicate that such steps have been taken or that a policy prohibiting abuse has been implemented. However, more than one allegation of abuse may indicate that no policy has been implemented. Inherent in this regulatory scheme is that facility management must know or, using Chief Judge Silva's formulation, the facility should know that there is an allegation of abuse before the duty to investigate and report is triggered. One way to ensure that the facility has knowledge is the regulatory requirement that facility policy must require staff to report any allegation of potential abuse to the administrator or his or her designee. A single failure of a staff member or management to comply with the policy might not indicate the facility's failure to implement the required policy. However, repeated episodes or a pattern of abuse may raise an inference that the facility has not implemented the required policy.

b. Reasonable cause analysis

Petitioner argues that 42 C.F.R. § 483.13(c)(2) provides that allegations of abuse are to be reported in accordance with state law and under the Kansas law, reporting is required only when there is "reasonable cause" to believe that a resident has been abused. K.S.A. 32-1402(a); P. Ex. 65. Petitioner argues that its Administrator and DON investigated, concluded that there was not reasonable cause to suspect the Perpetrator of any bad act and, therefore, Petitioner did all it was required to under the law. Based on the foregoing analysis of the Act and federal regulations, I conclude that Petitioner's interpretation of the interplay between the federal law and state law is in error. The Kansas statute has a much broader application than 42 C.F.R. § 483.13 as the statute applies to all health care providers, counselors, teachers, and bankers in the State, and not just to skilled nursing facilities. The duty under section 1819(g)(1)(C) of the Act and 42 C.F.R. § 483.13(c) for a skilled nursing facility to immediately report to the State agency an allegation of abuse which implicates staff, must control over the state statute's language of more general application. It is not inconsistent for the federal statute and regulation to require an immediate report in the specific instance when nursing home staff is implicated, even though the state statute seemingly allows mandatory reporters to delay and assess whether they have "reasonable cause" and not report at all if they do not. Further, the more specific requirement to immediately report an allegation implicating staff does not lead to violation of the state statute simply because reporting is triggered by the allegation that implicates staff.

This case provides a clear demonstration of why the federal law should be construed to require immediate reporting to the state agency when an allegation implicates staff even though the state statute might allow, in other cases, a facility administrator to investigate fully and then report. The requirement to immediately report when staff is implicated avoids the situation where the administrator is required to make judgments regarding his or her own staff and the appearance of a conflict of interest that may arise when such judgments are made. There is absolutely no evidence that the Petitioner or its staff intended to improperly "cover-up" the incidents in this case. But, the evidence certainly shows that the Administrator and DON, despite their obviously strong suspicions, chose to believe the Perpetrator. The appearance is that their decision was influenced by their long acquaintance with him and his family. Had the Administrator and DON viewed the evidence relating to the August 24, 1998 incident more objectively, and called the State agency immediately, they might have avoided the incident of October 8 and all the suspicions and hostility their actions aroused. ⁽¹⁰⁾

Petitioner is also in error in its view that the evidence did not establish "reasonable cause" to believe misconduct occurred as to both the August 24 and October 8, 1998 incidents. The Kansas statutes do not define reasonable cause. Black's Law Dictionary (7^th Ed.) explains that reasonable cause is the same as probable cause, i.e., a suspicion sufficiently strong to warrant a reasonable man to believe that a charge is true or, more commonly, a reasonable suspicion. Regarding the August 24, 1998 incident, the Administrator was called by a charge nurse who personally observed the Perpetrator in Resident 7's room with the door partially blocked, the Perpetrator pulling up his pants, which had a wet spot in the crotch, and the resident on her bed naked from the waist down. The Administrator also knew that the resident was demented and had at most a limited capacity to resist. This evidence, undisputed before me at the hearing, clearly establishes reasonable cause to believe that Resident 7 may have been abused in some way by the Perpetrator. Section 39-1402 of the Kansas statute, if construed to be applicable, does not give the Administrator, the DON, or any other of Petitioner's staff, the authority to investigate further in the face of such evidence. Rather, the statute establishes the duty to report to the State agency and law enforcement. In this case, the report was not made because the Administrator and DON convinced themselves that nothing happened. But, the Administrator and DON were not objective. Because they knew the Perpetrator and his family, they could not believe that a 16-year-old might seek to satisfy his sexual desires with an 80-year-old woman, they could not believe that anything like these incidents could happen in their institution with its religious affiliation, and they did not want the adverse publicity that would come with an official report. The fact that the charge nurse did not specifically say that she suspected the Perpetrator of sexually abusing Resident 7, does not relieve Petitioner of the duty to report, as the facts clearly indicated the possibility of sexual abuse. Indeed, the Administrator's direction following the incident of August 24, 1998, that male CNA staff could only care for female residents in the presence of female staff, belies the Administrator's assertions that she had no reasonable cause to believe misconduct occurred. The same may be said of the DON's avowal to keep an eye on the Perpetrator and the fact that, following both the August 24 and October 8 incidents, she checked the resident for any signs of sexual abuse. Although there are few agreed facts related to the October 8, 1998 incident, it is not disputed that another employee found the Perpetrator in the room and on the bed of Resident 1, with his pants partly down, and Resident 1 naked from the waist down, which is sufficient to establish reasonable cause, particularly when those facts are considered in light of the August 24, 1998 incident. The Perpetrator was suspended by the DON immediately after the October 8 incident, also indicating that she had reasonable cause to believe something had happened.

c. Deficiency Citations

i. CMS alleges Petitioner violated 42 C.F.R. § 483.10(b)(11), F Tag 157, at a scope and severity level of G (actual harm but not immediate jeopardy), because the Petitioner failed to immediately notify the doctors and families of Residents 1 and 7 following the incidents on August 24 and October 8, 1998, "thus depriving the resident (sic) of the examination they needed to determine if sexual contact had occurred." HCFA Ex. 4, p. 5.

Petitioner cannot deny the accuracy of the allegations, in fact, no calls to family or personal doctors were made. Petitioner argues that no deficiency occurred because no rape or sexual battery was known to have occurred. Petitioner's argument is ill-considered. The deficiency exists here because the Administrator and DON were aware of allegations of abuse of Residents 1 and 7 by a staff member and there was enough evidence to cause a reasonable suspicion that the misconduct did occur. If Residents 1 and 7 were subject to abuse, there was clearly a change in their circumstance with potential adverse effect upon their physical and mental health. Thus, it was necessary and appropriate under the regulation to contact both the families and doctors of the affected residents. The fact that the Administrator and DON concluded that nothing occurred is not relevant, for as already discussed they had no authority under the law to make that determination in light of the allegations.

I conclude that the violation occurred as alleged and the scope and severity level determination is not in error.

ii. CMS alleges that Petitioner violated 42 C.F.R. § 483.13(b), F Tag 223 at a scope and severity level of K (immediate jeopardy). Section 483.13(b) provides that a resident has a right to be free from sexual and other forms of abuse. CMS alleges that Resident's 1 and 7 were sexually abused by the Perpetrator. HCFA Ex. 4, p. 5.

Section 39-1401(f) of the Kansas statute defines abuse as:

(1) any act or failure to act performed intentionally or recklessly that causes or is likely to cause harm to a resident, including:

* * * *

(2) any sexual act with a resident when the resident does not consent or when the other person knows or should know that the resident is incapable of resisting or declining consent to the sexual act due to mental deficiency or disease or due to fear of retribution or hardship.

"Abuse" is defined at 42 C.F.R. § 488.301 to include two elements. Abuse is:

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

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

As already discussed, 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.

CMS has clearly met its prima facie case by showing that the Perpetrator pled guilty to committing an aggravated sexual battery of Resident 7 on August 24, 1998, and Resident 1 on October 8, 1998 and that the Perpetrator was a nurse aide employed by Petitioner at the time of the battery. I agree with the reasoning of Chief Judge Silva in Oakwood Manor, that proof of actual abuse is not necessary for finding a violation of 42 C.F.R. § 483.13(b). A facility is deficient under 42 C.F.R. § 483.13(b) if it knows or should know that a potentially abusive event may occur and it does not take reasonably necessary steps to prevent it from happening. I agree that facilities should not be held strictly liable but the facility does have a duty to act which arises when the facility knows or should know that a potentially abusive event may occur. Furthermore, when the duty to act is triggered, the facility must take reasonably appropriate steps to prevent the event. In this case, Petitioner has shown by a preponderance of the evidence, in the form of the credible testimony of Ms. Stamp, the Administrator, that Petitioner had no reason to suspect the Perpetrator of a potential to abuse residents prior to the incident of August 24, 1998. Accordingly, I find that prior to August 24, 1998, Petitioner had no duty to act to limit the Perpetrator's access to the facility or residents or to limit his performance of duties as a nursing assistant. However, after the August 24, 1998 incident, Petitioner had sufficient evidence so that the Administrator either knew or should have known that some remedial action was reasonably necessary to prevent any similar incident of abuse by the Perpetrator in the future. The Administrator's remedial action of directing that male aides only care for female residents with female aides present was wholly inadequate because the law required a thorough investigation which was not done. A thorough investigation would have allowed for a more informed and reasoned judgment as to necessary remedial action.

I conclude that Petitioner did not take the reasonably necessary steps to avoid further abuse by the Perpetrator after the August 24, 1998 incident. Accordingly, 42 C.F.R. § 483.13(b) was violated. I cannot find clearly erroneous CMS's determination that the continuing presence of the Perpetrator after August 24, 1998, presented immediate jeopardy to Petitioner's residents - indeed, I fully agree with that assessment.

iii. CMS alleges that Petitioner violated 42 C.F.R. § 483.13(c)(2) and (4), F Tags 224 and 225, at a scope and severity level of K (immediate jeopardy). Section 483.13(c) requires the facility to develop and implement policies to ensure that the resident rights established by the regulation are not violated. CMS alleges specifically with regard to F Tag 224 that Petitioner failed to implement its written policy to prohibit sexual abuse. HCFA Ex. 4, p. 9. Regarding F Tag 225, CMS alleges that Petitioner failed to notify officials in accordance with state law of alleged sexual abuse of Residents 1 and 7.

The facility policy was admitted as HCFA Ex. 19. The policy tracks closely the language of 42 C.F.R. § 483.13. The Petitioner also had posted in the facility, as required by K.S.A. § 39-1402(d), a copy of a poster which recites Kansas state reporting requirements. P. Ex. 4. Thus, it is clear that Petitioner had the required policy. However, it is equally clear that the Administrator and DON did not implement the policy in the case of the incidents on August 24, 1998 and October 8, 1998, by failing to immediately report the incidents and seek State agency investigation. Failure to implement the policy on two occasions by the two senior managers of the facility is a sufficient pattern to show that the facility policy was not fully implemented in this case.

I conclude that the violation occurred. and that CMS's finding of immediate jeopardy is not clearly erroneous.

iv. CMS alleges that Petitioner violated 42 C.F.R. § 483.75, F Tag 490, at a scope and severity level of F (no actual harm but with potential for more than minimal harm). Section 483.75 requires that the facility be administered in a manner so that it uses its resources to attain or maintain the highest physical, mental and psycho-social well-being of each resident. CMS alleges a violation because Petitioner did not ensure that two residents were free of sexual abuse.

The language of section 483.75 is such that any failure of management which adversely affects a resident constitutes a violation. Further, any violation of federal or state law or professional standards constitutes a violation of section 483.75(b). The Administrator's failure to take proper action in the face of the sexual battery of Residents 1 and 7 violated the regulations and State law. ⁽¹¹⁾ I find no need to disturb CMS's determination of scope and severity level as it would have no impact upon the penalty imposed in this case. ⁽¹²⁾

v. CMS alleges that Petitioner violated 42 C.F.R. § 483.75(e)(5) - (7), F Tag 496, at a scope and severity level of E (no actual harm but with potential for more than minimal harm). This section requires that prior to allowing an individual to serve as a nurse aide the facility must do registry checks to ensure that the aide meets competency requirements. CMS alleges that Petitioner failed to obtain a registry check for the Perpetrator.

It is not disputed that the Petitioner did no registry checks of the Perpetrator when he was hired. However, pursuant to 42 C.F.R. § 483.75(e)(ii), it was not necessary for Petitioner to do registry checks for the Perpetrator because he completed training and received certification at Petitioner's facility. CMS presented no evidence to indicate that the Perpetrator would have been listed in the registry prior to completing certification at Petitioner's facility. Accordingly, Petitioner had no duty to check the registry. Petitioner's duty was to ensure that the Perpetrator was added to the register after his completion of training and certification. Further, Petitioner would have no reason to believe that the Perpetrator was on the registry of another state, which excuses Petitioner from the need to check other state registries. Subsection 483.75(e)(7) has no application, as the Perpetrator had not been certified as an aide for 24 months. Accordingly, I find there was no violation of 42 C.F.R. § 483.75(e).

3. Immediate Jeopardy Ended October 11, 1998, The Day Prior To The Administrator Reporting To The State Agency And Initiation Of The Complaint Survey.

CMS alleges that immediate jeopardy existed at Petitioner's facility from the first incident, August 24, 1998, through October 21, 1998, "the date prior to an in-service training program for all employees of the facility on the policy and procedures for reporting abuse and neglect." CMS's Post Hearing Brief, p. 22. Immediate jeopardy is defined as:

(A) situation in which the provider's noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment or death to a resident.

42 C.F.R. § 488.301.

There is no dispute that the Perpetrator continued to work at the facility until the incident on October 8, 1998. Certainly, immediate jeopardy continued so long as the Perpetrator was working at the facility with the possibility for access to female residents that he might sexually assault. The undisputed evidence is that on October 8, 1998, the Perpetrator was immediately suspended and there is no evidence that he ever returned to the facility. It is arguable that immediate jeopardy ended when the Perpetrator was removed from the facility and access to female residents.

It is necessary however, for reasons already discussed, to focus upon the conduct of Petitioner and whether Petitioner took proper action to end the risk of harm to its residents. As a general rule, deficiencies are considered to continue until such time as the facility shows that they are abated. 42 C.F.R. §§ 488.402, 488.410, 488.412, 488.440, 488.454. The regulation establishes the requirement that the Petitioner report an allegation of abuse by facility staff to the State agency, but the undisputed evidence is that this was not done until October 12, 1998. Therefore, I conclude that immediate jeopardy continued at least through October 11, 1998, the day prior to Petitioner's report to the State agency and the initiation of the complaint survey.

CMS asserts that immediate jeopardy continued after October 11 until October 21, 1998, because "the provider's noncompliance was likely to cause such harm" as was suffered by Residents 1 and 7. CMS's Post Hearing Brief, p. 22. There is no evidence of record that there was any risk that other staff would engage in abusive conduct. I understand the CMS argument that facility staff was not trained until October 21, 1998, regarding proper procedures for reporting abuse (TR 36) and that there was a presumption of a continuing deficiency at an immediate jeopardy level. However, the evidence in this case is convincing that staff knew that reporting was required and, in fact, staff did report both incidents in this case. It was the Administrator and DON who failed to report to the state agency, but that continuing deficiency was resolved by the Administrator's report to the state agency on October 12, 1998.

The CMS position that immediate jeopardy continued after October 11, 1998, is also inconsistent with the action of the state surveyor and state agency in this case. Ms. Sandrick testified that at the conclusion of the complaint survey, she and the district and field managers discussed the situation and concluded that immediate jeopardy existed (TR 69-71). Ms. Sandrick did not testify that the issue of whether immediate jeopardy continued after October 11, 1998 was discussed or that she and her supervisors made any conclusions with respect to the abatement of the cited deficiencies and immediate jeopardy. However, 42 C.F.R. § 488.410(c) provides that when immediate jeopardy is found in a NF or dually participating facility, CMS and/or the state must "take immediate action to remove the jeopardy and correct the noncompliance through temporary management" or terminate the facility. CMS and the state did not take such action. Rather, on October 20, 1998, the state agency notified Petitioner that its was to submit a plan of correction, that a CMP was being recommended and that the state recommended termination occur effective November 8, 1998. HCFA Ex. 1. Although the state's October 20 letter states that "(i)f a revisit conducted prior to November 8, 1998 can verify that the immediate jeopardy situation has been removed, your provider agreement will not be terminated at the close of November 8, 1998 (HCFA Ex. 1, p2)" this statement is inconsistent with the requirements of the regulation when immediate jeopardy is found in a SNF/NF. I infer from the state agency failure to take the action required by 42 C.F.R. § 488.410(c), that it was determined that immediate jeopardy no longer existed when the survey began on October 12, 1998.

I conclude based on the foregoing, that after October 11, 1998, there was no continuing deficiency which presented immediate jeopardy. Further, having considered all the deficiencies which are supported by the evidence, I conclude that after October 11, 1998, no deficiency existed that presented the possibility for even minimal harm. Thus, there was no basis for a continuing CMP or other enforcement remedy after October 11, 1998.

4. Remedy

CMS imposed a CMP of $3,050.00 per day for each day in the period August 24, 1998 until October 21, 1998, on the basis that immediate jeopardy continued through October 21, 1998. I conclude that immediate jeopardy ended on October 11, 1998. The CMS choice of remedy is not appealable (42 C.F.R. § 488.406(g)(2)) and the minimum daily CMP when immediate jeopardy exists is $3,050.00 (42 C.F.R. § 488.408(e)).

Accordingly, I conclude that a CMP of $3,050.00 per day for the period August 24, 1998 through October 11, 1998 is reasonable and the CMP is approved. I find no basis for imposition of a remedy for the period October 12 through 21, 1998.

IV. Conclusion

For the foregoing reasons, I conclude that Petitioner violated 42 C.F.R. §§ 483.10(b)(11), 483.13(b), 483.13(c)(1), 483.13(c)(2) and (4), and 483.75 during the period August 24, 1998 through October 11, 1998. The violations of 42 C.F.R. § 483.13 presented immediate jeopardy to Petitioner's residents during the period August 24, 1998 through October 11, 1998. A CMP of $3,050.00 per day for the period August 24, 1998 through October 11, 1998, is the lowest daily CMP authorized and it is reasonable in this case.

1. Effective July 5, 2001, the Health Care Finance Administration (HCFA) was renamed CMS. 66 Fed. Reg. 35437.

2. The "Perpetrator" was ultimately convicted as a minor, therefore his name is not used herein. There is no disagreement among the parties as to the identity of the Perpetrator, although their agreement regarding the Perpetrator's identity was not included in the parties' stipulations.

3. A SNF is a nursing facility under the federal Medicare program and a NF is a nursing facility under the state Medicaid program. The Petitioner participates in both and is referred to as a "dually participating facility." See 42 C.F.R. § 488.301. SNFs are governed by section 1819 of the Act while NFs are subject to section 1919.

4. Scope and severity levels are used by CMS and a state when selecting remedies. The scope and severity level is designated by an alpha character, A through L, selected by CMS or a state from the scope and severity matrix published in the State Operations Manual (SOM), section 7400E. A scope and severity level of A, B, or C indicates a deficiency that presents no actual harm but has the potential for minimal harm. Facilities with deficiencies of a level no greater than C remain in substantial compliance. 42 C.F.R. § 488.301. A scope and severity level of D, E, or F indicates a deficiency that presents no actual harm but has the potential for more than minimal harm that does not amount to immediate jeopardy. A scope and severity level of G, H, or I indicates a deficiency that involves actual harm that does not amount to immediate jeopardy. Scope and severity levels J, K, and L are deficiencies that constitute immediate jeopardy to resident health or safety. The matrix, which is based on 42 C.F.R. § 488.408, specifies which remedies are required and optional at each level based upon the frequency of the deficiency. See SOM, section 7400E.

5. The DON was not called as a witness.

6. Whether the facility or the state has primary investigative authority may vary from case to case depending upon the state statute that controls reporting and investigation of neglect and abuse of nursing home residents.

7. In Pathfinder Healthcare, Inc., DAB CR958 (2002), I considered the situation where preliminary investigation revealed no allegation implicating staff.

8. Similarly, failure to implement an anti-neglect policy can be shown by sufficient examples of neglect which indicate a systemic failure. Emerald Oaks, DAB No. 1800, p. 18 (2001).

9. I do not mean to suggest that there is not a similar duty to report where the preliminary investigation shows that there is an allegation of abuse, neglect, or misappropriation, but by someone other than facility staff. In such cases, section 483.13(c) places the burden upon the facility to do a timely investigation and report in accordance with the requirements of state law, which in this case would be K.S.A. 39-1402. But those are not the facts of this case.

10. There is some evidence that following the October 8, 1998 incident there was at least one violent act directed against facility staff, as well as much adverse publicity and general disruption of the environment within the facility, arguably all detrimental to the health and well-being of other residents.

11. I have not overlooked Petitioner's evidence that the state prosecution against the DON was dropped and that the prosecution of the Administrator was dismissed. Court Ex. 1, p. 5; P. Exs. 40, 41, 42, 43. But, unlike a state criminal court, I need not make my findings beyond a reasonable doubt - a preponderance of the evidence is sufficient. Further, Petitioner has presented no authority, and I am aware of none for the proposition, that I am bound by either the state court's dismissal of criminal charges or the state administrative actions in the circumstances of this case.

12. A scope and severity level of "F" indicates that there is no actual harm but potential for more than minimal harm which does not rise to the level of immediate jeopardy, and the deficiency is widespread. I do not see that the conclusion that the deficiency is widespread is consistent with the evidence of only two incidents. I also do not see a basis for the determination that this deficiency does not amount to immediate jeopardy where the exact conduct is the basis for an immediate jeopardy allegation in the context of other deficiency citations. But these observations have no effect upon the remedies imposed.