SUBJECT:

Sunrise Care & Rehabilitation - Cambridge Drive,

Petitioner,

Health Care Financing Administration

I. Background

Petitioner is a 106-bed skilled nursing facility located in Lexington, Kentucky. HCFA found that Petitioner was not in substantial compliance with Medicare participation requirements on April 1, 1998, based on a May 22, 1998 complaint survey by the Kentucky Department of Health and Human Services (State survey agency).⁽¹⁾ A survey is identified by its exit date; the survey here lasted from May 18 through May 22. HCFA imposed a $3,050 CMP for one day of immediate jeopardy on April 1, 1998, based on allegations of deficiencies involving two residents. HCFA Ex. 32. Specifically, HCFA cited six deficiencies stemming from an alleged sexual contact between the two residents. HCFA determined that there was immediate jeopardy for three of the citations, Tags F-490, F-223, and F-224; and non-immediate jeopardy for the other three citations, Tags F-225, F-250, and F-319. HCFA found Petitioner to be in substantial compliance with Medicare participation requirements beginning April 2, 1998.

During the in-person hearing, August 17-19, 1999, in Lexington, Kentucky, each party called witnesses to testify. The transcript of the hearing is referred to as "Tr." Petitioner moved the admission into evidence of 44 exhibits, referred to as Petitioner exhibits (P. Exs.) 1- 44. All were initially admitted into evidence without objection. Tr. 46. As the hearing progressed, HCFA raised an objection regarding the authenticity of P. Ex. 33. See Tr. 170. HCFA moved the admission into evidence of 45 exhibits, referred to as HCFA exhibits (HCFA Exs.) 1- 45, which were admitted into evidence without objection. The parties submitted initial posthearing briefs (P. Br. and HCFA Br.), response briefs (P. R. Br. and HCFA R. Br.), and also briefs concerning the admissibility of P. Ex. 33. I deny HCFA's motion to exclude P. Ex. 33. However, I have considered HCFA's objection to P. Ex. 33 in determination of the weight I have given to that evidence.

II. Applicable law

Skilled nursing facilities such as the Petitioner participate in the Medicare program by entering into provider agreements with the United States Department of Health and Human Services (DHHS). Requirements of participation are imposed by statute and regulation. Act, section 1819 [42 U.S.C. § 1395i-3]; 42 C.F.R. Parts 483, 488, and 489.

The regulations define "substantial compliance" as follows: "Substantial compliance means a level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm." 42 C.F.R. § 488.301.

The regulations define "immediate jeopardy" as follows: "Immediate jeopardy means a situation in which Petitioner'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." Id.

The regulations specify that a CMP that is imposed against a Petitioner will fall into one of two broad ranges of penalties. Per day CMPs in the lower range, from $50 to $3,000 per day, are imposed 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. Per day CMPs in the upper range, from $3,050 per day to $10,000 per day, are imposed for deficiencies that constitute immediate jeopardy to one or more of a petitioner's residents. 42 C.F.R. §§ 488.408, 488.438(a).

The State statute (Kentucky Revised Statutes (K.R.S.)) § 209.030, et. seq., regarding the requirement to report suspected abuse of adults, was referred to by the parties during the hearing. The operative section is set out below, in Section III.B.(b), Discussion.

The preponderance of the evidence standard is applied to resolve disputed issues of fact, except as provided by 42 C.F.R. § 498.60(c)(2), which states that in CMP cases, HCFA's determination as to the level of noncompliance of a skilled nursing facility must be upheld unless it is clearly erroneous.

HCFA bears the burden of coming forward with evidence sufficient to establish a prima facie case that Petitioner was not in substantial compliance with the participation requirements at issue. Once HCFA has established a prima facie case, Petitioner has the ultimate burden of persuasion. To prevail, Petitioner must prove by a preponderance of the evidence that it was in substantial compliance with each participation requirement at issue. Hillman Rehabilitation Center, DAB No. 1611 (1997); aff'd, Hillman Rehabilitation Center v. United States, No. 98-3789 (GEB) (D.N.J. May 13, 1999).

III. Issues, findings of fact and conclusions of law.

A. Issues.

The principal issue is whether Petitioner was in substantial compliance with Medicare participation requirements on April 1, 1998. The more specific issues are:

• Whether Petitioner was in substantial compliance with 42 C.F.R. § 483.75 [Tag F-490], which requires that a facility 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 psychosocial well-being of each resident. If not, a further issue is whether the noncompliance resulted in immediate jeopardy;

• Whether Petitioner was in substantial compliance with 42 C.F.R. § 483.13(b) [Tag F-223], which concerns a resident's right to be free from verbal, sexual, physical, and mental abuse. If not, a further issue is whether the noncompliance resulted in immediate jeopardy;

• Whether Petitioner was in substantial compliance with 42 C.F.R. § 483.13(c)(1)(i) [Tag F-224], which concerns a facility's development and implementation of written policies and procedures that prohibit mistreatment, neglect, and abuse. If not, a further issue is whether the noncompliance resulted in immediate jeopardy;

• Whether Petitioner was in substantial compliance with 42 C.F.R. § 483.13(c)(1)(ii) [Tag F-225], which concerns a facility's employment of individuals who have been found guilty of abusing, neglecting, or mistreating residents and the facility's duty to report any knowledge it has to State officials through established procedures;

• Whether Petitioner was in substantial compliance with 42 C.F.R. § 483.15(g) [Tag F-250], which concerns the provision of medically related social services by a facility to a resident to allow the resident to attain or maintain his or her highest practicable physical, mental and psychosocial well-being;

• Whether Petitioner was in substantial compliance with 42 C.F.R. § 483.25(f)(1) [Tag F-319], which concerns the provision of appropriate treatment and services to a resident in order to correct an assessed problem of a resident where the resident displays a mental, or psychosocial adjustment difficulty.

B. Findings of fact and conclusions of law

Below, I make findings of fact and conclusions of law/finding to support my decision. In so doing I set forth each finding below as a separately numbered heading.

1. Petitioner was not in substantial compliance with 42 C.F.R. § 483.75 [Tag F-490]. HCFA's determination that Petitioner's noncompliance was at the level of immediate jeopardy was not clearly erroneous.

Following the May 22, 1998 survey, HCFA cited Petitioner for an administrative deficiency, specifically under the subsection of the regulations concerning compliance with federal, State, and local laws (e.g., failure to report suspected abuse and neglect), 42 C.F.R. § 483.75, which states in pertinent part:

[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 psychosocial well-being of each resident.

(b) Compliance with Federal, State and local laws and professional standards. The facility must operate and provide services in compliance with all applicable Federal, State, and local laws, regulations and codes. . . .

42 C.F.R. § 483.75.

(a) Chronology

Resident B was a well-developed, well-nourished, 72-year-old male, who was known to be hard of hearing. He had been discharged from Woodford County Kentucky Hospital immediately prior to his residency at Petitioner's facility, which began on March 20, 1998. During the intake interview process for Petitioner's facility, while still at Woodford, Resident B grabbed the breast of Petitioner's interview nurse. That incident was noted in his pre-admission assessment. Tr. 433; HCFA Ex. 6 at 1.

Petitioner's protocol for new residents was to prepare and follow an interim Plan of Care (POC) and observe the resident for a period of 14 days before preparing a permanent POC. Resident B was scheduled to have a permanent POC prepared for him within seven days following his 14-day observation period. P. Ex. 29 at 20.

A resident assessment is required to be completed within 14 days after admission. 42 C.F.R. § 483.20(b)(2)(i). It is anticipated that the POC in effect would be followed unless there arose a "significant change" in a resident's mental or physical condition. Significant change, for the purposes of this section, means a major decline or improvement in a resident's status that will not normally resolve itself without further intervention by staff or by implementing standard disease-related clinical interventions, that has an impact on more than one area of a resident's health status and requires interdisciplinary review or revision of the care plan or both. 42 C.F.R. § 483.20.

Petitioner had instituted an initial care plan for Resident B from the time of his admission, which was not modified at the time of the incident, concerning his sexual behavior. P. Ex. 29 at 20. Thus, when an incident occurred on April 1, 1998, which led to the complaint survey, Resident B did not have a permanent POC.

In his Admission Report, Resident B was diagnosed as having subcortical dementia, a condition which adversely affects control of inhibitions. P. Ex. 22. In addition to the medications noted on Resident B's transfer, he was prescribed Ativan for restlessness by Petitioner's admitting physician. Tr. 407; P. Ex. 22 at 2. There is evidence that Ativan may have been contraindicated for Resident B's form of dementia, especially at night. HCFA Ex. 44 at 350. Antisocial behaviors by Resident B that were charted in the nurse's notes included: swinging scissors at staff; pushing medicine cart into other residents; swinging his cane at staff; throwing a wall picture to the floor; and throwing a water pitcher at the staff. In total, six incidents of anti-social behavior were charted prior to the April 1, 1998 incident. P. Ex. 4 at 1-3; P. Ex. 36 at 6. A Social Services Assessment dated March 31, 1998 included comments that Resident B was both combative and sexually abusive. P. Ex. 38 at 2.

Resident B was assigned to the West Wing of Petitioner's facility, at the Southwest end of the hall in room 28 in the window bed position. HCFA Ex. 41. Resident B was able to get out of bed on his own. P. Ex. 29 at 85. Prior to April 1, Resident B was known to "wander" into the East Wing and into the rooms of other patients. P. Ex. 28. On the night of the incident for which a complaint was made, Nurse Aide (NA) Gary was the aide assigned to "watch" Resident B and make "rounds" in addition to his regular duties. Tr. 266. Petitioner's standard protocol for new admittees was that they were to be observed every two hours during rounds. Tr. 29, 268; P. Ex. 29 at 95.

In the early morning of April 1, 1998, Resident B was observed to be in his bed at approximately 2:00 a.m. P. Ex. 29 at 54. Thereafter, and between 2 a.m. and 3:10 a.m., he was seen to wander from room 28 in the West Wing to the West Wing atrium for an unknown amount of time, then he crossed the center hallway and into the East Wing atrium. P. Ex. 29 at 54. When Resident B was observed that night, he was ambulatory and not in his wheelchair. P. Ex. 29 at 50-54.

Resident A (the female resident) was assigned to room 44 in the East Wing at the Southeast end of the hall in Petitioner's facility in the window bed position. HCFA Ex. 41 at 2. Between 2:00 a.m. and 3:10 a.m. on April 1, 1998, NA William, assigned to the East Wing observed Resident B in Resident A's bed. P. Ex. 29 at 29, 96. NA Michael was asked by NA William to meet him in the East Wing hallway at approximately the location of rooms 47, 40, 48, and 39 where he said to him, "[c]ome here, come here." A conversation ensued between the two aides, laughter was heard and seen between the aides by NA Tomeka. P. Ex. 29 at 29. NA Michael tapped her on the shoulder and said, "shhh - be quiet, [Resident B] is getting a piece of ass." NAs Tomeka, Michael, and William then went together to Resident A's room, whereupon they saw Resident B laying behind and on top of Resident A. Resident A was on her left side or her belly, with Resident B on top of her with his belly touching her back. She was not awake. NA Michael testified that "it looked . . . like he had an erection." P. Ex. 29 at 97. NA Michael turned on the light on the room. NA Tomeka observed that Resident B did not seem to be penetrating Resident A and was lying there as if he were sleeping. Then, NA Gary came to the East Wing hall. NA Tomeka waited for him to come down the hall so she could show him what was going on. When he looked into the room, NA Gary began yelling, crying, and threw a chair and ran out of the room and was upset. P. Ex. 29 at 29. NA Tomeka observed that: the bed rail was still up on Resident A's bed; Resident B had no clothes on from the waist down; his diaper was laying along side of the bed; and she observed Resident B's bare buttocks and scrotum. Resident B's bare genitalia were against Resident A's bare vaginal area. P. Ex 29 at 30-31. NA Tomeka tried by herself to pull Resident B off of Resident A and he kicked her. P. Ex. 7 at 4. NA Tomeka instructed NA's, Michael and William, to get Resident B off of Resident A and they placed him in a wheelchair outside the room. Other employees then came to view the room and observe and "assess" Resident A's condition. Three of Petitioner's employees, Licensed Practical Nurse (LPN)s Janet and Mona, and NA Tomeka, testified that they saw and smelled semen on the inner thighs of Resident A. Tr. 13-14, 508-509, 462. The Director of Nursing (DON) viewed Resident A approximately 45 minutes after the alleged incident and declared that the wetness was cotton lint and urine. Tr. 464. The DON instructed the LPN's to describe what they saw in terms of color and consistency and not say that what they saw was semen. Tr. 467.

Petitioner's Administrator was awakened by a call from DON at approximately 4:15 a.m. on April 1, 1998, concerning the incident. P. Ex. 29 at 50. The Administrator arrived at the facility at approximately 5:30 a.m. P. Ex. 29 at 60. She read through the written statements provided by employees LPNs Janet and Mona and NAs Tomeka, William, Michael, and Gary. P. Ex. 29 at 51. Those written statements had been completed by Petitioner's employees by 3:30 a.m. of April 1, 1998.

The DON and Certified Nurse Assistant (CNA) Dorothy both reported that no semen was present when they examined Resident A when they observed her about 45 to 50 minutes after the incident. The Administrator did not obtain a signed written statement of the DON. However, despite three witnesses who observed the Resident A within a few minutes of the incident, and who had strong opinions concerning the possible presence of semen, the Administrator relied strongly on the DON in reporting to the Complaints Coordinator for Licensed Care Facilities of Region D in Kentucky (Complaints Coordinator). Tr. 819. The Administrator's report to the Complaints Coordinator, at about 10:00 a.m., did not include any mention of possible semen or even of feminine discharge, because the Administrator perceived that the substance was a perineal cream. P. Ex. 29 at 52-53; Tr. 818-819.

• fail to report an incidence of mistreatment or other offense;

• screen reports or withhold information to reporting agencies.

P. Ex. 30 at 5.

Petitioners's policy and procedure for investigation of any observation of, or suspicion of, resident/resident abuse was that the documentation in the medical record was to reflect direct observable facts (i.e., if residents complained of being hit, document redness, swelling, etc.). HCFA Ex. 19 at 2. The complaint investigation file should contain the employee statements. HCFA Ex. 19 at 8. Written reports of the allegation of abuse should be completed within 48 hours of the initial telephone call.

As a result of two anonymous telephone calls which were received by the Cabinet for Health Services, Office of Inspector General Division of Licensing and Regulation for the State of Kentucky, the State conducted an investigation. It subsequently issued a Type "A" citation. HCFA Ex. 20. A separate hearing was held in that case on September 16-17, 1998. P. Ex. 29.

(b) Discussion

To support its determination that Petitioner failed to comply with this requirement, HCFA alleged that Petitioner's failure to report an alleged act of sexual abuse involving two residents as detailed at Tag F-490 on the Statement of Deficiencies. HCFA cited this deficiency as an overall failure at the level of immediate jeopardy. I base my decision on the documents in evidence, except P. Ex. 33, the testimony and my determination as to the credibility of the witnesses before me, and application of the law.

It is the duty of a facility through its administrators "to operate and provide services in compliance with all applicable Federal, State and local laws, regulations, and codes . . ." 42 C.F.R. § 483.75. Here, this includes local laws requiring Petitioner to make reports to the Kentucky Adult Protective Services [of] all allegation of abuse." (emphasis added). State law in Kentucky requires a report of an incident where there is reasonable cause to suspect abuse, neglect, or exploitation. Tr. 676.

(2) Any person, including, but not limited to, physician, law enforcement officer, nurse, social worker, cabinet personnel, coroner, medical examiner, alternate care facility employee, or caretaker, having reasonable cause to suspect that an adult has suffered abuse, neglect, or exploitation, shall report or cause reports to be made in accordance with the provisions of this chapter . . . (emphasis added).

Kentucky Revised Statutes § 209.030(2).

Petitioner had an adequate policy and procedure in place prohibiting abuse. Tr. 231. Petitioner's administrator testified that she did make a report of the incident involving Resident A on April 1, 1998, at approximately 10:00 a.m. Tr . 818. The Administrator stated that she is the person responsible for making those reports. Tr. 748. The Complaints Coordinator testified that he did receive an oral report of the incident from the Administrator on April 1, 1998, at approximately 10:00 a.m. and made handwritten entries on a form. HCFA Ex 31. at 3. The innocuous nature of the information transmitted from the Administrator to the Complaints Coordinator is uncontroverted. Tr. 785; P. Ex. 29 at 63. It was recorded by the Complaints Coordinator as:

Resident B found in bed with Resident A sleeping. Neither patient is [unreadable] and both suffer from dementia. Neither patient recalls the incident and neither appear to be traumatized. The residents were examined and there are no signs of trauma or sexual assault. [The Physician] examined two residents and found no injuries. HCFA Ex. 31 at 3.

At the time of the phone report, the Administrator stated she had in her possession all of the statements by Petitioner's employees and had interviewed the employees. Tr. 513-514, 776, 806, 818. Some of the employees were interviewed more than once. Tr. 776. The Administrator agreed that she had heightened sensitivity to possible consequences to Petitioner from adverse publicity from an alleged sexual abuse matter in the recent past. Tr. 808. When the Administrator made the telephone call to the Complaints Coordinator, she was in the presence of the Regional Manager and the Corp. VP. Tr. 748; P. Ex. 29 at 54. The Administrator stated she had followed the reporting procedures set forth by Petitioner. Tr. 774. The Administrator agreed that she was under an obligation to make an abuse investigation, because as of the time of her phone call to the Complaints Coordinator on April 1, 1998, she was "investigating this incident as if a sexual assault might have occurred." P. Ex. 10; Tr. 772, 783. The oral report provided to the Complaints Coordinator by the Administrator was missing many details concerning the alleged abuse, which is contrary to Petitioner's written policy for reporting alleged sexual abuse. P. Ex. 29 at 55; Tr. 125, 164.

Petitioner's staff had been trained to convey reports of alleged abuse to their supervisors in the chain of command. Tr. 747. Petitioner's staff, other than NAs William and Michael, took prompt and appropriate action after observing prohibited intimate contact between Residents A and B and reported the incident to the facility Administrator and/or the DON. NA Gary was very upset by what he said he witnessed and told LPN Janet to call the DON right away. HCFA Ex. 21; Tr. 128. The urgency of the incident to Petitioner's staff on duty is shown by the telephone call made by NA Gary to the DON, which awakened her at home at 3:30 a.m. on the morning of April 1, 1998. Tr. 256.

aide had found [Resident B] in [Resident A's] bed with both of them sleeping, that [Resident B]. . . apparently got turned around . . . and ended up in [ Resident A's] room . . . staff did not feel that here was any physical activity between the two residents, . . . medical director . . . examined [Resident A] and found no sign of trauma or penetration.

P. Ex. 29 at 39.

The Administrator stated that she informally handed copies of the staff incident reports to the Social Worker when she visited the facility on another matter. Tr. 130, 786. There was no offer of proof of an acknowledgment of receipt by the Social Worker of these reports by Petitioner. The Social Worker denied receiving any documents from the Administrator. P. Ex. 29 at 41.

The Administrator did not file a written report of the incident with the State Agency. Tr. 701; P. Ex. 29 at 57; HCFA Ex. 19 at 8.

[a]dditional intake information obtained on 5-7-98. Apparently male resident found on top of female resident. Two staff members were allegedly watching the resident have sexual intercourse with resident A white discharge noted on and around vaginal area. Staff statements obtained during survey.

HCFA Ex. 31 at 3.

While the sexual impulses of Resident B were unpredictable, I find that the facility was missing vital information to deal with his impulses. There is evidence that his impulses ranged from being an annoyance to being dangerous to staff and to other residents. We cannot at this time state with confidence what his impulses were or when they occurred, due to the lack of a definitive behavior record during his residency period of March 20 through April 1, 1998. It appears from the testimony that the night shift was short of staff to provide the necessary oversight, or even to perceive the necessity to give oversight to Resident B. Even though he had arrived at the facility only 10 days before the incident, it appears that the lack of communication up and down the chain of command allowed the night shift staff to make resident care decisions without adequate support, instructions, and personnel to prevent Resident B's behavior from becoming an institutional problem.

The lack of communication, both oral and written, allows the person responsible for each step in the chain of command to disavow knowledge and culpability for adverse consequences. The LPNs said they didn't know that they were supposed to chart dangerous and potentially dangerous acts by a resident during the period of the initial POC and to confirm that the report of such behavior went up the chain of command to allow the alteration of the initial POC due to a "significant change" in the resident's condition.

I have considered the following actions taken by the DON:

(1) She had not made sure that the staff made written records of Resident B's behaviors.

(2) She did not know Resident B's history sufficiently to make accurate decisions about his behavior.

(3) She did not convey adequate information on April 1, 1998 to the examining physician concerning Resident B and therefore his diagnosis and his subsequent instructions were based upon false premises.

(4) She used the Physician's benign report (as a result of incomplete information) to close off to herself and others that "white-yellowish discharge" might be semen and allowed perishable evidence and access to unrehearsed testimony of suspected employees to be lost.

The Administrator reviewed some, but not all, of the evidence and made a report to State officials weighted heavily upon the DON's opinion. Although she made a timely oral report, it was not a complete report. The report was missing details which may have shed a new light on the initial conclusion. Petitioner suggests " . . . no regulation requires the report to be complete or even accurate." P. Br. at 32. To follow Petitioner's theory of the meaning of K.R.S. § 209.030(2) would not only gut the law, but lull the governmental agency into a state of complacency. Could any reports be trusted using the Petitioners's theory? The receipt of accurate and timely reports is a vital part of the monitoring process designed to protect the aged, infirm, and those unable to protect themselves. An incomplete and/or untimely incident report is a crucial break in the web of protection afforded to otherwise helpless residents. I reject Petitioner's theory that an incomplete or inaccurate report would be a satisfactory report. The post-event factual analysis of the incident by the Administrator or by the DON may have been solicited and useful to the Complaints Coordinator, but the State agency also deserves the raw, unfiltered evidence.

What is deficient here is the overall failure of the administration to:

(1) properly chart or record the antisocial and disruptive behavior of Resident B;

(2) properly inform the Physician of the past antisocial, disruptive, and dangerous behavior of Resident B in Petitioner's facility;

(3) properly consider the observations of all eye witnesses to the incident;

(4) properly inform the Complaints Coordinator in accordance with the spirit and intent of the Kentucky reporting statute, of factors adverse to Petitioner, namely:

(a) no mention of any sexual activity;

(b) no mention of possible identification of semen;

(c) no mention of Resident B's diaper being found on the floor of Resident A's room;

(d) no mention of two staff allegedly watching an act of intercourse;

(e) no mention of a statement that the resident in issue was "down there getting a piece of ass;"

(f) no mention that the genitals were touching;

(g) no mention that two male NAs were standing outside the resident's room laughing; and

(h) no mention that the two male NAs were suspended/fired; and;

(5) make a follow-up report within 72 hours of the incident.

The events which occurred during the early morning of April 1, 1998, at Petitioner's facility may indeed have been as innocuous as initially described to the Complaints Coordinator by the Administrator. On the other hand, actual harm to Resident A could have occurred. There is strong evidence that one or both of the male NAs (William and Michael) observed prohibited intimate contact (sexual contact) between two demented residents, A and B, and failed to take timely, appropriate action. Without complete, accurate, and timely reports, no one will know. However, HCFA stated none of the deficiencies were based upon the lack of or delay of intervention of the two male NAs in the alleged sexual abuse incident. P. Ex. 29 at 20; Tr. 222, 639.

I am impressed that two unknown witnesses to the incident at Petitioner's facility were so concerned that no State investigation of the incident had been initiated that they telephoned the proper agency to report the incident as they recalled it. The Administrator agreed it was an "alleged" sexual abuse investigation. Tr. 772-773. The incident deserved a proper report, as required by the Kentucky statute.

Agencies that are under a duty to enforce the regulations protecting nursing home residents cannot be in all places at all times. They must necessarily depend upon a reporting system and record-keeping prepared in good faith by the staff of the facilities. I find that the inevitable result of not following proper procedures initially crippled Petitioner from recognizing the threat of Resident B, and ultimately kept members of Petitioner's management staff from having access to important raw data. It is also hard to escape the conclusion that the pressure of having to please regional corporate staff and the desire to reduce adverse publicity to the corporate facility resulted in incomplete reports to the Complaints Coordinator and the Social Worker. Through the incomplete and inaccurate incident reporting, the responsible agencies were lulled into a state of mind that nothing unusual had occurred.

Upon learning the additional disturbing information, both Kentucky State agencies instituted separate civil penalty actions against the facility. I find that the prima facie evidence presented by HCFA has not been overcome by Petitioner's evidence. Thus, Petitioner has not proved by a preponderance of evidence that it was in substantial compliance with the requirements of 42 C.F.R. § 483.75.

HCFA's burden is simply to present prima facie evidence that Petitioner's failure to substantially comply with the regulations constituted a deficiency and that the deficiency constituted immediate jeopardy. To rebut HCFA's prima facie case of immediate jeopardy, Petitioner must prove that HCFA's determination was clearly erroneous. 42 C.F.R. § 498.60(c)(2). I find the shortfalls of the facility in this regard are serious and that HCFA's determination that the deficiency constituted immediate jeopardy for one day was justified.

2. Petitioner was in substantial compliance with 42 C.F.R. § 483.13(b) [Tag F-223]. Since there was no deficiency, there was no immediate jeopardy.

Following the May 22, 1998 survey, HCFA cited Petitioner with facility practice deficiencies, specifically the subsection of the regulations concerning sexual abuse, 42 C.F.R. § 483.13(b), which states in pertinent part:

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

42 C.F.R. § 483.13(b).

To support the allegation that Petitioner failed to comply with this requirement, the alleged sexual abuse by Resident B of Resident A is detailed at Tag F-223 on the Statement of Deficiencies.

I find that the allegations presented by HCFA on the element of "willful infliction of injury" inherent in the term "abuse" is unsupported by the evidence or is speculative. The degree of active involvement of the two male NAs in promoting the prohibited contact between Resident A and Resident B cannot be determined. I follow the Board's decision regarding "abuse" in Beverly Health and Rehabilitation Center - Williamsburg, DAB No. 1748 (2000). Because of my determination above based on Tag F-490, I need not analyze this deficiency in further detail.

3. Petitioner was in substantial compliance with 42 C.F.R. § 483.13(c)(1)(i) [Tag F-224]. Since there was no deficiency, there was no immediate jeopardy.

Following the May 22, 1998 survey, HCFA cited Petitioner with a "staff treatment of residents" deficiency, specifically the subsection of the regulations concerning sexual abuse, 42 C.F.R. § 483.13(c)(1)(i), which states in pertinent part:

(c) Staff treatment of residents: The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property.

(1) The facility must -

(i) Not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion.

42 C.F.R. § 483.13(c)(1)(i).

To support the allegation that Petitioner failed to comply with this requirement, the staff's involvement concerning the alleged act of sexual abuse by Resident B of Resident A is detailed at Tag F-224 on the Statement of Deficiencies.

Petitioner did develop an adequate policy and procedure regarding this requirement. Tr. 232; HCFA Ex. 19. However, regarding implementation for those policies and procedures, I find that the allegations presented by HCFA on the element of "willful infliction of injury" inherent in the term "mistreatment, neglect, and abuse" is unsupported by the evidence. Furthermore, there were no deficiencies written for the failure of Petitioner to monitor or observe the behavior of Resident B. P. Ex. 29 at 20. None of the deficiencies are based upon the failure to intervene or late intervention of the two male NAs (Michael or William) in the alleged sexual abuse incident. Tr. 222, 639. Because of my determination above based on Tag F-490, I need not analyze this deficiency in further detail.

4. Petitioner was in substantial compliance with 42 C.F.R. § 483.13(c)(1)(ii) [Tag F-225].

Following the May 22, 1998 survey, HCFA cited Petitioner with deficiencies of "Staff treatment of residents," specifically the subsection of the regulation concerning employment of certain individuals, 42 C.F.R. § 483.13(c)(1)(ii), which states in pertinent part:

(c) Staff treatment of residents: The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property.

(1) The facility must -

* * *

(ii) Not employ individuals who have been -

(A) Found guilty of abusing, neglecting, or mistreating residents by a court of law; or

(B) Have had a finding entered into the State nurse aide registry concerning abuse, neglect, mistreatment of residents or misappropriation of their property.

42 C.F.R. § 483.13(c)(1)(ii).

To support the allegation that Petitioner failed to comply with this requirement, the alleged act relating to employment of certain individuals is detailed at Tag F-225 on the Statement of Deficiencies.

I find that HCFA did not make a prima facie showing that there was any employment of persons who were "found guilty' or "had a finding entered" concerning mistreatment, neglect, or abuse of residents. I take notice that there is a variance between the citation to 42 C.F.R § 483.13(c)(1)(ii) in the HCFA form 2567L and the descriptive language below the citation where the descriptive language appears to relate to 42 C.F.R. § 483.13(c)(1)(iii). HCFA Ex. 5 at 4. Because of my determination above based on Tag F-490, I need not analyze this deficiency in further detail.

5. Petitioner was in substantial compliance with 42 C.F.R. § 483.15(g) [Tag F-250].

Following the May 22, 1998 survey, HCFA cited Petitioner with quality of life deficiencies, specifically the subsection of the regulations concerning the provision of social services to residents, 42 C.F.R. § 483.15(g), which states in pertinent part:

[a] facility must care for its residents in a manner and in an environment that promotes maintenance or enhancement of each resident's quality of life.

(g) Social Services: (1) The facility must provide medically-related social services to attain or maintain the highest practicable physical mental, and psychosocial well-being of each resident.

42 C.F.R. § 483.15(g)(1).

To support the allegation that Petitioner failed to comply with this requirement, the alleged act is detailed at Tag F-250 on the Statement of Deficiencies.

Because of my determination above based on Tag F-490, I need not analyze this deficiency in further detail.

6. Petitioner was in substantial compliance with 42 C.F.R. § 483.25(f)(1) [Tag F-319].

Following the May 22, 1998 survey, HCFA cited Petitioner with quality of care deficiencies, specifically the subsection of the regulations concerning the provision of necessary care and services related to the mental and psychosocial functioning of residents, 42 C.F.R. § 483.25(f)(1), which states in pertinent part:

[e]ach resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care.

(f) Mental and Psychosocial functioning. Based on the comprehensive assessment of a resident, the facility must ensure that -

(1) A resident who displays mental or psychosocial adjustment difficulty, receives appropriate treatment and services to correct the assessed problem, . . .

42 C.F.R. § 483.25(f)(1).

To support the allegation that Petitioner failed to comply with this requirement, the alleged deficiency is detailed at Tag F-319 on the Statement of Deficiencies.

Because of my determination above based on Tag F-490, I need not analyze this deficiency in further detail.

VI. Conclusion.

Petitioner was not in substantial compliance with Medicare participation requirements on April 1, 1998. HCFA's determination that Petitioner's noncompliance was at an immediate jeopardy level was not clearly erroneous. HCFA had the authority to impose a $3,050 CMP for one day of immediate jeopardy.

Jill S. Clifton

Administrative Law Judge

1. HCFA contracts with State agencies to conduct surveys of skilled nursing facilities to determine compliance with Medicare participation requirements. Sections 1864 and 1819(a) of the Social Security Act (Act); 42 U.S.C. § 1395aa; 42 U.S.C. §1395i-3(g); and 42 C.F.R. § 488.20.