SUBJECT:

Oakwood Manor Nursing Center,

Petitioner,

Centers for Medicare & Medicaid Services

DECISION

The Centers for Medicare & Medicaid Services (CMS)⁽¹⁾ determined to impose a per-instance civil money penalty in the amount of $10,000 against Oakwood Manor Nursing Center (Petitioner). CMS premised this penalty on the determination that Petitioner manifested an immediate jeopardy level failure to comply with the requirements of 42 C.F.R. § 483.13(b). I decide that Petitioner was in substantial compliance with the cited participation requirement. Consequently, CMS is not authorized to impose a per-instance civil money penalty in the amount of $10,000 against Petitioner.

I. Background

Petitioner is a 180-bed skilled nursing facility located in Little Rock, Arkansas. By letter dated August 24, 1999, CMS notified Petitioner that it was imposing a per-instance civil money penalty in the amount of $10,000 based on an immediate jeopardy level deficiency identified by a complaint survey completed by the Missouri Division of Aging on August 2, 1999. The August 24, 1999 notice letter also advised that Petitioner had implemented measures that adequately addressed the immediate jeopardy by the time of the exit conference.

Petitioner requested a hearing and the case was assigned to Administrative Law Judge (ALJ) Cynthia A. Josserand for a hearing and decision. ALJ Josserand issued an order scheduling the case for hearing and establishing deadlines for the parties to complete prehearing exchanges. The case was subsequently reassigned to me for hearing and decision, and, at the request of the parties, I rescheduled the hearing and established new deadlines for completion of the prehearing exchanges.

The parties timely filed and exchanged proposed exhibits and other prehearing documents. Petitioner submitted 24 exhibits which I identify as P. Exs. 1 - 24. CMS submitted nine exhibits which I identify as CMS Exs. 1 - 9. Prior to the date of the hearing, the parties informed this office that they had agreed to submit the case on briefs in lieu of an in-person hearing.

On January 31, 2001, I convened a telephone conference. During the conference, the parties confirmed that they wished this case to be decided based on a written record in lieu of an in-person hearing. Both parties indicated that they would rely on the documentary evidence already submitted in this case and that they did not intend to submit additional documentary evidence. In addition, both parties stated that they did not need to rely on in-person testimony of witnesses and that they both waived the right to cross-examine witnesses. Based on this, I established a schedule for the parties to submit joint stipulations, if any, and to file briefs. February 15, 2001 Order and Schedule for Filing Briefs.

The parties subsequently submitted joint stipulations and simultaneously filed initial briefs. CMS's brief was accompanied by two documents which I mark as CMS Attachments 1 - 2. Petitioner submitted a response brief, but CMS waived its right to submit a response brief. The parties did not object to each other's proposed exhibits. In the absence of objection, I admit P. Exs. 1 - 9 and CMS Exs. 1 - 24 into evidence.

CMS and Petitioner have rested their cases on their written submissions. Neither party has indicated any desire to have additional proceedings in this case. Consequently, I have decided this case based on the parties' written submissions without scheduling additional evidentiary proceedings.

II. Stipulations

In a document captioned Joint Stipulations which was received by this office on March 5, 2001, the parties stipulated as follows:

1. Petitioner is a 180-bed Skilled Nursing Facility located in Kansas City, Missouri. At the time of the events at issue and at the present time, Petitioner is certified to participate in both Medicare and Medicaid.

2. A resident, who is identified as Resident #1, was initially admitted to Petitioner's facility on 11/6/98. The resident was placed in Petitioner's facility by a caseworker from the Missouri Division of Aging ("MDA"). There is no written documentation that substantiates what Petitioner was told about the reason for the placement. According to Petitioner's staff, the MDA caseworker advised the facility that a neighbor had seen the son slap the resident in the home the mother and son shared. According to MDA, there had been allegations that the son was sexually abusing the mother at home.

3. Resident #1 was 90 years old at the time of her admission and had diagnoses that included hypothyroidism, weakness, and dementia. She was dependent on Petitioner's staff for meeting all her care needs and was confused.

4. Criminal charges were filed against the son in Kansas City Municipal Court. There was a police report dated November 17, 1998, filed concerning the alleged criminal activity, but that report is a "Closed record" under Missouri law and neither Petitioner nor Respondent have been able to obtain a copy of the report. On December 2, 1998, the criminal case was continued until March 3, 1999, and a "Stipulated Order of Continuance" [Pet. Ex. 14] was entered, which was agreed to by the son's attorney, the prosecuting attorney, and attorneys for the mother (Resident #1). The Order stated, in part, that the son "shall be allowed supervised weekly visitation with (Resident #1) at such places as (Resident #1's attorneys) may determine and with such persons supervising the visitation as (Resident #1's attorneys) may designate in writing["]. During the period of time this court order was in effect, the MDA and Respondent do not dispute that the facility directly supervised all of the son's visits with the mother, in accordance with this Order and the directions of Resident #1's attorneys.

5. On June 16, 1999, Petitioner received a letter [Pet. Ex.15] from the attorney for Resident #1's son stating: "This is to inform you that (Resident #1's son) has been cleared of all charges against him. On June 15, 1999, (Resident #1's son) was found not guilty in a jury trial before the Honorable Michael L. Midyett. If verification of this verdict is needed, you may contact the clerk of Division Nine of the Circuit Court . . . . ." Thereafter, Petitioner sought verification from the Court and received a letter dated June 17, 1999 [Pet. Ex. 16], which stated: "Please consider this letter formal notice that the above-entitled cause of action has been disposed as of June 15, 1999. We will consider our record closed as of that date . . . ."

6. After receiving a copy of the June 17, 1999 [letter] from the Court, Petitioner began allowing private, unsupervised visits between Resident #1 and her son.

7. On July 22, 1999, Resident #1's roommate reported to facility staff that approximately two to three weeks before, the son had been visiting Resident #1. According to the roommate, the son pulled the privacy curtain during the visit, but the roommate saw the son unzip his pants and put his mother's hands on his penis and cause her to manipulate it, and that he put his hand on his mother's crotch area.

8. The Administrator immediately directed that the son should not be allowed to be alone with his mother and that the facility staff were to notify her immediately if they observed any behavior by the son that they believed to be inappropriate, and that they should immediately direct the son to stop the behavior.

9. Federal regulations require that facilities assure that each resident "has the right to personal privacy" (42 C.F.R. §483.10(e)), which HCFA has interpreted as meaning that "the resident has the right to privacy with whomever the resident wishes to be private and that this privacy should include full visual, and, to the extent, desired, for visits or other activities, auditory privacy . . . " (HCFA "Guidance to Surveyors", F164, emphasis in the original). Federal regulations also require that "the resident has the right and the facility must provide immediate access to any resident by the following: . . . subject to the resident's right to deny or withdraw consent at any time, immediate family or other relatives of the resident". (42 C.F.R. § 483.10(j)(1)(vii). HCFA interprets this as requiring that "(i)mmediate family or other relatives are not subject to visiting hour limitations or other restrictions not imposed by the resident" (HCFA "Guidance to Surveyors", F172).

10. By letter dated August 24, 1999 ("August 24, 1999 Notice"), Respondent HCFA notified Petitioner that the MDA had completed a complaint survey at Petitioner on August 2, 1999, and that the complaint survey had found the facility not in substantial compliance with participation requirements and that the conditions in Petitioner's facility constituted immediate jeopardy to resident health and safety. However, according to the August 24, 1999 Notice, Petitioner had implemented measures that adequately addressed the immediate jeopardy by the time of the exit conference.

11. The August 24, 1999 Notice also advised that Respondent HCFA was imposing a per instance civil monetary penalty ("CMP") in the amount of $10,000, and further advised that HCFA was imposing a denial of payment for new Medicare and Medicaid admissions effective September 8, 1999. The August 24, 1999 Notice also advised Petitioner that federal law prohibits approval of nurse aide training and competency evaluation programs ("NATCEP") and competency evaluation programs ("CEP") offered by or in a facility which has been subjected to certain remedies, including denial of payment.

12. By letter dated September 16, 1999, Respondent HCFA notified Petitioner that HCFA had confirmed with the MDA that a August 19, 1999 revisit had determined Petitioner to be in substantial compliance, and that denial of payments for new admission would not be imposed.

Joint Stipulations received March 5, 2001.

III. Issues, findings of fact and conclusions of law

A. Issues

The principal issue in this case is whether Petitioner was in substantial compliance with 42 C.F.R. § 483.13(b), which concerns a resident's right to be free from verbal, sexual, physical, and mental abuse. If not, further issues are whether the noncompliance resulted in immediate jeopardy and whether the $10,000 per-instance civil money penalty imposed against Petitioner is reasonable under the circumstances.

B. Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below in bold as a separately numbered heading. I discuss each Finding in detail.

1. A finding on the issue of whether abuse of a resident occurred is not outcome-determinative of the issue of whether Petitioner failed to comply substantially with 42 C.F.R. § 483.13(b).

The report of the August 2, 1999 survey of Petitioner specifically avers, as a basis for the deficiency citation, that Petitioner failed to comply with the requirements of 42 C.F.R. § 483.13(b). This regulation states that:

[t]he resident [of a long-term care facility] has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion.

The word "abuse" is defined elsewhere in the regulations. "Abuse" is defined to mean:

the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish.

42 C.F.R. § 488.301.

CMS asserts that the undisputed material facts of this case establish that Resident #1 was sexually abused by her son, and argues that "even a single incident of abuse requires a finding that the facility is not in substantial compliance" with the requirement at 42 C.F.R. § 483.13(b). CMS Brief at 8 (emphasis added). CMS reasons that where "even a single instance of abuse has occurred, the resident's 'right to be free' from abuse has been violated, and the facility has not complied with the requirements of 42 C.F.R. § 483.13(b)." Id. CMS appears to be arguing that no matter what steps a facility has taken and no matter how unexpected or unpreventable an instance of abuse may be, a facility is strictly liable for an instance of abuse. In support of this argument, CMS cites the ALJ decision in Greenery Extended Care Center, DAB CR707 (2000).

I disagree with CMS's argument and I disagree with the Greenery Extended Care Center decision to the extent that it supports the proposition that an isolated instance of abuse occurring at a facility is per se a failure by the facility to comply with the requirements of 42 C.F.R. § 483.13(b). Although 42 C.F.R. § 483.13(b) states that a resident has a right to be free from abuse, I do not read this to mean that where an isolated instance of abuse has occurred, the facility is automatically deficient under this regulation because a resident's right to be free from abuse has been violated.

A more reasoned approach is set forth by an appellate panel in Beverly Health and Rehabilitation Center - Williamsburg, DAB No. 1748 (2000). In formulating a test for determining whether a facility is deficient under 42 C.F.R. § 483.13(b), the appellate panel read 42 C.F.R. § 483.13(b) in conjunction with 42 C.F.R. § 483.10 which states that a facility "must protect and promote the rights of each resident."⁽²⁾ When these sections are read together, the appellate panel concluded that a finding of noncompliance with 483.13(b) "implies a failure (deliberate or negligent) by a facility to protect a resident from abuse." Beverly Health of Williamsburg at 6.

Thus, the core issue is not whether abuse occurred, but rather whether the facility engaged in deliberate or neglectful conduct which failed to protect a resident from abuse. The regulatory scheme contemplates that the emphasis is on ensuring adequate care to meet the specified goal (freedom from abuse). I find that 42 C.F.R. § 483.13(b) does not impose a strict liability standard on a facility for any and all instances of resident abuse without regard to the surrounding circumstances. The regulation instead imposes a requirement on a facility to take all necessary steps to prevent a violation of a resident's right to be free from abuse.

While a conclusion that a facility has failed to comply with 42 C.F.R. § 483.13(b) does not automatically flow from the mere fact that an isolated instance of abuse has occurred, this is not to suggest that an occurrence of abuse has no significance in deciding whether a facility is deficient under 42 C.F.R. § 483.13(b). An occurrence of abuse creates a presumption of noncompliance with the requirements of 42 C.F.R. § 483.13(b) which a facility is obliged to rebut. A facility will rebut that presumption by proving that it did indeed take all necessary steps to prevent the abuse from occurring.

On the other hand, just as an occurrence of abuse is not outcome-determinative on the issue of compliance with 42 C.F.R. § 483.13(b), the absence of an occurrence of abuse is not outcome-determinative on this issue either. A facility may be found to be deficient under 42 C.F.R. § 483.13(b) even if there is no showing that a resident has actually been abused. Proof of actual abuse is not a necessary prerequisite to a deficiency finding under 42 C.F.R. § 483.13(b). In Beverly Health of Williamsburg, the appellate panel interpreted 42 C.F.R. § 483.13(b) to extend beyond the prevention of actual abuse. Under the test articulated by the appellate panel in Beverly Health of Williamsburg, a facility is deficient under 42 C.F.R. § 483.13(b) if it either deliberately or negligently acts in some way that presents either actual abuse or the potential for abuse. Beverly Health of Williamsburg at 8, 11. Thus, 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 does not take reasonably necessary steps to prevent it from happening. As support for this interpretation, the appellate panel cites language contained in CMS's guidelines to surveyors which states that 42 C.F.R. § 483.13(b) covers a:

facility's responsibilities to prevent not only abuse, but also those practices and omissions, neglect and misappropriation of property, that, if left unchecked, lead to abuse.

State Operations Manual, at Appendix PP (Guidelines to Surveyors for 42 C.F.R. § 483.13(b)).

In view of the foregoing, I find that in deciding whether a facility has complied with 42 C.F.R. § 483.13(b), the ultimate issue is not whether an incident of abuse has occurred, but whether there is a failure (deliberate or negligent) of care by a facility to protect a resident from abuse or the potential for abuse. An inquiry on the issue of whether an incident of abuse actually occurred, however, is relevant to deciding the issue of compliance with 42 C.F.R. § 483.13(b) insofar as an affirmative finding that abuse actually occurred creates a presumption of noncompliance. This presumption can be overcome by a showing that the facility did not deliberately or negligently fail to prevent the abuse. I turn now to address the issue of whether the evidence establishes that abuse actually occurred in this case.

2. CMS failed to adduce reliable evidence sufficient to establish that Resident #1 was sexually abused by her son.

CMS takes the position that "it is undisputed that sexual abuse occurred at least once." CMS Brief at 8. In support of this assertion CMS cites Joint Stipulation 7. In its response brief, Petitioner makes it clear in no uncertain terms that it does not agree with CMS's interpretation of Stipulation 7. Petitioner states that Joint Stipulation 7 can not be read to mean that Petitioner agrees that sexual abuse occurred, but that this stipulation simply recites what the resident's roommate reported to facility staff on July 22, 1999, concerning her observations of alleged sexual abuse of Resident #1. Petitioner argues also that the evidence of record is insufficient to support a finding of sexual abuse. Petitioner Response Brief at 1 - 2.

I agree with Petitioner that Joint Stipulation 7 does not support CMS's assertion that it is undisputed that sexual abuse occurred. In Joint Stipulation 7 Petitioner agrees only to the fact that Resident #1's roommate reported to facility staff that she saw the son sexually abuse his mother. Joint Stipulation 7 does not state that the parties are stipulating that the sexual abuse actually occurred. Accordingly, I must make a finding on this disputed issue of fact based on the evidence of record. I find that the evidence fails to establish that Resident #1 was sexually abused by her son.

The assertion that sexual abuse occurred rests on the hearsay allegations of Resident #1' s roommate. According to the survey report, a "witness" reported to a staff member that a few weeks before, on an unspecified date, Resident #1's son was seen with his penis out, putting Resident #1's hands on it, and he had his hands on her vagina. CMS Ex. 4 at 6.

A report dated July 31, 1999 of an interview with this witness by an investigator with the Missouri Office of the Attorney General, Medicaid Fraud Control Unit, states that this witness identified herself as the roommate of Resident #1. Resident #1's roommate reportedly told the investigator that she witnessed this incident sometime in late June, 1999, and that she kept the information to herself for two to three weeks until she was asked by Camilla Hill, Certified Nurse's Assistant, whether she had ever seen anything out of the ordinary between Resident #1 and her son. Resident #1's roommate reportedly relayed what she had seen to Ms. Hill and later on to police officers when they asked to interview her. The investigative report also indicated that Resident #1's roommate expressed reluctance at testifying about the incident in court. CMS Ex. 9.

An affidavit by Ms. Hill states that the roommate told her about the incident on July 20, 1999 after Ms. Hill asked her if Petitioner's son had done anything wrong. She seemed reluctant to get involved. Ms. Hill did not report the incident to Karen McKinley, Director of Nursing, until July 22, 1999, after Ms. Hill had ascertained that Resident #1's roommate was ready to report it to someone else. P. Ex. 2. An affidavit by Ms. McKinley states that Resident #1's roommate reported the incident of sexual abuse to her on July 22, 1999. P. Ex. 4.

The evidence in the record pertaining to the roommate's allegations of sexual abuse consists of hearsay evidence. I routinely admit hearsay evidence in cases involving CMS. But, the fact that I admit hearsay does not mean that I assume it to be reliable. As a general consideration, I do not accord much, if any, weight to hearsay evidence unless there is other evidence which I can rely on which establishes the hearsay to be credible. Hearsay evidence is inherently less reliable than is evidence which can be tested through cross-examination. It is generally not admissible in federal civil trials under the Federal Rules of Evidence precisely because of its inherent unreliability. Traditionally, it is barred from admission in jury trials because jurors might be misled into assuming that it is more reliable than, in fact, it is.

The hearsay evidence regarding the alleged incident of sexual abuse is inherently unreliable because it is difficult to discern whether Resident #1's roommate's statements were reported accurately. Even assuming that the statements were accurately reported, it is also difficult to determine whether the hearsay statements are credible. Although Tracey Bohrer, the Administrator, stated in an affidavit that Ms. McKinley believed Resident #1's roommate to be a credible witness, there is no other evidence in the record pertaining to her credibility, such as evidence related to her mental status. P. Ex. 3.

In addition, the evidence extrinsic to Resident #1's roommate's hearsay allegations fails to support these allegations. A July 28, 1999 report by the Missouri Department of Social Services states that Resident #1's son denied the allegations of sexual abuse. CMS Ex. 5 at 6. There is no evidence of any prosecution resulting from these allegations. While a July 22, 1999 report of the Missouri Department of Social Services states that Resident #1 has a sexually transmitted disease, CMS does not assert this in its brief and it is not supported by the medical evidence of record. CMS Ex. 5 at 1.

The medical evidence shows that in late April, 1999, Resident #1 developed an upper respiratory infection which was treated with an antibiotic. In May, she developed a urinary tract infection which was treated with another antibiotic. During the first half of June, prior to the time when her son was allowed unsupervised visits with her, Resident #1 developed redness on the buttocks, the perineal area, and on her face. Based on these symptoms, a physician diagnosed a yeast infection which was treated with Diflucan. Yeast infections are a relatively common side effect following the administration of antibiotics. P. Ex. 4 at 2; P. Ex. 6 at 1, 3, 12, 13.

On June 27, 1999, Janel Lockerby, Licensed Practical Nurse., noted on the nursing progress notes that Resident #1 had been crying and stated, "I'm hurting where I pee from." When asked by Ms. Lockerby what happened, Resident #1 stated that "one guy touched me down there." The Department of Social Services was notified. Resident #1 was examined, and no abnormalities were noted. There were no tears in her vagina, no swelling, bruising or bleeding and no change in appearance. P. Ex. 1 at 2; P. Ex. 6 at 14.

Ms. Lockerby also reported Resident #1's statements to Ms. McKinley. The next day Ms. McKinley and Ms. Lockerby questioned Resident #1 further, but her responses were confused and rambling. Resident #1 started talking about her son making no effort to see her. Ms. McKinley and Ms. Lockerby examined Resident #1 and concluded that the pain she referred to related to her yeast infection, and that her comment about being touched by a man may have referred to a male Certified Nurse's Assistant who had cleaned her up after an incontinent episode. Ms. McKinley and Ms. Lockerby did not find any credible reason to suspect that Resident #1 had been sexually abused. P. Ex. 1 at 2 ; P Ex. 4 at 2 - 3.

On July 1, 1999, Resident #1 was placed on another course of antibiotics for a urinary tract infection. On July 20, 1999, Ms. Hill reported to Ms. McKinley that Ms. Hill had asked Resident #1 if her son had ever touched her anywhere that he shouldn't have, and that Resident #1 responded by saying "my vagina." In addition, Ms. Hill reported that Resident #1 had a vaginal discharge. Ms. McKinley and Ms. Lockerby again examined Resident #1 and noted copious amounts of yellowish-greenish discharge, but there was no sign of trauma to her vaginal area. Her symptoms were reported to a physician who diagnosed a yeast infection. Her symptoms were consistent with a yeast infection that may have developed as a side effect to the antibiotic usage. When questioned about her comment about being touched by her son, Resident #1's answers were not responsive. Petitioner Ex. 4 at 3; P. Ex. 6 at 15, 17, 18.

While the foregoing evidence shows that Resident #1 made statements indicating that a male had touched her in her vaginal area, these statements are shown to be unreliable by evidence showing that Resident #1 has a tenuous grasp of reality. It is undisputed that at the time of her admission, this 90-year-old resident was diagnosed with dementia. Joint Stipulation 3. Resident #1 had long and short term memory problems, and she often was confused and spoke in a nonsensical manner. P. Ex. 1 at 4. In addition, repeated physical examinations showed no physical manifestations of sexual abuse or trauma. Her medical symptoms were consistent with a yeast infection secondary to antibiotics administered for respiratory and urinary tract infections.

None of the members of the facility's staff reported that they ever saw Resident #1's son touch her on the breasts, genitals or buttocks. Although some of the staff saw the son kiss Resident #1 on the lips in a manner that personally made them feel uncomfortable, CMS has not made a showing that conduct of this nature constitutes sexual abuse. Moreover, it cannot be inferred from this conduct that Resident #1 was sexually abused by her son.

Resident #1 did not express displeasure at having her son visit her. Although the receptionist at the facility noted that Resident #1 was crying when her son left after visiting her on June 26, 1999, she could have been crying for any number of reasons. CMS Ex. 8. It would be far too speculative to conclude that this episode of crying was due to the alleged sexual abuse, particularly since the date of the alleged abuse is unknown.

While Resident #1's son was ordered by a court to have supervised visits with his mother in December, 1998 due to pending criminal charges against him, the record shows that Resident #1 was cleared of all criminal charges against him in June, 1999. I do not find that these criminal charges, which were ultimately dismissed, corroborate a finding that Resident #1 was sexually abused by her son. Moreover, the exact nature of these charges is unclear from the record.

In view of the foregoing, I conclude that hearsay allegations of Resident #1's roommate are not corroborated by reliable evidence extrinsic to the hearsay evidence, and that the uncorroborated hearsay allegations are not sufficient to conclusively establish that Resident #1 was sexually abused by her son.

3. The evidence fails to establish that Petitioner deliberately or negligently failed to protect Resident #1 from sexual abuse or from the potential for sexual abuse by her son.

As I stated above, a facility may still be found to be deficient under 42 C.F.R. § 483.13(b) even if there has not been a showing of actual abuse. A facility is deficient under 42 C.F.R § 483.13(b) if it either deliberately or negligently acts in some way that presents the potential for abuse. I have considered carefully whether Petitioner's care of Resident # 1 might be characterized as a deliberate or negligent failure to protect Resident #1 from the potential for abuse, and I find that the evidence in this case fails to establish such a conclusion. Moreover, even if I were to find that there was a showing of actual abuse in this case, which I do not, I would still find that the evidence fails to establish that Petitioner deliberately or negligently failed to protect Resident #1 from actual abuse. In evaluating all of the evidence in this case, what strikes me is my difficulty in determining what, if anything, Petitioner should have done differently with regard to its care of Resident #1.

Resident #1 was initially admitted to Petitioner in November, 1998. The resident had been placed in Petitioner by a caseworker from the Missouri Department of Aging. There is no written documentation that substantiates what Petitioner was told about the placement. According to Petitioner's staff, the Missouri Department of Aging caseworker told Petitioner that a neighbor had seen the son slap Resident #1 in the home the mother and son shared. According to the Missouri Department of Aging, there had been allegations that the son was sexually abusing the mother at home. However, Petitioner claims that it was not advised the there were any suspicions that the son had sexually abused his mother prior to her admission at Petitioner. Joint Stipulation 1; CMS Ex. 5 at 18. In the absence of evidence to the contrary, I find that Petitioner was not aware of any information the Missouri Department of Aging had regarding allegations that Resident #1 was sexually abused by her son prior to her admission to Petitioner. Instead, it appears that Petitioner had limited information concerning the allegations against Resident #1's son.

Criminal charges were filed against the son in Kansas City Municipal Court. When the criminal case was continued on December 2, 1998, the court conditioned the continuance on the son being allowed only supervised visits with his mother at Petitioner. It is undisputed that during the period that the order was in effect, Petitioner directly supervised all of the son's visits with Resident #1, in accordance with the court order and the direction of Resident #1's attorneys. Joint Stipulation 4; CMS Ex. 5 at 18.

On June 15, 1999, Resident #1's son was found not guilty in a jury trial, and the court verified this in a letter to Petitioner dated June 17, 1999. The son's attorney also sent a letter to Petitioner stating that the son had been cleared of all charges. After receiving copies of these letters, Petitioner began allowing private, unsupervised visits. Joint Stipulation 5, 6. It was during one of these unsupervised visits that the sexual abuse allegedly occurred.

On July 20, 1999, Resident #1's roommate, in response to questioning from Ms. Hill, reported that she had seen the son sexually abuse his mother a couple of weeks before. On July 22, 1999 the roommate agreed to tell what she had seen to Ms. McKinley. P. Ex. 2. Ms. McKinley reported the allegations to the Administrator who immediately reported the allegations to appropriate authorities. P. Ex. 3. The Administrator also directed that the son should not be allowed to be alone with his mother, that staff report any inappropriate behavior, and that the son be told to stop the behavior. Joint Stipulation 8.

CMS contends that Petitioner did not take reasonable precautions to prevent Resident #1 from being sexually abused by her son. CMS points out that Petitioner was aware of the circumstances of Resident #1's admission to Petitioner - that her son may have physically abused her. CMS points out also that the son's criminal case could have been dismissed for any number of reasons, and asserts that the dismissal of that case did not absolve Petitioner from the responsibility to protect Resident #1 from abuse. CMS states that in addition, several employees observed the son inappropriately kissing his mother. According to CMS, the fact that the son pulled the privacy curtain during the unsupervised visits also raised the possibility that he was having inappropriate sexual contact with his mother. Under these circumstances, CMS argues that Petitioner should have continued to supervise the son's visits, even after the criminal case was dismissed. CMS Brief at 7 - 9.

The weight of the evidence belies any assertions that Petitioner was remiss in its care of Resident #1. I am not persuaded that Petitioner's failure to continue supervised visits after the criminal case was dismissed was a dereliction of Petitioner's responsibilities to Resident #1.

It is true that Petitioner was aware that there were allegations that Resident #1 was slapped by her son prior to her admission to Petitioner and that the criminal case could have been dismissed for any number of reasons. However, CMS seems to be taking the untenable position that Petitioner should have assumed that the son had physically abused his mother, even though the son was cleared of the criminal charges. In addition, CMS seems to be taking the untenable position that Petitioner should have assumed that Resident #1 was at risk for being sexually abused by her son based the fact that Petitioner was aware of charges of physical abuse.

Moreover, there are legal limitations on the extent to which a facility can restrict visits between a resident and a family member. Federal regulations require that the:

resident has the right and the facility must provide immediate access to any resident by the following . . . [s]ubject to the resident's right to deny or withdraw consent at any time, immediate family or other relatives of the resident.

42 C.F.R. § 483.10(j)(1)(vii). CMS has interpreted this as requiring that members of the immediate family are not subject to visiting restrictions not imposed by the resident. Joint Stipulation 9.

Federal regulations also require that facilities ensure that each resident "has the right to personal privacy." 42 C.F.R. § 483.10(e). CMS has interpreted this to mean that the resident has the right to privacy with whomever the resident wishes to be private, and that this privacy should include full visual, and to the extent desired, auditory privacy. Joint Stipulation 9.

When the criminal case against Resident #1's son was dismissed, and the court order was no longer in effect, Petitioner no longer had any legal authority to continue to supervise Resident #1's visits. Resident #1 had the same right as any other resident to private visits with her son. It is noteworthy that there is not indication that Resident #1's attorneys sought to continue to limit or otherwise restrict visits between the son and his mother after the criminal case was dismissed. In addition, Resident #1 did not was not reluctant to participate in visits with her son.

The fact of a prior criminal charge that was dismissed did not give Petitioner the right to ignore its legal obligation to allow unrestricted visits between a resident and her son. In the absence of credible evidence that unsupervised visits between Resident #1 and her son posed a risk to Resident #1, Petitioner did not have a right to restrict the visits between mother and son. Moreover, given that CMS has interpreted federal regulations as requiring that a resident have full visual privacy during visits, Petitioner could not infer that improper sexual contact was occurring between Resident #1 and her son merely from the fact that the son pulled the privacy curtain.

I find also that the credible evidence pertaining to Resident #1's son's expressions of affection towards his mother during the supervised visits is insufficient to establish that the son posed a threat to his mother. CMS asserts that Petitioner should have continued to supervise visits between Resident #1 and her son after the court order for supervised visits was lifted because Petitioner's staff had observed "lover type" kisses between mother and son during the court-ordered supervised visits. In support of this assertion, CMS relies on two written reports of an investigator who interviewed Ms. Hill and Ms. Lockerby.

According to one of the investigative reports, Ms. Lockerby described the kissing as the son "placing his hands on his mother's cheeks and kissing her with an open mouth for a long duration while moving his head around in a manner similar to a lover's kiss." CMS Ex. 7. There is no indication that Ms. Lockerby had any opportunity to review this investigative report to verify that it accurately reflected her statements to the investigator. I find that more credible evidence of Ms. Lockerby's observations of the kissing between Resident #1 and her son are set forth in a sworn affidavit in which she reports:

[The son] would kiss his mother on the lips. He did not kiss her with an open mouth or use his tongue. I did not know if [the son's] kissing was the result of the way he was brought up and how his family showed affection or if he was trying to over compensate in front of the staff who knew he had been charged with assaulting his mother. [Resident #1] always seemed very glad to see her son and did not seem uncomfortable with the way he kissed her. I did not document the kissing incidents or report them to any of my supervisors because my belief the kissing was inappropriate was my own subjective determination. If I had seen anything that I believed was evidence that [Resident #1] was harming his mother in any way, I would definitely have reported it to the Director of Nursing.

P. Ex. 1.

Ms. Lockerby's sworn statement directly contradicts the statement that the investigator claims that she made about the nature of the son's kisses. The investigator reports that she observed open mouth kissing similar to a lover's kiss, while her sworn statement states that the son did not kiss his mother with an open mouth or use his tongue. I find the description contained in the sworn affidavit to be more reliable than the statements attributed to her by the investigator because she reviewed the statements contained in the affidavit and attested to their accuracy.

The investigative report of the interview with Ms. Hill reported that Ms. Hill reported that during the court-ordered, supervised visits, she observed "lover-type kisses of a sensual nature" between mother and son. CMS Ex. 6. In her sworn statement, Ms. Hill stated that although the son's behavior made her personally uncomfortable, she never saw him hurting his mother or sexually abusing her in any way. P. Ex. 2.

Moreover, while recorded observations of the son's behavior, which were prepared at the time of the son's supervised visits with his mother, indicate that the son greeted his mother with numerous hugs and kisses on the lips, they do not describe open-mouthed kissing. CMS Ex. 3. In a sworn affidavit, Mindy O'Neil, Director of Social Services, stated that she personally supervised visits between Resident #1 and her son while the court order was in effect, and she confirmed that the "kissing wasn't open mouthed or with [the son's] tongue." P. Ex. 5. Ms. O'Neil stated also that Resident #1 was always very glad to see her son, and that the son would kiss his mother on the lips when he came and when he left. Ms. Neil indicated that although the kissing made her uncomfortable, she did not believe that it was something that should be reported. Instead, she "chalked it up to simply the way this family showed affection" and she stated that she "never saw [the son] abuse his mother or do anything that made me think he might harm [his mother] in any way." P. Ex. 5.

Based on this evidence, I find that the Director of Social Services personally observed the behavior of the son toward his mother during the supervised visits and made a professional assessment that the son did not pose a threat to his mother based on her observations. Under these circumstances, it was not unreasonable for Petitioner to rely on the expert judgment of its Director of Social Services. The regulation does not require a facility to challenge or second guess the expert judgments of its professional staff.

CMS also faults Petitioner because two days elapsed between the time that Resident #1's roommate first reported her allegations of sexual abuse to Ms. Hill on July 20, 1999 and the time that these allegations were reported to proper authorities on July 22, 1999. CMS Brief at 9. I am not persuaded that this delay shows that Petitioner was deficient because the record shows that July 22, 1999 is the earliest date that the roommate agreed to tell anyone other than Ms. Hill what she had allegedly seen. P. Ex. 2. Since the allegations of sexual abuse emanated from Resident #1's roommate, the incident could not be reported unless Ms. Hill cooperated and agreed to report what she had allegedly witnessed.

In view of the foregoing, I conclude that the derelictions of responsibilities by Petitioner alleged by CMS are not evidence of failure by Petitioner to protect Resident #1 from abuse or the potential of abuse. On the contrary, the evidence shows that Petitioner took aggressive measures to address the possibility that Resident #1 was abused. Petitioner diligently responded to suspicious statements by Resident #1 by questioning and physically examining her. Indeed, Resident #1's roommate's allegations of abuse surfaced because a vigilant staff member took the initiative in questioning the roommate. Once the roommate agreed to report the allegations to the authorities, Petitioner acted with dispatch and took appropriate steps to prevent future abuse. I do not find that the evidence shows that Petitioner was indifferent to the possibility that Resident #1 might be abused by her son during the period that Resident #1 was in Petitioner's care.

The allegations of sexual abuse of Resident #1 by her son are appalling and horrific. However, I find that there is no evidence of neglectful conduct by Petitioner. The evidence fails to establish that Petitioner failed to take steps to assure that Resident #1 was protected from abuse or that it negligently tolerated conditions that might have led to the abuse of Petitioner. In view of the foregoing, I conclude that Petitioner was in substantial compliance with 42 C.F.R. § 483.13(b) and CMS is therefore not authorized to impose a per-instance civil money penalty in the amount of $10,000 against Petitioner.

Marion T. Silva

Chief Administrative Law Judge

1. The Health Care Financing Administration (HCFA) has been renamed Centers for Medicare & Medicaid Services. For purposes of this decision, reference to either name will constitute reference to the same entity. In this regard, I point out that the CMS exhibits contained in the record are marked with the acronym "HCFA." I refer to these documents in this decision as CMS exhibits.

2. As the appellate panel points out, section 483.10 contains a list of a number of specific rights of residents in long-term care facilities. The duty to protect and promote rights expressly includes but is not limited to those rights listed in this section.