Health Law Daily Wrap Up, CIVIL MONEY PENALTIES—DAB DECISIONS: Provider was in substantial non-compliance for failure to provide psychotherapy services for depressed Resident, (Oct 28, 2025)

By Jeffrey H. Brochin, J.D.

Provider who never ordered or provided psychotherapy services to severely depressed Resident after it was recommended by consulting nurse practitioner, violated their own Depression Policy and were not in compliance with CMS’s ‘Free From Abuse and Neglect’ requirements.

The Department of Health and Human Services Departmental Appeals Board, Civil Remedies Division (Board) has affirmed in part the decision of CMS which found that Complete Care at Arbors (Provider) was in substantial noncompliance with CMS regulations for failure to provide a Resident with psychotherapy services. However, the Board further found that the Provider did not violate regulations pertaining to failures to investigate the Resident’s intent to self-harm, because his statements were not clearly indicative of suicidal ideation (Complete Care at Arbors, DAB No. CR6510, Docket No. C-21-1009 (July 22, 2024)).

Major Depressive Disorder. Resident 2 was an 85-year-old male who was admitted to Petitioner’s Tom’s River, New Jersey skilled nursing facility (SNF) on November 12, 2020 for rehabilitation with a diagnosis of major depressive disorder for which he was prescribed 15mg of Remeron. At the time of admission and throughout his stay at Petitioner's facility, the goal for Resident 2 was discharge to a long-term care facility and not to home. A November, 2020 Resident Mood Interview with Resident 2 disclosed symptoms of: feeling little interest or pleasure in doing things; feeling down, depressed or hopeless; and feeling bad about himself, or that he was a failure or had let himself or his family down.

On November 20, 2020, a consulting nurse practitioner with Mid Atlantic Geriatric Association evaluated Resident 2’s depression, and noted that Resident 2 was tearful at times, and, that his depression was exacerbated by being separated from his wife. She recommended Resident 2 continue using Remeron, attend psychotherapy and have more frequent video calls with his wife. The consulting nurse practitioner reported that the Petitioner had a responsibility to ensure that her recommendations were followed. It was undisputed that Petitioner never ordered or provided psychotherapy services to Resident 2.

Resident 2’s suicide. At around 11:57pm on December 5, 2020, approximately 12 minutes after an LPN left Resident 2 with eyes closed to sleep, the LPN and a CNA went to check on Resident 2 and found him on both knees on the floor with the right side of his body leaning against the bed. As the LPN went to assist him, he discovered that Resident 2’s call bell cord was wrapped around his neck. He had no pulse or respiration. No attempt to resuscitate Resident 2 was made due to his advanced directives.

On January 27, 2021, the state agency completed a survey of Petitioner’s facility and found that they were not in substantial compliance with three Medicare requirements: 42 C.F.R. § 483.12 (Free From Abuse and Neglect); 42 C.F.R. § 483.21(b)(1) (Develop/Implement Comprehensive Care Plan); and 42 C.F.R. § 483.40(a)(1)(2) (Sufficient/Competent Staff-Behavioral Health Needs). On June 11, 2021, CMS issued an initial determination in which it informed Petitioner that the complaint survey found that Petitioner was not in substantial compliance, and they imposed two ‘per-instance Civil Monetary Penalties’ (PICMPs) of $20,780.00 for the immediate jeopardy violation; and $10,650.00 for the violation of 42 C.F.R. § 483.21(b)(1). The Provider took the instant appeal to the Board.

‘Free From Abuse and Neglect’ violation. The Board found that the undisputed evidence demonstrated that Petitioner failed to implement psychotherapy to treat Resident 2’s depression as recommended by Petitioner’s mental health provider. A facility commits neglect when it fails to “provide goods and services to a resident that are necessary to avoid physical harm, pain, mental anguish or emotional distress,” and it is the facility’s responsibility to ensure that each resident is provided the goods and services they require based on the resident’s care plan and assessments.

Here, the Provider failed to provide psychotherapy services as recommended by the nurse practitioner to a resident diagnosed with major depressive disorder. Furthermore, the Petitioner did not offer any evidence that it considered the recommendation for psychotherapy but determined that psychotherapy services would not be provided, for example, due to Resident 2’s refusal or after consultation with another physician. Accordingly, the Board found that the Petitioner violated its Depression Policy as it clearly failed to order appropriate non-pharmacologic and pharmacologic interventions, based on required mental health assessments.

No suicidal ideation. CMS also argued that the Provider failed to investigate the seriousness of Resident 2’s alleged intent to self-harm; failed to secure Resident 2’s environment after his alleged suicidal ideation; failed to notify Resident 2’s physician of his depressive and suicidal symptoms and his alleged intent to self-harm; and failed to supervise Resident 2 until instructions were received from his treating physician.

However, the Board disagreed with the assessment of intent to do self-harm. Although an LPN reported and testified that Resident 2 indicated that his wife did not want him home and he said, “I’m not sure if I want to live anymore,” the Board could not conclude that the statement was a threat of suicide in light of the relevant facts and circumstances at the time the statement was made. Accordingly, the Petitioner was found to have met its burden to show that it was reasonable not to interpret Resident 2’s statement as a threat of suicide and that Petitioner did not abuse or neglect Resident 2 in so doing. Therefore, the Petitioner did not violate 42 C.F.R. § 483.12(a)(1) for its alleged failures to investigate Resident 2’s intent to self-harm.

Reduction in PICMP amount. The Board found that the $20,780 PICMP assessed for Petitioner’s violation of 42 C.F.R. § 483.12 was at the upper end of the possible range, and further found that this was not reasonable in light of the findings detailed above. With the exception of the alleged violation – failure to provide psychotherapy as recommended – the Board found the Petitioner to be in substantial compliance, and that therefore the imposed PICMP was unreasonable. They accordingly reduced it to $7,000–an amount reasonably related to an effort to produce corrective action by Petitioner with the kind of deficiency found in this case.

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