Health Law Daily Wrap Up, CIVIL MONEY PENALTIES—DAB DECISIONS: Substantial noncompliance ruling upheld where Petitioner failed to implement existing intervention to prevent Resident’s abuse, (Sep 12, 2025)

By Jeffrey H. Brochin, J.D.

Petitioner failed to ensure that vulnerable Resident was free from sexual abuse where Petitioner allowed Resident to be sexually abused three times, failing to protect her from abuse by another resident that was foreseeable.

The Department of Health and Human Services Departmental Appeals Board, Civil Remedies Division (Board) has affirmed the decision of CMS which found that Timbercreek Rehabilitation & Health Care Center (Provider) was in substantial noncompliance with CMS regulations, and that the degree of noncompliance reached the ‘immediate jeopardy’ level. Although the Provider took steps of intervention upon learning of the inappropriate touching by elderly male residents of a female resident, the interventions Petitioner developed and implemented after the December 27, 2020 incident were too late to prevent abuse that was foreseeable, leaving residents vulnerable to it; and, the Petitioner had failed to follow its own abuse policy, (Timbercreek Rehabilitation and Health Care Center, DAB No. CR6511, Docket No. C-21-1004, (July 18, 2024)).

Initial inappropriate touching. Resident 2 was a 67-year-old male suffering from impaired cognition due to a mental handicap from birth. Resident 1b was a 69-year-old female whose diagnoses included Alzheimer’s disease, a history of falling, cognitive communication deficit, extremely limited mobility, and a constant state of confusion. On August 9, 2019, the facility activity assistant pushed Resident 1b in her wheelchair up to a table in the dining area, and Resident 2 then came into the dining area and sat next to Resident 1b. Petitioner’s activity assistant then observed Resident 2 “touching the breast of” Resident 1b. Upon observing the incident, the activity assistant had another staff member take Resident 1b to a nurse for an assessment, however, the nurse did not observe any physical or mental injury to Resident 1b.

On December 27, 2020, Resident 1b was in her wheelchair in the common area close to the nurses’ station. However, despite her proximity to the nurses’ station, the nurse was unable to see Resident 1b because the holiday decorations obstructed her line of sight. Resident 2 was also in the same common area, and a staff member who was passing by the nurses’ station, noted that Resident 2 was “touching Resident 1b between her legs.” The staff member called Resident 2 by his name, and he immediately moved his hand away.

Resident 3’s inappropriate conduct. A September 10, 2020 entry in Resident 3’s care plan indicated that he was known to wander, to disrobe when incontinent or at night, and to attempt to get into other residents’ beds. As a result, he required one-on-one supervisory care. His October 2, 2020 medical records showed that he had been taking his clothes off and urinating on the floor. On October 6, 2020, a CNA entered Resident 1b’s room and noticed that Resident 3 was lying next to Resident 1b on Resident 1b’s bed, and that both were asleep. Resident 1b was under the covers fully dressed and Resident 3 was only wearing a depends brief while on top of the covers with a blanket covering him. Staff woke the residents up, took Resident 3 to his room, and a nurse assessed both residents and found “no signs or symptoms of foul or inappropriate activities.”

Provider’s abuse policy. The Petitioner’s abuse policy affirmed its residents’ right to be free from abuse, and the Petitioner incorporated the federal regulatory definition of abuse and sexual abuse into its policy. Its purpose was to ‘assure that the facility is doing all that is within its control to prevent occurrences of mistreatment, exploitation, neglect or abuse of its residents’, and to accomplish this goal, the Petitioner’s policy listed several actions it would take. Among those actions was establishing an environment that promoted resident security and prevention of abuse and, identifying occurrences and patterns of potential abuse of residents. Notably, the latter required Petitioner’s staff to “identify residents with increased vulnerability for abuse or who have needs and behaviors that might lead to conflict.” The policy further required the Petitioner’s staff to ‘continue to monitor the goals and approaches on a regular basis.’

Intervention too late. CMS alleged that the Petitioner failed to ensure that Resident 1b was free from sexual abuse because the Petitioner ‘allowed Resident 1b to be sexually abused three times and failed to protect residents from abusive behavior by Resident 2 and Resident 3.’ CMS further contended that the Petitioner failed to protect Resident 1b from foreseeable sexual abuse by failing to implement the existing interventions and failed to develop interventions that would have prevented abuse after each incident of abuse. The interventions the Petitioner developed and implemented after the December 27, 2020 incident were ‘too late’ to prevent abuse that was foreseeable, leaving residents vulnerable to it, and, the Petitioner failed to follow its own abuse policy.

Complaint to LTCO. In an unrelated matter, on December 23, 2020, between 1:00 a.m. and 2:00 a.m., Resident 1a activated his call light, and when the CNA responded, Resident 1a told her that he was hot, and asked her to open the window in his room, which the CNA did to a height of about an inch. She determined that Resident 1a had a normal temperature, and told him to use his call light if he became cold and needed the window closed. At about 3:30 a.m., when she went to check on him, she asked if ‘he was fine’ to which he replied that “he was good.” At about 6:20 a.m., another CNA went to Resident 1a’s room and he told her that he “did not feel right and was cold.” She gave him a blanket and closed the window.

A licensed practical nurse (LPN) noted in a December 23, 2020 nurse’s note that at 7:45 a.m., she observed Resident 1a had increased confusion and was ‘clammy and cool to the touch.’ The same nurse’s note stated that Resident 1a was feeling unwell and was “trembling uncontrollably.” The Petitioner decided to send Resident 1a to the emergency room for evaluation, where his temperature was found to be 95.2. There, Resident 1a told a nurse that Petitioner’s staff opened the window of his room and, as a result, his was very cold. The nurse reported the incident to the state agency and filed a complaint with the Long-Term Care Ombudsman (LTCO). When the LTCO interviewed Resident 1a, he said that he activated his call light because he was getting very cold, and, he estimated that it took several hours for the Petitioner’s staff to respond to the call light. The outdoor temperatures that night were said to be between 20 degrees and 40 degrees.

Immediate jeopardy. The ALJ found that the Petitioner failed to protect Resident 1b’s right to be free from sexual abuse on December 27, 2020, and, that the substantial noncompliance rose to the level of immediate jeopardy because it was foreseeable where the Petitioner left Resident 1-- and its other residents--vulnerable to that foreseeable behavior by failing to implement certain existing interventions and to develop appropriate interventions to address Resident 2’s behavior.

In addition, the ALJ concluded that the Petitioner’s noncompliance with 42 C.F.R. §483.12(a)(1) posed immediate jeopardy to resident health and safety and therefore CMS’s ruling was not clearly erroneous. Accordingly, the Board upheld CMS’s ruling as to noncompliance as well as their imposition of civil monetary penalties.

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